Attached files

file filename
EX-10.40 - EX-10.40 - WILLIS LEASE FINANCE CORPwlfc-20180930ex1040ecaf6.htm
EX-32 - EX-32 - WILLIS LEASE FINANCE CORPwlfc-20180930xex32.htm
EX-31.2 - EX-31.2 - WILLIS LEASE FINANCE CORPwlfc-20180930ex312f302d6.htm
EX-31.1 - EX-31.1 - WILLIS LEASE FINANCE CORPwlfc-20180930ex311b5fed2.htm
EX-10.41 - EX-10.41 - WILLIS LEASE FINANCE CORPwlfc-20180930ex1041dba43.htm
EX-10.39 - EX-10.39 - WILLIS LEASE FINANCE CORPwlfc-20180930ex103934927.htm
EX-10.38 - EX-10.38 - WILLIS LEASE FINANCE CORPwlfc-20180930ex1038a8284.htm
EX-10.37 - EX-10.37 - WILLIS LEASE FINANCE CORPwlfc-20180930ex103747b7b.htm
EX-10.35 - EX-10.35 - WILLIS LEASE FINANCE CORPwlfc-20180930ex10358742f.htm
EX-10.34 - EX-10.34 - WILLIS LEASE FINANCE CORPwlfc-20180930ex103421394.htm
10-Q - 10-Q - WILLIS LEASE FINANCE CORPwlfc-20180930x10q.htm

Exhibit 10.36

 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

EXECUTION VERSION

 

 

TRUST INDENTURE

dated as of August 22, 2018

among

WILLIS ENGINE STRUCTURED TRUST IV,

 as the Issuer

DEUTSCHE BANK TRUST COMPANY AMERICAS,

 as the Operating Bank and Trustee

WILLIS LEASE FINANCE CORPORATION,

 as the Administrative Agent

and

BANK OF AMERICA, N.A.,

as the Initial Liquidity Facility Provider

 

 

 

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

TABLE OF CONTENTS

 

 

 

 

ARTICLE I DEFINITIONS

1

Section 1.01

Definitions

1

Section 1.02

Rules of Construction

47

Section 1.03

Compliance Certificates and Opinions

49

Section 1.04

Acts of Holders

50

ARTICLE II THE NOTES

52

Section 2.01

Authorized Amount; Terms; Form; Execution and Delivery

52

Section 2.02

Restrictive Legends

55

Section 2.03

Registrar and Paying Agent

58

Section 2.04

Paying Agent to Hold Money in Trust

60

Section 2.05

Method of Payment

60

Section 2.06

Minimum Denomination

62

Section 2.07

Transfer and Exchange; Cancellation

62

Section 2.08

Mutilated, Destroyed, Lost or Stolen Notes

64

Section 2.09

Payments of Transfer Taxes

64

Section 2.10

Refinancing

65

Section 2.11

[Reserved]

66

Section 2.12

Special Transfer Provisions

66

Section 2.13

[Reserved]

70

Section 2.14

Statements to Holders

70

Section 2.15

CUSIP and ISIN Numbers

72

Section 2.16

Holder Covenants

72

ARTICLE III ACCOUNTS; PRIORITY OF PAYMENTS

73

Section 3.01

Accounts

73

Section 3.02

Investments of Cash

82

Section 3.03

Initial Closing Date Deposits, Withdrawals and Transfers

84

Section 3.04

Interim Deposits, Transfers and Withdrawals

85

Section 3.05

Withdrawals and Transfers Relating to the Acquisition of Assets

87

Section 3.06

Interim Deposits and Withdrawals for Asset Disposition

88

Section 3.07

Calculation Date Calculations

89

Section 3.08

Payment Date First Step Withdrawals and Transfers

93

 

-  i  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

 

 

 

Section 3.09

Payment Date Second Step Withdrawals

95

Section 3.10

Reserved

99

Section 3.11

Certain Redemptions

99

Section 3.12

Cure Advances

103

Section 3.13

Eligible Credit Facilities

103

Section 3.14

Initial Liquidity Facility

103

ARTICLE IV DEFAULT AND REMEDIES

109

Section 4.01

Events of Default

109

Section 4.02

Acceleration, Rescission and Annulment

111

Section 4.03

Other Remedies

112

Section 4.04

Limitation on Suits

112

Section 4.05

Waiver of Existing Defaults

113

Section 4.06

Restoration of Rights and Remedies

113

Section 4.07

Remedies Cumulative

114

Section 4.08

Authority of Courts Not Required

114

Section 4.09

Rights of Holders to Receive Payment

114

Section 4.10

Trustee May File Proofs of Claim

114

Section 4.11

Undertaking for Costs

114

Section 4.12

Remedies; Rights of Controlling Party

115

Section 4.13

Purchase Rights of Holders of Series B Notes

115

Section 4.14

Purchase Rights of Certificate Holders

116

ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS

117

Section 5.01

Representations and Warranties

117

Section 5.02

General Covenants

120

Section 5.03

Operating Covenants

137

Section 5.04

Compliance Through Agents

142

ARTICLE VI THE TRUSTEE

142

Section 6.01

Acceptance of Trusts and Duties

142

Section 6.02

Absence of Duties

142

Section 6.03

Representations or Warranties

142

Section 6.04

Reliance; Agents; Advice of Counsel

143

Section 6.05

Not Acting in Individual Capacity

146

 

-  ii  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

 

 

 

Section 6.06

No Compensation from Holders

146

Section 6.07

Notice of Defaults

146

Section 6.08

Trustee May Hold Securities

146

Section 6.09

Corporate Trustee Required; Eligibility

146

Section 6.10

Reports by the Issuer

147

Section 6.11

Compensation

147

Section 6.12

Holder Lists

147

Section 6.13

Preservation of Information; Communications to Holders

147

ARTICLE VII SUCCESSOR TRUSTEES

148

Section 7.01

Resignation and Removal of Trustee

148

Section 7.02

Appointment of Successor

148

ARTICLE VIII INDEMNITY

150

Section 8.01

Indemnity

150

Section 8.02

Holders’ Indemnity

150

Section 8.03

Survival

150

ARTICLE IX MODIFICATION

150

Section 9.01

Modification with Consent of Holders and the Initial Liquidity Facility Provider

150

Section 9.02

Modification Without Consent of Holders

151

Section 9.03

Subordination and Priority of Payments

152

Section 9.04

Execution of Amendments by Trustee

152

ARTICLE X SUBORDINATION

153

Section 10.01

Subordination of the Notes and Other Subordinated Obligations

153

Section 10.02

Rights of Subrogation

154

Section 10.03

Further Assurances of Junior Representatives

154

Section 10.04

Enforcement

154

Section 10.05

Continued Effectiveness

154

Section 10.06

Senior Claims and Junior Claims Unimpaired

154

ARTICLE XI DISCHARGE OF INDENTURE; DEFEASANCE

154

Section 11.01

Discharge of Liability on the Notes; Defeasance

154

Section 11.02

Conditions to Defeasance

155

Section 11.03

Application of Trust Money

156

 

-  iii  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

 

 

 

Section 11.04

Repayment to Issuer

157

Section 11.05

Indemnity for Government Obligations

157

Section 11.06

Reinstatement

157

ARTICLE XII MISCELLANEOUS

157

Section 12.01

Right of Trustee to Perform

157

Section 12.02

Waiver

157

Section 12.03

Severability

158

Section 12.04

Restrictions on Exercise of Certain Rights

158

Section 12.05

Notices

158

Section 12.06

Assignments; Third Party Beneficiary

161

Section 12.07

Currency Conversion

161

Section 12.08

Application to Court

162

Section 12.09

Governing Law

162

Section 12.10

Jurisdiction

162

Section 12.11

Counterparts

163

Section 12.12

Table of Contents, Headings, Etc

163

Section 12.13

USA PATRIOT Act; Compliance with Applicable Anti-Terrorism and Anti-Money Laundering Regulations

163

Section 12.14

Limited Recourse

163

Section 12.15

Contractual Recognition of Bail-In

164

 

-  iv  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Schedules

 

 

 

 

Schedule 1

Initial Assets

 

Schedule 2

Issuer Subsidiaries

 

Schedule 3

Asset Subsidiaries

 

Schedule 4

Asset Trust Agreements

 

Schedule 5

Scheduled Series Percentage

 

Schedule 6

Maintenance Reduction Amount

 

 

Exhibits

 

 

 

 

Exhibit A-1

Form of Series A Note

 

Exhibit A-2

Form of Series B Note

 

Exhibit B

Concentration Limits

 

Exhibit C

Insurance Provisions

 

Exhibit D-1

Form of Series B Purchase Option Notice

 

Exhibit D-2

Form of Certificate Holder Purchase Option Notice

 

Exhibit E-1

Form of Monthly Report to Each Holder

 

Exhibit E-2

Annual Report to Each Holder

 

Exhibit F

Form of Certificate of Transfer

 

Exhibit G

Core Lease Provisions

 

Exhibit H

Form of Compliance Certificate

 

 

 

-  v  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

This TRUST INDENTURE, dated as of August 22, 2018 (this “Indenture”), is made among WILLIS ENGINE STRUCTURED TRUST IV, a Delaware statutory trust (the “Issuer”), DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as the Trustee and Operating Bank, WILLIS LEASE FINANCE CORPORATION, in its capacity as Administrative Agent, and BANK OF AMERICA, N.A., a national banking association (“BOA”),  as the Initial Liquidity Facility Provider.

The parties to this Indenture hereby agree as follows.

ARTICLE I

 

DEFINITIONS

Section 1.01   Definitions.  For purposes of this Indenture, the following terms have the meanings indicated below:

Accelerated” has a meaning correlative to the meaning of Acceleration.

Acceleration” means, with respect to the principal, interest and other amounts payable in respect of the Notes, such amounts becoming immediately due and payable by declaration or otherwise.

Acceleration Default” means any Event of Default of the type described in Section 4.01(e) or 4.01(f).

Account” means any or, in its plural form, all of the accounts established pursuant to Section 3.01 and any ledger accounts and ledger subaccounts maintained therein in accordance with this Indenture.

Acquisition Agreement” means the Asset Purchase Agreement and any acquisition agreement pursuant to which one or more Replacement Assets (or related Asset Interests) are acquired.

Acquisition Balance Redemption” has the meaning given to such term in Section 3.11(a).

Act” has, with respect to any Holder, the meaning given to such term in Section 1.04(a).

Additional Advances” means the proceeds of the issuance of Additional Certificates.

Additional Certificates” means any Beneficial Interest Certificates issued pursuant to the Trust Agreement, the proceeds of which are used, in substantial part, to fund (a) the cost of Discretionary Asset Modifications, other Asset modifications (including cargo conversions in respect of an Asset that is an Airframe) and maintenance on an Asset; (b) an increase in the amount on deposit in the Asset Disposition Contribution Account, (c) the Redemption of a Series of Notes in accordance with Section 3.11, or (d) additional amounts to be included in the Net Sale Proceeds in respect of any Asset Disposition.

-  1  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Additional Lease” means, with respect to each Asset other than an Initial Asset, each lease agreement, conditional sale agreement, hire purchase agreement or other similar arrangement with respect to such Asset on the Delivery Date therefor, provided that if, under any sub-leasing arrangement with respect to an Asset (other than an Initial Asset), the lessor agrees to receive payments or collateral directly from, or is to make payments directly to, the sub-lessee, in any such case to the exclusion of the related Lessee, then the relevant sub-lease shall constitute the “Additional Lease”, and the sub-lessee shall constitute the related “Lessee” with respect to such Asset, 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.

Additional Maintenance Reserve Amount” has the meaning given to such term in Section 5.03(g).

Additional Prepayment Amount” means, with respect to any Series of Notes as of any Payment Date, the sum of:

(a)        the Additional Prepayment Amount on the immediately preceding Payment Date (or, on the first Payment Date, zero) plus

(b)        all Rapid Amortization Amounts applied to such Series on the immediately preceding Payment Date plus

(c)        if the Disposition Date for an Asset (other than a Part-Out Asset) occurred during the related Collection Period or the Part-Out Sale Completion Date for a Part-Out Asset occurred during the related Collection Period (excluding an Exempted Disposition of an Asset or a Part-Out Asset), the greater of (i) zero and (ii) (A) the Disposition Paydown Amount for such Asset and such Series (minus, for any Part-Out Asset, any amounts previously applied to the Additional Prepayment Amount for such Part-Out Asset pursuant to clause (d))  minus (B) (1) the Allocable Notional Series Amount for such Asset and such Series on such Payment Date multiplied by (2) the Scheduled Series Percentage for such Asset and such Series on the immediately preceding Payment Date plus

(d)        if Net Sale Proceeds are received from a Part-Out Asset (excluding an Exempted Disposition) during the related Collection Period but the Part-Out Sale Completion Date has not yet occurred for such Part-Out Asset, (i) the lesser of (A) the amount of Net Sale Proceeds received during the related Collection Period for such Part-Out Asset and (B) the Disposition Paydown Amount for such Asset (minus  the aggregate amount of Net Sale Proceeds received during any prior Collection Period for such Part-Out Asset) minus (ii) the Allocable Notional Series Amount for such Part-Out Asset and such Series as of the Designated Payment Date multiplied by the difference between (A) the Scheduled Series Percentage for such Series and such Asset on the Designated Payment Date and (B) the Scheduled Series Percentage for such Series and such Asset on such Payment Date plus

(e)        all Cash Trap Principal Payments applied to such Series on the immediately preceding Payment Date.

-  2  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Additional Security Deposit Reserve Amount” means, with respect to any Payment Date, an amount equal to the excess, if any, of (a) the Target Security Deposit Amount as of such Payment Date over (b) the Balance of the Security Deposit Account (less any Segregated Funds on deposit therein) as of such Payment Date (determined after giving effect to all other deposits to, and withdrawals from, the Security Deposit Account to be made on such Payment Date).

Adjusted Base Value” means, with respect to any Asset on any Calculation Date or any other date (such date of determination, for the purposes only of this definition, the “Appraisal Date”), the average of the Maintenance Adjusted Base Values of such Asset as determined by the most recent appraisals of such Asset provided pursuant to Section 5.02(u);  provided that, unless the Adjusted Base Value of such Asset is being calculated in order to determine the Allocable Debt Balance or an Allocable Series Amount in connection with the Asset Disposition of such Asset, the “Adjusted Base Value” of any Asset which has been sold, transferred or otherwise disposed of on or prior to such Appraisal Date for which the Net Sale Proceeds thereof are retained in the Asset Replacement Account or a Qualified Escrow Account as of such Appraisal Date shall be deemed to equal the amount of such Net Sale Proceeds so retained (including, without duplication, any Asset Disposition Accrual Amounts on deposit in the Asset Disposition Contribution Account relating to such Asset and any Additional Advances applied or to be applied to such Net Sale Proceeds);  provided further that with respect to any Airframe, if one or two Appraisers (i) are unable or unwilling to deliver a Maintenance Adjusted Base Value appraisal with respect to such Airframe or (ii) deliver an appraisal with respect to such Airframe and the Maintenance Adjusted Base Value of such Airframe stated in such appraisal is equal to or less than $0.00, such appraisal or appraisals (as the case may be) shall be disregarded in calculating the Adjusted Base Value of such Airframe.

Adjusted Portfolio Value” means, in respect of any date, the sum of the Adjusted Base Value of each Asset on such date.  For purposes of calculating the Adjusted Portfolio Value, an Asset to be delivered during the period prior to the Delivery Expiry Date pursuant to the Asset Purchase Agreement shall be deemed to be an Asset from the Initial Closing Date, adjusted from time to time in respect of any Substitute Assets therefor.

Administrative Agency Agreement” means the Administrative Agency Agreement dated as of the Initial Closing Date among the Administrative Agent, the Issuer, the Issuer Subsidiaries party thereto,  the Security Trustee and the Trustee.

Administrative Agent” means the Person acting, at the time of determination, in the capacity as the administrative agent of the Issuer Group Members under the Administrative Agency Agreement or any replacement agreement therefor.  The initial Administrative Agent is Willis Lease.

 “Affected Notes” has the meaning given to such term in Section 3.11(b)(i).

 “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.

-  3  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Aggregate Half-Life Base Value” means, in respect of any date, the sum of the Base Values of each Asset on such date.

Aggregate Initial Appraised Value” means the sum of the Initial Appraised Values of the Initial Assets.

Aggregate Maintenance Adjusted Base Value” means, in respect of any date, the sum of the Adjusted Base Value of each Asset on such date; provided, that if the Lease for any Asset contains return conditions that specify a weighted average remaining life threshold for such Asset that is higher than the then current weighted average maintenance status used in determining the Adjusted Base Value of such Asset, then solely for purposes of calculating the Aggregate Maintenance Adjusted Base Value, the Adjusted Base Value of such Asset will be adjusted upward to reflect the condition in which the Asset must be returned at the end of such Lease.

Aggregate Maintenance Ratio Amount”  means, on any date where the ratio of the Aggregate Maintenance Adjusted Base Value to the Aggregate Half-Life Base Value is less than 0.9, an amount equal to (a) the product of (x) the Aggregate Half-Life Base Value multiplied by (y) 0.9 minus (b) the Aggregate Maintenance Adjusted Base Value.

Agreed Currency” has the meaning given to such term in Section 12.07(a).

Agreed Value Payment” means a payment to be made by or on behalf of a Lessee under a Lease upon or following a Total Loss of an Asset with respect to such Total Loss.

Aircraft Engine” means a basic power jet propulsion or turboprop 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.

Airframe Interest” means (a) the Stock in any Person that owns an Airframe, including, without limitation, a trust or (b) the Person that holds, directly or indirectly, the interest referred to in clause (a) above.  The acquisition or disposition of all of the Airframe Interests with respect to an Airframe constitutes, respectively, the acquisition or disposition of that Airframe.

Airframes” means each Initial Asset (or, if the context requires, related Asset Interests) and any Replacement Asset (or, if the context requires, related Asset Interests) that is an airframe (including any and all modules and Parts incorporated in, installed on or attached to such airframe from time to time and any substitutions therefor, except in each case, any Aircraft Engine), in each case that are owned by any Issuer Group Member from time to time.

 “Allocable Debt Balance” means, for any Asset on any date, the sum of each Allocable Series Amount for each Series of Notes for such Asset on such date.

Allocable Notional Series Amount” means, for any Asset and any Series (applying the Reinvestment Rules of Construction, if applicable), (i) on the first Payment Date, the product of (a) the Designated Percentage of such Asset and (b) the Outstanding Principal Balance of such

-  4  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Series, in each case as of the Initial Closing Date and (ii) on any subsequent Payment Date, the greater of (a) zero and (b)(x) the Allocable Notional Series Amount of such Asset and such Series on the immediately preceding Payment Date minus (y) (1) any Excess Proceeds Applied Amount for such Asset and such Series on the immediately preceding Payment Date divided by (2) the Scheduled Series Percentage of such Series and such Asset on the immediately preceding Payment Date minus (z) if such Asset was subjected to an Asset Disposition during the period commencing on the second preceding Calculation Date to the Calculation Date immediately preceding such Payment Date, the amount of clause (ii)(b)(x).

Allocable Series Amount” means, for any Asset and any Series of Notes on any Calculation Date, the product of (a) (x) the Outstanding Principal Balance of such Series as of such Calculation Date plus (y) the sum of all Excess Proceeds Applied Amounts for such Series from the Initial Closing Date to and including the immediately preceding Payment Date for all Assets which were Assets on such Calculation Date multiplied by (b) the Designated Percentage for such Asset on such Calculation Date.

Allowed Restructuring” has the meaning given to such term in Section 5.02(f)(i).

Annual Budget” means an operating budget and an Asset expenses budget that has been adopted by the Issuer for the period beginning on the Initial Closing Date and ending December 31, 2018 and for each calendar year thereafter through December 31, 2026, and that will be adopted for each succeeding calendar year.

Annual Report” has the meaning given to such term in Section 2.14(a).

Anti-Money Laundering Laws” has the meaning given to such term in Section 5.01(r).

Applicable Aviation Authority” means the FAA, the EASA and/or any other governmental authority which, from time to time, has control or responsibility for supervision of civil aviation or has jurisdiction over the airworthiness, operation and/or maintenance of an Asset.

Applicable Law” means, with respect to any Person, all laws, rules, regulations and orders of governmental or regulatory authorities applicable to such Person, including, without limitation, the regulations of each Applicable Aviation Authority applicable to such Person or the Asset owned or operated by it or as to which it has a contractual responsibility.

Applicable Procedures” means, with respect to any transfer or exchange of Beneficial Interests, the rules and procedures of the Depositary, Euroclear or Clearstream and any of their Participants and Indirect Participants that apply to such transfer or exchange.

Applicable Regulations” has the meaning given to such term in Section 12.13.

Appraisers” means, initially, Avitas, Inc., International Bureau of Aviation and BK Associates, Inc. and, thereafter, any independent appraiser that is approved by a Special Majority of the Controlling Trustees and that is a member of the International Society of Transport Aircraft Trading (“ISTAT”) or, if ISTAT ceases to exist, any similar professional aircraft appraiser

-  5  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

organization in which at least one of the such Appraisers is a member, and the Issuer shall notify the Rating Agencies of any change in Appraiser.

Asset” means each Airframe and each Engine (including, in each case, each Asset for which Excess Proceeds have been received and applied in accordance with Section 3.09), in each case that has not been subjected to an Asset Disposition; provided that a Part-Out Asset shall continue to be an Asset until the applicable Part-Out Sale Completion Date.  In addition, when used to refer to an Asset Disposition, the term “Asset” shall include the Asset that is (or is contemplated to be pursuant to a binding, written agreement) subjected to such Asset Disposition, but otherwise “Asset” does not include a disposed Asset.

Asset 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) between an Issuer Group Member and any Person (other than an Issuer Group Member) or any Purchase Option granted to a Person (other than an Issuer Group Member) to purchase an Asset, in each case, pursuant to which such Person acquires or is entitled to acquire legal title to, or the economic benefits of ownership of, such Asset.

Asset Disposition” means any sale, transfer or other disposition of any Asset (or the related Asset Interest), including by reason of (a) the occurrence of a Part-Out Sale Completion Date with respect to a Part-Out Asset or (b) such Asset suffering a Total Loss.

Asset Disposition Accrual Amount” means, in respect of an Asset Disposition, the positive amount, if any, of an amount equal to (i) the Disposition Paydown Amount less (ii) the Net Sale Proceeds received in respect of such Asset Disposition; provided that any Asset disposed of by way of consignment or similar agreement shall be considered disposed of at any time the relevant Issuer Group Member received substantially all of the Net Sale Proceeds that the Servicer expects in good faith to receive from such consignment (or similar arrangement) for all purposes.

Asset Disposition Accrual Deposit” means, on any Payment Date, the amount, if any, to be deposited in the Asset Disposition Contribution Account pursuant to Section 3.09(a)(xviii) on such Payment Date, as directed by the Certificate Holders.

Asset Disposition Contribution Account” has the meaning given to such term in Section 3.01 hereof.

Asset Disposition Shortfall” means, with respect to any proposed Asset Disposition, the failure of the Net Sale Proceeds to equal or exceed an amount equal to the Disposition Paydown Amount.

Asset Interest” means an Airframe Interest or an Engine Interest (all Airframe Interests and Engine Interests, collectively, the “Asset Interests”).

Asset Mortgage” has the meaning given to such term in the Security Trust Agreement.

Asset Mortgage and Lease Security Assignment” has the meaning given to such term in the Security Trust Agreement.

-  6  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Asset Purchase Account” has the meaning given to such term in Section 3.01 hereof.

Asset Purchase Agreement” means the Asset Purchase Agreement dated as of August 22, 2018, between Willis Lease and the Issuer.

Asset Related Documents” means all Issuer Group Leases and related documents and other contracts and agreements including any side letters, assignments of warranties or option agreements of Issuer Group Members the terms of which affect the rights or obligations of any Issuer Group Member in respect of any of the Assets.

Asset Replacement Account” has the meaning given to such term in Section 3.01 hereof.

Asset Subsidiaries” means, as of the Initial Closing Date, those Persons set forth on Schedule 3 to this Indenture as Asset Subsidiaries and their successors, together with any other Issuer Subsidiary (other than any Asset Trust) holding title to Assets or holding Asset Interests.

Asset Trust Agreement” means, as of the Initial Closing Date, each owner trust agreement with an Asset Trustee in effect on the Initial Closing Date, as set forth on Schedule 4 hereto, together with any other trust agreement with an Asset Trustee under which an owner trust or statutory trust estate is created with respect to an Asset and an Asset Subsidiary holds the Asset Interest, whether or not such Asset Subsidiary was the original grantor of such owner trust estate or holder of such Asset Interest.

Asset Trustee” means, as of the Initial Closing Date, Wells Fargo Trust Company, National Association, and its successors as owner trustee or statutory trustee under the Asset Trust Agreements set forth on Schedule 4 hereto, together with each other financial institution that acts as an owner trustee or statutory trustee under any other Asset Trust Agreement.

Asset Trusts” means the owner trust or statutory trust estates created pursuant to the Asset Trust Agreements.

Assumed Disposition Premium” means (i) with respect to any Purchase Option having a Purchase Option Date prior to the fourth anniversary of the Initial Closing Date, an amount equal to the Disposition Premium that would be payable for the relevant purchase option price and (ii) with respect to any Purchase Option having a Purchase Option Date on or after the fourth anniversary of the Initial Closing Date, zero.

Assumed Note Target Price” means, in respect of any Asset for purposes of any Asset Disposition by way of a Purchase Option, an amount equal to the sum of (i) 105% of the aggregate Allocable Series Amounts for the Series A Notes and the Series B Notes as of the Purchase Option Date for such Asset (calculated by assuming that, from the date of the applicable agreement granting the Purchase Option to the Purchase Option Date, no other Asset Dispositions occur and no principal payments are made on the Notes other than Scheduled Principal Payment Amounts), (ii) any Disposition Fee and (iii) the Assumed Disposition Premium, in each case relating to or resulting from such Asset Disposition.

-  7  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Authorized Agent” means, with respect to a Series of Notes, the authorized Paying Agent or Registrar for such Series of Notes.

Available Amount” means, subject to the proviso contained in Section 3.14(g), at any date of determination, (a) the Maximum Facility Commitment at such time less (b) the aggregate amount of each Facility Drawing under the Initial Liquidity Facility outstanding at such time; provided that following a Downgrade Drawing, a Final Drawing or a Non-Extension Drawing, the Available Amount shall be zero; provided further that, in the case of a Downgrade Drawing, if the Initial Liquidity Facility ceases to be a Downgraded Facility, the Available Amount shall initially be reinstated to an amount equal to the amount of any Unapplied Provider Advance (as defined in the Initial Liquidity Facility) that is reimbursed to the Initial Liquidity Facility Provider pursuant to Section 2.06(c) of the Initial Liquidity Facility and thereafter the Available Amount shall be determined as if no Downgrade Drawing had occurred.

Available Collections” means, as of the close of business on any Calculation Date, amounts on deposit in the Collections Account for distribution on the relevant Payment Date, taking into account certain transfers between the Collections Account and certain other Accounts during the period between such Calculation Date and such Payment Date.  The Available Collections with respect to any payment to be made therefrom shall be determined after giving effect to all payments, if any, having priority to such payment under Section 3.09.

Available Scheduled Principal Amount” has the meaning given to such term in Section 3.07(h).

Available Security Deposit Amount” means, with respect to any Payment Date, an amount equal to the excess, if any, of (a) the aggregate Remaining Security Deposits on such Payment Date over (b) the Target Security Deposit Amount for such Payment Date; provided that, for the avoidance of doubt, if such amount is less than zero, the “Available Security Deposit Amount” shall be zero.

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

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 Account Investments held in such Account as of such date, as determined in accordance with Section 1.02(m).

Base Value” means, with respect to any Asset on any Calculation Date or any other date, the average of the Half-Life Base Values of such Asset as determined by the most recent appraisals of such Asset provided pursuant to Section 5.02(u).

-  8  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Below Value Disposition” means (a) an Asset Disposition in respect of which (i) the sum of (A) the Net Sale Proceeds on the Disposition Date (or, with respect to a Part-Out Asset, the Part-Out Sale Completion Date) and (B) the aggregate amount of the Excess Proceeds Applied Amounts from each Payment Date relating to such Asset are less than the sum of (ii) (A) an amount equal to the Disposition Paydown Amount for such Asset with respect to the Series A Notes, (B) an amount equal to the Disposition Paydown Amount for such Asset with respect to the Series B Notes, (C) the amount of any Hedge Termination Payment payable in connection with such Asset Disposition, (D) the Disposition Fee relating to such Asset Disposition, (E) the Disposition Premium for such Asset with respect to the Series A Notes and (F) the Disposition Premium for such Asset with respect to the Series B Notes or (b) an Asset Disposition of an Asset pursuant to a Below Value Purchase Option.

Below Value Purchase Option” means, with respect to an Asset, a Purchase Option held by a lessee under a Lease of such Asset if (a) the purchase option price will be less than fair market value as of the Purchase Option Date and (b) the projected Allocable Debt Balance of such Asset (calculated as of the Purchase Option Date) is greater than the sum of all contracted Rental Payments and projected net Usage Fees due from the date such Purchase Option is granted to the Purchase Option Date plus the purchase option price referred to in clause (a) of this definition.

Beneficial Interest” means a beneficial interest in a Global Note held in book-entry form by the Depositary.

Beneficial Interest Certificate” has the meaning set forth in the Trust Agreement.

BOA” has the meaning set forth in the preamble.

Business Day” means any date 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.

Calculation Date” means, with respect to each Payment Date, the last day of the calendar month immediately preceding the month in which such Payment Date occurs, provided that if any Calculation Date would otherwise fall on a day that is not a Business Day, such Calculation Date will be the first preceding day that is a Business Day.

Cash Collateral Account” means each other Eligible Credit Facility established as an Account pursuant to Section 3.01(o).

Cash Payment Amount” means, with respect to each Initial Asset, an amount equal to the product of (a) the Net Cash Proceeds of the Notes on the Initial Closing Date, and (b) a fraction, the numerator of which is the Initial Appraised Value for such Initial Asset or, in the case of an Initial Asset that is a Substitute Asset, for the Initial Asset replaced by such Substitute Asset, and the denominator of which is the Aggregate Initial Appraised Value, reduced by amounts transferred from the Asset Purchase Account to other Accounts in respect of Rental Payments and Usage Fees as provided herein and in the Asset Purchase Agreement; provided that the Cash Payment Amount for a Substitute Asset will not be greater than the amount available in the Asset Purchase Account allocable to the applicable Initial Asset.

-  9  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Cash Trap Principal Payments” has the meaning given to such term in Section 3.08(m).

Certificate Holder” means, as of any date of determination, any Person in whose name a Beneficial Interest Certificate is issued.

Certificate Holder Purchase Date” has the meaning given to such term in Section 4.14.

Certificate Holder Purchase Option Notice” has the meaning given to such term in Section 4.14.

Certificate Holder Purchaser” has the meaning given to such term in Section 4.14.

Certificate of Trust” means that certain Certificate of Trust, dated July 25, 2018, by the Owner Trustee.

Certified Holder” has the meaning given to such term in Section 2.14(a).

Clearstream” means Clearstream Banking, société anonyme, Luxembourg.

Code” means the Internal Revenue Code of 1986, as amended.

Collateral” has the meaning given to such term in the Security Trust Agreement.

Collection Period” means (a) with respect to each Payment Date other than the first Payment Date in respect of a Series, the period commencing on the first day following the Calculation Date related to the prior Payment Date and ending on the Calculation Date related to such Payment Date, (b) in the case of the first Payment Date in respect of the Initial Notes, the period commencing on the Initial Closing Date and ending on the Calculation Date related to such Payment Date and (c) in the case of the first Payment Date in respect of each Series of Refinancing Notes, the period commencing on the date such Series is issued and ending on the Calculation Date related to such Payment Date.

Collections” means without duplication (a) Rental Payments, Usage Fees and all other amounts received by any Issuer Group Member pursuant to any Lease or Related Collateral Document, (b) amounts transferred from any Cash Collateral Account to the Collections Account in accordance with the Trustee Resolution providing for the establishment of such Cash Collateral Account as contemplated by Section 3.01(o), (c) amounts received in respect of claims for damages or in respect of any breach of contract for nonpayment of any of the foregoing, (d) if a Rapid Amortization Event or an Event of Default has occurred and is continuing, amounts received by an Issuer Group Member in connection with any Asset Disposition or otherwise received under any Asset Agreement, including Net Sale Proceeds, Agreed Value Payments, Requisition Compensation and all Partial Loss Proceeds, less, in each case, any expenses payable by such Issuer Group Member to any Person that is not an Issuer Group Member in connection therewith, (e) amounts received by any Issuer Group Member from insurance with respect to any Asset, (f) any proceeds or other payments received under the Related Documents, including amounts transferred from a Lessee Funded Account, the Maintenance Reserve Account, the Asset Replacement Account and/or a Qualified Escrow Account into the Collections Account in accordance with Section 3.08, (g) amounts applied from or drawn under any Security Deposit or

-  10  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

other assurance in respect of a Lessee’s obligations under a Lease (other than amounts withdrawn at the direction of the Certificate Holders pursuant to Section 3.01(e)(iii) and 3.08(d)), (h) net payments to the Issuer under any Currency Hedge Agreement maintained in accordance with the terms of this Indenture, (i) the proceeds of any Investments of the funds in the Accounts (except (i) to the extent that any such proceeds are required to be paid over to any Lessee under a Lease or (ii) the proceeds of any Investments of the funds in the Liquidity Facility Reserve Account, the Asset Replacement Account and a Qualified Escrow Account), (j) any amounts transferred from the Asset Purchase Account into the Collections Account in accordance with Section 3.04 or 3.05 hereof, (k) any amounts received by an Issuer Group Member under an Acquisition Agreement and (l) any other amounts received by any Issuer Group Member (including any amounts received from any other Issuer Group Member, whether by way of distribution, dividend, repayment of a loan or otherwise, and any proceeds received in connection with any Allowed Restructuring); provided that Collections shall not include (i) Segregated Funds transferred to a Lessee Funded Account, (ii) any amounts required pursuant to the terms hereof to be (only for so long as such amounts are so required to be) deposited and held in the Security Deposit Account, the Maintenance Reserve Account, the Asset Replacement Account, a Qualified Escrow Account and the Asset Disposition Contribution Account, (iii) amounts deposited in the Defeasance/Redemption Account or the Refinancing Account in connection with a Redemption (except any amounts transferred thereto from another Account which were not deposited in such Account solely in anticipation of transferring such amount to the Defeasance/Redemption Account or the Refinancing Account), (iv) amounts received in connection with a Refinancing, (v) except as provided above with respect to any amounts transferred therefrom to the Collections Account, amounts in any Cash Collateral Account and the Asset Purchase Account, (vi) amounts not payable to an Issuer Group Member or amounts otherwise not to be included as Collections pursuant to any Related Document, (vii) so long as no Rapid Amortization Event or Event of Default has occurred and is continuing, Net Sale Proceeds, (viii) the proceeds of any Cure Advances for the payment of Cure Amounts, and (ix) payments under the Initial Liquidity Facility, in each case subject to the restrictions set forth in this Indenture.

Collections Account” has the meaning given to such term in Section 3.01.

Commission” means the U.S. Securities and Exchange Commission.

Concentration Limits” means the limits set forth in Exhibit B hereto, as such limits may be adjusted from time to time as provided in Section 5.02(t).

Concentration Violation” means a breach of the covenant set forth in Section 5.02(t) hereof if effect were given to any sale, transfer, lease or other disposition or any purchase or other acquisition pursuant to an Asset 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 Asset Agreement becomes binding on the Issuer or any Issuer Subsidiary.

Consent Fee” means any fee paid to the Holders of any Series of Notes in connection with their review and/or approval of proposed amendments of this Indenture or any other matter requiring their consent, whether by a Required Majority of such Series or by all Holders of such Series, as such fee may be approved in accordance with Section 5.02(d), provided that the aggregate amount of such fee paid in connection with any such review and/or approval shall not

-  11  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

exceed an amount equal to the product of (a) the Outstanding Principal Balance of such Series of Notes as of the date such fee is to be paid and (b) 0.001.

Controlling Party” means, at any time of determination, the Senior Trustee; provided, however, that at any time from and including the date that is no earlier than 30 months from the earlier to occur of (a) the date on which the entire amount available under the Initial Liquidity Facility shall have been drawn (except as a result of (i) a Downgrade Drawing or (ii) a Non-Extension Drawing, in each case not applied to pay any Required Expenses Shortfalls, Senior Hedge Payment Shortfalls, Series A Interest Shortfalls or Series B Interest Shortfalls) and remain unreimbursed and (b) the date on which the Notes shall have been Accelerated, the Initial Liquidity Facility Provider shall have the right to elect, by at least 15 Business Days’ prior Written Notice to the Trustee, to become the Controlling Party (in place of the Senior Trustee) thereafter but only for so long as any Credit Facility Obligations due to the Initial Liquidity Facility Provider remain unpaid.  At any time after such 30-month period, if the Initial Liquidity Facility Provider does not elect to be the Controlling Party or if no Credit Facility Obligations remain outstanding (and the Senior Trustee receives a written notice from the Administrative Agent stating that no Credit Facility Obligations remain outstanding), then the Senior Trustee shall continue to be the Controlling Party.

Controlling Trustee” means each of the trustees of the Issuer designated as such in accordance with the terms of the Trust Agreement.

Core Lease Provisions” means the requirements for Leases set forth in Exhibit G.

Corporate Trust Office” means, with respect to the Trustee for a Series of Notes, the office of such Trustee at which at any particular time its corporate trust business shall be administered.  The initial Corporate Trust Office is (a) for Note transfer purposes and for purposes of presentment and surrender of any Notes for final payment thereon, DB Services Americas, Inc., MS JCK01-0218, 5022 Gate Parkway, Suite 200, Jacksonville, Florida 32256, Attention: Shareholder Services, and (b) for all other purposes, the address of the Trustee set forth in Section 12.05.

Costs” means liabilities, obligations, damages, judgments, settlements, penalties, claims, actions, suits, costs, expenses and disbursements (including, without limitation, reasonable fees and disbursements of legal counsel and costs of investigation).

Covenant Defeasance” has the meaning given to such term in Section 11.01(b).

Credit Facility Advance Obligations” means all Credit Facility Obligations other than (a) Credit Facility Expenses and (b) Indemnification Amounts.

Credit Facility Expenses” means all Credit Facility Obligations other than (a) the principal amounts under, or the principal amount of any drawings under, any Eligible Credit Facility, (b) interest accrued on Credit Facility Obligations and (c) Indemnification Amounts.

Credit Facility Obligations” means all principal, interest, fees, expenses, indemnities, costs and other amounts owing to or incurred by the providers of Eligible Credit Facilities.

-  12  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Cure Advances” means advances by any Certificate Holder, other than Additional Advances, the proceeds of which are to be used to fund the payment of Cure Amounts.

Cure Amounts” has the meaning given to such term in Section 3.12.

Cure Period” has the meaning given to such term in Section 4.02(a).

Currency Hedge Agreements” means an ISDA currency swap, option, and any other similar hedging arrangement (including the current or forward purchase and sale of non-Dollar currency) between the Issuer and the Eligible Hedge Counterparty named therein, including any schedules and confirmations prepared and delivered in connection therewith, approved by the Controlling Trustees and in form and substance meeting such requirements as the Rating Agencies may publish from time to time that are applicable to the Issuer, and with respect to which prior notice has been given to the Rating Agencies, pursuant to which (i) the Issuer will receive payments from, or make payments to, the Eligible Hedge Counterparty as provided therein and (ii) recourse by the Eligible Hedge Counterparty to the Issuer is limited to distributions in accordance with the priority of payments set forth in Section 3.09.

Custodian Agreement” has the meaning given to such term in the Security Trust Agreement.

Default” means a condition, event or act that, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

Default Notice” means a notice given pursuant to Section 4.02, declaring all outstanding principal of and accrued and unpaid interest on the Notes to be immediately due and payable.

Defeasance/Redemption Account” has the meaning given to such term in Section 3.01.

Definitive Notes” has the meaning given to such term in Section 2.07(a).

Delivery Date” means, with respect to an Initial Asset or Replacement Asset, the date on which the Issuer acquires direct or indirect ownership of such Initial Asset or Replacement Asset or an Asset Trust owning such Initial Asset or Replacement Asset.

Delivery Expiry Date” means, with respect to the Remaining Initial Assets, the 270th day after the Initial Closing Date.

Depositary” means DTC, in its capacity as depositary, including its successors in interest and permitted assigns.

Designated Payment Date” means, for any Part-Out Asset, the Payment Date related to the Collection Period in which such Part-Out Asset was first subjected to a Part-Out Agreement.

Designated Percentage” means, for any Asset on any date, (a) the Adjusted Base Value of such Asset divided by (b) the Adjusted Portfolio Value, in each case as of such date.

-  13  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Designated Shortfall” means, with respect to any Payment Date, any Required Expenses Shortfall, Senior Hedge Payment Shortfall, Series A Interest Shortfall, Series B Interest Shortfall or any shortfall, after giving effect to the application of Available Collections (taking into account all transfers to the Collections Account to be made pursuant to Section 3.08) in accordance with the payment priorities set forth in Section 3.09(a), in amounts available under Section 3.09(a) to make payments in respect of the Scheduled Principal Payment Amount as of such Payment Date.

Direction” has the meaning given to such term in Section 1.04(c).

Discretionary Asset Modification” means a modification or improvement of an Asset made after the Delivery Date for such Asset, the cost of which is capitalized in accordance with GAAP and which is not a Mandatory Asset Modification.

Disposition Date” means (a) with respect to any Part-Out Asset, the Part-Out Sale Completion Date and (b) with respect to any Asset Disposition, the date on which the Asset Disposition occurs; provided that if the Net Sale Proceeds of such Asset Disposition shall have been deposited in the Asset Replacement Account or a Qualified Escrow Account as permitted hereunder, no Disposition Date shall occur for such Asset (i) for so long as such proceeds remain on deposit in the Asset Replacement Account or Qualified Escrow Account in accordance with the terms hereof or (ii) if a Replacement Asset is acquired using all or a portion of such Net Sale Proceeds.

Disposition Fee” has the meaning given to such term in the Servicing Agreement.

Disposition Paydown Amount”  means, for any Series and with respect to any Subject Disposition, the greater of (a) zero and (b) (i) 105% of the Allocable Series Amount for the Subject Asset and such Series on the related Calculation Date minus (ii) the sum of all Excess Proceeds Applied Amounts for such Asset and such Series from the Initial Closing Date to and including the immediately preceding Payment Date.

Disposition Premium” means (a) zero (i) with respect to any Asset Disposition that results from a Total Loss at any time, (ii) with respect to any Asset Disposition that occurs during the continuation of an Event of Default, (iii) in connection with an Acquisition Balance Redemption, (iv) with respect to any Asset Disposition that occurs on or after the fourth anniversary of the Initial Closing Date and (v) with respect to any Asset Disposition if the Premium Threshold Amount has not been exceeded after giving effect to the distribution of the Net Sale Proceeds relating to such Asset Disposition and (b) for any Asset Dispositions (other than an Asset Disposition described in clause (a)) occurring prior to the fourth anniversary of the Initial Closing Date after the applicable Premium Threshold Amount has been exceeded after giving effect to the distribution of the Net Sale Proceeds relating to such Asset Disposition, an amount equal to the Redemption Premium that would be payable with respect to the amount of principal being prepaid in connection with such Asset Disposition as if such prepayment were an Optional Redemption, in each case treating the Payment Date on which such Net Sale Proceeds are distributed as the Redemption Date and references to “Redemption Date” in the definitions of Redemption Premium and Redemption Price were references to such Payment Date;  provided that in the case of clause (b), if only a portion of the amount of the Outstanding Principal Balance of the Initial Notes being repaid in connection with any such Asset Disposition exceeds the applicable Premium Threshold

-  14  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Amount, then the Disposition Premium will only apply to such portion that is in excess of such Premium Threshold Amount.

Disposition Test Date” means (a) for an Asset (other than a Part-Out Asset), the Disposition Date for such Asset and (b) for a Part-Out Asset, the date such Part-Out Asset is subjected to a Part-Out Agreement.

Dollars” or “$” means the lawful currency of the United States of America.

Downgrade Date” means the date on which a Downgrade Event occurs.

Downgrade Drawing” has the meaning given to such term in Section 3.14(c).

Downgrade Event” has the meaning given to such term in the Initial Liquidity Facility.

Downgrade Period” has the meaning given to such term in the Initial Liquidity Facility.

Downgraded Facility” has the meaning given to such term in the Initial Liquidity Facility.

DSCR” means, as of any Calculation Date, the ratio of (a) the amount of DSCR Available Cash to (b) the sum of (i) the DSCR Aggregate Interest Amount and (ii) the DSCR Scheduled Principal Amount, in each case as of such Calculation Date.

DSCR Aggregate Interest Amount” means, as of any Calculation Date, the sum of (a) the Interest Amount on the Series A Notes and the Series B Notes for the related Payment Date plus (b) (without duplication) the aggregate Interest Amount on the Series A Notes and the Series B Notes for the previous five Payment Dates; provided that, if an Asset Disposition has occurred with respect to any Asset during such six-month period, the Interest Amount attributable to such Asset as of each such Payment Date shall be disregarded for the purposes of the calculation of Interest Amount for such period.

DSCR Amortization Event” means, on any Payment Date occurring on or after the sixth Payment Date after the Initial Closing Date, a DSCR of less than 1.10 for such Payment Date or either of the two immediately prior Payment Dates (to the extent such prior Payment Dates occurred on or after the sixth Payment Date after the Initial Closing Date).

DSCR Available Cash” means, as of any Calculation Date, an amount equal to the amount, if positive, equal to (a) the sum of, without duplication, (x) the aggregate Rental Payments, Usage Fees and End of Lease Payments actually received by an Issuer Group Member, (y) the aggregate amount of Rental Payments and Usage Fees transferred from the Asset Purchase Account to the Collections Account pursuant to the terms of this Indenture and (z) the sum of (i) the aggregate amounts transferred from the Available Security Deposit Amount in the Security Deposit Account to the Expense Account or to the applicable Series Account or to the Liquidity Facility Reserve Account or paid to the Initial Liquidity Facility Provider, as applicable, and (ii) the aggregate Excess Proceeds Applied Amount for the Initial Notes, in each case, on any of the previous five Payment Dates or on such related Payment Date, in the case of clauses (a)(x), (y) and (z) during the six-month period ending on such Calculation Date minus (b) the sum of (x) the

-  15  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

sum of the aggregate Senior Rent Based Fees actually paid by each Issuer Group Member and (y) the aggregate Unfunded Maintenance Reimbursement Amount, in the case of clauses (b)(x) and (y), during the six-month period ending on such Calculation Date; provided that, if an Asset Disposition has occurred with respect to any Asset during such six-month period, the amounts described in clauses (a) and (b) of this definition attributable to such Asset as of each such Payment Date shall be disregarded for the purposes of the calculation of DSCR Available Cash for such period.

DSCR Cash Trap Account” has the meaning given to such term in Section 3.01.

DSCR Cash Trap Event” means, on any Calculation Date related to a Payment Date occurring on or after the sixth Payment Date after the Initial Closing Date, a DSCR of less than 1.15 for such Calculation Date or either of the two immediately prior Calculation Dates (to the extent such prior Calculation Dates occurred on or after the sixth Payment Date after the Initial Closing Date).

DSCR Scheduled Principal Amount” means, for any Calculation Date and the related Payment Date, the greater of (i) zero and (ii) the sum of (a) the Scheduled Principal Payment Amount on the Series A Notes and the Series B Notes for such Payment Date plus (b) (without duplication) the aggregate Scheduled Principal Payment Amount on the Series A Notes and the Series B Notes for the previous five Payment Dates (in each case calculated as if the definition of Additional Prepayment Amount did not include clauses (c) and (d) thereof) minus (c) all Rapid Amortization Amounts applied on any of the Payment Dates referred to in clause (a) or (b);  provided that, if an Asset Disposition has occurred with respect to any Asset, or any Asset has become a Part-Out Asset, during such six-month period, the Scheduled Principal Payment Amount attributable to such Asset as of each such Payment Date shall be disregarded for the purposes of the calculation of DSCR Scheduled Principal Amount for such period.

DTC” means The Depository Trust Company, its nominee and its respective successors, as the registered holder of the Global Notes.

Early Collections Period Lease Payment” has the meaning given to such term in Section 3.01(b)(ii).

EASA” means the European Aviation Safety Agency.

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.

-  16  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Eligibility Requirements” has the meaning given to such term in Section 2.03(b).

Eligible Account” means (a) a segregated non-interest bearing trust account maintained on the books and records of an Eligible Institution for the benefit of the Security Trustee on behalf of the Secured Parties as a Securities Account under, and as defined in, the Security Trust Agreement; provided that no Cash Collateral Account may be maintained with an Eligible Provider at any time at which the Issuer holds any participation in the Eligible Credit Facility unless a Rating Agency Confirmation shall have been received prior to such time to the effect that such maintenance of the Cash Collateral Account with such Eligible Provider will not result in a withdrawal or downgrading of the ratings of the Notes, and (b) an account maintained on the books and records of an Eligible Institution in the name of an Issuer Group Member as a Lessor Account in compliance with the terms of the Security Trust Agreement; provided that, if the Servicer determines that a Lessor Account needs to be maintained with a bank or financial institution that is not an Eligible Institution, including a foreign bank not licensed under the laws applicable to Eligible Institutions, such Lessor Account may be established with such bank or financial institution and such account may be an Eligible Account, subject to such bank or financial institution entering into an appropriate “lock-box account” or similar agreement with the Security Trustee pursuant to which all amounts deposited in such Lessor Account are pledged to the Security Trustee and are remitted in accordance with Section 3.01(l).

Eligible Credit Facility” means (a) the Initial Liquidity Facility provided by the Initial Liquidity Facility Provider, (b) any credit agreement, letter of credit, guarantee, financial guarantee insurance policy, credit or liquidity enhancement facility, term loan facility or other credit facility provided by, or supported by, an Eligible Provider in favor of any Issuer Group Member and subjected to the lien of the Security Trust Agreement and designated by the Controlling Trustees as an Eligible Credit Facility and (c) any Eligible Account established for the purpose of providing like credit or liquidity support and designated by the Controlling Trustees as an Eligible Credit Facility.

Eligible Hedge Counterparty” means either of the following: (a) at the time of execution and delivery of the related Currency Hedge Agreement, any bank or other financial institution (or any party providing credit support on such Person’s behalf) that has a published long-term issuer credit or senior unsecured debt rating of A or better (or, if there are not then any Series A Notes Outstanding, of BBB or better) by Standard & Poor’s or Fitch, or is otherwise covered by a Rating Agency Confirmation or (b), at the time of any transfer of a Currency 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 Deutsche Bank Trust Company Americas, in its capacity as the Operating Bank and as Trustee in respect of any Eligible Account, or any other bank organized under the laws of the United States of America or any state thereof or the District of Columbia (or any branch of a foreign bank licensed under any such laws), in each case so long as it (i) has either (A) a long-term unsecured debt rating of BBB or better by Fitch or Standard & Poor’s or (B) a

-  17  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

short-term unsecured debt rating of A-2 or better by Standard & Poor’s or F-2 or better by Fitch and (ii) can act as a securities intermediary under the New York Uniform Commercial Code, including a Person providing an Eligible Credit Facility so long as such Person 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.

Eligible Provider” means a Person (other than any Issuer Group Member or any Affiliate thereof) having at least the Threshold Rating, or whose obligations under the Initial Liquidity Facility or any other Eligible Credit Facility are guaranteed by an Affiliate of such Person having at least the Threshold Rating, or is otherwise designated as an Eligible Provider by the Controlling Trustees subject to receipt of a Rating Agency Confirmation.

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 Issuer Group Member’s assets (excluding Lessee Funds that are Segregated Funds), including, without limitation, all Asset Interests and Stock and any Indebtedness of any Issuer Subsidiary held by the Issuer or any other Issuer Group Member.

End of Lease Payments” means all payments under a Lease that are paid by or on behalf of the Lessee to the Lessor (other than Rental Payments and Usage Fees) in connection with the return of the applicable Asset under the Lease or relating to the termination or expiration of such Lease, in each case, whether as expressly set forth in such Lease in connection with a return condition settlement or otherwise.

Engine” means each Initial Asset (or, if the context requires, related Asset Interests) and any Replacement Asset (or, if the context requires, related Asset Interests) that is an Aircraft Engine, in each case that are owned by any Issuer Group Member from time to time.

Engine Interest” means (a) the Stock in any Person that owns an Engine, including, without limitation, a trust that owns an Engine or (b) the Person that holds, directly or indirectly, the interest referred to in clause (a) above.  The acquisition or disposition of all of the Engine Interest with respect to an Engine constitutes, respectively, the acquisition or disposition of that Engine.

 “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear System.

Event of Default” has the meaning given to such term in Section 4.01.

Excess Indemnification Amounts” means any Indemnification Amounts that are excluded from payment as “Expenses” due to the limitation on the amount so payable set forth in the first proviso to the definition of “Expenses”.

-  18  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Excess Proceeds” means any (a) End of Lease Payments, (b) proceeds or fees associated with the restructuring of a Lease or the termination of a Lease and the re-leasing of all or part of the same airframe or engine to the same Lessee, (c) to the extent that a Maintenance Ratio Trigger Event has occurred and is continuing, Maintenance Ratio Amounts and (d) other payments by a Lessee in lieu of maintenance, future Lease Payments or any other obligations under a Lease, other than amounts which are equal to amounts that are either used or reasonably expected to be used (as reasonably determined by the Servicer) to discharge the cost of performing any maintenance or repair of an Asset.

Excess Proceeds Applied Amounts” means, for any Asset and any Series on any Payment Date, the amount actually applied in respect of the Excess Proceeds Series Payment for such Asset and such Series on such Payment Date; provided that if for any Series on any Payment Date, the aggregate Excess Proceeds Applied Amounts are less than the aggregate Excess Proceeds Series Payments, then Excess Proceeds Series Payments will apply to the applicable Assets pro rata based on the Excess Proceeds Series Payments due for such Series for each such Asset.

Excess Proceeds Series Payment” means, for any Asset and any Series on any Payment Date, (a) any Excess Proceeds Series Payment for such Asset and such Series on the immediately preceding Payment Date (or, on the first Payment Date, zero) minus (b) any Excess Proceeds Applied Amount for such Asset and such Series on the immediately preceding Payment Date plus (c) (x) 105% multiplied by (y) the Pro Rata Percentage of such Series on the related Calculation Date multiplied by (z) any Excess Proceeds collected (or accrued in the case of Maintenance Ratio Amounts) for such Asset during the period commencing on the second Calculation Date preceding such Payment Date and ending on the first Calculation Date preceding such Payment Date.

Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.

Exempted Disposition” means any Asset Disposition (a) as part of a Replacement Exchange, (b)  involving Assets replaced or to be replaced pursuant to a Lease or (c) where an Issuer Group Member retains the beneficial or economic ownership of the disposed Asset.

Expected Final Payment Date” means with respect to (a) the Initial Notes, September 15, 2026 and (b) any Refinancing Notes, the Expected Final Payment Date, if any, established by or pursuant to a Trustee Resolution or in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes;  provided that each reference herein to the Expected Final Payment Date without specifying the Notes to which it relates (unless the context otherwise requires) shall mean the Expected Final Payment Date for the Initial Notes so long as any Initial Notes are Outstanding.

Expense Account” has the meaning given to such term in Section 3.01.

Expenses” means, collectively, any fees, costs or expenses Incurred or other amounts payable by an Issuer Group Member in the course of the business activities permitted under Section 5.02(f), including, without limitation, (i) (x) Trustee Fees, any fees payable to the Controlling Trustees, and any other Service Provider Fees  (including the Senior Rent Based Fees and Disposition Fees, but excluding the Subordinated Rent Based Fees) and (y) expenses and Indemnification Amounts (including, without limitation, any and all claims, expenses, obligations,

-  19  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

liabilities, losses, damages and penalties) of, or owing to, the Trustee, the Controlling Trustees, any officer of any Issuer Group Member, the Security Trustee, any Authorized Agent, any Seller and any other Service Provider; provided that such Indemnification Amounts distributed as “Expenses” (excluding any Indemnification Amount payable by any Issuer Group Member pursuant to any Lease document (or any lessee consent with respect to such Lease)) shall not exceed $6,000,000 in the aggregate (and if Indemnification Amounts which will cause the $6,000,000 threshold to be exceeded are due and payable to more than one Person, then Indemnification Amounts which may be distributed as “Expenses” without causing the $6,000,000 threshold to be exceeded will be allocated to such Persons pro rata based upon the amount of Indemnification Amounts due and payable to each such Person) (provided that any amounts paid by the Issuer that at a later date are reimbursed by an insurer or other third party indemnitor shall be deemed not claimed against or paid by the Issuer for the purposes of such threshold); provided further that the foregoing limitation shall not apply following the occurrence and during the continuance of an Event of Default, the delivery of a Default Notice or during the continuance of an Acceleration Default (even if the applicable Indemnification Amount accrued or was claimed prior to the delivery of a Default Notice and the occurrence of an Acceleration Default), (ii) any premiums on the liability insurance required to be maintained for the benefit of the Controlling Trustees, (iii) all Taxes payable by the Issuer Group Members by reason of the business activities permitted under Section 5.02(f) and the other activities described in and permitted under the Related Documents, (iv) any Credit Facility Expenses (other than Subordinated Expenses), (v) Maintenance and Modification Expenses (but only to the extent not funded out of the Maintenance Reserve Account), (vi) any amounts payable to Lessees in accordance with the Leases (to the extent not otherwise provided for by Segregated Funds in a Lessee Funded Account), including without limitation, payments relating to maintenance reserves, security deposits and guaranties of obligations of any Issuer Group Member (without any duplication of any funds on deposit in any Lessee Funded Account) and (vii) any up-front payments payable by the Issuer in connection with any future hedge arrangements permitted under Section 5.02(f)(iv);  provided, however, that, except as expressly provided herein, Expenses shall not include (i) any amount payable on the Notes or under any Currency Hedge Agreement, any Special Indemnity Payment, any Special Litigation Expenses or any Credit Facility Advance Obligations or (ii) to the extent there would otherwise be a deduction for an Expense of an amount already deducted in the determination of “Collections”, any expense referred to in clause (d) of the definition of “Collections”.

Expiry Date” has the meaning given to such term in the Initial Liquidity Facility.

Extension Request” has the meaning given to such term in the Initial Liquidity Facility.

FAA” means the United States Federal Aviation Administration or any governmental authority succeeding to the functions thereof.

Facility Drawing” has the meaning given to such term in Section 3.14(a).

FATCA” means Sections 1471 through 1474 of the Code as of the date of this Indenture (or any amended or successor versions of Sections 1471 through 1474 of the Code that are substantively comparable), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental

-  20  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

agreements (including any foreign legislation, rules, regulations, guidance notes or similar guidance adopted pursuant to or implementing such agreements) entered into in connection with such Sections.

FATCA Responsible Officer” means the “responsible officer” (as such term is defined in Treasury Regulation §1.1471-1(b)(116)) of the Issuer as appointed by the Controlling Trustees.

Final Drawing” has the meaning given to such term in Section 3.14(i).

Final Maturity Date” means with respect to (a) the Initial Notes, September 15, 2043 and (b) any Refinancing Notes, the date specified in the form of such Notes.

Fitch” means Fitch Ratings, Inc.

Future Lease” means, with respect to each Asset, any lease agreement, conditional sale agreement, hire purchase agreement or other similar arrangement as may be in effect at any time after the Delivery Date with respect to such Asset between an Issuer Group Member (as lessor) and a Person not an Issuer Group Member (as lessee), in each case other than any Initial Lease or Additional Lease; provided that if, under any sub-leasing arrangement with respect to an Asset, the lessor thereof agrees to receive payments or collateral directly from, or is to make payments directly to, the sub-lessee, in any such case to the exclusion of the related Lessee, then the relevant sub-lease shall constitute the “Future Lease”, and the sub-lessee shall constitute the related “Lessee” with respect to such Asset, 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.

GAAP” means generally accepted accounting principles in the United States of America.

Global Notes” means any Rule 144A Global Notes and Regulation S Global Notes.

Group 1 Assets” means each Engine that is a variant that is currently in production and that is not a Group 2 Asset.

Group 2 Assets”  means each Engine that is (a) a GEnx, LEAP, GTF, Trent XWB, GE9x model Aircraft Engine or (b) a model of Aircraft Engine that is a future variant of the model of any Engine (or prior Engine).

Group 3 Assets” means each Airframe.

Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such other Person or (ii) entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.  The term “Guarantee” when used as a verb has a corresponding meaning.

-  21  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Half-Life Base Value” means an Appraiser’s opinion of the value of an Asset in an open, unrestricted, stable market environment with a reasonable balance of supply and demand, and with full consideration of the Asset’s “highest and best use”, 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.

Hedge Payment” means Periodic Hedge Payments and Hedge Termination Payments.

Hedge Provider” means, in the singular, any one of, and in the plural, all of, the Eligible Hedge Counterparties and their successors and permitted assigns which have entered into a Currency Hedge Agreement.

Hedge Termination Payment” means any payment due under a Currency Hedge Agreement as a result of the termination of such Currency Hedge Agreement for whatever reason.

Hedge Termination Payment Account” has the meaning given to such term in Section 3.01.

Holder” means any Person in whose name a Note is registered from time to time.

Incur” has the meaning given to such term in Section 5.02(c).

Indebtedness” means, with respect to any Person at any date of determination (without duplication), (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto), (d) all the 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 finance or financing the acquisition of such property or service, (e) 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 GAAP, (f) all Indebtedness of other Persons secured by a lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person, and (g) all Indebtedness of other Persons guaranteed by such Person.

Indemnification Amounts” means any amounts payable by an Issuer Group Member to any Person pursuant to an indemnification covenant (including those set forth in any Related Document), including, without limitation, any and all such amounts payable thereunder in respect of claims, expenses, obligations, liabilities, losses, damages and penalties, but excluding any and all Special Indemnity Payments, Special Litigation Expenses and Service Provider Fees.

Indenture” has the meaning given to such term in the preamble hereof.

Independent Controlling Trustee” means (a) in respect of the Issuer, the Controlling Trustee designated as such in the Trust Agreement and (b) in respect of any other Issuer Group

-  22  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Member, a trustee, director or manager thereof (as applicable) that satisfies the requirements set forth in the Trust Agreement for an Independent Controlling Trustee of the Issuer.

Indirect Participant” means a Person who holds an interest through a Participant.

Initial Appraised Value” means (a) fin the case of each Initial Asset (other than a Substitute Asset), the average of the Maintenance Adjusted Base Values in respect of such Initial Asset rendered by each of the initial Appraisers as of the second quarter of 2018, (b) in the case of any Substitute Asset, the average of the Maintenance Adjusted Base Values in respect of such Substitute Asset rendered by each of the initial Appraisers as of a date occurring during the period from April 2018 to the date such Substitute Asset is acquired by the Issuer and (c) in the case of any Replacement Asset, the average of the Maintenance Adjusted Base Values in respect of such Replacement Asset rendered by three of the Appraisers as of a date not more than six months prior to the date of the acquisition of such Asset,  provided, in each case, that the second proviso in the definition of “Adjusted Base Value” shall apply with respect to determining the Initial Appraised Value of any Airframe.

Initial Asset” means each of the Aircraft Engines and Airframe identified in Schedule 1 to the Asset Purchase Agreement (including any related Parts) and any Substitute Assets that are substituted therefor, excluding (a) any such Aircraft Engine or Airframe (or related Asset Interest) sold or disposed of (directly or indirectly) by way of a completed Asset Disposition and (b) any such Aircraft Engine or Airframe (or related Asset Interest) for which a Substitute Asset is substituted pursuant to the Asset Purchase Agreement or which will otherwise not be acquired pursuant to the Asset Purchase Agreement.

Initial Closing Date” means August 22, 2018.

Initial Expenses” means Expenses related to the issuance of the Initial Notes and the acquisition of the Initial Assets on the Initial Closing Date, except that the foregoing shall not include any Expenses related to the acquisition of any Remaining Initial Assets incurred after the Initial Closing Date.

Initial Lease” means, with respect to each Initial Asset or Substitute Asset, each lease agreement, conditional sale agreement, hire purchase agreement or other similar arrangement with respect to such Initial Asset specified in Schedule 2 to the Asset Purchase Agreement (as updated in the First Disclosure Letter or a  Supplemental Disclosure Letter as defined in the Asset Purchase Agreement), as such agreement may be amended, modified, extended, supplemented, assigned or novated from time to time, provided that if, under any sub-leasing arrangement with respect to an Initial Asset, the lessor thereof agrees to receive payments or collateral directly from, or is to make payments directly to, the sub-lessee, in any such case to the exclusion of the related Lessee, then the relevant sub-lease shall constitute the “Initial Lease”, and the sub-lessee shall constitute the related “Lessee” with respect to such Initial Asset, 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.

Initial Liquidity Facility” means the Revolving Credit Agreement dated as of the Initial Closing Date among the Initial Liquidity Facility Provider, the Issuer and the Administrative

-  23  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Agent, as amended from time to time in accordance with its terms and as replaced and so designated pursuant to Section 3.14(e)(iii),  provided that, if the Initial Liquidity Facility is replaced by any Replacement Liquidity Facility, the term “Initial Liquidity Facility” shall be deemed to refer to such Replacement Liquidity Facility and any subsequent Replacement Liquidity Facility that replaces any prior Replacement Liquidity Facility.

Initial Liquidity Facility Provider” means BOA, and its successors and permitted assigns;  provided that, if the Initial Liquidity Facility Provider is replaced by any Replacement Liquidity Facility Provider, the term “Initial Liquidity Facility Provider” shall be deemed to refer to such Replacement Liquidity Facility Provider and any subsequent Replacement Liquidity Facility Provider that replaces any prior Replacement Liquidity Facility Provider.

Initial Liquidity Payment Account” has the meaning given to such term in Section 3.01.

Initial Maintenance Reserve Amount” means $5,000,000.

Initial Notes” means the Initial Series A Notes and the Initial Series B Notes.

Initial Purchasers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, MUFG Securities Americas Inc. and Wells Fargo Securities, LLC.

Initial Security Deposit Amount” means $1,000,000.

Initial Series A Notes” means the Series A 2018-A Fixed Rate Notes in the initial Outstanding Principal Balance of $326,759,000, issued on the Initial Closing Date and designated “Series A Notes”.

Initial Series B Notes” means the Series B 2018-A Fixed Rate Notes in the initial Outstanding Principal Balance of $46,680,000, issued on the Initial Closing Date and designated “Series B Notes”.

Insured Value” means, with respect to any Asset other than a Part-Out Asset in any year, 105% of the Allocable Debt Balance for such Asset as of January 1 of that year.

Intercompany Loan” has the meaning given to such term in Section 5.02(c).

Interest Accrual Period” means, as to each Series of Notes, each of the following periods: (a) the period beginning on (and including) the Initial Closing Date, in the case of the Initial Notes, and the relevant issuance date, in the case of any Refinancing Notes, and ending on (but excluding) the first Payment Date thereafter and (b) each successive period beginning on (and including) the Payment Date immediately following the last day of the previous Interest Accrual Period and ending on (but excluding) the next succeeding Payment Date; provided that the final Interest Accrual Period with respect to any Notes shall end on but exclude the date such Notes are repaid in full; provided further that Account balances with respect to each Interest Accrual Period shall be determined by reference to the balances of funds on deposit in the Accounts as of the close of business on the Calculation Date immediately preceding the Payment Date at the end of such Interest Accrual Period.

-  24  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Interest Amount” means, with respect to any Series of Notes, on any Payment Date, (a) the amount of interest (other than Step-Up Interest) accrued and unpaid to such Payment Date at the Stated Rate with respect to such Series for the Interest Accrual Period ending on such Payment Date plus (b) interest at the Stated Rate on any Interest Amount due but not paid on any prior Payment Date.

Investment” 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.

Investment Company Act” means the Investment Company Act of 1940, as amended.

Investment Earnings” means investment earnings on funds on deposit in any Account net of losses and investment expenses of the Operating Bank in making such investments.

Issuer” has the meaning set forth in the preamble hereof.

Issuer Beneficial Interest” means, with respect to the Issuer, a beneficial interest in the Issuer consisting of a specified percentage interest in the residual value of the Issuer, 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 the Issuer as a statutory trust.

Issuer Group” means the Issuer and each Issuer Subsidiary.

Issuer Group Member” means the Issuer or an Issuer Subsidiary.

Issuer Subsidiaries” means, as of the Initial Closing Date, those Persons set forth on Schedule 2 to this Indenture and the Asset Trusts referenced on Schedule 4, together with any other direct or indirect Subsidiary (including any Asset Subsidiary and any Asset Trust) of the Issuer.

Junior Claim” means (a) with respect to Expenses, all other Obligations and (b) with respect to any other Obligations, all Obligations, in each case, as to which the payment of such other Obligations constitute a Prior Ranking Amount.

Junior Claimant” means the holder of a Junior Claim.

Junior Representative” means, as applicable, the trustee with respect to any Junior Claim consisting of the applicable Series of Notes and any other Person acting as the representative of one or more Junior Claimants.

KBRA” means Kroll Bond Rating Agency, Inc.

Lease Payments”  means all lease payments and other amounts payable by or on behalf of a Lessee under a Lease or (without duplication) a lessee under a head lease of an Asset, and all rights of any Issuer Group Member to receive moneys due and to become due under or pursuant to such Lease or (without duplication) head lease, including Rental Payments, Usage Fees, End of Lease Payments and Security Deposits.

-  25  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Lease Security Assignment” has the meaning given to such term in the Security Trust Agreement.

Leases” means the Initial Leases, the Future Leases and the Additional Leases.

Legal Defeasance” has the meaning given to such term in Section 11.01(b).

Lessee” means each Person who is the lessee of an Asset from time to time leased from an Issuer Group Member pursuant to a Lease.

Lessee Funded Account” has the meaning given to such term in Section 3.01.

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 Usage Fees that a Lessee is obligated to pay under a Lease and that are Segregated Funds.

Lessee Reimbursement” means any amounts that a Lessor is obligated to pay to or for the benefit of a Lessee pursuant to the terms of the applicable Lease, including, without limitation, reimbursement for maintenance performed by such Lessee or maintenance contributions measured by reference to Usage Fees, costs of compliance with airworthiness directives and payments with respect to the maintenance condition of an Asset upon the expiration of the applicable Lease.

Lessor” means, with respect to any Lease, the Issuer Group Member that is the lessor or vendor under such Lease.

Lessor Account” has the meaning given to such term in Section 3.01(l).

Liquidity Facility Event of Default” has the meaning assigned to such term in the Initial Liquidity Facility.

Liquidity Facility Non-Consent Event” means the occurrence of (i) the payment of the Series A Notes and Series B Notes in full (other than any Refinancing Notes that are Series A Notes or Series B Notes so long as such Refinancing Notes are not covered by the Initial Liquidity Facility and the Initial Liquidity Facility has been terminated in connection with the relevant Refinancing), (ii) the termination of the Initial Liquidity Facility and (iii) the payment of all Credit Facility Obligations owed to the Initial Liquidity Facility Provider in full.

Liquidity Facility Reserve Account” has the meaning given to such term in Section 3.01.

Maintenance Adjusted Base Value”  means the Half-Life Base Value of an Asset, adjusted to account for the maintenance status of such Asset (with such assumptions as to use since the last reported status as may be reasonably stated in the appraisal setting forth such Maintenance Adjusted Base Value).

Maintenance and Modification Expenses” means (a) the cost of performing any maintenance or repair of an Asset and of performing a Mandatory Asset Modification (but excluding the cost of performing Discretionary Asset Modifications) and (b) the cost of Lessee Reimbursements.

-  26  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Maintenance Annual Estimate” means an estimate prepared by the Servicer each year as to the projected maintenance costs of the Assets over the 21-month period beginning on each anniversary of the Initial Closing Date.

Maintenance Minimum Amount” means (a) the lesser of (i) $5,000,000 and (ii) the Outstanding Principal Balance of the Notes as of the applicable Payment Date prior to giving effect to the application of amounts pursuant to Section 3.09 multiplied by (b)  the amount equal to (i) one minus (ii) the sum of the Maintenance Reduction Factors for (A) each Initial Asset that was not acquired or will not be acquired, and for which no Substitute Asset was or will be acquired, under the Asset Purchase Agreement, (B) each Initial Asset for which a Disposition Date shall have occurred that was not subject to a Replacement Exchange relating to such Asset Disposition (or otherwise replaced by a Replacement Asset) and (C) each Initial Asset that was replaced by a Substitute Asset or Replacement Asset, and a Disposition Date shall have occurred for such Substitute Asset (or Replacement Asset therefor)  and such Substitute Asset or Replacement Asset was not subject to a Replacement Exchange relating to such Asset Disposition (or otherwise replaced by a Replacement Asset).

Maintenance Ratio Amount” means, for any Asset on any date, the product of (a) the Designated Percentage of such Asset and (b) the Aggregate Maintenance Ratio Amount.

Maintenance Ratio Trigger Event”  means (a) as of any Payment Date, that (i) the Outstanding Principal Balance of all Notes on such Payment Date after giving effect to all principal payment made on such Payment Date divided by (ii) the Adjusted Portfolio Value as of the related Calculation Date, expressed as a percentage, exceeds 82.5% and (b) as of any other date, that a Maintenance Ratio Trigger Event (determined as provided in clause (a)) occurred as of the most recent Payment Date.

Maintenance Reduction Factor” means, with respect to each Initial Asset, the number opposite such Initial Asset as set forth on Schedule 6.

Maintenance Required Amount” means, with respect to any Payment Date (such Payment Date, for purposes of this definition, the “Relevant Payment Date”), an amount equal to the greater of (a) the Maintenance Minimum Amount and (b) an aggregate amount equal to the sum of (1) 100% of the projected maintenance costs of each Asset (with respect to any Asset subject to a Lease, which are payable by the applicable Lessor rather than the Lessee) (“Projected Maintenance Costs”) from such Relevant Payment Date to but excluding the first Payment Date succeeding the Relevant Payment Date, (2) 80% of the Projected Maintenance Costs from the first Payment Date succeeding the Relevant Payment Date to but excluding the second Payment Date succeeding the Relevant Payment Date, (3) 60% of the Projected Maintenance Costs from the second Payment Date succeeding the Relevant Payment Date to but excluding the third Payment Date succeeding the Relevant Payment Date, (4) 40% of the Projected Maintenance Costs from the third Payment Date succeeding the Relevant Payment Date to but excluding the fourth Payment Date succeeding the Relevant Payment Date, (5) 40% of the Projected Maintenance Costs from the fourth Payment Date succeeding the Relevant Payment Date to but excluding the fifth Payment Date succeeding the Relevant Payment Date, (6) 40% of the Projected Maintenance Costs from the fifth Payment Date succeeding the Relevant Payment Date to but excluding the sixth Payment Date succeeding the Relevant Payment Date, (7) 30% of the Projected Maintenance Costs from

-  27  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

the sixth Payment Date succeeding the Relevant Payment Date to but excluding the seventh Payment Date succeeding the Relevant Payment Date, (8) 20% of the Projected Maintenance Costs from the seventh Payment Date succeeding the Relevant Payment Date to but excluding the eighth Payment Date succeeding the Relevant Payment Date, (9) 20% of the Projected Maintenance Costs from the eighth Payment Date succeeding the Relevant Payment Date to but excluding the ninth Payment Date succeeding the Relevant Payment Date and (10) 10% of the Projected Maintenance Costs from the ninth Payment Date succeeding the Relevant Payment Date to but excluding the tenth Payment Date succeeding the Relevant Payment Date.  The Projected Maintenance Costs shall be determined on the basis of the most recent Maintenance Annual Estimate delivered by the Issuer pursuant to Section 5.03(g), as well as information (including information provided by the Servicer) relating to any change in the actual timing of such Projected Maintenance Costs from the timing projected by such Maintenance Annual Estimate.

Maintenance Reserve Account” has the meaning given to such term in Section 3.01.

Mandatory Asset Modification” means a modification or improvement of an Asset made after the Delivery Date for such Asset, the cost of which is capitalized in accordance with GAAP, required pursuant to the terms of the related Lease or the terms of Applicable Law or which, in the reasonable determination of the Servicer, is commercially necessary in order to place such Asset in the minimum condition required to lease or re-lease such Asset.

Maximum Facility Commitment” has the meaning assigned to such term in the Initial Liquidity Facility.

Merger Transaction” has the meaning given to such term in Section 5.02(g) hereof.

Modification Payment” has the meaning given to such term in Section 5.02(r).

Monthly Report” has the meaning given to such term in Section 2.14(a).

Net Cash Proceeds” means an amount equal to the gross proceeds of the sale of the Initial Notes reduced by (a) the amount of the Initial Expenses, (b) the initial Required Expense Amount, (c) the Initial Maintenance Reserve Amount and (d) the Initial Security Deposit Amount.

Net Sale Proceeds” means, with respect to any Asset Disposition, the aggregate amount of cash (including proceeds of casualty insurance) received or to be received from time to time (whether as initial or deferred consideration) by or on behalf of the seller in connection with such transaction, including Purchase Option payments, after deducting therefrom (without duplication) (a) (i) reasonable and customary brokerage commissions and other similar fees and commissions (including the Disposition Fee received by the Servicer under the Servicing Agreement), (ii) the amount of taxes payable in connection with or as a result of such transaction, (iii) the cost of any modifications to the Asset made in connection with its sale or other disposition, in each case to the extent, but only to the extent, that amounts described in this clause (a) and 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, (b) the aggregate amount of Additional Advances (if any) made by a Certificate Holder for purposes of increasing the Net Sale Proceeds in respect of such Asset Disposition, (c) the aggregate amount (if any)

-  28  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

transferred from the Asset Disposition Contribution Account to the Collections Account, the Asset Replacement Account and/or a Qualified Escrow Account, as applicable, in respect of the relevant Asset Disposition and (d) the amount (if any) of any Excess Proceeds received with respect to the Asset that is the subject of such Asset Disposition during the period in which other Net Sale Proceeds are received in respect of such Asset.

Non-Extension Drawing” has the meaning given to such term in Section 3.14(d).

Non-Extension Notice” has the meaning given to such term in Section 3.14(d).

Non-Significant Subsidiary” means an Issuer Subsidiary with respect to which an order or decree described in Section 4.01(e) has been entered or an event described in Section 4.01(f) has occurred if, as of the date of the entry of such order or decree or of such event, as the case may be, such Issuer Subsidiary, together with all of the Issuer Subsidiaries that have been and continue to be subject to such an order or decree or event, as the case may be, since the Initial Closing Date, own or lease Assets having an aggregate Adjusted Base Value of less than 10% of the then Adjusted Portfolio Value as of such applicable date of such order or decree or event.

Note Purchase Agreement” means the Purchase Agreement dated August 16, 2018, among the Issuer, Willis Lease, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, MUFG Securities Americas Inc. and Wells Fargo Securities, LLC, as the Initial Purchasers.

Notes” means the Initial Notes, all Refinancing Notes, if any, and all notes, if any, issued in replacement or substitution of any such Notes.

Notices” has the meaning given to such term in Section 12.05.

Notional Outstanding Principal Balance” means, as of any date, with respect to any Series of Notes, as applicable, the Outstanding Principal Balance of such Series plus the Additional Prepayment Amount for such Series, in each case as of such date.

Obligations” means the Secured Obligations and the payments made to the Issuer or any other party pursuant to Section 3.09.

Officer’s Certificate” means a certificate signed by, with respect to the Issuer, any Signatory Trustee and, with respect to any other Person, any authorized officer, director, trustee or equivalent representative of such Person.

Operating Bank” means the Person acting, at the time of determination, as the Operating Bank under this Indenture and the Security Trust Agreement.  The initial Operating Bank is Deutsche Bank Trust Company Americas.

Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee of or counsel to the Issuer, that meets the requirements of Section 1.03.

Optional Redemption” has the meaning given to such term in Section 3.11(a).

-  29  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Outstanding” means (a) with respect to any Series of Notes at any time, all Notes of such Series have been, at such time, authenticated and delivered by the Trustee except (i) any such Notes cancelled by, or delivered for cancellation to, the Trustee; (ii) any such Notes, or portions thereof, the payment of principal of and accrued and unpaid interest on which moneys have been deposited in the applicable Series Account or distributed to Holders by the Trustee and any such Notes, or portions thereof, the payment or redemption of which moneys in the necessary amount have been deposited in the Defeasance/Redemption Account; provided that if such Notes are to be redeemed prior to the maturity thereof in accordance with the requirements of Section 3.11(a) or 3.11(b), notice of such redemption shall have been given as provided in Section 3.11(c), or provision satisfactory to the Trustee shall have been made for giving such notice; and (iii) any such Notes in exchange or substitution for which other Notes have been authenticated and delivered, or which have been paid pursuant to the terms of this Indenture (unless proof satisfactory to the Trustee is presented that any of such Note is held by a Person in whose hands such Note is a legal, valid and binding obligation of the Issuer); and (b) when used with respect to any evidence of indebtedness other than any Notes means, at any time, any principal amount thereof then unpaid and outstanding (whether or not due or payable).

Outstanding Disposition Premium” means, in respect of any Payment Date and any Series of Notes, the excess (if any) of (i) the aggregate amount of Disposition Premium for such Series of Notes for each Asset Disposition that occurred prior to the Calculation Date related to such Payment Date over (ii) the aggregate amount of Disposition Premium actually paid pursuant to Section 3.09 prior to such Payment Date.

Outstanding Principal Balance” means, with respect to any Notes or Series of Notes that are Outstanding, the aggregate principal amount evidenced by such Notes or Series of Notes that is then unpaid and outstanding.

Owner Trustee” means Wilmington Trust Company, as Owner Trustee of the Issuer, and its successors in such capacity.

Part” means any and all parts, avionics, attachments, accessions, appurtenances, furnishings, components, appliances, accessories, instruments and other equipment (other than any Aircraft Engine) installed in, or attached to (or constituting a spare for any such item installed in or attached to) any Asset.

Partial Loss” means, with respect to any Asset, any event or occurrence of loss, damage, destruction or the like which is not a Total Loss.

Partial Loss Proceeds” means, with respect to any Asset, the total proceeds of the insurance or reinsurance (other than in respect of liability insurance) paid in respect of any Partial Loss to any Issuer Group Member.

Participant” means, with respect to DTC, Euroclear or Clearstream, a Person who has an account with DTC, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

-  30  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Part-Out Agreement” means any agreement for part-out, consignment agreement or similar agreement for the part-out of an Asset (and related Parts).

Part-Out Asset” means an Asset subjected to a Part-Out Agreement.

Part-Out Sale” means, with respect to any Asset, the sale, transfer or other disposition of, as applicable, any Part on such Asset pursuant to a Part-Out Agreement.

Part-Out Sale Completion Date” means, with respect to any Part-Out Asset, the earlier of (i) the date (as determined in good faith by the Servicer) on which the relevant Issuer Group Member has received substantially all of the Net Sale Proceeds from all Part-Out Sales that the Servicer expects in good faith to receive from the part-out of such Part-Out Asset and (ii) the date falling 24 months from the date on which such Part-Out Asset is subjected to the relevant Part-Out Agreement.

Paying Agent” has the meaning given to such term in Section 2.03(a).

Payment Date” means the 15th day of each month, provided that if any Payment Date would otherwise fall on a day that is not a Business Day, such Payment Date will be the first following day that is a Business Day, commencing on October 15, 2018.

Periodic Hedge Payment” means any payment under a Currency Hedge Agreement other than a Hedge Termination Payment.

Permitted Account Investments” means

(a) in each case, book-entry securities, negotiable instruments or securities in registered form that evidence:

(i)     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);

(ii)    demand deposits, time deposits or certificates of deposit of the Operating Bank or of depositary 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 United States branch of a foreign bank) 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 depositary institution or trust company shall be at least A-1 by Standard & Poor’s and F-1 by Fitch;

(iii)  Investments in money market funds (including funds in respect of which the Trustee or any of its Affiliates is investment manager or advisor) having a rating of at least AAAm by Standard & Poor’s and Fitch; or

-  31  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(iv)  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 depositary institution or trust company referred to in (ii) above; or

(b)        any other Investments (having original maturities of no more than 365 days, or such lesser time as is required for the distribution of funds pursuant to this Indenture) approved by the Controlling Party and in respect of which notice is given to the Rating Agencies;

provided, however, that no Investment shall be made in any obligations of any depositary institution or trust company which has a contractual right to set off and apply any deposits held, and other indebtedness owing, by any Issuer Group Member to or for the credit or the account of such depositary institution or trust company; provided further that if, at any time, the rating of any of the foregoing investments falls below “BBB” by Standard & Poor’s or Fitch, such downgraded investment will no longer constitute a “Permitted Account Investment”.

Permitted Asset Acquisition” has the meaning given to such term in Section 5.02(q).

Permitted Asset Disposition” has the meaning given to such term in Section 5.02(p).

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 do not give rise to any reasonable likelihood of the sale, forfeiture or other loss of the affected asset; (ii) in respect of any Asset, 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 do not give rise to any reasonable likelihood of the sale, forfeiture or other loss of the affected asset; (iii) any Encumbrances on any Assets 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 the Issuer or any Issuer Subsidiary or the Security Trustee, including any Encumbrance created or required to be created under the Security Trust Agreement or any other Security Document; (vi) any Encumbrance arising under any agreements the terms of which contemplate that custody of Lessee Funds held for Lessees with respect to Replacement Assets is held by a third-party; (vii) any Lease in respect of any Asset and the rights of the Lessee under such Lease; (viii) any Encumbrance in respect of the deposit of any Net Sale Proceeds in any Qualified Escrow Account with a Qualified Intermediary as part of a Replacement Exchange; and (ix) any Encumbrance arising under the Initial Liquidity Facility.

Permitted Holder” has the meaning given to such term in Section 5.02(i)(iii) hereof.

Permitted Person” means, with respect to any Beneficial Interest Certificate, the holder of such Beneficial Interest Certificate or holder of a direct or indirect interest in such Beneficial

-  32  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Interest Certificate (as applicable), each of which is either (1) a United States Person, or (2) treated for U.S. federal income tax purposes as a disregarded entity that is a branch of a United States Person, and each of which has covenanted to retain such status for so long as it continues to own such Beneficial Interest Certificate or direct or indirect interest (as applicable).

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 Assets owned by the Issuer Group.

Premium Threshold Amount” means, as of any Redemption Date, (i) prior to the first anniversary of the Initial Closing Date, an amount equal to 30% of the initial Outstanding Principal Balance of the Initial Notes has been repaid using Net Sale Proceeds from Asset Dispositions (other than any Asset Dispositions resulting from a Total Loss) and/or redeemed in connection with an Optional Redemption (other than an Acquisition Balance Redemption), in the aggregate on or prior to such Redemption Date, (ii) on and after the first anniversary of the Initial Closing Date but prior to the second anniversary of the Initial Closing Date, an amount equal to 40% of the initial Outstanding Principal Balance of the Initial Notes has been repaid using the Net Sale Proceeds from Asset Dispositions (other than any Asset Dispositions resulting from a Total Loss) and/or redeemed in connection with an Optional Redemption (other than an Acquisition Balance Redemption), in the aggregate on or prior to such Redemption Date, (iii) on and after the second anniversary of the Initial Closing Date but prior to the third anniversary of the Initial Closing Date, an amount equal to 50% of the initial Outstanding Principal Balance of the Initial Notes has been repaid using the Net Sale Proceeds from Asset Dispositions (other than any Asset Dispositions resulting from a Total Loss) and/or redeemed in connection with an Optional Redemption (other than an Acquisition Balance Redemption), in the aggregate on or prior to such Redemption Date or (iv) on and after the third anniversary of the Initial Closing Date but prior to the fourth anniversary of the Initial Closing Date, an amount equal to 60% of the initial Outstanding Principal Balance of the Initial Notes has been repaid using the Net Sale Proceeds from Asset Dispositions (other than any Asset Dispositions resulting from a Total Loss) and/or redeemed in connection with an Optional Redemption (other than an Acquisition Balance Redemption), in the aggregate on or prior to such Redemption Date.

Prior Ranking Amounts” means, with respect to any amount to be paid in accordance with Section 3.09(a) or 3.09(b) (as applicable), all amounts, if any, to be paid prior to the payment of such amount in accordance with Section 3.09(a) or 3.09(b) (as applicable).

Pro Forma Lease” has the meaning given to such term in Section 5.02(s)(ii).

Pro Rata Percentage” means, for any Series of Notes on any Calculation Date, (a) the Outstanding Principal Balance of such Series on such Calculation Date divided by (b) the Adjusted Portfolio Value on such Calculation Date.

Prohibited Country” has the meaning given to such term in Section 5.02(t).

-  33  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Purchase Option” means a contractual option granted by the lessor or owner under an Asset Agreement (including pursuant to a conditional sale agreement) as to the purchase of the applicable Asset.

Purchase Option Date”  means, with respect to a Purchase Option, the first date such Purchase Option is exercisable.

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” as defined in Rule 144A.

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 Net Sale Proceeds from an Asset Disposition are deposited in such escrow account in connection with a Replacement Exchange and are to be applied to the acquisition of a Replacement Asset designated by the Issuer or another Issuer Group Member or, subject to Section 3.01(i)(iii), if and to the extent not so applied by the end of the applicable Replacement Period for such Asset Disposition, deposited by the Qualified Intermediary in the Collections Account and (ii) in respect of which the Issuer or the applicable Issuer Subsidiary has pledged its rights in such escrow account to the Security Trustee pursuant to the Security Trust Agreement.

Qualified Intermediary” means a Person (i) that has a short term debt rating of or (ii) where the obligations of such Person are guaranteed by a Person that has a short term debt rating of, in each case not lower than A-1 from Standard & Poor’s and F-1 from Fitch.

Rapid Amortization Amounts” means, in respect of any Series on any Payment Date, the amounts actually applied to such Series on such Payment Date pursuant to Section 3.09(a)(xi)(b) and (xii)(b).

Rapid Amortization Event” means, with respect to any Payment Date, one or both of the following exist with respect to such Payment Date: (a) a DSCR Amortization Event or (b) the Expected Final Payment Date shall have occurred.

Rating Agency” means each of KBRA, Fitch and any other nationally recognized statistical rating organization designated by the Issuer; provided that such organizations shall only be deemed to be a Rating Agency for purposes of this Indenture with respect to the Notes they are then rating.

Rating Agency Confirmation” means a written confirmation from each Rating Agency then rating such Series received by the Issuer and the Trustee to the effect that a specified action or event shall not result in the downgrade, qualification or withdrawal of such Rating Agency’s then current credit rating, if any, of any such Notes then Outstanding; provided that in the event one of the following applies with respect to a Rating Agency, and the Issuer or Administrative Agent shall have delivered an Officer’s Certificate to the Trustee certifying that one of the following applies with respect to a Rating Agency, a Rating Agency Confirmation means a written

-  34  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

notice to such Rating Agency of such specified action or event and: (a) such Rating Agency has made a public statement to the effect that it will no longer review events or circumstances of the type requiring receipt of Rating Agency Confirmation for purposes of evaluating whether to confirm the then-current ratings of obligations rated by such Rating Agency or (b) such Rating Agency has communicated to the Issuer, the Servicer, the Administrative Agent or the Trustee (or their legal counsel or agent) that it will not review such event or circumstance for purposes of evaluating whether to confirm the then-current rating of the Notes.

Received Currency” has the meaning given to such term in Section 12.07(a).

Receiver” means any Person or Persons appointed as (and any additional Person or Persons appointed or substituted as) administrative receiver, receiver, manager or receiver and manager.

Record Date” means, with respect to each Payment Date or Redemption Date, the close of business on the last Business Day prior to such Payment Date or Redemption Date, and, with respect to the date on which any Direction is to be given by the Holders, unless otherwise provided pursuant to Section 1.04(d), the close of business on the last Business Day prior to the solicitation of such Direction.

Redemption” means an Optional Redemption (including an Acquisition Balance Redemption and a Redemption after the occurrence and during the continuance of an Event of Default) or a Tax Redemption, as the context may require.

Redemption Date” means the date, which, in the case of a Redemption in part, shall be a Payment Date, and in the case of a Redemption in whole, shall be a Business Day, on which any Series of Notes are to be redeemed pursuant to a Redemption.

Redemption Premium” means, with respect to a Redemption of any Series of Notes (a) for so long as no Event of Default has occurred and is continuing on the relevant Redemption Date, unless clause (b) applies, an amount equal to (1) with respect to a Redemption occurring prior to the first anniversary of the Initial Closing Date, so long as (and to the extent) the applicable Premium Threshold Amount has been exceeded, an amount equal to the Outstanding Principal Balance for such Series being redeemed on such Redemption Date, multiplied by the applicable Stated Rate, (2) with respect to a Redemption occurring on or after the first anniversary of the Initial Closing Date but prior to the second anniversary of the Initial Closing Date, so long as (and to the extent) the applicable Premium Threshold Amount has been exceeded, an amount equal to 75% of the Outstanding Principal Balance for such Series being redeemed on such Redemption Date, multiplied by the applicable Stated Rate, (3) with respect to a Redemption occurring on or after the second anniversary of the Initial Closing Date but prior to the third anniversary of the Initial Closing Date, so long as (and to the extent) the applicable Premium Threshold Amount has been exceeded, an amount equal to 50% of the Outstanding Principal Balance for such Series being redeemed on such Redemption Date, multiplied by the applicable Stated Rate and (4) with respect to a Redemption occurring on or after the third anniversary of the Initial Closing Date but prior to the fourth anniversary of the Initial Closing Date, so long as (and to the extent) the applicable Premium Threshold Amount has been exceeded, an amount equal to 25% of the Outstanding Principal Balance for such Series being redeemed on such Redemption Date, multiplied by the

-  35  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

applicable Stated Rate and (b) (i) until the fourth anniversary of the Initial Closing Date for so long as the applicable Premium Threshold Amount has not been exceeded, (ii) on and after the fourth anniversary of the Initial Closing Date or (iii) during the continuance of an Event of Default, an amount equal to zero.

Redemption Price” means, (a) with respect to any Series of Notes that will be the subject of a Refinancing or an Optional Redemption (other than an Acquisition Balance Redemption), an amount equal to the Outstanding Principal Balance of the Series of Notes being repaid together with all accrued and unpaid interest thereon and the Redemption Premium (if any), (b) with respect to any Series of Notes that will be the subject of an Acquisition Balance Redemption, the amount allocated to such Series as described in Section 3.11(a), and without any Redemption Premium, (c) with respect to any Series of Notes that will be the subject of a Tax Redemption or Redemption pursuant to Section 3.11(a) after the occurrence and during the continuance of an Event of Default, the Outstanding Principal Balance of such Series of Notes together with accrued and unpaid interest thereon but without any Redemption Premium and (d) with respect to any Series of Notes redeemed with Excess Proceeds Applied Amounts, the amount allocated to such Series as described in Section 3.09(a) or (b) (to the extent of applicable available amounts), and without any Redemption Premium.

Refinancing” has the meaning given to such term in Section 2.10(a).

Refinancing Account” has the meaning given to such term in Section 3.01.

Refinancing Expenses” means all out-of-pocket costs and expenses Incurred in connection with a Refinancing, including all expenses in connection with an offering and issuance of Refinancing Notes or borrowing under a loan, credit agreement or other debt instrument, as applicable.

Refinancing Notes” means notes issued by the Issuer under this Indenture at any time and from time to time after the date hereof, in a Refinancing in accordance with Section 2.10 (subject to Section 1.02(n)).

Register” has the meaning given to such term in Section 2.03(a).

Registrar” has the meaning given to such term in Section 2.03(a).

Regulation S” means Regulation S under the Securities Act.

Regulation S Global Note” means a Regulation S Temporary Global Note or a Regulation S Permanent Global Note, as the context may require.

Regulation S Permanent Global Note” means a permanent global Note bearing the restrictive legends specified in Section 2.02 deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of any Regulation S Temporary Global Note that may be issued from time to time upon expiration of the applicable Restricted Period.

-  36  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Regulation S Temporary Global Note” means each temporary global Note containing the legend set forth in Section 2.02(c) deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the principal amount of any Initial Notes or Refinancing Notes initially sold or to be sold in reliance on Rule 903 of Regulation S.

Reinvestment Rules of Construction” means the following rules of construction, which shall be applicable only where expressly stated to apply:

(a)        If an Asset was subjected to an Asset Disposition but the Net Sale Proceeds thereof were deposited into the Asset Replacement Account or a Qualified Escrow Account in accordance with the terms hereof, then such Asset shall be treated as not having been subjected to an Asset Disposition for the period in which such Net Sale Proceeds remain in the Asset Replacement Account or Qualified Escrow Account in accordance with the terms hereof.

(b)        If a Replacement Asset was not a part of the Portfolio on the date referenced (or if applicable for such calculation, on the Calculation Date), each reference to an amount for such Asset on such date shall be calculated as the applicable amount for the Asset to which such Replacement Asset is Related.

(c)        A Replacement Asset shall be “Related” to an Initial Asset and (if any) another Replacement Asset if such Replacement Asset shall have been acquired with Net Sale Proceeds in the Asset Replacement Account or a Qualified Escrow Account from the Asset Disposition of (x) such Initial Asset or (y) such other Replacement Asset that was Related to such Initial Asset.

Related Collateral Document” means any letter of credit, third party or bank guarantee or cash collateral provided by or on behalf of a Lessee to secure such Lessee’s obligations under a Lease.

Related Documents” means the Administrative Agency Agreement, each Eligible Credit Facility, this Indenture, the Notes, the Security Documents, the Servicing Agreement, the Asset Purchase Agreement, any Currency Hedge Agreements, the Note Purchase Agreement and the constitutional documents (including trust documents) of the Issuer Group Members.  References to “Related Documents” will also include, where the context requires, any Refinancing Notes and any Acquisition Agreements, guarantees, asset or stock purchase agreements, swap or other interest rate, currency or other hedging agreements or any other agreement entered into or security offered by any Issuer Group Member in connection with any acquisition of Replacement Assets.

Relevant Information” means any information provided to the Administrative Agent by the Trustee, the Security Trustee, the Operating Bank, any Authorized Agent, the Issuer, the Controlling Trustees or any Service Provider.

Remaining Initial Assets” means each of the Initial Assets in respect of which the corresponding Asset Interest was not sold, assigned and transferred to the Issuer on the Initial Closing Date.

Remaining Security Deposit” means, as of any date of determination, the aggregate amount of each Security Deposit for an Asset that (a) does not constitute Segregated Funds and

-  37  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(b) as of such date of determination may, under the applicable Lease, be required to be repaid to the applicable Lessee.

Rent Based Fees” means the Senior Rent Based Fees and the Subordinated Rent Based Fees.

Rental Payments” means all rental payments and other amounts equivalent to a rental payment payable by or on behalf of a Lessee under a Lease.

Replacement Asset” means (a) any Airframe or Aircraft Engine acquired in a Replacement Exchange by any Issuer Group Member from a Seller after the Initial Closing Date in accordance with Section 3.01(i) and 5.02(q),  or (b) any Aircraft Engine replacing a prior Aircraft Engine pursuant to a Lease as provided in Sections 4.01 and 4.02 of Schedule 2.02(a) of the Servicing Agreement, but in each case, excluding any Airframe or Engine after it has been sold or disposed of by way of a completed Asset Disposition.

Replacement Exchange” means the acquisition by any Issuer Group Member of one or more Replacement Assets in a Permitted Asset Acquisition with all or a portion of the Net Sale Proceeds from one or more Permitted Asset Dispositions by any Asset Subsidiary or Asset Trust within the Replacement Period applicable to such Permitted Asset Disposition; provided that the Issuer shall have elected to use all or such portion of such Net Sale Proceeds in a Replacement Exchange in accordance with Section 3.01(i) hereof.  A Replacement Exchange shall commence on the date of the first Permitted Asset Disposition that is a part of the Replacement Exchange and shall terminate on the date of the last Permitted Asset Acquisition that is a part of the Replacement Exchange.

Replacement Liquidity Facility” means, for the Initial Liquidity Facility (including any Replacement Liquidity Facility that is referred to as the Initial Liquidity Facility as provided in the definition of that phrase), an irrevocable revolving credit agreement (or agreements), complying with all of the requirements of Section 3.14(e), in substantially the form of the Initial Liquidity Facility (or such Replacement Liquidity Facility), including reinstatement provisions, or in such other form or forms (which may include a letter of credit, surety bond, swap, financial insurance policy or guaranty) as shall permit the Rating Agencies to confirm in writing their respective ratings then in effect for the Notes (before downgrading of such ratings, if any, as a result of the downgrading of the ratings of the replaced Initial Liquidity Facility Provider (or the Replacement Liquidity Facility Provider referred to as the Initial Liquidity Facility Provider as provided in the definition of that phrase)), in a face amount (or in an aggregate face amount) equal to the then Maximum Facility Commitment under the replaced Initial Liquidity Facility (or such Replacement Liquidity Facility) and issued by an Eligible Provider or Eligible Providers. 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 15 days after the Final Maturity Date of the Initial Notes so long as such Replacement Liquidity Facility provides for a Non-Extension Drawing as contemplated by Section 3.14(d).

Replacement Liquidity Facility Provider” means a Person (or Persons) who issues a Replacement Liquidity Facility.

-  38  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Replacement Period” means, with respect to any portion of the Net Sale Proceeds realized from a Permitted Asset Disposition that the Issuer elects to use to acquire Replacement Assets in a Replacement Exchange pursuant to Section 3.01(i) hereof, the period beginning on the date of such Asset Disposition and ending on the earlier of (a) (i) in the case of Net Sale Proceeds realized from a Permitted Asset Disposition with respect to which the Net Sale Proceeds were equal to or greater than $[**] (such amount, the “Sale Proceeds Threshold Amount”), the [**] day after the date of such Asset Disposition or (ii) in the case of Net Sale Proceeds realized from Permitted Asset Dispositions with respect to which the Net Sale Proceeds were less than the Sale Proceeds Threshold Amount that are deposited in a Qualified Escrow Account, the [**] day after the date of such Asset Disposition or (iii) in the case of Net Sale Proceeds realized from Permitted Asset Dispositions with respect to which the Net Sale Proceeds were less than Sale Proceeds Threshold Amount that are not deposited in a Qualified Escrow Account, the earlier of (A) the final day of such longer period as the Issuer may elect and (B) the date on which such Net Sale Proceeds are required to be transferred to the Asset Purchase Account in accordance with Section 3.01(i)(iii) and (b) the occurrence of an Event of Default.

Required Amount” means, with respect to the Liquidity Facility Reserve Account, (a) initially zero; provided that, if a Downgrade Drawing or a Non-Extension Drawing shall have occurred, the Required Amount as of any Calculation Date shall be an amount equal to the Maximum Facility Commitment as of such Calculation Date, and (b) with respect to any other Eligible Credit Facility, such amount as the Controlling Trustees have unanimously determined (and for which a Rating Agency Confirmation and, if the Initial Liquidity Facility is then in effect, the prior written consent of the Initial Liquidity Facility Provider have been received), plus the increase, if any, in the Required Amount for the applicable Cash Collateral Account or Eligible Credit Facility provided for by the terms of any Refinancing Notes.

Required Expense Amount” means, with respect to each Payment Date, an amount equal to the Expenses (other than Service Provider Fees consisting of the Rent Based Fees) payable during the three succeeding Interest Accrual Periods beginning on such Payment Date or reasonably anticipated by the Administrative Agent to become due and payable during such period, the accrual of which would be prudent in light of the size and timing of such Expenses.

Required Expenses Shortfall” has the meaning given to such term in Section 3.07(g)(i).

Required Majority” means the Holders representing more than 50% of the then Outstanding Principal Balance of the Notes who shall approve or direct any proposed action to be taken pursuant to the terms of this Indenture, provided that, in making such a determination, each Holder shall be required to vote the entire Outstanding Principal Balance of the Notes held by such Holder in favor of, or in opposition to, such proposed action, as the case may be.

Requisition Compensation” means all monies or other compensation receivable by any Issuer Group Member from any government, whether civil, military or de facto, or public or local authority in relation to an Asset in the event of its requisition for title, confiscation, restraint, detention, forfeiture or compulsory acquisition or seizure or requisition for hire by or under the order of any government or public or local authority.

-  39  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Responsible Officer”  means (a) with respect to the Trustee, the Security Trustee or the Operating Bank, as the case may be, any officer within the Corporate Trust Office, including any Vice President, Managing Director, Director, Associate, Assistant Vice President, or any other officer of the Trustee, the Security Trustee or the Operating Bank, as applicable, customarily performing functions similar to those performed by any of the above designated officers and with direct responsibility for the administration of the Related Documents to which the Trustee, the Security Trustee or the Operating Bank is a party 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, (b) with respect to the Issuer, any Signatory Trustee and (c) with respect to any Person providing an Eligible Credit Facility and the Administrative Agent, any authorized officer of such Person.

Restricted Period” has the meaning given to such term in Section 2.12(c)(ii).

Restrictive Legend” means the legend in the form set forth in Section 2.02(a).

Rule 144A” means Rule 144A under the Securities Act.

Rule 144A Global Notes” has the meaning given to such term in Section 2.01(b).

Sale Proceeds Threshold Amount” has the meaning given to such term in the definition of “Replacement Period”.

Sanctions Authority” has the meaning given to such term in Section 5.01(s) hereof.

Scheduled Collections Period” has the meaning given to such term in Section 3.01(b)(ii).

Scheduled Principal Payment Amount” means, with respect to any Series on any Payment Date, the excess, if any, of the Notional Outstanding Principal Balance of such Series of Notes over the Scheduled Target Principal Balance of such Series of Notes on such Payment Date, in each case before giving effect to the application of funds pursuant to Section 3.09(a) on such Payment Date but after giving effect to any partial Redemption of such Series of Notes on such Payment Date; provided that in no event shall the Scheduled Principal Payment Amount of any Series exceed the Outstanding Principal Balance of such Series.

Scheduled Series Percentage” means, with respect to any Series of Notes and Asset on any Payment Date, the related percentage for such Series and Asset set forth in Schedule 5 for the Calculation Date relating to such Payment Date;  provided that for any Group 3 Asset that is not the Airframe identified herein on the Initial Closing Date, the Scheduled Series Percentage shall be the related percentage for such Series and Asset set forth in a schedule to be prepared by the Administrative Agent and delivered to the Issuer (with a copy to the Trustee) in connection with the acquisition of such Airframe, which shall be prepared based on straight line amortization to zero over a period equal to the lower of (i) 12 years and (ii) 25 years minus the age of the Airframe at the time it is included in the Portfolio, until the 96th Payment Date, and Schedule 5 shall be amended by delivery thereof to the Issuer (with a copy to the Trustee) to include such schedule.

-  40  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Scheduled Target Principal Balance” means, for each Series of Notes and Asset on any Payment Date, the sum of (a) the product of (i) the Scheduled Series Percentage of such Series on such Payment Date for Group 1 Assets and (ii) the sum of the Allocable Notional Series Amount of each Group 1 Asset that was an Asset on the related Calculation Date, (b) the product of (i) the Scheduled Series Percentage of such Series on such Payment Date for Group 2 Assets and (ii) the sum of the Allocable Notional Series Amount of each Group 2 Asset that was an Asset on the related Calculation Date and (c) the product of (i) the Scheduled Series Percentage of such Series on such Payment Date for Group 3 Assets and (ii) the sum of the Allocable Notional Series Amount of each Group 3 Asset that was an Asset on the related Calculation Date.

Secured Obligations” has the meaning given to such term in the Security Trust Agreement.

Secured Parties” has the meaning given to such term in the Security Trust Agreement.

Securities” means the Initial Notes and all Refinancing Notes, if any.

Securities Act” means the U.S. Securities Act of 1933, as amended.

Security Deposit” 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 Deposit Account” has the meaning given to such term in Section 3.01.

Security Documents” means the Security Trust Agreement, the Custodian Agreement, the Asset Mortgages, the Asset Mortgage and Lease Security Assignments, the Lease Security Assignments and each guarantee, security assignment, consent, letter, acknowledgement, notice and power of attorney and any document or certificate executed pursuant to or in connection with the Security Trust Agreement or in the Security Trustee’s capacity as Security Trustee thereunder, or otherwise, for the purpose of granting a security interest in any Collateral to the Security Trustee for the benefit of the Secured Parties or for the purpose of perfecting such security interest (but not including any Lease document or Lessee consent).

Security Interests” means the security interests granted or expressed to be granted in the Collateral pursuant to the Security Trust Agreement or any other Security Document.

Security Trust Agreement” means the Security Trust Agreement dated as of August 22, 2018, among the Issuer, the Security Trustee and each other party thereto.

Security Trustee” means the Person appointed, at the time of determination, as the trustee for the benefit of the Secured Parties pursuant to Section 7.01 of the Security Trust Agreement.  The initial Security Trustee is Deutsche Bank Trust Company Americas.

Segregated Funds” means, with respect to each Lease, (a) all Security Deposits provided for under such Lease that have been received from the relevant Lessee or pursuant to the relevant Acquisition Agreement with respect to such Lease, (b) any security deposit pledged to the relevant Lessee by an Issuer Group Member and (c) all other funds, including any Usage Fee payments, received from the relevant Lessee or pursuant to the relevant Acquisition Agreement with respect

-  41  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

to such Lease and in each case of clause (a), (b) and (c) not permitted, pursuant to the terms of such Lease, to be commingled with the funds of the Issuer Group.

Seller” means (i), with respect to the Asset Purchase Agreement, Willis Lease, and (ii) with respect to any other Acquisition Agreement, Willis Lease or any other seller of an Asset in a Permitted Asset Acquisition.

Senior Claim” means, with respect to any Obligations, all other Obligations the payment of which constitutes a Prior Ranking Amount with respect thereto.

Senior Claimant” means the holder of a Senior Claim.

Senior Hedge Payment Shortfall” has the meaning given to such term in Section 3.07(g)(ii).

Senior Hedge Payments” means Hedge Payments other than Subordinated Hedge Payments.

Senior Rent Based Fees” has the meaning given to such term in the Servicing Agreement.

Senior Series” means (a) so long as any Series A Notes are Outstanding or amounts are payable to the Holders of the Series A Notes, the Series A Notes and (b) after the Series A Notes have been repaid in full and all amounts due to the Holders of the Series A Notes have been paid in full and so long as any Series B Notes are Outstanding or amounts are payable to the Holders of the Series B Notes, the Series B Notes.

Senior Trustee” means (a) so long as any Series A Notes are Outstanding or amounts are payable to the Holders of the Series A Notes, the Trustee of the Series A Notes (acting at the written direction of the Holders of a majority of the Outstanding Principal Balance of such Series), and (b) after the Series A Notes have been repaid in full and all amounts due to the Holders of the Series A Notes have been paid in full (as certified in writing to the Trustee) and so long as any Series B Notes are Outstanding or amounts are payable to the Holders of the Series B Notes, the Trustee of the Series B Notes (acting at the written direction of the Holders of a majority of the Outstanding Principal Balance of such Series).

Series” means any series of Notes established pursuant to this Indenture.

Series A Interest Shortfall” has the meaning given to such term in Section 3.07(g)(ii).

Series A Note” means any Note, in substantially the form of Exhibit A-1 hereto, issued as part of a Series of Notes that is designated as “Series A”, which may be further differentiated by a numeric designation consisting of the year in which such Series is issued and consecutive numbers in chronological order of issuance to differentiate the Notes of each such Series of Series A Notes from the Notes of any other Series of Series A Notes, provided that two or more Series of Series A Notes issued at the same time may be given additional alphanumeric designations to differentiate such Series among themselves.

Series Account” has the meaning given to such term in Section 3.01.

-  42  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Series B Interest Shortfall” has the meaning given to such term in Section 3.07(g)(iii).

Series B Note” means any Note, in substantially the form of Exhibit A-2 hereto, issued as part of a Series of Notes that is designated as “Series B”, which may be further differentiated by a numeric designation consisting of the year in which such Series is issued and consecutive numbers in chronological order of issuance to differentiate the Notes of each such Series of Series B Notes from the Notes of any other Series of Series B Notes, provided that two or more Series of Series B Notes issued at the same time may be given additional alphanumeric designations to differentiate such Series among themselves.

Series B Purchase Date” has the meaning given to such term in Section 4.13 hereof.

Series B Purchase Option Notice” has the meaning given to such term in Section 4.13 hereof.

Series B Purchaser” has the meaning given to such term in Section 4.13 hereof.

Service Provider” means each of the Trustee, the Servicer, the Administrative Agent, the Operating Bank, the Security Trustee and any other service provider retained from time to time by an Issuer Group Member pursuant to the Related Documents.

Service Provider Fees” means any fees, expenses and other amounts (of whatever nature), except for Indemnification Amounts, Special Litigation Expenses and Special Indemnity Payments, due or reimbursable to Service Providers in accordance with the applicable agreements with such Service Providers (including the Related Documents).

Servicer” means the Person acting, at the time of determination, in the capacity of the Servicer under the Servicing Agreement.  The initial Servicer is Willis Lease.

Servicing Agreement” means the Servicing Agreement dated as of the Initial Closing Date among the Servicer, the Administrative Agent, the Issuer Subsidiaries party thereto and the Issuer.

Shortfall” means a Required Expenses Shortfall, a Series A Interest Shortfall, a Series B Interest Shortfall or a Senior Hedge Payment Shortfall.

Signatory Trustee” means the Owner Trustee, any Controlling Trustee or such other trustee as the Controlling Trustees shall from time to time direct in accordance with the Trust Agreement.

Special Indemnity Payments” means (a) any indemnity amounts owing at any time and from time to time by the Issuer to any Holder and (b) any other indemnity amounts owing at any time and from time to time to any other Person party to a Related Document (other than the Servicer under the Servicing Agreement) which arise from violations of the Securities Act, the Exchange Act or any other securities law.

Special Litigation Expenses” means any amounts payable by an Issuer Group Member in order to satisfy any final, non-appealable judgment against such Issuer Group Member pursuant

-  43  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

to a litigation proceeding to which such Issuer Group Member is a named party (excluding any amounts that an Issuer Group Member is contractually obligated to pay);  provided that any such amounts payable by any Issuer Group Member to any Seller or Service Provider shall not be deemed to be a Special Litigation Expense.

Special Majority” has the meaning given to such term in the Trust Agreement.

Standard & Poor’s” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc.

Stated Expiration Date” has the meaning given to such term in Section 3.14(d).

Stated Rate” means, with respect to a Note, as of any date of determination thereof, the interest rate set forth as the Stated Rate in such Note.

Step-Up Interest” means, on each Payment Date following the Expected Final Payment Date, so long as there are Initial Notes outstanding, interest at the rate of 2.0% per annum, compounded monthly, on the Outstanding Principal Balance of the Initial Notes for the Interest Accrual Period ending on such Payment Date.

Step-Up Interest Amount” means, with respect to any Initial Notes, on each Payment Date following the Expected Final Payment Date, the accrued and unpaid Step-Up Interest as of such Payment Date, including any interest at the rate of 2.0% per annum accrued on unpaid Step-Up Interest.

Stock” means all shares of capital stock, all beneficial interests in trusts, all membership interests in limited liability companies, all ordinary shares and preferred shares and any options, warrants and other rights to acquire such shares or interests.

Subject Asset”  means, in respect of any Subject Disposition, the Asset disposed in such Subject Disposition.

Subject Disposition”  means, in respect of any Collection Period, an Asset Disposition occurring during such Collection Period.

Subordinated Expenses” means Special Indemnity Payments, Special Litigation Expenses and Excess Indemnification Amounts.

Subordinated Hedge Payments” means (a) any Hedge Termination Payment with respect to the termination of a Currency Hedge Agreement  resulting from a voluntary termination by an Issuer Group Member of a Currency Hedge Agreement (unless such voluntary termination is related to an Asset Disposition) or a default of the Hedge Provider or in which the Hedge Provider is the sole “affected party” as a result of a termination of a Currency Hedge Agreement (other than for a termination due to an illegality or tax event as such events are defined in the Currency Hedge Agreement) and (b) any Hedge Termination Payment which by the terms of the applicable Currency Hedge Agreement is to be subordinated in accordance with Section 3.09.

-  44  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Subordinated Rent Based Fees” has the meaning given to such term in the Servicing Agreement.

Subsidiary” means, as to any Person, a corporation, partnership, limited liability company, trust 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, trust or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.

Substitute Asset” means any Aircraft Engine or Airframe that is to be substituted for any  Removed Asset (as defined in the Asset Purchase Agreement).

Target Security Deposit Amount” means, with respect to any Payment Date (for the purposes of this definition only, the “Relevant Payment Date”), an amount equal to the greater of (i) $1,000,000 and (ii) the sum of (a) 100% of the Remaining Security Deposits relating to Leases expected to expire during the period from the Relevant Payment Date to but excluding the first Payment Date succeeding the Relevant Payment Date, plus (b) 75% of the Remaining Security Deposits relating to Leases expected to expire during the period from the first Payment Date succeeding the Relevant Payment Date to but excluding the second Payment Date succeeding the Relevant Payment Date, plus (c) 50% of the Remaining Security Deposits relating to Leases expected to expire during the period from the second Payment Date succeeding the Relevant Payment Date to but excluding the third Payment Date succeeding the Relevant Payment Date, plus (d) 25% of the Remaining Security Deposits relating to Leases expected to expire during the period from the third Payment Date succeeding the Relevant Payment Date to but excluding the fourth Payment Date succeeding the Relevant Payment Date.

Tax Redemption” has the meaning given to such term in Section 3.11(b) hereof.

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 of America 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; and 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.

Termination Notice” has the meaning assigned to such term in the Initial Liquidity Facility.

Third Party Event” has the meaning given to such term in Section 5.03 hereof.

-  45  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Threshold Rating”  means a published long-term issuer credit, long-term issuer default or senior unsecured debt rating of (a) if there are any Series A Notes Outstanding, BBB (or the equivalent) by Fitch or, only if Fitch does not then rate the Initial Liquidity Facility Provider, Standard & Poor’s,  (b)  if there are not then Series A Notes Outstanding, BBB- (or the equivalent) by Fitch or, only if Fitch does not then rate the Initial Liquidity Facility Provider, Standard & Poor’s and (c) if KBRA then rates the Initial Liquidity Facility Provider, at least BBB- (or the equivalent) by KBRA.

 “Total Loss” means, with respect to any Asset (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 Asset 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 Asset 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 Asset 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.

Trust Agreement” means that certain Amended and Restated Trust Agreement of Willis Engine Structured Trust IV, dated as of the date hereof, among the Controlling Trustees identified therein, the Owner Trustee and Willis Lease, as Depositor.

Trustee” means, with respect to each Series of Notes, the Person appointed, at the time of determination, as the trustee of such Series of Notes in accordance with this Indenture, as applicable.  The initial Trustee for each Series of Notes is Deutsche Bank Trust Company Americas.

Trustee Fees” means, the fees payable to the Trustee as set forth in a fee letter between the Issuer and the Trustee.

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.

-  46  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Trustee’s Website” means the Trustee’s password protected internet website initially located at http://tss.sfs.db.com/investpublic.

Unfunded Maintenance Reimbursement Amount” means, in respect of any Calculation Date, (a) the aggregate amount of Maintenance and Modification Expenses during the six-month period ending on such Calculation Date, less (b) the sum of (i) the aggregate of the amounts available in the Maintenance Reserve Account during the six-month period ending on such Calculation Date and (ii) any Cure Advances made to fund such Maintenance and Modification Expenses during the six-month period ending on such Calculation Date.

United States Person” means a United States person (as defined in Section 7701(a)(30) of the Code) that is not treated for U.S. federal income tax purposes as a trust described in Subpart E of Subchapter J in Chapter 1 of the Code.

U.S. Government Obligations” has the meaning given to such term in Section 11.02(a).

Usage Fees” means rent (whether called usage fee, supplemental rent, utilization rent, maintenance reserve or any similar term) that is in addition to a base rent for the Asset (regardless of how such base rent is calculated) payable under a Lease, including such additional rent that is based on hours or cycles of operation of the life-limited parts of an Asset.

Website” has the meaning given to such term in Section 5.03(j) hereof.

Willis Lease” means Willis Lease Finance Corporation, a Delaware corporation.

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Written Notice” means, with reference to the Issuer, the Trustee, the Operating Bank, the Security Trustee, the Administrative Agent or the provider of any Eligible Credit Facility, a written instrument executed by a Responsible Officer of such Person.

Section 1.02    Rules of Construction.  Unless the context otherwise requires:

(a)        A term has the meaning assigned to it and an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP.

(b)       The terms “herein”, “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

(c)        Unless otherwise indicated in context, all references to Articles, Sections, Schedules or Exhibits refer to an Article or Section of, or a Schedule or Exhibit to, this Indenture.

-  47  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(d)        Words of the masculine, feminine or neuter gender shall mean and include the correlative words of other genders, and words in the singular shall include the plural, and vice versa.

(e)        The terms “include”, “including” and similar terms shall be construed as if followed by the phrase “without limitation”.

(f)        References in this Indenture to an agreement or other document (including this Indenture) include references to such agreement or document as amended, replaced or otherwise modified (without, however, limiting the effect of the provisions of this Indenture with regard to any such amendment, replacement or modification), and the provisions of this Indenture apply to successive events and transactions.  References to any Person shall include such Person’s successors in interest and permitted assigns.

(g)        References in this Indenture to any statute or other legislative provision shall include any statutory or legislative modification or re-enactment thereof, or any substitution therefor, and references to any governmental Person shall include reference to any governmental Person succeeding to the relevant functions of such Person.

(h)        References in this Indenture to the Notes or to a Series of Notes include the conditions applicable to such Notes or such Series; and any reference to any amount of money due or payable by reference to such Notes or such Series shall include any sum covenanted to be paid by the Issuer under this Indenture.

(i)         References in this Indenture to any action, remedy or method of judicial proceeding for the enforcement of the rights of creditors or of security shall be deemed to include, in respect of any jurisdiction other than the State of New York, references to such action, remedy or method of judicial proceeding for the enforcement of the rights of creditors or of security available or appropriate in such jurisdiction as shall most nearly approximate such action, remedy or method of judicial proceeding described or referred to in this Indenture.

(j)         Where any payment is to be made, any funds are to be applied or any calculation is to be made hereunder on a day which is not a Business Day, unless any Related Document otherwise provides, such payment shall be made, funds shall be applied and calculation shall be made on the next succeeding Business Day, and payments (unless otherwise provided for in respect of the Notes) shall be adjusted accordingly.  Where any calculation is to be made hereunder on a Calculation Date or any amount hereunder is in respect of a Calculation Date, such calculation shall be made as of the close of business on such Calculation Date and such amount shall be in respect of the close of business on such Calculation Date.

(k)        Where the Servicer or any replacement servicer is performing or may perform lease management and/or remarketing services pursuant to a Related Document in relation to one or more Assets at the same time, a reference in this Indenture to the “Servicer” shall be construed as a reference to each of the Servicer or such replacement servicer and the rights and obligations of the parties hereto shall be construed accordingly.

-  48  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(l)         Any provision in this Indenture providing for a transfer to, or a withdrawal from, an Account or any other bank account by the Administrative Agent shall be construed to be a transfer to, or a withdrawal from, as the case may be, such Account or other bank account by the Operating Bank or other Eligible Institution at which the applicable account or accounts are located at the written, electronic or other automated funds transfer direction of the Administrative Agent.  Such direction may be made by the Administrative Agent unless the Administrative Agent shall have defaulted under the Administrative Agency Agreement, and any such direction (i) shall be in writing, (ii) shall give full details of the amount to be transferred or withdrawn, the Account or other bank account to be debited, the Account or other bank account to be credited and the date of the relevant payment and (iii) shall certify that such request is made pursuant to and in accordance with the terms of this Indenture.  The Operating Bank and the Trustee shall be entitled to act in accordance with such a request, without further question or inquiry, and shall have no obligation to give any direction to any other Eligible Institution at which an account or accounts are located unless and until it receives such a request from the Administrative Agent; provided that the Administrative Agent shall at all times comply with the relevant provisions of the Administrative Agency Agreement with respect to any such direction.

(m)       For purposes of determining the balance of amounts credited to and/or deposited in an Account, the “value” of Permitted Account Investments deposited in and/or credited to an Account shall be the lower of the acquisition cost thereof and the then fair market value thereof and the “value” of Dollars and cash equivalents of Dollars (other than cash equivalents of Dollars included in the definition of Permitted Account Investments) shall be the face value thereof.

(n)        Each reference in a Related Document to Refinancing Notes may also include loans or other debt instruments borrowed or issued, as applicable, to refinance any Notes whether or not an instrument is issued to represent such debt, and the provisions of the Related Document shall be construed accordingly.  Without limiting the foregoing, each reference in a Related Document to Refinancing Notes or an indenture supplemental hereto providing for the issuance of Refinancing Notes may include, as the context may require, such refinancing loan or other debt instrument and any credit agreement under which a refinancing loan is borrowed as applicable, any references to Notes shall be construed to include such loan, other debt instrument or credit agreement as applicable, and any references to Holders shall be construed to include the lenders of any such loan as applicable; provided that any provisions of any Related Document as would only be applicable if an instrument is issued to represent such debt shall either be construed as referring to a borrowing rather than an issuance or, if the context so requires, shall not be applicable if no instrument or security is issued.

Section 1.03    Compliance Certificates and Opinions.  Upon any application or request by the Issuer to the Trustee to take any action under any provision of this Indenture, the Issuer shall furnish to the Trustee an Officer’s Certificate stating that, in the opinion of the signer 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

-  49  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

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;

(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 Holders.  (a) Any direction, consent, waiver or other action provided by this Indenture in respect of the Notes to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent or proxy duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee, to each Rating Agency where it is hereby expressly required pursuant to this Indenture and to the Issuer.  Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose under this Indenture and conclusive in favor of the Trustee or the Issuer, if made in the manner provided in this Section.

(b)        The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or such other officer and where such execution is by an officer of a corporation or association, trustee of a trust or member of a partnership, on behalf of such corporation, association, trust or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority.  The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner which the Trustee deems sufficient.

(c)        In determining whether the Holders have given any direction, consent, request, demand, authorization, notice, waiver or other Act (a “Direction”), under this

-  50  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Indenture, Notes owned by the Issuer, the Servicer or any Certificate Holder or any Affiliate of such Person shall be disregarded and deemed not to be Outstanding for purposes of any such determination.  In determining whether the Trustee shall be protected in relying upon any such Direction, only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.  Notwithstanding the foregoing, (i) if any such Person individually or collectively owns 100% of any Series of Notes Outstanding, such Series of Notes shall not be so disregarded as aforesaid, and (ii) if any amount of Notes so owned by any such Person have been pledged in good faith, such Notes shall not be disregarded as aforesaid if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer, the Servicer or a Certificate Holder or any Affiliate of any such Person.

(d)        The Issuer may at its option, by delivery of Officer’s Certificates to the Trustee, set a record date other than the Record Date to determine the Holders in respect of the Notes entitled to give any Direction in respect of such Notes.  Such record date shall be the record date specified in such Officer’s Certificate which shall be a date not more than 30 days prior to the first solicitation of Holders in connection therewith.  If such a record date is fixed, such Direction may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Notes have authorized or agreed or consented to such Direction, and for that purpose the Outstanding Notes shall be computed as of such record date; provided that no such Direction by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than one year after the record date.

(e)        Any Direction or other action by the Holder of any Note shall bind the Holder of every Note issued upon the transfer thereof or in exchange therefor or in lieu thereof, whether or not notation of such action is made upon such Note.

(f)        Each Direction by the Holders with respect to any Series of Notes shall be given to the Trustee or the Senior Trustee, as applicable, in writing on behalf of such Holders, pursuant to Section 12.05.  The Trustee or Senior Trustee shall vote or give consent if such Direction is received from the Holders of the applicable percentage of the aggregate Outstanding Principal Balance of the relevant Notes as provided for in this Indenture or in any other Related Document.  Notwithstanding anything to the contrary in any Related Document, (i) the Trustee or the Senior Trustee shall make each determination as to whether a Holder has given, or is entitled under this Indenture or any other Related Document to give, a Direction and each determination as to whether any Notes shall be disregarded as set forth in this Section 1.04 and (ii) the Trustee or the Senior Trustee, as applicable, shall be entitled to conclusively rely (without any independent investigation, inquiry or verification) on any Direction from the Holders of any Series of Notes.  In determining the identity and holdings of each Holder, the Trustee or Senior Trustee shall be permitted to conclusively rely on the Register.

-  51  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

ARTICLE II

 

THE NOTES

Section 2.01     Authorized Amount; Terms; Form; Execution and Delivery.  (a) The Outstanding Principal Balance of any Series of Notes which may be authenticated and delivered from time to time under this Indenture shall not exceed the initial Outstanding Principal Balance set forth for such Series of Notes, in the case of the Initial Notes, in the definition of the Initial Series A Notes or the Initial Series B Notes, as applicable, or, with respect to any Refinancing Notes, as authorized in a Trustee Resolution.  All Initial Notes shall be issued at the same time and no additional Notes shall be issued under this Indenture; provided that Refinancing Notes may be issued in connection with a Refinancing of the Initial Notes or a refinancing of any previously issued Refinancing Notes and any Refinancing Notes may be reopened, without the consent of any Holder, for the issuance of additional Refinancing Notes, subject in all cases to Sections 2.10 and 5.02 and any other applicable provision of this Indenture; provided that at no time may the Outstanding Principal Balance of any Series of Refinancing Notes issued in connection with a Refinancing exceed the Redemption Price of the Series of Notes being refinanced thereby plus Refinancing Expenses relating thereto.

The Initial Notes shall be issued on the Initial Closing Date and shall consist of the Initial Series A Notes and the Initial Series B Notes.  The number of Series of Notes that may be issued in accordance with this Indenture is limited as set forth in this Section 2.01(a).  Any Series of Refinancing Notes shall be designated as “Series A” or “Series B”, in the same Series as the Notes being refinanced by such Refinancing Notes.

Interest at the Stated Rate shall accrue on any Notes from the relevant issuance date of such Note and shall be computed for each Interest Accrual Period on the basis of (i) in the case of the first Interest Accrual Period and any incomplete Interest Accrual Period, a 360-day year consisting of twelve 30-day months and (ii) otherwise, a 360-day year and one-twelfth of an annual interest payment on the Outstanding Principal Balance of such Notes.

In addition, Step-Up Interest shall accrue on the Initial Notes from the Expected Final Payment Date and shall be computed for each applicable Interest Accrual Period on the basis of a 360-day year consisting of twelve 30-day months.

Any amount of Redemption Premium on any Notes not paid when due shall, to the fullest extent permitted by Applicable Law, bear interest at an interest rate per annum equal to the Stated Rate for such Notes from the date when due until such amount is paid or duly provided for, payable on the next succeeding Payment Date, subject to the availability of the Available Collections therefor in accordance with the priority of payments under Section 3.09.

(b)        There shall be issued and delivered and authenticated on the Initial Closing Date (or, in the case of a Refinancing, on the date on which the Refinancing Notes relating to such Refinancing were issued), to each of the Holders, Notes in the principal amounts and maturities and bearing the interest rates, set forth therein, substantially in the form set forth in Exhibit A-1 or A-2 (as applicable) to this Indenture or in any indenture supplemental hereto, with such appropriate insertions, legends, omissions, substitutions

-  52  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements printed, lithographed or engraved thereon, as may be required to comply with the rules of any securities exchange on which such Notes may be listed, to comply with the rules of the Depositary, or to conform to any usage in respect thereof, or as may, consistently herewith, be prescribed by the Signatory Trustee executing such Notes, such determination by the Signatory Trustee to be evidenced by his or her execution of the Notes.

Definitive Notes shall be printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Notes may be listed, or to comply with the rules of the Depositary, all as determined by the Signatory Trustee executing such Notes, as evidenced by his or her execution of such Notes.

Each Series of Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of one or more permanent global Notes in registered form (“Rule 144A Global Notes”) without interest coupons and with such applicable legends as are provided for in Section 2.02, substantially in the form set forth in Exhibit A-1 or A-2 (as applicable) to this Indenture or in any indenture supplemental hereto registered in the name of Cede & Co., as nominee of the Depositary, deposited with the Depositary or a custodian therefor in accordance with the Applicable Procedures and duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.

Each Series of Notes offered and sold in offshore transactions in reliance on Regulation S shall be issued initially in the form of one or more Regulation S Temporary Global Notes in registered form without interest coupons and with such applicable legends as are provided for in Section 2.02, substantially in the form set forth in Exhibit A-1 or A-2 (as applicable) to this Indenture or in any indenture supplemental hereto, registered in the name of Cede & Co., as nominee of the Depositary, deposited with the Depositary or a custodian therefor in accordance with the Applicable Procedures and duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.  Until the 40th day after the later of the commencement of the offering of any series of Notes (including any Refinancing Notes) initially issued in the form of a Regulation S Temporary Global Note or the Initial Closing Date (or, in the case of a Refinancing, on the date on which the Refinancing Notes relating to such Refinancing were issued), interests in such Regulation S Temporary Global Note may be held only through Participants acting for and on behalf of Euroclear and Clearstream. The Restricted Period will be terminated upon the receipt by the Trustee of any certifications required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, which certifications may be (but need not be) provided in accordance with the Applicable Procedures, which certifications or Applicable Procedures the Trustee shall have no duty to monitor or confirm compliance with; provided that, if no such certifications are required, then the Restricted Period shall terminate on the last day thereof. Following the termination of the applicable Restricted Period, Beneficial Interests in the Regulation S Temporary Global Note shall be exchanged for Beneficial Interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. If the Issuer shall be required to issue a Regulation S Permanent Global Note in place of a Regulation S Temporary Global Note, simultaneously with the authentication by the Trustee of the Regulation S Permanent Global Note pursuant to Issuer order, the Trustee

-  53  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

shall cancel the Regulation S Temporary Global Note in accordance with its customary procedures and the Applicable Procedures in effect from time to time.

The Outstanding Principal Balance of each Rule 144A Global Note may from time to time be increased or decreased by adjustments made by the Trustee on the applicable Global Note or on the records of the Trustee as hereinafter provided in accordance with the instructions and the Applicable Procedures of the Depositary. The Outstanding Principal Balance of each Regulation S Global Note may from time to time be increased or decreased by adjustments made by the Trustee on the applicable Global Note or on the records of the Trustee as hereinafter provided in accordance with the instructions and the Applicable Procedures of the Depositary.

(c)        On the date of any Refinancing, the Issuer shall issue and deliver as provided in Section 2.10 an aggregate principal amount of Refinancing Notes having the maturities and bearing the interest rates and such other terms authorized by one or more Trustee Resolutions or in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, in each case in accordance with Section 2.10.

(d)        The Notes shall be executed on behalf of the Issuer by the manual or facsimile signature of a Signatory Trustee.

(e)        Each Note bearing the manual or facsimile signature of any individual who was at the time such Note was executed a Signatory Trustee shall bind the Issuer, notwithstanding that any such individual has ceased to hold such office prior to the authentication and delivery of such Note or any payment thereon.

(f)        At any time and from time to time after the execution of any Notes, the Issuer may deliver such Notes to the Trustee for authentication and, subject to the provisions of clause (g) below, the Trustee shall authenticate such Notes by manual or facsimile signature upon receipt by it of an Officer’s Certificate of the Issuer certifying that all conditions precedent in connection with the issuance of such Notes have been satisfied and directing the Trustee to authenticate such Notes.  The Notes shall be authenticated on behalf of the Trustee by any Responsible Officer of the Trustee.

(g)        No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless it shall have been executed on behalf of the Issuer as provided in clause (d) above and authenticated by or on behalf of the Trustee as provided in clause (f) above.  Such signatures shall be conclusive evidence that such Note has been duly executed and authenticated under this Indenture.  Each Note shall be dated the date of its authentication.

(h)        The Issuer shall execute and the Trustee shall, in accordance with this Section 2.01(h) and at the written direction of the Issuer, authenticate the Global Notes and retain the Global Notes as custodian for and on behalf of the Depositary.  Upon deposit with the Trustee of each Global Note authenticated by the Trustee, the Depositary shall credit, on its internal system, the respective principal amounts of individual Beneficial Interests to the accounts of the beneficial owners thereof or their respective custodians or

-  54  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

nominees who have accounts with the Depositary.  Ownership of Beneficial Interests will be limited to Participants or Persons who hold Beneficial Interests through Participants.  Ownership of Beneficial Interests will be shown on, and the transfer of that ownership will be effected only through, records maintained in book-entry form by the Depositary (with respect to interests of Participants) and the records of Participants (with respect to interests of Persons other than Participants).

Participants shall have no rights under this Indenture with respect to any Beneficial Interest in a Global Note held on their behalf by the Depositary.  The Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever (except to the extent otherwise provided herein).  Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Participants, the operation of customary practices of the Depositary governing the exercise of the rights of an owner of a Beneficial Interest in any Global Note.  The Depositary, as a Holder, may grant proxies and otherwise authorize any Person, including its Participants and Persons that may hold interests through Participants, to take any action which a Holder is entitled to take under this Indenture or the Notes.

Section 2.02    Restrictive Legends.  (a) Each Global Note and, except as provided in Section 2.12(f), each Definitive Note (and all Notes issued in exchange therefor or upon registration of transfer or substitution thereof), except as provided in Section 2.12(f), shall bear the following legends (in addition to any other applicable legends or restrictions):

NEITHER THIS NOTE, NOR ANY INTEREST HEREIN HAS 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 OR BENEFICIAL OWNER OF AN INTEREST HEREIN (i) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (A “QUALIFIED INSTITUTIONAL BUYER”) AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) AND HAS ACQUIRED THIS NOTE OR AN INTEREST HEREIN IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE OR AN INTEREST HEREIN IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT (“REGULATION S”); (ii) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE OR AN INTEREST HEREIN EXCEPT (A) TO WILLIS ENGINE STRUCTURED TRUST IV (THE “ISSUER”) OR ANY OF ITS AFFILIATES (AS DEFINED IN RULE 501(b) OF REGULATION D), (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A, (C) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO ANOTHER

-  55  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND, IN EACH OF THE CASES (A) THROUGH (E) ABOVE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE IN THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND (iii) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.  IF THE PROPOSED TRANSFER IS PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT OR PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER 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. PERSONS” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S. THE TRUST INDENTURE (THE “INDENTURE”) DATED AS OF AUGUST 22, 2018,  AMONG THE ISSUER, DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE AND OPERATING BANK, WILLIS LEASE FINANCE CORPORATION, AS ADMINISTRATIVE AGENT AND BANK OF AMERICA, N.A.,  AS THE INITIAL LIQUIDITY FACILITY PROVIDER CONTAINS A PROVISION REQUIRING THE REGISTRAR TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE OR AN INTEREST HEREIN IN VIOLATION OF THE FOREGOING RESTRICTIONS.

BY ITS ACQUISITION OR ACCEPTANCE OF THIS NOTE OR ANY INTEREST HEREIN, THE HOLDER WILL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED (OR IN THE CASE OF A DEFINITIVE NOTE WILL BE REQUIRED TO REPRESENT, WARRANT AND AGREE) THAT EITHER:  (A) NO ASSETS OF (I) AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (II) A PLAN DESCRIBED IN SECTION 4975(E)(1) OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (III) A PLAN, ACCOUNT OR ARRANGEMENT (SUCH AS A GOVERNMENTAL, CHURCH OR NON-U.S. PLAN) THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER NON-U.S. LAW THAT IS SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”) OR (IV) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN, PLAN, ACCOUNT OR ARRANGEMENT, HAVE BEEN USED TO ACQUIRE OR HOLD THIS NOTE OR ANY INTEREST HEREIN; OR (B) THE ACQUISITION AND HOLDING OF THIS NOTE OR ANY INTEREST HEREIN BY THE HOLDER DO NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF ANY SIMILAR LAW, AS APPLICABLE.

-  56  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(b)        Each Global Note shall also bear the following legend:

UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IN EXCHANGE FOR THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE.

[Insert for each Series B Note and each Series A Note, but in the case of a Series A Note, only if such Series A Note is issued with more than de minimis OID, as determined under U.S. federal income tax principles.] [THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE CODE.  FOR INFORMATION REGARDING THE ISSUE DATE, ISSUE PRICE, YIELD TO MATURITY AND AMOUNT OF OID, PLEASE CONTACT WILLIS LEASE FINANCE CORPORATION, 773 SAN MARIN DRIVE, NOVATO, CA 94945, ATTENTION:  GENERAL COUNSEL.]

(c)        Each Regulation S Temporary Global Note shall bear the following legend:

PRIOR TO THE EXPIRATION OF A RESTRICTED PERIOD ENDING ON THE EXPIRATION OF THE 40-DAY “DISTRIBUTION COMPLIANCE PERIOD” (AS DEFINED IN RULE 902(F) OF REGULATION S) OR SUCH LATER DATE AS THE ISSUER MAY NOTIFY TO THE TRUSTEE, THIS NOTE, OR ANY BENEFICIAL INTEREST HEREIN, MAY NOT BE RESOLD OR OTHERWISE TRANSFERRED EXCEPT (A) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S OR (B) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A AND, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

(d)        Each Definitive Note shall also bear the following legend:

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH

-  57  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

THE FOREGOING RESTRICTIONS AND THE OTHER RESTRICTIONS CONTAINED IN THE INDENTURE.

[Insert for each Series B Note and each Series A Note, but in the case of a Series A Note, only if such Series A Note is issued with more than de minimis OID, as determined under U.S. federal income tax principles.] [THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE CODE.  FOR INFORMATION REGARDING THE ISSUE DATE, ISSUE PRICE, YIELD TO MATURITY AND AMOUNT OF OID, PLEASE CONTACT WILLIS LEASE FINANCE CORPORATION, 773 SAN MARIN DRIVE, NOVATO, CA 94945, ATTENTION:  GENERAL COUNSEL.]

(e)        Each Series A Note shall also bear the following legend:

BY ITS ACQUISITION OR ACCEPTANCE OF THIS NOTE OR ANY INTEREST HEREIN, THE HOLDER WILL BE DEEMED TO HAVE AGREED AND ACKNOWLEDGED THAT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, THE HOLDERS OF THE SERIES B NOTES WILL HAVE THE RIGHT TO PURCHASE ALL SERIES A NOTES ISSUED UNDER THE INDENTURE TO WHICH THIS NOTE RELATES, INCLUDING THIS NOTE, IN ACCORDANCE WITH THE TERMS OF SECTION 4.13 OF THE INDENTURE TO WHICH THIS NOTE RELATES.

BY ITS ACQUISITION OR ACCEPTANCE OF THIS NOTE OR ANY INTEREST HEREIN, THE HOLDER WILL BE DEEMED TO HAVE AGREED AND ACKNOWLEDGED THAT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, THE CERTIFICATE HOLDERS WILL HAVE THE RIGHT TO PURCHASE ALL NOTES ISSUED UNDER THE INDENTURE TO WHICH THIS NOTE RELATES, INCLUDING THIS NOTE, IN ACCORDANCE WITH THE TERMS OF SECTION 4.14 OF THE INDENTURE TO WHICH THIS NOTE RELATES.

(f)        Each Series B Note shall also bear the following legend:

BY ITS ACQUISITION OR ACCEPTANCE OF THIS NOTE OR ANY INTEREST HEREIN, THE HOLDER WILL BE DEEMED TO HAVE AGREED AND ACKNOWLEDGED THAT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, THE CERTIFICATE HOLDERS WILL HAVE THE RIGHT TO PURCHASE ALL NOTES ISSUED UNDER THE INDENTURE TO WHICH THIS NOTE RELATES, INCLUDING THIS NOTE, IN ACCORDANCE WITH THE TERMS OF SECTION 4.14 OF THE INDENTURE TO WHICH THIS NOTE RELATES.

Section 2.03    Registrar and Paying Agent.  (a) With respect to each Series of Notes, there shall at all times be maintained an office or agency in the location set forth in clause (a) of the definition of Corporate Trust Office, in the case of the Trustee, where such Notes may be presented or surrendered for registration of transfer or for exchange (each, a “Registrar”) and for payment thereof (each, a “Paying Agent”) and where notices and demands in respect of the payment of such Notes may be served.  For so long as a Series of Notes are listed on any stock exchange, the Issuer shall appoint and maintain a Paying Agent in respect of such Series and a listing agent in

-  58  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

the jurisdiction in which such stock exchange is located.  The Issuer shall cause the Registrar of such Series (acting as agent of the Issuer, solely for U.S. federal income tax purposes) to keep a register of each registered holder of each Note in such Series, of the increase and decrease thereof, and of their transfer and exchange, as well as the Outstanding Principal Balance of each Outstanding Note (which, absent manifest error, shall be prima facie evidence of the Outstanding Principal Balance thereof) (the “Register”).  Written notice of any change of location of such office or agency shall be given by the Trustee to the Issuer and the Holders of such Series.  In the event that no such office or agency shall be maintained or no such notice of location or of change of location shall be given, presentations and demands may be made and notices may be served at the Corporate Trust Office of the Trustee, who shall act as the Registrar.

(b)        Each Authorized Agent shall be a bank, corporation or trust company organized and doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, with a combined capital and surplus of at least $250,000,000 (or having a combined capital and surplus in excess of $5,000,000 and the obligations of which, whether now in existence or hereafter incurred, are fully and unconditionally Guaranteed by a corporation organized and doing business under the laws of the United States of America, any state or territory thereof or of the District of Columbia and having a combined capital and surplus of at least $250,000,000) and shall be authorized under the laws of the United States of America or any state or territory thereof to exercise corporate trust powers, subject to supervision by federal or state authorities, as applicable (such requirements, the “Eligibility Requirements”).  The Trustee shall initially be the Paying Agent and Registrar hereunder with respect to each Series of Notes.  Each Registrar, other than the Trustee shall furnish to the Trustee, at stated intervals of not more than six months, and at such other times as the Trustee may request in writing, a copy of the Register maintained by such Registrar.

(c)        Any Person into which any Authorized Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, consolidation or conversion to which any Authorized Agent shall be a party, or any Person succeeding to the corporate trust business of any Authorized Agent, shall be the successor of such Authorized Agent hereunder, if such successor Person is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or such Authorized Agent or such successor Person.

(d)        Any Authorized Agent may at any time resign by giving Written Notice of resignation to the Trustee and the Issuer.  The Issuer may, and at the request of the Trustee shall, at any time terminate the agency of any Authorized Agent by giving Written Notice of termination to such Authorized Agent and to the Trustee.  Upon the resignation or termination of an Authorized Agent or if at any time any such Authorized Agent shall cease to be eligible under this Section (when, in either case, no other Authorized Agent performing the functions of such Authorized Agent shall have been appointed by the Trustee), the Issuer shall promptly appoint one or more qualified successor Authorized Agents, reasonably satisfactory to the Trustee, to perform the functions of the Authorized Agent which has resigned or whose agency has been terminated or who shall have ceased to be eligible under this Section.  The Issuer shall give Written Notice of any such

-  59  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

appointment made by it to the Trustee; and in each case the Trustee shall provide notice of such appointment to all Holders of the related Series as their names and addresses appear on the Register.

(e)        The Issuer agrees to pay, or cause to be paid, from time to time to each Authorized Agent reasonable compensation for its services and to reimburse it for its reasonable expenses to be agreed to pursuant to separate agreements with each such Authorized Agent.

Section 2.04    Paying Agent to Hold Money in Trust.  The Trustee shall require each Paying Agent other than the Trustee to agree in writing that all moneys deposited with any Paying Agent for the purpose of any payment on the Notes shall be deposited and held in trust for the benefit of the Holders (with regard to payments on the Notes), subject to the provisions of this Section.  Moneys so deposited and held in trust shall constitute a separate trust fund for the benefit of the Holders with respect to which such money was deposited.

The Trustee may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, direct any Paying Agent to pay to the Trustee all sums held in trust by such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

Section 2.05    Method of Payment.  (a) On each Payment Date and each Redemption Date, the Trustee shall, or shall instruct a Paying Agent for each Series to, pay, to the extent of the Available Collections or other amounts therefor transferred to a Series Account of such Series, to the Holders all principal, Redemption Price or Outstanding Principal Balance of, and Interest Amount (and if applicable, Step-Up Interest Amount) on, the Notes of such Series (and such other interest as is payable hereunder in respect of the foregoing);  provided that in the event and to the extent receipt of any payment is not confirmed by the Trustee or Paying Agent by 1:00 p.m. (New York City time) on such Payment Date or Redemption Date, distribution thereof shall be made on the Business Day following the Business Day such payment is received. Each payment with respect to any Series of Notes shall be made by the Trustee or Paying Agent to the Holders as of the Record Date for such payment.

(b)        Payments on a Payment Date with respect to (i) any Notes in the form of Global Notes shall be made by wire transfer to or as instructed by the Depositary (which such instructions shall be delivered at least five Business Days before the applicable Payment Date) so long as it is the Holder thereof and (ii) Notes in the form of Definitive Notes shall be made by check mailed to each Holder of a Definitive Note determined on the applicable Record Date, at its address appearing in the applicable Register; alternatively, Holders of Definitive Notes, upon application in writing to the Trustee, not later than the applicable Record Date, may have such payment made by wire transfer to an account designated by such Holder at a financial institution in the United States (or other location agreed by the Trustee);  provided that Holders of Definitive Notes having an aggregate principal amount of not less than $1,000,000 shall have such payment made by wire transfer to an account designated by such Holder at a financial institution in the United States (or other location agreed by the Trustee).  The final payment with respect to any Global Note or Definitive Note, however, shall be made only upon presentation and

-  60  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

surrender of such Note by the Holder or its agent at the Corporate Trust Office or agency of the Trustee or Paying Agent specified in the notice given by the Trustee or Paying Agent with respect to such final payment or in the applicable redemption notice.  The Trustee or Paying Agent shall provide such notice of the final payment of each Note to the Holder thereof, specifying the date and amount of such final payment, no later than five Business Days prior to such final payment, except that if the final payment is made in connection with a Redemption or Refinancing on a Redemption Date, notice of such final payment, including the date and amount of such final payment, will be included in the applicable redemption notice.

(c)        Any and all payments and deposits required to be made under this Indenture or the Notes by the Issuer to or for the benefit of a Holder shall, except as otherwise required by Applicable Law, be made free and clear of, and without deduction for any and all present or future Taxes and all liabilities with respect thereto, now or hereafter imposed, levied, collected, withheld or assessed by any governmental authority.

(d)        Upon the request of the Trustee, the Issuer or the Issuer Subsidiaries, the Administrative Agent shall use commercially reasonable efforts to cause each Holder (by reference to the obligations of each Holder and beneficial owner of a Note set forth in Section 2.16) or any other Person to whom the Issuer, the Issuer Subsidiaries, the Trustee, the Security Trustee or the Operating Bank is to make a payment to provide, to the extent such Holder or such Person is legally able to do so, such properly completed and executed documentation, information or certification (including, but not limited to, Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-8IMY, W-8ECI, W-8EXP and W-9 (or any successor forms)) as (i) would reduce or eliminate withholding Taxes (including backup withholding Taxes) imposed on any amount paid or payable to the Issuer or an Issuer Subsidiary or by the Trustee and/or (ii) may be helpful (as reasonably determined by the Issuer, the Issuer Subsidiaries or the Trustee each in its sole discretion) for the Trustee, the Issuer and the Issuer Subsidiaries to satisfy its obligations relating to FATCA, withholding (including backup withholding) and information reporting under the Code and any other Applicable Law.  Upon the request of the Trustee, the Issuer or the Issuer Subsidiaries, the Administrative Agent shall direct a tax advisor to provide a written statement to the Trustee, the Issuer or the Issuer Subsidiaries as to the source and character for U.S. federal income Tax purposes of any payment described in the preceding sentence.

(e)        The Trustee shall distribute all amounts deposited in the Series Account for a Series of Notes to the Holders of such Series in proportion to each Holder’s portion of the Outstanding Principal Balance of such Series, unless the Administrative Agent instructs the Trustee otherwise in accordance with the terms of this Indenture.

(f)        Neither the Trustee, the Administrative Agent nor the Paying Agent shall have any duties or obligations in connection with withholding taxes in respect of any non-U.S. jurisdiction, except to make payments in connection therewith in accordance with the written instructions of the Administrative Agent.  Notwithstanding the foregoing, in the event that the Administrative Agent is explicitly made aware (based on information and notices provided to it by the Holders and instructions of the Issuer) that the Issuer is required pursuant to Applicable Laws to withhold amounts of payments of interest payable

-  61  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

to any Holders, the Administrative Agent shall so notify the Trustee in writing and, for each Payment Date (or other date on which a payment is to be made hereunder) for which such withholding is required, (i) specify the principal, interest and distribution amounts to be distributed to each Holder (allocated by Holder in the case of distributions to the Holders) in the applicable Written Notice, (ii) specify how to apply the amount withheld in the applicable Written Notice, and (iii) provide the Written Notice for each such Payment Date (or other date on which a payment is to be made hereunder) no later than 10:00 a.m. (New York time) four (4) Business Days prior to the relevant Payment Date (or other date on which a payment is to be made hereunder).

(g)        If the Issuer, the Trustee, the Administrative Agent or the Paying Agent determines that any amounts are required under Applicable Law to be withheld from any payment to a Holder, the Issuer, the Trustee, the Administrative Agent or the Paying Agent may withhold such amounts, and any such amounts so withheld shall be treated as having been paid to the Person from whom such withholding was made (and for the avoidance of doubt, no additional amounts shall be paid to such Person with respect thereto).  The consent of the Holders shall not be required for such withholding.

Section 2.06    Minimum Denomination.  The Notes shall be issued and may be transferred or exchanged only in minimum denominations of $250,000 and integral multiples of $1,000 in excess thereof.

Section 2.07    Transfer and Exchange; Cancellation.

(a) Certain Transfers and Exchanges.  A Global Note and the corresponding Beneficial Interests therein shall only be transferred in accordance with the Applicable Procedures of the Depositary and the circumstances described in this Indenture.  All Global Notes will be exchanged by the Issuer for Notes in definitive registered form substantially as set forth in Exhibit A-1 or A-2 (as applicable) to this Indenture (each, a “Definitive Note”) if (i) the Depositary notifies the Issuer or the Trustee in writing that it is no longer willing or able to properly discharge its responsibilities as depositary with respect to the Global Notes and a successor depositary is not appointed by the Depositary at the request of the Issuer within 90 days of such notice or (ii) after the occurrence of an Event of Default with respect to any Series of Notes the Holders representing a majority of the aggregate Outstanding Principal Balance of such Notes advise the Issuer, the Trustee and the Depositary through the Participants in writing that the continuation of a book-entry system through the Depositary (or a successor thereto) is no longer in the best interests of such Holders; provided that in no event shall the Regulation S Temporary Global Note be exchanged by the Issuer for Definitive Notes prior to (a) the expiration of the Restricted Period and (b) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act.  Upon surrender to the Trustee of the Global Notes of any Series, accompanied by registration instructions from the Holder of such Global Note as provided in this Indenture (and any other documentation reasonably requested by the Trustee), the Issuer shall issue and, upon written instructions of the Issuer, the Trustee shall authenticate and deliver Definitive Notes to the owners of Beneficial Interests therein.

None of the Issuer, the Paying Agent or the Trustee shall be liable for any delay in delivery of such registration instructions and may conclusively rely on, and shall be fully protected in

-  62  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

relying on, such registration instructions as provided in accordance with the terms of this Indenture.  Upon the issuance of Definitive Notes of any Series, the Trustee shall recognize the Persons in whose name such Definitive Notes of such Series are registered in the Register as Holders of such Series hereunder.  Neither the Issuer nor the Trustee shall be liable if the Trustee or the Issuer is unable to appoint a successor Depositary.

The transfer and exchange of Beneficial Interests in Global Notes shall be effected through the Depositary, in accordance with this Indenture and the Applicable Procedures of the Depositary therefor.  The transfer and exchange of Beneficial Interests shall be subject to restrictions on transfer comparable to those set forth in Section 2.12 and elsewhere herein.  The Trustee shall have no obligation to ascertain the Depositary’s compliance with any such restrictions on transfer or exchange.

Any Beneficial Interest in one of the Global Notes of any Series that is transferred to a Person who will hold such Beneficial Interest in the form of an interest in another Global Note of such Series will, upon transfer, cease to be an interest in such first Global Note and become an interest in such other Global Note and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to Beneficial Interests in such other Global Note for as long as it holds such an interest therein.

Global Notes may also be exchanged or replaced, in whole or in part, as provided in Section 2.08.  Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof pursuant to Section 2.08 shall be authenticated and delivered in the form of, and shall be, a Global Note in registered form.  A Global Note may not be exchanged for another Note other than as provided in Sections 2.07(a) and 2.08.

(b)        Transfer and Exchange of Definitive Notes.  A Holder may transfer a Definitive Note only by written application to the Registrar stating the name of the proposed transferee (and, if applicable, by providing any other documentation reasonably requested by the Trustee) and otherwise complying with the terms of this Indenture.  No such transfer shall be effective until, and such transferee shall succeed to the rights of a Holder only upon, final acceptance and registration of the transfer by the Registrar in the Register.

Prior to the due presentment for registration of a transfer of a Definitive Note, the Issuer and the Trustee may deem and treat the applicable registered Holder as the absolute owner and holder of such Definitive Note for the purpose of receiving payment of all amounts payable with respect to such Definitive Note and for all other purposes and shall not be affected by any Written Notice to the contrary.  The Registrar (if different from the Trustee) shall promptly notify the Trustee and the Trustee shall promptly notify the Issuer of each request for a registration of transfer of a Definitive Note.

When Definitive Notes are presented to the Registrar with a request to register their transfer or to exchange them for Definitive Notes in authorized denominations that equal an aggregate equal principal amount of the exchanged Definitive Notes, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met (including, in the case of a transfer, that such Definitive Notes are accompanied by a completed transfer notice

-  63  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

in the form attached to such Definitive Notes duly executed by the Holder thereof (or by an attorney who is authorized in writing to act on behalf of the Holder)).  To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall, upon the written order of the Issuer, authenticate Definitive Notes.  Except as set forth in Sections 2.08 and 2.09, no service charge shall be made for any registration of transfer or exchange of any Definitive Notes.

Neither the Registrar nor the Issuer shall be required to exchange or register the transfer of any Definitive Notes as above provided during the 15-day period preceding the Final Maturity Date of any such Notes or during the 15-day period after the first provision of any notice of Redemption of Notes to be redeemed.  Neither the Registrar nor the Issuer shall be required to exchange or register the transfer of any Definitive Notes that have been selected, called or are being called for Redemption except, in the case of any Definitive Notes where notice has been given that such Definitive Notes are to be redeemed in part, the portion thereof not so to be redeemed.

(c)        Cancellation.  The Issuer at any time may deliver Notes to the Trustee for cancellation.  Each Registrar and Paying Agent shall forward to the Trustee for cancellation any Notes surrendered to them for transfer, exchange, payment or purchase.  The Trustee and no one else shall cancel and destroy in accordance with its customary practices in effect from time to time any such Notes, together with any other Notes surrendered to it for registration of transfer, exchange or payment.  The Issuer may not issue new Notes (other than Refinancing Notes issued in connection with any Refinancing) to replace Notes it has redeemed, paid or delivered to the Trustee for cancellation.

Section 2.08    Mutilated, Destroyed, Lost or Stolen Notes.  If any Definitive Note or Global Note shall become mutilated, destroyed, lost or stolen, the Issuer shall, upon the written request of the Holder thereof and presentation of such Note or satisfactory evidence of destruction, loss or theft thereof to the Trustee or Registrar, issue, and the Trustee shall authenticate and the Trustee or Registrar shall deliver in exchange therefor or in replacement thereof, a new Definitive Note or Global 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 Definitive Note or Global Note being replaced has become mutilated, such Note shall be surrendered to the Trustee or the Registrar and forwarded to the Issuer by the Trustee or the Registrar.  If the Definitive Note or Global Note being replaced has been destroyed, lost or stolen, the Holder thereof shall furnish to the Issuer, the Trustee or the Registrar (a) such security or indemnity as may be required by them to hold the Issuer, the Trustee and the Registrar harmless and (b) evidence satisfactory to the Issuer, the Trustee and the Registrar of the destruction, loss or theft of such Definitive Note or Global Note and of the ownership thereof, provided that the requirements of this sentence 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 Trustee and an affidavit of such Holder as to the destruction, loss or theft.  The Holder(s) 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 Trustee and the Registrar) connected therewith.

Section 2.09    Payments of Transfer Taxes.  Upon the transfer of any Note or Notes pursuant to Section 2.07, the Issuer or the Trustee may require from the party requesting such new

-  64  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Note or Notes payment of a sum to reimburse the Issuer or the Trustee for, or to provide funds for the payment of, any transfer tax or similar governmental charge payable in connection therewith.

Section 2.10    Refinancing.  (a) Subject to the next succeeding two sentences, paragraphs (b),  (c) and (d) below and Section 5.02(c)(ii), the Issuer may issue Refinancing Notes pursuant to this Indenture, the proceeds of which shall be used to fund a refinancing of a previously issued Series of Notes.  Each refinancing of any such Series of Notes with the proceeds of an offering of Refinancing Notes (a “Refinancing”) shall be authorized pursuant to one or more Trustee Resolutions and shall be effected only following a Rating Agency Confirmation (unless all of the Notes of each Series then rated by the Rating Agencies will be refinanced in such Refinancing) and upon obtaining the prior written consent of the Initial Liquidity Facility Provider (unless a Liquidity Facility Non-Consent Event has occurred or will occur at the time of, or immediately after giving effect to, such Refinancing), such consent not to be unreasonably withheld or delayed; provided, however, that no Event of Default has occurred and is then continuing or will occur as a result of such Refinancing and the issuance of any Refinancing Notes.  Each Refinancing Note shall constitute a “Note” for all purposes under this Indenture, and shall have the class or subclass designation and such further designations added or incorporated in such title as specified in the related Trustee Resolutions, in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be.

(b)        A Refinancing of any Series of Notes in whole may occur on any Business Day after the Initial Closing Date and shall be effected as an Optional Redemption pursuant to Section 3.11(a).  No partial Refinancing of any Series of Notes shall be permitted.  On the date of any Refinancing, the Issuer shall issue and sell an aggregate principal amount of Refinancing Notes in an amount at least equal to the Redemption Price of the Notes being refinanced thereby (including any accrued and unpaid interest) plus the Refinancing Expenses relating thereto and any amount to be deposited in any Cash Collateral Account for such Refinancing Notes.  The proceeds of each sale of Refinancing Notes shall be used to make the deposit required by Section 3.11(d), to pay such Refinancing Expenses, to fund any such Cash Collateral Account and for such other purposes as may be specified in the Trustee Resolution.

(c)        Each Refinancing Note shall contain such terms as may be established in or pursuant to the related Trustee Resolution (subject to Section 2.01), in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted below, and shall have the same ranking pursuant to Section 3.09 hereof with respect to all other obligations hereunder as to such Series to which such Refinancing Notes belong.  Prior to any Refinancing, any or all of the following, as applicable, with respect to the related issue of Refinancing Notes shall have been determined by the Issuer and set forth in one or more Trustee Resolutions, or in any indenture supplemental hereto or specified in the form of such Notes, as the case may be:

(i)         the Series of Notes to be refinanced by such Refinancing Notes; and

(ii)        with respect to each Series of Refinancing Notes to be issued:

-  65  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(A)       the aggregate principal amount of such Refinancing Notes that may be issued;

(B)       the proposed date of such Refinancing;

(C)       the Expected Final Payment Date, if applicable, and the Final Maturity Date of such Refinancing Notes;

(D)       whether such Refinancing Notes are to have the benefit of any Eligible Credit Facility and, if so, the amount and other terms thereof and/or the existence of any Cash Collateral Account and/or any increase in the Required Amount for any Cash Collateral Account;

(E)       the rate at which such Refinancing Notes shall bear interest or the method by which such rate shall be determined;

(F)       if other than denominations of $250,000 or higher integral multiples of $1,000 (with respect to Notes), the denomination or denominations in which such Refinancing Notes shall be issuable;

(G)       whether beneficial owners of interests in any such permanent global Refinancing Note may exchange such interests for Refinancing Notes under which any such exchanges may occur, if other than in the manner provided in Section 2.07, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor if not the Depositary;

(H)       the Series of Notes to which such Refinancing Notes belong; and

(I)        any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Refinancing Notes (which terms shall comply with Applicable Law and not be inconsistent with the requirements or restrictions of this Indenture, including Section 5.02(c)(ii)).

If any of the terms of any issue of Refinancing Notes are established by action taken pursuant to one or more Trustee Resolutions, such Trustee Resolutions shall be delivered by the Issuer to the Trustee setting forth the terms of such Refinancing Notes.

(d)        In connection with any Refinancing of Notes, the Issuer shall pay to all parties to the Related Documents all reasonable costs and expenses related thereto.

Section 2.11    [Reserved].

Section 2.12    Special Transfer Provisions.  (a) Certain Transfers and Exchanges of Beneficial Interests.  In connection with all transfers and exchanges of a Beneficial Interest in a Global Note for a Definitive Note, the transferor of such Beneficial Interest must deliver to the

-  66  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Trustee either (i) (A) instructions given in accordance with the Applicable Procedures from a Participant directing the Depositary to credit or cause to be credited a Beneficial Interest corresponding to the specified Global Note in an amount equal to the Beneficial Interest to be transferred or exchanged, (B) a written order given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase in connection with such transfer or exchange and (C) instructions given by the Depositary to effect the transfer referred to in (i)(A) and (i) (B) above or (ii) (A) instructions given in accordance with Applicable Procedures from a Participant directing the Depositary to direct the Trustee to cause to be issued a Definitive Note by means of the process set forth in Section 2.07(a) (if permitted pursuant to Section 2.07) in an amount equal to the Beneficial Interest to be transferred or exchanged and (B) instructions given by the Holder of the Beneficial Interest in such Global Note to effect the transfer referred to in (ii)(A) above.

(b)        Transfer of Beneficial Interests in the Same Global Note.  Beneficial Interests in a Global Note may be transferred to Persons who will hold such Beneficial Interest in the same Global Note in accordance with the transfer restrictions set forth in the Restrictive Legend and the Applicable Procedures.

(c)        Transfer of Beneficial Interests to Another Global Note.  Beneficial Interests in one of the Global Notes may be transferred to Persons who will hold such Beneficial Interest in another Global Note subject to the following:

(i)         If a Holder of a Beneficial Interest in a Rule 144A Global Note deposited with the Depositary wishes at any time to exchange its Beneficial Interest in such Rule 144A Global Note for a Beneficial Interest in the Regulation S Global Note, or to transfer its Beneficial Interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of a Beneficial Interest in the corresponding Regulation S Global Note, the transferor of such Beneficial Interest must deliver to the Trustee (A) written instructions given in accordance with the Applicable Procedures from a Participant directing the Trustee, as Registrar, to cause to be credited a Beneficial Interest in the corresponding Regulation S Global Note in an amount equal to the Beneficial Interest in the Rule 144A Global Note to be exchanged or transferred, but not less than the minimum denomination applicable to Notes held through such Regulation S Global Note, (B) a written order given in accordance with the Applicable Procedures containing information regarding the Participant account of the Depositary and, in the case of a transfer or exchange pursuant to and in accordance with Regulation S, the Euroclear or Clearstream account to be credited with such increase and (C) a certificate in the form of Exhibit F hereto, including the certifications in item (2) thereof.  The Trustee, as Registrar, will instruct the Depositary to reduce the principal amount of the Rule 144A Global Note and to increase the principal amount of the corresponding Regulation S Global Note by the aggregate principal amount of the Beneficial Interest in the Rule 144A Global Note to be exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a Beneficial Interest in such Regulation S Global Note equal to the reduction in the principal amount of the Rule 144A Global Note.

-  67  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(ii)       If a Holder of a Beneficial Interest in a Regulation S Global Note deposited with the Depositary wishes at any time to exchange its Beneficial Interest in such Regulation S Global Note for a Beneficial Interest in the Rule 144 A Global Note or to transfer its Beneficial Interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of a Beneficial Interest in the corresponding Rule 144A Global Note, the transferor of such Beneficial Interest must deliver to the Trustee (A) written instructions from Euroclear and Clearstream or the Depositary, as the case may be, directing the Trustee, as Registrar, to cause to be credited a Beneficial Interest in the corresponding Rule 144A Global Note in an amount equal to the Beneficial Interest in the Regulation S Global Note to be exchanged or transferred but not less than the minimum denomination applicable to Notes held through such Rule 144A Global Notes, such instructions to contain information regarding the Participant account with the Depositary to be credited with such increase and (B) prior to or on the 40th day after the later of the commencement of the offering of the Notes and the Initial Closing Date (or, in the case of a Refinancing, on the date on which the Refinancing Notes relating to such Refinancing were issued) (the “Restricted Period”), a certificate in the form of Exhibit F hereto, including the certifications in item (1) thereof.  After the expiration of the Restricted Period the certification requirements of this clause (ii)(B) will no longer apply to such transfers.  The Trustee, as Registrar, will instruct the Depositary to reduce the principal amount of the Regulation S Global Note and to increase the principal amount of the corresponding Rule 144A Global Note by the aggregate principal amount of the Beneficial Interest in the Regulation S Global Note to be transferred or exchanged and to credit or cause to be credited to the account of the Person specified in such instructions a Beneficial Interest in such Rule 144A Global Note equal to the reduction in the principal amount of the Regulation S Global Note.

(d)        Notation by the Trustee of Transfer of Beneficial Interests Among Global Notes.  Upon satisfaction of the requirements for transfer of Beneficial Interests pursuant to paragraphs (a) and (c) above, the Depositary shall present to the Trustee (x) the relevant Global Note from which the Beneficial Interests are being transferred to reduce the principal amount of such Global Note and (y) the relevant Global Note to which the Beneficial Interests are being transferred to increase the principal amount of such Global Note, in each case, by the principal amount of such Beneficial Interests being transferred (and an appropriate notation shall be made thereon by the Trustee).  The Trustee shall then promptly deliver appropriate instructions to the Depositary to reduce or reflect on its records a reduction of the Beneficial Interests, if any, in the Global Note from which the Beneficial Interests are being transferred by the principal amount of such Beneficial Interests, if any, and the Trustee shall promptly deliver appropriate instructions to the Depositary concurrently with such reduction, to increase or reflect on its records an increase of the Beneficial Interests, if any, in the Global Note to which Beneficial Interests are being transferred by the principal amount of such Beneficial Interests, and to credit or cause to be credited to the account of the Participant specified in the instructions delivered by the transferor of such Beneficial Interests pursuant to paragraph (a) of this Section 2.12 the Beneficial Interests being transferred.

-  68  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(e)        Exchange of Beneficial Interests for Definitive Notes.  Any Definitive Note delivered in exchange for a Beneficial Interest corresponding to a Rule 144A Global Note or Regulation S Global Note, as the case may be, pursuant to this Indenture and Section 2.07(a) shall, except as otherwise provided by paragraph (f) of this Section 2.12, bear the Restrictive Legend set forth in Section 2.02.

(f)        Restrictive Legend.  Upon the transfer, exchange or replacement of Definitive Notes not bearing the Restrictive Legend, the Registrar shall deliver Definitive Notes that do not bear the Restrictive Legend.  Upon the transfer, exchange or replacement of Definitive Notes bearing the Restrictive Legend, the Registrar shall deliver only Definitive Notes that bear the Restrictive Legend unless, in the case of Initial Notes, there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer and the Trustee to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.

(g)        General.  By its acceptance of any Note bearing the Restrictive Legend, each Holder of such Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Restrictive Legend and agrees that it will transfer such Note only as provided in this Indenture and in such Note.  By its acceptance of a Beneficial Interest corresponding to any Global Note, each such owner acknowledges the restrictions on transfer of such Beneficial Interest set forth in this Indenture and agrees that it will transfer such Beneficial Interest only as set forth in this Indenture.  The Registrar shall not register a transfer of any Definitive Note unless such transfer complies with the restrictions on transfer of such Definitive Note set forth in this Indenture.  In connection with any transfer of Notes or Beneficial Interests corresponding thereto, each Holder or owner thereof agrees by its acceptance of such Notes or such Beneficial Interests to furnish the Trustee or the Depositary, as the case may be, the certifications and legal opinions described herein to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act; provided that the Trustee or Depositary, as the case may be, shall not be required to determine (but may rely on a determination made by the Issuer with respect to) the sufficiency of any such certifications or legal opinions.

(h)        Transfers of Global Notes.  Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but not in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.

None of the Registrar, the Paying Agent or the Trustee shall be liable for any delivery of any instructions and each many conclusively rely on, and shall be fully protected in relying on, any registration instructions.  Upon the issuance of Definitive Notes of any Series, the Trustee shall recognize the Persons in whose name the Definitive Notes are registered in the Register as Holders hereunder.  The Trustee shall not be liable if the Issuer is  unable to locate a qualified successor Depositary.

The Trustee shall retain copies of all letters, notices and other written communications received pursuant to this Section 2.12 in accordance with its customary procedures.  The Issuer shall have the right to inspect and make copies of all such letters, notices or other written

-  69  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

communications at any reasonable time during normal business hours upon the giving of reasonable Written Notice to the Trustee.

Section 2.13    [Reserved].

Section 2.14    Statements to Holders.  (a) On the last Business Day before each Payment Date, the Issuer shall cause the Administrative Agent to deliver to the Trustee and the Controlling Trustees, and the Trustee shall promptly thereafter (but not later than such Payment Date) make available on the Trustee’s Website to each Holder who has registered on the Trustee’s Website and provided proof of its ownership of the Notes to the Trustee (each such Holder a “Certified Holder”), the Initial Liquidity Facility Provider, each Rating Agency and the Eligible Hedge Counterparties (or shall instruct the Paying Agent to distribute to such Persons), a written report signed by a Responsible Officer of the Administrative Agent, substantially in the form attached as Exhibit E-1 hereto prepared by the Administrative Agent and setting forth the information described therein (each, a “Monthly Report”).  In addition, the Issuer shall cause the Administrative Agent to deliver a copy of each Monthly Report to Intex Solutions, Inc. The Issuer shall cause the Administrative Agent to deliver a copy of the Annual Budget for each year with the Monthly Report for January in such year, and the Trustee shall include a copy of such Annual Budget with the Monthly Report for January made available on the Trustee’s Website to the Certified Holders.  The Issuer shall cause the Administrative Agent to deliver to the Trustee, the Controlling Trustees, each Rating Agency, and the Initial Liquidity Facility Provider with the Monthly Report for each June, and the Trustee shall make available on the Trustee’s Website with the Monthly Report for each June to the Certified Holders, a written report signed by a Responsible Officer of the Administrative Agent, substantially as described in Exhibit E-2 hereto prepared by the Administrative Agent and setting forth the information described therein (each, an “Annual Report”).  The Trustee shall make available on the Trustee’s Website a copy of each Monthly Report and Annual Report to any Certified Holder.  The Trustee shall be permitted to change the method by which the Monthly Report or the Annual Report is distributed to Holders in order to make such distribution more convenient and/or more accessible to the Holders.  The Trustee shall provide timely and adequate notification to the Holders of any such change.  If a Series of Notes is then listed on any stock exchange, the Trustee also shall provide a copy of each Monthly Report and each Annual Report to the applicable listing agent on behalf of such stock exchange if directed to do so by the Administrative Agent.

(b)        The Issuer shall cause the Administrative Agent to deliver, after the end of each calendar year,  but not later than the latest date permitted by law, to the Trustee, the Initial Liquidity Facility Provider and the Controlling Trustees, and the Trustee shall (or shall instruct any Paying Agent to) furnish to each Person who at any time during such calendar year was a Holder of Notes during such calendar year, a statement prepared by the Administrative Agent containing the sum of the amounts determined pursuant to Exhibit E-1 hereto with respect to each Series of Notes for such calendar year or, in the event such Person was a Holder of Notes during only a portion of such calendar year, for the applicable portion of such calendar year, and such other items as are readily available to the Administrative Agent and which a Holder shall reasonably request as necessary for the purpose of such Holder’s preparation of its U.S. federal income or other tax returns.  So long as any of the Notes are Global Notes held by the Depositary or its nominee, such

-  70  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

report and such other items will be prepared on the basis of such information supplied to the Administrative Agent by the Depositary, and will be delivered by the Trustee, when received from the Administrative Agent, to the Depositary and the applicable beneficial owners in the manner described above.  In the event that any such information has been provided by any Paying Agent directly to such Person through other tax-related reports or otherwise, the Trustee in its capacity as Paying Agent shall not be obligated to comply with such request for information.

(c)        The Issuer shall cause a copy of each statement, report or document described in Section 2.14(a) and Section 6.10 to be concurrently delivered by the Administrative Agent to each Rating Agency and the Servicer.

(d)        Any report required to be delivered to any Person other than the Trustee under this Section 2.14 may be furnished by mail, posting to the Trustee’s Website or other electronic distribution.  Any reports distributed by mail to any Holder shall be sent to the address of each such Holder as set forth in the Register.  Access to the Trustee’s Website will be password protected.  Each Person to whom a report or other information is required to be given pursuant to this Section 2.14 will be required to register at the website, to complete a certification of holdings of Notes, or of its role in this transaction (upon which the Trustee shall be fully protected in relying) and shall be subject to the terms and other restrictions contained on the Trustee’s Website.  The Trustee may grant access to its website to the Persons referenced in Section 2.14(a) that appropriately complete such registration and certification process as described in the previous sentence.

(e)        At such time, if any, as the Notes are issued in the form of Definitive Notes, the Trustee shall deliver the information described in Section 2.14(b) to each Holder of a Definitive Note for the relevant period of ownership of such Definitive Note as appears on the records of the Registrar.

(f)        Following each Payment Date and any other date specified herein for distribution of any payments with respect to the Notes and prior to a Refinancing or Redemption (unless the Administrative Agent is required to provide such notice pursuant hereto), the Trustee shall cause notice thereof to be given, so long as such Notes are registered with DTC, Euroclear and/or Clearstream, to DTC, Euroclear and/or Clearstream for communication by them to Holders.  If a Series of Notes is listed on a stock exchange, the Trustee shall provide such notices regarding a Refinancing or Redemption of such Series, amendment relating to the terms of such Series or other matters as the Administrative Agent shall direct.

(g)        The Trustee shall be at liberty to sanction some other method of giving notice to the Holders if, in its opinion, such other method is reasonable, having regard to the number and identity of the Holders and/or to market practice then prevailing, is in the best interests of the Holders and will comply with the rules of any stock exchange on which any Notes are listed as confirmed by the listing agent for such stock exchange or such other stock exchange (if any) on which the Notes are then listed, and any such notice shall be deemed to have been given on such date as the Trustee may approve; provided that notice of such method is given to the Holders in such manner as the Trustee shall require.

-  71  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(h)        Notwithstanding the above, any notice to the Holders of any Series of Global Notes shall be validly given by delivery of the relevant notice to the Depositary, Euroclear and/or Clearstream for communication by them to such Holders.  Any such notice shall be deemed to have been given on the first day on which any of such conditions shall have been met.

Section 2.15    CUSIP and ISIN Numbers.  The Issuer in issuing the Notes may use “CUSIP”, “ISIN” or other identification numbers (if then generally in use), and if so, the Trustee shall use CUSIP 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”, “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    Holder Covenants.

(a)        Each Holder and beneficial owner of a Note, by the acceptance of such Note or acquisition of any beneficial interest therein, covenants and agrees, for the benefit of the Issuer, that it will treat such Note as indebtedness for all purposes and will not take any action contrary to such characterization, including filing any tax returns or financial statements inconsistent therewith.

(b)        Each Holder and beneficial owner of a Note, by the acceptance of such Note or acquisition of any beneficial interest therein, covenants and agrees, for the benefit of the Issuer, to the extent it is legally able to do so, to provide to the Administrative Agent, the Issuer or the Trustee such properly completed and executed documentation, information or certification (including, but not limited to, Internal Revenue Service Forms W-8BEN,W-8BEN-E, W-8IMY, W-8ECI, W-8EXP and W-9 (or any successor forms)) as (1) would reduce or eliminate (i) any Taxes payable by, or withheld with respect to amounts payable to, the Issuer or any other Issuer Group Member or (ii) withholding Taxes imposed on any amount payable by the Trustee or any amount paid or payable by the Issuer under this Indenture and/or (2) may be helpful (as reasonably determined by the Administrative Agent, the Issuer or the Trustee each in its sole discretion) for the Trustee or the Issuer to satisfy its obligations relating to FATCA, withholding (including backup withholding) and information reporting under the Code and any other Applicable Law.

(c)        Each Holder and beneficial owner of a Note, by the acceptance of such Note or acquisition of any beneficial interest therein, covenants and agrees, for the benefit of the Issuer, (i) at the time or times prescribed by Applicable Law following a reasonable written request by the Administrative Agent, the Issuer or the Trustee or their agents, to obtain and provide the Administrative Agent, the Issuer or the Trustee, the FATCA Responsible Officer or their agents with information or documentation relating to such Person, and to update or correct such information or documentation, as is necessary or helpful (in the good faith sole determination of the Issuer, the Trustee or their agents as applicable) for the Issuer, any other Issuer Group Member and the Trustee, or their agents, to comply with their obligations under FATCA, and (ii) that the Issuer, any other Issuer Group Member, the Trustee and/or the FATCA Responsible Officer may

-  72  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(1) provide such information and documentation and any other information concerning an investment in the Notes to the United States Internal Revenue Service and any other relevant taxing authority and (2) take such other steps as they deem necessary or helpful to comply with their obligations (or the obligations of any other Issuer Group Member) under FATCA.

ARTICLE III

 

ACCOUNTS; PRIORITY OF PAYMENTS

Section 3.01    Accounts.  The Administrative Agent, shall direct the Operating Bank (which may be the Trustee) in writing to establish and maintain on its books and records for the benefit of the Security Trustee on behalf of the Secured Parties all of the following accounts:  (i) a collections account (the “Collections Account”), one or more lessee funded accounts as provided in the Administrative Agency Agreement (each, a “Lessee Funded Account”), a security deposit account (the “Security Deposit Account”), an expense account (the “Expense Account”), one account (each, a “Series Account”) for each Series of Notes, an Asset purchase account (the “Asset Purchase Account”), an Asset replacement account (the “Asset Replacement Account”), a liquidity facility reserve account for the Notes (the “Liquidity Facility Reserve Account”), a payment account for the Initial Liquidity Facility (the “Initial Liquidity Payment Account”), a maintenance reserve account (the “Maintenance Reserve Account”), an Asset disposition contribution account (the “Asset Disposition Contribution Account”), an account to accrue amounts during the continuance of a DSCR Cash Trap Event (the “DSCR Cash Trap Account”) and a hedge termination payment account (the “Hedge Termination Payment Account”), in each case on or before the Initial Closing Date and (ii) thereafter any additional Lessee Funded Accounts, a defeasance/redemption account (the “Defeasance/Redemption Account”), a refinancing account (the “Refinancing Account”), any additional Series Accounts for any Series of Refinancing Notes, and any other Account (including, any Cash Collateral Account) the establishment of which is set forth in a Trustee Resolution delivered to the Security Trustee and the Administrative Agent, in each case at such time as is set forth in this Section 3.01 or in such Trustee Resolution.  The Administrative Agent shall also establish and maintain any Lessor Account in accordance with Section 3.01(l).  Each Account shall be established and maintained as an Eligible Account in accordance with the terms of, and be subject to, the Security Trust Agreement so as to create, perfect and establish the priority of the security interest of the Security Trustee in such Account and all cash, Investments and other property therein under the Security Trust Agreement and otherwise to effectuate the Security Trust Agreement (except as otherwise provided herein).  Each new Account established pursuant to Section 2.04 of the Administrative Agency Agreement shall, when so established, be the Account of such name and purposes for all purposes of this Indenture.

(a)        Eligible Accounts.  If, at any time, any Account ceases to be an Eligible Account, the Administrative Agent or an agent thereof shall, subject to the Operating Bank’s account opening procedures, within ten Business Days to the extent practicable, establish a new account meeting the conditions set forth in this Section 3.01 in respect of such Account and transfer any cash or Permitted Account Investments in the existing Account to such new account; and from the date such new account is established, it shall have the same designation as the existing Account.  If the Operating Bank should change

-  73  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

at any time (including, any replacement of the Operating Bank for failing to be an Eligible Institution), then the Administrative Agent, acting on behalf of the Security Trustee, shall thereupon promptly establish replacement accounts as necessary at the successor Operating Bank and transfer the balance of funds in each Account then maintained at the former Operating Bank pursuant to the terms of the Administrative Agency Agreement to such successor Operating Bank.

(b)        Withdrawals, Transfers and Scheduled Lease Payments.

(i)         Withdrawals and Transfers Generally.  The Security Trustee shall have sole dominion and control over the Accounts (including, inter alia, the sole power to direct withdrawals or transfers from the Accounts); provided that, prior to the delivery of a Default Notice, any provision of this Indenture relating to any deposit, withdrawal or transfer to or from, any Account shall be effected by the Administrative Agent directing the Operating Bank by a Written Notice of the Administrative Agent (such Written Notice to be provided to the Operating Bank by 1:00 p.m. (New York City time) on the date of such deposit, withdrawal or transfer) given in accordance with the terms of this Indenture, the Administrative Agency Agreement and the Security Trust Agreement.  Each such Written Notice to the Operating Bank shall be also communicated in computer file format or in such other form as the Administrative Agent, the Operating Bank, the Trustee and the Security Trustee agree; provided that, in the case of communication in computer file format or any other form other than a written tangible form, a written tangible form thereof shall promptly thereafter be sent to the Operating Bank.  No deposit, withdrawal or transfer to or from any Account shall be made except in accordance with the terms of this Indenture, the Security Trust Agreement and the Administrative Agency Agreement or by any Person other than the Trustee or the Operating Bank (only upon the Written Notice of the Administrative Agent).  Each of the parties to this Indenture acknowledges that the terms of this Indenture contemplate that the Administrative Agent will receive certain information from other parties to this Indenture and the other Related Documents in order for the Administrative Agent to be able to perform all or any part of its obligations hereunder, that the Administrative Agent will be able to perform its obligations hereunder only to the extent such information is provided to the Administrative Agent by the relevant parties and that the Administrative Agent may conclusively rely, absent manifest error, on such information as it receives without undertaking any independent verification of that information.  The Administrative Agent agrees that if it is aware that another party has information required to be delivered by such party to the Administrative Agent to perform its obligations hereunder, but the Administrative Agent has not received such information, the Administrative Agent will promptly notify the party who was to provide such information of such failure.

(ii)       Scheduled Lease Payments.  Notwithstanding anything to the contrary in this Indenture, if any Lease Payment is received (i) prior to its stated due date under the relevant Lease (without regard to any business day convention in such Lease that would automatically move the actual due date forward if the

-  74  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

stated due date falls on a non-business day) and (ii) prior to the period commencing on a Calculation Date and ending on the next succeeding Calculation Date in which such payment would have been received had it been received on such stated due date (a “Scheduled Collections Period”, and such Lease Payment, an “Early Collections Period Lease Payment”), unless a Default Notice has been issued (other than a Default Notice that has been rescinded and annulled in accordance with Section 4.02) or an Acceleration Default has occurred and is continuing, such Early Collections Period Lease Payment shall be held in the Collections Account until the Payment Date immediately following the end of such Scheduled Collections Period; provided that, if there is a Designated Shortfall on the Payment Date immediately following the end of such Scheduled Collections Period, then such Early Collections Period Lease Payment shall be applied on such Payment Date immediately following the end of such Scheduled Collections Period (to the extent of such Designated Shortfall) as part of the Available Collections pursuant to Section 3.09.

(c)        Collections Account.  All Collections (including all Rental Payments and Usage Fees transferred from the Lessor Accounts, Partial Loss Proceeds and any amounts transferred from the Security Deposit Account) shall be, when received, deposited in the Collections Account, and all cash, Investments and other property in the Collections Account shall be transferred from or retained in the Collections Account in accordance with the terms of this Indenture.

(d)        Lessee Funded Account.  Any Segregated Funds received from time to time from any Lessee or pursuant to any Acquisition Agreement shall be transferred by the Operating Bank at the written direction of the Administrative Agent from the Collections Account into the related Lessee Funded Account.  The Administrative Agent shall not make any withdrawal from, or transfer from, any Lessee Funded Account in respect of any Segregated Funds that is contrary to the requirements of the respective Leases as to Segregated Funds and the requirements of the Security Trust Agreement (including the agreement of the Security Trustee that it designate on its account records that it holds its interest in each Lessee Funded Account for the benefit of the respective Lessee in respect of whom such Segregated Funds are held).  Without limiting the foregoing, no cash, Investment and other property in a Lessee Funded Account may be used to make payments, other than as permitted under Section 3.08, in respect of the Notes at any time, including after the delivery of a Default Notice.  Any Segregated Funds relating to an expired or terminated Lease that remain in a Lessee Funded Account after expiration or termination of such Lease and that are not due and owing to the relevant Lessee under such expired or terminated Lease shall, if so required under the terms of a subsequent Lease, if any, relating to such Asset, be credited in a Lessee Funded Account for the benefit of the next Lessee of the relevant Asset to the extent required under the terms of such subsequent Lease and, to the extent not so required, transferred to the Collections Account.  When and as provided in the Administrative Agency Agreement, the Administrative Agent shall cause to be established such additional Lessee Funded Accounts.

-  75  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(e)        Security Deposit Account.

(i)         Subject to paragraph (iii) below, the Administrative Agent will maintain Lease sub‑accounts allocating the balance in the Security Deposit Account to each Lease in respect of which Security Deposits were deposited therein, provided that, if any Security Deposits are required, pursuant to the terms of the applicable Leases, to be maintained as Segregated Funds, such amounts shall be held in a Lessee Funded Account.  A Lease sub-account refers to the record maintained by the Administrative Agent of the amounts on deposit in the Security Deposit Account with respect to a particular Lease.  Neither the Trustee nor the Operating Bank shall have any obligation in connection with maintaining the Lease sub-accounts.

(ii)       On each Payment Date on which Available Collections are to be distributed pursuant to Section 3.09(a), if the Balance on deposit in the Security Deposit Account is less than the Target Security Deposit Amount, the Trustee shall, as directed by the Administrative Agent pursuant to Section 3.08(o) deposit funds into the Security Deposit Account up to, if applicable, the Additional Security Deposit Reserve Amount, to the extent of Available Collections as provided in Section 3.09(a).

(iii)      The Trustee shall, as directed by the Administrative Agent (acting upon the instructions of the Certificate Holders), from time to time withdraw an amount up to the Available Security Deposit Amount on deposit in the Security Deposit Account at such time and shall apply such withdrawn amount to pay any Designated Shortfalls (if any) for any Payment Date, in each case, as directed by the Certificate Holders to the Administrative Agent for application pursuant to Section 3.08(d).

(iv)       If a Lessee does not have any right to receive a refund or reimbursement of its Security Deposit, or a Lessee relinquishes its right to receive a refund or reimbursement of its Security Deposit upon the expiration or earlier termination of a Lease (including a termination as the result of the occurrence of an event of default under such Lease), or a Security Deposit is not transferred to the purchaser in an Asset Disposition of the Asset subject to such Lease or is not refundable to the Lessee, the Administrative Agent shall direct the Trustee, in writing, to transfer such Security Deposit to the Collections Account upon such expiration or earlier termination, except as otherwise provided in Section 3.01(d) above.

(f)        Expense Account.  On each Payment Date, such amounts as are provided in Section 3.09 in respect of the Required Expense Amount shall be deposited into the Expense Account from the Collections Account.  Expenses shall be paid from the Expense Account as provided in Section 3.04.  If an Event of Default shall have occurred and be continuing and a Default Notice shall have been delivered by the Trustee (other than a Default Notice that has been rescinded and annulled in accordance with Section 4.02) or an Acceleration Default shall have occurred and be continuing, then the Controlling Party may direct the Trustee to transfer to the Collections Account all or a portion of the Balance in the Expense Account, after paying any Expenses then due and payable.

-  76  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(g)        Series Account.  The Administrative Agent shall cause the Operating Bank to establish and maintain a Series Account for each Series of the Initial Notes (and upon the issuance of any Refinancing Notes, any additional Series Accounts as may be applicable for each such Series of Refinancing Notes) in accordance with the first paragraph of Section 3.01 for the benefit of the Security Trustee for the benefit of the Holders of such Series of Notes.  Upon the transfer of any amounts to the applicable Series Accounts in accordance with Section 3.08,  Section 3.09 or Section 3.14, the Trustee on the same day shall, or shall cause the Operating Bank to, pay all such amounts to the Holders of Notes as of the related Record Date in accordance with the terms of this Indenture.

(h)        Asset Purchase Account.  As and to the extent provided in Section 3.03(a), an amount equal to the aggregate Cash Payment Amounts for the Remaining Initial Assets will be transferred from the Collections Account out of the proceeds of the Initial Notes (after any other deposits or transfer out of such proceeds) to the Asset Purchase Account.  The amount so deposited shall be held in such Account and invested in Permitted Account Investments until applied as provided in Section 3.04 or Section 3.05, as applicable.  The Administrative Agent shall give Written Notice to the Security Trustee, the Trustee and the Operating Bank of the satisfaction or waiver (specifying which) of all conditions for the payment of the Cash Payment Amount for any Remaining Initial Asset, and no amounts may be withdrawn or transferred from the Asset Purchase Account with respect to the Cash Payment Amount for such Remaining Initial Asset until receipt of such notice as to such Remaining Initial Asset, except as provided in Section 3.04(l) and Section 3.08(i).

(i)         Asset Replacement Account.

(i)         So long as no Event of Default has occurred and is continuing and no Default Notice has been delivered (other than a Default Notice that has been rescinded and annulled in accordance with Section 4.02) and no Rapid Amortization Event has occurred and is continuing, the Issuer may elect, by notice to the Trustee in writing, not later than the last Business Day preceding the later of the date of any Permitted Asset Disposition and the date on which the Net Sale Proceeds of such Permitted Asset Disposition are received, to deposit all or a portion of the Net Sale Proceeds realized from such Permitted Asset Disposition, whether or not initially deposited in the Collections Account, in (x) the Asset Replacement Account or (y) a Qualified Escrow Account maintained by a Qualified Intermediary, provided that such written direction shall be accompanied by a Trustee Resolution that such election has been made and that the requirements of Section 5.02(p) in respect of such Permitted Asset Disposition have been satisfied.  The Trustee shall, or shall cause the Operating Bank to, transfer to and retain in the Collections Account all or any portion of the Net Sale Proceeds realized from any Permitted Asset Disposition as to which the direction described in the preceding sentence is not received by the end of the last Business Day preceding the later of the date of any Asset Disposition and the date on which such Net Sale Proceeds are received.  For the avoidance of doubt, to the extent the Issuer has elected to retain all or a portion of the Net Sale Proceeds of a Permitted Asset Disposition in the Asset Replacement Account or a Qualified Escrow Account, as

-  77  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

applicable, in accordance with this Section, the Disposition Fee related to such Permitted Asset Disposition shall be paid by the Issuer on the Payment Date immediately succeeding the date of such Permitted Asset Disposition in accordance with Section 3.09.

(ii)       The Issuer may elect to apply the Net Sale Proceeds from a Permitted Asset Disposition deposited in the Asset Replacement Account or a Qualified Escrow Account pursuant to Section 3.01(i)(i) to the purchase price for a Permitted Asset Acquisition to the extent permitted under Section 5.02(q).

(iii)      At any time, (A) the Issuer may elect to direct the Administrative Agent to direct the Trustee to transfer some or all of the amounts on deposit in the Asset Replacement Account or a Qualified Escrow Account, as applicable, to the Collections Account and (B) upon Written Notice from the Administrative Agent (1) the Qualified Intermediary shall transfer any Net Sale Proceeds from an Asset Disposition remaining in a Qualified Escrow Account at the end of the applicable Replacement Period for such Asset Disposition to the Collections Account on the next Business Day after the end of such Replacement Period and (2) the Operating Bank shall transfer any Net Sale Proceeds from an Asset Disposition remaining in the Asset Replacement Account at the end of the applicable Replacement Period for such Asset Disposition to the Collections Account on the next Business Day after the end of such Replacement Period.

(iv)       If an Event of Default shall have occurred and be continuing and a Default Notice shall have been delivered (other than a Default Notice that has been rescinded and annulled in accordance with Section 4.02) or an Acceleration Default shall have occurred and be continuing, or if the Expected Final Payment Date shall have occurred, then the Controlling Party may direct the Trustee to transfer to the Collections Account all or any portion of the Balance in the Asset Replacement Account and any Qualified Escrow Account.

(j)         Liquidity Facility Reserve Account.  Following the funding of the Liquidity Facility Reserve Account with a Downgrade Drawing, a Final Drawing or a Non-Extension Drawing, if the Administrative Agent determines in accordance with Section 3.07(g) that on any Payment Date after making all withdrawals and transfers to be made with respect to such Payment Date (and after giving effect to the transfers to be made on such Payment Date pursuant to Section 3.08(d)), there will be (i) a Required Expenses Shortfall, (ii) a Senior Hedge Payment Shortfall, (iii) a Series A Interest Shortfall and/or (iv) a Series B Interest Shortfall, the Administrative Agent shall so notify the Trustee in writing and shall direct the Operating Bank in writing on such Payment Date to withdraw from the Liquidity Facility Reserve Account the least of (A) the amount equal to the aggregate of the Shortfalls in clauses (i), (ii), (iii) and (iv) above (in each case such Shortfalls as reduced by any transfers made on such Payment Date from the Security Deposit Account pursuant to Section 3.08(d)(i), (ii) and (iii)), (B) the amount on deposit therein and (C) the Required Amount.  The Trustee shall, or shall cause the Operating Bank to, as set out in the Written Notice from the Administrative Agent, apply the amount so withdrawn, first, to the Expense Account the Required Expenses Shortfall for such Payment Date; second, in no

-  78  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

order of priority inter se, but pro rata, (1) to the Series Account for the Initial Series A Notes, the Series A Interest Shortfall for such Payment Date and (2) pro rata, to each Hedge Provider, an amount equal to the Senior Hedge Payment Shortfall for such Payment Date; and third, to the Series Account for the Initial Series B Notes, the Series B Interest Shortfall for such Payment Date (in each case such Shortfall as reduced by any transfers made on such Payment Date from the Security Deposit Account pursuant to Section 3.08(d)(i), (ii) and (iii)).  In the event the Liquidity Facility Reserve Account has been funded with a Downgrade Drawing and subsequently the Initial Liquidity Facility shall cease to be a Downgraded Facility, following notice from the Initial Liquidity Facility Provider, the Administrative Agent shall so notify the Trustee in writing and shall direct the Operating Bank in writing to withdraw from the Liquidity Facility Reserve Account any Unapplied Downgrade Advance (as defined in the Initial Liquidity Facility) to be repaid to the Initial Liquidity Facility Provider.

(k)        Initial Liquidity Payment Account.  On the date of any Facility Drawing the proceeds of such drawing shall be deposited into the Initial Liquidity Payment Account and withdrawn on the applicable Payment Date for distribution, in each case in accordance with Section 3.14(b).

(l)         Lessor Accounts.  All Rental Payments, Usage Fees and other amounts received pursuant to any Lease or Related Collateral Document shall be deposited into the Collections Account.  However, if the Administrative Agent determines that it is necessary or appropriate,  including for any tax, regulatory or legal reason, any such Collections may not be deposited into the Collections Account or another Account for the  benefit of the Security Trustee on behalf of the Secured Parties, then, notwithstanding the requirements of the first paragraph of Section 3.01, the relevant Issuer Group Member may establish one or more accounts (each a “Lessor Account”) for such Collections in its own name (but subject to the direction and control of the Administrative Agent) at any Eligible Institution or with a financial institution other than an Eligible Institution to the extent provided in the definition of “Eligible Account”.  For so long as a Lessor Account is an Eligible Account and all actions as shall be necessary to establish and perfect the security interest of the Security Trustee in such Lessor Account pursuant to the Security Trust Agreement shall have been taken, then the Administrative Agent shall direct the transfer of all funds on deposit in any Lessor Account (other than any Segregated Funds that the applicable Issuer Group Member is obligated to maintain in such Lessor Account pursuant to the applicable Lease or other applicable document) on any Calculation Date to the Collections Account, Security Deposit Account or Lessee Funded Account (as applicable) on or promptly after such Calculation Date for inclusion (with respect to amounts not constituting Segregated Funds) in the Available Collections for the related Payment Date, and shall direct such more frequent transfers of such funds to the Collections Account as are necessary or prudent taking into account transfers, deposits and withdrawals required or permitted pursuant to Section 3.04 (and other than amounts not required to be so transferred as provided in the last sentence of this clause (l)).  If the Administrative Agent reasonably determines that it is commercially impracticable or unduly burdensome to take such actions as shall be necessary to establish and perfect the security interest of the Security Trustee in such Lessor Account pursuant to the Security Trust Agreement, the Administrative Agent

-  79  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

shall direct the financial institution at which such Lessor Account is maintained to transfer all funds deposited in such Lessor Accounts (other than amounts not required to be so transferred as provided in the last sentence of this clause (l)) to the Collections Account, Security Deposit Account or Lessee Funded Account, as applicable, within three Business Days of their receipt.  The Administrative Agent shall not be required to transfer from the Lessor Account any amounts, if any, that for local tax or other regulatory or legal reasons must be retained on deposit or as to the transfer of which the Administrative Agent determines there is any substantial uncertainty.

(m)       Defeasance/Redemption Account.  Upon Written Notice of the Issuer to it, or a Trustee Resolution provided to it authorizing that a Series of Notes are to be redeemed pursuant to Section 3.11 (other than in a Refinancing) or defeased under Article XI, the Administrative Agent shall cause the Operating Bank to establish and maintain a Defeasance/Redemption Account pursuant to the first paragraph of Section 3.01 for the benefit of the Security Trustee on behalf of the Secured Parties.  All amounts received for the purpose of any such redemption or defeasance shall be deposited in the Defeasance/Redemption Account in accordance with Section 3.11 or Article XI hereof, as applicable, and disbursed therefrom in accordance with Section 3.11 or Article XI hereof, as applicable.

(n)        Refinancing Account.  Upon Written Notice of the Issuer to it of, or a Trustee Resolution provided to it authorizing, a Refinancing, the Administrative Agent shall cause the Operating Bank to establish and maintain a Refinancing Account pursuant to the first paragraph of Section 3.01 for the benefit of the Security Trustee for the benefit of the Holders of the Notes, if any, to be refinanced.  All net cash proceeds of such Refinancing shall be deposited in the Refinancing Account and shall be held in such Account until such proceeds are applied to pay the Redemption Price (including all accrued and unpaid interest) of the Notes being redeemed until such Notes are cancelled by the Trustee and Refinancing Expenses with respect thereto (except to the extent the Controlling Trustees have determined, as evidenced by a Trustee Resolution, to pay the same from funds available therefor in the Expense Account) and as otherwise provided in Section 5.02(c)(ii).

(o)        Additional Cash Collateral Accounts.  Upon receipt by the Administrative Agent of a Trustee Resolution providing for the establishment of any additional Cash Collateral Account as an Eligible Credit Facility for the Notes or in respect of any other Obligation, the Administrative Agent shall, by Written Notice, cause the Operating Bank to establish (within three (3) Business Days of the giving of such Written Notice) and maintain such Cash Collateral Account pursuant to the first paragraph of Section 3.01 for the benefit of the Security Trustee for the benefit of the Holders of the Notes and/or the Secured Parties holding such other Obligation.  All amounts provided in connection with any such Trustee Resolution for deposit in such Account and all amounts to be deposited in such Account under Section 3.09 as an Eligible Credit Facility shall be held in such Cash Collateral Account for application, and all replenishment shall be made, in accordance with the terms of the Trustee Resolution relating to such Eligible Credit Facility, which Trustee Resolution shall include the basis of any replenishment of the Cash Collateral Account.

-  80  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(p)        Maintenance Reserve Account.

(i)         On each Payment Date on which Available Collections are to be distributed pursuant to Section 3.09(a), the Trustee shall, as directed by the Administrative Agent pursuant to Section 3.08(o) hereof, deposit funds into the Maintenance Reserve Account equal to, if applicable, the Additional Maintenance Reserve Amount, to the extent of Available Collections as provided in Section 3.09(a).

(ii)        On the Payment Date on which any adjustment in the Maintenance Required Amount becomes effective or as of which the amount on deposit in the Maintenance Reserve Account exceeds the then applicable Maintenance Required Amount (after giving effect to all other payments to be made on such Payment Date), the Administrative Agent shall direct the Trustee in writing to transfer from the Maintenance Reserve Account to the Collections Account, for inclusion in Available Collections on such Payment Date, the excess, if any, of the Balance in the Maintenance Reserve Account over the Maintenance Required Amount, as so adjusted (if applicable).

(iii)       If (A) an Event of Default shall have occurred and be continuing and a Default Notice shall have been delivered by the Trustee (other than a Default Notice that has been rescinded and annulled in accordance with Section 4.02) or an Acceleration Default shall have occurred and be continuing, or (B) all Assets shall have been sold or otherwise disposed of, then the Controlling Party may direct the Trustee to transfer to the Collections Account all or any portion of the Balance in the Maintenance Reserve Account.

(q)        Reserved.

(r)         Asset Disposition Contribution Account.

(i)         On each Payment Date on which Available Collections are to be distributed pursuant to Section 3.09(a), the Trustee shall, as directed by the Administrative Agent pursuant to Section 3.08(o) hereof, deposit the Asset Disposition Accrual Deposit, if any, authorized by the Certificate Holders into the Asset Disposition Contribution Account pursuant to Section 3.09(a)(xviii) to the extent of Available Collections as provided in Section 3.09(a).

(ii)        On the Payment Date immediately succeeding the Disposition Date for an Asset Disposition that shall have resulted in an Asset Disposition Shortfall and for which an Asset Disposition Accrual Deposit will be made pursuant to Section 3.09(a)(xviii), the Administrative Agent shall direct the Trustee to transfer the applicable Asset Disposition Accrual Amount (or, if less, the Balance in the Asset Disposition Contribution Account) from the Asset Disposition Contribution Account to the Collections Account together with the applicable Net Sale Proceeds for such Asset Disposition.

-  81  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(iii)       If an Event of Default shall have occurred and be continuing and a Default Notice shall have been delivered by the Trustee (other than a Default Notice that has been rescinded and annulled in accordance with Section 4.02) or an Acceleration Default shall have occurred and be continuing, then the Controlling Party may direct the Trustee to transfer to the Collections Account all or any portion of the Balance in the Asset Disposition Contribution Account.

(iv)       If at any time following the deposit of amounts in the Asset Disposition Contribution Account pursuant to Section 3.02(r)(i) above, the Controlling Trustees have passed a Trustee Resolution approving the release of all or a portion of the funds in the Asset Disposition Contribution Account, the Administrative Agent shall transfer the amount specified in the Trustee Resolution from the Asset Disposition Contribution Account to the Collections Account for application in accordance with Section 3.09 on the next Payment Date.

(v)        If the amount on deposit in the Asset Disposition Contribution Account is to be increased through the funding of Additional Advances, the Trustee, at the written direction of the Administrative Agent, will deposit such Additional Advances received by it into the Asset Disposition Contribution Account.  The Certificate Holders shall notify the Administrative Agent in writing of the amount of such Additional Advance, and the Administrative Agent shall notify the Trustee in writing within one Business Day after the making of any Additional Advance that such Additional Advance has been made.

(s)         DSCR Cash Trap Account.  Amounts shall be deposited in the DSCR Cash Trap Account in accordance with Section 3.09(a) hereof.  Amounts in the DSCR Cash Trap Account shall be subject to withdrawal and application in accordance with Section 3.08(m).

(t)         Hedge Termination Payment Account.  The amount of any Hedge Termination Payments shall be deposited in the Hedge Termination Payment Account, and the Administrative Agent shall direct the Trustee in writing to disburse funds out of the Hedge Termination Payment Account in accordance with this Indenture.  If an Event of Default shall have occurred and be continuing and a Default Notice shall have been delivered by the Trustee (other than a Default Notice that has been rescinded and annulled in accordance with Section 4.02) or an Acceleration Default shall have occurred and be continuing, then the Controlling Party may direct the Trustee to transfer to the Collections Account all or any portion of the Balance in the Hedge Termination Payment Account.

Section 3.02    Investments of Cash.  (a) For so long as any Notes remain Outstanding, the Administrative Agent shall, or shall direct the Operating Bank in writing to, invest and reinvest the funds on deposit in the Accounts in Permitted Account Investments specified by the Administrative Agent in such written instructions, all in accordance with the terms of the following provisions; provided that the Initial Liquidity Facility Provider shall be entitled to direct the Administrative Agent to invest the amounts on deposit (if any) in the Liquidity Facility Reserve Account in Permitted Account Investments:

-  82  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(i)         the Permitted Account Investments shall have maturities and other terms such that sufficient funds shall be available to make required payments pursuant to this Indenture (A) before the next Payment Date after which such investment is made, in the case of investments of funds on deposit in the Collections Account and the Expense Account, (B) as directed in writing by the Servicer acting at the direction of the Controlling Trustees in accordance with the requirements of the relevant Leases or Asset Disposition agreements, in the case of investments of funds on deposit in the Lessee Funded Account, the Maintenance Reserve Account, the Asset Replacement Account, any Qualified Escrow Account or the Security Deposit Account or (C) on the same day as a payment request is made, in the case of funds on deposit in the Asset Purchase Account; provided that an investment maturing within one year of the date of investment shall nevertheless be a Permitted Account Investment if it has been acquired with funds which are not reasonably anticipated, at the discretion of the Administrative Agent, to be required to be paid to any other Person or otherwise transferred from the applicable Account prior to such maturity;

(ii)        if any funds to be invested are not received in the Accounts by 1:00 p.m., New York City time, on any Business Day, such funds shall be invested in accordance with clause (i) of this Section 3.02(a) on the next succeeding Business Day; provided that none of the Administrative Agent, the Trustee, the Security Trustee, the Operating Bank or the Initial Liquidity Facility Provider shall be liable for any losses incurred in respect of the failure to invest funds not thereby received;

(iii)       if required by the terms of a Lease, any investments of Segregated Funds on deposit in a Lessee Funded Account or funds on deposit in the Security Deposit Account shall be made on behalf of the relevant Lessee in such investments as may be required thereunder; and

(iv)       if the Permitted Account Investment in which the Administrative Agent (acting at the direction of the Controlling Trustees) has directed the Operating Bank to invest any funds in any Account ceases to be a Permitted Account Investment pursuant to the definition thereof, the Administrative Agent (acting at the direction of the Controlling Trustees) shall provide the Operating Bank with new specific written investment directions.  None of the Trustee, the Security Trustee or the Operating Bank shall have any duty or obligation to monitor whether an investment meets the requirements of a Permitted Account Investment nor have any liability with respect to any investment which ceases to be a Permitted Account Investment.

(b)        The Trustee or its Affiliates is permitted to receive additional compensation (which compensation should be decided on an arm’s length basis) that could be deemed to be in their respective economic self interest for (i) serving as an investment advisor, administrator, shareholder servicing agent, custodian or sub-custodian with respect to certain Permitted Account Investments, (ii) using Affiliates to effect transactions in certain Permitted Account Investments and (iii) effecting transactions in certain Permitted Account Investments.

-  83  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(c)        Except as expressly provided hereunder, none of the Trustee, the Security Trustee or the Operating Bank shall have any 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 the Initial Liquidity Facility Provider, as the case may be.  In no event shall the Trustee, the Security Trustee or the Operating Bank be liable for the selection of investments or for investment losses incurred thereon.  None of the Administrative Agent, the Trustee, the Security Trustee or the Operating Bank shall have any liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Issuer or the Initial Liquidity Facility Provider, as the case may be, to provide timely written investment direction.  None of the Administrative Agent, the Trustee, the Security Trustee or the Operating Bank guarantees the performance of any Permitted Account Investment.  If the Permitted Account Investment in which the Administrative Agent or the Initial Liquidity Facility Provider has directed the Trustee or the Operating Bank to invest any funds in any Account ceases to be a Permitted Account Investment pursuant to the definition thereof, the Administrative Agent or the Initial Liquidity Facility Provider, as the case may be, shall provide the Trustee and/or the Operating Bank with new specific written investment directions.  None of the Trustee, the Security Trustee or the Operating Bank shall have any duty or obligation to monitor whether an investment meets the requirements of a Permitted Account Investment nor shall it have any liability with respect to any investment which ceases to be a Permitted Account Investment.

Section 3.03     Initial Closing Date Deposits, Withdrawals and Transfers.  The Administrative Agent shall, upon its receipt of written direction of the Issuer, make, or direct the Operating Bank to make, to the extent of funds on deposit in the Accounts, the following deposits and transfers to and from the Accounts in each case as specified in a prior Written Notice of the Administrative Agent to the Trustee, the Security Trustee and the Operating Bank:

(a)        on the Initial Closing Date,

(i)         prior to making the deposits, transfers and payments described in clauses (ii) through (vi), (A) deposit in the Collections Account the proceeds of the issuance of the Initial Notes, (B) deposit in the Security Deposit Account the amount of the initial Security Deposits received pursuant to the terms of the Asset Purchase Agreement (other than Security Deposits that are Segregated Funds) and (C) deposit in any Lessee Funded Account an amount equal to any Segregated Funds (including any Security Deposits that are Segregated Funds) for each Lease related to any Asset being acquired from a Seller on the Initial Closing Date;

(ii)        transfer from the Collections Account to the Expense Account such amount as is necessary so that the amount on deposit in the Expense Account is an amount equal to the Required Expense Amount for the initial Interest Accrual Period and the Initial Expenses, as specified in a Written Notice of the Administrative Agent to the Trustee and the Operating Bank;

-  84  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(iii)       transfer from the Collections Account the Initial Maintenance Reserve Amount and the Initial Security Deposit Amount, respectively, to the Maintenance Reserve Account and the Security Deposit Account, respectively;

(iv)       subject to receiving Written Notice of the Issuer to the effect that the conditions to the acquisition of all or some of the Initial Assets specified in the Asset Purchase Agreement have been fulfilled, pay from the Collections Account to the Seller the Cash Payment Amounts for such Initial Assets;

(v)        after making the deposits, transfers and payments described in clauses (i) through (iv), (A) transfer from the Collections Account to the Asset Purchase Account the aggregate amount of the Cash Payment Amounts for the Remaining Initial Assets and (B) retain in the Collections Account the balance, if any, remaining after making the foregoing deposits, transfers and payments; and

(vi)       withdraw from the Expense Account such amount as is needed to discharge any portion of the Initial Expenses then due and payable on the Initial Closing Date and pay such amount to the appropriate payees thereof as specified in the Written Notice of the Administrative Agent; and

(b)        on the relevant Payment Date involving the issuance of Refinancing Notes, deposit the proceeds of such Refinancing into the Refinancing Account for application in accordance with Section 3.08(a).

Section 3.04    Interim Deposits, Transfers and Withdrawals.  On any Business Day, the Administrative Agent may make, or direct the Operating Bank to make, without duplication, to the extent of funds on deposit in the Accounts, the following deposits, transfers and withdrawals to and from the Accounts, in each case as specified in a prior Written Notice of the Administrative Agent to the Trustee, the Security Trustee and the Operating Bank:

(a)        withdraw from a Lessee Funded Account to the extent that funds on deposit therein or available thereunder may be withdrawn or drawn pursuant to the terms of the related Lease for payment thereof, to discharge any Expense then due and payable and pay such amount to the appropriate payees thereof;

(b)        withdraw from the Expense Account (to the extent of funds on deposit therein) such amount as is needed to discharge any Expenses then due and payable that were included in any prior Required Expense Amount and pay such amount to the appropriate payees thereof;

(c)        transfer from the Collections Account from time to time (but in no event on less than one Business Day’s prior Written Notice to the Trustee and the Operating Bank (unless such one Business Day’s notice requirement is waived by the Trustee)) other amounts to the Expense Account, in each case only to the extent that such funds are to be applied to Expenses that become due and payable during such Interest Accrual Period and for the payment of which there are insufficient funds in the Expense Account; provided that no such transfer from the Collections Account in respect of Expenses shall be made

-  85  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

prior to the next succeeding Payment Date if, in the reasonable judgment of the Administrative Agent, such transfer would have a material adverse effect on the ability of the Issuer to make payments of accrued and unpaid interest on the Notes then Outstanding on the next Payment Date therefor in accordance with Section 3.09;

(d)        withdraw Segregated Funds from a Lessee Funded Account or draw under or cause to be drawn under any applicable Related Collateral Document, in any case to the extent required by or necessary in connection with a Lease or any documents related thereto and the Related Collateral Documents, for deposit in the Collections Account to satisfy any default in Rental Payments or Usage Fees under any related Lease;

(e)        transfer any Segregated Funds (including Security Deposits that are Segregated Funds) from the Collections Account to a Lessee Funded Account in accordance with the terms of any Lease;

(f)         transfer any Security Deposits (other than Security Deposits that are Segregated Funds) from the Collections Account to the Security Deposit Account;

(g)        withdraw funds on deposit in the Security Deposit Account and transfer such funds to the Collections Account in satisfaction of the obligations of the Lessee under the applicable Lease, but only to the extent of the Security Deposit allocable to such Lease and as may be required or permitted under the terms of the relevant Lease;

(h)        withdraw funds from the Maintenance Reserve Account for any or all of the following purposes: (i) to fund any Lessee Reimbursements, (ii) to fund maintenance performed on an Asset by the Issuer or an Issuer Subsidiary or the Servicer, (iii) to pay for the cost of performing Mandatory Asset Modifications and (iv) to make the transfers and payments described in Section 3.01(p)(ii);

(i)         withdraw from the Hedge Termination Payment Account (to the extent of funds on deposit therein) such amount as is needed to pay any Hedge Termination Payments then due and payable and pay such amount to the appropriate payees thereof;

(j)         in the case of any specified amount to be released from the Asset Disposition Contribution Account pursuant to a Trustee Resolution as provided for in Section 3.01(r)(iv), on or prior to the next Calculation Date, transfer such specified amount from the Asset Disposition Contribution Account to the Collections Account for application on the next Payment Date in accordance with Section 3.09 hereof;

(k)        in the case of any specified amount to be released from the Security Deposit Account as directed by the Administrative Agent (acting at the direction of the Certificate Holders) as provided in Section 3.01(e)(iii), on or prior to the next Calculation Date, transfer such specified amount from the Security Deposit Account to the applicable Account for application on the next Payment Date in accordance with Section 3.09 hereof; and

-  86  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(l)         upon written notice to the Administrative Agent from Willis Lease that an Asset Trust has in fact received any Rental Payments under the Lease for such Remaining Initial Asset that are allocable to periods on and after the Initial Closing Date, or Usage Fees under the Lease for such Remaining Initial Asset that are received on or after the Initial Closing Date, transfer from the Asset Purchase Account to the Collections Account the amount of such Rental Payments and Usage Fees.

Section 3.05     Withdrawals and Transfers Relating to the Acquisition of Assets.

(a)        Acquisition of Remaining Initial Assets.  On the Delivery Date with respect to any Remaining Initial Asset, the Administrative Agent may make, or direct the Operating Bank to make, to the extent of funds on deposit in the Accounts, the following deposits, withdrawals and transfers to and from the Accounts, in each case as specified in a Written Notice of the Administrative Agent to the Trustee, the Security Trustee and the Operating Bank (which Written Notice of the Administrative Agent shall, as a condition to any such deposit, withdrawal and transfer, include written confirmation by the Administrative Agent that the conditions to payment for the Remaining Initial Asset specified in the Asset Purchase Agreement have been fulfilled):

(i)         deposit into the Security Deposit Account the amount of the Security Deposits (other than Security Deposits that are Segregated Funds) received in respect of such Remaining Initial Asset under the Asset Purchase Agreement;

(ii)        deposit into the relevant Lessee Funded Account the amount of any Segregated Funds (including Security Deposits that are Segregated Funds) received in respect of such Remaining Initial Asset under the Asset Purchase Agreement; and

(iii)       pay out of the Asset Purchase Account to the applicable Seller the Cash Payment Amount for such Remaining Initial Asset (as reduced by any amounts transferred with respect to such Remaining Initial Asset in accordance with Section 3.04(l)) plus the Investment Earnings thereon.

(b)        Acquisition of Replacement Assets.  On each Delivery Date during the Replacement Period in respect of a Permitted Asset Disposition and on which the Issuer acquires a Replacement Asset (or an Asset Interest with respect to a Replacement Asset) from a Seller in a Permitted Asset Acquisition, the Administrative Agent may make, or direct the Operating Bank (and, if applicable, the Qualified Intermediary in respect of any Qualified Escrow Account) to make to the extent of funds on deposit in the Accounts, the following deposits, withdrawals and transfers to and from the Accounts, in each case as specified in a Written Notice of the Administrative Agent to the Trustee, the Security Trustee and the Operating Bank (which Written Notice of the Administrative Agent shall, as a condition to any such deposit, withdrawal and transfer, include written confirmation by the Administrative Agent that the conditions to payment for the Replacement Asset specified in the applicable Acquisition Agreement have been fulfilled):

-  87  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(i)         deposit into the Security Deposit Account the amount of the Security Deposits (other than Security Deposits that are Segregated Funds) received in respect of such Replacement Asset under the applicable Acquisition Agreement;

(ii)        deposit into the relevant Lessee Funded Account the amount of any Segregated Funds (including Security Deposits that are Segregated Funds) received in respect of such Replacement Asset under the applicable Acquisition Agreement;

(iii)       except to the extent provided in clauses (i) and (ii) above, deposit into the Collections Account any amounts received in respect of such Replacement Asset under the applicable Acquisition Agreement; and

(iv)       transfer funds in an amount equal to the purchase price for such Replacement Asset provided in the Trustee Resolution unanimously approved by the Controlling Trustees from the Asset Replacement Account to the applicable Seller (or direct the Qualified Intermediary to apply the funds on deposit in the applicable Qualified Escrow Account to the acquisition of such Replacement Asset and transfer such Replacement Asset to the applicable Issuer Subsidiary).

(c)        Asset Payments.  The payment of the Cash Payment Amount for any Remaining Initial Asset to be made pursuant to Section 3.05(a)(iii) to any Seller shall, subject to the delivery as to such Asset of the Written Notice referred to in Section 3.05(a), be made as so provided notwithstanding the giving of any Default Notice or any other exercise of remedies hereunder.

(d)        Delivery Expiry Date.  Concurrently with Written Notice of the Administrative Agent to the Trustee, the Security Trustee and the Operating Bank that (i) the Issuer is no longer required, pursuant to the terms of the Asset Purchase Agreement, to purchase any Remaining Initial Asset (whether by reason of the passing of the Delivery Expiry Date, the exercise by the Issuer of any termination right under the Asset Purchase Agreement or otherwise), and the amounts in the Asset Purchase Account are not being applied to acquire a Substitute Asset in lieu of such Remaining Initial Asset or (ii) the Delivery Expiry Date has occurred, the Administrative Agent shall direct the Operating Bank to transfer from the Asset Purchase Account to the Defeasance/Redemption Account (for application in accordance with Section 3.11 as an Acquisition Balance Redemption) the amounts in the Asset Purchase Account relating to each such Remaining Initial Asset (and that are not being applied to acquire a Substitute Asset in lieu of such Remaining Initial Asset), or all amounts remaining in the Asset Purchase Account if the Delivery Expiry Date has occurred.

Section 3.06    Interim Deposits and Withdrawals for Asset Disposition.  On the first Business Day occurring on or after the date of an Asset Disposition, the Administrative Agent shall direct the Operating Bank to deposit (a) any and all proceeds received in respect of any Asset Disposition by or on behalf of any Issuer Group Member in the Collections Account (other than in connection with any sale of all or substantially all of the assets of the Issuer Group, in which case the Administrative Agent shall direct the Operating Bank to deposit any and all proceeds thereof into the Defeasance/Redemption Account in connection with the redemption of the Notes)

-  88  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

in each case as specified in a Written Notice by the Administrative Agent to the Trustee, the Security Trustee and the Operating Bank and (b) if so elected by the Certificate Holders, the Asset Disposition Accrual Amount in respect of such Asset Disposition, if any, in the Collections Account.  Any funds then on deposit in a Lessee Funded Account or the Security Deposit Account related to the Asset subject to such sale or other disposition shall be applied on a basis consistent with the terms of the Lease related to such Asset, if any, or as otherwise provided by the relevant agreements related to such sale or other disposition.  After making the deposit required by the first sentence of this Section 3.06, the Administrative Agent shall direct the Operating Bank to transfer Net Sale Proceeds from the Collections Account to the Asset Replacement Account (or a Qualified Escrow Account maintained by a Qualified Intermediary) in such amount as has been elected by the Issuer in accordance with Section 3.01(i)(i).

Section 3.07     Calculation Date Calculations.

(a)        Calculation of Required Amounts.  The Administrative Agent shall determine, as soon as practicable after each Calculation Date, but in no event later than four Business Days preceding the immediately succeeding Payment Date, based on information known to the Administrative Agent or Relevant Information provided to the Administrative Agent, the Collections received during the period commencing on the close of business on the preceding Calculation Date and ending on the close of business on such Calculation Date and calculate the following amounts:

(i)         (A) the Balance of funds on deposit in the Accounts on the Calculation Date and the amount available under all Eligible Credit Facilities on such Calculation Date and (B) the amount of Investment Earnings (net of losses and investment expenses), if any, on Investments of funds on deposit in the Accounts during such period;

(ii)        the Required Expense Amount for such Payment Date (taking into account any Expenses paid or to be paid with amounts that constitute all or a portion of an Available Security Deposit Amount);

(iii)       the Available Collections for such Payment Date, taking into account all transfers to be made on such Payment Date pursuant to Section 3.08;

(iv)       the net Segregated Funds, if any, and any amounts on deposit in the Security Deposit Account and the Maintenance Reserve Account available to be transferred into the Collections Account on such Calculation Date as and to the extent expressly provided herein;

(v)        any amount to be transferred from the Asset Purchase Account to the Collections Account as provided in Section 3.05(d);

(vi)       any amount to be transferred from the Asset Replacement Account and/or any Qualified Escrow Account to the Collections Account as provided in Section 3.01(i)(iii);

-  89  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(vii)      the Additional Maintenance Reserve Amount for such Payment Date, if any;

(viii)     the Additional Security Deposit Reserve Amount, if any;

(ix)       the Excess Proceeds Series Payments for each Series for such Payment Date, if any;

(x)        the Required Amount for any Cash Collateral Account and any amounts to be transferred in respect of the Initial Liquidity Facility and any other Eligible Credit Facilities under Section 3.09(a)(iv) or 3.09(b)(ii); and

(xi)       any other information, determinations and calculations reasonably required in order to give effect to the terms of this Indenture and the other Related Documents, including the preparation of the Monthly Report and the Annual Report;

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 3.07.

(b)        Calculation of Interest and Other Amounts.  The Administrative Agent shall, not later than four Business Days prior to each Payment Date, make the following calculations or determinations with respect to Interest Amounts and fees of the Initial Liquidity Facility Provider due on such Payment Date:

(i)         the Interest Amount in respect of Series A Notes on such Payment Date;

(ii)        the Interest Amount in respect of Series B Notes on such Payment Date;

(iii)       the Step-Up Interest Amount for the Series A Notes, if applicable;

(iv)       the Step-Up Interest Amount for the Series B Notes, if applicable;

(v)        any interest and fees due and owing to the Initial Liquidity Facility Provider on such Payment Date;

(vi)       the Outstanding Disposition Premium for each Series of Notes, if any;

(vii)      the Redemption Premium for each Series of Notes, if any; and

(viii)     the Additional Maintenance Reserve Amount, if any.

-  90  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(c)        Calculation of Principal Payment Amounts.  The Administrative Agent shall, not later than four Business Days prior to each Payment Date, calculate or determine the following with respect to principal payments due on such Payment Date and certain other amounts in respect of such Payment Date:

(i)         from and after the seventh Payment Date following the Initial Closing Date, the DSCR as of such Payment Date;

(ii)        the Outstanding Principal Balance of each Series of Notes on such Payment Date immediately prior to any principal payment on such date;

(iii)       the Adjusted Base Value for each Asset and the Adjusted Portfolio Value on such Payment Date;

(iv)       the Scheduled Principal Payment Amount on such Payment Date with respect to each Series of Notes; and

(v)        the Outstanding Principal Balance for each Series of Notes on such Payment Date after all principal payments on such date.

(d)        Calculation of Refinancing or Redemption Amounts.  The Administrative Agent shall, not later than four Business Days prior to each Redemption Date on which a Refinancing or Redemption of any Series of Notes is scheduled to occur, perform the calculations necessary to determine the Redemption Price (including accrued and unpaid interest) of such Series.

(e)        Application of the Available Collections.  The Administrative Agent shall, not later than 1:00 p.m. New York City time on the third Business Day prior to each Payment Date, determine the amounts to be applied on such Payment Date to make each of the payments contemplated by Section 3.09(a) or 3.09(b), as applicable, setting forth separately, the amount to be applied on such Payment Date pursuant to each clause of Section 3.09(a) or 3.09(b), as applicable.

(f)         Asset Acquisitions.  No later than the last Business Day prior to the anticipated Delivery Date for each Remaining Initial Asset or Replacement Asset, the Administrative Agent shall determine, and give the Trustee and Security Trustee a Written Notice setting out, the amounts to be paid or transferred, as applicable, under Section 3.03 or Section 3.05 in respect of the applicable Remaining Initial Asset or Replacement Asset (as applicable) on such Delivery Date, and on the Delivery Date for such Remaining Initial Asset or Replacement Asset, the Administrative Agent shall deliver a Written Notice to the Trustee and the Security Trustee to the effect that the conditions to the purchase of such Remaining Initial Asset or Replacement Asset set forth in the Asset Purchase Agreement or the Acquisition Agreement (as applicable) have been fulfilled.

(g)        Calculations in respect of Shortfalls.  As soon as practicable after each Calculation Date, but in no event later than 12:00 noon New York City time on the date which is the fourth Business Day prior to each Payment Date, the Administrative Agent

-  91  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

shall determine (after giving effect to the application of Available Collections, taking into account all transfers to the Collections Account to be made pursuant to Section 3.08, in accordance with the applicable payment priorities set forth in Section 3.09(a) or 3.09(b), as applicable,  whether a Shortfall exists as of such Calculation Date in the Available Collections:

(i)         to pay on the next succeeding Payment Date the Required Expense Amount due on such Payment Date (any such shortfall in respect of the Required Expense Amount on any Payment Date, a “Required Expenses Shortfall”);

(ii)        to pay the aggregate of the Interest Amounts due in respect of the Initial Series A Notes and Senior Hedge Payments, in each case on such Payment Date, allocated pro rata among (x) such Interest Amounts (any such shortfall in respect of the Initial Series A Notes, a “Series A Interest Shortfall”), and (y) such Senior Hedge Payments (any such shortfall in respect of Senior Hedge Payments, a “Senior Hedge Payment Shortfall”); and

(iii)       to pay Interest Amount due in respect of the Initial Series B Notes on such Payment Date (any such shortfall in respect of the Initial Series B Notes, a “Series B Interest Shortfall”).

(h)        Notification of Calculations in respect of Available Scheduled Principal Amounts.  So long as a Default Notice has not been issued (which has not been rescinded and annulled in accordance with Section 4.02), an Acceleration Default has not occurred and the Expected Final Payment Date has not occurred, as soon as practicable after each Calculation Date, but in no event later than 12:00 noon (New York City time) on the date which is the third Business Day prior to the related Payment Date, the Administrative Agent shall provide notice to the Issuer of its calculation of the amount (the “Available Scheduled Principal Amount”) available (after giving effect to all Prior Ranking Amounts) to pay the Scheduled Principal Payment Amount for each Series of the Initial Notes (for application in accordance with Section 3.09(a) or 3.09(b), as applicable) for such Payment Date.  The Available Scheduled Principal Amount shall be applied in accordance with Section 3.09(a) or 3.09(b), as applicable, towards the Scheduled Principal Payment Amount payable for such Payment Date.

(i)         DSCR Failure.  In the event that the Administrative Agent determines that a DSCR Cash Trap Event or a DSCR Amortization Event has occurred and is continuing with respect to any Payment Date, the Administrative Agent shall provide written notice thereof, not later than two Business Days prior to such Payment Date, to the Issuer, the Trustee and the Initial Liquidity Facility Provider.

(j)         Calculation of Net Sale Proceeds.  Not later than 12:00 noon (New York City time) on the fourth Business Day prior to each Payment Date in respect of which the Net Sale Proceeds of one or more Asset Dispositions are to be applied in accordance with Section 3.09, the Issuer shall cause the Administrative Agent, based on information known to it or Relevant Information provided to it, to calculate the following with respect to Net Sale Proceeds on each Series of Notes due on such Payment Date and the amounts

-  92  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

distributable to the Initial Liquidity Facility Provider and the Servicer on such Payment Date, as applicable:

(i)         the Asset Disposition Accrual Amount in respect of each Asset Disposition, if any;

(ii)        the Allocable Series Amount and Allocable Debt Balance in respect of each such Asset Disposition and the allocation thereof among the Series of Notes;

(iii)       the amount of any Hedge Termination Payments in respect of each Asset Disposition, if any;

(iv)       the balance of any Disposition Fees in respect of each Asset Disposition; and

(v)        the Disposition Premium, if any.

(k)        Calculation of Excess Proceeds.  Not later than 12:00 noon (New York City time) on the third Business Day prior to each Payment Date in respect of which Excess Proceeds are to be applied in accordance with Section 3.09(a), the Issuer shall cause the Administrative Agent, based on information known to it or Relevant Information provided to it, to calculate the Excess Proceeds Series Payment for each Series of Notes due on such Payment Date.

Section 3.08    Payment Date First Step Withdrawals and Transfers.  Two Business Days prior to each Payment Date, the Administrative Agent shall direct the Operating Bank to make, on such Payment Date, to the extent of funds on deposit in the Accounts, the following withdrawals from and transfers to the Accounts in each case as specified in a Written Notice of the Administrative Agent to the Trustee, the Security Trustee and the Operating Bank:

(a)        transfer the net proceeds of any Refinancing of a Series of Notes from the Refinancing Account to any Cash Collateral Account established for the related Refinancing Notes (up to the Required Amount therefor in accordance with Section 3.03) and the balance to the applicable Series Accounts, in each case in accordance with Sections 2.10(b) and 5.02(c);

(b)        transfer any amounts on deposit in the Defeasance/Redemption Account in respect of any Redemption that is not a Refinancing to the applicable Series Accounts;

(c)        transfer from each Lessee Funded Account to the Collections Account any available Segregated Funds that are no longer required to be maintained (including by way of the termination of the applicable Leases) in a segregated account under the applicable Leases, and to the Expense Account amounts from the applicable Lessee Funded Account that are being repaid to the applicable Lessees;

(d)        if so directed by the Certificate Holders, withdraw from the Security Deposit Account and transfer to the Expense Account, the applicable Series Account, the

-  93  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

Liquidity Facility Reserve Account or the Hedge Termination Payment Account, as applicable, prior to making any transfers pursuant to Section 3.08(e), an amount not to exceed the Available Security Deposit Amount for such Payment Date for application to (i) first, the Required Expenses Shortfall (if any) on such Payment Date, (ii) second, in no order of priority inter se, but pro rata (A) the Series A Interest Shortfall (if any) on such Payment Date and (B) the Senior Hedge Payment Shortfall (if any) on such Payment Date, (iii) third, the Series B Interest Shortfall (if any) on such Payment Date, (iv) fourth, in no order of priority inter se, but pro rata (A) to the Liquidity Facility Reserve Account, such amount so that the amount on deposit in such Account is equal to the Required Amount therefor and (B) to the Initial Liquidity Facility Provider, any Credit Facility Advance Obligations, (v) fifth, the Designated Shortfall (if any) (but not including any shortfall paid pursuant to the preceding clause second) with respect to the Scheduled Principal Payment Amount on the Series A Notes for such Payment Date and (vi) sixth, the Designated Shortfall (if any) (but not including any shortfall paid pursuant to the preceding clause third) with respect to the Scheduled Principal Payment Amount on the Series B Notes for such Payment Date, in each case pursuant to Section 3.01(e)(iii); provided that the amount described in Section 3.08(d)(iv) shall be determined after giving effect to any funds to be applied pursuant to Sections 3.08(d)(i), (ii) and (iii) and the application of any drawings from the Liquidity Facility Reserve Account on such Payment Date;

(e)        if there are one or more Shortfalls on such Payment Date, after taking into consideration any transfers made pursuant to Section 3.08(d),  (i) withdraw Facility Drawings from the Initial Liquidity Payment Account and apply the same in accordance with Section 3.14(b) or (ii) withdraw amounts from the Liquidity Facility Reserve Account and apply the same in accordance with Section 3.01(j), as applicable;

(f)         transfer from the Collections Account to the relevant Lessee Funded Accounts the amount of any Segregated Funds then on deposit in the Collections Account;

(g)        withdraw from the Maintenance Reserve Account and deposit in the Collections Account the amount, if any, of the Lessee Reimbursements included in Expenses for such Payment Date;

(h)        transfer from any Account (other than the Collections Account, the Initial Liquidity Payment Account, the Liquidity Facility Reserve Account, the Asset Replacement Account and the Asset Purchase Account) to the Collections Account the amount of Investment Earnings (net of losses and investment expenses), if any, on investments of funds on deposit therein during the preceding Interest Accrual Period, except that (i) earnings on any portion of the funds on deposit in any Account required under the terms of the related Lease to be repaid to the related Lessee shall be retained therein and (ii) in the case of the Asset Purchase Account, any earnings on the purchase price funds on deposit in the Asset Purchase Account shall be retained therein for application in accordance with Section 3.05;

(i)         transfer from the Asset Purchase Account to the Collections Account the amount of any Rental Payments described in Section 3.04(l) that have not already been so transferred;

-  94  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(j)         transfer to the Expense Account, as directed by the Administrative Agent, such amounts as are required to pay any fees, expenses or other amounts (including Taxes) required to maintain the Issuer in good standing under United States federal law and the laws of the State of Delaware;

(k)        [Reserved];

(l)         [Reserved];

(m)       withdraw the Balance available in the DSCR Cash Trap Account and deposit such amounts in the Collections Account; provided that, so long as no Event of Default or Rapid Amortization Event shall have occurred and is continuing, if a DSCR Cash Trap Event has occurred and is continuing and the Certificate Holders shall have notified the Trustee and the Administrative Agent in writing no later than five Business Days prior to such Payment Date that they elect to apply all or a portion of the Balance in the DSCR Cash Trap Account to the Outstanding Principal Balance of the Series A Notes or, if no Series A Notes are Outstanding, the Outstanding Principal Balance of the Series B Notes on such Payment Date, in each case after giving effect to all other distributions made in accordance with Section 3.09 on such Payment Date (any such principal payments, the “Cash Trap Principal Payments”), withdraw an amount up to the Balance available in the DSCR Cash Trap Account and deposit such amounts in the applicable Series Account;

(n)        after the giving of a Default Notice, during the continuation of an Acceleration Default or following the Interest Accrual Period in which an Asset Disposition occurs with respect to the last remaining Asset, transfer any amounts remaining in the relevant Lessee Funded Account (other than amounts required to be maintained in such account pursuant to the terms of the related Lease or Asset Agreement) into the Collections Account; and

(o)        any other deposit, transfer, withdrawal or payment not described in paragraphs (a) through (n) of this Section 3.08 but required to be made pursuant to Section 3.07(e).

Section 3.09    Payment Date Second Step Withdrawals.  (a) Subject to Section 3.09(b), on each Payment Date, after the withdrawals and transfers provided for in Section 3.08 have been made, the Administrative Agent shall direct the Operating Bank to distribute from the Collections Account in each case as specified in a Written Notice of the Administrative Agent to the Trustee, the Security Trustee and the Operating Bank at least two Business Days prior to such Payment Date, the amounts set forth below in the order of priority set forth below but, in each case, only to the extent that funds are available for such distributions and to the extent that all Prior Ranking Amounts then required to be paid have been paid.  All payments of Available Collections to be made to or for the account of Holders of Notes pursuant to this Section 3.09 shall be made through a direct transfer of funds to the applicable Series Account with respect to the applicable Series of Notes.

-  95  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(i)         to the Expense Account, an amount such that the amount on deposit therein is equal to the Required Expense Amount for such Payment Date, for payment of Expenses (including, without limitation, any amount payable by any Issuer Group Member to any Lessee pursuant to a Lease, Indemnification Amounts (other than Excess Indemnification Amounts), Trustee Fees and all Service Provider Fees (including the Senior Rent Based Fees and Disposition Fees,  but excluding the Subordinated Rent Based Fees), but excluding, for the avoidance of doubt, the portion of any Maintenance and Modification Expenses funded from the Maintenance Reserve Account, and excluding any Credit Facility Advance Obligations) that are due and payable or reimbursable on such Payment Date and included in the Required Expense Amount for such Payment Date, with the balance to be retained in the Expense Account, in each case less the amount of any withdrawals from the Liquidity Facility Reserve Account or any Facility Drawings in respect of the Required Expenses Shortfall for such Payment Date withdrawn or paid (as applicable) on or before such Payment Date in respect of such Payment Date;

(ii)        in no order of priority inter se, but pro rata as to the amounts described in clauses (A) and (B) as follows:  (A) to the Series Account for the Series A Notes, the Interest Amount on such Series A Notes (other than any Step-Up Interest Amount) and (B) pro rata, to any Eligible Hedge Counterparties, an amount equal to any Senior Hedge Payments due from any Issuer Group Member pursuant to any Currency Hedge Agreement, less in the case of clauses (A) and (B) the amount of any withdrawals from the Liquidity Facility Reserve Account or any Facility Drawings in respect of the Series A Interest Shortfall or the Senior Hedge Payment Shortfall (as applicable) for such Payment Date withdrawn or paid (as applicable) on or before such Payment Date in respect of such Payment Date;

(iii)      to the Series Account for the Series B Notes, the Interest Amount on such Series B Notes  (other than any Step-Up Interest Amount), less the amount of any withdrawals from the Liquidity Facility Reserve Account or any Facility Drawings in respect of the Series B Interest Shortfall for such Payment Date withdrawn or paid (as applicable) on or before such Payment Date in respect of such Payment Date;

(iv)       first, to any Persons providing any Eligible Credit Facilities,  pro rata inter se,  any Credit Facility Advance Obligations consisting of interest and second,  in no order of priority inter se, but pro rata as to the amounts described in clauses (A) and (B) as follows:  (A) to the Liquidity Facility Reserve Account (following a Downgrade Drawing, a Final Drawing or a Non-Extension Drawing), such amount so that the amount on deposit in such Account is equal to the applicable Required Amount therefor, and (B) to any Persons providing any Eligible Credit Facilities, any other Credit Facility Advance Obligations payable to such Persons under the terms of their respective Eligible Credit Facilities and, to the extent any such Eligible Credit Facility consists of a Cash Collateral Account (other than the Liquidity Facility Reserve Account), such amount so that the amount 

-  96  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

on deposit in each such Account is equal to the applicable Required Amount therefor;

(v)        so long as no Rapid Amortization Event has occurred and is continuing, to the Series Account for the Series A Notes, an amount equal to the Scheduled Principal Payment Amount of the Series A Notes for such Payment Date;

(vi)       so long as no Rapid Amortization Event has occurred and is continuing, to the Series Account for the Series B Notes, an amount equal to the Scheduled Principal Payment Amount of the Series B Notes for such Payment Date;

(vii)      to the Security Deposit Account, an amount equal to the Additional Security Deposit Reserve Amount;

(viii)    to the Maintenance Reserve Account, an amount equal to the Additional Maintenance Reserve Amount;

(ix)       so long as no Rapid Amortization Event has occurred and is continuing, first, to the Series Account for the Series A Notes, the Excess Proceeds Series Payment for the Series A Notes for such Payment Date and, second, to the Series Account for the Series B Notes, the Excess Proceeds Series Payment for the Series B Notes for such Payment Date;

(x)        if a DSCR Cash Trap Event has occurred and is continuing, but no Rapid Amortization Event has occurred and is continuing, to the DSCR Cash Trap Account, all remaining amounts;

(xi)       if a Rapid Amortization Event has occurred and is continuing, to the Series Account for the Series A Notes, (a) first, an amount equal to the Scheduled Principal Payment Amount of the Series A Notes for such Payment Date and (b) second,  an amount equal to the Outstanding Principal Balance of such Series A Notes;

(xii)      if a Rapid Amortization Event has occurred and is continuing, to the Series Account for the Series B Notes, (a) first, an amount equal to the Scheduled Principal Payment Amount of the Series B Notes for such Payment Date and (b) second,  an amount equal to the Outstanding Principal Balance of such Series B Notes;

(xiii)     after the Expected Final Payment Date, to the Series Account for the Series A Notes, the Step-Up Interest Amount for the Series A Notes;

(xiv)     after the Expected Final Payment Date, to the Series Account for the Series B Notes, the Step-Up Interest Amount for the Series B Notes;

(xv)      to the Servicer, the Subordinated Rent Based Fees;

-  97  -

[**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request.


 

Confidential Treatment Requested:  Information for which confidential treatment has been requested is omitted and is noted with asterisks.  An unredacted version of this document has been filed separately with the Securities and Exchange Commission.

 

(xvi)     in no order of priority