Exhibit 10.45
ADMINISTRATIVE AGENCY AGREEMENT
among
WILLIS ENGINE SECURITIZATION TRUST,
WILLIS LEASE FINANCE CORPORATION,
DEUTSCHE BANK TRUST COMPANY AMERICAS
and
THE ENTITIES LISTED ON APPENDIX A
HERETO
Dated as of August 9, 2005
Table of Contents
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ADMINISTRATIVE AGENCY AGREEMENT (as
amended, modified or supplemented from time to time in
accordance with the terms hereof, the “
Agreement ”) dated as of August 9, 2005, among Willis
Engine Securitization Trust (“ WEST ”), a
Delaware statutory trust, Willis Lease Finance Corporation, a
Delaware corporation, (together with its successors and permitted
assigns, the “ Administrative Agent ” or “
Willis ”), Deutsche Bank Trust Company Americas, a New
York banking corporation, not in its individual capacity but solely
as trustee under the Indenture (the “ Indenture
Trustee ”), and the subsidiaries and owner trusts in
which WEST retains an interest, each of which is listed on Appendix
A hereto (collectively, the “ Subsidiaries
”).
For the consideration set forth
herein and other good and valuable consideration, the receipt of
which is hereby acknowledged, the Administrative Agent, the
Indenture Trustee, WEST and the Subsidiaries agree as
follows:
ARTICLE 1
DEFINITIONS
SECTION
1.01 Definitions . Capitalized terms
used herein have the meanings assigned thereto in Schedule A
hereto. Unless otherwise defined herein, all capitalized
terms used but not defined herein have the meanings assigned to
such terms in the Indenture.
ARTICLE 2
APPOINTMENT; ADMINISTRATIVE SERVICES
SECTION
2.01 Appointment . (a) WEST
and each Subsidiary hereby appoints the Administrative Agent as the
provider of the general services set forth in Section 2.03,
the accounting services set forth in Section 2.05 and the
additional administrative services set forth in Section 2.06
(together with the Bank Account Management Services referred to in
subsection (b) below, the “ Administrative
Services ”) to WEST and each Subsidiary on the terms and
subject to the conditions set forth in this Agreement.
(b)
WEST hereby directs the Indenture Trustee to appoint, and the
Indenture Trustee, on behalf of the Secured Parties, hereby
appoints, the Administrative Agent as the provider of the bank
account management and calculation services set forth in
Section 2.04 and in the Indenture (the “ Bank Account
Management Services ”) and delegates to the
Administrative Agent its authority to administer the Accounts and
to otherwise perform the Bank Account Management Services on behalf
of WEST and each Subsidiary on the terms and subject to the
conditions set forth in this Agreement.
(c)
The Administrative Agent hereby accepts such appointments and
agrees to perform the Administrative Services on the terms and
subject to the conditions set forth in this Agreement.
(d)
The Administrative Services do not include any service or matter
which is the responsibility of the Servicer under the Servicing
Agreement, the Back-Up Servicer under the Back-Up Servicing
Agreement, the Back-Up Administrative Agent under the Back-Up
Administrative Agency Agreement, or the company secretaries of WEST
or any Subsidiary.
SECTION
2.02 Limitations . (a) The
Administrative Agent agrees (with respect to the Administrative
Services agreed by it to be carried out hereunder) to perform the
Administrative Services in a manner that does not violate the terms
of the articles of incorporation, by-laws, trust agreements or
similar constitutional documents of WEST and each Subsidiary and
all agreements to which WEST or any Subsidiary is a party
(including all Related Documents), provided that copies of
such documents and agreements have been delivered or are otherwise
available to the Administrative Agent and, without prejudice to the
foregoing, not to enter into, on behalf of WEST or any Subsidiary,
any commitments, loans or obligations or charge, mortgage, pledge,
encumber or otherwise restrict or dispose of the property or assets
or expend any funds of WEST or any Subsidiary save (i) as
expressly permitted by the terms of this Agreement or
(ii) upon the express direction of the Controlling Trustees,
subject to the limitations in Section 2.02(b)
hereof.
(b)
In connection with the performance of the Administrative Services
and its other obligations hereunder, the Administrative Agent shall
(i) have no responsibility for the failure of any other Person
(other than any Person acting as a delegate of the Administrative
Agent under this Agreement pursuant to Section 9.01 hereof)
providing services directly to WEST and the Subsidiaries to perform
its obligations to WEST and the Subsidiaries, (ii) in all
cases be entitled to rely upon the instructions of WEST and the
Subsidiaries with respect to any Administrative Services other than
the Bank Account Management Services or upon the instructions of
the Indenture Trustee on behalf of WEST and the Subsidiaries with
respect to any Bank Account Management Services, and upon notices,
reports or other communications made by any Person providing
services to WEST and the Subsidiaries (other than any Affiliate of
the Administrative Agent) and shall not be responsible for the
accuracy or completeness of any such notices, reports or other
communications except to the extent that the Administrative Agent
has actual notice of any matter to the contrary and (iii) not
be obligated to act in any manner which is reasonably likely to
(A) violate any Applicable Law, (B) lead to an
investigation by any Governmental Authority or (C) expose the
Administrative Agent to any liabilities for which, in the
Administrative Agent’s good faith opinion, adequate bond or
indemnity has not been provided.
(c)
Subject to the limitations set forth in Section 2.02(a), in
connection with the performance of the Administrative Services, the
Administrative Agent is expressly authorized by WEST and each
Subsidiary, (i) to engage in and conclude commercial
negotiations with the Persons providing services to WEST and the
Subsidiaries, including, without limitation, where the context
admits, the Servicer (unless the Servicer is Willis), the Back-Up
Servicer, the Back-Up Administrative Agent and other Persons
performing similar services or advising WEST and the Subsidiaries
(the “ Service Providers ”) and with their
Representatives, and (ii) after such consultation, if any, as
the Administrative Agent deems necessary under the circumstances,
to act on behalf of WEST or such Subsidiary with regard to any and
all matters requiring any action on the part of the Administrative
Agent under the Servicing Agreement or Back-Up Servicing Agreement,
as the case may be. WEST and each Subsidiary agrees that it
will give the Administrative Agent, the Servicer, the Back-Up
Servicer and the Indenture Trustee 60 days’ prior written
notice of any limitation or modification of the authority set forth
in this Section 2.02(c).
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(d)
The Administrative Agent may rely on the advice of any law firm,
accounting firm, risk management adviser, tax adviser, insurance
adviser, technical adviser, aircraft engine appraiser or other
professional adviser appointed by WEST and any Person appointed in
good faith by the Administrative Agent and shall not be liable for
any claim by WEST or any Subsidiary to the extent that it was
acting in good faith upon the advice of any such
Persons.
(e)
Notwithstanding the appointment of, and the delegation of authority
and responsibility to, the Administrative Agent hereunder, WEST and
each Subsidiary shall continue to have and exercise through its
respective Controlling Trustees real and effective control and
management of all matters related to its ongoing business
operations, assets and liabilities, subject to matters that are
expressly the responsibility of the Administrative Agent in
accordance with the terms of this Agreement, and WEST and each
Subsidiary shall at all times conduct its separate ongoing business
in such a manner as the same shall at all times be readily
identifiable from the separate business of the Administrative
Agent, and neither WEST nor any Subsidiary is merely lending its
name to decisions taken by others.
SECTION
2.03 General Services . The
Administrative Agent hereby agrees to perform and provide the
following general services for WEST and each Subsidiary and their
respective governing body:
(a) General Services . The
Administrative Agent shall provide the following general
services:
(i)
Board papers ; except in such instances in which such
preparation and distribution is required to be done by another
party by Applicable Law, preparation and distribution, at such time
as shall be agreed with the Administrative Agent, of draft trustees
or board meeting agendas and any other papers required in
connection with such meetings;
(ii)
Books, records and filings ; maintaining, or monitoring the
maintenance of, the books, records, registers and associated
filings of WEST and each Subsidiary, other than those required to
be maintained by the Delaware Trustee;
(iii)
General administrative assistance ; providing any
administrative assistance reasonably necessary to assist WEST or
any Subsidiary in carrying out its obligations, including providing
timely notice of decisions to be made, or actions to be taken,
under any of the Related Documents; provided , that if the
obligations of WEST or any Subsidiary under any of the Related
Documents are only required upon receipt of notice to the
Administrative Agent, then the Administrative Agent shall provide
such administrative assistance only to the extent it has received
such notice or is otherwise aware of such obligations;
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(iv)
Lease, sale and capital investment decisions ; assisting
WEST and the Subsidiaries in making its aircraft engine lease, sale
and capital investment decisions including to the extent
(A) such assistance is not contemplated to be provided by the
Servicer or Back-Up Servicer, as the case may be, pursuant to the
Servicing Agreement or Back-Up Servicing Agreement, as the case may
be, and (B) such decisions are not required by any Related
Document or Applicable Law to be made by the Controlling
Trustees;
(v)
Professional advisors ; procuring, when the Administrative
Agent considers in good faith that it is appropriate or necessary
to do so, and coordinating the advice of, legal counsel,
accounting, tax and other professional advisers at the expense of
WEST or the relevant Subsidiary, to assist WEST or such Subsidiary
in carrying out its obligations, and supervising, in accordance
with instructions from WEST or such Subsidiary, such legal counsel
and other advisers;
(vi)
Appraisal services ; as frequently as is necessary for WEST
and each Subsidiary to comply with its obligations under the
Related Documents, arranging for the Appraisals to be made and
providing the Appraisals to the relevant Service
Providers;
(vii)
Servicer and Back-Up Servicer ; providing assistance to the
Servicer or Back-Up Servicer, as the case may be, with respect to
matters for which such assistance is contemplated by the Servicing
Agreement or Back-Up Servicing Agreement, as the case may be, or is
reasonably necessary in order for the Servicer or Back-Up Servicer,
as the case may be, to perform its duties in accordance with the
Servicing Agreement or Back-Up Servicing Agreement, as the case may
be; and
(viii)
Supervisory services ; supervising outside counsel and other
professional advisers and coordinating legal and other professional
advice received by WEST and the Subsidiaries other than with
respect to any service or matter which is the responsibility of the
Servicer or Back-Up Servicer, as the case may be, under the
Servicing Agreement or Back-Up Servicing Agreement, as the case may
be.
(b)
Monitoring Services . The
Administrative Agent shall monitor the performance of the other
Service Providers and report on such performance to the Controlling
Trustees on a quarterly basis, including:
(i)
to the
extent not provided for in the relevant agreement, assisting in
establishing standards for performance evaluation and compliance
with the terms of such agreement;
(ii)
assisting in evaluating the performance and compliance of each
Service Provider against its obligations under the relevant
agreement or such standards as are established pursuant to
subsection 2.03(b)(i) above; and
(iii)
implementing any other request by WEST and the Subsidiaries to
evaluate the performance of the Service Providers under the
relevant agreements with WEST and the Subsidiaries, which shall be
at the expense of WEST and the Subsidiaries, to the extent services
are required that are materially greater in scope than those being
provided pursuant to the express terms of this
Agreement.
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(c) Rating Agency Services .
To the extent that (x) the following services are not
provided by the other Service Providers, and (y) the relevant
information is provided to the Administrative Agent by WEST and the
Subsidiaries or the Service Providers or is otherwise available to
the Administrative Agent, acting as liaison with the Rating
Agencies with respect to the rating impact of any decisions on
behalf of WEST and the Subsidiaries, the Administrative Agent shall
perform the following supplemental services:
(i)
Portfolio information ; advising the Rating Agencies from
time to time of any material changes in the Portfolio, coordinating
with WEST and the Subsidiaries and the Service Providers and
providing the Rating Agencies with such statistical and other
information as they may from time to time request (such information
to be provided at the expense of WEST and the Subsidiaries to the
extent that providing such information requires services that are
materially greater in scope than those being provided pursuant to
the express terms of this Agreement); and
(ii)
Notes information ; providing the Rating Agencies with the
Outstanding Principal Balance of each Series of Notes and
loan-to-value ratios.
(d) Documentation and Letters
of Credit . To the extent that the following services
are not provided by the Servicer or Back-Up Servicer, as the case
may be, providing assistance to WEST and the Subsidiaries in
procuring Lessee consents, novations and other documentation and in
taking all other actions necessary in connection with the reissue
or amendment of letters of credit.
(e) Closing Services . To the
extent that the following services are not provided by the Servicer
or Back-Up Servicer, as the case may be, providing assistance to
WEST and the Subsidiaries in (1) the re-lease and/or sale of
the Engines, (2) the acquisition of Additional Engines and
(3) financing transactions relating to WEST and the
Subsidiaries after the Initial Closing Date, including:
(i)
Coordination ; coordinating with the Service Providers,
legal and other professional advisers to monitor the protection of
the interests and rights of WEST and the Subsidiaries, coordinating
the execution of documentation required at closings, and assisting
in the management of the closing process so that closings will
occur on a timely basis;
(ii)
Closing support ; providing qualified personnel to attend
and provide administrative support (including the preparation of
any certificates required pursuant to the Servicing Agreement or
Back-Up Servicing Agreement, as the case may be) at the closings in
connection with sales or re-leases of the Engines and the
acquisition of any Additional Engines, if required (it being
understood that the Administrative Agent will not be obligated to
provide legal counsel or legal or technical services to WEST and
the Subsidiaries);
(iii)
Documentation support ; providing all necessary
administrative support to complete any documentation and other
related matters; and
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(iv)
Appointments ; appointing counsel and other appropriate
professional adviser s to represent WEST and the
Subsidiaries in connection with any such closings.
(f) Filings and Reports . Based
on information produced or provided to it, the Administrative Agent
shall cause all reports to be prepared, filed and/or distributed by
WEST or any Subsidiary or its governing bodies, with the assistance
of outside counsel and auditors, if appropriate,
including:
(i)
Investor reports ; reports required or recommended to be
distributed to investors (including reports substantially in the
form of Exhibit N to the Indenture, which shall be provided to the
Indenture Trustee by the fifth Business Day before any Payment Date
or any other date for distribution of any payments with respect to
any Series of Notes then Outstanding), and in connection therewith,
managing investor relations on behalf of WEST and the Subsidiaries
with the assistance of outside counsel and auditors, if
appropriate, and preparing or arranging for the preparation and
distribution of such reports at the expense of WEST and the
Subsidiaries; and
(ii)
Governmental reports ; reports required to be filed with any
Governmental Authorities, and in connection therewith, preparing on
behalf of WEST or any Subsidiary or arranging for the preparation
of and arranging for the filing of any reports required to be filed
with any other entity in order for WEST or such Subsidiary not to
be in violation of Applicable Law or any applicable
covenants.
(g) Amendments . The Administrative
Agent shall provide the following services with respect to
amendments of the Related Documents and the Leases:
(i)
Related Documents ; reporting on the substance of any
proposed amendments to any Related Documents;
(ii)
Execution and delivery of amendments ; to the extent
requested by WEST and the Subsidiaries or by the parties to Related
Documents and subject to approval by the appropriate Controlling
Trustees, coordinating with the legal counsel of WEST and the
Subsidiaries, the other parties thereto and their counsel the
preparation and execution of any amendments to the Related
Documents (other than amendments relating to the Engines or the
Leases), and providing assistance in the implementation of such
amendments; and
(iii)
Lease amendments; to the extent reasonably requested by the
Servicer or Back-Up Servicer, as the case may be, coordinating and
providing assistance on behalf of WEST and the Subsidiaries with
such party and seeking to obtain appropriate approvals to take any
action which may be required to amend the terms of the
Leases.
(h) Lease Defaults . To the extent
reasonably requested by the Servicer or Back-Up Servicer, as the
case may be, the Administrative Agent shall coordinate and provide
assistance on behalf of WEST and the Subsidiaries with such party
and outside counsel in a Lessee default or repossession
situation.
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(i) Payment of Bills . The
Administrative Agent shall authorize payment of bills and expenses
(i) payable to legal and professional advisers authorized to
be engaged or consulted pursuant to this Agreement or
(ii) approved by the Controlling Trustees.
(j) Servicing Agreement;
Back-Up Servicing A greement . The
Administrative Agent shall provide assistance to WEST with respect
to matters for which action by WEST is required under the Servicing
Agreement or Back-Up Servicing Agreement, as the case may be, or
the Indenture, including such assistance that may be necessary for
WEST to:
(i)
comply with Sections 6.07, 7.05(a) and 7.06 of the Servicing
Agreement or Back-Up Servicing Agreement, as the case may
be;
(ii)
provide such instructions to the Servicer or Back-Up Servicer, as
the case may be, as such party may require in interpreting the
Indenture and the Concentration Limits;
(iii)
direct the Servicer or Back-Up Servicer, as the case may be, to
amend the minimum hull and liability insurance coverage amounts set
forth in Schedule 1.03(a) to
Schedule 2.02(a) to the Servicing Agreement or Back-Up
Servicing Agreement, as the case may be (“
Schedule 2.02(a) ”);
(iv)
direct the Servicer or Back-Up Servicer, as the case may be, as to
whether settlement offers received by such party with respect to
claims for damage or loss in excess of $500,000 with respect to an
Engine Asset are acceptable;
(v)
request periodic reports from the Servicer or Back-Up Servicer, as
the case may be, regarding insurance matters;
(vi)
provide the Servicer or Back-Up Servicer, as the case may be, with
such information as such party may reasonably request in connection
with the Concentration Limits and certify to such party that
proposed Engine-related transactions will not result in the
violation of such Concentration Limits;
(vii)
advise the Servicer or Back-Up Servicer, as the case may be, as
required by Schedule 2.02(a);
(viii)
direct the Servicer or Back-Up Servicer, as the case may be, to
arrange for the sale of an Engine Asset and certify to such party
that such sale complies with the terms of the Indenture;
(ix)
make any discretionary decisions, judgments or assumptions
necessary in connection with the preparation of any projections,
and provide the Servicer or Back-Up Servicer, as the case may be,
with any written policies and guidelines that such party shall
require in connection with such preparation; and
(x)
request information and assistance from the Servicer or Back-Up
Servicer, as the case may be, in regard to appraisals of Engine
Assets in accordance with Section 5.01 of
Schedule 2.02(a).
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(k) Events of Default . The
Administrative Agent shall inform the Controlling Trustees as soon
as is reasonably practicable if the Administrative Agent believes
that (i) net revenues generated by the Leases will be
insufficient to satisfy the payment obligations of WEST and the
Subsidiaries and (ii) an Event of Default will result from
such insufficiency, and advise the Controlling Trustees as to any
appropriate action to be taken (subject to the provisions of the
Related Documents) with respect to such insufficiency and cause the
actions directed by the Controlling Trustees to be implemented so
as to avoid an Event of Default, if it is possible to do
so.
(l) Restricted Cash Amounts
. The Administrative Agent shall advise the Controlling
Trustees, the Indenture Trustee and the Independent Controlling
Trustee as to the appropriate levels of the Senior Restricted Cash
Amount and the Junior Restricted Cash Amount;
(m) Letters of Credit . The
Administrative Agent shall determine whether it is necessary at any
time that WEST make a drawing under any back-up letter of credit of
which WEST is the beneficiary in accordance with the terms of the
applicable letter of credit agreement and the terms of the Related
Documents and, if so, administer such drawing on WEST’s
behalf.
SECTION
2.04 Bank Account Management
and Calculation Services . The
Administrative Agent hereby agrees to perform and provide the
following bank account management and calculation
services:
(a)
(i)
Operating Banks .
The Operating Bank shall be the Indenture Trustee, initially (as of
the Initial Closing Date) Deutsche Bank Trust Company Americas, and
such other Eligible Institutions as WEST shall designate in
accordance with the requirements of the Indenture.
(ii)
Maintenance of Accounts . The Administrative Agent
shall maintain each of the Accounts set forth on Schedule I hereto,
in each case in the manner described herein and in
Section 3.01 of the Indenture. The Administrative Agent
shall take all actions necessary to establish, and shall establish,
additional or replacement Accounts from time to time as required by
and in accordance with the terms of Section 3.01 of the
Indenture. In addition, the Administrative Agent shall take
all actions necessary to cause the Indenture Trustee to be granted,
to the extent possible, a security interest pursuant to
Section 2.01 of the Security Trust Agreement in the interest
of WEST and each Subsidiary in the cash balances from time to time
deposited in the Accounts.
(iii) Successor
Operating Bank . If any Operating Bank should change as a
result of (A) the resignation of the Indenture Trustee or
replacement of the Indenture Trustee by an Eligible Institution
pursuant to the terms of the Indenture, (B) the repayment in
full of the Series A Notes or (C) such Operating Bank’s
failure to meet the criteria necessary to qualify as an Eligible
Institution, the Administrative Agent, acting on behalf of the
Indenture Trustee, shall thereupon promptly establish replacement
Accounts as necessary at a successor Operating Bank and transfer
the balance of funds in each Account then maintained at the former
Operating Bank to such successor Operating Bank.
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(b) Description of Accounts
. (i) Accounts . The Administrative Agent
shall maintain at an Operating Bank in the name of WEST or the
applicable Subsidiary and pledged to the Indenture Trustee pursuant
to the Security Trust Agreement the following Accounts:
(A)
the Collections Account in accordance with Section 3.02 of the
Indenture.
(B) the
Engine Reserve Account in accordance with Section 3.06 of
the Indenture.
(C) the
Security Deposit Account in accordance with Section 3.07 of the
Indenture.
(D)
the Senior Restricted Cash Account in accordance with
Section 3.04 of the Indenture.
(E) the
Junior Restricted Cash Account in accordance with Section 3.05
of the Indenture.
(F) the
Expense Account in accordance with Section 3.08 of the
Indenture.
(G) the
Engine Acquisition Account in accordance with
Section 3.03 of the Indenture.
(H)
the Redemption/Defeasance Account in accordance with
Section 3.10 of the Indenture.
(I)
the Engine Replacement Account in accordance with
Section 3.11 of the Indenture.
(J)
the Series Accounts in accordance with Section 3.09 of
the Indenture.
(ii)
Bank Account Statements . The Administrative Agent
shall take all necessary steps to ensure that the Indenture
Trustee, as an Operating Bank, and each Operating Bank at which an
Account is located shall furnish as of the close of business on
each Determination Date a statement providing the then current
Balance of each applicable Account to the Indenture Trustee, WEST,
the Servicer or the Back-Up Servicer.
(iii)
Maintaining the Accounts . So long as any Secured
Obligations (as defined in the Security Trust Agreement) remain
Outstanding:
(A)
The Administrative Agent shall maintain, or cause to be maintained,
each Account in the name of the related Grantor (as defined
in the Security Trust Agreement) only with a bank (an “
Account Bank ”) that has entered into a letter
agreement in substantially the form of Exhibit C to the Security
Trust Agreement
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(or made such other arrangements as
are acceptable to the Administrative Agent and the Indenture
Trustee) with such Grantor and the Indenture Trustee (an “
Account Letter ”).
(B)
The Administrative Agent shall promptly instruct each Person
obligated at any time to make any payment to any Grantor for any
reason (an “ Obligor ”) to make such payment to
an Account meeting the requirements of clause 2.04(b)(iii)(A)
above.
(C)
Upon the termination of any Account Letter or other arrangement
with respect to the maintenance of an Account by any Grantor or any
Account Bank, the Administrative Agent shall immediately notify all
Obligors (as defined in the Security Trust Agreement) that were
making payments to such Account to make all future payments to
another Account meeting the requirements of
clause (A) above.
(c) Calculations . Pursuant to
Section 3.12 of the Indenture, the Administrative Agent shall,
at the times and in the manner set forth therein, determine or
calculate each of the amounts required to be determined or
calculated by it pursuant to Sections 3.12(a) through
(e) of the Indenture and determine any Stated Interest
Shortfall, Base Interest Shortfall, Net Stated Interest Shortfall,
Net Base Interest Shortfall, Series A Scheduled Payment Shortfall,
Series B Scheduled Payment Shortfall or Final Principal Payment
Shortfall pursuant to Section 3.12(d) of the
Indenture.
(d) Withdrawals and Transfers
. The Administrative Agent shall direct the Operating Bank in
writing to make the following withdrawals and transfers in
accordance with the terms of the Indenture:
(i)
Closing Date Deposits, Withdrawals and Transfers . On
the Initial Closing Date and each other Closing Date, as
applicable, the Administrative Agent shall make each of the
transfers described in Sections 3.03, 3.04, 3.05, 3.06, 3.07 and
3.08 of the Indenture in accordance with such respective
Section.
(ii)
Interim Deposits and Withdrawals . From time to time,
the Administrative Agent shall make the withdrawals, deposits and
transfers provided for in Sections 3.02, 3.06, 3.07 and 3.08 of the
Indenture in accordance with such respective Section.
(iii) Payment
Date Withdrawals and Transfers . On each Payment Date,
each Delivery Date and each Funding Date, as applicable, the
Administrative Agent shall instruct the Indenture Trustee to make
the withdrawals and transfers provided for in Sections 3.02, 3.03,
3.04, 3.05, 3.06, 3.07, 3.08, 3.09, 3.11 and 3.13(a) of the
Indenture in accordance with such respective Section.
(iv) Event of
Default (Prior to a Collateral Liquidation Notice) Withdrawals and
Transfers . Notwithstanding anything to the contrary
contained in Section 2.04(d) hereof, if an Early
Amortization Event or an Event of Default (or a combination of
both) has occurred and is then continuing, the Administrative Agent
shall
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distribute funds on deposit in the
Collections Account in the amounts and in the order of priority
provided for in Section 3.13(b) of the
Indenture.
(v)
Event of Default (After a Collateral Liquidation Notice)
Withdrawals and Transfers . Notwithstanding
anything to the contrary contained in Section 2.04(d) hereof,
following the delivery of a Collateral Liquidation Notice to the
Indenture Trustee, the Administrative Agent shall distribute funds
on deposit in the Collections Account in the order of priority
provided for in Section 3.13(c) of the Indenture.
(vi)
Defeasance/Redemption Transfers . The Administrative
Agent shall transfer from time to time amounts on deposit in the
Redemption Account to the applicable Series Account in connection
with either the redemption of any Series of Notes in accordance
with Sections 3.10(c) and 3.16 of the Indenture or the
exercise of the defeasance provisions set forth in Article XII
of the Indenture.
(vii)
Currency Conversions . If and to the extent that WEST
incurs any payment obligation or other cost in a currency other
than U.S. dollars, the Administrative Agent shall, to the extent
practicable, convert U.S. dollars into such other currency at the
then prevailing market rate as necessary to discharge such payment
obligations or costs, at the expense of WEST in accordance with
Section 13.06 of the Indenture.
(e) Ratings and the Accounts
. Each Account shall at all times be maintained at an
Operating Bank or another Eligible Institution selected by the
Administrative Agent in accordance with the Security Trust
Agreement and the Indenture.
(f) Records . The Administrative Agent
shall provide such information relating to the Accounts to the
Indenture Trustee or the Rating Agencies as any of them may
reasonably request from time to time.
(g) Reports . The Administrative Agent
shall provide the reports and other information required to be
provided by it pursuant to Section 2.13 of the Indenture,
together with copies of such additional reports or other
information as the Indenture Trustee may reasonably request, all in
accordance with the terms of the Indenture.
(h)
Investment Directions
Upon written instructions from WEST, the Administrative
Agent shall provide the directions to the Indenture Trustee to
invest the funds on deposit in the Accounts in Permitted
Investments as contemplated by Section 3.01(d) of the
Indenture.
SECTION
2.05 Accounting Services . The
Administrative Agent hereby agrees to perform and provide the
following accounting services:
(a) Budgeting Process . The
Administrative Agent shall, in accordance with the procedures,
policies and guidelines described below and on the basis of
information generated by the Administrative Agent and information
provided by the Service Providers and WEST and the
Subsidiaries:
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(i)
in respect of the Initial Period and in respect of each One Year
Period after the Initial Period during the term of the Servicing
Agreement or Back-Up Servicing Agreement, as the case may be, and
on behalf of WEST and the Subsidiaries, prepare and deliver to the
Servicer or the Back-Up Servicer, as the case may be, no later than
the November 30 immediately preceding the commencement of each
Year, proposed Operating Budgets and Asset Expenses Budgets for
each such period together with reasonably detailed supporting
information and the assumptions underlying such proposed Operating
Budgets or Asset Expenses Budgets, such proposed Operating Budgets
and Asset Expenses Budgets to be based, in part, on the information
provided by the Servicer or Back-Up Servicer, as the case may be,
pursuant to Section 7.05(c) of the Servicing Agreement or
Back-Up Servicing Agreement, as the case may be, and present them
to WEST and the Subsidiaries for approval;
(ii)
on behalf of WEST and the Subsidiaries, review, discuss and
negotiate with the Servicer or Back-Up Servicer, as the case may
be, such proposed Operating Budgets and Asset Expenses Budgets, and
make such adjustments proposed by such party as the Administrative
Agent shall deem appropriate; and
(iii)
submit to the Servicer or Back-Up Servicer, as the case may be, no
later than the December 20 immediately preceding the commencement
of such Year the Budgets together with reasonably detailed
information regarding WEST’s underlying
assumptions.
(b) Management Accounts
and Financial Statem ents . The Administrative
Agent shall, in accordance with the procedures, policies and
guidelines described below and on the basis of information
generated by the Administrative Agent and information provided by
the Service Providers, WEST and the Subsidiaries:
(i)
establish an accounting system and maintain the accounting ledgers
of and for WEST and each Subsidiary in accordance with U.S. GAAP,
unless otherwise required by Applicable Law and specified by the
Controlling Trustees (collectively, the “ Ledgers
”);
(ii)
prepare and deliver (within 40 days after the end of the relevant
Quarter or, if the end of such Quarter coincides with the end of a
Year, within 75 days after the end of such Year), with respect to
WEST and the Subsidiaries, on a consolidated basis, a draft balance
sheet and draft statement of changes in shareholders’ equity
or residual trust interest as of the end of each Quarter and Year,
as applicable, and draft statements of income and cash flows for
each such Quarter and Year, as applicable (the “
Consolidated Quarterly Draft Accounts ”);
(iii)
to the extent required by Applicable Law, prepare and deliver
(within 60 days after the end of the relevant Quarter or, if the
end of such Quarter coincides with the end of a Year, within 120
days after the end of such Year), with respect to WEST and the
Subsidiaries on a combined basis and such of WEST and the
Subsidiaries as are specified by the Controlling Trustees in a
written schedule provided to the Administrative Agent (which
schedule may be updated by the Controlling Trustees to
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the Administrative Agent delivered
at least 30 days prior to the commencement of the relevant
Quarter), on a consolidating company-by-company basis, a draft
balance sheet and statement of changes in shareholders’
equity or residual trust interest as of the end of each Quarter and
Year, as applicable, with respect to WEST or such Subsidiary and
draft statements of income and cash flows for such Quarter and
Year, as applicable (the “ Consolidating Quarterly Draft
Accounts ” and, together with the Consolidated Quarterly
Draft Accounts, the “ Draft Accounts
”);
(iv)
arrange and manage the quarterly review of the Draft Accounts by
the auditors of WEST and the Subsidiaries;
(v)
arrange for, coordinate with and assist the auditors of WEST and
the Subsidiaries in preparing annual audits;
(vi)
prepare or arrange for the preparation of and arrange for the
filing of the tax returns of WEST and the Subsidiaries in
conjunction with tax advisers of WEST and the Subsidiaries after
submission to the Controlling Trustees to the extent required by
the Controlling Trustees or Applicable Law;
(vii)
liaise with the Servicer or Back-Up Servicer, as the case may be,
for the purpose of preparing the monthly reports in accordance with
Sections 8.01 and 8.02 of Schedule 2.02(a) of the
Servicing Agreement or Back-Up Servicing Agreement, as the case may
be; and
(viii)
compare the expected cash flows of WEST and the Subsidiaries and
the Budgets to actual results;
provided, however, that WEST and the Subsidiaries shall retain
responsibility for the Ledgers and Draft Accounts, including all
discretionary decisions and judgments relating to the preparation
and maintenance thereof, and WEST and the Subsidiaries shall retain
responsibility for its financial statements.
(c) Accounting Standards .
The Administrative Agent shall prepare the Draft Accounts in
accordance with U.S. GAAP unless otherwise required by Applicable
Law and specified by the Controlling Trustees. In connection
with the preparation of the Consolidated Quarterly Draft Accounts,
the Controlling Trustees will provide to the Administrative Agent,
at such times as the Administrative Agent may require, a review
report (as defined by the Statements on Standards for Accounting
and Review Services issued by the American Institute of Certified
Public Accountants) of the independent public accountants of WEST
and the Subsidiaries with respect to the financial statements of
WEST and the Subsidiaries for, or as of the end of, such Quarter,
including in such report such accountants’ statement that,
based on its review of such financial statements, it is not aware
of any material modifications that should be made to such financial
statements in order for them to be in conformity with U.S.
GA
