Exhibit 10.18
EXECUTION VERSION
REDACTED COPY
Portions of this Exhibit 10.18 have been omitted pursuant to a confidential treatment request. The omitted material has been filed separately with the Securities and Exchange Commission.
AMENDED AND RESTATED INDENTURE
dated as of December 13, 2007
by and between
WILLIS ENGINE
SECURITIZATION TRUST,
a Delaware statutory trust,
as issuer of the Notes,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Indenture Trustee of the Notes
Table of Contents
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Page |
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ARTICLE I |
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DEFINITIONS |
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Section 1.01 |
Definitions |
1 |
Section 1.02 |
Rules of Construction |
49 |
Section 1.03 |
Compliance Certificates and Opinions |
51 |
Section 1.04 |
Acts of Noteholders |
52 |
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ARTICLE II |
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THE NOTES |
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Section 2.01 |
Authorization of Notes; Amount of Outstanding Principal Balance; Terms; Form; Execution and Delivery |
53 |
Section 2.02 |
Restrictive Legends |
56 |
Section 2.03 |
Note Registrar and Paying Agent |
58 |
Section 2.04 |
Paying Agent to Hold Money in Trust |
59 |
Section 2.05 |
Method of Payment |
60 |
Section 2.06 |
Minimum Denomination |
61 |
Section 2.07 |
Exchange Option |
61 |
Section 2.08 |
Mutilated, Destroyed, Lost or Stolen Notes |
62 |
Section 2.09 |
Payments of Transfer Taxes |
63 |
Section 2.10 |
Additional Notes |
63 |
Section 2.11 |
Book-Entry Registration |
66 |
Section 2.12 |
Special Transfer Provisions |
68 |
Section 2.13 |
Temporary Definitive Notes |
71 |
Section 2.14 |
Statements to Noteholders |
72 |
Section 2.15 |
CUSIP, CINS AND ISIN Numbers |
74 |
Section 2.16 |
Debt Treatment of Notes |
74 |
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ARTICLE III |
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ACCOUNTS; PRIORITY OF PAYMENTS |
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Section 3.01 |
Establishment of Accounts; Investments |
74 |
Section 3.02 |
Collections Account |
76 |
Section 3.03 |
Engine Acquisition Account |
77 |
Section 3.04 |
Senior Restricted Cash Account |
79 |
Section 3.05 |
Junior Restricted Cash Account |
80 |
Section 3.06 |
Engine Reserve Account |
81 |
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Section 3.07 |
Security Deposit/Lessee-Funded Account; Lease Sub-Account |
82 |
Section 3.08 |
Expense Account |
83 |
Section 3.09 |
Series Accounts |
84 |
Section 3.10 |
Redemption/Defeasance Account |
84 |
Section 3.11 |
Engine Replacement Account |
85 |
Section 3.12 |
Hedge Payment Account |
86 |
Section 3.13 |
Calculations |
86 |
Section 3.14 |
Payment Date Distributions from the Collections Account |
90 |
Section 3.15 |
Allocation Rules |
96 |
Section 3.16 |
Certain Redemptions |
99 |
Section 3.17 |
Procedure for Redemptions |
100 |
Section 3.18 |
Collections Loans; Warehouse Loan |
101 |
Section 3.19 |
Adjustments in Targeted Principal Balances |
102 |
Section 3.20 |
Senior Liquidity Facility |
103 |
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ARTICLE IV |
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DEFAULT AND REMEDIES |
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Section 4.01 |
Events of Default |
108 |
Section 4.02 |
Remedies Upon Event of Default |
110 |
Section 4.03 |
Limitation on Suits |
112 |
Section 4.04 |
Waiver of Existing Defaults |
112 |
Section 4.05 |
Restoration of Rights and Remedies |
113 |
Section 4.06 |
Remedies Cumulative |
113 |
Section 4.07 |
Authority of Courts Not Required |
113 |
Section 4.08 |
Rights of Noteholders to Receive Payment |
114 |
Section 4.09 |
Indenture Trustee May File Proofs of Claim |
114 |
Section 4.10 |
Undertaking for Costs |
114 |
Section 4.11 |
Control by Noteholders |
114 |
Section 4.12 |
Purchase Rights of the Series B Noteholders |
115 |
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ARTICLE V |
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REPRESENTATIONS, WARRANTIES AND COVENANTS |
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Section 5.01 |
Representations and Warranties |
115 |
Section 5.02 |
General Covenants |
117 |
Section 5.03 |
Portfolio Covenants |
126 |
Section 5.04 |
Operating Covenants |
130 |
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ARTICLE VI |
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THE INDENTURE TRUSTEE |
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Section 6.01 |
Acceptance of Trusts and Duties |
134 |
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Section 6.02 |
Absence of Duties |
135 |
Section 6.03 |
Representations or Warranties |
135 |
Section 6.04 |
Reliance; Agents; Advice of Counsel |
135 |
Section 6.05 |
Not Acting in Individual Capacity |
137 |
Section 6.06 |
No Compensation from Noteholders |
137 |
Section 6.07 |
Notice of Defaults |
138 |
Section 6.08 |
Indenture Trustee May Hold Securities |
138 |
Section 6.09 |
Corporate Trustee Required; Eligibility |
138 |
Section 6.10 |
Reports by WEST |
138 |
Section 6.11 |
Compensation |
138 |
Section 6.12 |
Conditions Precedent |
139 |
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ARTICLE VII |
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SUCCESSOR INDENTURE TRUSTEES |
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Section 7.01 |
Resignation and Removal of Indenture Trustee |
139 |
Section 7.02 |
Appointment of Successor |
139 |
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ARTICLE VIII |
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INDEMNITY |
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Section 8.01 |
Indemnity |
141 |
Section 8.02 |
Noteholders’ Indemnity |
141 |
Section 8.03 |
Survival |
141 |
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ARTICLE IX |
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SUPPLEMENTAL INDENTURES |
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Section 9.01 |
Supplemental Indentures Without the Consent of the Noteholders |
142 |
Section 9.02 |
Supplemental Indentures with the Consent of Noteholders |
143 |
Section 9.03 |
Execution of Supplemental Indentures |
144 |
Section 9.04 |
Effect of Supplemental Indentures |
144 |
Section 9.05 |
Reference in Notes to Supplemental Indentures |
145 |
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ARTICLE X |
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MODIFICATION AND WAIVER |
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Section 10.01 |
Modification and Waiver with Consent of Holders |
145 |
Section 10.02 |
Modification Without Consent of Holders |
146 |
Section 10.03 |
Subordination and Priority of Payments |
146 |
Section 10.04 |
Execution of Amendments by Indenture Trustee |
146 |
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ARTICLE XI |
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SUBORDINATION |
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Section 11.01 |
Subordination |
147 |
Section 11.02 |
Rights of Subrogation |
148 |
Section 11.03 |
Further Assurances of Junior Representatives |
148 |
Section 11.04 |
Enforcement |
148 |
Section 11.05 |
Continued Effectiveness |
148 |
Section 11.06 |
Senior Claims and Junior Claims Unimpaired |
149 |
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ARTICLE XII |
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DISCHARGE OF INDENTURE; DEFEASANCE |
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Section 12.01 |
Discharge of Liability on the Notes; Defeasance |
149 |
Section 12.02 |
Conditions to Defeasance |
150 |
Section 12.03 |
Application of Trust Money |
151 |
Section 12.04 |
Repayment to WEST |
151 |
Section 12.05 |
Indemnity for Government Obligations and Corporate Obligations |
151 |
Section 12.06 |
Reinstatement |
152 |
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ARTICLE XIII |
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MISCELLANEOUS |
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Section 13.01 |
Right of Indenture Trustee to Perform |
152 |
Section 13.02 |
Waiver |
152 |
Section 13.03 |
Severability |
153 |
Section 13.04 |
Notices |
153 |
Section 13.05 |
Assignments |
155 |
Section 13.06 |
Currency Conversion |
155 |
Section 13.07 |
Application to Court |
156 |
Section 13.08 |
Governing Law |
157 |
Section 13.09 |
Jurisdiction |
157 |
Section 13.10 |
Counterparts |
157 |
Section 13.11 |
Table of Contents, Headings, Etc. |
157 |
Section 13.12 |
Compliance with Anti-Terrorism and Money-Laundering Regulations |
158 |
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Schedule |
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Description |
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Schedule 1 |
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Engine Subsidiaries |
Schedule 2-1 |
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Engine Trusts on Initial Closing Date |
Schedule 2-2 |
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Engine Trusts on Effective Date |
Schedule 3 |
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Leasing Subsidiaries |
Schedule 4-1 |
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Initial Engines |
Schedule 4-2 |
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Effective Date Engines |
Schedule 5 |
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Conditions Precedent to Acquisition of Additional Engines |
Schedule 6 |
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Conditions Precedent to Funding of Discretionary Engine Modifications |
Schedule 7 |
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Agent for Service of Process |
Exhibit |
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Description |
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Exhibit A-1 |
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Form of Series A Term Note |
Exhibit A-2 |
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Form of Series A Warehouse Note |
Exhibit B-1 |
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Form of Series B Term Note |
Exhibit B-2 |
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Form of Series B Warehouse Note |
Exhibit C-1 |
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Form of Certificate to be Given by Noteholders |
Exhibit C-2 |
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Form of Certificate to be Given by Euroclear or Clearstream |
Exhibit C-3 |
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Form of Certificate to Depository Regarding Interest |
Exhibit C-4 |
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Form of Depositary Certificate Regarding Interest |
Exhibit C-5 |
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Form of Transfer Certificate for Exchange or Transfer from 144A Book-Entry Note to Regulations S Book-Entry Note |
Exhibit C-6 |
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Form of Initial Purchaser Exchange Instructions |
Exhibit C-7 |
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Certificate to be Given by Transferee of Beneficial Interest in a Regulation S Temporary Book-Entry Note |
Exhibit D |
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Form of Investment Letter to be Delivered in Connection with Transfers to Non-QIB Accredited Investors |
Exhibit E |
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Concentration Limits |
Exhibit F |
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PRI Guidelines |
Exhibit G-1 |
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Form of Monthly Report |
Exhibit G-2 |
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Form of Annual Report |
Exhibit H |
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Insurance Provision |
Exhibit I |
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Core Lease Provisions |
Exhibit J |
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Required Acquisition Agreement Terms |
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This AMENDED AND RESTATED INDENTURE, dated as of December 13, 2007 (the “Amended and Restated Indenture”), is by and between WILLIS ENGINE SECURITIZATION TRUST, a Delaware statutory trust, as issuer of the Notes (“WEST”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as indenture trustee of each Series of Notes (the “Indenture Trustee”), and amends and restates the Indenture, dated as of August 9, 2005 (the “Original Indenture”), between WEST and the Indenture Trustee.
WITNESSETH:
WHEREAS, WEST and the Indenture Trustee entered into the Original Indenture, as thereafter supplemented by the Series A1 Supplement, dated as of August 9, 2005 (“Series 2005-A1 Supplement”), the Series A2 Supplement, dated as of August 9, 2005 (the “Series 2005-A2 Supplement”), the Series B1 Supplement, dated as of August 9, 2005 (the “Series 2005-B1 Supplement”), and the Series B2 Supplement, dated as of August 9, 2005 (the “Series 2005-B2 Supplement”), pursuant to which WEST issued the Initial Notes;
WHEREAS, WEST has requested that the Indenture Trustee agree to various amendments to the Original Indenture and, on behalf of the Indenture Trustee, WEST has delivered a notice of such request and proposed amendments to the Holders of all of the Notes issued under the Original Indenture, asking whether or not the Indenture Trustee should consent to such amendments;
WHEREAS, the Holders of all the Notes have consented to all of the amendments requested by WEST;
WHEREAS, WEST wishes to amend and restate the Original Indenture in its entirety by the execution and delivery of this Amended and Restated Indenture;
WHEREAS, this Amended and Restated Indenture, together with the Series 2005-A1 Supplement, the Series 2005-A2 Supplement, the Series 2005-B1 Supplement, the Series 2005-B2 Supplement and as hereafter supplemented, modified and amended, shall be referred to as, the “Indenture”;
NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
For purposes of this Indenture, the following terms shall have the meanings indicated below:
“144A Book-Entry Note” means a Note sold in reliance on Rule 144A, represented by a single permanent global note in fully registered form, without coupons, the form of which shall be substantially in the form of the applicable Note Form for such Note, with the legends required by Section 2.02 for a 144A Book-Entry Note inscribed thereon and with such changes therein and such additional information as may be specified in the Supplement pursuant to which such Note is issued.
“Acceleration Default” means any Event of Default of the type described in Section 4.01(f) or 4.01(g) hereof.
“Account” means each of the Collections Account, the Expense Account, the Engine Replacement Account, the Security Deposit/Lessee-Funded Account, each Series Account, the Senior Restricted Cash Account, the Junior Restricted Cash Account, the Engine Reserve Account, the Engine Acquisition Account, any Lessor Account, any Redemption/Defeasance Account, the Senior Cash Collateral Account, the Hedge Payment Account, the Qualified Escrow Account and any other accounts established and maintained in accordance with this Indenture, together with all sub-accounts and ledger and sub-ledger accounts maintained therein in accordance with this Indenture.
“Acquisition Agreement” means any agreement (other than the Asset Transfer Agreement) pursuant to which Additional Engines are acquired by a WEST Group Member in a Permitted Engine Acquisition.
“Acquisition Balance Redemption” has the meaning given to such term in Section 3.16(b) hereof.
“Act” has the meaning, with respect to any Noteholder, given to such term in Section 1.04(a) hereof.
“Additional Certificates” means any Beneficial Interest Certificates issued pursuant to the Trust Agreement, the proceeds of which are used, in substantial part, to acquire Additional Engines or to fund Discretionary Engine Modifications.
“Additional Engine” means each aircraft engine acquired by a WEST Group Member (other than an Initial Remaining Engine) subsequent to the Initial Closing Date in accordance with the conditions set forth in Section 5.03(b) of this Indenture.
“Additional Interest” means, with respect to a Series of Notes, the amount of interest due and payable in respect of any overdue payments in respect of such Series of Notes, as specified in the related Supplement.
“Additional Interest Amount” means, with respect to any Series of Notes, that amount of Additional Interest due and payable on such Series of Notes on a Payment Date, including any Additional Interest due and payable on a prior Payment Date that was not paid on such prior Payment Date.
“Additional Issuance” has the meaning given to such term in Section 2.10 hereof.
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“Additional Notes” means the Notes evidencing any Additional Series issued by WEST from time to time subsequent to the Initial Closing Date.
“Additional Series” means any Series issued by WEST subsequent to the Initial Closing Date pursuant to a Supplement to this Indenture.
“Adjusted Base Value” means, with respect to an Engine or aircraft engine, such Engine’s or aircraft engine’s Base Value, adjusted for the actual maintenance status of such Engine or aircraft engine, but without regard to any Lease, Maintenance Reserve Payments, Security Deposits or other related assets.
“Adjusted Borrowing Value” means, for an Engine as of any date of determination, the Initial Borrowing Value of such Engine, as adjusted downward as of each Payment Date after the Delivery Date of such Engine at a rate per annum equal to *** of the Initial Borrowing Value of such Engine, provided that, if any Discretionary Engine Modification is made to an Engine, the cost of such Discretionary Engine Modification (reduced by the amount of such cost funded from the Engine Reserve Excess Balance in the Engine Acquisition Account) shall be added to the Adjusted Borrowing Value of such Engine as of the date of such Discretionary Engine Modification, and such cost as so added shall also be adjusted downward as of each Payment Date thereafter at a rate per annum equal to *** of such cost.
“Administrative Agency Agreement” means the Administrative Agency Agreement, dated as of the Initial Closing Date, among the Administrative Agent, the Security Trustee, the Indenture Trustee, WEST and each other WEST Group Member or any replacement administrative agency agreement, including the Back-Up Administrative Agency Agreement, with a replacement Administrative Agent, including the Back-Up Administrative Agent.
“Administrative Agent” means Willis, in its capacity as administrative agent under the Administrative Agency Agreement, including its successors in interest and permitted assigns, until another Person shall have become the administrative agent under such agreement, after which “Administrative Agent” means such other Person.
“Administrative Agent Fee” means, for any Payment Date, the compensation payable to the Administrative Agent on such Payment Date in accordance with the terms of, and designated in, the Administrative Agency Agreement.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with, such Person or is a director or officer of such Person; “control” of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting Stock, by contract or otherwise.
“Aggregate Adjusted Borrowing Value” means, as of any date of determination, an amount equal to the sum of (i) the Adjusted Borrowing Values (measured as of the last day of the month immediately preceding such date of determination) of all Engines then owned by any WEST Group Member, and (ii), during the Replacement Period in respect of each Engine that was the subject of an Engine Disposition in respect of which the Controlling Trustees have elected to reinvest all or a portion of the Modified Net Sale Proceeds in a Replacement Exchange,
*** Confidential information omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
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the amount of the Modified Net Sale Proceeds to be so reinvested, provided, however, that, for purposes of calculating Maximum Borrowing Base, Senior Borrowing Base, Junior Borrowing Base and Appraisal Deficiency Amount, (x) the Adjusted Borrowing Values of the Engines described in clause (i) shall be reduced by the aggregate amount of the Reserve Engine Adjusted Borrowing Values as of the date of determination, and (y) if all or a portion of the Adjusted Base Value of the Engine that was the subject of an Engine Disposition described in clause (ii) consists of a Reserve Engine Adjusted Borrowing Value, only the Modified Net Sale Proceeds in excess of such Reserve Engine Adjusted Borrowing Value of such Engine as of the date of such Engine Disposition shall be taken into account for purposes of clause (ii).
“Aggregate Note Principal Balance” means, as of any date of determination, an amount equal to the sum of the then Outstanding Principal Balance of all Series of Notes then Outstanding.
“Aggregate Unused Commitments” means, as of any date of determination, an amount equal to the sum of the then Unused Commitments of all Series of Warehouse Notes then outstanding.
“Agreed Currency” has the meaning given to such term in Section 13.06(a) hereof.
“aircraft engine” means a basic power jet propulsion engine assembly for an aircraft that is Stage 3 or later compliant (without reliance on a noise reduction or “hush” kit), including its essential accessories as supplied by the manufacturer of such aircraft engine, but excluding the nacelle, and including any QEC Kit and any and all modules and Parts incorporated in, installed on or attached to each such engine from time to time and any substitutions therefor.
“Airworthiness Directive” means any mandatory maintenance directive issued by any Aviation Authority having jurisdiction over any Engine or by the FAA or the EASA.
“Allocable Minimum Principal Payment Amount” means, for any Optional Redemption or Acquisition Balance Redemption for any Series of Notes, an amount equal to the product of the Minimum Principal Payment Amount for such Series of Notes on the Redemption Date and the applicable Redemption Fraction.
“Allocable Scheduled Principal Payment Amount” means, for any Optional Redemption or Acquisition Balance Redemption for any Series of Notes, an amount equal to the product of the Scheduled Principal Payment Amount for such Series of Notes on the Redemption Date and the applicable Redemption Fraction.
“Allocated Amount” means (a) for an Initial Engine (other than the Third Remaining Engine), an amount equal to the product of (i) the sum of (x) the Net Proceeds from the sale of all of the Term Notes on the Initial Closing Date and (y) the Loans made by the Holders of the Warehouse Notes on the Initial Closing Date, and (ii) a fraction, the numerator of which is the Initial Borrowing Value of such Initial Engine and the denominator of which is the sum of the Initial Borrowing Values of all Initial Engines (other than the Third Remaining Engine) and (b) for an Additional Engine, the amount stated in the related Supplement for the Series of Notes, the proceeds of which are used to finance the acquisition of such Additional Engine.
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“Allowed Restructuring” has the meaning given to such term in Section 5.02(f)(i) hereof.
“Amended and Restated Indenture” has the meaning set forth in the preamble hereof.
“Annual Appraised Value” means, with respect to any Engine, the mathematical average of three Appraised Values of such Engine made in accordance with Section 5.03(f) hereof.
“Annual Budget” means an operating budget and an Engine expenses budget that has been adopted by WEST for the period beginning on the Initial Closing Date and ending December 31, 2005 and for each calendar year thereafter through December 31, 2007, and that will be adopted for each succeeding calendar year.
“Annual Report” has the meaning given to such term in Section 2.14(a) hereof.
“Applicable Date” means, (a) in respect of each annual Maintenance Reserve Evaluation, January 1 of the year in which it is delivered, and (b) in respect of any Maintenance Reserve Evaluation delivered in connection with the issuance of an Additional Series of Notes, the date specified in the related Supplement.
“Applicable Law” means all applicable laws, rules, statutes, ordinances, regulations and orders of Governmental Authorities, including, without limitation, the applicable laws, rules, regulations and orders of each Aviation Authority.
“Applicable Percentage” means, as of the Determination Date next preceding any Redemption Date in respect of an Additional Series of Fixed Rate Notes, a fraction the numerator of which is the excess, if any, of (i) the portion of the Outstanding Principal Balance of the Notes of such Additional Series being redeemed over (ii) the excess, if any, of (A) the Outstanding Principal Balance of such Notes as of such Determination Date (after giving effect to any reductions therein that would have been made on such Payment Date in the absence of any such Redemption) over (B) the Assumed Principal Balance of such Notes as of such Determination Date, and the denominator of which is the Assumed Principal Balance of such Notes as of such Determination Date.
“Applied Provider Advance” means the portion of any Provider Advance Balance in the Senior Cash Collateral Account withdrawn as a Shortfall Drawing.
“Appraisal” means a desktop appraisal of an Engine or an aircraft engine, i.e., an appraisal without a physical inspection of an Engine or an aircraft engine, performed by an Appraiser to determine the Appraised Value of such Engine or aircraft engine.
“Appraisal Date” has the meaning given to such term in Section 5.03(f) hereof.
“Appraisal Deficiency Amount” means, as of any date of determination, the amount, if any, by which the Aggregate Adjusted Borrowing Value exceeds the sum of (x) the most recent Annual Appraised Values of all Engines and (y) the Balance in the Engine Reserve Account on such date.
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“Appraised Value” means, with respect to an Engine, the Adjusted Base Value of such Engine as determined in an Appraisal.
“Appraiser” means an independent appraiser that is a member of the International Society of Transport Aircraft Trading (“ISTAT”) or, if ISTAT ceases to exist, any similar professional aircraft appraiser organization in which at least one of the Initial Appraisers is a member that is approved by a Special Majority of the Controlling Trustees.
“Approved Manufacturer” means each of CFM International, General Electric Corporation, Pratt & Whitney, Rolls Royce, International Aero Engines and each other Person that is approved by a Special Majority of the Controlling Trustees.
“Asset Transfer Agreement” means the Asset Transfer Agreement, dated as of the Initial Closing Date, among WEST, Willis and WEST Funding.
“Assumed Principal Balance” means, as of the Determination Date immediately preceding any Redemption Date in respect of the Redemption of an Additional Series of Fixed Rate Notes, the sum of the Assumed Principal Payments for such Series.
“Assumed Principal Payments” means, as of the Determination Date immediately preceding any Redemption Date in respect of the Redemption of an Additional Series of Fixed Rate Notes, each of the principal payment amounts for such Additional Series of Fixed Rate Notes for each date specified in a schedule in the Supplement relating to such Additional Series of Fixed Rate Notes falling after such Redemption Date and ending on the final Payment Date for such Additional Series of Fixed Rate Notes or any other specified date.
“Authorized Agent” means, with respect to the Notes of any Series, any authorized Paying Agent or Note Registrar for the Notes of such Series.
“Available Collections Amount” means, for any Payment Date, the amount of Collections in the Collections Account on the immediately preceding Determination Date, plus or minus, as applicable, the aggregate amount of all transfers to be made to or from the Collections Account during the period beginning on such Determination Date and ending on such Payment Date, including Investment Earnings for the Collection Period ending on such Determination Date, the amount of any Collections Loan being made on such Payment Date and any transfers from the Security Deposit/Lessee-Funded Account and the Engine Reserve Account but excluding any Shortfall Advances and any Shortfall Drawings from the Senior Cash Collateral Account and any withdrawals from the Senior Restricted Cash Account or the Junior Restricted Cash Account.
“Available Sale Proceeds” means the following portions of Modified Net Sale Proceeds from an Engine Disposition:
(a) If WEST does not elect to reinvest any of the Modified Net Sale Proceeds from an Engine Disposition in a Replacement Exchange, the Available Sale Proceeds will be equal to the Modified Net Sale Proceeds in excess of the Reserve Proceeds from such Engine Disposition, and such Available Sale Proceeds will be included in the Available Collections Amount on the next Payment Date after the Engine Disposition.
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(b) If WEST elects to reinvest all of the Modified Net Sale Proceeds from an Engine Disposition in a Replacement Exchange but in fact reinvests less than all of such Modified Net Sale Proceeds within the Replacement Period, the Available Sale Proceeds will be equal to the amount of the Modified Net Sale Proceeds from such Engine Disposition, if any, which is in excess of the Reserve Proceeds from such Engine Disposition and which is transferred to the Collections Account at the end of the applicable Replacement Period, and such Available Sale Proceeds will be included in the Available Collections Amount on the first Payment Date succeeding the end of the Replacement Period.
(c) If WEST elects to reinvest less than all of the Modified Net Sale Proceeds from an Engine Disposition, the portion of the Modified Net Sale Proceeds, if any, which is in excess of the Reserve Proceeds from such Engine Disposition and which is not to be reinvested, will be treated as Available Sale Proceeds and will be included in the Available Collections Amount on the next succeeding Payment Date; if the portion of the Modified Net Sale Proceeds from such Engine Disposition that WEST elects to reinvest is not fully reinvested, then the excess, if any, of the amount that is not reinvested over the Reserve Proceeds from such Engine Disposition will be treated as Available Sale Proceeds and will be included in the Available Collections Amount on the first Payment Date succeeding the end of the Replacement Period.
“Average Life Date” means, with respect to any Additional Series of Fixed Rate Notes as of any Payment Date, the last day of a period equal to the Remaining Weighted Average Life of such Additional Series (as determined for such Payment Date) that begins on such Payment Date.
“Aviation Authority” means the FAA, the EASA and/or any other governmental authority which, from time to time, has control or supervision of civil aviation or has jurisdiction over the airworthiness, operation and/or maintenance of an Engine.
“Back-Up Administrative Agency Agreement” means the Back-Up Administrative Agency Agreement dated as of the Initial Closing Date among the Back-Up Administrative Agent, the Security Trustee, WEST and each other WEST Group Member or any replacement back-up administrative agency agreement with a replacement Back-Up Administrative Agent.
“Back-Up Administrative Agent” means UT Finance, in its capacity as Back-Up Administrative Agent under the Back-Up Administrative Agency Agreement, including its successors in interest and permitted assigns, until another Person shall have become the Back-Up Administrative Agent under such agreement, after which “Back-Up Administrative Agent” means such other Person.
“Back-Up Administrative Agent Fee” means the compensation (if any) payable to the Back-Up Administrative Agent on such Payment Date in accordance with the terms of the Back-Up Administrative Agency Agreement and designated as such therein.
“Back-Up Servicer” means UT Finance, in its capacity as Back-Up Servicer under the Back-Up Servicing Agreement, including its successors in interest, until another Person shall
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have become the Back-Up Servicer under that agreement, after which “Back-Up Servicer” means such successor Person.
“Back-Up Servicer Fee” means, for any Payment Date, the compensation (if any) payable to the Back-Up Servicer on such Payment Date in accordance with the terms of the Back-Up Servicing Agreement and designated as such therein.
“Back-Up Servicing Agreement” means that certain back-up servicing agreement, dated as of the Initial Closing Date, among the Back-Up Servicer, the Security Trustee, WEST and each WEST Group Member or any replacement back-up servicing agreement with a replacement Back-Up Administrative Agent.
“Balance” means, with respect to any Account as of any date, the sum of the cash deposits in such account and the value of any Permitted Investments held in such Account as of such date, as determined in accordance with Section 1.02(m) hereof.
“Base Interest” has, with respect to a specific Series of Series B Notes, the meaning given to such term in the related Supplement.
“Base Interest Amount” means, with respect to any Series of Series B Notes, that amount of Base Interest due and payable on such Series B Notes on a Payment Date, including any Base Interest due and payable on such Series B Notes on a prior Payment Date that was not paid on such prior Payment Date.
“Base Interest Shortfall” has the meaning given to such term in Section 3.13(d)(ii) hereof.
“Base Value” means, with respect to an Engine or an aircraft engine, an Appraiser’s opinion of the underlying economic value of the Engine or aircraft engine, in an open, unrestricted, stable market environment with a reasonable balance of supply and demand, and with full consideration of the Engine’s or aircraft engine’s “highest and best use,” the engine model’s historical trend of values and such Appraiser’s projection of value trends, presuming an arm’s-length, cash transaction between willing, able and knowledgeable parties, acting prudently, with an absence of duress and with a reasonable period of time available for marketing,
“Beneficial Interest” means, with respect to WEST, a beneficial interest in WEST consisting of a specified percentage interest in the residual value of WEST, the right to the allocations and distributions in respect of such beneficial interest and all other rights of a holder of a beneficial interest in WEST as a statutory trust.
“Beneficial Interest Certificate” has the meaning set forth in the Trust Agreement.
“Benefit Plan” of any Person, means, at any time, any employee benefit plan (including a multiemployer plan as defined in Section 4001(a)(3) of ERISA), the funding requirements of which (under Section 302 of ERISA or Section 412 of the Code) are, or at any time within six years immediately preceding the time in question were, in whole or in part, the responsibility of such Person.
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“Book-Entry Notes” means the Regulation S Book-Entry Notes and the 144A Book-Entry Notes.
“Borrowing Base Adjustment Amount” means, as of any date of determination, an amount equal to the sum of (a) the applicable Appraisal Deficiency Amount as of such date, and (b) the sum of all applicable Sale Proceeds Surplus Amounts as of such date.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York and San Francisco, California are authorized by law to close, and, for purposes of calculating LIBOR, London, England.
“Buyer” has the meaning set forth in Schedule 5 hereto.
“Calyon” means Calyon New York Branch, a société anonyme organized and existing under the laws of the Republic of France, acting through its New York branch.
“Cape Town Convention” means the Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, signed in Cape Town, South Africa on December 16, 2001, together with all regulations and procedures issued in connection therewith, and all other rules, amendments, supplements, modifications, and revisions thereto, all as in effect under the laws of the United States of America, as a contracting state.
“Cede” means, Cede & Co., as nominee for DTC.
“CFM56-7B Engine” means a model CFM56-7B aircraft engine manufactured by CFM International.
“Class” means, if specified by a Supplement with respect to a Series, a class of Notes of such Series having the same rights to payment as all other Notes of such class, as specified by such Supplement.
“Clearing Agency Participant” means a Person who has an account with Clearstream.
“Clearstream” means Clearstream Banking, a French société anonyme.
“Closing Date” means in the case of (i) the Initial Notes, the Initial Closing Date, (ii) any Additional Notes, the relevant Series Issuance Date of such Notes.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means the Trust Collateral and the Mortgage Collateral, collectively.
“Collateral Liquidation Notice” means a written notice from the Control Parties for the Senior Series representing a majority of the Outstanding Principal Balance of the Senior Series, directing the Indenture Trustee to liquidate the Collateral in accordance with Section 4.02(b) and the Security Trust Agreement.
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“Collection Period” means, unless otherwise specified in the Supplement for any Series of Notes, with respect to each Payment Date other than the first Payment Date in respect of a Series, the period commencing on the first day of the calendar month immediately preceding the month in which such Payment Date occurs and ending on the last day of such calendar month and, in the case of the first Payment Date in respect of a Series (other than the Initial Notes), the period commencing on the Series Issuance Date, for any Additional Series, and ending on the last day of the first full calendar month following such Series Issuance Date. There was no Collection Period for the first Payment Date in respect of the Initial Notes, and the payments of principal and interest made on such first Payment Date were funded in part out of the proceeds of the Initial Notes and deposited in the Collections Account.
“Collections” means, with respect to a Collection Period, all amounts (without duplication) received by the WEST Group, including, but not limited to, (i) Lease Payments, (ii) amounts withdrawn under any Security Deposit or other assurance in respect of a Lessee’s obligations under a Lease, (iii) amounts received in respect of claims for damages or in respect of any breach of contract for nonpayment of any of the foregoing, (iv) the Net Sale Proceeds of any Engine Disposition or amounts received under any Engine Disposition Agreement (except for any portion of such Net Sale Proceeds that WEST shall direct to be deposited into either the Engine Replacement Account or a Qualified Escrow Account), (v) Modified Net Sale Proceeds deposited in the Engine Replacement Account or a Qualified Escrow Account, not applied to the purchase or funding of an Additional Engine or Qualified Engine Modification and transferred from the Engine Replacement Account (or received from a Qualified Intermediary) due to a failure to acquire or fund Additional Engines or Qualified Engine Modifications within the relevant Replacement Period, (vi) net payments to WEST under any Hedging Agreement maintained in accordance with the terms of this Indenture, (vii) investment income, if any, on all amounts on deposit in the Accounts (except to the extent that any Lease requires such investment income to be maintained as Segregated Funds), (viii) any proceeds or other payments received under the Related Documents, including amounts transferred to the Collections Account from the Engine Acquisition Account, (ix) any proceeds of any Collections Loan made pursuant to Section 3.18 hereof, (x) the portion of the Net Proceeds of the Series 2005-A1 Term Notes and Series 2005-B1 Term Notes deposited in the Collections Account on the Initial Closing Date, and (xi) any other amounts received by WEST or any other WEST Group Member (including any amounts received from any other Subsidiary of WEST, whether by way of distribution, dividend, repayment of a loan or otherwise), but not including (w) any funds to be applied in connection with a Redemption, (x) any Shortfall Advances or Shortfall Drawings, (y) any amounts received as equity contributions permitted by Section 5.02(i) and (z) other amounts required to be paid over to any third party pursuant to any Related Document.
“Collections Account” has the meaning given to such term in Section 3.01(a) hereof.
“Collections Loan” means a Loan, the proceeds of which are to be deposited in the Collections Account pursuant to Section 3.18 hereof and used to increase the Available Collections Amount on the applicable Payment Date, subject to the terms of such Section 3.18.
“Commitment Fee” has, with respect to any Series of Warehouse Notes, the meaning set forth in the related Supplement.
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“Commitment Fee Amount” means, with respect to a specific Series of Warehouse Notes on a Payment Date, the amount of the Commitment Fee due and payable in respect of such Series of Warehouse Notes on such Payment Date, including any Commitment Fees due and payable on a prior Payment Date that were not paid on such prior Payment Date.
“Concentration Limits” means the limits set forth in Exhibit E hereto, as such limits may be adjusted from time to time as provided in Section 5.03(e).
“Concentration Variance Limits” has the meaning given to such term in Section 5.03(e) hereof.
“Concentration Violation” means a breach of the covenant set forth in Section 5.03(e) hereof (with or without regard to the Concentration Variance Limits as specified in this Indenture) if effect were given to any sale, transfer, lease or other disposition or any purchase or other acquisition pursuant to an Engine Disposition Agreement regardless of whether such sale, transfer, lease or other disposition or purchase or other acquisition is scheduled or expected to occur after the date on which such Engine Disposition Agreement becomes binding on WEST or a WEST Group Member.
“Consent Fee” means any fee paid to the Holders of a Series of Notes in connection with their review and/or approval of proposed amendments of the Indenture or any other matter requiring their consent, whether by a Required Majority or by all Holders, as such fee may be approved in accordance with Section 5.02(d).
“Contract of Sale” has the meaning given to such term in the Cape Town Convention.
“Control Party” means (a), in respect of any Series of Term Notes and any Series of Warehouse Notes after the occurrence of a Conversion Event with respect to such Series of Warehouse Notes, unless otherwise provided in the Supplement related to such Series, Holders of Notes of such Series representing more than fifty percent (50%) of the then aggregate Outstanding Principal Balance of all Outstanding Notes of such Series, and (b), in the case of any Series of Warehouse Notes prior to the occurrence of a Conversion Event with respect to such Series, unless otherwise provided in the Supplement related to such Series, Holders of Notes of such Series representing more than fifty percent (50%) of the aggregate Maximum Commitments of the holders of such Warehouse Notes; provided, however, that, for the Senior Liquidity Facility (including any Replacement Liquidity Facility), at any time from and including the date that is no earlier than 30 months from the date on which a Collateral Liquidation Notice has been delivered, the Senior Liquidity Provider shall have the right to elect, by at least fifteen (15) Business Days’ prior written notice to the Indenture Trustee, to become the Control Party for the Series A Notes thereafter, but only for so long as any Liquidity Obligations due to the Senior Liquidity Provider remain unpaid.
“Controlling Trustee” means each of the four (4) trustees of WEST designated as such in accordance with the terms of the Trust Agreement.
“Conversion Date” means, with respect to any Series of Warehouse Notes, the date specified as such in the related Supplement.
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“Conversion Event” means, with respect to a Series of Warehouse Note, the earliest to occur of (a) the Conversion Date for such Series of Warehouse Notes, (b) an Early Amortization Event, (c) an Event of Default, (d) a Servicer Termination Event and (e) any other event or condition specified in the related Supplement for such Series of Warehouse Notes.
“Conversion Step-Up Interest” has, with respect to a specific Series of Notes, the meaning given to such term in the related Supplement.
“Conversion Step-Up Interest Amount” means, with respect to any Series of Notes, that amount of Conversion Step-Up Interest due and payable on such Series of Note on a Payment Date, including any Conversion Step-Up Interest due and payable on a prior Payment Date that was not paid on such prior Payment Date.
“Core Lease Provisions” means the requirements for Leases set forth in Exhibit I.
“Corporate Obligations” has the meaning given to such term in Section 12.02(a) hereof.
“Corporate Trust Office” means, with respect to the Indenture Trustee, the office of such trustee in the city at which at any particular time its corporate trust business shall be principally administered and, with respect to the Indenture Trustee on the date hereof, shall be 60 Wall Street, MS NYC 60-2606, New York, NY 10005, Attention: Trust & Security Services - Structured Finance Services, or at any other time at such other address as the Indenture Trustee may designate from time to time by notice to the Holders and WEST.
“Currency Hedge Agreements” means an ISDA currency swap, options, and any other similar hedging arrangements (including, without limitation, the current or forward purchase and sale of non-Dollar currency) between WEST or any other WEST Group Member and the Eligible Hedge Counterparty named therein, including any schedules and confirmations prepared and delivered in connection therewith, in form and substance meeting the Rating Agency Hedging Requirements, pursuant to which (i) WEST will receive payments from, or make payments to, the Eligible Hedge Counterparty as provided therein and (ii) recourse by the Eligible Hedge Counterparty to WEST is limited to distributions in accordance with the priority of payments set forth in Section 3.14 hereof.
“Custodial Agreement” means the Custodial Agreement dated as of the Initial Closing Date among the Custodial Agent, the Security Trustee and WEST or any replacement custodial agreement with a replacement Custodial Agent.
“Default” means a condition, event or act which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
“Default Notice” has the meaning given to such term in Section 4.02(a) hereof.
“Definitive Note” means a note issued in definitive form pursuant to the terms and conditions of this Indenture and the related Supplement, the form of which shall be substantially in the form of the applicable Note Form for such Note, with the legends required by Section 2.02 for a Definitive Note inscribed thereon and with such changes therein and such additional information as may be specified in the Supplement pursuant to which such Note is issued.
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“Delivery Date” means, in the case of any Engine, the date on which title to such Engine or the Engine Interest in respect of such Engine is transferred to WEST or an Engine Subsidiary, provided that the Delivery Date for the Engines owned by WEST Funding on the Initial Closing Date is the Initial Closing Date.
“Delivery Period” means (i) with respect to the Initial Engines, the period commencing on the Initial Closing Date and continuing until the earlier to occur of (x) the date on which an Early Amortization Event or an Event of Default occurs and (y) October 9, 2005, (ii) with respect to any Additional Engines being acquired with the proceeds of Additional Notes that are Term Notes, the period beginning on the Closing Date for such Series of Term Notes, the proceeds of which are being used to finance such Additional Engines, and ending on the date specified in the related Supplement or, if earlier, the date on which an Early Amortization Event or an Event of Default occurs, and (iii) with respect to any Additional Engine being acquired with the proceeds of Warehouse Notes, the period beginning on the Funding Date on which WEST receives the proceeds of such Warehouse Notes to be used to acquire such Additional Engine and ending such number of days after such Funding Date as may be specified in the related Supplement for such Warehouse Notes or, if earlier, the date on which an Early Amortization Event or an Event of Default occurs.
“Determination Date” means the last day of the calendar month immediately preceding each Payment Date.
“Direct Participants” means securities brokers and dealers, banks, trust companies and clearing corporations, and may include certain other organizations which access the DTC system directly.
“Direction” has the meaning given to such term in Section 1.04(c) hereof.
“Discretionary Engine Modification” means a modification or improvement of an Engine, the cost of which is capitalized in accordance with U.S. GAAP that is not a Mandatory Engine Modification. A Discretionary Engine Modification shall include, without limitation, any Qualified Engine Modification, the cost of which is capitalized in accordance with U.S. GAAP.
“Disposition Fee” means, for any Engine Disposition (other than an Engine Disposition resulting from a Total Loss), an amount equal to the product of (i) three percent (3%) and (ii) the Net Sale Proceeds in respect of such Engine Disposition (such Net Sale Proceeds to be calculated without deducting the amount of the Disposition Fee).
“Dollars” or “$” means the lawful currency of the United States of America.
“Downgrade Advance” has the meaning given to such term in Section 3.20(c).
“Downgrade Event” has the meaning given to such term in the Senior Liquidity Facility.
“Downgraded Facility” has the meaning given to such term in Section 3.20(b).
“DTC” means The Depository Trust Company, a limited purpose trust company organized under the New York Banking Law, its nominees and their successors.
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“DTC Participants” means Euroclear, Clearstream or other Persons who have accounts with DTC.
“Early Amortization Event” means, as of any Payment Date, the existence of any one or more of the following events or conditions, unless the occurrence of such event or condition is waived by a Requisite Majority:
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“EASA” means the European Aviation Safety Agency.
“EBIT” means, for any fiscal period, WEST’s earnings (loss) before Interest Expense and taxes, including gains and losses from the sale of assets and foreign exchange transactions, in all cases determined in accordance with U.S. GAAP.
“EBIT Ratio” means, for WEST as of any Payment Date, the ratio of (a) EBIT to (b) Interest Expense, in each case for the most recently concluded four (4) calendar quarters; provided, however, that for the first three (3) calendar quarters of WEST following the Initial Closing Date, EBIT and Interest Expense through the end of any such quarter under consideration will, for purposes of this calculation, be calculated on an annualized basis by multiplying actual EBIT or Interest Expense for the calendar quarters which have been completed since the Closing Date by a fraction, the numerator of which is four (4) and the denominator of which is the number of full fiscal quarters then completed.
“Effective Date” means the date of this Amended and Restated Indenture.
“Effective Date Engines” means the Initial Engines and all other Engines that have been acquired by WEST up to and including the Effective Date, as all such Engines are identified on Schedule 4-2 hereto.
“Eligibility Requirements” has the meaning given to such term in Section 2.03(b) hereof.
“Eligible Account” means a “deposit account” (within the meaning of Section 9-102(a)(29) of the UCC) or Securities Account (as defined in the Security Trust Agreement) maintained with an Eligible Institution in the name of WEST or another WEST Group Member in accordance with the Related Documents and pledged to the Security Trustee pursuant to the Security Trust Agreement.
“Eligible Hedge Counterparty” means either of the following: (a) at the time of execution and delivery of the related Interest Rate Hedge Agreement, any bank or other financial institution (or any party providing credit support on such Person’s behalf) that has (x) a long-term unsecured debt rating of at least “A” from Fitch and “A2” from Moody’s or (y) a short-term unsecured debt rating of at least “F-1” from Fitch and “P-1” from Moody’s or is otherwise approved by a Rating Agency Confirmation or (b), at the time of any transfer of an Interest Rate Hedge Agreement, any bank or other financial institution (or any party providing credit support on such Person’s behalf) that satisfies the criteria in clause (a).
“Eligible Institution” means (a) any depository institution or trust company, with a capital and surplus of not less than $250,000,000, whose long-term unsecured debt rating from each Rating Agency is not less than A (or the equivalent) and whose deposits are insured by the Federal Deposit Insurance Corporation or (b) a federally or state chartered depository institution,
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with a capital and surplus of not less than $250,000,000, subject to regulations regarding fiduciary funds on deposit substantially similar to 12 C.F.R. § 9.10(b), including, without limitation, a California chartered depository institution meeting such capital and surplus requirements, subject to regulation under California Financial Code section 1562, that in each case has a long-term unsecured debt rating from each Rating Agency of not less than A (or the equivalent) or a short-term unsecured debt rating of P-1 by Moody’s and, if rated by Fitch, at least F1 by Fitch, and including the Senior Liquidity Provider so long as the Senior Liquidity Provider shall otherwise so qualify and shall have waived all rights of set-off and counterclaim with respect to the account to be maintained as an Eligible Account.
“Encumbrance” means any mortgage, pledge, lien, encumbrance, charge or security interest, including, without limitation, any conditional sale, any sale without recourse against the sellers, or any agreement to give any security interest over or with respect to any WEST Group Member’s assets (excluding Lessee Funds that are Segregated Funds), including, without limitation, all Stock and any Indebtedness of any Subsidiary held by WEST or any other WEST Group Member.
“Engine” means an aircraft engine owned by any WEST Group Member that is subject to the Lien of the Security Trustee under an Engine Mortgage.
“Engine Acquisition Account” has the meaning given to such term in Section 3.01(a) hereof.
“Engine Cycle” means the operation of an Engine on an aircraft during a single flight from take-off to landing.
“Engine Disposition” means any sale, transfer or other disposition of any Engine (or an interest therein), including by reason of such Engine suffering a Total Loss.
“Engine Disposition Agreement” means any lease, sublease, conditional sale agreement, finance lease, hire purchase agreement or other agreement (other than an agreement relating to maintenance, modification or repairs) or any purchase option granted to a Person other than WEST or any other WEST Group Member to purchase an Engine pursuant to a purchase option agreement, in each case pursuant to which any Person acquires or is entitled to acquire legal title to, or the economic benefits of ownership of, such Engine.
“Engine Interest” means the ownership interest in an Engine Trust that owns an Engine. The acquisition or disposition of all of the Engine Interest with respect to an Engine Trust that holds an Engine constitutes, respectively, the acquisition or disposition of that Engine.
“Engine Mortgage” means each mortgage executed and delivered by WEST or a WEST Subsidiary substantially in the form attached to the Security Trust Agreement, pursuant to which WEST or such WEST Subsidiary shall grant a security interest to the Security Trustee in each Engine owned by it and related assets and in all Leases of such Engine.
“Engine Replacement Account” has the meaning given to such term in Section 3.01(a) hereof.
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“Engine Reserve Account” has the meaning given to such term in Section 3.01(a) hereof.
“Engine Reserve Deposit” has the meaning given to such term in Section 5.04(d) hereof.
“Engine Reserve Excess Amount” means, as of the Effective Date, the excess of the Balance in the Engine Reserve Account as of the Effective Date over the initial Engine Reserve Minimum Balance and, as of any Payment Date after the Effective Date, the excess of the Balance in the Engine Reserve Account as of the related Determination Date over the sum of (a) the Engine Reserve Minimum Balance as of such Determination Date and (b) the MRE Reserve Increment, if any, applicable as of such Determination Date, provided, that, if an Engine Reserve Deposit is greater than zero on any Payment Date, the Engine Reserve Excess Amount shall be deemed to be zero on such Payment Date.
“Engine Reserve Excess Balance” means the portion of the Balance in the Engine Acquisition Account equal to the sum of the Engine Reserve Excess Amounts deposited in the Engine Acquisition Account minus the amounts withdrawn from the Engine Acquisition Account that are designated as withdrawals of such Engine Reserve Excess Amounts in accordance with Section 3.03.
“Engine Reserve Minimum Balance” means (a) as of the Effective Date, the greater of the Engine Reserve Required Amount and the Half-Life Restoration Amount, each as determined in the Maintenance Reserve Appraisal, and (b) as of any Determination Date after the delivery of the Maintenance Reserve Evaluation during the first quarter of 2008, the amount specified as such in such Maintenance Reserve Evaluation or any subsequent Maintenance Reserve Evaluation that in each case is effective as of such Determination Date as provided in Section 5.04(d)(ii).
“Engine Reserve Required Amount” means, in respect of the Maintenance Reserve Appraisal and any Maintenance Reserve Evaluation, an amount equal to the product of (a) ten percent (10%) and (b) the sum of (i) the Engine Shop Visit Cost and (ii) the Life Limited Parts Cost, each as determined in the Maintenance Reserve Appraisal or such Maintenance Reserve Evaluation.
“Engine Shop Visit Cost” means the total cost of engine shop visits for all of the Engines in the Portfolio as of the Applicable Date in the Maintenance Reserve Evaluation setting forth such cost.
“Engine Subsidiaries” means, as of the Initial Closing Date, those Persons or other entities set forth on Schedule 1 to this Indenture as Engine Subsidiaries and their successors, together with any other WEST Subsidiary (other than any Engine Trust) holding title to Engines or holding Engine Interests.
“Engine Thrust Upgrade” means the modification of an Engine in accordance with the requirements of the manufacturer and the applicable Aviation Authority to increase its thrust rating.
“Engine Trust Agreement” means, as of the Initial Closing Date, each owner trust agreement with an Engine Trustee in effect on the Initial Closing Date, as set forth on Schedule
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2-1 hereto, together with any other trust agreement with an Engine Trustee under which an owner trust or statutory trust estate is created with respect to an Engine and an Engine Subsidiary holds the Engine Interest, whether or not such Engine Subsidiary was the original grantor of such owner trust estate or holder of such Engine Interest.
“Engine Trustee” means, as of the Initial Closing Date, Wells Fargo Bank Northwest, National Association, and its successors as owner trustee or statutory trustee under the Engine Trust Agreements set forth on Schedule 2-1 hereto, together with each other financial institution that acts as an owner trustee or statutory trustee under any other Engine Trust Agreement.
“Engine Trusts” means the owner trust or statutory trust estates created pursuant to the Engine Trust Agreements.
“Enhancement Agreement” means, any agreement, instrument or document governing the terms of any Series Enhancement or pursuant to which any Series Enhancement is issued or outstanding.
“Equity Trustees” means the three Controlling Trustees of WEST designated as such in the Trust Agreement.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Euroclear” means Euroclear Bank S.N./N.V., as operator of the Euroclear System.
“Event of Default” means the existence of any of the events or conditions described in Section 4.01 hereof.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange Date” means the date on which interests in each Regulation S Temporary Book-Entry Note will be exchangeable for interests in an Unrestricted Book-Entry Note, which shall be the later of (i) the fortieth (40th) day after the later of (a) the Closing Date and (b) the completion of the distribution of the related Series of Notes and (ii) the date on which the requisite certifications are due to and provided to the Indenture Trustee.
“Expense Account” has the meaning given to such term in Section 3.01(a) hereof.
“FAA” means the United States Federal Aviation Authority or any governmental authority succeeding to the functions thereof.
“Fee Letter” means the letter between WEST and the Senior Liquidity Provider establishing the fees and other amounts to be paid by WEST in respect of the Senior Liquidity Facility and any such letter between WEST and any replacement Senior Liquidity Provider.
“Final Maturity Date” means, with respect to a Series, the date set forth in the related Supplement on or prior to which the Outstanding Principal Balance of, and accrued interest on, all Notes of such Series are required to have been repaid in full.
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“Fitch” means Fitch, Inc., and any successor thereto, or, if such corporation or its successor shall for any reason no longer perform the functions of a securities rating agency, “Fitch” shall be deemed to refer to any other nationally recognized rating agency designated by WEST.
“Fixed Rate Note” means, as provided in the related Supplement, any Note having a Stated Rate that is a fixed percentage.
“Floating Rate Note” means, as provided in the related Supplement, any Note having a Stated Rate that varies with a specified index, such as LIBOR.
“Funding Date” means each date on which WEST borrows funds in respect of a Series of Warehouse Notes as set forth in the related Supplement for such Series of Warehouse Notes.
“Future Lease” means, in respect of any Engine, a Lease of such Engine entered into by any WEST Group Member and any Lessee at any time after the Delivery Date for such Engine.
“Governmental Actions” means any and all consents, approvals, permits, orders, authorizations, waivers, exceptions, variances, exemptions or licenses of, or registrations, declarations or filings with, any Governmental Authority required under any Applicable Law.
“Governmental Authority” means any government, legislative body, regulatory authority, court, administrative agency or commission or other governmental agency or instrumentality (or any officer or representative thereof), domestic, foreign or international, of competent jurisdiction, including the European Union.
“Half-Life Restoration Amount” means the sum, if positive, of the Maintenance Adjustment to Half-Life for each of the Engines in the Portfolio as of the Applicable Date of a Maintenance Reserve Evaluation; if such sum is negative, the Half-Life Restoration Amount shall be zero.
“Hedge Counterparty” means, in the singular, any one of, and in the plural, all of, the Eligible Hedge Counterparties and their successors and assigns which have entered into a Hedging Agreement.
“Hedge Default” means the occurrence of an Event of Default described in Section 4.01(a), (f) or (g).
“Hedge Payment” means Periodic Hedge Payments and Hedge Termination Payments.
“Hedge Payment Account” has the meaning given to such term in Section 3.12 hereof.
“Hedge Payment Shortfall” has the meaning given to such term in Section 3.13(d)(i) hereof.
“Hedge Termination Payment” means any payment due under a Hedging Agreement as a result of the termination of such Hedging Agreement for whatever reason.
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“Hedged Lease” means a Lease with an original term of more than one (1) year and which, in the case of the Initial Engines as of the Closing Date and in the case of any Additional Engine as of its Delivery Date, have more than one (1) year remaining in its term.
“Hedging Agreement” means an Interest Rate Hedge Agreement or a Currency Hedge Agreement, as applicable.
“Increased Costs” has the meaning, with respect to any Series of Warehouse Notes, given to such term in the Supplement for such Series of Warehouse Notes.
“Indebtedness” means, with respect to any Person at any date of determination (without duplication), (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto), (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of purchasing such property or service or taking delivery and title thereto or the completion of such services, and payment deferrals arranged primarily as a method of raising funds to acquire such property or service, (v) all obligations of such Person under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed) that is required to be classified and accounted for as a capital lease obligation under U.S. GAAP, (vi) all Indebtedness (as defined in clauses (i) through (v) of this paragraph) of other Persons secured by a lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person, and (vii) all Indebtedness (as defined in clauses (i) through (v) of this paragraph) of other Persons guaranteed by such Person.
“Indenture” has the meaning set forth in the preamble hereof.
“Indenture Trustee” has the meaning given to such term in the preamble hereof, and any successor Indenture Trustee appointed in accordance with the terms hereof.
“Indenture Trustee Fees” means the compensation and expenses (including attorneys fees and expenses and indemnification payments) payable to the Indenture Trustee for its services under this Indenture and the other Related Documents to which it is a party.
“Independent Controlling Trustee” means the Controlling Trustee designated as such in the Trust Agreement.
“Initial Appraisals” means the Appraisals of the Initial Engines provided by the Initial Appraisers, each dated as of a date during December, 2004.
“Initial Appraised Value” means (i) in the case of each Initial Engine, the mathematical average of the Appraised Values of such Engine in the Initial Appraisals, (ii) in the case of any Additional Engine acquired with the proceeds of one or more Series of Warehouse Notes, the mathematical average of the Appraised Values of such Additional Engine provided in Appraisals by three (3) Appraisers, each such Appraisal to be as of a date not more than six (6) months prior to the Delivery Date of such Additional Engine by WEST or a WEST Group Member, and (iii) in the case of any other Additional Engine, the mathematical average of the Appraised Values of
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such Additional Engine provided in Appraisals by three (3) Appraisers, each such Appraisal to be as of a date not more than six (6) months prior to the Closing Date for the Series of Term Notes, the proceeds of which are to be used to finance the acquisition of such Additional Engine.
“Initial Appraisers” means any of or all of (as the context may require) AVITAS, Inc., BK Associates, Inc. and International Bureau of Aviation, Ltd.
“Initial Borrowing Value” means, (i) in respect of any Engine acquired from a Person that is not an Affiliate of WEST, the purchase price paid by WEST or a WEST Group Member to acquire such Engine and (ii) in respect of any Engine acquired from a Person that is an Affiliate of WEST, the lower of (a) its Initial Appraised Value and (ii) its book value on the records of the Affiliate seller as determined under U.S. GAAP as consistently applied by such Affiliate seller as of the date of acquisition. The Initial Borrowing Value of the Initial Engines is set forth in the Asset Transfer Agreement. A portion of the Initial Borrowing Value of an Engine may consist of a Reserve Engine Initial Borrowing Value, but any reference to the Initial Borrowing Value of an Engine shall be a reference to the entire Initial Borrowing Value of such Engine, without regard to any such Reserve Engine Initial Borrowing Value.
“Initial Closing Date” means August 9, 2005.
“Initial Engine” means each of the Engines (or an interest therein) identified on Schedule 4-1 hereto that was acquired by WEST through its acquisition of WEST Funding on the Initial Closing Date or by WEST Funding during the Delivery Period beginning thereon, in each case pursuant to the Asset Transfer Agreement.
“Initial Notes” means all Series of Notes issued on the Initial Closing Date.
“Initial Remaining Engine” means each of the Initial Engines that was not delivered on the Initial Closing Date.
“Institutional Accredited Investor” means a Person that is an “accredited investor” as that term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act.
“Intercompany Loan” has the meaning given to such term in Section 5.02(c)(vii) hereof.
“Interest Accrual Period” means, except as may be otherwise provided in the related Supplement for a Series of Notes, the period beginning on each Payment Date and ending on (but excluding) the next succeeding Payment Date, except that the initial Interest Accrual Period shall begin on the Initial Closing Date and end on (but exclude) the first Payment Date occurring after the Initial Closing Date.
“Interest Expense” means, for any period, the aggregate amount of interest expense as shown for such period on the income statement of WEST, determined in accordance with U.S. GAAP.
“Interest Rate Hedge Agreement” means an ISDA interest rate swap or cap agreement, collar or other interest rate hedging instrument between WEST and the Eligible Hedge Counterparty named therein, including any schedules and confirmations prepared and delivered
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in connection therewith, pursuant to which (i) WEST will receive payments from, or make payments to, the Eligible Hedge Counterparty as provided therein, and which (a) in form and substance complies with the Rating Agency Hedge Requirements for such agreements, (ii) limits recourse by the Eligible Hedge Counterparty to WEST to distributions in accordance with the priority of payments set forth in Section 3.14 hereof, and (iii) is consistent with the requirements of Section 5.02(f)(iv).
“International Interest” has the meaning set forth in the Cape Town Convention.
“International Registry” has the meaning set forth in the Cape Town Convention.
“Investment Earnings” means the actual amount of income earned on Permitted Investments during any specified period with respect to the Balance in any Account net of losses and investment expenses of the Administrative Agent in making such investments.
“Investment Letter” means a letter substantially in the form of Exhibit D attached hereto.
“ISDA” means International Swap and Derivatives Association, Inc.
“Issuance Date” means, in the case of a Series of Term Notes, the Series Issuance Date, and, in the case of a Series of Warehouse Notes, the date on which a Conversion Event occurs in respect of such Series of Warehouse Notes.
“Issuance Expenses” means the aggregate amount of all subscription discounts, brokerage commissions, placement fees, resale fees, structuring fees, out of pocket transaction expenses and other similar fees, commissions and expenses relating to the issuance of each Series of the Initial Notes or any Additional Series, as specified in the related Supplement for each Series.
“JT8D-200 Engine” means a model JT8D-200 aircraft engine manufactured by Pratt & Whitney, a division of United Technologies, Inc.
“Junior Borrowing Base” means, as of any date of determination, the sum of (a) ***of the then Aggregate Adjusted Borrowing Value plus (b) the Balance in the Engine Acquisition Account on such date plus (c) the Balance in the Junior Restricted Cash Account on such date plus (d) the Balance in the Senior Restricted Cash Account on such date, minus *** of the Borrowing Base Adjustment Amount as of such date, minus the Outstanding Principal Balance of the Series A Notes.
“Junior Borrowing Base Deficiency” means, as of any date of determination, the amount (if any) by which (i) the then Outstanding Principal Balance of all Series B Notes (after giving effect to any payments of Scheduled Principal Payment Amounts on one or more Series B Notes on such date), exceeds (ii) the Junior Borrowing Base as of such date.
“Junior Claim” means (a) with respect to WEST Expenses, all other amounts payable in accordance with Section 3.14 and (b) with respect to any other amount payable in accordance with Section 3.14, all amounts other than Prior Ranking Amounts in respect of such amount.
*** Confidential information omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
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“Junior Claimant” means the holder of a Junior Claim.
“Junior Restricted Cash Amount” means, as of each Closing Date, Funding Date and Payment Date, an amount equal to the product of (i) three percent (3%) and (ii) the sum of the Outstanding Principal Balances of all Series B Notes as of such date, which Outstanding Principal Balances shall be calculated after giving effect to all Loans made and Term Notes issued on such date and all principal payments made on such date in respect of each Series B Note. The Junior Restricted Cash Amount may be reduced by WEST subject to (a) receipt of a Rating Agency Confirmation and (b) consent of the Control Party for each Outstanding Series B Note.
“Junior Restricted Cash Account” has the meaning given to such term in Section 3.01(a) hereof.
“Junior Shortfall” has the meaning given to such term in Section 3.13(d) hereof.
“Junior Warehouse Note” means any Warehouse Note that is designated as a Series B Note in the related Supplement.
“Lease” means, with respect to an Engine, any aircraft engine lease agreement, conditional sale agreement, hire purchase agreement or other similar arrangement, as may be in effect between a WEST Group Member that owns or leases-in such Engine (as Lessor) and a Person that is not a WEST Group Member (as Lessee), as such agreement or arrangement may be amended, modified, extended, supplemented, assigned or novated from time to time in accordance with the Related Documents; provided that if, under any sub-leasing arrangement with respect to an Engine permitted by the Lease of such Engine and executed by the Lessee and a sub-lessee, the Lessor of such Engine agrees to receive payments or collateral directly from, or is to make payments directly to, such sub-lessee, in any such case to the exclusion of the related Lessee, then the relevant sub-lease shall constitute the “Lease” of such Engine, and the sub-lessee shall constitute the related “Lessee” with respect to such Engine, but only to the extent of the provisions of such sub-lease agreement relevant to such payments and collateral and to the extent agreed by the relevant Lessor.
“Lease Payments” means all lease payments and other amounts payable by or on behalf of a Lessee under a Lease, including, without limitation, Rent Payments, Maintenance Reserve Payments and Security Deposits.
“Lease Security Assignment” means each lease security assignment executed and delivered by a WEST Subsidiary substantially in the form attached to the Security Trust Agreement, pursuant to which such WEST Subsidiary shall grant a security interest to the Security Trustee in its rights in the head Lease of the Engine from a WEST Group Member and related assets and in all Leases of such Engine.
“Lease Sub-Account” means a ledger account maintained by the Administrative Agent in accordance with Section 3.07 with respect to Security Deposits and with respect to Maintenance Reserve Payments that are to be maintained as Segregated Funds.
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“Leasing Subsidiaries” means, as of the Initial Closing Date, those Persons or other entities set forth on Schedule 3 hereto and their successors, together with any other bankruptcy remote special purpose entities to which the Engine Subsidiaries or the Engine Trusts may lease one or more of the Engines, which are Lessors under Leases of such Engines to Lessees and which are wholly owned directly or indirectly by WEST.
“Lessee” means each Person not a WEST Group Member who is the lessee or vendee under a Lease of an Engine from time to time with any WEST Group Member.
“Lessee Funds” means, either or both as the context may require, of (a) any Security Deposits provided by a Lessee under a Lease and (b) any Maintenance Reserve Payments that a Lessee is obligated to pay under a Lease and that are Segregated Funds.
“Lessor” means, with respect to any Lease, the WEST Group Member that is the lessor or vendor under such Lease.
“Lessor Account” has the meaning given to such term in Section 3.02(c).
“LIBOR” means, for any Interest Accrual Period in respect of any Series of Notes, the rate per annum, determined by the Indenture Trustee and notified in writing by the Indenture Trustee to the Administrative Agent, which is the arithmetic mean (rounded to the nearest 1/100 of 1%) of the offered rates for Dollar deposits having a maturity of the Specified Period for such Series commencing on the first day of such Interest Accrual Period that appears on the Reuters Screen LIBOR01 (or otherwise on such page or screen as may replace such Reuters Screen) at approximately 11:00 a.m., London time on the Reference Date such Interest Accrual Period; provided, however, that if there shall at any time no longer exist such Reuters Screen (or otherwise as aforesaid), “LIBOR” means the rate per annum equal to the average rate at which the principal London offices of Calyon are offered Dollar deposits for the Specified Period and in a principal amount equal to an amount of not less than one million Dollars ($1,000,000) at or about 10:00 a.m., New York City time, on the Reference Date specified for such Interest Accrual Period in the London Eurodollar interbank market for delivery on the first day of such Interest Accrual Period.
“Lien” means the security interest in the Mortgage Collateral created by the Engine Mortgages.
“Life Limited Parts” means all parts of the Engines in the Portfolio that must or should be replaced after their use for a specified number of Engine Cycles on the Engine in which any such part is installed.
“Life Limited Parts Cost” means the cost of replacing all Life Limited Parts in the Engines in the Portfolio as of the Applicable Date set forth in the Maintenance Reserve Evaluation setting forth such cost.
“Liquidity Advance” means a Shortfall Advance, a Non-Extension Advance or a Downgrade Advance.
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“Liquidity Event of Default” means the serving of a Collateral Liquidation Notice by the Control Party for the Senior Series under the Indenture to WEST following the occurrence of an Event of Default.
“Liquidity Expenses” means, with respect to the Senior Liquidity Facility, all Liquidity Obligations thereunder other than (a) the Liquidity Fee, (b) the principal amount of any Liquidity Advance under the Senior Liquidity Facility and (c) any interest accrued on any such Liquidity Obligations.
“Liquidity Fee” means the commitment fee payable to the Senior Liquidity Provider pursuant to the Fee Letter.
“Liquidity Obligations” means, with respect to the Senior Liquidity Facility, all principal, interest, fees and other amounts owing to the Senior Liquidity Provider under the Senior Liquidity Facility.
“Loan” means any amount borrowed by WEST from the Holder or Holders of any Series of Warehouse Notes, pursuant to the related Supplement for such Series.
“Maintenance Adjustment to Half-Life” means, for each Engine, an amount for each Engine equal to the sum, which may be positive or negative, of (a) the difference between (i) one-half of the cost of a shop visit for such Engine and (ii) the product of (A) the cost of such a shop visit and (B) a fraction, the numerator of which is the expected flight hours remaining to the next shop visit for such Engine and the denominator of which is the average total flight hours between shop visits for such Engine and (b) the difference between (i) one-half of the list price of each Life Limited Part in such Engine and (ii) the product of (A) such list price and (B) a fraction, the numerator of which is the remaining cycles before such Life Limited Part must be replaced and the denominator of which is the total number of allowable cycles for such Life Limited Part. The amount in clause (a) is positive if the Engine has less than one-half of the average total flight hours between shop visits remaining to the next shop visit and negative if it has more than one-half of the average total flight hours between shop visits remaining to the next shop visit; the amount in clause (b) is positive for each Life Limited Part if such Life Limited Part has less than one half of the allowable cycles for such Life Limited Part until replacement is required and negative for each Life Limited Part if such Life Limited Part has more than one half of the allowable cycles for such Life Limited Part until replacement is required.
“Maintenance Reserve Appraisal” means an appraisal, prepared by SH&E, of the Life Limited Parts Cost, the Engine Shop Visit Cost and the Engine Reserve Required Amount with respect to the Engines in the Portfolio as of the Effective Date.
“Maintenance Reserve Deficit” has the meaning given to such term in the definition of “Maintenance Reserve Evaluation.”
“Maintenance Reserve Evaluation” means (a) prior to the Effective Date, an evaluation prepared by SH&E, or other Person appointed by the Controlling Trustees, as to the projected maintenance costs of the Engines in the Portfolio over the lesser of their estimated remaining useful life and twenty-five (25) years, a projection of whether, taking into account expected Maintenance Reserve Payments from Lessees in respect of then existing Leases and Future
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Leases of the Engines, and making other assumptions reasonably acceptable to the Controlling Trustees, the funds available in the Engine Reserve Account will be sufficient to pay for such projected maintenance costs at all times, a schedule of the targeted balances in the Engine Reserve Account for each Payment Date during such remaining useful life or 25 year period and a schedule of the projected shortfalls between such balances and the projected maintenance costs, and (b) after the Effective Date, an evaluation prepared by SH&E, or other Person appointed by the Controlling Trustees, as to the following items:
(i) the Life Limited Parts Cost and the Engine Shop Visit Cost as of the Applicable Date for such evaluation and the Engine Reserve Required Amount based on such amounts,
(ii) the Maintenance Adjustment to Half-Life for each Engine in the Portfolio as of the Applicable Date for such evaluation and the Half-Life Restoration Amount based on such amounts,
(iii) the Engine Reserve Minimum Balance, which shall be the greater of the Engine Reserve Required Amount and the Half-Life Restoration Amount determined pursuant to clauses (i) and (ii),
(iv) the projected Lessor’s expenses related to maintenance of the Engines in the Portfolio during the lesser of twenty-five (25) years from the Applicable Date for such Maintenance Reserve Evaluation and the remaining expected life of all the Engines in the portfolio (as determined by the Person preparing the Maintenance Reserve Evaluation) as of such Applicable Date (such period, the “Relevant Evaluation Period”),
(v) the projected Maintenance Reserve Payments from Lessees and other Lessor’s revenues related to the maintenance of the Engines, taking into account then existing Leases and Future Leases using assumptions that are reasonably acceptable to the Controlling Trustees, and the resulting funds expected to be deposited in the Engine Reserve Account during the Relevant Evaluation Period,
(vi) a schedule of the projected balances in the Engine Reserve Account for each Payment Date during such Relevant Evaluation Period taking into account (x) the Balance in the Engine Reserve Account as of the Applicable Date, (y) the funds projected to be deposited in the Engine Reserve Account during the Relevant Evaluation Period (as determined pursuant to clause (v)) and (z) the projected maintenance costs during the Relevant Evaluation Period (as determined pursuant to clause (iv)), and assuming that all amounts in excess of the Engine Reserve Minimum Balance (as determined pursuant to clause (iii)) on each Payment Date during the Relevant Evaluation Period are transferred to the Engine Acquisition Account; and
(vii) the amounts, if any (each, a “Maintenance Reserve Deficit”) by which any of the projected balances in the schedule prepared pursuant to clause (vi) above is less than the projected costs of engine overhaul and maintenance for the Interest Accrual Period beginning on such Payment Date.
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“Maintenance Reserve Payment” means any payment (including any use payment) deposited in or credited to the Collections Account that is based on the usage of an Engine or which is based on, or in respect of which, the Lessor under a Lease may be obligated to reimburse the Lessee under such Lease for specified maintenance activities with respect to the Engine subject to such Lease.
“Mandatory Engine Modification” means a modification or improvement of an Engine, the cost of which will be capitalized in accordance with U.S. GAAP, required pursuant to the terms of the related Lease or the terms of Applicable Law or which, in the discretion of the Servicer, is commercially necessary in order to place such Engine in the minimum condition required to lease or re-lease such Engine.
“Maximum Borrowing Base” means, as of any date of determination, the sum of (a) *** of the then Aggregate Adjusted Borrowing Value, plus (b) the Balance in the Engine Acquisition Account on such date, plus (c) the Balance in the Senior Restricted Cash Account on such date plus (d) the Balance in the Junior Restricted Cash Account on such date minus *** of the Borrowing Base Adjustment Amount as of such date.
“Maximum Borrowing Base Deficiency” means, as of any date of determination, the amount (if any) by which (i) the then Aggregate Note Principal Balance (after giving effect to any payments of Minimum Principal Payment Amounts and Scheduled Principal Payment Amounts on all Notes on such date), exceeds (ii) the Maximum Borrowing Base as of such date.
“Maximum Commitment” means, with respect to any Series of Warehouse Notes, the maximum amount of loans that each Holder of such Warehouse Notes is committed to make to WEST in accordance with the terms and conditions of the related Supplement; provided that, on the occurrence of a Conversion Event with respect to any Series of Warehouse Notes, the Maximum Commitment of such Holder of such Warehouse Notes shall be the Outstanding Principal Balance of such Warehouse Notes on the date of such Conversion Event.
“Maximum Principal Balance” means, with respect to any Warehouse Note, the maximum amount that WEST may borrow from the Holder of such Warehouse Note, which shall be equal to the Maximum Commitment of such Holder.
“Maximum Required Hedge Amount” means, as of any date of determination, an amount equal to the product of (x) one hundred twenty-five percent (125%) and (y) the Outstanding Principal Balance of the Notes as of such date and (z) a fraction, the numerator of which is the sum of the Adjusted Borrowing Values of all Engines subject to a Hedged Lease as of such date and the denominator of which is the Aggregate Adjusted Borrowing Value as of such date.
“Merger Transaction” has the meaning given to such term in Section 5.02(g) hereof.
“Minimum Principal Payment Amount” means, for each Series of Notes for any Payment Date, the excess, if any, of (x) the sum of the then Outstanding Principal Balance of all Notes of such Series, assuming that all Minimum Principal Payment Amounts for all prior Payment Dates have been paid in full, over (y) the Minimum Targeted Principal Balance of such Series for such Payment Date.
*** Confidential information omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
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“Minimum Required Hedge Amount” means, as of any date of determination, an amount equal to the product of (A) ninety percent (90%) and (y) the Outstanding Principal Balance of the Notes as of such date and (z) a fraction, the numerator of which is the sum of the Adjusted Borrowing Values of all Engines subject to a Hedged Lease as of such date and the denominator of which is the Aggregate Adjusted Borrowing Value as of such date.
“Minimum Targeted Principal Balance” means, for each Series of Notes on any Payment Date, the amount identified as such in the related Supplement, as it may be adjusted from time to time in accordance with this Indenture and such Supplement.
“Modification Agreement” means any agreement between a WEST Group Member and a Supplier for the purchase and/or installation of a Mandatory Engine Modification or a Discretionary Engine Modification.
“Modified Net Sale Proceeds” means, with respect to any Engine Disposition, the Net Sale Proceeds from such Engine Disposition minus the amount of any Disposition Fee payable to the Servicer in respect of such Engine Disposition.
“Monthly Report” has the meaning given to such term in Section 2.14(a) hereof.
“Moody’s” means Moody’s Investors Service, Inc.
“Mortgage Collateral” means the Engines, the Leases and the other collateral in which the Engine Mortgages and the Lease Security Assignments create a Lien.
“MRE Balance Increment” has the meaning given to such term in Section 5.04(d).
“Net Proceeds” means, with respect to the issuance of a Series of Notes, the aggregate amount of cash received by WEST in connection with such issuance after deducting therefrom (without duplication) all Issuance Expenses; provided that such amount shall not be less than zero.
“Net Sale Proceeds” means, with respect to any Engine Disposition, the aggregate amount of cash received by or on behalf of the seller in connection with such transaction after deducting therefrom (without duplication) (a) reasonable and customary brokerage commissions and other similar fees and commissions (other than any Disposition Fee payable to the Servicer), and (b) the amount of taxes payable in connection with or as a result of such transaction, in each case to the extent, but only to the extent, that amounts so deducted are, at the time of receipt of such cash, actually paid to a Person that is not an Affiliate of the seller and are properly attributable to such transaction or to the asset that is the subject thereof.
“Net Senior Shortfall” has the meaning given to such term in Section 3.13(d).
“Non-Extended Facility” has the meaning given to such term in Section 3.20(d).
“Non-Extension Advance” has the meaning given to such term in Section 3.20(d).
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.
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“Note” means any one of the promissory notes executed by WEST and authenticated by or on behalf of the Indenture Trustee, substantially in the form attached to the related Supplement.
“Note Form” means, (a) with respect to a Series A Term Note, the form of Note attached hereto as Exhibit A-1, with such changes therein and such additional information as may be provided in the Supplement under which such Series A Term Note is issued, (b) with respect to a Series A Warehouse Note, the form of Note attached hereto as Exhibit A-2, with such changes therein and such additional information as may be provided in the Supplement under which such Series A Warehouse Note is issued, (a) with respect to a Series B Term Note, the form of Note attached hereto as Exhibit B-1, with such changes therein and such additional information as may be provided in the Supplement under which such Series B Term Note is issued, (a) with respect to a Series B Warehouse Note, the form of Note attached hereto as Exhibit B-2, with such changes therein and such additional information as may be provided in the Supplement under which such Series Warehouse Note is issued.
“Noteholder” or “Holder” means any Person in whose name a Note is registered from time to time in the Register for such Notes.
“Noteholder Indemnified Amounts” means, in respect of any Series of Notes, all amounts due to the Holders of the Notes for Increased Costs, in the case of any Series of Warehouse Notes, and indemnification payments, in each case as specified in the Supplement that establishes such Series of Notes.
“Note Registrar” has the meaning given to such term in Section 2.03(a) hereof.
“Notice of Sole Control” has the meaning given to such term in the Security Trust Agreement.
“Notices” has the meaning given to such term in Section 13.04 hereof.
“Officer’s Certificate” means a certificate signed by, with respect to WEST, any Signatory Trustee and, with respect to any other Person, any officer, director, trustee or equivalent representative.
“Off-Production Engine” means, as of any date of determination, an Engine that can be installed only on aircraft types that are no longer being manufactured by the manufacturers of such aircraft types as of such date.
“Operating Bank” means any Eligible Institution at which any Account is held; provided that if at any time an Operating Bank ceases to be an Eligible Institution, a successor depository institution or trust company shall be appointed by the Administrative Agent on behalf of the Security Trustee and all Accounts at the predecessor Operating Bank shall thereafter be transferred to and be maintained at such successor depository institution or trust company and such successor depository institution or trust company shall thereafter be an “Operating Bank”. The initial Operating Bank is Deutsche Bank Trust Company Americas.
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“Operating Expenses” means (i) WEST Expenses, (ii) Ordinary Course Expenses, (iii) Mandatory Engine Modifications, but only to the extent of the excess of the cost of any Mandatory Engine Modification over the portion funded from the Balance in the Engine Reserve Account, and (iv) Liquidity Expenses.
“Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee of the Servicer or the Administrative Agent or counsel to WEST, that meets the requirements of Section 1.03 hereof.
“Optional Redemption” means, with respect to a Series, a voluntary prepayment by WEST of all or a portion of the Outstanding Principal Balance of such Series in accordance with the terms of the applicable Supplement.
“Ordinary Course Expenses” means, with respect to any Payment Date, all expenses and costs, incurred by, or on behalf of any WEST Group Member in connection with the ownership, use, leasing and/or operation of the Engines, during the related Collection Period that are not Service Provider Fees. Ordinary Course Expenses include the following: (i) costs for routine maintenance and repairs (but not Discretionary Engine Modifications) needed to return an Engine to “serviceable” condition, but only to the extent that the amounts then on deposit in the Engine Reserve Account that are available therefor are insufficient to cover these costs; (ii) the cost of repositioning an Engine in connection with the origination or termination of a Lease; (iii) legal fees and court costs incurred in connection with enforcing rights under a Lease of an Engine and/or repossessing such Engine (but excluding legal fees incurred by the Servicer in the negotiation and documentation of Future Leases or of amendments or renewals of Leases and Future Leases); (iv) the cost of obtaining and maintaining contingent and off-lease insurance with respect to the Engines; (v) taxes, levies, duties, charges, assessments, fees, penalties, deductions or withholdings assessed, charged or imposed upon or against the use and operation of the Engines; (vi) the cost of storing an off-lease Engine; (vii) expenses and costs (including legal fees) of pursuing claims against manufacturers or sellers of an Engine; (viii) non-recoverable sales and value-added taxes with respect to an Engine; and (ix) governmental filing fees necessary to perfect, or continue the perfection of, the security interest of the Security Trustee in an Engine and/or a Lease, including the registration of International Interests, Prospective International Interests and Contracts of Sale in the International Registry.
“Original Indenture” has the meaning set forth in the recitals hereof.
“Outstanding” means (a) with respect to the Notes of any Series at any time, all Notes of such Series theretofore authenticated and delivered by the Indenture Trustee except (i) any such Notes cancelled by, or delivered for cancellation to, the Indenture Trustee; (ii) any such Notes, or portions thereof, for which the payment of principal of and accrued and unpaid interest on which moneys have been deposited in the applicable Series Account or distributed to Noteholders by the Indenture Trustee and any such Notes, or portions thereof, for the payment or redemption of which moneys in the necessary amount have been deposited in the Redemption/Defeasance Account for such Notes; (iii) any such Notes in exchange or substitution for which other Notes, as the case may be, have been authenticated and delivered, or which have been paid pursuant to the terms of this Indenture (unless proof satisfactory to the Indenture Trustee is presented that any of such Notes is held by a Person in whose hands such Note is a legal, valid and binding
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obligation of WEST); and (iv) for the limited purposes set forth in Section 1.04(c), any Note held by WEST or any other affiliate thereof and (b) when used with respect to any other evidence of indebtedness means, at any time, any principal amount thereof then unpaid and outstanding (whether or not due or payable).
“Outstanding Note” means a Note that is Outstanding.
“Outstanding Principal Balance” means, with respect to any Outstanding Notes, the total principal balance of such Outstanding Notes unpaid and outstanding at any time.
“Owner Trustee” means Wilmington Trust Company, as Owner Trustee of WEST, and its successors in such capacity.
“Part” means any and all parts, avionics, attachments, accessions, appurtenances, furnishings, components, appliances, accessories, instruments and other equipment installed in, or attached to (or constituting a spare for any such item installed in or attached to) any Engine.
“Paying Agent” has the meaning given to such term in Section 2.03(a) hereof. The term “Paying Agent” includes any additional Paying Agent.
“Payment Date” means the 15th day of each month, commencing on August 15, 2005; provided that if any Payment Date would otherwise fall on a day which is not a Business Day, such Payment Date shall be the first following day which is a Business Day.
“Payment Date Schedule” has the meaning given to such term in Section 3.13(e) hereof.
“Periodic Hedge Payment” means any payment under a Hedging Agreement other than a Hedge Termination Payment.
“Permitted Encumbrance” means (i) any Encumbrance for taxes, assessments and governmental charges or levies not yet due and payable or which are being contested in good faith by appropriate proceedings, provided that the proceedings relating to such Encumbrance or the continued existence of such Encumbrance does not give rise to any reasonable likelihood of the sale, forfeiture or other loss of the affected asset; (ii) in respect of any Engine, any Encumbrance of a repairer, carrier or hangar keeper arising in the ordinary course of business by operation of law or similar Encumbrance, provided that the proceedings relating to such Encumbrance or the continued existence of such Encumbrance does not give rise to any reasonable likelihood of the sale, forfeiture or other loss of the affected asset; (iii) any Encumbrances on any Engines permitted under any Lease thereof (other than Encumbrances created by the relevant lessor); (iv) any Encumbrances created by or through or arising from debt or liabilities or any act or omission of any Lessee in each case either in contravention of the relevant Lease (whether or not such Lease has been terminated) or without the consent of the relevant lessor (provided that if such lessor becomes aware of any such Encumbrance, it shall use commercially reasonable efforts to have any such Encumbrance lifted, removed and otherwise discharged); (v) any Encumbrance created in favor of WEST or any WEST Subsidiary or the Security Trustee, including any Encumbrance created or required to be created under the Security Trust Agreement or any Mortgage; (vi) any Encumbrance arising under any agreements the terms of which contemplate that custody of Lessee Funds held for Lessees with respect to
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Additional Engines is held by a third-party; (vii) any Lease in respect of any Engine and the rights of the Lessee under such Lease; (viii) any Encumbrance in respect of the deposit of any Disposition Proceeds in any Qualified Escrow Account with a Qualified Intermediary as part of a Replacement Exchange; and (ix) any Encumbrance arising under the Senior Liquidity Facility.
“Permitted Engine Acquisition” has the meaning given to such term in Section 5.03(b) hereof.
“Permitted Engine Disposition” has the meaning given to such term in Section 5.03(a) hereof.
“Permitted Holder” has the meaning given to such term in Section 5.02(i)(iii) hereof.
“Permitted Investments” means, in each case, book-entry securities, negotiable instruments or securities represented by instruments in bearer or registered form which evidence:
(a) direct obligations of, and obligations fully guaranteed as to timely payment by, the United States of America (having original maturities of no more than 365 days, or such lesser time as is required for the distribution of funds);
(b) demand deposits, time deposits or certificates of deposit of the Operating Bank or of depository institutions or trust companies organized under the laws of the United States of America or any state thereof, or the District of Columbia (or any domestic branch of a foreign bank) (i) having original maturities of no more than 365 days, or such lesser time as is required for the distribution of funds; provided that at the time of investment or contractual commitment to invest therein, the short-term debt rating of such depository institution or trust company shall be at least “F1+” by Fitch and “P-1” by Moody’s or (ii) having maturities of more than 365 days and, at the time of the investment or contractual commitment to invest therein, a rating of “AA” from Fitch and “Aa2” from Moody’s;
(c) corporate or municipal debt obligations (i) having remaining maturities of no more than 365 days, or such lesser time as is required for the distribution of funds, having, at the time of the investment or contractual commitment to invest therein, a rating of at least “F1+” or “AA” by Fitch and “P-1” or “Aa2” by Moody’s or (ii) having maturities of more than 365 days and, at the time of the investment or contractual commitment to invest therein, a rating of “AA” from Fitch and “Aa2” from Moody’s;
(d) investments in money market funds (including funds in respect of which the Indenture Trustee or any of its affiliates is investment manager or advisor) having a rating of at least “AA” by Fitch and “Aa2” by Moody’s;
(e) notes or bankers’ acceptances (having original maturities of no more than 365 days, or such lesser time as is required for the distribution of funds) issued by any depository institution or trust company referred to in (b) above; or
(f) any other investments approved pursuant to a Rating Agency Confirmation;
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provided, however, that no investment shall be made in any obligations of any depository institution or trust company which has a contractual right to set off and apply any deposits held, and other indebtedness owing, by any WEST Group Member to or for the credit or the account of such bank.
“Person” means any natural person, firm, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any political subdivision thereof or any other legal entity, including public bodies.
“Portfolio” means, at any time, all Engines owned by WEST Group and the Leases related to such Engines.
“Precedent Lease” has the meaning given to such term in Section 5.03(d)(ii) hereof.
“PRI” has the meaning given to such term in Section 5.04(g) hereof.
“PRI Guidelines” means the list of prohibited countries and countries with respect to which PRI must be obtained as set forth in the PRI Guidelines attached as Exhibit F hereto, as amended from time to time subject to the receipt of a Rating Agency Confirmation.
“Principal Terms” means, with respect to any Series, all of the following information: (i) the name or designation of such Series; (ii) the initial principal amount of the Notes to be issued for such Series (or method for calculating such amount); (iii) the interest rate to be paid with respect to each Series of Notes for such Series (or method for the determination thereof); (iv) the Payment Date and the date or dates from which interest shall accrue and on which principal is scheduled to be paid; (v) the designation of any Series Accounts and the terms governing the operation of any such Series Accounts; (vi) the terms of any form of Series Enhancement with respect thereto; (vii) the Final Maturity Date for the Series; (viii) if specified in the related Supplement, the number of Classes of Notes of the Series and the rights and priorities of each such Class; (ix) the priority of such Series with respect to any other Series; (x) the Control Party with respect to such Series; (xi) the Scheduled Principal Payment Amounts and the Minimum Principal Payment Amounts for such Series, (xii) the designation of a Series as a Term Series or a Warehouse Series, (xiii) the designation of such Series as Series A Notes or Series B Notes, and (xiv) any other terms of such Series.
“Prior Ranking Amounts” has the meaning given to such term in Section 3.14 hereof.
“Private Placement Legend” means the legend initially set forth on the Notes in the form set forth in Section 2.02 hereof.
“Pro Forma Lease” has the meaning given to such term in Section 5.03(d)(ii) hereof.
“Proceeding” means any suit in equity, action at law, or other judicial or administrative proceeding.
“Prohibited Country” has the meaning given to such term in Section 5.03(e) hereof.
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“Projected Principal Payment Amounts” means, as of the Determination Date immediately preceding any Redemption Date, the Applicable Percentage of the Assumed Principal Payments of each Series of Additional Notes that are Fixed Rate Notes.
“Prospective International Interest” has the meaning given to such term in the Cape Town Convention.
“Provider Advance” means a Downgrade Advance or a Non-Extension Advance.
“Provider Advance Balance” means the portion of the Balance in the Senior Cash Collateral Account equal to any Downgrade Advance or Non-Extension Advance deposited therein pursuant to Section 3.20, decreased by the amount of any Shortfall Drawings withdrawn therefrom and increased by the amounts deposited therein pursuant to Section 3.14.
“Purchase Option Notice” has the meaning given to such term in Section 4.12.
“Purchase Price” means (a), in the case of a Permitted Engine Acquisition, the amount to be paid to the seller of an Engine pursuant to the Acquisition Agreement or the Asset Transfer Agreement and (b), in the case of a Mandatory Engine Modification or a Discretionary Engine Modification, the cost of such Mandatory Engine Modification or Discretionary Engine Modification as provided in the Modification Agreement with the Supplier of such Mandatory Engine Modification or Discretionary Engine Modification.
“QEC Kit” means a quick engine change kit, consisting of components and accessories installed or capable of being installed on an engine to speed the removal and installation of the engine on an aircraft.
“QIB” means a Qualified Institutional Buyer.
“Qualified Engine Modification” means an Engine Thrust Upgrade or the acquisition and installation of a QEC Kit on an Engine.
“Qualified Escrow Account” means an escrow account that is (i) established with a Qualified Intermediary pursuant to an agreement under which all or a portion of the Modified Net Sale Proceeds from an Engine Disposition are deposited in such escrow account in connection with a Replacement Exchange and are to be applied to the acquisition of an Additional Engine or the funding of Qualified Engine Modification designated by WEST or another WEST Group Member or, if and to the extent not so applied by the end of the applicable Replacement Period for such Engine Disposition, deposited by the Qualified Intermediary in the Collections Account and (ii) in respect of which WEST or the WEST Group Member has pledged its rights in such escrow account to the Security Trustee pursuant to the Security Trust Agreement.
“Qualified Institutional Buyer” means a “qualified institutional buyer” as defined in Rule 144A promulgated under the Securities Act.
“Qualified Intermediary” means a Person described in Treasury Regulations §1.1031(k)-1(g)(4) or any successor regulations, provided that such Person has a short term debt rating of, or
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the obligations of such Person are guaranteed by a Person that has a short term debt rating of, not lower than P-1 from Moody’s and/or F-1 from Fitch.
“Rating Agency” means, with respect to any Series of Notes, the nationally recognized statistical rating organization selected by WEST to issue a rating with respect to such Series of Notes; provided that such organizations shall only be deemed to be a Rating Agency for purposes of the Indenture with respect to Notes they are then rating, as specified in the related Supplement for each Series of Notes.
“Rating Agency Confirmation” means, with respect to any action or omission specified herein for which a Rating Agency Confirmation is required, a prior written confirmation from each Rating Agency then rating a Series of Notes then Outstanding that such action or omission in and of itself will not result in a lowering, qualification or withdrawal of the then current ratings on any such Series.
“Rating Agency Hedge Requirements” means the requirements in respect of any Hedging Agreement published by the Rating Agencies that are applicable to such Hedging Agreements.
“Received Currency” has the meaning given to such term in Section 13.06(a) hereof.
“Record Date” means with respect to each Payment Date, the close of business on the fifth Business Day immediately preceding such Payment Date and, with respect to the date on which any Direction is to be given by the Noteholders, the close of business on the last Business Day prior to the solicitation of such Direction.
“Redemption” means a Refinancing, an Optional Redemption, an Acquisition Balance Redemption, a Tax Redemption or a Warehouse Note Redemption.
“Redemption/Defeasance Account” means an account established by the Indenture Trustee pursuant to Section 3.10 hereof.
“Redemption Date” means the date, which shall in each case be a Payment Date, on which Notes of any Series are redeemed in whole or in part pursuant to a Redemption.
“Redemption Fraction” means, for any Series with respect to any Optional Redemption or Acquisition Balance Redemption, a fraction, the numerator of which is the principal amount of the Optional Redemption or Acquisition Balance Redemption and the denominator of which is the Outstanding Principal Balance of such Series immediately prior to such Optional Redemption or Acquisition Balance Redemption.
“Redemption Notice” means, a notice sent by the Indenture Trustee to each holder of the Series of Notes to be redeemed, as described in Section 3.17(d) hereof.
“Redemption Premium” means, with respect to any Series of Notes, such amount as may be payable in connection with a Redemption of such Series of Notes, in whole or in part, as part of or in addition to, the Redemption Price in respect of such Redemption, as specified in the applicable Supplement for such Series of Notes. The Redemption Premium on any Additional Series of Notes that are Fixed Rate Notes, if specified in the applicable Supplement for such
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Additional Series of Fixed Rate Notes, shall be equal to the excess, if any, of (1) the discounted present value of the Projected Principal Payment Amounts of such Additional Series of Fixed Rate Notes and interest thereon from the applicable Redemption Date and including the applicable final Payment Date by discounting such payments at a discount rate equal to the applicable Treasury Yield plus the margin, if any, specified in the applicable Supplement for such Additional Series of Fixed Rate Notes, over (2) the Applicable Percentage of such Additional Series of Fixed Notes and all accrued and unpaid interest thereon.
“Redemption Price” means, (a) with respect to any Series of Notes that will be the subject of a Refinancing or an Optional Redemption, an amount (determined as of the Determination Date for the Redemption Date for any Redemption) equal to, unless otherwise specified in the related Supplement, the Outstanding Principal Balance of the Series of Notes being repaid together with all accrued and unpaid interest thereon and, if specified in the related Supplement, the Redemption Premium specified in such Supplement, and (b) with respect to any Series of Notes that will be the subject of an Acquisition Balance Redemption, a Tax-Redemption or a Warehouse Note Redemption, an amount equal to the Outstanding Principal Balance of such Series with (other than in the case of a Warehouse Note Redemption) all accrued and unpaid interest thereon but without any Redemption Premium.
“Reference Date” means, with respect to each Interest Accrual Period, the day that is two (2) Business Days prior to the Payment Date on which such Interest Accrual Period commences; provided, however, that the Reference Date with respect to the initial Interest Accrual Period means the date that is two (2) Business Days before the Initial Closing Date.
“Refinancing” means the issuance of an Additional Series of Notes for the purpose of an Optional Redemption of all, and not less than all, of an outstanding Series of Notes.
“Refinancing Expenses” means all out-of-pocket costs and expenses incurred in connection with an offering and issuance of Additional Notes in a Refinancing.
“Register” has the meaning given to such term in Section 2.03(a) hereof.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Book-Entry Notes” means the Unrestricted Book-Entry Notes and the Regulation S Temporary Book-Entry Notes.
“Regulation S Temporary Book-Entry Note” means Notes initially sold outside the United States in reliance on Regulation S, represented by a single temporary global note in fully registered form, without interest coupons, the form of which shall be substantially in the form of the applicable Note Form for such Note, with the legends required by Section 2.02 for a Regulation S Temporary Book-Entry Note inscribed thereon and with such changes therein and such additional information as may be specified in the Supplement pursuant to which such Note is issued
“Related Documents” means the Acquisition Agreements, the Administrative Agency Agreement, the Servicing Agreement, the Back-Up Administrative Agency Agreement, the Back-Up Servicing Agreement, each Enhancement Agreement, this Indenture, any Hedging
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Agreements, the Notes, each Supplement, the Security Documents, the Fee Letter and the Senior Liquidity Facility, together with all certificates, documents and instruments delivered pursuant to any of the foregoing.
“Relevant Evaluation Period” has the meaning given to such term in the definition of “Maintenance Reserve Evaluation.”
“Relevant Information” means the information provided by the Service Providers to the Administrative Agent that is required to enable the Administrative Agent make the calculations contemplated by Section 3.13(a) through (e).
“Remaining Engine” means (a) any Initial Engine for which title thereto was not transferred to an Engine Subsidiary on or prior to the Initial Closing Date and which was expected to be acquired by an Engine Subsidiary during the Delivery Period beginning thereon, and (b) any Additional Engine for which title thereto has not been transferred to an Engine Subsidiary on or prior to the related Closing Date and which is expected to be acquired by an Engine Subsidiary during the related Delivery Period.
“Remaining Weighted Average Life” means, with respect to any Series of Notes on any Payment Date, (a) the sum of the products of (i) the portion of each Projected Principal Payment Amount allocable to such Series in accordance with Section 3.15 hereof on each subsequent Payment Date (each, a “Subsequent Date”) and (ii) the number of months remaining until such Subsequent Date divided by (b) the Outstanding Principal Balance of such Series on such Payment Date.
“Renewal Lease” has the meaning given to such term in Section 5.03(d) hereof.
“Rent Payments” means all payments of basic rent under a Lease that are payable in respect of periods specified under such Lease.
“Replacement Exchange” means the acquisition by any WEST Group Member of one or more Additional Engines in a Permitted Engine Acquisition or the funding of Qualified Engine Modifications with all or a portion of the Modified Net Sale Proceeds from a Permitted Engine Disposition by any Engine Subsidiary or Engine Trust in a Permitted Engine Disposition within the Replacement Period applicable to such Permitted Engine Disposition, provided that WEST shall have elected to use all or such portion of such Modified Net Sale Proceeds in a Replacement Exchange in accordance with Section 3.11 hereof.
“Replacement Liquidity Facility” means an irrevocable revolving credit agreement (or agreements), complying with all the requirements of Section 3.20(e) hereof, in substantially the form of the Senior Liquidity Facility, including reinstatement provisions, or in such other form or forms (which may include a letter of credit, surety bond, hedge, financial insurance policy or guaranty) as shall permit the Rating Agencies to confirm in writing their respective ratings then in effect for the Series A Notes (before downgrading of such ratings, if any, as a result of the downgrading of the ratings of the replaced Senior Liquidity Provider), and in a face amount (or in an aggregate face amount) equal to the then Senior Liquidity Facility Maximum Commitment for the replaced Senior Liquidity Facility and issued by a Person (or Persons) having an unsecured short-term or long-term (as the case may be) debt rating and a short-term or long-term
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issuer credit rating, as the case may be, issued by each Rating Agency which is equal to or higher than the Threshold Rating or such other ratings and qualifications as shall permit the Rating Agencies to confirm in writing their respective ratings then in effect for the Series A Notes (before downgrading of such ratings, if any, as a result of the downgrading of the ratings of the replaced Senior Liquidity Provider). Without limitation of the form that a Replacement Liquidity Facility otherwise may have pursuant to the preceding sentence, a Replacement Liquidity Facility may have a Stated Expiration Date earlier than fifteen (15) days after the Final Maturity Date of the Series A Notes, so long as such Replacement Liquidity Facility provides for a Non-Extension Advance as contemplated by Section 3.20(d).
“Replacement Period” means, with respect to any portion of the Modified Net Sale Proceeds of a Permitted Engine Disposition that WEST elects to use to acquire Additional Engines or Qualified Engine Modifications in a Replacement Exchange pursuant to Section 3.11 hereof, the period beginning on the date of such Engine Disposition and ending on the earlier of (i) the 120th day after the date of such Engine Disposition and (ii) the occurrence of an Event of Default.
“Repurchase” means to repurchase, defease or otherwise acquire or retire any Notes.
“Required Acquisition Agreement Terms” means the terms and conditions set forth in Exhibit J, which must be included in any Acquisition Agreement.
“Required Expense Amount” means, with respect to a Payment Date, an amount equal to the sum of (i) the Operating Expenses payable on such Payment Date, consisting of all Operating Expenses incurred by the Service Providers and not previously reimbursed and the amounts shown on all invoices received from the Service Providers for the reimbursement or payment of Operating Expenses not previously paid or reimbursed, (ii) a reserve for Operating Expenses that are due and payable during the Interest Accrual Period beginning on such Payment Date and (iii) a reserve for Extraordinary Operating Expenses.
“Required Expense Deposit” has the meaning ascribed to such term in Section 3.13(a)(ii).
“Required Expense Reserve” means the sum of the amounts described in clauses (ii) and (iii) in the definition of “Required Expense Amount.”
“Requisite Majority” means, with respect to any action proposed to be taken pursuant to the terms of this Indenture, that the Control Party (or Control Parties) representing more than fifty percent (50%) of the sum of (a) the then Outstanding Principal Balance of the Notes (other than any Series of Warehouse Notes prior to a Conversion Event having occurred with respect to such Series of Warehouse Notes) and (b) the Maximum Commitments of all Series of Warehouse Notes prior to a Conversion Event having occurred with respect to such Series of Warehouse Notes shall approve or direct such proposed action, provided that, in making such a determination, each Control Party shall be deemed to have voted the entire Outstanding Principal Balance or Maximum Commitment, as applicable, of the related Series in favor of, or in opposition to, such proposed action, as the case may be.
“Reserve Engine Adjusted Borrowing Value” means the Reserve Engine Initial Borrowing Value of an Additional Engine, adjusted downward as provided in the definition of
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“Adjusted Borrowing Value.” If the Purchase Price of an Additional Engine is funded entirely with Engine Reserve Excess Amounts, then the Reserve Engine Adjusted Borrowing Value of such Additional Engine will be equal to the Adjusted Borrowing Value of such Additional Engine.
“Reserve Engine Initial Borrowing Value” means the portion of the Initial Borrowing Value of an Additional Engine proportionate to the portion of the Purchase Price of such Additional Engine funded with Engine Reserve Excess Amounts. If the Purchase Price of an Additional Engine is funded entirely with Engine Reserve Excess Amounts, then the Reserve Engine Initial Borrowing Value of such Additional Engine will be equal to the Initial Borrowing Value of such Additional Engine.
“Reserve Proceeds” means, with respect to an Engine Disposition, the portion of the Modified Net Sale Proceeds equal to the lesser of (a) the amount of such Modified Net Sale Proceeds and (b) the portion of the Adjusted Borrowing Value of the Engine that was the subject of such Engine Disposition consisting of Reserve Engine Adjusted Borrowing Value.
“Responsible Officer” means, (i) with respect to the Indenture Trustee and the Security Trustee, any officer within the Corporate Trust Office, including any Principal, Vice President, Managing Director, Director or any other officer of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge and familiarity with the particular subject, (ii) with respect to WEST, any Controlling Trustee and (iii) with respect to the Senior Liquidity Provider and the Administrative Agent, any Person designated as a Responsible Officer by such Senior Liquidity Provider or the Administrative Agent, as applicable.
“Rule 144A” means Rule 144A under the Securities Act.
“Sale Proceeds Surplus Amount” means, as of any date of determination in connection with an Engine for which an Engine Disposition has occurred since the most recent Appraisal Date, the Adjusted Borrowing Value of which is no longer included in Aggregate Adjusted Borrowing Value as of such date of determination, the amount, if any, by which (x) the Modified Net Sale Proceeds realized from such Engine Disposition exceeds (y) the Adjusted Borrowing Value of such Engine on the date of such Engine Disposition.
“Scheduled Principal Payment Amount” means, for each Series of Notes on any Payment Date, the excess, if any, of (x) the sum of the then Outstanding Principal Balance of all Notes of such Series (after giving effect to any payment of the Minimum Principal Payment Amount for such Series of Notes actually paid on such Payment Date, assuming that all Scheduled Principal Payment Amounts for all prior Payment Dates have been paid in full), over (y) the Scheduled Targeted Principal Balance for such Series for such Payment Date.
“Scheduled Targeted Principal Balance” means, for each Series of Notes on any Payment Date, the amount set forth in the related Supplement.
“Secured Obligations” has the meaning given to such term in the Security Trust Agreement.
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“Secured Parties” has the meaning given to such term in the Security Trust Agreement.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Deposit Account” has the meaning given to such term in Section 3.01(a) hereof.
“Security Deposit/Lessee-Funded Account” has the meaning given to such term in Section 3.01(g) hereof.
“Security Deposits” means any cash deposits and other collateral provided by, or on behalf of, a Lessee to secure the obligations of such Lessee under a Lease.
“Security Documents” means the Security Trust Agreement, the Engine Mortgages, the Lease Security Assignments, the Custodial Agreement and each other agreement that creates a Security Interest in favor of the Secured Parties.
“Security Interests” means the security interests granted or expressed to be granted in the Collateral, and the International Interests constituted pursuant to, the Security Trust Agreement, the Engine Mortgages and the Lease Security Assignments.
“Security Trust Agreement” means the Security Trust Agreement dated as of the Initial Closing Date, among WEST, WEST Funding, each other party thereto and the Security Trustee, for the benefit of the Secured Parties.
“Security Trustee” means the trustee appointed pursuant to the Security Trust Agreement, initially Deutsche Bank Trust Company Americas.
“Segregated Funds” means all Lessee Funds that, pursuant to the terms of the related Lease, are not permitted to be commingled with the funds of the lessor under such Lease.
“Seller” means (i), with respect to the Asset Transfer Agreement, Willis and (ii) with respect to any Acquisition Agreement, Willis or any other seller of an Engine in a Permitted Engine Acquisition.
“Senior Borrowing Base” means, as of any date of determination, the sum of (a) seventy percent (70%) of the then Aggregate Adjusted Borrowing Value, plus (b) the Balance in the Engine Acquisition Account on such date, plus (c) the Balance in the Senior Restricted Cash Account on such date, minus seventy percent (70%) of the Borrowing Base Adjustment Amount as of such date.
“Senior Borrowing Base Deficiency” means, as of any date of determination, the amount (if any) by which (i) the then Outstanding Principal Balance of all Series A Notes (after giving effect to any payments of Minimum Principal Payment Amounts and Scheduled Principal Payment Amounts on one or more Series A Notes on such date) exceeds (ii) the Senior Borrowing Base as of such date.
“Senior Claim” has the meaning given thereto in Section 11.01(a) hereof.
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“Senior Claimant” has the meaning given thereto in Section 11.01(a) hereof.
“Senior Cash Collateral Account” has the meaning given to such term in Section 3.01(f) hereof.
“Senior Liquidity Facility” means the Revolving Credit Agreement, dated as of December 13, 2007, between WEST and the initial Senior Liquidity Provider or any Replacement Liquidity Facility entered into between WEST and a replacement Senior Liquidity Provider.
“Senior Liquidity Facility Available Amount” means, at any time of determination, (a) the Senior Liquidity Facility Required Amount at such time minus (b) the aggregate amount of each advance made under the Senior Liquidity Facility and Outstanding at such time; provided that following a Downgrade Advance or a Non-Extension Advance, the Senior Liquidity Facility Available Amount shall be zero.
“Senior Liquidity Facility Maximum Commitment” with respect to any Payment Date, means the product of (a) four percent (4%) and (b) the sum of (i) the Outstanding Principal Balance of all Series A Term Notes (other than the Series 2005-A1 Term Notes) as of such Payment Date and (ii) the Maximum Commitment under the Series A Warehouse Notes as of such Payment Date.
“Senior Liquidity Facility Required Amount” means, as of each Closing Date, Funding Date and Payment Date, an amount equal to the product of (i) four percent (4%) and (ii) the sum of the Outstanding Principal Balances of all Series A Notes (other than the Series 2005-A1 Term Notes) as of such date, which Outstanding Principal Balances shall be calculated after giving effect to all advances of principal and principal payments made on such date in respect of the Series A Notes. The Senior Liquidity Facility Required Amount may be reduced by WEST subject to receipt of a Rating Agency Confirmation.
“Senior Liquidity Provider” means Calyon or any Person that is the Senior Liquidity Provider under a Replacement Liquidity Facility that becomes the Senior Liquidity Facility.
“Senior Restricted Cash Account” has the meaning given to such term in Section 3.01(a) hereof.
“Senior Restricted Cash Amount” means, as of each Closing Date, Funding Date and Payment Date, an amount equal to the product of (i) four percent (4%), and (ii) the Outstanding Principal Balance of the Series 2005-A1 Term Notes as of such date, after giving effect to all principal payments made on such date in respect of such Series 2005-A1 Term Notes.
“Senior Series” means all Series of Series A Notes then outstanding, so long as any amounts are due in respect of any Series of Series A Notes, and, at such time that no such amounts are due, all Series of Series B Notes then outstanding.
“Senior Shortfall” has the meaning given to such term in Section 3.13(d) hereof.
“Series” means any series of Notes established pursuant to a Supplement.
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“Series 2005-A1 Portion” means, in respect of a Hedge Payment Shortfall on a Payment Date, the product of (a) such Hedge Payment Shortfall, and (b) a fraction, the numerator of which is the Stated Interest Amount for the Series 2005-A1 Term Notes on such Payment Date and the denominator of which is the sum of the Stated Interest Amounts for all Series A Notes on such Payment Date.
“Series 2005-A1 Priority Principal Amount” means the aggregate amount of all withdrawals from the Senior Restricted Cash Account pursuant to Section 3.04(c) that have not been replenished as of the delivery of a Collateral Liquidation Notice, minus the aggregate amount of all payments of principal on the Series 2005-A1 Term Notes after the delivery of the Collateral Liquidation Notice, provided that the Series 2005-A1 Priority Principal Amount shall not be less than zero.
“Series 2005-A1 Shortfall” has the meaning given to such term in Section 3.13(d) hereof.
“Series 2005-A1 Supplement” has the meaning set forth in the preamble hereof.
“Series 2005-A1 Term Notes” means the Series A1 Notes issued by WEST pursuant to the Series 2005-A1 Supplement.
“Series 2005-A2 Supplement” has the meaning set forth in the preamble hereof.
“Series 2005-A2 Warehouse Notes” means the Series A2 Floating Rate Secured Notes issued by WEST pursuant to the Series 2005-A2 Supplement.
“Series 2005-B1 Supplement” has the meaning set forth in the preamble hereof.
“Series 2005-B1 Term Notes” means the Series B1 Notes issued by WEST pursuant to the Series 2005-B1 Supplement.
“Series 2005-B2 Supplement” has the meaning set forth in the preamble hereof.
“Series 2005-B2 Warehouse Notes” means the Series B2 Floating Rate Secured Notes issued by WEST pursuant to the Series 2005-B2 Supplement.
“Series Account” has the meaning given to such term in Section 3.01(a) hereof.
“Series Allocation Rules” has the meaning given to such term in Section 3.15(c) hereof.
“Series A Minimum Adjustment Fraction” means, for any Series of Series A Notes as of any Payment Date, a fraction equal to one minus the sum of the Series A Payment Date Minimum Disposition Fractions for such Payment Date and for all preceding Payment Dates on which such Series of Series A Notes was outstanding, provided that the Series A Minimum Adjustment Fraction shall not be less than zero.
“Series A Note” means any note issued as part of a Series of Notes that is designated as “Series A Notes” in the related Supplement and further differentiated by a unique alpha-numeric designator.
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“Series A Note Purchase Date” has the meaning given to such term in Section 4.12 hereof.
“Series A Note Purchaser” has the meaning given to such term in Section 4.12 hereof.
“Series A Payment Date Minimum Disposition Fraction” means, for any Payment Date a fraction, the numerator of which is the product of (a) *** and (b) the Available Sale Proceeds included in the Available Collections Amount on that Payment Date and the denominator of which is the sum of the original Minimum Targeted Principal Balances for all Series A Notes on such Payment Date, as adjusted for any Optional Redemption pursuant to Section 3.19(b).
“Series A Payment Date Scheduled Disposition Fraction” means, for any Payment Date a fraction, the numerator of which is the product of (a) *** and (b) the Available Sale Proceeds included in the Available Collections Amount on that Payment Date and the denominator of which is the sum of the original Scheduled Targeted Principal Balances for all Series A Notes on such Payment Date, as adjusted for any Optional Redemption pursuant to Section 3.19(b).
“Series A Scheduled Adjustment Fraction” means, for any Series of Series A Notes as of any Payment Date, a fraction equal to one minus the sum of the Series A Payment Date Scheduled Disposition Fractions for such Payment Date and for all preceding Payment Dates on which such Series of Series A Notes was outstanding, provided that the Series A Scheduled Adjustment Fraction shall not be less than zero.
“Series A Supplemental Principal Payment Amount” means, on each Payment Date on which there is a Senior Borrowing Base Deficiency, an amount equal to such Senior Borrowing Base Deficiency.
“Series A Term Note” means a Term Note designated as a Series A Note.
“Series A Warehouse Note” means a Warehouse Note designated as a Series A Note.
“Series B Note” means any note issued as part of a Series of Notes that is designated as “Series B Notes” in the related Supplement and further differentiated by a unique alpha-numeric designator.
“Series B Payment Date Scheduled Disposition Fraction” means, for any Payment Date a fraction, the numerator of which is the product of (a) *** and (b) the Available Sale Proceeds included in the Available Collections Amount on that Payment Date and the denominator of which is the sum of the original Scheduled Targeted Principal Balances for all Series A Notes and Series B Notes on such Payment Date, as adjusted for any Optional Redemption pursuant to Section 3.19(b).
“Series B Scheduled Adjustment Fraction” means, for any Series of Series B Notes as of any Payment Date, a fraction equal to one minus the sum of the Series B Payment Date Scheduled Disposition Fractions for such Payment Date and for all preceding Payment Dates on which such Series of Series B Notes was outstanding, provided that the Series B Scheduled Adjustment Fraction shall not be less than zero.
*** Confidential information omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
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“Series B Supplemental Principal Payment Amount” means, on each Payment Date on which there is a Junior Borrowing Base Deficiency, an amount equal to such Junior Borrowing Base Deficiency.
“Series B Term Note” means a Term Note designated as a Series B Note.
“Series B Warehouse Note” means a Warehouse Note designated as a Series B Note.
“Series Enhancement” means the rights and benefits provided to the Noteholders of any Series pursuant to any letter of credit, surety bond, financial guaranty insurance policy, insurance agreement, cash collateral or reserve account, spread account, guaranteed rate agreement, maturity liquidity facility or other similar arrangement. The subordination of any Series to another Series shall not be deemed to be a Series Enhancement, and the Senior Liquidity Facility shall not constitute a Series Enhancement.
“Series Enhancer” means, for each Series, the Person as set forth in the related Supplement then providing any Series Enhancement, other than the Noteholders of any Class which is subordinated to another Class.
“Series Issuance Date” has, with respect to any Series, the meaning given to such term in Section 2.10(d).
“Service Provider” means each of or all of (as the context may require) the Servicer, the Back-up Servicer, the Indenture Trustee, the Security Trustee, the Administrative Agent, the Back-Up Administrative Agent and the Operating Banks.
“Service Provider Fees” means any fees and expenses due or reimbursable to Service Providers in accordance with the applicable agreements with such Servicer Providers (including the Related Documents), including, without limitation, the Indenture Trustee Fees due to the Indenture Trustee hereunder.
“Servicer” means Willis, in its capacity as Servicer under the Servicing Agreement, including its successors in interest, until another Person shall have become the servicer under such agreement, after which “Servicer” means such other Person.
“Servicer Fee” means, for any Payment Date, the compensation payable to the Servicer on such Payment Date in accordance with the terms of, and designated in, the Servicing Agreement.
“Servicer Termination Event” has the meaning given to such term in the Servicing Agreement.
“Servicing Agreement” means that certain servicing agreement, dated as of the Initial Closing Date among the Servicer, the Security Trustee, each WEST Group Member and the other parties thereto or any replacement servicing agreement, including the Back-Up Servicing Agreement, with a replacement Servicer, including the Back-Up Servicer.
“SH&E” means Simat, Hellisen & Eichner, Inc., an independent consulting firm.
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“Shortfall Advance” has the meaning given to such term in Section 3.20(a) hereof.
“Shortfall Drawing” has the meaning given to such term in Section 3.20(f)(i) hereof .
“Signatory Trustee” has the meaning given to such term in the Trust Agreement.
“Significant Operating Expenses” means the following Operating Expenses to the extent included in the Annual Budget and other Operating Expenses (including, without limitation, significant repossession expenses) for which the Controlling Trustees shall determine that it is reasonable and prudent to establish a reserve during the twelve (12) month period prior to their being due and payable: costs of the Annual Appraisal, the Maintenance Reserve Evaluation and the Annual Audit, preparation of the audited financial statements for the Annual Report and insurance premiums.
“Special Majority” has the meaning given to such term in the Trust Agreement.
“Specified Period” means, with respect to any Series of Notes, the maturity of the Dollar deposits used in the definition of LIBOR, as specified in the related Supplement for such Series.
“Stage 3” means, with respect to an aircraft engine, that such aircraft engine is capable of being operated on a “Stage 3 airplane,” as defined in 14 CFR §36.1(f)(6), in compliance with the Stage 3 noise levels prescribed in section B36.5(c) of appendix B to 14 CFR part 36.
“Stated Expiration Date” means, with respect to the Senior Liquidity Facility, the then applicable Expiry Date, as defined in such Senior Liquidity Facility.
“Stated Interest” means, with respect to any Note, the amount of interest payable on such Note at the Stated Rate set forth in the related Supplement.
“Stated Interest Amount” means, with respect to any Series of Notes, that amount of Stated Interest due and payable on such Series of Notes on a Payment Date, including any Stated Interest due and payable on a prior Payment Date that was not paid on such Payment Date.
“Stated Interest Shortfall” has the meaning given to such term in Section 3.13(d)(i) hereof.
“Stated Rate” means, as specified in the related Supplement, the rate of interest payable on a specific Note.
“Stock” means all shares of capital stock, all beneficial interests in trusts, all ordinary shares and preferred shares and any options, warrants and other rights to acquire such shares or interests.
“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity are at the
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time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.
“Substitute Engine” means any Engine that is to be transferred to a WEST Group Member in place of any Remaining Engine, to the extent authorized by the applicable Acquisition Agreement.
“Supplement” means any supplement to this Indenture which sets forth the Principal Terms and other terms and conditions of the Series of Notes issued thereunder.
“Supplemental Interest” means, with respect to any Series of Notes, that portion (if any) of the interest payable on such Notes that has been designated as such in the related Supplement.
“Supplemental Interest Amount” means, with respect to any Series of Notes, that amount of Supplemental Interest due and payable on such Series of Note on a Payment Date, including any Supplemental Interest due and payable on a prior Payment Date that was not paid on such prior Payment Date.
“Supplemental Payment Allocation Rules” has the meaning given to such term in Section 3.15(c) hereof.
“Supplier” means the Person that supplies or installs a Mandatory Engine Modification or Discretionary Engine Modification and to whom payment for the Purchase Price of such Mandatory Engine Modification or Discretionary Engine Modification is to be made.
“Tax” and “Taxes” mean any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, loss, damage, liability, expense, additions to tax and additional amounts or costs incurred or imposed with respect thereto) imposed or otherwise assessed by the United States or by any state, local or foreign government (or any subdivision or agency thereof) or other taxing authority, including, without limitation: taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth and similar charges; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, taxes on goods and services, gains taxes, license, registration and documentation fees, customs duties, tariffs, and similar charges.
“Tax Redemption” has the meaning given to such term in Section 3.16(c) hereof.
“Term Note” means each Note issued as part of a Term Series.
“Term Series” means a Series of Notes in which funds representing the full Outstanding Principal Balance of such Notes are fully disbursed to WEST on the Issuance Date of such Series.
“Third Party Event” has the meaning given to such term in Section 5.04 hereof.
“Third Remaining Engine” has the meaning given to such term in the Asset Transfer Agreement.
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“Threshold Rating” means either (x) a short-term unsecured debt rating of at least “F1” from Fitch and “P1” from Moody’s or (y), to the extent such short term rating is unavailable, a long-term unsecured debt rating of at least “A-” from Fitch and “A3” from Moody’s.
“Total Loss” means, with respect to any Engine (a) if the same is subject to a Lease, an Event of Loss (as defined in such Lease) or the like (however so defined); or (b) if the same is not subject to a Lease, (i) its actual, constructive, compromised, arranged or agreed total loss, (ii) its destruction, damage beyond economic repair or being rendered permanently unfit for normal use for any reason whatsoever, (iii) its requisition for title, confiscation, restraint, detention, forfeiture or any compulsory acquisition or seizure or requisition for hire (other than a requisition for hire for a temporary period not exceeding 180 days) by or under the order of any government (whether civil, military or de facto) or public or local authority or (iv) its hijacking, theft or disappearance, resulting in loss of possession by the owner or operator thereof for a period of ninety (90) consecutive days or longer. A Total Loss with respect to any Engine shall be deemed to occur on the date on which such Total Loss is deemed pursuant to the relevant Lease to have occurred or, if such Lease does not so deem or the relevant Engine is not subject to a Lease, (A) in the case of an actual total loss or destruction, damage beyond economic repair or being rendered permanently unfit, the date on which such loss, destruction, damage or rendering occurs (or, if the date of loss or destruction is not known, the date on which the relevant Engine was last heard of); (B) in the case of a constructive, compromised, arranged or agreed total loss, the earlier of (1) the date 30 days after the date on which notice claiming such total loss is issued to the insurers or brokers and (2) the date on which such loss is agreed or compromised by the insurers; (C) in the case of requisition for title, confiscation, restraint, detention, forfeiture, compulsory acquisition or seizure, the date on which the same takes effect; (D) in the case of a requisition for hire, the expiration of a period of 180 days from the date on which such requisition commenced (or, if earlier, the date upon which insurers make payment on the basis of a Total Loss); or (E) in the case of clause (iv) above, the final day of the period of 90 consecutive days referred to therein.
“Treasury Yield” means, with respect to any Redemption of each Additional Series of Notes that are Fixed Rate Notes (unless an alternative calculation is provided by the terms thereof), on any Payment Date, the interest rate (expressed as a semiannual decimal and, in the case of United States Treasury bills, converted to a bond equivalent yield) determined on the fourth Business Day prior to such Payment Date to be the per annum rate equal to the semiannual yield to maturity for United States Treasury securities maturing on the Average Life Date of such class and trading in the public securities markets either (i) as determined by interpolation between the most recent weekly average yield to maturity for two series of United States Treasury securities trading in the public securities markets, (A) one maturing as close as possible to, but earlier than, the Average Life Date of such class and (B) the other maturing as close as possible to, but later than, the Average Life Date of such class in each case as published in the most recent H.15 (519) or (ii) if a weekly average yield to maturity for United States Treasury securities maturing on the Average Life Date of such class is reported in the most recent H.15 (519), such weekly average yield to maturity as published in such H.15 (519). For the purposes of this definition, “H.15 (519)” means the weekly statistical release designated as such, or any successor publication, published by the Board of Governors of the Federal Reserve System, and the most recent H.15 (519) is the H.15 (519) published prior to the close of business on the fourth Business Day prior to the applicable Payment Date.
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“Trust Agreement” means that certain Trust Agreement, dated the Initial Closing Date, between the Owner Trustee and Willis, as Depositor.
“Trust Collateral” has the meaning given to such term in the Security Trust Agreement.
“Trustee Resolution” means a resolution adopted by a majority of the Controlling Trustees, evidenced by a certified copy of such resolution signed by a Signatory Trustee.
“UCC” means the Uniform Commercial Code as enacted in the State of New York.
“United States Person” and “U.S. Person” have the meanings given to such terms in Regulation S under the Securities Act.
“Unused Commitment” means, as of any date in respect of the Holder of any Warehouse Notes, the excess of the Maximum Commitment of such Holder in respect of such Warehouse Notes over the Outstanding Principal Balance of such Warehouse Notes.
“Unrestricted Book-Entry Note” shall have the meaning given to such term in Section 2.01(e)(iv) hereof, the form of which shall be substantially in the form of the applicable Note Form for such Note, with the legends required by Section 2.02 for an Unrestricted Book-Entry Note inscribed thereon and with such changes therein and such additional information as may be specified in the Supplement pursuant to which such Note is issued.
“U.S. GAAP” means generally accepted accounting principles in the United States, as in effect from time to time.
“U.S. Government Obligations” has the meaning given to such term in Section 12.02(a) hereof.
“UT Finance” means UT Finance Corporation, a Delaware corporation.
“Warehouse Loan” means a Loan the proceeds of which are to be deposited in the Engine Acquisition Account pursuant to Section 3.18 hereof and used to fund the acquisition of Additional Engines and/or the cost of Discretionary Engine Modifications.
“Warehouse Loan Agreement” means, with respect to any Series of Warehouse Notes, the note purchase agreement or other agreement pursuant to which the Holders of such Warehouse Notes agree to make Loans.
“Warehouse Note” means any Note issued as part of a Warehouse Series.
“Warehouse Note Redemption” has the meaning given to such term in Section 3.16(d) hereof.
“Warehouse Series” means a Series of Notes pursuant to which WEST will, upon meeting certain requirements, be entitled to request Loans from the Holders of such Notes up to Maximum Principal Balance during the period commencing on the Series Issuance Date of such
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Series and ending on (but excluding) the date on which a Conversion Event occurs in respect of such Series.
“WEST” has the meaning set forth in the preamble hereof.
“WEST Expenses” means, for any Payment Date, any costs directly incurred by WEST or any other WEST Group Member or incurred by the Servicer or the Administrative Agent in their performance of their obligations that are, in each case, reasonable in amount and are fairly attributable to WEST or any other WEST Group Member and their permitted activities hereunder during the related Collection Period and that are not Ordinary Course Expenses, Service Provider Fees or Liquidity Expenses. WEST Expenses include the following: (i) accounting and audit expenses, and tax preparation, filing and audit expenses; (ii) premiums for liability, casualty, fidelity, directors and officers and other insurance; (iii) directors’ and trustees’ fees and expenses, including fees and expenses of the Independent Controlling Trustee and Owner Trustee but excluding any fees to the Equity Trustees; (iv) legal fees and expenses not associated with the Engines and the Leases, including legal fees and expenses incurred in connection with the proposed issuance of any Additional Notes; (v) other professional fees, including the cost of obtaining the annual Appraisals of the Engines and the annual Maintenance Reserve Evaluation as described in Sections 5.04(d) and 5.04(e); (vi) taxes (including personal or other property taxes and all sales, value added, use and similar taxes) other than taxes assessed with respect to the ownership, use and/or operation of the Engines or that constitute Ordinary Course Expenses; (vii) taxes imposed in respect of any and all issuances of equity interests, stock exchange listing fees, registrar and transfer expenses and trustee’s fees with respect to any outstanding securities of WEST; and (viii) surveillance fees assessed by the Rating Agencies.
“WEST Funding” means WEST Engine Funding LLC, a Delaware limited liability company.
“WEST Group” means WEST, the Engine Subsidiaries (including WEST Funding), the Leasing Subsidiaries and the Engine Trusts.
“WEST Group Member” means WEST or any WEST Subsidiary.
“WEST Subsidiary” means either or both, as the context may require, of (i) each Subsidiary of WEST existing on the Initial Closing Date and listed on Schedule 1, Schedule 2-1, Schedule 2-2 and Schedule 3 to this Indenture, and (ii) each other direct or indirect Subsidiary of WEST (including each Engine Trust of which WEST or a Subsidiary thereof is the holder of a beneficial interest).
“Willis” means Willis Lease Finance Corporation, a Delaware corporation.
Section 1.02 Rules of Construction.
Unless the context otherwise requires:
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Section 1.03 Compliance Certificates and Opinions.
Upon any application or request by WEST to the Indenture Trustee to take any action under any provision of this Indenture, WEST shall furnish to the Indenture Trustee an Officer’s Certificate stating that, in the opinion of the signers thereof, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture or any indenture supplemental hereto shall include:
(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions in this Indenture relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
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(c) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.04 Acts of Noteholders.
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ARTICLE II
THE NOTES
Section 2.01 Authorization of Notes; Amount of Outstanding Principal Balance; Terms; Form; Execution and Delivery.
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Section 2.02 Restrictive Legends.
Except as specified in Section 2.12(f) hereof, each 144A Book-Entry Note, each Unrestricted Book-Entry Note and each Definitive Note issued in reliance on Section 4(2) of the Securities Act (and all Notes issued in exchange therefor or upon registration of transfer or substitution thereof) shall bear the following legend on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR WITH ANY SECURITIES REGULATORY AUTHORITY IN ANY JURISDICTION AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”) OR (C) IT IS NOT
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A U.S. PERSON (WITHIN THE MEANING OF REGULATION S) AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT BEFORE TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS NOTE AND THE LAST DATE THAT WILLIS ENGINE SECURITIZATION TRUST, A DELAWARE STATUTORY TRUST (“WEST”), OR ANY OF ITS AFFILIATES OWNED THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO WEST OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE INDENTURE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE INDENTURE TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO WEST THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH OF CASES (A) THROUGH (F) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE IN THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TWO-YEAR PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE ATTACHED HERETO AND SUBMIT SUCH TRANSFER NOTICE TO THE INDENTURE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE TRANSFER IS PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE INDENTURE TRUSTEE AND WEST SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE INDENTURE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Book-Entry Note shall also bear the following legend on the face thereof:
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UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO WEST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS BOOK-ENTRY NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS BOOK-ENTRY NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.12 OF THE INDENTURE.
Each Regulation S Temporary Book-Entry Note shall bear the following legend on the face thereof:
THIS NOTE IS A REGULATION S TEMPORARY BOOK-ENTRY NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER AND IS SUBJECT TO RESTRICTIONS ON THE TRANSFER AND EXCHANGE THEREOF AND ON THE PAYMENT OF INTEREST THEREON AS SPECIFIED IN THE INDENTURE.
Section 2.03 Note Registrar and Paying Agent
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Section 2.04 Paying Agent to Hold Money in Trust.
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Section 2.05 Method of Payment.
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Section 2.06 Minimum Denomination.
Unless otherwise set forth in the Supplement for a Series, each Note shall be issued in minimum denominations of $100,000 and integral multiples of $1,000 in excess thereof.
Section 2.07 Exchange Option.
If the holder of a beneficial interest in an Unrestricted Book-Entry Note deposited with DTC wishes at any time to exchange its interest in the Unrestricted Book-Entry Note, or to transfer its interest in the Unrestricted Book-Entry Note to a Person who wishes to take delivery thereof in the form of an interest in the 144A Book-Entry Note, the holder may, subject to the rules and procedures of Euroclear or Clearstream and DTC, as the case may be, give directions for the Indenture Trustee and Note Registrar to exchange or cause the exchange or transfer or cause the transfer of the interest for an equivalent beneficial interest in the 144A Book-Entry Note. Upon receipt by the Indenture Trustee and Note Registrar of instructions from Euroclear or Clearstream (based on instructions from depositaries for Euroclear and Clearstream) or from a DTC Participant, as applicable, or DTC, as the case may be, directing the Indenture Trustee and Note Registrar to credit or cause to be credited a beneficial interest in the 144A Book-Entry Note equal to the beneficial interest in the Unrestricted Book-Entry Note to be exchanged or transferred (such instructions to contain information regarding the DTC Participant account to be credited with the increase, and, with respect to an exchange or transfer of an interest in the Unrestricted Book-Entry Note, information regarding the DTC Participant account to be debited with the decrease), the Indenture Trustee and Note Registrar shall instruct DTC to reduce the Unrestricted Book-Entry Note by the aggregate principal amount of the beneficial interest in the Unrestricted Book-Entry Note to be exchanged or transferred, and the Indenture Trustee shall instruct DTC, concurrently with the reduction, to increase the principal amount of the 144A Book-Entry Note by the aggregate principal amount of the beneficial interest in the Unrestricted Book-Entry Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in the instructions a beneficial interest in the 144A Book-Entry Note equal to the reduction in the principal amount of the Unrestricted Book-Entry Note.
If a holder of a beneficial interest in the 144A Book-Entry Note wishes at any time to exchange its interest in the 144A Book-Entry Note for an interest in a Regulation S Book-Entry Note, or to transfer its interest in the 144A Book-Entry Note to a Person who wishes to take delivery thereof in the form of an interest in the Regulation S Book-Entry Note, the holder may, subject to the rules and procedures of DTC, give directions for the Indenture Trustee and Note Registrar to exchange or cause the exchange or transfer or cause the transfer of the interest for an equivalent beneficial interest in the Regulation S Book-Entry Note. Upon receipt by the Indenture Trustee and Note Registrar of (a) instructions given in accordance with DTC’s procedures from a DTC Participant directing the Indenture Trustee and Note Registrar to credit or cause to be credited a beneficial interest in the Regulation S Book-Entry Note in an amount equal to the beneficial interest in the 144A Book-Entry Note to be exchanged or transferred, (b) a written order given in accordance with DTC’s procedures containing information regarding the account of the depositaries for Euroclear or Clearstream or another Clearing Agency Participant,
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as the case may be, to be credited with the increase and the name of the account and (c) certificates in the forms of Exhibits C-5 and C-7 hereto, respectively, given by the Noteholder and the proposed transferee of the interest, the Indenture Trustee and Note Registrar shall instruct DTC to reduce the 144A Book-Entry Note by the aggregate principal amount of the beneficial interest in the 144A Book-Entry Note to be so exchanged or transferred and the Indenture Trustee and Note Registrar shall instruct DTC, concurrently with the reduction, to increase the principal amount of the Regulation S Book-Entry Note by the aggregate principal amount of the beneficial interest in the 144A Book-Entry Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in the instructions a beneficial interest in the Regulation S Book-Entry Note equal to the reduction in the principal amount of the 144A Book-Entry Note.
Notwithstanding anything to the contrary herein, an Initial Purchaser may exchange beneficial interests in the Regulation S Temporary Book-Entry Note held by it for interests in the 144A Book-Entry Note only after delivery by the Initial Purchaser of instructions to DTC for the exchange, substantially in the form of Exhibit C-6 hereto. Upon receipt of the instructions provided in the preceding sentence, the Indenture Trustee and Note Registrar shall instruct DTC to reduce the principal amount of the Regulation S Temporary Book-Entry Note to be so transferred and shall instruct DTC to increase the principal amount of the 144A Book-Entry Note and credit or cause to be credited to the account of the placement agent a beneficial interest in the 144A Book-Entry Note having a principal amount equal to the amount by which the principal amount of the Regulation S Temporary Book-Entry Note was reduced upon the transfer pursuant to the instructions provided in the first sentence of this paragraph.
If a Book-Entry Note is exchanged for a Definitive Note, the Notes may be exchanged or transferred for one another only in accordance with such procedures as are substantially consistent with the provisions of the three immediately preceding paragraphs (including the certification requirements intended to ensure that the exchanges or transfers comply with Rule 144 or Regulation S, as the case may be) and as may be from time to time adopted by the Indenture Trustee.
Section 2.08 Mutilated, Destroyed, Lost or Stolen Notes.
If any Note shall become mutilated, destroyed, lost or stolen, WEST shall, upon the written request of the Holder thereof and presentation of the Note or satisfactory evidence of destruction, loss or theft thereof to the Indenture Trustee or Note Registrar, issue, and the Indenture Trustee shall authenticate and the Indenture Trustee or Note Registrar shall deliver in exchange therefor or in replacement thereof, a new Note of the same Series, payable to such Holder in the same principal amount, of the same maturity, with the same payment schedule, bearing the same interest rate and dated the date of its authentication. If the Note being replaced has become mutilated, such Note shall be surrendered to the Indenture Trustee or a Note Registrar and forwarded to WEST by the Indenture Trustee or such Note Registrar. If the Note being replaced has been destroyed, lost or stolen, the Holder thereof shall furnish to WEST, the Indenture Trustee or a Note Registrar (i) such security or indemnity as may be required by them to save WEST, the Indenture Trustee and such Note Registrar harmless and (ii) evidence satisfactory to WEST, the Indenture Trustee and such Note Registrar of the destruction, loss or theft of such Note and of the ownership thereof, provided that the requirements of this sentence
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with respect to any Holder that is a QIB shall be satisfied by delivery of an indemnity of such Holder in form and substance satisfactory to the Indenture Trustee and an affidavit of such Holder as to the destruction, loss or theft. The Noteholders will be required to pay any tax or other governmental charge imposed in connection with such exchange or replacement and any other expenses (including the fees and expenses of the Indenture Trustee and any Note Registrar) connected therewith.
Section 2.09 Payments of Transfer Taxes.
Upon the transfer of any Note or Notes pursuant to Section 2.07 hereof, WEST or the Indenture Trustee may require from the party requesting such new Note or Notes payment of a sum to reimburse WEST or the Indenture Trustee for, or to provide funds for the payment of, any transfer tax or similar governmental charge payable in connection therewith.
Section 2.10 Additional Notes.
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Upon satisfaction of the above conditions, the Indenture Trustee shall execute the Supplement and authenticate and deliver the Notes of such Series.
Section 2.11 Book-Entry Registration.
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None of WEST, the Note Registrar, the Paying Agent or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such registration instructions. Upon the issuance of Definitive Notes of such Series, the Indenture Trustee shall recognize the Persons in whose name the Definitive Notes are registered in the Register as Noteholders hereunder. Neither WEST nor the
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Indenture Trustee shall be liable if the Indenture Trustee or WEST is unable to locate a qualified successor DTC.
Definitive Notes of any Series will be freely transferable and exchangeable for Definitive Notes of the same Series at the office of the Indenture Trustee or the office of a Note Registrar upon compliance with the requirements set forth herein. In the case of a transfer of only part of a holding of Definitive Notes, a new Definitive Note shall be issued to the transferee in respect of the part transferred and a new Definitive Note in respect of the balance of the holding not transferred shall be issued to the transferor and may be obtained at the office of the applicable Note Registrar.
Section 2.12 Special Transfer Provisions.
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Section 2.13 Temporary Definitive Notes.
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Section 2.14 Statements to Noteholders.
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Section 2.15 CUSIP, CINS AND ISIN Numbers.
WEST in issuing the Notes may use “CUSIP”, “CINS”, “ISIN” or other identification numbers (if then generally in use), and if so, the Indenture Trustee shall use CUSIP numbers, CINS numbers, ISIN numbers or other identification numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders; provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption or exchange and that reliance may be placed only on the other identification numbers printed on the Notes; provided further, that failure to use “CUSIP”, “CINS”, “ISIN” or other identification numbers in any notice of redemption or exchange shall not affect the validity or sufficiency of such notice.
Section 2.16 Debt Treatment of Notes.
The parties hereto agree, and the holders of the Notes by their purchase thereof shall be deemed to have agreed, to treat the Notes as debt for U.S. federal income tax purposes.
ARTICLE III
ACCOUNTS; PRIORITY OF PAYMENTS
Section 3.01 Establishment of Accounts; Investments.
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Section 3.02 Collections Account.
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Section 3.03 Engine Acquisition Account.
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Section 3.04 Senior Restricted Cash Account.
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Section 3.05 Junior Restricted Cash Account.
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Section 3.06 Engine Reserve Account.
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Section 3.07 Security Deposit/Lessee-Funded Account.
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Section 3.08 Expense Account.
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Section 3.09 Series Accounts.
Section 3.10 Redemption/Defeasance Account.
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Section 3.11 Engine Replacement Account.
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Section 3.12 Hedge Payment Account.
Section 3.13 Calculations.
(a) As soon as reasonably practicable after each Determination Date, but in no event later than 12:00 noon (New York City time) on the third Business Day prior to the immediately succeeding Payment Date, WEST shall cause the Administrative Agent, based on information known to it or Relevant Information provided to it, determine the amount of Collections received during the Collection Period ending on such Determination Date (including the amount of any Investment Earnings on the Balances in the Collections Account, if any, as of such Determination Date) and shall calculate the following amounts:
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provided that, if the Administrative Agent has not received all of the Relevant Information for such Payment Date, the Administrative Agent shall make reasonable assumptions for purposes of the calculations contemplated by this Section 3.13.
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Section 3.14 Payment Date Distributions from the Collections Account.
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Section 3.15 Allocation Rules.
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Section 3.16 Certain Redemptions.
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then WEST shall inform the Indenture Trustee in writing at such time of any such requirement or imposition and shall use its best efforts to avoid the effect of the same; subject to WEST obtaining the consent of the Control Party for each affected Series of Notes and the Senior Liquidity Provider, in the case of the Series A Notes (other than the Series 2005-A1 Term Notes) and a Rating Agency Confirmation with respect to any proposed action. If, after using its best efforts to avoid the adverse effect described above, WEST or any of its Subsidiaries has not avoided such effects, WEST may, at its election, redeem the Notes to which such withholding or deduction applies on any Payment Date in whole at the Outstanding Principal Balance thereof plus accrued and unpaid interest but without premium on any Payment Date (a “Tax Redemption”). However, any Tax Redemption may not occur more than thirty (30) days prior to such time as the requirement or imposition described in (i) or (ii) above is to become effective. In the event of any Tax Redemption of part of a Series of Notes, such Tax Redemption shall be deemed an Optional Redemption for purposes of calculating the adjustments in the Targeted Principal Balances on the Redemption Date and on subsequent Payment Dates in accordance with Section 3.19 hereof.
Section 3.17 Procedure for Redemptions.
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Section 3.18 Collections Loans; Warehouse Loan.
The Supplements for the Warehouse Notes shall provide that all Loans under the Warehouse Notes shall be deposited in the Collections Account. If permitted under the related
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Supplement for any Series A Warehouse Notes or Series B Warehouse Notes, the Administrative Agent may direct the Indenture Trustee, in writing, to apply the proceeds of the Loan made on any Funding Date that is a Payment Date in respect of such Warehouse Notes as a Collections Loan and to retain any such Collections Loan in the Collections Account for inclusion in the Available Collections Amount on such Payment Date on which such Loan is made, subject to satisfaction of the conditions under each such Supplement for such a Collections Loan. Except to the extent that any Loans made in respect of Warehouse Notes constitute Collections Loans in accordance with the preceding sentence, such Loans shall constitute Warehouse Loans, and the Indenture Trustee, as directed in writing by the Administrative Agent, shall deposit any such Warehouse Loan in the Engine Acquisition Account to be held in and disbursed from the Engine Acquisition Account in accordance with Section 3.03 hereof.
Section 3.19 Adjustments in Targeted Principal Balances.
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Section 3.20 Senior Liquidity Facility.
The Indenture Trustee shall make drawings on the Senior Liquidity Facility as provided in this Section 3.20.
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ARTICLE IV
DEFAULT AND REMEDIES
Section 4.01 Events of Default.
Each of the following events shall constitute an “Event of Default” hereunder, and each such Event of Default shall be deemed to exist and continue so long as, but only so long as, it shall not have been remedied:
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Section 4.02 Remedies Upon Event of Default.
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Section 4.03 Limitation on Suits.
Without limiting the provisions of Section 4.11, no Holder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Security Trust Agreement or the Notes, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
No one or more Noteholders may use this Indenture to affect, disturb or prejudice the rights of another Noteholder or to obtain or seek to obtain any preference or priority not otherwise created by this Indenture and the terms of the Notes over any other Holder or to enforce any right under this Indenture, except in the manner herein provided.
Section 4.04 Waiver of Existing Defaults.
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Section 4.05 Restoration of Rights and Remedies.
If the Indenture Trustee or any Holder of Series A Notes has instituted any proceeding to enforce any right or remedy under this Indenture, and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Indenture Trustee or such Holder, then in every such case WEST, the Indenture Trustee and the Noteholders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such proceeding has been instituted.
Section 4.06 Remedies Cumulative.
Each and every right, power and remedy herein given to the Indenture Trustee (or the Control Parties or the Requisite Majority) specifically or otherwise in this Indenture shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Indenture Trustee (or the Control Parties or the Requisite Majority), and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. No delay or omission by the Indenture Trustee (or the Control Parties or the Requisite Majority) in the exercise of any right, remedy or power or in the pursuance of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any Default on the part of WEST or to be an acquiescence.
Section 4.07 Authority of Courts Not Required.
The parties hereto agree that, to the greatest extent permitted by law, the Indenture Trustee shall not be obliged or required to seek or obtain the authority of, or any judgment or order of, the courts of any jurisdiction in order to exercise any of its rights, powers and remedies under this Indenture, and the parties hereby waive any such requirement to the greatest extent permitted by law.
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Section 4.08 Rights of Noteholders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Noteholder to receive payment of interest on, principal of, or premium, if any, on its Note on or after the respective due dates therefor expressed in such Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Noteholder.
Section 4.09 Indenture Trustee May File Proofs of Claim.
The Indenture Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee and of any Noteholder allowed in any judicial proceedings relating to any obligor on the Notes, its creditors or its property.
Section 4.10 Undertaking for Costs.
All parties to this Indenture agree, and each Noteholder by its acceptance thereof shall be deemed to have agreed, that in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Indenture Trustee for any action taken or omitted by it as the Indenture Trustee, a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defense made by the party litigant. This Section 4.10 does not apply to a suit instituted by the Indenture Trustee, a suit instituted by any Noteholder for the enforcement of the payment of interest, principal, or premium, if any, on his Note on or after the respective due dates expressed in such Note, or a suit by a Noteholder or Noteholders of more than 10% of the Outstanding Principal Balance of any Series of the Notes.
Section 4.11 Control by Noteholders.
Subject to Sections 4.01 and 4.03 hereof and to the rights of the Control Party hereunder, the Noteholders holding Notes of any Series of not less than 25% of the Outstanding Principal Balance of Notes of such Series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred on the Indenture Trustee under this Indenture; provided that, for such Series:
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Section 4.12 Purchase Rights of the Series B Noteholders.
Upon the occurrence of an Event of Default, whether or not the Control Parties for the Senior Series have delivered a Collateral Liquidation Notice, one or more of the Holders of the Series B Notes (each, a “Series A Note Purchaser”) may elect to purchase all, but not less than all, of the Series A Notes, for a purchase price equal to the Outstanding Principal Balance of the Series A Notes and all accrued and unpaid interest and premium thereon, if any. Such right shall be exercised by giving the Indenture Trustee written notice of the intent to purchase the Series A Notes (a “Purchase Option Notice”) and the date on which such purchase is to be consummated (the “Series A Note Purchase Date”), which shall be not less than ten (10) Business Days nor more than twenty (20) Business Days after the date of the Purchase Option Notice. If there is more than one Series A Note Purchaser, the Series A Notes shall be allocated between or among the Series A Note Purchasers in proportion to the Outstanding Principal Balance of their Series B Notes or on such other basis as such Holders of Series B Notes may agree, and the Series A Note Purchase Date shall be the date specified in the related Purchase Option Notice delivered by such Series A Note Purchasers. The Indenture Trustee shall promptly deliver a copy of each Purchase Option Notice to the Holders of the Series A Notes, WEST, the Servicer and the Administrative Agent. On the date specified in the Purchase Option Notice, the Series A Noteholders shall transfer the Series A Notes to the Series A Note Purchasers upon the tender to them of the purchase price described in this Section 4.12. If any Series A Note Purchaser fails to consummate the purchase of the Series A Notes, such Holder shall be deemed to have irrevocably waived its rights to purchase the Series A Notes, and, if there are multiple Series A Note Purchasers, the remaining Series A Note Purchasers must tender the purchase price allocable to the portion of the Series A Notes allocable to such defaulting Series A Note Purchaser, in such manner as they shall agree, or all such Series A Notes Purchasers shall be deemed to have cancelled the purchase of the Series A Notes pursuant to such Purchase Option Notice. The non-defaulting Series A Note Purchasers may elect to defer the Series A Note Purchase Date by not more than three (3) Business Days for purposes of arranging such tender.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.01 Representations and Warranties.
WEST represents and warrants to the Indenture Trustee as of the Initial Closing Date and each other Closing Date thereafter as follows:
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The representations and warranties made by WEST and each WEST Group Member in any of the other Related Documents are true and accurate as of the date made.
Section 5.02 General Covenants.
WEST covenants with the Indenture Trustee as follows:
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Each Additional Series of Notes issued pursuant to clause (ii), clause (iii) or clause (iv) above shall also satisfy the following conditions:
(x) Such Additional Series of Notes (1) shall be amortized on a level basis over a period of not less than thirteen (13) years for Scheduled Principal Payment Amounts on any Series A Notes, fifteen (15) years for Scheduled Principal Payment Amounts on any Series B Notes and twenty (20) years for Minimum Principal Payment Amounts, or (2) if not amortized on a level basis, (i) shall have a weighted average life that is less than the Remaining Weighted Average Life of any Series of Notes then Outstanding and (ii) shall provide for Minimum Principal Payment Amounts and Scheduled Principal Payment Amounts during the period of such Remaining Weighted Average Life that are more than the Minimum Principal Payment Amounts and Scheduled Principal Payment Amounts, respectively, that would be payable under the level amortization described in clause (1), provided that (A) the foregoing requirements shall not apply to any Series of Additional Notes that are Warehouse Notes prior to the occurrence of a Conversion Event with respect to such Additional Notes and (B) satisfaction of the foregoing requirements with respect to any Series of Additional Notes that are Warehouse Notes shall be determined as of the date of a Conversion Event with respect to such Warehouse Notes; and
(y) as of the Series Issuance Date for such Additional Series, the percentage of Off-Production Engines in the Portfolio (measured by Adjusted Borrowing Value) shall not exceed *** during the period beginning on the Initial Closing Date and ending on the fourth (4th) anniversary of the Initial Closing Date, *** during the period beginning on (but excluding) the fourth (4th) anniversary of the Initial Closing Date and ending on the tenth (10th) anniversary of the Initial Closing Date, and *** thereafter.
*** Confidential information omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
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The term “investment” for purposes of the above restriction means any loan or advance to a Person, any purchase or other acquisition of any Stock or Indebtedness of such Person, any capital contribution to such Person or any other investment in such Person.
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Section 5.03 Portfolio Covenants.
WEST covenants with the Indenture Trustee as follows:
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*** Confidential information omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
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*** Confidential information omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
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WEST shall not permit any WEST Group Member to (i) lease (including any renewal or extension of any existing Lease) any Engine to any Lessee habitually based or domiciled in any of the jurisdictions set forth as “Prohibited” in clause (a) of the PRI Guidelines, as amended from time to time upon the receipt of a Rating Agency Confirmation (each such jurisdiction, a “Prohibited Country”), (ii) enter into any Lease (including any renewal or extension of any existing Lease) that expressly permits the Lessee to sublease an Engine to a sublessee habitually based or domiciled in a Prohibited Country, or (iii) consent to a sublease of an Engine to a sublessee habitually based or domiciled in a Prohibited Country.
Section 5.04 Operating Covenants.
WEST covenants with the Indenture Trustee as follows, provided that any of the following covenants with respect to the Engines shall not be deemed to have been breached by virtue of any act or omission of a Lessee or sub-lessee, or of any Person which has possession of an Engine for the purpose of repairs, maintenance, modification or storage, or by virtue of any
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requisition, seizure, or confiscation of an Engine (other than seizure or confiscation arising from a breach by WEST or any other WEST Group Member of such covenant) (each, a “Third Party Event”), so long as (i) neither WEST nor any other WEST Group Member consents or has consented to such Third Party Event; and (ii) WEST or any other WEST Group Member which is the lessor or owner of such Engine promptly and diligently takes such commercially reasonable actions as a leading international engine operating lessor would reasonably take in respect of such Third Party Event, including, as deemed appropriate (taking into account, among other things, the laws of the jurisdiction in which such Engine is located), seeking to compel such Lessee or other relevant Person to remedy such Third Party Event or seeking to repossess the relevant Engine:
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In determining the amount of insurance required to be maintained by this Section 5.04(g), WEST may take into account any indemnification from, or insurance provided by, any governmental, supranational or inter-governmental authority or agency (other than, with respect to PRI, any governmental authority or agency of any jurisdiction for which PRI must be obtained), the sovereign foreign currency debt of which is rated at least AA, or the equivalent, by at least one of the Rating Agencies, against any risk with respect to an Engine at least in an amount which, when added to the amount of insurance against such risk maintained by WEST (or which WEST has caused to be maintained), shall be at least equal to the amount of insurance against such risk otherwise required by this Section 5.04(g) (taking into account self-insurance permitted by this Section 5.04(g)). Any such indemnification or insurance provided by such government shall provide substantially similar protection as the insurance required by this Section 5.04g). WEST will not be required to maintain (or to cause to be maintained) any insurance otherwise required hereunder to the extent that such insurance is not generally available in the relevant insurance market at commercially reasonable rates from time to time.
Section 6.01 Acceptance of Trusts and Duties.
The duties and responsibilities of the Indenture Trustee shall be as expressly set forth herein, and no implied covenants or obligations shall be read into the Indenture against the Indenture Trustee. The Indenture Trustee accepts the trusts hereby created and applicable to it and agrees to perform the same but only upon the terms of this Indenture and agrees to receive and disburse all moneys received by it in accordance with the terms hereof. The Indenture Trustee in its individual capacity shall not be answerable or accountable under any circumstances, except for its own willful misconduct or negligence or bad faith or breach of its representations, warranties and/or covenants and the Indenture Trustee shall not be liable for any action or inaction of WEST or any other parties to any of the Related Documents.
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Section 6.02 Absence of Duties.
The Indenture Trustee shall have no duty to ascertain or inquire as to the performance or observance of any covenants, conditions or agreements on the part of any Lessee. Notwithstanding the foregoing, the Indenture Trustee, upon written request, shall furnish to any Noteholder, promptly upon receipt thereof, duplicates or copies of all reports, Notices, requests, demands, certificates, financial statements and other instruments furnished to the Indenture Trustee under this Indenture.
Section 6.03 Representations or Warranties.
The Indenture Trustee does not make and shall not be deemed to have made any representation or warranty as to the validity, legality or enforceability of this Indenture, the Notes, any other securities or any other document or instrument or as to the correctness of any statement contained in any thereof, except that the Indenture Trustee in its individual capacity hereby represents and warrants (i) that each such specified document to which it is a party has been or will be duly executed and delivered by one of its officers who is and will be duly authorized to execute and deliver such document on its behalf, and (ii) this Indenture is the legal, valid and binding obligation of Deutsche Bank Trust Company Americas, enforceable against Deutsche Bank Trust Company Americas in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally.
Section 6.04 Reliance; Agents; Advice of Counsel.
The Indenture Trustee shall incur no liability to anyone acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper believed by it to be genuine and believed by it to be signed by the proper party or parties. The Indenture Trustee may accept a copy of a resolution of, in the case of WEST, the Controlling Trustees and, in the case of any other party to any Related Document, the governing body of such Person, certified in an accompanying Officer’s Certificate as duly adopted and in full force and effect, as conclusive evidence that such resolution has been duly adopted and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically described herein, the Indenture Trustee shall be entitled to receive and may for all purposes hereof conclusively rely on a certificate, signed by an officer of any duly authorized Person, as to such fact or matter, and such certificate shall constitute full protection to the Indenture Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon. The Indenture Trustee shall furnish to the Servicer or the Administrative Agent upon written request such information and copies of such documents as the Indenture Trustee may have and as are necessary for the Servicer or the Administrative Agent to perform its duties under Articles II and III hereof. The Indenture Trustee shall assume, and shall be fully protected in assuming, that WEST is authorized by its constitutional documents to enter into this Indenture and to take all action permitted to be taken by it pursuant to the provisions hereof, and shall not inquire into the authorization of WEST with respect thereto.
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The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 4.11 hereof relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Indenture.
The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, attorney, custodian or nominee appointed with due care by it hereunder.
The Indenture Trustee may consult with counsel as to any matter relating to this Indenture and any Opinion of Counsel or any advice of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel.
The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Holders, pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby.
The Indenture Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Indenture shall in any event require the Indenture Trustee to perform, or be responsible or liable for the manner of performance of, any obligations of WEST or the Administrative Agent under this Indenture or any of the Related Documents.
The Indenture Trustee shall not be liable for any losses or Taxes (except for Taxes relating to any compensation, fees or commissions of any entity acting in its capacity as Indenture Trustee hereunder) or in connection with the selection of Permitted Investments or for any investment losses resulting from Permitted Investments.
When the Indenture Trustee incurs expenses or renders services in connection with an Acceleration Default such expenses (including the fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors’ rights generally.
The Indenture Trustee shall not be charged with knowledge of an Event of Default unless a Responsible Officer of the Indenture Trustee obtains actual knowledge of such event or the Indenture Trustee receives written notice of such event from WEST, the Administrative Agent or
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Noteholders owning Notes aggregating not less than 10% of the outstanding principal amount of the Notes.
The Indenture Trustee shall have no duty to monitor the performance of WEST, the Servicer, the Administrative Agent or any other party to the Related Documents, nor shall it have any liability in connection with the malfeasance or nonfeasance by such parties. The Indenture Trustee shall have no liability in connection with compliance by WEST, the Servicer, the Administrative Agent or any Lessee under a Lease with statutory or regulatory requirements related to any Engine or any Lease. The Indenture Trustee shall not make or be deemed to have made any representations or warranties with respect to any Engine or any Lease or the validity or sufficiency of any assignment or other disposition of any Engine or any Lease.
The Indenture Trustee shall not be liable for any error of judgment reasonably made in good faith by an officer or officers of the Indenture Trustee, unless it shall be determined by a court of competent jurisdiction in a non-appealable judgment that the Indenture Trustee was grossly negligent or willfully blind in making such judgment.
Except as expressly set forth in the Related Documents, Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper document, unless any such Related Document directs the Indenture Trustee to make such investigation.
The Indenture Trustee shall have no obligation to invest and reinvest any cash held in the Accounts in the absence of timely and specific written investment direction from the Administrative Agent or as expressly provided herein or in a Supplement hereto. In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon in accordance with the Related Documents. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity in accordance with the Related Documents or by any other Person or the failure of the Administrative Agent to provide timely written investment direction.
Section 6.05 Not Acting in Individual Capacity.
The Indenture Trustee acts hereunder solely as trustee unless otherwise expressly provided; and all Persons, other than the Noteholders to the extent expressly provided in this Indenture, having any claim against the Indenture Trustee by reason of the transactions contemplated hereby shall look, subject to the lien and priorities of payment as herein provided, only to the property of WEST for payment or satisfaction thereof.
Section 6.06 No Compensation from Noteholders.
The Indenture Trustee agrees that it shall have no right against the Noteholders for any fee as compensation for its services hereunder.
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Section 6.07 Notice of Defaults.
As promptly and soon as practicable after, and in any event within thirty (30) days after, the occurrence of any Default hereunder, the Indenture Trustee shall transmit by mail to WEST, the Senior Liquidity Provider and the Noteholders holding Notes of the related Series, notice of such Default hereunder actually known to a Responsible Officer of the Indenture Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the case of a Default on the payment of the interest, principal, or premium, if any, on any Note, the Indenture Trustee shall be fully protected in withholding such notice if and so long as a trust committee of Responsible Officers of the Indenture Trustee in good faith determines that the withholding of such notice is in the interests of the Noteholders of the related Series; provided further that the Indenture Trustee shall in any event notify the Senior Liquidity Provider of any such Default.
Section 6.08 Indenture Trustee May Hold Securities.
The Indenture Trustee, any Paying Agent, the Note Registrar or any of their Affiliates or any other agent in their respective individual or any other capacity, may become the owner or pledgee of securities and, may otherwise deal with WEST with the same rights it would have if it were not the Indenture Trustee, Paying Agent, Note Registrar or such other agent.
Section 6.09 Corporate Trustee Required; Eligibility.
There shall at all times be an Indenture Trustee which shall meet the Eligibility Requirements. If such corporation publishes reports of conditions at least annually, pursuant to law or to the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 6.09, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of conditions so published. In case at any time the Indenture Trustee shall cease to be eligible in accordance with the provisions of this Section 6.09 to act as Indenture Trustee, the Indenture Trustee shall resign immediately as Indenture Trustee in the manner and with the effect specified in Section 7.01 hereof.
Section 6.10 Reports by WEST.
WEST shall furnish to the Indenture Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal accounting officer or principal financial officer of the Administrative Agent, as applicable, as to his or her knowledge of WEST’s compliance with all conditions and covenants under this Indenture (it being understood that for purposes of this Section 6.10, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture).
Section 6.11 Compensation.
WEST covenants and agrees to pay to the Indenture Trustee from time to time, and the Indenture Trustee shall be entitled to, the fees and expenses agreed in writing between WEST and the Indenture Trustee, and will further pay or reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any of the provisions hereof or any other documents
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executed in connection herewith (including the reasonable compensation and the reasonable expenses and disbursements of its counsel and of all persons not regularly in its employ).
Section 6.12 Conditions Precedent.
WEST agrees, and each Person entitled to the benefits of this Indenture, by its acceptance of such benefits, agrees that the Indenture Trustee shall not have any obligations or responsibility for, or be liable in respect of, (a) the satisfaction of the conditions precedent set forth in Schedule 5 hereto (other than to the extent such conditions expressly provide for the Indenture Trustee to be reasonably satisfied with any document or act and then only in respect of such determination by the Indenture Trustee and subject to the limitations on the liability of the Indenture Trustee in Section 6.01 hereof); (b) determining that all the conditions in Schedule 5 hereto have been satisfied; or (c) the verification of the accurateness or completeness of any certificates or representations made by any other Person in connection with the acquisition of any Additional Engines or the funding of any Discretionary Engine Modifications.
Section 7.01 Resignation and Removal of Indenture Trustee.
The Indenture Trustee may resign as to all or any of the Series of the Notes at any time without cause by giving at least sixty (60) days’ prior written notice to WEST, the Servicer, the Administrative Agent, the Senior Liquidity Provider and the Holders; provided that the Indenture Trustee shall continue to serve as Indenture Trustee until a successor has been appointed pursuant to Section 7.02 hereof. The Requisite Majority may at any time remove the Indenture Trustee as to such Series without cause by an instrument in writing delivered to WEST, the Servicer, the Administrative Agent, the Security Trustee and the Indenture Trustee being removed. In addition, WEST may remove the Indenture Trustee as to any of the Series of the Notes if: (i) such Indenture Trustee fails to comply with Section 7.02(d) hereof, (ii) such Indenture Trustee is adjudged a bankrupt or an insolvent, (iii) a receiver or public officer takes charge of such Indenture Trustee or its property or (iv) such Indenture Trustee becomes incapable of acting. References to the Indenture Trustee in this Indenture include any successor Indenture Trustee as to all or any of the Series of the Notes appointed in accordance with this Article VII.
Section 7.02 Appointment of Successor.
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Section 8.01 Indemnity.
WEST shall indemnify the Indenture Trustee (and its officers, directors, employees and agents) for, and hold it harmless from and against, any loss, liability, claim, obligation, damage, injury, penalties, actions, suits, judgments or expense (including attorney’s fees and expenses) incurred by it without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Indenture and its duties under this Indenture and the Notes, including the costs and expenses of defending itself against any claim or liability and of complying with any process served upon it or any of its officers in connection with the exercise or performance of any of its powers or duties and hold it harmless against, any loss, liability or reasonable expense incurred without negligence or bad faith on its part, arising out of or in connection with actions taken or omitted to be taken in reliance on any Officer’s Certificate furnished hereunder, or the failure to furnish any such Officers’ Certificate required to be furnished hereunder. The Indenture Trustee shall notify the Holders, WEST, the Senior Liquidity Provider and the Servicer and, in the case of any such claim in excess of 5% of the Appraised Value of the Portfolio, the Rating Agencies, promptly of any claim asserted against the Indenture Trustee for which it may seek indemnity; provided, however, that failure to provide such notice shall not invalidate any right to indemnity hereunder except to the extent WEST is prejudiced by such delay. WEST shall defend the claim and the Indenture Trustee shall cooperate in the defense unless the Indenture Trustee determines that an actual or potential conflict of interest exists, in which case the Indenture Trustee shall be entitled to retain separate counsel and WEST shall pay the reasonable fees and expenses of such counsel. WEST need not pay for any settlements made without its consent; provided that such consent shall not be unreasonably withheld. WEST need not reimburse any expense or indemnity against any loss or liability incurred by the Indenture Trustee through negligence or bad faith.
Section 8.02 Noteholders’ Indemnity.
The Indenture Trustee shall be entitled, subject to such Indenture Trustee’s duty during a default to act with the required standard of care, to be indemnified by the Holders of the applicable Series of the Notes before proceeding to exercise any right or power under this Indenture or the Administrative Agency Agreement at the request or direction of such Holders.
Section 8.03 Survival.
The provisions of Sections 8.01 and 8.02 hereof shall survive the termination of this Indenture or the earlier resignation or removal of the Indenture Trustee.
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Section 9.01 Supplemental Indentures Without the Consent of the Noteholders.
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Section 9.02 Supplemental Indentures with the Consent of Noteholders.
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Prior to the execution of any Supplement issued pursuant to this Section 9.02, WEST shall provide a written notice to each Rating Agency setting forth in general terms the substance of any such Supplement. WEST shall not amend Section 3.14 in any manner that would adversely affect any Eligible Hedge Counterparty without its prior consent. WEST shall solicit the consent of the Holders to any proposed Supplement in accordance with the first paragraph in Section 10.01.
WEST shall solicit the consent of the Senior Liquidity Provider and, if applicable, any Eligible Hedge Counterparty described in the preceding sentence to the execution of any Supplement issued pursuant to this Section 9.02 by providing a copy of the written notice sent to the Rating Agencies setting forth the substance of such Supplement. It shall not be necessary for the consent of the Senior Liquidity Provider or any Eligible Hedge Counterparty under this Section 9.02 to approve the particular form of the Supplement, but it shall be sufficient if such consent approves the substance thereof.
Section 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional terms created by, a Supplement permitted by this Article IX or the modification thereby of the terms created by this Indenture, the Indenture Trustee shall be entitled to receive, and shall be fully protected in relying upon, (i) an Opinion of Counsel stating that the execution of such Supplement is authorized or permitted by this Indenture and that such amendment or modification complies with the terms thereof and hereof and (ii) an Officer’s Certificate stating that all conditions precedent to the execution, delivery and performance of such amendment have been satisfied in full. The Indenture Trustee may, but shall not be obligated to, enter into any such Supplement which affects the Indenture Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any Supplement under this Article, this Indenture shall be modified in accordance therewith, and such Supplement shall form a part of this Indenture for all purposes, and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. No amendment or waiver of any provision of any Supplement, and no consent to any departure by any party from the provisions of any Supplement, shall in any event be effective unless the same shall be in writing and signed by the Indenture Trustee, and
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then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
Section 9.05 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any Supplement pursuant to this Article may, and shall if required by WEST, bear a notation in form as to any matter provided for in such Supplement. If WEST shall so determine, new Notes so modified as to conform may be prepared and executed by WEST and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.
Section 10.01 Modification and Waiver with Consent of Holders.
In the event that the Indenture Trustee receives a request for its consent to an amendment, modification or waiver under the Indenture, the Notes or any Related Document relating to the Notes, or if WEST proposes the execution and delivery of any Supplement pursuant to Section 9.02 requiring the consent of the Holders, WEST shall mail a notice of such proposed amendment, modification or waiver or such Supplement to each Noteholder, with a copy to the Senior Liquidity Provider, asking whether or not the Indenture Trustee should consent to such amendment, modification or waiver or to execute such Supplement, in each case if such Noteholder’s consent is required pursuant to the Indenture; provided that any amendment, modification or waiver described in Section 9.02 hereof or any Supplement taking any of the actions described in Section 9.02 hereof is not permitted without the consent of each Noteholder of any Notes affected thereby; provided further, however, that any Event of Default may be waived in accordance with Section 4.04 hereof. The foregoing shall not prevent WEST or any Subsidiary from amending any Lease of an Engine, provided that such amendment is otherwise permitted by the Indenture. In addition, a notice of any proposed amendment, modification or waiver under any Related Document permitted by the terms of such Related Document or the consent of the Noteholders to any such amendment, modification or waiver shall not be required, provided that WEST provides an Opinion of Counsel to the Indenture Trustee to the effect that such amendment, modification or waiver is permitted by the terms of such Related Document.
It shall not be necessary for the consent of the Holders under this Section 10.01 to approve the particular form of any proposed amendment, modification or waiver, but it shall be sufficient if such consent approves the substance thereof. Any such amendment, modification or waiver approved by a Requisite Majority will be binding on all Noteholders. After an amendment under this Section 10.01 becomes effective, it shall bind every Holder, whether or not notation thereof is made on any Note held by such Holder.
WEST shall give each Rating Agency and the Senior Liquidity Provider prior notice of any amendment under this Section 10.01 and of any amendments of the constitutive documents by WEST or any other WEST Group Member, and, after an amendment under this Section 10.01
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becomes effective, WEST shall mail to the Holders, the Senior Liquidity Provider and the Rating Agencies a notice briefly describing such amendment and shall deliver a copy of each such amendment to the Indenture Trustee. Such notice to the Holders may be contained in the next Monthly Report. Any failure of WEST to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment.
Section 10.02 Modification Without Consent of Holders.
Subject to Section 9.01 hereof, the Indenture Trustee may agree, without the consent of any Noteholder or the Senior Liquidity Provider, to any modification (other than those referred to in Section 10.01) of, or the waiver or authorization of any breach or prospective breach of, any provision of any Related Document or of the relevant Notes to correct a manifest error or an error which is of a formal, minor or technical nature. Any such modification shall be notified to the Holders as soon as practicable thereafter and shall be binding on all the Holders. WEST shall cause the Administrative Agent to include in the Monthly Report delivered pursuant to Section 2.14(a) a description of all amendments to the Related Documents.
Section 10.03 Subordination and Priority of Payments.
The subordination provisions contained in Section 3.14 and Article XI hereof may not be amended or modified without the consent of each Noteholder of the Notes affected thereby and the Senior Liquidity Provider and Noteholder of Notes ranking senior thereto. In no event shall the provisions set forth in Section 3.14 relating to the priority of the Service Provider Fees, Operating Expenses and Hedge Payments be amended or modified.
Section 10.04 Execution of Amendments by Indenture Trustee.
In executing, or accepting the additional trusts created by, any amendment or modification to this Indenture permitted by this Article X or the modifications thereby of the trusts created by this Indenture, the Indenture Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officer’s Certificate stating that all conditions precedent to the execution, delivery and performance of such amendment have been satisfied in full and an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Indenture. The Indenture Trustee may, but shall not be obligated to, enter into any such amendment which affects the Indenture Trustee’s own rights, duties or immunities under this Indenture or otherwise. No amendment or waiver of any provision of this Indenture, and no consent to any departure by any party from the provisions of this Indenture, shall in any event be effective unless the same shall be in writing and signed by the Indenture Trustee, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
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Section 11.01 Subordination.
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Section 11.02 Rights of Subrogation.
The Junior Claimants (and each Junior Representative of any thereof) agree that no payment or distributions to any Senior Claimant (or the Indenture Trustee therefor) pursuant to the provisions of this Indenture shall entitle any Junior Claimant (or any Junior Representative thereof) to exercise any rights of subrogation in respect thereof until all Senior Claims with respect to such Person shall have been paid in full.
Section 11.03 Further Assurances of Junior Representatives.
Each of the Junior Representatives shall, at the expense of WEST, at any time and from time to time promptly execute and deliver all further instruments and documents, and take all further action, that the Controlling Party may reasonably request, in order to effectuate the provisions of this Article XI.
Section 11.04 Enforcement.
Each Junior Claimant (and the Junior Representative therefor) agree that the provisions of this Article XI shall be enforceable against them under all circumstances, including without limitation in any proceeding referred to in Sections 4.01(f) and 4.01(g) hereof.
Section 11.05 Continued Effectiveness.
The provisions of this Article XI shall continue to be effective or shall be revived or reinstated, as the case may be, if at any time any payment of any of the Senior Claims is rescinded or must otherwise be returned by any Senior Claimant upon the insolvency, bankruptcy or reorganization of any WEST Group Member, or otherwise, all as though such payment had not been made.
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Section 11.06 Senior Claims and Junior Claims Unimpaired.
Nothing in this Article XI shall impair, as between WEST and any Senior Claimant or any Junior Claimant, the obligations of WEST to such Person, including without limitation the Senior Claims and the Junior Claims; provided that it is understood that the enforcement of rights and remedies shall be subject to the terms of this Indenture, the Security Trust Agreement and the other Security Documents
Section 12.01 Discharge of Liability on the Notes; Defeasance.
If WEST exercises its legal defeasance option, payment of any Notes subject to such legal defeasance may not be accelerated because of an Event of Default. If WEST exercises its covenant defeasance option, payment of the Notes may not be accelerated because of an Event of Default (other than with respect to a failure to comply with Section 5.02(j), 4.01(a), 4.01(b), 4.01(c), 4.01(f) and 4.01(g)).
Upon satisfaction of the conditions set forth herein and upon request of WEST, the Indenture Trustee shall acknowledge in writing the discharge of those obligations that WEST terminates.
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Section 12.02 Conditions to Defeasance.
WEST may exercise its legal defeasance option or its covenant defeasance option only if:
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Section 12.03 Application of Trust Money.
The Indenture Trustee shall hold in trust in the Redemption/Defeasance Account money, U.S. Government Obligations or Corporate Obligations deposited with it pursuant to this Article XII. It shall apply the deposited money and the money from U.S. Government Obligations or Corporate Obligations in accordance with this Indenture to the payment of principal, premium, if any, and interest on the Class or Series of Notes. Money and securities so held in trust are not subject to Article XI hereof.
Section 12.04 Repayment to WEST.
The Indenture Trustee shall promptly turn over to WEST upon request any excess money or securities held by it at any time.
Subject to any applicable abandoned property law, the Indenture Trustee shall pay to WEST upon written request any money held by it for the payment of principal or interest that remains unclaimed for two (2) years and, thereafter, Noteholders entitled to the money must look to WEST for payment as general creditors. Such unclaimed funds shall remain uninvested and in no event shall the Indenture Trustee be liable for interest on such unclaimed funds.
Section 12.05 Indemnity for Government Obligations and Corporate Obligations.
WEST shall pay and shall indemnify the Indenture Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or Corporate Obligations, or the principal and interest received on such U.S. Government Obligations or Corporate Obligations.
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Section 12.06 Reinstatement.
If the Indenture Trustee is unable to apply any money or U.S. Government Obligations or Corporate Obligations in accordance with this Article XII by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, WEST’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article XII until such time as the Indenture Trustee is permitted to apply all such money, U.S. Government Obligations or Corporate Obligations in accordance with this Article XII; provided, however, that, if WEST has made any payment of interest on or principal of any Notes because of the reinstatement of its obligations, WEST shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money, U.S. Government Obligations or Corporate Obligations held by the Indenture Trustee.
Section 13.01 Right of Indenture Trustee to Perform.
If WEST for any reason fails to observe or punctually to perform any of its obligations to the Indenture Trustee, whether under this Indenture or any of the other Related Documents or otherwise, the Indenture Trustee shall have power (but shall have no obligation), on behalf of or in the name of WEST or otherwise, to perform such obligations and to take any steps which the Indenture Trustee may, in its absolute discretion, consider appropriate with a view to remedying, or mitigating the consequences of, such failure by WEST; provided that no exercise or failure to exercise this power by the Indenture Trustee shall in any way prejudice the Indenture Trustee’s other rights under this Indenture or any of the other Related Documents.
Section 13.02 Waiver.
Any waiver by any party of any provision of this Indenture or any right, remedy or option hereunder shall only prevent and estop such party from thereafter enforcing such provision, right, remedy or option if such waiver is given in writing and only as to the specific instance and for the specific purpose for which such waiver was given. The failure or refusal of any party hereto to insist in any one or more instances, or in a course of dealing, upon the strict performance of any of the terms or provisions of this Indenture by any party hereto or the partial exercise of any right, remedy or option hereunder shall not be construed as a waiver or relinquishment of any such term or provision, but the same shall continue in full force and effect. No failure on the part of the Indenture Trustee to exercise, and no delay on its part in exercising, any right or remedy under this Indenture will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in this Indenture are cumulative and not exclusive of any rights or remedies provided by law.
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Section 13.03 Severability.
In the event that any provision of this Indenture or the application thereof to any party hereto or to any circumstance or in any jurisdiction governing this Indenture shall, to any extent, be invalid or unenforceable under any applicable statute, regulation or rule of law, then such provision shall be deemed inoperative to the extent that it is invalid or unenforceable and the remainder of this Indenture, and the application of any such invalid or unenforceable provision to the parties, jurisdictions or circumstances other than to whom or to which it is held invalid or unenforceable, shall not be affected thereby nor shall the same affect the validity or enforceability of this Indenture. The parties hereto further agree that the holding by any court of competent jurisdiction that any remedy pursued by the Indenture Trustee hereunder is unavailable or unenforceable shall not affect in any way the ability of the Indenture Trustee to pursue any other remedy available to it.
Section 13.04 Notices.
All notices, demands, certificates, requests, directions, instructions and communications hereunder (“Notices”) shall be in writing and shall be effective (a) upon receipt when sent through the mails, registered or certified mail, return receipt requested, postage prepaid, with such receipt to be effective the date of delivery indicated on the return receipt, or (b) one Business Day after delivery to an overnight courier, or (c) on the date personally delivered to an authorized officer of the party to which sent, or (d) on the date transmitted by legible telecopier transmission with a confirmation of receipt, in all cases addressed to the recipient as follows:
if to WEST, to:
Willis
Engine Securitization Trust
c/o Wilmington Trust Company
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
Attention: Corporate Trust Administrator
Facsimile: (302) 651-8882
with copies to:
Willis
Lease Finance Corporation
2320 Marinship Way, Suite 300
Sausalito, CA 94965
Attention: General Counsel
Facsimile: (415) 275-5106
As of March 1, 2008:
Willis Lease Finance Corporation
773 San Marin Drive
Novato, CA 94945
Attn: General Counsel
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and
Pillsbury
Winthrop Shaw Pittman LLP
1540 Broadway
New York, NY 10036
Attention: William C. Bowers
Facsimile: (212) 858-1500
if to the Administrative Agent, to:
Willis
Lease Finance Corporation
2320 Marinship Way, Suite 300
Sausalito, CA 94965
Attention: General Counsel
Facsimile: (415) 275-5106
As of March 1, 2008:
Willis Lease Finance Corporation
773 San Marin Drive
Novato, CA 94945
Attn: General Counsel
if to the Indenture Trustee, the Security Trustee, the Note Registrar or the Paying Agent, to:
Deutsche
Bank Trust Company Americas
60 Wall Street
MS NYC 60-2606
New York, New York 10005
Attention: Trust & Securities Services - Structured Finance Services
Facsimile: 212-553-2460
if to the Servicer, to:
Willis
Lease Finance Corporation
2320 Marinship Way, Suite 300
Sausalito, CA 94965
Attention: General Counsel
Facsimile: (415) 275-5106
As of March 1, 2008:
Willis Lease Finance Corporation
773 San Marin Drive
Novato, CA 94945
Attn: General Counsel
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if to the Senior Liquidity Provider, to:
Calyon
New York Branch
1301 Avenue of the Americas
New York, NY 10019
Attention: Neil Spier
Facsimile: (212) 459-3258
if to the Rating Agencies, to:
Fitch, Inc.
55 E. Monroe, Suite 3500
Chicago, IL 60603
Attention: ABS Monitoring Group - Equipment Leases
Facsimile: (312) 368-2069
Moody’s
Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Monitoring Group
Facsimile: (212) 553-0573
A copy of each notice given hereunder to any party hereto shall also be given to each of the other parties hereto. Each party hereto may, by notice given in accordance herewith to each of the other parties hereto, designate any further or different address to which subsequent Notices shall be sent.
Section 13.05 Assignments.
(b) Each Hedge Counterparty and the Senior Liquidity Provider shall be an express third party beneficiary of Sections 3.08, 9.01 and 9.03 hereof, as applicable. The Servicer shall be an express third party beneficiary of each provision of this Indenture that affects any of its rights or obligations under this Indenture or any other Related Document, including the provisions hereof providing for payment of Expenses and Lien priority for amounts payable to the Servicer under the Servicing Agreement or any other Related Document.
Section 13.06 Currency Conversion.
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Section 13.07 Application to Court.
The Security Trustee may at any time after the service of a Default Notice apply to any court of competent jurisdiction for an order that the terms of this Indenture be carried into execution under the direction of such court and for the appointment of a receiver of the Collateral or any part thereof and for any other order in relation to the administration of this Indenture as the Requisite Majority shall deem fit and it may assent to or approve any application to any court of competent jurisdiction made at the instigation of any of the Noteholders and shall be indemnified by WEST against all costs, charges and expenses incurred by it in relation to any such application or proceedings.
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Section 13.08 Governing Law.
THIS INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
Section 13.09 Jurisdiction.
Section 13.10 Counterparts.
This Indenture may be executed in two or more counterparts by the parties hereto, and each such counterpart shall be considered an original and all such counterparts shall constitute one and the same instrument.
Section 13.11 Table of Contents, Headings, Etc.
The Table of Contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms and provisions hereof.
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Section 13.12 Compliance with Anti-Terrorism and Money-Laundering Regulations.
In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, the Indenture Trustee is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Indenture Trustee. Accordingly, each of the parties agree to provide to the Indenture Trustee, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Indenture Trustee to comply with such laws, rules, regulations and executive orders.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above.
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WILLIS ENGINE SECURITIZATION TRUST, |
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as issuer of the Notes |
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By: |
/s/ Bradley S. Forsyth |
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Name: |
Bradley S. Forsyth |
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Title: |
Controlling Trustee |
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DEUTSCHE BANK
TRUST COMPANY |
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By: |
/s/ Irene Siegel |
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Name: |
Irene Siegel |
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Title: |
Vice President |
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By: |
/s/ Aranka R. Paul |
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Name: |
Aranka R. Paul |
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Title: |
Assistant Vice President |
SCHEDULE 1
ENGINE SUBSIDIARIES
WEST Engine Funding LLC, a Delaware limited liability company
SCHEDULE 2-1
ENGINE TRUSTS ON INITIAL CLOSING DATE
1. Trust Agreement No. 30771 dated as of February 16, 2005, between WEST Funding, as owner participant, and Wells Fargo Bank Northwest, National Association (“Wells Fargo”), as owner trustee.
2. Trust Agreement No. 311498 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
3. Trust Agreement No. 312234 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
4. Trust Agreement No. 575283 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
5. Trust Agreement No. 575573 dated as of March 18, 2003, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
6. Trust Agreement No. 577214 dated as of February 14, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
7. Trust Agreement No. 695530 dated as of March 18, 2003, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
8. Trust Agreement No. 704371 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
9. Trust Agreement No. 704447 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
10. Trust Agreement No. 704638 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
11. Trust Agreement No. 708173 dated as of February 4, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
12. Trust Agreement No. 716430 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
13. Trust Agreement No. 716779 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
14. Trust Agreement No. 718210 dated as of September 22, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
15. Trust Agreement No. 718262 dated as of October 10, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
16. Trust Agreement No. 721877 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
17. Trust Agreement No. 724721 dated as of November 6, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
18. Trust Agreement No. 724862 dated as of January 12, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
19. Trust Agreement No. 725183 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
20. Trust Agreement No. 725434 dated as of July 20, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
21. Trust Agreement No. 725522 dated as of November 26, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
22. Trust Agreement No. 726169 dated as of February 2, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
23. Trust Agreement No. 726173 dated as of February 2, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
24. Trust Agreement No. 726195 dated as of February 2, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
25. Trust Agreement No. 726203 dated as of February 2, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
26. Trust Agreement No. 727057 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
27. Trust Agreement No. 727255 dated as of March 18, 2003, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
28. Trust Agreement No. 727340 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
29. Trust Agreement No. 727393 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
30. Trust Agreement No. 728154 dated as of October 4, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
31. Trust Agreement No. 728173 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
32. Trust Agreement No. 731570 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
33. Trust Agreement No. 731812 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
34. Trust Agreement No. 731999 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
35. Trust Agreement No. 733172 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
36. Trust Agreement No. 733175 dated as of October 24, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
37. Trust Agreement No. 733186 dated as of October 23, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
38. Trust Agreement No. 733438 dated as of October 29, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
39. Trust Agreement No. 733471 dated as of October 21, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
40. Trust Agreement No. 733587 dated as of May 25, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
41. Trust Agreement No. 733715 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
42. Trust Agreement No. 733758 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
43. Trust Agreement No. 740342 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
44. Trust Agreement No. 741414 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
45. Trust Agreement No. 741573 dated as of October 23, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
46. Trust Agreement No. 741822 dated as of March 18, 2003, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
47. Trust Agreement No. 779194 dated as of October 4, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
48. Trust Agreement No. 779484 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
49. Trust Agreement No. 856690 dated as of March 25, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
50. Trust Agreement No. 858327 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
51. Trust Agreement No. 858788 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
52. Trust Agreement No. 858789 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
53. Trust Agreement No. 872554 dated as of May 12, 2003, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
54. Trust Agreement No. 874243 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
55. Trust Agreement No. 876272 dated as of February 22, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
56. Trust Agreement No. 888763 dated as of March 3, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
57. Trust Agreement No. 890704 dated as of January 12, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
58. Trust Agreement No. 890988 dated as of September 10, 2004, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
59. Trust Agreement No. 695344 dated as of October 6, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
60. Trust Agreement No. 695495 dated as of October 6, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
61. Trust Agreement No. 702668 dated as of August 22, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
SCHEDULE 2-2
ENGINE TRUSTS ON EFFECTIVE DATE
1. Trust Agreement No. 30771 dated as of February 16, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
2. Trust Agreement No. 311498 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
3. Trust Agreement No. 312234 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
4. Trust Agreement No. 575573 dated as of March 18, 2003, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
5. Trust Agreement No. 577214 dated as of February 14, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
6. Trust Agreement No. 704638 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
7. Trust Agreement No. 708173 dated as of February 4, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
8. Trust Agreement No. 716430 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
9. Trust Agreement No. 716779 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
10. Trust Agreement No. 721877 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
11. Trust Agreement No. 724721 dated as of November 6, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
12. Trust Agreement No. 724862 dated as of January 12, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
13. Trust Agreement No. 725183 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
14. Trust Agreement No. 725434 dated as of July 20, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
15. Trust Agreement No. 725522 dated as of November 26, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
16. Trust Agreement No. 726195 dated as of February 2, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
17. Trust Agreement No. 726203 dated as of February 2, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
18. Trust Agreement No. 727057 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
19. Trust Agreement No. 727255 dated as of March 18, 2003, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
20. Trust Agreement No. 727340 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
21. Trust Agreement No. 727393 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
22. Trust Agreement No. 728154 dated as of October 4, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
23. Trust Agreement No. 728173 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
24. Trust Agreement No. 731812 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
25. Trust Agreement No. 731999 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
26. Trust Agreement No. 733172 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
27. Trust Agreement No. 733175 dated as of October 24, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
28. Trust Agreement No. 733186 dated as of October 23, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
29. Trust Agreement No. 733438 dated as of October 29, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
30. Trust Agreement No. 733471 dated as of October 21, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
31. Trust Agreement No. 733587 dated as of May 25, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
32. Trust Agreement No. 733715 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
33. Trust Agreement No. 733758 dated as of December 19, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
34. Trust Agreement No. 740342 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
35. Trust Agreement No. 741414 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
36. Trust Agreement No. 741573 dated as of October 23, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
37. Trust Agreement No. 741822 dated as of March 18, 2003, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
38. Trust Agreement No. 779484 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
39. Trust Agreement No. 858788 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
40. Trust Agreement No. 872554 dated as of May 12, 2003, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
41. Trust Agreement No. 874243 dated as of September 12, 2002, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
42. Trust Agreement No. 876272 dated as of February 22, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
43. Trust Agreement No. 888763 dated as of March 3, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
44. Trust Agreement No. 890704 dated as of January 12, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
45. Trust Agreement No. 890988 dated as of September 10, 2004, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
46. Trust Agreement No. 695344 dated as of October 6, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
47. Trust Agreement No. 695495 dated as of October 6, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
48. Trust Agreement No. 702668 dated as of August 22, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
49. Trust Agreement No. V12145 dated as of October 8, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
50. Trust Agreement No. 725623 dated as of July 21, 2005, between Willis, as owner participant, and Wells Fargo, as owner trustee, as amended by the Trust Amendment and Supplement No. 1 dated as of November 11, 2005 among Willis, WEST Funding, as successor owner participant, and Wells Fargo, as owner trustee, transferring all of the rights and obligations of Willis as owner participant to WEST Funding.
51. Trust Agreement No. 725299 dated as of July 21, 2005, between Willis, as owner participant, and Wells Fargo, as owner trustee, as amended by the Trust Amendment and Supplement No. 1 dated as of November 11, 2005 among Willis, WEST Funding, as successor owner participant, and Wells Fargo, as owner trustee, transferring all of the rights and obligations of Willis as owner participant to WEST Funding.
52. Trust Agreement No. 726245 dated as of July 21, 2005, between Willis, as owner participant, and Wells Fargo, as owner trustee, as amended by the Trust Amendment and Supplement No. 1 dated as of November 11, 2005 among Willis, WEST Funding, as successor owner participant, and Wells Fargo, as owner trustee, transferring all of the rights and obligations of Willis as owner participant to WEST Funding.
53. Trust Agreement No. 702823 dated as of July 21, 2005, between Willis, as owner participant, and Wells Fargo, as owner trustee, as amended by the Trust Amendment and Supplement No. 1 dated as of November 11, 2005 among Willis, WEST Funding, as successor owner participant, and Wells Fargo, as owner trustee, transferring all of the rights and obligations of Willis as owner participant to WEST Funding.
54. Trust Agreement No. 704299 dated as of July 21, 2005, Willis, as owner participant, and Wells Fargo, as owner trustee, as amended by the Trust Amendment and Supplement No. 1 dated as of November 11, 2005 among Willis, WEST Funding, as successor owner participant, and Wells Fargo, as owner trustee, transferring all of the rights and obligations of Willis as owner participant to WEST Funding.
55. Trust Agreement No. V12177 dated as of November 15, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
56. Trust Agreement No. 779360 dated as of December 21, 2005, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
57. Trust Agreement No. 892706 dated as of January 17, 2006, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
58. Trust Agreement No. 892702 dated as of January 17, 2006, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
59. Trust Agreement No. 892707 dated as of January 17, 2006, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
60. Trust Agreement No. 733325 dated as of February 8, 2006, between Willis, as owner participant, and Wells Fargo, as owner trustee, as amended by the Trust Amendment and Supplement No. 1 dated as of February 8, 2006 among Willis, WEST Funding, as successor owner participant, and Wells Fargo, as owner trustee, transferring all of the rights and obligations of Willis as owner participant to WEST Funding.
61. Trust Agreement No. V12361 dated as of June 16, 2006, between Willis, as owner participant, and Wells Fargo, as owner trustee, as amended by the Trust Amendment and Supplement No. 1 dated as of October 2, 2006 among Willis, WEST Funding, as successor owner participant, and Wells Fargo, as owner trustee, transferring all of the rights and obligations of Willis as owner participant to WEST Funding.
62. Trust Agreement No. V12346 dated as of June 12, 2006, between Willis, as owner participant, and Wells Fargo, as owner trustee, as amended by the Trust Amendment and Supplement No. 1 dated as of August 31, 2006 among Willis, WEST Funding, as successor owner participant, and Wells Fargo, as owner trustee, transferring all of the rights and obligations of Willis as owner participant to WEST Funding.
63. Trust Agreement No. 891264 dated as of March 30, 2006, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
64. Trust Agreement No. 695357 dated as of June 1, 2006, between Willis, as owner participant, and Wells Fargo, as owner trustee, as amended by the Trust Amendment and Supplement No. 1 dated as of August 4, 2006 among Willis, WEST Funding, as successor owner participant, and Wells Fargo, as owner trustee, transferring all of the rights and obligations of Willis as owner participant to WEST Funding.
65. Trust Agreement No. 894269 dated as of September 28, 2006, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
66. Trust Agreement No. 892355 dated as of December 12, 2006, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
67. Trust Agreement No. 697257 dated as of March 23, 2007, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
68. Trust Agreement No. 567319 dated as of May 8, 2007, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
69. Trust Agreement No. 894798 dated as of June 29, 2007, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
70. Trust Agreement No. 567321 dated as of July 11, 2007, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
71. Trust Agreement No. V12696 dated as of July 16, 2007, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
72. Trust Agreement No. V12694 dated as of July 16, 2007, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
73. Trust Agreement No. 697433 dated as of August 3, 2007, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
74. Trust Agreement No. 892688 dated as of November 22, 2006, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
75. Trust Agreement No. 890916 dated as of December 12, 2006, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
76. Trust Agreement No. 31267 dated as of December 14, 2006, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
77. Trust Agreement No. 697146 dated as of January 5, 2007, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
78. Trust Agreement No. 872016 dated as of June 29, 2007, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
79. Trust Agreement No. 872170 dated as of June 29, 2007, between WEST Funding, as owner participant, and Wells Fargo, as owner trustee.
SCHEDULE 3
LEASING SUBSIDIARIES
WEST Engine Funding (Ireland) Limited, an Irish private limited company
SCHEDULE 4-1
INITIAL ENGINES
No. |
|
Manufacturer |
|
Model |
|
Engine Serial Number |
|
|
|
|
|
|
|
|
|
1. |
|
Rolls Royce |
|
RB211-535E4 |
|
30771 |
|
2. |
|
Rolls Royce |
|
3007A |
|
311498 |
|
3. |
|
Rolls Royce |
|
3007A |
|
312234 |
|
4. |
|
CFM International |
|
CFM56-5B |
|
575283 |
|
5. |
|
CFM International |
|
CFM56-5B |
|
575573 |
|
6. |
|
CFM International |
|
CFM56-5B |
|
577214 |
|
7. |
|
General Electric |
|
CF6-80C2A |
|
695530 |
|
8. |
|
General Electric |
|
CF6-80C2B |
|
704371 |
|
9. |
|
General Electric |
|
CF6-80C2B |
|
704447 |
|
10. |
|
General Electric |
|
CF6-80C2D1F |
|
704638 |
|
11. |
|
Pratt & Whitney |
|
JT8D-200 |
|
708173 |
|
12. |
|
Pratt & Whitney |
|
PW2037 |
|
716430 |
|
13. |
|
Pratt & Whitney |
|
JT8D-200 |
|
716779 |
|
14. |
|
Pratt & Whitney |
|
JT8D-200 |
|
718210 |
|
15. |
|
Pratt & Whitney |
|
JT8D-200 |
|
718262 |
|
16. |
|
CFM International |
|
CFM56-3C1 |
|
721877 |
|
17. |
|
Pratt & Whitney |
|
PW4060 |
|
724721 |
|
18. |
|
Pratt & Whitney |
|
PW4158 |
|
724862 |
|
19. |
|
CFM International |
|
CFM56-3C1 |
|
725183 |
|
20. |
|
Pratt & Whitney |
|
JT8D-200 |
|
725434 |
|
21. |
|
CFM International |
|
CFM56-3C1 |
|
725522 |
|
22. |
|
Pratt & Whitney |
|
JT8D-200 |
|
726169 |
|
23. |
|
Pratt & Whitney |
|
JT8D-200 |
|
726173 |
|
24. |
|
Pratt & Whitney |
|
JT8D-200 |
|
726195 |
|
25. |
|
Pratt & Whitney |
|
JT8D-200 |
|
726203 |
|
26. |
|
Pratt & Whitney |
|
PW2037 |
|
727057 |
|
27. |
|
CFM International |
|
CFM56-3C1 |
|
727255 |
|
28. |
|
Pratt & Whitney |
|
PW4060 |
|
727340 |
|
29. |
|
Pratt & Whitney |
|
PW4060 |
|
727393 |
|
30. |
|
Pratt & Whitney |
|
JT8D-200 |
|
728154 |
|
31. |
|
Pratt & Whitney |
|
JT8D-200 |
|
728173 |
|
32. |
|
CFM International |
|
CFM56-5A |
|
731570 |
|
33. |
|
CFM International |
|
CFM56-5A |
|
731812 |
|
34. |
|
CFM International |
|
CFM56-5A |
|
731999 |
|
35. |
|
CFM International |
|
CFM56-5A |
|
733172 |
|
36. |
|
CFM International |
|
CFM56-5A |
|
733175 |
|
37. |
|
CFM International |
|
CFM56-5A |
|
733186 |
|
38. |
|
Pratt & Whitney |
|
PW4168A |
|
733438 |
|
39. |
|
Pratt & Whitney |
|
PW4168A |
|
733471 |
|
40. |
|
Pratt & Whitney |
|
PW4168A |
|
733587 |
|
41. |
|
Pratt & Whitney |
|
PW4462-3 |
|
733715 |
|
42. |
|
Pratt & Whitney |
|
PW4462-3 |
|
733758 |
|
43. |
|
CFM International |
|
CFM56-5C |
|
740342 |
|
44. |
|
CFM International |
|
CFM56-5C |
|
741414 |
|
45. |
|
CFM International |
|
CFM56-5C |
|
741573 |
|
46. |
|
CFM International |
|
CFM56-5C |
|
741822 |
|
47. |
|
CFM International |
|
CFM56-5B |
|
779194 |
|
48. |
|
CFM International |
|
CFM56-5B |
|
779484 |
|
49. |
|
CFM International |
|
CFM56-3C1 |
|
856690 |
|
50. |
|
CFM International |
|
CFM56-3C1 |
|
858327 |
|
51. |
|
CFM International |
|
CFM56-3C1 |
|
858788 |
|
52. |
|
CFM International |
|
CFM56-3C1 |
|
858789 |
|
53. |
|
General Electric |
|
CF34-3A/B |
|
872554 |
|
54. |
|
CFM International |
|
CFM56-7B |
|
874243 |
|
55. |
|
CFM International |
|
CFM56-7B |
|
876272 |
|
56. |
|
CFM International |
|
CFM56-7B |
|
888763 |
|
57. |
|
CFM International |
|
CFM56-7B |
|
890704 |
|
58. |
|
CFM International |
|
CFM56-7B |
|
890988 |
|
59. |
|
General Electric |
|
CF6-80C2B6 |
|
695344 |
|
60. |
|
General Electric |
|
CF6-80C2B6 |
|
695495 |
|
61. |
|
General Electric |
|
CF6-80C2B6F |
|
702668 |
|
SCHEDULE 4-2
EFFECTIVE DATE ENGINES
No. |
|
Manufacturer |
|
Model |
|
Engine Serial Number |
|
|
|
|
|
|
|
|
|
1. |
|
Rolls Royce |
|
RB211-535E4 |
|
30771 |
|
2. |
|
Rolls Royce |
|
3007A |
|
311498 |
|
3. |
|
Rolls Royce |
|
3007A |
|
312234 |
|
4. |
|
CFM International |
|
CFM56-5B |
|
575573 |
|
5. |
|
CFM International |
|
CFM56-5B |
|
577214 |
|
6. |
|
General Electric |
|
CF6-80C2D1F |
|
704638 |
|
7. |
|
Pratt & Whitney |
|
JT8D-200 |
|
708173 |
|
8. |
|
Pratt & Whitney |
|
PW2037 |
|
716430 |
|
9. |
|
Pratt & Whitney |
|
JT8D-200 |
|
716779 |
|
10. |
|
CFM International |
|
CFM56-3C1 |
|
721877 |
|
11. |
|
Pratt & Whitney |
|
PW4060 |
|
724721 |
|
12. |
|
Pratt & Whitney |
|
PW4158 |
|
724862 |
|
13. |
|
CFM International |
|
CFM56-3C1 |
|
725183 |
|
14. |
|
Pratt & Whitney |
|
JT8D-200 |
|
725434 |
|
15. |
|
CFM International |
|
CFM56-3C1 |
|
725522 |
|
16. |
|
Pratt & Whitney |
|
JT8D-200 |
|
726195 |
|
17. |
|
Pratt & Whitney |
|
JT8D-200 |
|
726203 |
|
18. |
|
Pratt & Whitney |
|
PW2037 |
|
727057 |
|
19. |
|
CFM International |
|
CFM56-3C1 |
|
727255 |
|
20. |
|
Pratt & Whitney |
|
PW4060 |
|
727340 |
|
21. |
|
Pratt & Whitney |
|
PW4060 |
|
727393 |
|
22. |
|
Pratt & Whitney |
|
JT8D-200 |
|
728154 |
|
23. |
|
Pratt & Whitney |
|
JT8D-200 |
|
728173 |
|
24. |
|
CFM International |
|
CFM56-5A |
|
731812 |
|
25. |
|
CFM International |
|
CFM56-5A |
|
731999 |
|
26. |
|
CFM International |
|
CFM56-5A |
|
733172 |
|
27. |
|
CFM International |
|
CFM56-5A |
|
733175 |
|
28. |
|
CFM International |
|
CFM56-5A |
|
733186 |
|
29. |
|
Pratt & Whitney |
|
PW4168A |
|
733438 |
|
30. |
|
Pratt & Whitney |
|
PW4168A |
|
733471 |
|
31. |
|
Pratt & Whitney |
|
PW4168A |
|
733587 |
|
32. |
|
Pratt & Whitney |
|
PW4462-3 |
|
733715 |
|
33. |
|
Pratt & Whitney |
|
PW4462-3 |
|
733758 |
|
34. |
|
CFM International |
|
CFM56-5C |
|
740342 |
|
35. |
|
CFM International |
|
CFM56-5C |
|
741414 |
|
36. |
|
CFM International |
|
CFM56-5C |
|
741573 |
|
37. |
|
CFM International |
|
CFM56-5C |
|
741822 |
|
38. |
|
CFM International |
|
CFM56-5B |
|
779484 |
|
39. |
|
CFM International |
|
CFM56-3C1 |
|
858788 |
|
40. |
|
General Electric |
|
CF34-3A/B |
|
872554 |
|
41. |
|
CFM International |
|
CFM56-7B |
|
874243 |
|
42. |
|
CFM International |
|
CFM56-7B |
|
876272 |
|
43. |
|
CFM International |
|
CFM56-7B |
|
888763 |
|
44. |
|
CFM International |
|
CFM56-7B |
|
890704 |
|
45. |
|
CFM International |
|
CFM56-7B |
|
890988 |
|
46. |
|
General Electric |
|
CF6-80C2B6 |
|
695344 |
|
47. |
|
General Electric |
|
CF6-80C2B6 |
|
695495 |
|
48. |
|
General Electric |
|
CF6-80C2B6F |
|
702668 |
|
49. |
|
International Aero |
|
V2527-A5 |
|
V12145 |
|
50. |
|
CFM International |
|
CFM56-3C1 |
|
725623 |
|
51. |
|
CFM International |
|
CFM56-3C1 |
|
725299 |
|
52. |
|
CFM International |
|
CFM56-3C1 |
|
726245 |
|
53. |
|
General Electric |
|
CF6-80C2B1F |
|
702823 |
|
54. |
|
General Electric |
|
CF6-80C2B2F |
|
704299 |
|
55. |
|
International Aero |
|
V2527-A5 |
|
V12177 |
|
56. |
|
CFM International |
|
CFM56-5B4/P |
|
779360 |
|
57. |
|
CFM International |
|
CFM56-7B |
|
892706 |
|
58. |
|
CFM International |
|
CFM56-7B |
|
892702 |
|
59. |
|
CFM International |
|
CFM56-7B |
|
892707 |
|
60. |
|
Pratt & Whitney |
|
4168A |
|
733325 |
|
61. |
|
International Aero |
|
V2527-A5 |
|
V12361 |
|
62. |
|
International Aero |
|
V2500 |
|
V12346 |
|
63. |
|
CFM International |
|
CFM56-7B27 |
|
891264 |
|
64. |
|
General Electric |
|
CF6-80C2B4 |
|
695357 |
|
65. |
|
CFM International |
|
CFM56-7B |
|
894269 |
|
66. |
|
CFM International |
|
CFM56-7B22 |
|
892355 |
|
67. |
|
CFM International |
|
CFM56-5B4/P |
|
697257 |
|
68. |
|
CFM International |
|
CFM56-5C4/P |
|
567319 |
|
69. |
|
CFM International |
|
CFM56-7B24 |
|
894798 |
|
70. |
|
CFM International |
|
CFM56-5C41P |
|
567321 |
|
71. |
|
International Aero |
|
V2533-A5 |
|
V12696 |
|
72. |
|
International Aero |
|
V2533-A5 |
|
V12694 |
|
73. |
|
CFM International |
|
CFM56-5B4 |
|
697433 |
|
74. |
|
CFM International |
|
CFM56-7B22 |
|
892688 |
|
75. |
|
CFM International |
|
CFM56-7B22 |
|
890916 |
|
76. |
|
Rolls Royce |
|
RB211-535E4 |
|
31267 |
|
77. |
|
CFM International |
|
CFM56-5B4/P |
|
697146 |
|
78. |
|
General Electric |
|
CF34-3B1 |
|
872016 |
|
79. |
|
General Electric |
|
CF34-3B1 |
|
872170 |
|
SCHEDULE 5
CONDITIONS PRECEDENT TO ACQUISITION OF ADDITIONAL ENGINES
On any Delivery Date on which an Additional Engine is to be acquired with funds withdrawn from the Engine Acquisition Account, the Administrative Agent shall give a written direction to the Indenture Trustee to transfer funds to the applicable Seller of such Additional Engine only upon satisfaction of the following conditions precedent:
(a) Each of the following shall be true, and each of the Indenture Trustee and Security Trustee shall have received a certificate substantially in the form of Annex A to this Schedule 5 signed by any Controlling Trustee of WEST stating that:
(i) the approvals by the Controlling Trustees required by Section 5.03(b) of this Indenture have been obtained, including the resolutions required by Section 5.03 of the Indenture for such Additional Engine that is being acquired as part of Replacement Exchange, and a copy of such resolutions are attached to such Certificate;
(ii) such Additional Engine satisfies the requirements in the definition of an “Engine” in this Indenture, and the purchase price for such Additional Engine satisfies the requirements of Section 5.03(b) of this Indenture;
(iii) no Event of Loss has occurred with respect to such Additional Engine and that no other damage has occurred with respect to such Additional Engine that would materially adversely affect the value of such Additional Engine;
(iv) all conditions precedent under the applicable Asset Purchase Agreement for such Additional Engine have been satisfied or waived by the relevant parties;
(v) after the acquisition of such Additional Engine (and any other Additional Engines being acquired on such Delivery Date) the percentage of Off-Production Engines in the Portfolio (measured by Adjusted Borrowing Value as of such Delivery Date) does not exceed *** until August 9, 2009 and *** thereafter;
(vi) if such Additional Engine is subject to a Lease, such Lease meets the requirements of this Indenture; and
(vii) the acquisition of such Additional Engine does not result in a Concentration Violation (without regard to the Concentration Variance Limits) and does not cause the percentage of Engines not on lease (measured by Adjusted Borrowing Value) to exceed ***.
(b) With respect to each such Additional Engine owned or to be owned by an Engine Trustee, the Security Trustee shall have received from such Engine Trustee a copy of the Engine Trust Agreement for the Engine Trust of such Engine Trustee, duly executed by the Engine Trustee and WEST, WEST Funding or another Subsidiary of WEST (other than an Engine Trust).
*** Confidential information omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
(c) The Security Trustee shall have received a copy of the following documents:
(i) the Acquisition Agreement for each such Additional Engine, duly executed and delivered by WEST, the applicable Seller and any WEST Subsidiary a party thereto (including the Engine Subsidiary or Engine Trust, if applicable, that will own such Additional Engine (the “Buyer”)), provided that, if the Buyer is obligated to the Seller of such Additional Engine to keep all or a portion of such Acquisition Agreement confidential, such portions may be kept confidential in an appropriate manner;
(ii) a bill of sale or other instrument transferring all right, title and interest of the Seller in such Additional Engine or the Engine Interest in respect of such Additional Engine to the Buyer; and
(iii) if any such Additional Engine is being acquired from an Affiliate of WEST, an invoice, contract or other written document evidencing the amount of the Purchase Price of such Additional Engine and the cost of such Additional Engine, in each case reasonably acceptable to the Security Trustee.
(d) The following documents shall have been duly executed and delivered by the indicated parties:
(i) an Engine Mortgage in respect of each Additional Engine between the Security Trustee and the Buyer;
(ii) a Grantor Supplement from each Engine Trustee that is owns or is acquiring a Additional Engine; and
(iii) a Collateral Supplement from WEST, WEST Funding or any other Subsidiary that is to own any Engine or Engine Trust;
(e) The Lien created by the Engine Mortgage in respect of such Additional Engine shall constitute a first priority security interest in such Additional Engine and any other Collateral (including the Accounts) owned by WEST and the Buyer of such Additional Engine free and clear of liens (other than Permitted Liens), and the following actions to perfect the security interest of the Security Trustee in such Additional Engine and the related Collateral shall have been taken:
(i) the Engine Mortgage with respect to such Additional Engine and any Lease of such Additional Engine shall have been duly filed with the FAA, and the International Interest created by such Engine Mortgage shall have been registered with the International Registry;
(ii) UCC financing statements and other appropriate financing statements (including one or more financing statements to be filed with respect to any Lease for such Additional Engine) or notices and consents, duly executed by WEST or the Engine Subsidiary or Engine Trust that will own such Additional Engine or other
2
appropriate Person, and duly filed with the appropriate offices or registers as designated by the Security Trustee,
(iii) the sale of the Additional Engine to the Buyer and the International Interest created by the Engine Mortgage shall have been registered with the International Registry and, if the Additional Engine is subject to a Lease, the Buyer shall have taken such actions to perfect the security interest of the Security Trustee in such Lease as are required by the Engine Mortgage;
(iv) any prior financing in respect of such Additional Engine shall have been fully paid and satisfied and any Liens and International Interests created in connection with such prior financing shall have been released and discharged on all applicable public records, including the International Registry, or the Security Trustee has received such evidence of the release and discharge of such Liens or the obligation of the lender under such prior financing to release and discharge such Liens as shall be acceptable to the Security Trustee;
(iv) all necessary fees and Taxes relating to such filings and registration have been paid; and
(vi) WEST and the Buyer of such Additional Engine shall have done such other acts required by Applicable Law to perfect the security interest or charge in any Collateral and shall have made such other filings and taken such other actions as are necessary to establish the priority and perfection of the Lien of the Security Trustee in such Additional Engine and the other Collateral.
(f) The Administrative Agent shall have provided a certificate to the Indenture Trustee substantially in the form of Annex B to this Schedule 5 setting forth the Initial Appraised Value and Initial Borrowing Value of such Additional Engine, to which shall be attached the following items:
(i) a schedule as to the following matters, in each case taking into account such Additional Engine and any other Additional Engines being acquired on such Delivery Date:
(A) the total amounts of the Initial Borrowing Values of such Additional Engines and the Adjusted Borrowing Values of all other Engines within each Concentration Limit category and of Off-Production Engines as a percentage of the Aggregate Adjusted Borrowing Value of the Portfolio; and
(B) the total amounts of the Initial Borrowing Values of the Additional Engines and the Adjusted Borrowing Values of all other Engines in relation to the Outstanding Principal Balance under the Series A Notes, Outstanding Principal Balance under Series B Notes and Aggregate Note Principal Balance after all Loans are made on the Funding Date;
(ii) a copy of the Appraisals for each Additional Engine, dated not more than six (6) months prior to the Funding Date, and
3
(iii) if the Seller is an Affiliate of WEST, evidence of the book value of the Additional Engine in the hands of the Seller reasonably acceptable to each of the Indenture Trustee and Security Trustee.
(g) If such Additional Engine is subject to a Lease,
(i) a chattel paper copy of the Lease for such Additional Engine and a chattel paper copy of any Lease supplement for such Additional Engine shall have been delivered pursuant to the requirements of the Security Trust Agreement and the Custodial Agreement (or if any such chattel paper copy does not exist, appropriate evidence with respect to the missing chattel paper copy reasonably acceptable to the Security Trustee), and
(ii) the Lessee under such Lease relating shall have been directed to remit to the Collections Account all Lease Payments owing pursuant to such Lease.
(h) If such Additional Engine is subject to a Lease that requires Maintenance Reserve Payments, any Maintenance Reserve Payment balance for each such Additional Engine shall have been transferred to the Collections Account.
(i) If such Additional Engine is subject to a Lease that requires Security Deposits, such Security Deposits, if any, for each such Additional Engine that are in the form of cash or funds shall have been transferred to the Security Deposit/Lessee-Funded Account and such Security Deposits, if any, in the form of letters of credit or similar collateral shall have been transferred to the Buyer.
(j) The Security Trustee shall have received (i) an opinion of special FAA counsel in the United States as to the creation, priority and perfection of the security interest created by the Engine Mortgage in such Additional Engine and the other Collateral effected pursuant to clause (e) above, (ii) an opinion of special FAA counsel or other counsel reasonably acceptable to the Security Trustee as to the registration and priority of the International Interests of the Security Trustee in such Additional Engine and, if applicable, the Lease of such Additional Engine, in each case in form and substance satisfactory to the Security Trustee, and (iii) the results of searches on the International Registry evidencing the priority of the security interest in the Additional Engine.
(k) If such Additional Engine is subject to a Lease, the Servicer shall have received a certificate from an insurance broker, naming the Security Trustee as the sole loss payee and an additional insured, and copy of such certificate shall have been delivered to the Security Trustee.
4
Annex A
to Schedule 5 to the Amended and Restated Indenture
[FORM OF]
CONTROLLING TRUSTEE DELIVERY DATE CERTIFICATE
Date: [ ][ ], 20[ ]
The undersigned, a Controlling Trustee of Willis Engine Securitization Trust, a Delaware statutory trust (“WEST”), does hereby certify to Deutsche Bank Trust Company Americas, as Indenture Trustee under the Indenture, dated as of August 9, 2005 and as amended and restated as of December 13, 2007 (as amended, modified or supplemented, the “Indenture”), in satisfaction of one of the conditions under the Indenture to acquisition of an Additional Engine on the date first set forth above (the “Delivery Date”), as follows (capitalized terms used herein having the same meanings as in the Indenture):
(i) the approvals by the Controlling Trustees required by Section 5.03(b) of the Indenture have been obtained, including the resolutions required by Section 5.03 of the Indenture for such Additional Engine that is being acquired as part of Replacement Exchange, and a copy of such resolutions are attached to this Certificate;
(ii) such Additional Engine satisfies the requirements in the definition of an “Engine” in the Indenture, and the Purchase Price for each such Additional Engine satisfies the requirements of Section 5.03(b) of the Indenture;
(iii) no Event of Loss has occurred with respect to such Additional Engine and that no other damage has occurred with respect to such Additional Engine that would materially adversely affect the value of such Additional Engine;
(iv) all conditions precedent under the applicable Asset Purchase Agreement for such Additional Engine have been satisfied or waived by the relevant parties;
(v) after the acquisition of each such Additional Engine (and any other Additional Engines being acquired on such Delivery Date) the percentage of Off-Production Engines in the Portfolio (measured by Adjusted Borrowing Value as of such Delivery Date) does not exceed *** until August 9, 2009 and *** thereafter;
(vi) if such Additional Engine is subject to a Lease, such Lease meets the requirements of the Indenture; and
(vii) the acquisition of such Additional Engine does not result in a Concentration Violation (without regard to the Concentration Variance Limits) and does not cause the percentage of Engines not on lease (measured by Adjusted Borrowing Value) to exceed ***.
*** Confidential information omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
Executed as of the date first set forth above, by the undersigned, a Controlling Trustee of WEST.
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Name: |
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Title: Controlling Trustee |
2
Annex B
to Schedule 5 to the Amended and Restated Indenture
[FORM OF]
ADMINISTRATIVE AGENT DELIVERY DATE CERTIFICATE
Date: [ ][ ], 20[ ]
The undersigned, an officer of Willis Lease Finance Corporation, as Administrative Agent for Willis Engine Securitization Trust, a Delaware statutory trust (“WEST”), does hereby certify to Deutsche Bank Trust Company Americas, as Indenture Trustee under the Indenture, dated as of August 9, 2005 and as amended and restated as of December 13, 2007 (as amended, modified or supplemented, the “Indenture”), in satisfaction of one of the conditions under the Indenture to acquisition of an Additional Engine on the date first set forth above (the “Delivery Date”), as follows (capitalized terms used herein having the same meanings as in the Indenture):
(i) the Initial Appraised Value and Initial Borrowing Value of such Additional Engine are set forth in a schedule attached to this Certificate;
(ii) a schedule as to the following matters, in each case taking into account such Additional Engine and any other Additional Engines being acquired on such Delivery Date, is attached to this Certificate:
(A) the total amounts of the Initial Borrowing Values of such Additional Engines and the Adjusted Borrowing Values of all other Engines within each Concentration Limit category and of Off-Production Engines as a percentage of the Aggregate Adjusted Borrowing Value of the Portfolio, and
(B) the total amounts of the Initial Borrowing Values of the Additional Engines and the Adjusted Borrowing Values of all other Engines in relation to the Outstanding Principal Balance under the Series A Notes, Outstanding Principal Balance under Series B Notes and Aggregate Note Principal Balance after all Series [ ] Loans are made on the Funding Date and; and
(iii) copies of the Appraisals for each Additional Engine, dated not more than six (6) months prior to the Delivery Date, are attached to this Certificate, and
(iv) if the Seller is an Affiliate of WEST, evidence of the book value of the Additional Engine in the hands of the Seller reasonably acceptable to the Indenture Trustee and the Series [ ] Holders is attached to this Certificate.
Executed as of the date first set forth above, by the undersigned, an officer of the Administrative Agent.
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Name: |
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Title: |
2
SCHEDULE 6
CONDITIONS PRECEDENT TO FUNDING OF DISCRETIONARY ENGINE MODIFICATION
On any Delivery Date on which a Discretionary Engine Modification is to be funded with amounts withdrawn from the Engine Acquisition Account, the Administrative Agent shall give a written direction to the Indenture Trustee to transfer funds to the applicable Supplier of such Discretionary Engine Modification only upon satisfaction of the following conditions precedent:
(a) The Indenture Trustee shall have received a certificate signed by any Controlling Trustee of WEST stating that the approvals by the Controlling Trustees required by Section 5.03(c) of this Indenture have been obtained, with a copy of such resolutions attached to such certificate.
(b) The Indenture Trustee shall have received a copy of the following documents:
(i) the Modification Agreement for each such Discretionary Engine Modification; and
(ii) an invoice, contract or other written document evidencing the amount of the Purchase Price and/or cost of such Discretionary Engine Modification, in each case reasonably acceptable to the Indenture Trustee.
Annex A
to Schedule 6 to the Amended and Restated Indenture
[FORM OF]
CONTROLLING TRUSTEE DELIVERY DATE CERTIFICATE
Date: [ ][ ], 20[ ]
The undersigned, a Controlling Trustee of Willis Engine Securitization Trust, a Delaware statutory trust (“WEST”), does hereby certify to Deutsche Bank Trust Company Americas, as Indenture Trustee under the Indenture, dated as of August 9, 2005 and as amended and restated as of December 13, 2007 (as amended, modified or supplemented, the “Indenture”), in satisfaction of one of the conditions under the Indenture to funding of a Discretionary Engine Modification on the date first set forth above, that the approvals by the Controlling Trustees required by Section 5.03(c) of the Indenture have been obtained, including the resolutions required by Section 5.03 of the Indenture for such Discretionary Engine Modification, and a copy of such resolutions are attached to this Certificate.
Executed as of the date first set forth above, by the undersigned, a Controlling Trustee of WEST.
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Name: |
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Title: Controlling Trustee |
SCHEDULE 7
AGENT FOR SERVICE OF PROCESS
Party |
|
Jurisdiction |
|
Appointed Agent |
|
|
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Willis Engine Securitization |
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Delaware |
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Corporation Service Company |
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WEST Engine Funding LLC |
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Delaware |
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Corporation Service Company |
EXHIBIT A-1
FORM OF SERIES A TERM NOTE
Except as specified in Section 2.12(f) of the Indenture, each 144A Book-Entry Note, each Unrestricted Book-Entry Note and each Definitive Note issued in reliance on Section 4(2) of the Securities Act (and all Notes issued in exchange therefor or upon registration of transfer or substitution thereof) shall bear the following legend on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR WITH ANY SECURITIES REGULATORY AUTHORITY IN ANY JURISDICTION AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”) OR (C) IT IS NOT A U.S. PERSON (WITHIN THE MEANING OF REGULATION S) AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT BEFORE TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS NOTE AND THE LAST DATE THAT WILLIS ENGINE SECURITIZATION TRUST, A DELAWARE STATUTORY TRUST (“WEST”), OR ANY OF ITS AFFILIATES OWNED THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO WEST OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE INDENTURE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE INDENTURE TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO WEST THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH OF CASES (A) THROUGH (F) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE IN THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TWO-YEAR PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE ATTACHED HERETO AND SUBMIT SUCH TRANSFER
NOTICE TO THE INDENTURE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE TRANSFER IS PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE INDENTURE TRUSTEE AND WEST SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE INDENTURE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Book-Entry Note shall also bear the following legend on the face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO WEST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS BOOK-ENTRY NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS BOOK-ENTRY NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.12 OF THE INDENTURE.
Each Regulation S Temporary Book-Entry Note shall bear the following legend on the face thereof:
THIS NOTE IS A REGULATION S TEMPORARY BOOK-ENTRY NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER AND IS SUBJECT TO RESTRICTIONS ON THE TRANSFER AND EXCHANGE THEREOF AND ON THE PAYMENT OF INTEREST THEREON AS SPECIFIED IN THE INDENTURE.
2
WILLIS ENGINE SECURITIZATION TRUST
SERIES [ ]-A1 FLOATING RATE SECURED NOTE
$[XX] |
CUSIP No.: |
No.
[ ,
], [ ]
KNOW ALL PERSONS BY THESE PRESENTS that WILLIS ENGINE SECURITIZATION TRUST, a Delaware statutory trust (“WEST”), for value received, hereby promises to pay to [ ], or registered assigns, at the principal corporate trust office of the Indenture Trustee named below, (i) the Series [ ]-A1 Loans in the principal sum of [ ] Dollars ($ ), which sum shall be payable on each Payment Date on the dates and in the amounts set forth in the Indenture, dated as of August 9, 2005 and amended and restated as of December 13, 2007 (as amended, restated or otherwise modified from time to time, the “Indenture”), and the Series [ ]-A1 Supplement, dated as of [ ], [ ] (as amended, restated or otherwise modified from time to time, the “Series [ ]-A1 Supplement”), each between WEST and Deutsche Bank Trust Company Americas, as indenture trustee (the “Indenture Trustee”), and (ii) interest on the outstanding principal amount of this Series [ ]-A1 Floating Rate Secured Note (this “Series [ ]-A1 Note”) on the dates and in the amounts set forth in the Indenture and the Series [ ]-A1 Supplement. Capitalized terms not otherwise defined herein will have the meaning set forth in the Indenture and the Series [ ]-A1 Supplement.
Payment of the principal of and interest on this Series [ ]-A1 Note shall be made in lawful money of the United States of America which at the time of payment is legal tender for payment of public and private debts. The principal balance of, and interest on, this Series [ ]-A1 Note is payable at the times and in the amounts set forth in the Indenture and the Series [ ]-A1 Supplement by wire transfer of immediately available funds to the account designated by the Holder of record on the related Record Date.
This Series [ ]-A1 Note is one of the authorized notes identified in the title hereto and issued pursuant to the Indenture and the Series [ ]-A1 Supplement.
The Series [ ]-A1 Notes shall be an obligation of WEST and shall be secured by the Collateral, all as defined in, and subject to limitations set forth in, the Indenture.
This Series [ ]-A1 Note is transferable as provided in the Indenture and the Series [ ]-A1 Supplement, subject to certain limitations therein contained, only upon the books for registration and transfer kept by the Indenture Trustee, and only upon surrender of this Series [ ]-A1 Note for transfer to the Indenture Trustee duly endorsed by, or accompanied by a written instrument of transfer in form reasonably satisfactory to the Indenture Trustee duly executed by, the registered Holder hereof or his attorney duly authorized in writing. The Indenture Trustee or WEST may require payment by the Holder of a sum sufficient to cover any tax expense or other governmental charge payable in connection with any transfer or exchange of the Series [ ]-A1 Notes.
WEST, the Indenture Trustee and any other agent of WEST may treat the Person in whose name this Series [ ]-A1 Note is registered as the absolute owner hereof for all
3
purposes, and neither WEST, the Indenture Trustee, nor any other such agent shall be affected by notice to the contrary.
The Series [ ]-A1 Note are subject to Optional Redemption, at the times and subject to the conditions set forth in the Indenture and the Series [ ]-A1 Supplement.
If an Event of Default under the Indenture shall occur and be continuing, the principal of and accrued interest on this Series [ ]-A1 Note may be declared to be due and payable in the manner and with the effect provided in the Indenture and the Series [ ]-A1 Supplement.
The Indenture permits, with certain exceptions as therein provided, the issuance of supplemental indentures with the consent of the Requisite Majority, in certain specifically described instances. Any consent given by the Requisite Majority shall be conclusive and binding upon the Holder of this Series [ ]-A1 Note and on all future holders of this Series [ ]-A1 Note and of any Series [ ]-A1 Note issued in lieu hereof whether or not notation of such consent is made upon this Series [ ]-A1 Note. Supplements and amendments to the Indenture and the Series [ ]-A1 Supplement may be made only to the extent and in circumstances permitted by the Indenture and the Series [ ]-A1 Supplement.
The Holder of this Series [ ]-A1 Note shall have no right to enforce the provisions of the Indenture and the Series [ ]-A1 Supplement or to institute action to enforce the covenants, or to take any action with respect to a default under the Indenture and the Series [ ]-A1 Supplement, or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided under certain circumstances described in the Indenture and the Series [ ]-A1 Supplement; provided, however, that nothing contained in the Indenture and the Series [ ]-A1 Supplement shall affect or impair any right of enforcement conferred on the Holder hereof to enforce any payment of the principal of and interest on this Series [ ]-A1 Note on or after the due date thereof; provided further, however, that by acceptance hereof the Holder is deemed to have covenanted and agreed that it will not institute against WEST any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any applicable bankruptcy or similar law, at any time other than at such time as permitted by the Indenture and the Series [ ]-A1 Supplement.
This Series [ ]-A1 Note, and the rights and obligations of the parties hereunder, shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without giving effect to principles of conflict of laws, other than Sections 5-1401 and 5-1402 of the New York General Obligations Laws.
All terms and provisions of the Indenture and the Series [ ]-A1 Supplement are herein incorporated by reference as if set forth herein in their entirety.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED, that all acts, conditions and things required to exist, happen and be performed precedent to the execution and delivery of the Indenture and the Series [ ]-A1 Supplement and the issuance of this Series [ ]-A1 Note and the issue of which it is a part, do exist, have happened and have been timely performed in regular form and manner as required by law.
4
Unless the certificate of authentication hereon has been executed by the Indenture Trustee by manual signature of one of its Responsible Officers, this Series [ ]-A1 Note shall not be entitled to any benefit under the Indenture and the Series [ ]-A1 Supplement, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, WEST has caused this Series [ ]-A1 Note to be duly executed by its duly authorized representative, as of the date first set above.
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WILLIS ENGINE
SECURITIZATION TRUST, |
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This Note is one of the Series [ ]-A1 Notes described in the within-mentioned Series [ ]-A1 Supplement.
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DEUTSCHE BANK TRUST
COMPANY |
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By: |
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5
Schedule A to Series [ ]-A1 Note
Aggregate principal amount of any Series [ ]-A1 Note issued in exchange for a portion or portions hereof and any portion or portions of any Series [ ]-A1 Note exchanged for a portion or portions hereof:
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Remaining Principal Amount |
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Notation |
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6
TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s) and transfer(s) unto
Taxpayer identification No.
Address:
the within Series [ ]-A1 Note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said Series [ ]-A1 Note on the books of WEST with full power of substitution in the premises.
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NOTE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
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7
In connection with any transfer of this Series [ ]-A1 Note occurring prior to the date which is the earlier of the end of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that without utilizing any general solicitation or general advertising:
{Check One}
{ } (a) this Series [ ]-A1 Note is being transferred in compliance with the exemption from registration under the Securities Act provided by Rule 144A thereunder;
or
{ } (b) this Series [ ]-A1 Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Series [ ]-A1 Note and the Indenture.
If none of the foregoing boxes is checked, the Indenture Trustee or other Note Registrar shall not be obligated to register this Series [ ]-A1 Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.12 of the Indenture shall have been satisfied.
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NOTE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
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8
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED: The undersigned represents and warrants that it is purchasing this Series [ ]-A1 Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding WEST as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
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9
EXHIBIT A-2
FORM OF SERIES A WAREHOUSE NOTE
Except as specified in Section 2.12(f) of the Indenture, each 144A Book-Entry Note, each Unrestricted Book-Entry Note and each Definitive Note issued in reliance on Section 4(2) of the Securities Act (and all Notes issued in exchange therefor or upon registration of transfer or substitution thereof) shall bear the following legend on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR WITH ANY SECURITIES REGULATORY AUTHORITY IN ANY JURISDICTION AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”) OR (C) IT IS NOT A U.S. PERSON (WITHIN THE MEANING OF REGULATION S) AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT BEFORE TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS NOTE AND THE LAST DATE THAT WILLIS ENGINE SECURITIZATION TRUST, A DELAWARE STATUTORY TRUST (“WEST”), OR ANY OF ITS AFFILIATES OWNED THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO WEST OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE INDENTURE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE INDENTURE TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO WEST THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH OF CASES (A) THROUGH (F) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE IN THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TWO-YEAR PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE ATTACHED HERETO AND SUBMIT SUCH TRANSFER
NOTICE TO THE INDENTURE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE TRANSFER IS PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE INDENTURE TRUSTEE AND WEST SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE INDENTURE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Book-Entry Note shall also bear the following legend on the face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO WEST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS BOOK-ENTRY NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS BOOK-ENTRY NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.12 OF THE INDENTURE.
Each Regulation S Temporary Book-Entry Note shall bear the following legend on the face thereof:
THIS NOTE IS A REGULATION S TEMPORARY BOOK-ENTRY NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER AND IS SUBJECT TO RESTRICTIONS ON THE TRANSFER AND EXCHANGE THEREOF AND ON THE PAYMENT OF INTEREST THEREON AS SPECIFIED IN THE INDENTURE.
WILLIS ENGINE SECURITIZATION TRUST
SERIES [ ]-A2 FLOATING RATE SECURED NOTE
$[XX] |
No. |
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[ ], [ ] |
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KNOW ALL PERSONS BY THESE PRESENTS that WILLIS ENGINE SECURITIZATION TRUST, a Delaware statutory trust (“WEST”), for value received, hereby promises to pay to [ ], or registered assigns, at the principal corporate trust office of the Indenture Trustee named below, (i) the principal amount of the Series [ ]-A2 Loans made by the holder hereof to WEST in an amount up to the Maximum Principal Balance of Dollars ($ ),which principal amount shall be payable on each Payment Date on the dates and in the amounts set forth in the Indenture, dated as of August 9, 2005 and amended and restated as of December 13, 2007 (as amended, restated or otherwise modified from time to time, the “Indenture”), and the Series [ ]-A2 Supplement, dated as of [ , ], [ ] (as amended, restated or otherwise modified from time to time, the “Series [ ]-A2 Supplement”), each between WEST and Deutsche Bank Trust Company Americas, as indenture trustee (the “Indenture Trustee”), and (ii) interest on the outstanding principal amount of this Series [ ]-A2 Floating Rate Secured Note (this “Series [ ]-A2 Note”) on the dates and in the amounts set forth in the Indenture and the Series [ ]-A2 Supplement. Capitalized terms not otherwise defined herein will have the meaning set forth in the Indenture and the Series [ ]-A2 Supplement.
Payment of the principal of, interest on and Increased Costs for this Series [ ]-A2 Note shall be made in lawful money of the United States of America which at the time of payment is legal tender for payment of public and private debts. The principal balance of, and interest on, this Series [ ]-A2 Note and any Increased Costs are payable at the times and in the amounts set forth in the Indenture and the Series [ ]-A2 Supplement by wire transfer of immediately available funds to the account designated by the Holder of record on the related Record Date.
This Series [ ]-A2 Note is one of the authorized notes identified in the title hereto and issued pursuant to the Indenture and the Series [ ]-A2 Supplement.
The Series [ ]-A2 Notes shall be an obligation of WEST and shall be secured by the Collateral, all as defined in, and subject to limitations set forth in, the Indenture.
This Series [ ]-A2 Note is transferable as provided in the Indenture and the Series [ ]-A2 Supplement, subject to certain limitations therein contained, only upon the books for registration and transfer kept by the Indenture Trustee, and only upon surrender of this Series [ ]-A2 Note for transfer to the Indenture Trustee duly endorsed by, or accompanied by a written instrument of transfer and an assumption of the obligation of the transferor to make the Series [ ]-A2 Loans in form reasonably satisfactory to the Indenture Trustee duly executed by, the registered Holder hereof or his attorney duly authorized in writing. The Indenture Trustee shall not recognize any transfer of this Series [ ]-A2 Note prior to the occurrence of a Conversion Event, unless the transferee meets the requirements for an Eligible Transferee in the Series [ ]-A2 Supplement and agrees to make the Series [ ]-A2 Loans up to an
amount equal to the excess of the Maximum Principal Balance of this Series [ ]-A2 Note at the time of transfer over the Outstanding Principal Balance of this Series [ ]-A2 Note at such time. The Indenture Trustee or WEST may require payment by the Holder of a sum sufficient to cover any tax expense or other governmental charge payable in connection with any transfer or exchange of the Series [ ]-A2 Notes.
WEST, the Indenture Trustee and any other agent of WEST may treat the Person in whose name this Series [ ]-A2 Note is registered as the absolute owner hereof for all purposes, and neither WEST, the Indenture Trustee, nor any other such agent shall be affected by notice to the contrary.
The Series [ ]-A2 Notes are subject to Optional Redemption, at the times and subject to the conditions set forth in the Indenture and the Series [ ]-A2 Supplement.
If an Event of Default under the Indenture shall occur and be continuing, the principal of and accrued interest on this Series [ ]-A2 Note may be declared to be due and payable in the manner and with the effect provided in the Indenture and the Series [ ]-A2 Supplement.
The Indenture permits, with certain exceptions as therein provided, the issuance of supplemental indentures with the consent of the Requisite Majority, in certain specifically described instances. Any consent given by the Requisite Majority shall be conclusive and binding upon the Holder of this Series [ ]-A2 Note and on all future holders of this Series [ ]-A2 Note and of any Series [ ]-A2 Note issued in lieu hereof whether or not notation of such consent is made upon this Series [ ]-A2 Note. Supplements and amendments to the Indenture and the Series [ ]-A2 Supplement may be made only to the extent and in circumstances permitted by the Indenture and the Series [ ]-A2 Supplement.
The Holder of this Series [ ]-A2 Note shall have no right to enforce the provisions of the Indenture and the Series [ ]-A2 Supplement or to institute action to enforce the covenants, or to take any action with respect to a default under the Indenture and the Series [ ]-A2 Supplement, or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided under certain circumstances described in the Indenture and the Series [ ]-A2 Supplement; provided, however, that nothing contained in the Indenture and the Series [ ]-A2 Supplement shall affect or impair any right of enforcement conferred on the Holder hereof to enforce any payment of the principal of and interest on this Series [ ]-A2 Note on or after the due date thereof; provided further, however, that by acceptance hereof the Holder is deemed to have covenanted and agreed that it will not institute against WEST any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any applicable bankruptcy or similar law, at any time other than at such time as permitted by the Indenture and the Series [ ]-A2 Supplement.
This Series [ ]-A2 Note, and the rights and obligations of the parties hereunder, shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without giving effect to principles of conflict of laws, other than Sections 5-1401 and 5-1402 of the New York General Obligations Laws.
All terms and provisions of the Indenture and the Series [ ]-A2 Supplement are herein incorporated by reference as if set forth herein in their entirety.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED, that all acts, conditions and things required to exist, happen and be performed precedent to the execution and delivery of the Indenture and the Series [ ]-A2 Supplement and the issuance of this Series [ ]-A2 Note and the issue of which it is a part, do exist, have happened and have been timely performed in regular form and manner as required by law.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee by manual signature of one of its Responsible Officers, this Series [ ]-A2 Note shall not be entitled to any benefit under the Indenture and the Series [ ]-A2 Supplement, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, WEST has caused this Series [ ]-A2 Note to be duly executed by its duly authorized representative, as of the date first set above.
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WILLIS ENGINE
SECURITIZATION |
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By: |
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Name: |
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Title: |
This Note is one of the Series [ ]-A2 Notes described in the within-mentioned Series [ ]-A2 Supplement.
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DEUTSCHE BANK TRUST
COMPANY |
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By: |
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Name: |
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Title: |
Schedule A to Series [ ]-A2 Note
Aggregate principal amount of any Series [ ]-A2 Note issued in exchange for a portion or portions hereof and any portion or portions of any Series [ ]-A2 Note exchanged for a portion or portions hereof:
Date |
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Principal Amount Issued |
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Remaining Principal Amount |
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Notation |
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TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s) and transfer(s) unto
Taxpayer identification No.
Address:
the within Series [ ]-A2 Note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said Series [ ]-A2 Note on the books of WEST with full power of substitution in the premises.
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NOTE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
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In connection with any transfer of this Series [ ]-A2 Note occurring prior to the date which is the earlier of the end of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that without utilizing any general solicitation or general advertising:
{Check One}
{ } (a) this Series [ ]-A2 Note is being transferred in compliance with the exemption from registration under the Securities Act provided by Rule 144A thereunder;
or
{ } (b) this Series [ ]-A2 Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Series [ ]-A2 Note and the Indenture.
If none of the foregoing boxes is checked, the Indenture Trustee or other Note Registrar shall not be obligated to register this Series [ ]-A2 Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.12 of the Indenture shall have been satisfied.
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NOTE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED: The undersigned represents and warrants that it is purchasing this Series [ ]-A2 Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding WEST as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
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EXHIBIT B-1
FORM OF SERIES B TERM NOTE
Except as specified in Section 2.12(f) of the Indenture, each 144A Book-Entry Note, each Unrestricted Book-Entry Note and each Definitive Note issued in reliance on Section 4(2) of the Securities Act (and all Notes issued in exchange therefor or upon registration of transfer or substitution thereof) shall bear the following legend on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR WITH ANY SECURITIES REGULATORY AUTHORITY IN ANY JURISDICTION AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”) OR (C) IT IS NOT A U.S. PERSON (WITHIN THE MEANING OF REGULATION S) AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT BEFORE TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS NOTE AND THE LAST DATE THAT WILLIS ENGINE SECURITIZATION TRUST, A DELAWARE STATUTORY TRUST (“WEST”), OR ANY OF ITS AFFILIATES OWNED THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO WEST OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE INDENTURE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE INDENTURE TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO WEST THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH OF CASES (A) THROUGH (F) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE IN THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TWO-YEAR PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE ATTACHED HERETO AND SUBMIT SUCH TRANSFER
NOTICE TO THE INDENTURE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE TRANSFER IS PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE INDENTURE TRUSTEE AND WEST SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE INDENTURE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Book-Entry Note shall also bear the following legend on the face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO WEST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS BOOK-ENTRY NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS BOOK-ENTRY NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.12 OF THE INDENTURE.
Each Regulation S Temporary Book-Entry Note shall bear the following legend on the face thereof:
THIS NOTE IS A REGULATION S TEMPORARY BOOK-ENTRY NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER AND IS SUBJECT TO RESTRICTIONS ON THE TRANSFER AND EXCHANGE THEREOF AND ON THE PAYMENT OF INTEREST THEREON AS SPECIFIED IN THE INDENTURE.
WILLIS ENGINE SECURITIZATION TRUST
SERIES [ ]-B1 FLOATING RATE SECURED NOTE
$[XX] |
CUSIP No.: |
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No. |
[ , ], [ ]
KNOW ALL PERSONS BY THESE PRESENTS that WILLIS ENGINE SECURITIZATION TRUST, a Delaware statutory trust (“WEST”), for value received, hereby promises to pay to [ ], or registered assigns, at the principal corporate trust office of the Indenture Trustee named below, (i) the principal sum of Dollars ($ ), which sum shall be payable on each Payment Date on the dates and in the amounts set forth in the Indenture, dated as of August 9, 2005 and amended and restated as of December 13, 2007 (as amended, restated or otherwise modified from time to time, the “Indenture”), and the Series [ ]-B1 Supplement, dated as of [ , ], [ ] (as amended, restated or otherwise modified from time to time, the “Series [ ]-B1 Supplement”), each between WEST and Deutsche Bank Trust Company Americas, as indenture trustee (the “Indenture Trustee”), and (ii) interest on the outstanding principal amount of this Series [ ]-B1 Floating Rate Secured Note (this “Series [ ]-B1 Note”) on the dates and in the amounts set forth in the Indenture and the Series [ ]-B1 Supplement. Capitalized terms not otherwise defined herein will have the meaning set forth in the Indenture and the Series [ ]-B1 Supplement.
Payment of the principal of and interest on this Series [ ]-B1 Note shall be made in lawful money of the United States of America which at the time of payment is legal tender for payment of public and private debts. The principal balance of, and interest on, this Series [ ]-B1 Note is payable at the times and in the amounts set forth in the Indenture and the Series [ ]-B1 Supplement by wire transfer of immediately available funds to the account designated by the Holder of record on the related Record Date.
This Series [ ]-B1 Note is one of the authorized notes identified in the title hereto and issued pursuant to the Indenture and the Series [ ]-B1 Supplement.
The Series [ ]-B1 Notes shall be an obligation of WEST and shall be secured by the Collateral, all as defined in, and subject to limitations set forth in, the Indenture.
This Series [ ]-B1 Note is transferable as provided in the Indenture and the Series [ ]-B1 Supplement, subject to certain limitations therein contained, only upon the books for registration and transfer kept by the Indenture Trustee, and only upon surrender of this Series [ ]-B1 Note for transfer to the Indenture Trustee duly endorsed by, or accompanied by a written instrument of transfer in form reasonably satisfactory to the Indenture Trustee duly executed by, the registered Holder hereof or his attorney duly authorized in writing. The Indenture Trustee or WEST may require payment by the Holder of a sum sufficient to cover any tax expense or other governmental charge payable in connection with any transfer or exchange of the Series [ ]-B1 Notes.
WEST, the Indenture Trustee and any other agent of WEST may treat the Person in whose name this Series [ ]-B1 Note is registered as the absolute owner hereof for all
purposes, and neither WEST, the Indenture Trustee, nor any other such agent shall be affected by notice to the contrary.
The Series [ ]-B1 Notes are subject to prepayment, at the times and subject to the conditions set forth in the Indenture and the Series [ ]-B1 Supplement.
If an Event of Default under the Indenture shall occur and be continuing, the principal of and accrued interest on this Series [ ]-B1 Note may be declared to be due and payable in the manner and with the effect provided in the Indenture and the Series [ ]-B1 Supplement.
The Indenture permits, with certain exceptions as therein provided, the issuance of supplemental indentures with the consent of the Requisite Majority, in certain specifically described instances. Any consent given by the Requisite Majority shall be conclusive and binding upon the Holder of this Series [ ]-B1 Note and on all future holders of this Series [ ]-B1 Note and of any Series [ ]-B1 Note issued in lieu hereof whether or not notation of such consent is made upon this Series [ ]-B1 Note. Supplements and amendments to the Indenture and the Series [ ]-B1 Supplement may be made only to the extent and in circumstances permitted by the Indenture and the Series [ ]-B1 Supplement.
The Holder of this Series [ ]-B1 Note shall have no right to enforce the provisions of the Indenture and the Series [ ]-B1 Supplement or to institute action to enforce the covenants, or to take any action with respect to a default under the Indenture and the Series [ ]-B1 Supplement, or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided under certain circumstances described in the Indenture and the Series [ ]-B1 Supplement; provided, however, that nothing contained in the Indenture and the Series [ ]-B1 Supplement shall affect or impair any right of enforcement conferred on the Holder hereof to enforce any payment of the principal of and interest on this Series [ ]-B1 Note on or after the due date thereof; provided further, however, that by acceptance hereof the Holder is deemed to have covenanted and agreed that it will not institute against WEST any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any applicable bankruptcy or similar law, at any time other than at such time as permitted by the Indenture and the Series [ ]-B1 Supplement.
The indebtedness evidenced by the Notes issued under the Series [ ]-B1 Supplement is, to the extent and in the manner provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Claims (as defined in the Indenture), and this Series [ ]-B1 Note is issued subject to such provisions. Each Holder of this Series [ ]-B1 Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Indenture Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in the Indenture and (c) appoints the Indenture Trustee his attorney-in-fact for such purpose.
The maturity of this Series [ ]-B1 Note is subject to acceleration upon the occurrence and during the continuance of the Events of Default specified in the Indenture. The Holders of the Notes issued under the Series [ ]-B1 Supplement shall not be permitted to deliver a Default Notice or to exercise any remedy in respect of any such Event of Default until all interest on and principal of the Series A Notes have been paid in full.
The Holder of this Series [ ]-B1 Note agrees, by acceptance hereof, to pay over to the Administrative Agent any money (including principal, premium and interest) paid to it in respect of this Series [ ]-B1 Note in the event that the Indenture Trustee, acting in good faith, determines subsequently that such monies were not paid in accordance with the priority of payment provisions of the Indenture or as a result of any other mistake of fact or law on the part of the Administrative Agent in making such payment.
The subordination provisions contained in Section 3.14 and Article XI of the Indenture may not be amended or modified without the consent of each Hedge Counterparty, each Holder of the subclass affected thereby and each Noteholder of any subclass of Notes ranking senior thereto.
The Indenture also contains provisions permitting the Holders of Notes representing a majority of the Outstanding Principal Balance of the Senior Series of Notes to waive compliance by WEST with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver shall be conclusive and binding upon all present and future Holders of this Series [ ]-B1 Note and of any Series [ ]-B1 Note issued upon the registration of transfer of, in exchange or in lieu of or upon the refinancing of this Series [ ]-B1 Note, whether or not notation of such consent or waiver is made upon this Series [ ]-B1 Note.
This Series [ ]-B1 Note, and the rights and obligations of the parties hereunder, shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without giving effect to principles of conflict of laws, other than Section 5-1401 and 5-1402 of the New York General Obligation Law.
All terms and provisions of the Indenture and the Series [ ]-B1 Supplement are herein incorporated by reference as if set forth herein in their entirety.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED, that all acts, conditions and things required to exist, happen and be performed precedent to the execution and delivery of the Indenture and the Series [ ]-B1 Supplement and the issuance of this Series [ ]-B1 Note and the issue of which it is a part, do exist, have happened and have been timely performed in regular form and manner as required by law.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee by manual signature of one of its Responsible Officers, this Series [ ]-B1 Note shall not be entitled to any benefit under the Indenture and the Series [ ]-B1 Supplement, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, WEST has caused this Series [ ]-B1 Note to be duly executed by its duly authorized representative, as of the date first set above.
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WILLIS ENGINE
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This Note is one of the Series [ ]-B1 Notes described in the within-mentioned Series [ ]-B1 Supplement.
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DEUTSCHE
BANK TRUST COMPANY |
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Schedule A to Series [ ]-B1 Note
Aggregate principal amount of any Series [ ]-B1 Note issued in exchange for a portion or portions hereof and any portion or portions of any Series [ ]-B1 Note exchanged for a portion or portions hereof:
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TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s) and transfer(s) unto
Taxpayer identification No.
Address:
the within Series [ ]-B1 Note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said Series [ ]-B1 Note on the books of WEST with full power of substitution in the premises.
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NOTE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
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In connection with any transfer of this Series [ ]-B1 Note occurring prior to the date which is the earlier of the end of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that without utilizing any general solicitation or general advertising:
{Check One}
{ } (a) this Series [ ]-B1 Note is being transferred in compliance with the exemption from registration under the Securities Act provided by Rule 144A thereunder;
or
{ } (b) this Series [ ]-B1 Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Series [ ]-B1 Note and the Indenture.
If none of the foregoing boxes is checked, the Indenture Trustee or other Note Registrar shall not be obligated to register this Series [ ]-B1 Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.12 of the Indenture shall have been satisfied.
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NOTE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED: The undersigned represents and warrants that it is purchasing this Series [ ]-B1 Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding WEST as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
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EXHIBIT B-2
FORM OF SERIES B WAREHOUSE NOTE
Except as specified in Section 2.12(f) of the Indenture, each 144A Book-Entry Note, each Unrestricted Book-Entry Note and each Definitive Note issued in reliance on Section 4(2) of the Securities Act (and all Notes issued in exchange therefor or upon registration of transfer or substitution thereof) shall bear the following legend on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR WITH ANY SECURITIES REGULATORY AUTHORITY IN ANY JURISDICTION AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”) OR (C) IT IS NOT A U.S. PERSON (WITHIN THE MEANING OF REGULATION S) AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT BEFORE TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS NOTE AND THE LAST DATE THAT WILLIS ENGINE SECURITIZATION TRUST, A DELAWARE STATUTORY TRUST (“WEST”), OR ANY OF ITS AFFILIATES OWNED THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO WEST OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE INDENTURE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE INDENTURE TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO WEST THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH OF CASES (A) THROUGH (F) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE IN THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TWO-YEAR PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER NOTICE ATTACHED HERETO AND SUBMIT SUCH TRANSFER
NOTICE TO THE INDENTURE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE TRANSFER IS PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE INDENTURE TRUSTEE AND WEST SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE INDENTURE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Book-Entry Note shall also bear the following legend on the face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO WEST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS BOOK-ENTRY NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS BOOK-ENTRY NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.12 OF THE INDENTURE.
Each Regulation S Temporary Book-Entry Note shall bear the following legend on the face thereof:
THIS NOTE IS A REGULATION S TEMPORARY BOOK-ENTRY NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER AND IS SUBJECT TO RESTRICTIONS ON THE TRANSFER AND EXCHANGE THEREOF AND ON THE PAYMENT OF INTEREST THEREON AS SPECIFIED IN THE INDENTURE.
WILLIS ENGINE SECURITIZATION TRUST
SERIES [ ]-B2 FLOATING RATE SECURED NOTE
$[XX] |
No. |
[ ], [ ]
KNOW ALL PERSONS BY THESE PRESENTS that WILLIS ENGINE SECURITIZATION TRUST, a Delaware statutory trust (“WEST”), for value received, hereby promises to pay to [ ], or registered assigns, at the principal corporate trust office of the Indenture Trustee named below, (i) the principal amount of the Series [ ]-B2 Loans made by the holder hereof to WEST in an amount up to the Maximum Principal Balance of Dollars ($ ),which principal amount shall be payable on each Payment Date on the dates and in the amounts set forth in the Indenture, dated as of August 9, 2005 and amended and restated as of December 13, 2007 (as amended, restated or otherwise modified from time to time, the “Indenture”), and the Series [ ]-B2 Supplement, dated as of [ , ], [ ] (as amended, restated or otherwise modified from time to time, the “Series [ ]-B2 Supplement”), each between WEST and Deutsche Bank Trust Company Americas, as indenture trustee (the “Indenture Trustee”), and (ii) interest on the outstanding principal amount of this Series [ ]-B2 Floating Rate Secured Note (this “Series [ ]-B2 Note”) on the dates and in the amounts set forth in the Indenture and the Series [ ]-B2 Supplement. Capitalized terms not otherwise defined herein will have the meaning set forth in the Indenture and the Series [ ]-B2 Supplement.
Payment of the principal of, interest on and Increased Costs for this Series [ ]-B2 Note shall be made in lawful money of the United States of America which at the time of payment is legal tender for payment of public and private debts. The principal balance of, and interest on, this Series [ ]-B2 Note and any Increased Costs are payable at the times and in the amounts set forth in the Indenture and the Series [ ]-B2 Supplement by wire transfer of immediately available funds to the account designated by the Holder of record on the related Record Date.
This Series [ ]-B2 Note is one of the authorized notes identified in the title hereto and issued pursuant to the Indenture and the Series [ ]-B2 Supplement.
The Series [ ]-B2 Notes shall be an obligation of WEST and shall be secured by the Collateral, all as defined in, and subject to limitations set forth in, the Indenture.
This Series [ ]-B2 Note is transferable as provided in the Indenture and the Series [ ]-B2 Supplement, subject to certain limitations therein contained, only upon the books for registration and transfer kept by the Indenture Trustee, and only upon surrender of this Series [ ]-B2 Note for transfer to the Indenture Trustee duly endorsed by, or accompanied by a written instrument of transfer and an assumption of the obligation of the transferor to make the Series [ ]-B2 Loans in form reasonably satisfactory to the Indenture Trustee duly executed by, the registered Holder hereof or his attorney duly authorized in writing. The Indenture Trustee shall not recognize any transfer of this Series [ ]-B2 Note prior to the occurrence of a Conversion Event, unless the transferee meets the requirements for an Eligible Transferee in the Series [ ]-B2 Supplement and agrees to make the Series [ ]-B2 Loans up to an amount
equal to the excess of the Maximum Principal Balance of this Series [ ]-B2 Note at the time of transfer over the Outstanding Principal Balance of this Series [ ]-B2 Note at such time. The Indenture Trustee or WEST may require payment by the Holder of a sum sufficient to cover any tax expense or other governmental charge payable in connection with any transfer or exchange of the Series [ ]-B2 Notes.
WEST, the Indenture Trustee and any other agent of WEST may treat the Person in whose name this Series [ ]-B2 Note is registered as the absolute owner hereof for all purposes, and neither WEST, the Indenture Trustee, nor any other such agent shall be affected by notice to the contrary.
The Series [ ]-B2 Notes are subject to Optional Redemption, at the times and subject to the conditions set forth in the Indenture and the Series [ ]-B2 Supplement.
If an Event of Default under the Indenture shall occur and be continuing, the principal of and accrued interest on this Series [ ]-B2 Note may be declared to be due and payable in the manner and with the effect provided in the Indenture and the Series [ ]-B2 Supplement.
The Indenture permits, with certain exceptions as therein provided, the issuance of supplemental indentures with the consent of the Requisite Majority, in certain specifically described instances. Any consent given by the Requisite Majority shall be conclusive and binding upon the Holder of this Series [ ]-B2 Note and on all future holders of this Series [ ]-B2 Note and of any Series [ ]-B2 Note issued in lieu hereof whether or not notation of such consent is made upon this Series [ ]-B2 Note. Supplements and amendments to the Indenture and the Series [ ]-B2 Supplement may be made only to the extent and in circumstances permitted by the Indenture and the Series [ ]-B2 Supplement.
The Holder of this Series [ ]-B2 Note shall have no right to enforce the provisions of the Indenture and the Series [ ]-B2 Supplement or to institute action to enforce the covenants, or to take any action with respect to a default under the Indenture and the Series [ ]-B2 Supplement, or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided under certain circumstances described in the Indenture and the Series [ ]-B2 Supplement; provided, however, that nothing contained in the Indenture and the Series [ ]-B2 Supplement shall affect or impair any right of enforcement conferred on the Holder hereof to enforce any payment of the principal of and interest on this Series [ ]-B2 Note on or after the due date thereof; provided further, however, that by acceptance hereof the Holder is deemed to have covenanted and agreed that it will not institute against WEST any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any applicable bankruptcy or similar law, at any time other than at such time as permitted by the Indenture and the Series [ ]-B2 Supplement.
The indebtedness evidenced by the Notes issued under the Series [ ]-B2 Supplement is, to the extent and in the manner provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Claims (as defined in the Indenture), and this Series [ ]-B2 Note is issued subject to such provisions. Each Holder of this Series [ ]-B2 Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Indenture Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture, and (c) appoints the Indenture Trustee his attorney-in-fact for such purpose.
The maturity of this Series [ ]-B2 Note is subject to acceleration upon the occurrence and during the continuance of the Events of Default specified in the Indenture. The Holders of the Notes issued under the Series [ ]-B2 Supplement shall not be permitted to deliver a Default Notice or to exercise any remedy in respect of any such Event of Default until all interest on and principal of the Series A Notes have been paid in full.
The Holder of this Series [ ]-B2 Note agrees, by acceptance hereof, to pay over to the Administrative Agent any money (including principal, premium and interest) paid to it in respect of this Series [ ]-B2 Note in the event that the Indenture Trustee, acting in good faith, determines subsequently that such monies were not paid in accordance with the priority of payment provisions of the Indenture or as a result of any other mistake of fact or law on the part of the Administrative Agent in making such payment.
The subordination provisions contained in Section 3.14 and Article XI of the Indenture may not be amended or modified without the consent of each Hedge Counterparty, each Holder of the subclass affected thereby and each Holder of any subclass of Notes ranking senior thereto.
The Indenture also contains provisions permitting the Holders of Notes representing a majority of the Outstanding Principal Balance of the Senior Series of Notes to waive compliance by WEST with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver shall be conclusive and binding upon all present and future Holders of this Series [ ]-B2 Note and of any Series [ ]-B2 Note issued upon the registration of transfer of, in exchange or in lieu of or upon the refinancing of this Series [ ]-B2 Note, whether or not notation of such consent or waiver is made upon this Series [ ]-B2 Note.
This Series [ ]-B2 Note, and the rights and obligations of the parties hereunder, shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without giving effect to principles of conflict of laws, other than Sections 5-1401 and 5-1402 of the New York General Obligations Laws.
All terms and provisions of the Indenture and the Series [ ]-B2 Supplement are herein incorporated by reference as if set forth herein in their entirety.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED, that all acts, conditions and things required to exist, happen and be performed precedent to the execution and delivery of the Indenture and the Series [ ]-B2 Supplement and the issuance of this Series [ ]-B2 Note and the issue of which it is a part, do exist, have happened and have been timely performed in regular form and manner as required by law.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee by manual signature of one of its Responsible Officers, this Series [ ]-B2 Note shall not be entitled to any benefit under the Indenture and the Series [ ]-B2 Supplement, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, WEST has caused this Series [ ]-B2 Note to be duly executed by its duly authorized representative, as of the date first set above.
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WILLIS ENGINE
SECURITIZATION |
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This Note is one of the Series [ ]-B2 Notes described in the within-mentioned Series [ ]-B2 Supplement.
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DEUTSCHE BANK TRUST
COMPANY |
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Schedule A to Series [ ]-B2 Note
Aggregate principal amount of any Series [ ]-B2 Note issued in exchange for a portion or portions hereof and any portion or portions of any Series [ ]-B2 Note exchanged for a portion or portions hereof:
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TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s) and transfer(s) unto
Taxpayer identification No.
Address:
the within Series [ ]-B2 Note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said Series [ ]-B2 Note on the books of WEST with full power of substitution in the premises.
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NOTE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
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In connection with any transfer of this Series [ ]-B2 Note occurring prior to the date which is the earlier of the end of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that without utilizing any general solicitation or general advertising:
{Check One}
{ } (a) this Series [ ]-B2 Note is being transferred in compliance with the exemption from registration under the Securities Act provided by Rule 144A thereunder;
or
{ } (b) this Series [ ]-B2 Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Series [ ]-B2 Note and the Indenture.
If none of the foregoing boxes is checked, the Indenture Trustee or other Note Registrar shall not be obligated to register this Series [ ]-B2 Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.12 of the Indenture shall have been satisfied.
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NOTE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED: The undersigned represents and warrants that it is purchasing this Series [ ]-B2 Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding WEST as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
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EXHIBIT C-1
FORM OF CERTIFICATE TO BE GIVEN BY NOTEHOLDERS
[Euroclear
151 Boulevard Jacqmain
B-1210 Brussels, Belgium]
[Clearstream Banking, société anonyme
f/k/a CedelBank, société anonyme
67 Boulevard Grand-Duchesse Charlotte
L-1331 Luxembourg]
Re: Series [ ] Floating Rate Secured Notes (the “Offered Notes”) issued pursuant to the Series [ ] Supplement, dated as of [ ], [ ], between Willis Engine Securitization Trust (“WEST”) and Deutsche Bank Trust Company Americas (the “Indenture Trustee”) to the Indenture, dated as of August 9, 2005 and amended and restated as of December 13, 2007, between WEST and the Indenture Trustee.
This is to certify that as of the date hereof, and except as set forth below, the beneficial interest in the Offered Notes held by you for our account is owned by persons that are not U.S. persons (as defined in Rule 902 under the Securities Act of 1933, as amended).
The undersigned undertakes to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Offered Notes held by you in which the undersigned has acquired, or intends to acquire, a beneficial interest in accordance with your operating procedures if any applicable statement herein is not correct on such date. In the absence of any such notification, it may be assumed that this certification applies as of such date.
[This certification excepts beneficial interests in and does not relate to U.S. $ principal amount of the Offered Notes appearing in your books as being held for our account but that we have sold or as to which we are not yet able to certify.]
We understand that this certification is required in connection with certain securities laws in the United States of America. If administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification or a copy thereof to any interested party in such proceedings.
Dated:* |
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Account Holder |
*Certification must be dated on or after the 15th day before the date of the Euroclear or Clearstream certificate to which this certification relates.
EXHIBIT C-2
FORM OF
CERTIFICATE TO BE GIVEN BY EUROCLEAR OR CLEARSTREAM
Deutsche Bank Trust Company Americas
as Indenture Trustee and Note Registrar
[ ]
New York, New York [ ]
Attention: [ ]
Re: Series [ ] Floating Rate Secured Notes (the “Offered Notes”) issued pursuant to the Series [ ] Supplement, dated as of [ , ], [ ], between Willis Engine Securitization Trust (“WEST”) and Deutsche Bank Trust Company Americas (the “Indenture Trustee”) to the Indenture, dated as of August 9, 2005 and amended and restated as of December 13, 2007, between WEST and the Indenture Trustee. (Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.)
This is to certify that, based solely on certifications we have received in writing or by electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our “Member Organizations”) as of the date hereof, $ principal amount of the Offered Notes is owned by persons (a) that are not U.S. persons (as defined in Rule 902 under the Securities Act of 1933, as amended (the “Securities Act”)) or (b) who purchased their Offered Notes (or interests therein) in a transaction or transactions that did not require registration under the Securities Act.
We further certify (a) that we are not making available herewith for exchange any portion of the related Regulation S Temporary Book-Entry Note excepted in such certifications and (b) that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by them with respect to any portion of the part submitted herewith for exchange are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain securities laws of the United States of America. If administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification or a copy hereof to any interested party in such proceedings.
Date: |
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Yours faithfully, |
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[Morgan Guaranty Trust Company of New York, Brussels Office, as Operator of the Euroclear Clearance System] [Clearstream, société anonyme] |
EXHIBIT C-3
FORM OF CERTIFICATE TO DEPOSITORY REGARDING INTEREST
[Euroclear
151 Boulevard Jacqmain
B-1210 Brussels, Belgium]
[Clearstream Banking, société anonyme
f/k/a CedelBank, société anonyme
67 Boulevard Grand-Duchesse Charlotte
L-1331 Luxembourg]
Re: Series [ ] Floating Rate Secured Notes (the “Offered Notes”) issued pursuant to the Series [ ] Supplement, dated as of [ ], [ ], between Willis Engine Securitization Trust (“WEST”) and Deutsche Bank Trust Company Americas (the “Indenture Trustee”) to the Indenture, dated as of August 9, 2005 and amended and restated as of December 13, 2007, between WEST and the Indenture Trustee. (Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.)
This letter relates to $[ ] principal amount of the Offered Notes that are held in the form of a beneficial interest in the Regulation S Temporary Book-Entry Note (CUSIP No. ) through [insert name of Depository] by the undersigned (the “Holder”) in the name of [insert name of Participant]. The Holder of such Regulation S Temporary Book-Entry Note hereby requests the receipt of payment of interest installments due and payable [on the applicable Payment Date] pursuant to Section 2.05 of the Indenture.
The Holder hereby represents and warrants that it (i) is not a U.S. person and (ii) does not hold the above-referenced Regulation S Temporary Book-Entry Note for the account or benefit of a U.S. person (other than a distributor). Terms in this sentence have the meanings given to them in Regulation S under the Securities Act of 1933, as amended.
This certificate and the statements contained herein are made for your benefit and the benefit of the Paying Agent.
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[Name of Holder] |
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EXHIBIT C-4
FORM OF DEPOSITORY CERTIFICATE REGARDING INTEREST
[ ], as Paying Agent
[Address]
Re: Series [ ] Floating Rate Secured Notes (the “Offered Notes”) issued pursuant to the Series [ ] Supplement, dated as of [ }, [ ], between Willis Engine Securitization Trust (“WEST”) and Deutsche Bank Trust Company Americas (the “Indenture Trustee”) to the Indenture, dated as of August 9, 2005 and amended and restated as of December 13, 2007, between WEST and the Indenture Trustee. (Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.)
This letter relates to $ principal amount of Series [ ] Notes that are held in the form of a beneficial interest in the Regulation S Temporary Book-Entry Note (CUSIP No. ) through [insert name of Depository] by the undersigned (the “Holder”) in the name of [insert name of Participant]. Certain Holders of the beneficial interests in such Regulation S Temporary Book-Entry Note have requested the receipt of payment of interests installments due and payable [on the applicable Payment Date] pursuant to Section 2.05 of the Indenture.
We have received from such Holders certifications to the effect that they (i) are not U.S. persons and (ii) do not hold the above-referenced Regulation S Temporary Book-Entry Note for the account or benefit of U.S. persons (other than distributors). Terms in this sentence have the meanings given to them in Regulation S under the Securities Act of 1933, as amended.
Accordingly, the Holders of the beneficial interests in the Regulation S Temporary Book-Entry Note are entitled to receive interest, principal and premium, if any, in accordance with the terms of the Indenture in the amount of $ .
[Morgan Guaranty Trust Company of New York, Brussels Office, as Operator of the Euroclear Clearance System] [Clearstream, société anonyme]
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EXHIBIT C-5
FORM OF
TRANSFER CERTIFICATE FOR EXCHANGE OR
TRANSFER FROM 144A BOOK-ENTRY NOTE
TO REGULATION S BOOK-ENTRY NOTE
Deutsche Bank Trust Company Americas,
as Indenture Trustee and Note Registrar
[ ]
New York, New York [ |
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Attention: [ |
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Re: Series [ ] Floating Rate Secured Notes (the “Offered Notes”) issued pursuant to the Series [ ] Supplement, dated as of [ ], [ ], between Willis Engine Securitization Trust (“WEST”) and Deutsche Bank Trust Company Americas (the “Indenture Trustee”) to the Indenture, dated as of August 9, 2005 and amended and restated as of December 13, 2007 (as supplemented, the “Indenture”), between WEST and the Indenture Trustee. (Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.)
This letter relates to U.S. $ principal amount of Offered Notes that are held as a beneficial interest in the 144A Book-Entry Note (CUSIP No. ) with DTC in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of the beneficial interest for an interest in the Regulation S Book-Entry Note (CUSIP No. ) to be held with [Euroclear] [Clearstream] through DTC.
In connection with the request and in receipt of the Offered Notes, the Transferor does hereby certify that the exchange or transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the Offered Notes and:
(a) pursuant to and in accordance with Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:
(i) the offer of the Offered Notes was not made to a person in the United States of America,
(ii) either (A) at the time the buy order was originated, the transferee was outside the United States of America or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States of America, or (B) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States of America,
(iii) no directed selling efforts have been made in contravention of the requirements of Rule 903 or 904 of Regulation S, as applicable, and the other
conditions of Rule 903 or Rule 904 of Regulation S, as applicable, have been satisfied and
(iv) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act, and
(b) with respect to transfers made in reliance on Rule 144A under the Securities Act, the Transferor does hereby certify that the Notes are being transferred in a transaction permitted by Rule 144A under the Securities Act.
This certification and the statements contained herein are made for your benefit and the benefit of WEST.
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[Insert name of Transferor] |
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EXHIBIT C-6
FORM OF INITIAL PURCHASER EXCHANGE INSTRUCTIONS
Depository Trust Company
55 Water Street
50th Floor
New York, New York 10041
Re: Series [ ] Floating Rate Secured Notes (the “Offered Notes”) issued pursuant to the Series [ ] Supplement, dated as of [ ], [ ], between Willis Engine Securitization Trust (“WEST”) and Deutsche Bank Trust Company Americas (the “Indenture Trustee”) to the Indenture, dated as of August 9, 2005 and amended and restated as of December 13, 2007, between WEST and the Indenture Trustee. (Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.)
Pursuant to Section 2.07 of the Indenture, [insert name of an Initial Purchaser] (the “Initial Purchaser”) hereby requests that $ aggregate principal amount of the Offered Notes held by you for our account and represented by the Regulation S Temporary Book-Entry Note (CUSIP No. ) be exchanged for an equal principal amount represented by the 144A Book-Entry Note (CUSIP No. ) to be held by you for our account.
Dated: |
[insert name of the Initial Purchaser] |
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as Initial Purchaser |
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EXHIBIT C-7
FORM OF
CERTIFICATE TO BE GIVEN BY TRANSFEREE OF BENEFICIAL INTEREST IN A REGULATION S
TEMPORARY BOOK ENTRY NOTE
[Euroclear
151 Boulevard Jacqmain
B-1210 Brussels, Belgium]
[Clearstream Banking, société anonyme
f/k/a CedelBank, société anonyme
67 Boulevard Grand-Duchesse Charlotte
L-1331 Luxembourg]
Re: Series [ ] Floating Rate Secured Notes (the “Offered Notes”) issued pursuant to the Series [ ] Supplement, dated as of [ ], [ ], between Willis Engine Securitization Trust (“WEST”) and Deutsche Bank Trust Company Americas (the “Indenture Trustee”) to the Indenture, dated as of August 9, 2005 and amended and restated as of December 13, 2007, between WEST and the Indenture Trustee.
This is to certify that as of the date hereof, and except as set forth below, for purposes of acquiring a beneficial interest in the Offered Notes, the undersigned certifies that it is not a U.S. person (as defined in Rule 902 under the Securities Act of 1933, as amended).
The undersigned undertakes to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Offered Notes held by you in which the undersigned intends to acquire a beneficial interest in accordance with your operating procedures if any applicable statement herein is not correct on such date. In the absence of any such notification, it may be assumed that this certification applies as of such date.
We understand that this certification is required in connection with certain securities laws in the United States of America. If administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification or a copy thereof to any interested party in such proceedings.
Dated: By:
EXHIBIT D
FORM OF INVESTMENT LETTER TO BE DELIVERED IN CONNECTION WITH TRANSFERS TO NON-QIB ACCREDITED INVESTORS
,
Deutsche Bank Trust Company
Americas
60 Wall Street
MS NYC 60-2606
New York, New York 10005
Ladies and Gentlemen:
In connection with our proposed purchase of $ of the Series Floating Rate Notes (the “Notes”) issued by Willis Engine Securitization Trust (“WEST”), we confirm that:
(i) we have received a copy of the offering memorandum (the “Offering Memorandum”) relating to the Notes and such other information as we deem necessary in order to make our investment decision. We acknowledge that we have read and agree to the matters stated under the caption “TRANSFER RESTRICTIONS” in such Offering memorandum, and the restrictions on duplication or circulation of, or disclosure relating to, such Offering Memorandum;
(ii) we understand that any subsequent transfer of the Notes is subject to certain restrictions and conditions set forth in the indenture relating to the Notes (the “Indenture”) and that any subsequent transfer of the Notes is subject to certain restrictions and conditions set forth under “TRANSFER RESTRICTIONS” in the Offering Memorandum and the undersigned agree to be bound by, and not to resell, pledge or otherwise transfer the Notes except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”);
(iii) we understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we sell any Notes, we will do so only (A) to WEST, (B) in accordance with Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an Institutional Accredited Investor” (as defined below) that, prior to such transfer, furnishes to the Trustee (as defined in the Offering Memorandum) (the “Trustee”), a signed letter containing certain representations and agreements relating to the restrictions on transfer of the Notes (substantially in the form of this letter), (D) in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act, (E) pursuant to the exemption from registration provided by Rule 144 under the Securities Act (if available), (F) pursuant to another applicable exemption from registration under the Securities Act, provided we provide an opinion of counsel acceptable to WEST or (G) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Notes from us a notice advising such purchaser that resales of the Notes are restricted as stated herein;
(iv) we (or any account for which we are exercising sole investment discretion) are an “Institutional Accredited Investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which are acting are each able to bear the economic risk of our or its investment for an indefinite period of time;
(v) we are acquiring Notes for or own account (or an account for which we are exercising sole investment discretion) for investment and not with a view to any distribution thereof in a transaction that would violate the Securities Act or the securities laws of any state of the United States or any other applicable jurisdiction; provided that the disposition of our property and the property of any accounts (each of which is an Institutional Accredited Investor) for which we are acting as fiduciary shall remain at all times within our control;
(vi) we represent and warrant with respect to any Notes that either (i) no assets of a Plan (as defined in the Offering Memorandum) have been used to purchase the Notes or (ii) one or more statutory or administrative exemptions applies so that the use of such Plan assets to purchase and hold the Notes will not constitute a non-exempt Prohibited Transaction (as defined in the Offering Memorandum); and
(vii) We understand that, on any proposed resale of any Notes, we will be required to furnish to the Trustee and WEST such certifications, legal opinions and other information as the Trustee and WEST may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend substantially to the foregoing effect.
Terms used in this letter and not defined shall have the meanings assigned in the Offering Memorandum.
WEST, the Initial Purchaser (as defined in the Offering Memorandum) and the Trustee are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
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EXHIBIT E
CONCENTRATION LIMITS
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Percentage
of Aggregate Net |
Engine Type Concentration Limits |
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Single Engine type (except CFM56-7B) |
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CFM56-7B Engines |
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Single supported narrow body aircraft type |
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*** |
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Single supported wide body aircraft type |
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*** |
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Aggregated supported wide body aircraft type |
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*** |
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Lessee Concentration Limit |
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Single lessee |
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*** |
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Top 3 lessees |
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*** |
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Lessee locations: |
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North America |
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*** |
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South America |
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*** |
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Western Europe |
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*** |
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Eastern Europe |
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*** |
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Africa/Middle East |
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*** |
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Asia/Pacific |
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*** |
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Any emerging country |
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*** |
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Aggregate emerging country |
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*** |
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Total below investment grade lessees domiciled in accession countries with ownership rights not protected by insurance policy or recognition of rights agreements |
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*** Confidential information omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
Single below investment grade lessee domiciled in accession country with ownership rights not protected by insurance policy or recognition of rights agreements |
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*** |
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Lease Maturity Concentration Limit |
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Leases maturing during any 12 consecutive months |
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*** Confidential information omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission.
EXHIBIT F
PRI GUIDELINES
(a) |
Prohibited Countries: |
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Burma |
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Cuba |
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Iran |
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Iraq |
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Libya |
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North Korea |
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Sudan |
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Syria |
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(b) |
Countries with respect to which PRI must be procured: |
Angola |
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Congo |
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Mongolia |
Armenia |
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Equatorial Guinea |
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Niger |
Azerbaijan |
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Eritrea |
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Sao Tome & Principe |
Belarus |
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Ethiopia |
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Somalia |
Benin |
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Grenada |
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Sudan |
Bhutan |
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Kazakhstan |
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Syria |
Cameroon |
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Kirbati |
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Turkmenistan |
Cape Verde Islands |
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Kyrgistan |
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Uzbekistan |
Chad |
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Liberia |
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Comoros |
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Moldova |
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EXHIBIT G-1
FORM OF MONTHLY REPORT
(i) With respect to each Payment Date and for each of the Engine Acquisition Account, Engine Replacement Account, Engine Reserve Account, Security Deposit Account, Senior Restricted Cash Account, Junior Restricted Cash Account, Engine Reserve Account, Security Deposit/Lessee-Funded Account and any other Account specified by the Administrative Agent, the following information:
(a) the balances on deposit in each such Account on the Determination Date immediately preceding the prior Payment Date,
(b) the aggregate amounts of deposits and withdrawals from each such Account between such Determination Date and the Determination Date immediately preceding the Payment Date,
(c) the balances on deposit in each such Account on the Determination Date immediately preceding such Payment Date, and
(d) in the case of the Security Deposit/Lessee-Funded Account, the amount of any segregated funds accounted for in such account.
(ii) With respect to each Payment Date, an analysis of activity in the Expense Account since the preceding Determination Date
· Balance in the Expense Account on the prior Determination Date
· Required Expense Amount transferred to the Expense Account on the prior Payment Date, including information on the WEST Expenses and Ordinary Course Expenses, identifying any Significant Operating Expense accruals
· Aggregate payments made from the Expense Account during the period between prior Determination Date and the relevant Determination Date, including information on WEST Expenses and Ordinary Course Expenses, identifying any Significant Operating Expenses
· Balance in Expense Account on relevant Determination Date
· The amount of the Required Expense Reserve included in such Balance
(iii) With respect to each Payment Date, an analysis of activity in the Collections Account since preceding Determination Date
(a) Account Activity
· Balance in Collections Account on preceding Determination Date
· Collections during period beginning on the preceding Determination Date and ending on the applicable Determination Date
· Transfers between the Security Deposit Account and the Collections Account, including transfers on the prior Payment Date
· Transfers between the Engine Reserve Account and the Collections Account, including transfers on the prior Payment Date
· Total disbursements to Series Accounts on the prior Payment Date
· Hedge Payments paid and/or received on and since the prior Payment Date including Hedge Termination Payments
· Transfers to be made to and from Collections Account during the period beginning on the Determination Date and ending on the Payment Date
· Transfers of Collections Loans on the prior Payment Date
(b) Available Collections Amount for such Payment Date, including all amounts transferred to Collections Account during the period beginning on the Determination Date and through and including the current Payment Date, including any Collections Loans made on such Payment Date
(iv) With respect to each Payment Date and any other distribution date, the payments to be made on each Series for the current Payment Date (as applicable)
(a) Floating Rate Notes (by Series) – Payment Date
(1) Interest
· One-Month LIBOR for the Interest Accrual Period ending on the Payment Date
· Applicable interest rate for the Interest Accrual Period ending on the Payment Date
· Stated Interest Amount for Series A Notes
· Base Interest Amount for Series B Notes
· Supplemental Interest Amount for Series B Notes
· Conversion Step-Up Interest, if any
· Additional Interest, if any
· Commitment Fees, if any
(2) Principal
· Opening Outstanding Principal Balance
· Minimum Principal Payment Amounts for Series A Notes
· Scheduled Principal Payment Amounts for Series A Notes and Series B Notes
· Series A and Series B Supplemental Principal Payment Amounts
· Outstanding Principal Balance after all payments of principal on Payment Date
(b) Fixed Rate Notes (by Series)
(1) Interest
· Applicable interest rate
· Stated Interest Amount for Series A Notes
· Base Interest Amount for Series B Notes
· Supplemental Interest Amount for Series B Notes
· Conversion Step-Up Interest, if any
· Additional Interest, if any
· Commitment Fees, if any
(2) Principal
· Opening Outstanding Principal Balance
· Minimum Principal Payment Amounts for Series A Notes
· Scheduled Principal Payment Amounts for Series A Notes and Series B Notes
· Supplemental Principal Payment Amounts
· Outstanding Principal Balance after all payments of principal on Payment Date
(c) Redemption Date
(1) Interest
· Applicable interest rate
· Stated Interest Amount for Series A Notes
· Base Interest Amount for Series B Notes
(2) Principal
· Redemption Amount
· Redemption Price
· Redemption Premium, if any
(v) With respect to each Payment Date, the following information with respect to Permitted Engine Dispositions, Permitted Engine Acquisitions and Discretionary and Mandatory Engine Modifications during period between prior Determination Date and relevant Determination Date
· Identification of Engines subject to Permitted Engine Dispositions
· Cost of all Discretionary Engine Modifications
· Cost of all Mandatory Engine Modifications
· Pending or completed Replacement Exchanges during such period
(vi) With respect to each Payment Date, the Maximum Borrowing Base, the Senior Borrowing Base and the Junior Borrowing Base during the period beginning on the day after the prior Payment Date and ending on the current Payment Date and the amounts of any advances in respect of the Warehouse Notes and whether such advances (a) are to be deposited in the Engine Acquisition Account and used to
fund the acquisition of Additional Engines or the cost of Discretionary Engine Modifications or (b) are to be deposited in the Collections Account as Collections Loans and added to the Available Collections Amount for the current Payment Date.
(vii) With respect to the Collection Period ending on the immediately preceding Determination Date
· a discussion of any significant developments affecting WEST in period
· an updated description of the Engines then in the portfolio (showing Engine acquisitions and sales by WEST during the preceding month) and the related leases and lessees, in substantially the same form as the following tables, respectively, in the following sections of the Offering Memorandum relating to the Series 2005-A1 Term Notes, dated July 28, 2005: “The Engines in the Initial Portfolio – Appraisers’ Report” and the first table in “Initial Leases – Initial Lessees.”
EXHIBIT G-2
FORM OF ANNUAL REPORT
With respect to any Series of Notes, a statement setting forth the sum of all interest (including the Conversion Step-Up Interest, Additional Interest and Supplemental Interest) paid to each Holder of such Series for the most recent calendar year ending prior to the year in which the Annual Report is furnished, or, in the event a Person was a Holder of record of any Series during only a portion of such calendar year, for the applicable portion of such calendar year.
In addition, the following information shall be provided:
(i) audited financial statements of WEST for such calendar year;
(ii) a statement of the Engines off-lease due to any repossession during such calendar year;
(iii) a comparison of actual against expected principal payments on the Notes during such calendar year; and
(iv) a comparison of WEST’s performance to the Annual Budget and a statement setting forth an analysis of Collections Account activity, each for such calendar year.
EXHIBIT H
INSURANCE PROVISION
MINIMUM COVERAGE AMOUNTS
1. Hull Insurance: With respect to any Engine, hull insurance shall be maintained by the Lessee and, to the extent such hull insurance is not maintained by Lessee, WEST shall maintain contingent hull insurance coverage, in each case, in an amount at least equal to Adjusted Borrowing Value for such Engine; provided, however, that in the event that an agreement with respect to hull insurance cannot be reached with any particular Lessee pursuant to which such Lessee will pay the premiums to procure such insurance in amounts consistent with the foregoing, hull insurance shall be procured by the Servicer on behalf of WEST in an amount equal to the amount set forth above, at the expense of WEST. Parts, if any, shall be insured on the basis of their replacement cost under similar circumstances.
2. Liability Insurance: Liability insurance shall be maintained by the Lessee and, to the extent such liability insurance is not maintained by the Lessee, WEST shall maintain contingent liability insurance coverage, in each case, for each Engine and occurrence in an amount consistent with the reasonable commercial practices of leading international aircraft engine operating lessors.
3. Insurance Deductibles
(a) Deductibles and self-insurance for Engines subject to a Lease may be maintained in an amount pursuant to deductible and self-insurance arrangements (taking into account, inter alia, the creditworthiness and experience of the Lessee, the type of aircraft engine and market practices in the aircraft engine insurance industry generally) consistent with the Servicer’s commercially reasonable practices for its own aircraft engines.
(b) Deductibles for Engines off-lease shall be maintained in respect of any one occurrence in respect of such Engines in an amount consistent with the Servicer’s commercially reasonable practice for its own aircraft engines with any difference between such amount and $500,000 (or such other amount as WEST may direct in writing from time to time), taking into account any deductible insurance procured, to be notified to WEST by the Servicer.
4. Other Insurance Matters: Apart from the matters set forth above, the coverage and terms of any insurance with respect to any Engine not subject to a Lease, shall be substantially consistent with the reasonable commercial practices of the Servicer with respect to its own aircraft engines.
5. Additional Insureds: Any insurance arrangements entered into with respect to any Engine shall include as named insureds the Indenture Trustee and such persons as are reasonably requested by WEST.
6. Currencies: All amounts payable under any insurance policy shall be denominated in U.S. dollar terms.
7. Availability: The insurance guidelines set forth herein are subject to such insurance being generally available in the relevant insurance market at commercially reasonable rates from time to time.
EXHIBIT I
CORE LEASE PROVISIONS
Each Lease of an Engine with a Lessee shall comply with the following requirements:
1) The Lessee is obligated to comply with maintenance, return, alteration and replacement conditions typically found in financings and leases for aircraft engines and as necessary to maintain such Engine’s serviceability status pursuant to the Applicable Law.
2) The Lessee is obligated to provide liability insurance, aircraft hull insurance covering all risks, ground and flight, engine coverage for damage/loss of Engine, and war risk insurance (including the risk of confiscation and requisition by any government), and the Indenture Trustee and Security Trustee are named as additional insureds and the Security Trustee is named as sole loss payee.
3) The Lease requires that such Engine be kept and operated in locations covered by the requisite insurance and must not be flown or transported to any airport or country in violation of United States laws.
4) Any fixed price purchase option must provide for a net purchase price not less than the projected Adjusted Borrowing Value of such Engine as of the date the option is exercisable.
5) The Lease must be triple net, non-cancelable and contain a customary “hell or high water” clause under which the Lessee is unconditionally obligated to make all Lease Payments without any right of setoff for liabilities of the Lessor due to the Lessee.
6) The Lease must contain limitations on the ability of the Lessee to sublease such Engine or otherwise surrender possession of such Engine to other parties consistent with the requirements of this Indenture.
7) The Lease shall not contain any provisions inconsistent with the obligations of WEST under this Indenture.
EXHIBIT J
REQUIRED ACQUISITION AGREEMENT TERMS
1) Customary representations and warranties as to the title in the asset, free and clear of any Encumbrances, and if the seller is an Affiliate of WEST, that any Lease of an Engine is valid, binding and enforceable
2) Condition to acquisition that all recordations and filings necessary to establish clear title in acquiring WEST Group Member be satisfied before transfer to such WEST Group Member
3) Agreement of seller not to file insolvency petition against WEST or any WEST Subsidiary
4) In the acquisition of an Engine, customary cross-indemnification for event occurring before (by the seller) and after (by the buyer) the closing of the acquisition