SERIES A2 NOTE PURCHASE AND LOAN AGREEMENTNote Purchase Agreement |
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Exhibit 10.37
EXECUTION VERSION
REDACTED COPY
Portions of this Exhibit 10.37 have been omitted pursuant to a confidential treatment request. The omitted material has been filed separately with the Securities and Exchange Commission.
WILLIS ENGINE SECURITIZATION TRUST, Issuer
and
WILLIS LEASE FINANCE CORPORATION,
and
FORTIS CAPITAL. and HSH NORDBANK AG, as Series A2 Note Holders
SERIES A2 NOTE PURCHASE AND LOAN AGREEMENT
Dated as of August 9, 2005
SERIES A2 NOTES
TABLE OF CONTENTS
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SERIES A2 NOTE PURCHASE AND LOAN AGREEMENT (“ Series A2 Note Purchase Agreement ”) dated as of August 9 2005, among WILLIS ENGINE SECURITIZATION TRUST, a Delaware statutory trust (“ WEST ”), WILLIS LEASE FINANCE CORPORATION, a Delaware corporation (the “ Servicer” ), Fortis Captial Corp., a Connecticut corporation (“ Fortis ”), and HSH NORDBANK, AG, a German banking corporation (“ HSH ” and together with Fortis, the initial “ Series A2 Noteholders ”).
PREAMBLE
WHEREAS, WEST has entered into the Indenture, dated as of August 9, 2005 (the “ Indenture ”), with Deutsche Bank Trust Company Americas, a New York banking corporation (“ Deutsche Bank ”), as indenture trustee (“ Indenture Trustee ”); and
WHEREAS, WEST and the Indenture Trustee have entered into the Series A2 Supplement to the Indenture, dated as of August 9, 2005 (the “ Series A2 Supplement ”), pursuant to which WEST is to issue the Series A2 Notes in an initial aggregate Maximum Principal Balance of $100,000,000;
WHEREAS, the Series A2 Noteholders are willing to make loans to WEST on the Initial Closing Date and from time to time thereafter until the occurrence of a Conversion Event, and the obligation of WEST to repay such Loans will be represented by the Series A2 Notes;
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
Section 1.01. Definitions . (a) Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Indenture. Whenever used in this Agreement, the following words and phrases shall have the following meanings, and the definitions of such terms are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.
“ Assignment and Assumption ” means an Assignment and Assumption Agreement, substantially in the form of Exhibit B attached hereto, pursuant to which the transferee of a Series A2 Note agrees to make Series A2 Loans to the extent of the Unused Commitment allocable to the Series A2 Note that is transferred to such transferee.
“ Buyer” has the meaning set forth in Section 3.03(m) hereof.
“Commercial Paper Notes” means commercial paper notes issued by, or on behalf of, a CP Noteholder for the purpose of funding or maintaining its Loans to WEST and its holding of its Series A2 Note, including all such commercial paper notes so issued to re-finance matured commercial paper notes issued by, or on behalf of, such CP Noteholder that were originally issued to finance or maintain such CP Noteholder’s Loans to WEST and such holding.
“Conversion Date” means July 31, 2007 or such later date to which the Conversion Date may be extended (if extended) in the sole discretion of the Series A2 Note Purchasers in accordance with the terms of Section 2.03(b) hereof.
“CP Noteholder” means any Series A2 Noteholder that will fund or maintain its Loans and its holding of its Series A2 Note with the issuance of Commercial Paper Notes.
“Eligible Transferee” means (i) an Affiliate of a Series A2 Noteholder, or (ii) any other then existing Series A2 Noteholder, or (iii) a commercial bank, insurance company or other financial institution that (x) complies with the transfer provisions of Section 2.11 of the Indenture, and (y) if such transfer is to occur prior to the Conversion Date, such transferee in the reasonable determination of WEST, has the capability to make Loans to WEST up to the Unused Commitment in respect of the Series A2 Note being transferred to such financial institution and is otherwise reasonably acceptable to WEST, as evidenced to the Indenture Trustee in writing (which approval shall not be unreasonably withheld or delayed).
“Engine Information” means, with respect to any Engine, the manufacturer, type and model of such Engine, and manufacturer’s serial numbers of such Engine.
“Funding Date” means as to any Loan, the Business Day that is specified in the Funding Request for such Loan in accordance with Section 2.02 hereof.
“Funding Date Engine” has the meaning set forth in Section 3.03(m)hereof.
“Funding Request” means a written request by WEST to obtain Loans from the Series A2 Noteholders, such notice to be in the form of Exhibit A hereto and to conform to requirements of Section 2.02 hereof.
“Indemnified Party” has the meaning specified in Section 7.01 hereof.
“Indenture” means the Indenture, as supplemented by the Supplements, including the Series A2 Supplement, as the same may be amended and supplemented from time to time.
“Liquidity Agreement” means any agreement to which a CP Noteholder is a party and under which one or more Liquidity Providers has agreed to purchase from such CP Noteholder the Series A2 Notes held by such CP Noteholder and to assume such CP Noteholder’s obligation to make Loans in an amount up to the Unused Commitment of such CP Noteholder.
“ Liquidity Provider ” means any financial institution that is an Eligible Transferee and a party to a Liquidity Agreement with a CP Noteholder.
“ Loans ” means the Series A2 Loans and the Series B2 Loans.
“ Material Adverse Effect ” has the meaning specified in Section 4.01(a) hereof.
“Maximum Commitment” shall mean (a), for all Series A2 Noteholders, $100,000,000 in the aggregate, which amount may be increased up to $150,000,000 as provided in Section 2.03(d) of the Series A2 Supplement and Section 2.03(c) hereof, and (b), for each Series A2
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Noteholder, the amount set forth opposite the name of such Series A2 Noteholder in Schedule 1 attached hereto, increased proportionately in the event of any increase in the aggregate Maximum Commitment described in clause (a) of this definition.
“Maximum Principal Balance” shall mean, with respect to any Warehouse Note, the maximum amount that WEST may borrow from the holder of such Warehouse Note, which shall be equal to the Maximum Commitment of such holder.
“Notes” means the Series A Notes and the Series B Notes.
“Series A Notes” means, collectively, (a) the $100,000,000 in maximum principal amount of WEST’s Series A2 Notes dated August 9, 2005 and issued pursuant to this Series A2 Note Purchase Agreement and the Series A2 Supplement and (b) the $200,000,000 in stated principal amount of WEST’s Series A1 Notes dated August 9, 2005 and issued pursuant to the Series A1 Note Purchase Agreement and the Series A1 Supplement.
“Series A2 Loan” means a funding by the Series A2 Noteholder of a loan to WEST pursuant to Article II hereof.
“Series A2 Noteholder” means, initially, Fortis and HSH and, at any time of determination for the Series A2 Notes thereafter, any person in whose name a Series A2 Note is registered in the Register.
“Series A2 Note Purchase Agreement” means this Series A2 Note Purchase and Loan Agreement, dated as of August 9, 2005, among WEST, Willis and the Series A2 Note Purchasers, as may be amended, modified or supplemented from time to time in accordance with its terms.
“Series A2 Related Documents” means the Series A2 Transaction Documents and the Related Documents, as the same may be amended, supplemented, restated, replaced or otherwise modified from time to time.
“Series A2 Supplement” means the Series A2 Supplement dated as of August 9, 2005, between WEST and the Indenture Trustee, as the same may be amended, supplemented or otherwise modified from time to time.
“Series B Notes” means, collectively, (a) the $28,276,878 in stated principal amount of WEST’s Series B1 Notes dated August 9, 2005 and issued pursuant to the Series B1 Note Purchase Agreement and the Series B1 Supplement, and (b) the $13,558,400 in maximum principal amount of WEST’s Series B2 Notes dated August 9. 2005 and issued pursuant to the Series B2 Note Purchase Agreement and the Series B2 Supplement.
“Series B2 Loan” means, individually or in the aggregate, a loan to WEST by the Holder or Holders of the Series B2 Notes pursuant to the Series B2 Supplement and the Series B2 Note Purchase Agreement.
“Series B2 Note Purchase Agreement” means the Series B2 Note Purchase and Loan Agreement, dated as of August 9, 2005, among WEST, Willis and the Series B2 Noteholders.
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“Series B2 Noteholders” means, on the Closing Date, Fortis and HSH and, at any time of determination thereafter, any person in whose name a Series B2 Note is registered in the Register.
“ Series B2 Supplement ” means the Series B2 Supplement to the Indenture, dated as of August 9, 2005, between WEST and the Indenture Trustee.
“Third Party Claim” has the meaning specified in Section 7.01 hereof.
Section 1.02. Other Definitional Provisions . The conventions of construction and usage set forth in Section 1.02 of the Indenture are hereby incorporated by reference in this Supplement.
Section 2.01. Sale and Delivery of the Series A2 Notes . In reliance on the representations, warranties and agreements and on the terms and conditions set forth herein and in the Indenture and the Series A2 Supplement, WEST agrees to sell, and each of the Series A2 Noteholders severally and not jointly agrees to purchase, on the Initial Closing Date, a Series A2 Note with the Maximum Principal Balance for each Series A2 Noteholder set forth in Schedule 1 (which Maximum Principal Balances may be increased pursuant to Section 2.03(a) hereof and Section 2.03(d) of the Series A2 Supplement). The Series A2 Notes shall be duly executed by WEST, duly authenticated by the Indenture Trustee and registered in the names of the Series A2 Noteholders. The actual Outstanding Principal Balance of each Series A2 Note will be equal to the principal amount of the Loans made by the holder thereof from time to time in accordance with the terms hereof and of the Series A2 Supplement minus any payments of the principal amount of the Series A2 Notes made in accordance with the terms thereof and the Series A2 Supplement and the Indenture.
Section 2.02. Funding of Loans . (a) On the terms and conditions hereinafter set forth, each Series A2 Noteholder severally and not jointly agrees that it will make Loans to WEST, on the Initial Closing Date and from time to time thereafter until the occurrence of a Conversion Event, upon the receipt of a Funding Request from WEST and otherwise as provided in this Section 2.02 and in each subject to satisfaction of the applicable conditions precedent set forth in Article III hereof and in Article IV of the Series A2 Supplement, in a total amount outstanding at any time up to its Maximum Commitment. It is expressly understood and agreed that WEST shall not have any right to receive, and each Series A2 Noteholder shall not have any obligation to disburse, (x) any amount in excess of the Maximum Commitment of such Series A2 Noteholder or (y) any amount whatsoever on or after the date on which a Conversion Event occurs. Under no circumstances shall the Series A2 Noteholders fund any Loans if after giving effect to such Loans, (i) the aggregate Series A2 Note Outstanding Principal Balance outstanding hereunder would either (A) exceed the Series A2 Maximum Commitment or (B) result in a
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Senior Borrowing Base Deficiency or (ii) the Aggregate Note Principal Balance would exceed the Maximum Borrowing Base.
(b) On the Initial Closing Date, each of the Series A2 Noteholders shall, upon satisfaction of the applicable conditions set forth in Sections 3.02 and 3.03 hereof, make a Loan to WEST in the amount set forth beside its name on Schedule 1.(c) On any Business Day after the Initial Closing Date and prior to the date on which a Conversion Event occurs, each of the Series A2 Noteholders agrees that it shall make a Loan to WEST in the amount specified in a Funding Request delivered to the Series A2 Noteholders by WEST at least three Business Days prior to the Funding Date set forth in such Funding Request, which shall specify (i) the aggregate amount of the Loans to be made by the Series A2 Noteholders and the amount of the Loan to be made by each individual Series A2 Noteholder on such Funding Date, (ii) the proposed Funding Date, and (iii) the use of the proceeds of such Loans, including the Engine Information for any Funding Date Engine being acquired with the proceeds of such Loans. Each Funding Request delivered by WEST pursuant to this Section 2.04 shall be irrevocable. On the Funding Date, each of the Series A2 Noteholders shall, upon satisfaction of the applicable conditions set forth in Article III hereof and Article IV of the Series A2 Supplement, make available to WEST by wire transfer in immediately available funds, at such bank or other location reasonably designated by WEST in the applicable Funding Request, an amount equal to the amount of such Loan related to such Funding.(d) If any Series A2 Noteholder shall default on its obligation to make a Loan on any Funding Date, one or more of the other Series A2 Noteholders may elect (but shall not be required to) to make the Loan of the defaulting Series A2 Noteholder. In such event, the Maximum Principal Balance of the Series A2 Note held by the defaulting Series A2 Noteholder and the Maximum Commitment of the defaulting Series A2 Noteholder shall be reduced by the amount of the Loan so made, and the Maximum Principal Balance of the Series A2 Note held by the Series A2 Noteholder making such Loan and the Maximum Commitment of such Series A2 Noteholder shall be increased by the amount of such Loan.(e) WEST may, within 75 days, but no later than 45 days, prior to the then existing Conversion Date, by written notice to each Series A2 Noteholder, make written request for the Series A2 Note Noteholders to extend the Conversion Date for an additional period of 364 days. The Series A2 Noteholders shall make a determination, in their sole discretion and after a full credit review, not more than 30 days and not less than 15 days prior to the then applicable Conversion Date as to whether or not they will agree to extend the Conversion Date; provided, however , that the failure of any Series A2 Noteholder to make a timely response to WEST’s request for extension of the Conversion Date shall be deemed to constitute a refusal by such Series A2 Noteholders to extend the Conversion Date. It shall be a condition to the extension of the Conversion Date that (i) the commitment of all of the Series A2 Noteholders under the Series A2 Note Purchase Agreement be extended to the same date, (ii) a Rating Agency Confirmation shall have been received in respect of such extension and (iii) the commitments of all Series B2 Noteholders under the Series B2 Note Purchase Agreement be extended to the same date.
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Section 2.03. Increase or Decrease in Maximum Commitments . (a) WEST may elect to increase the aggregate Maximum Principal Balances of the Series A2 Notes and the aggregate Maximum Commitments of the Series A2 Noteholders to an amount greater than $100,000,000 but not in excess of $150,000,000, subject to the receipt of (i) the prior written consent of all of the Series A2 Noteholders and (ii) a Rating Agency Confirmation, provided that, as a condition of any such increase, WEST also shall elect to increase the Maximum Principal Balances of the Series B2 Notes and the Maximum Commitments of the Series B2 Noteholders by a proportionate amount, as provided in the Series B2 Supplement and the Series B2 Note Purchase Agreement. Any increase pursuant to the preceding sentence shall be applied to increase the Maximum Principal Balances of the individual Series A2 Notes and the Maximum Commitments of the Series A2 Noteholders proportionately to the Maximum Principal Balances of the Series A2 Notes held by the Series A2 Noteholders immediately prior to such increase, and each Series A2 Noteholder agrees that its Maximum Commitment shall be increased by an amount equal to the amount by which the Maximum Principal Balance of its Series A2 Note is so increased, and that such increases shall be deemed to occur without any Series A2 Noteholder having to surrender its Series A2 Notes in exchange for a new Series A2 Note reflecting the increased Maximum Principal Balance.
(b) WEST may, upon at least five Business Days’ notice to the Series A2 Noteholders, terminate in whole or reduce in part the aggregate Maximum Commitments of the Series A2 Noteholders and the Maximum Principal Balances of the Series A2 Notes in an aggregate amount not to exceed the excess of such Maximum Principal Balances over the then aggregate Outstanding Principal Balance of the Series A2 Notes; provided that any partial reduction of the aggregate Maximum Commitments of the Series A2 Noteholders and the Maximum Principal Balances of the Series A2 Notes shall be applied pro rata to the individual Maximum Commitments of the Series A2 Noteholders and the Maximum Principal Balances of the Series A2 Notes, respectively, and shall be accompanied by a proportionate partial reduction of the aggregate Maximum Commitments of the Series B2 Noteholders. Each notice of reduction or termination pursuant to this Section 2.03(b) shall be irrevocable, and such reduction shall be deemed to occur without any Series A2 Noteholder having to surrender its Series A2 Notes in exchange for a new Series A2 Note reflecting the reduced Maximum Principal Balance. ARTICLE III
Section 3.01. Conditions Precedent to Issuance of Series A2 Notes . The obligation of WEST to issue the Series A2 Notes to the Series A2 Noteholders is subject to satisfaction of the following conditions precedent:
(a) All of the conditions precedent to the obligations of WEST set forth in Section 6A of the Series A1 Note Purchase Agreement shall have been satisfied by WEST and WEST, Willis and the Series A1 Noteholders shall have executed and delivered the Series A1 Note Purchase Agreement.(b) WEST, Willis and the Series A2 Noteholders shall have executed and delivered this Agreement.
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(c) WEST, Willis and the Series B2 Noteholders shall have executed and delivered the Series B2 Note Purchase Agreement.(d) WEST, Willis and the Series B1 Noteholders shall have executed and delivered the Series B1 Note Purchase Agreement.Section 3.02. Conditions Precedent on Initial Closing Date . The effectiveness of the agreement of the Series A2 Noteholders to make the Loans and their obligation to make the Initial Loans on the Initial Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Series A2 Noteholders shall have received from WEST a certificate, dated the Initial Closing Date and executed by a Controlling Trustee, to the effect that:(i) the representations and warranties of WEST in this Agreement and the Series A2 Supplement are accurate in all material respects as of the Initial Closing Date; and(ii) WEST has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or before the Initial Closing Date.(b) The Series A2 Noteholders shall have received from Willis a certificate, dated the Initial Closing Date and executed by a Responsible Officer, to the effect that:(i) the representations and warranties of Willis in this Agreement and in the other Related Documents to which Willis is a party are accurate in all material respects as of the Initial Closing Date; and(ii) Willis has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or before the Initial Closing Date.(c) The Series A2 Noteholders shall have received the following:(i) with respect to Willis a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than ten days before the Closing Date,(ii) with respect to WEST a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than ten days before the Closing Date, and(iii) with respect to WEST Funding, a good standing certificate from the Secretary of State of Delaware, dated not earlier than ten days before the Closing Date.(d) The Series A2 Noteholders shall have received from the Secretary or other Responsible Officer of Willis, in the officer’s individual capacity, a certificate, dated the Initial Closing Date, to the effect that:
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(i) each individual who, as an officer or representative of Willis, signed this Agreement, any Related Document or any other document or certificate delivered on or before the Initial Closing Date in connection with the transactions contemplated in this Agreement or in the Related Documents was at the respective times of such signing and delivery, and is as of the Initial Closing Date, duly elected or appointed, qualified, and acting as such officer or representative, and the signature of the individual appearing on the documents and certificates is the officer’s genuine signature; and(ii) no event (including any act or omission on the part of Willis) has occurred since the date of the good standing certificate referred to in paragraph (c) above that has affected the good standing of Willis under the laws of the State of Delaware.(iii) attached to such certificate are accurate copies of the organizational documents of Willis, as in effect on the Initial Closing Date, and of the resolutions of Willis and any required consent relating to the transactions contemplated in this Agreement and the Related Documents.(e) The Series A2 Noteholders shall have received from a Controlling Trustee of WEST a certificate, dated the Closing Date, to the effect that:(i) each individual who, as a Controlling Trustee or other representative of WEST, signed this Agreement, any Related Document, or any other document or certificate delivered on or before the Initial Closing Date in connection with the transactions contemplated in this Agreement or in the Related Documents, was at the respective times of such signing and delivery, and is as of the Initial Closing Date, duly elected or appointed, qualified, and acting as such Controlling Trustee or representative, and the signature of the individual appearing on the documents and certificates is such Controlling Trustee’s genuine signature; and(ii) no event (including any act or omission on the part of WEST) has occurred since the date of the good standing certificate referred to in paragraph (c) above that has affected the good standing of WEST under the laws of the State of Delaware.(iii) attached to such certificate are accurate copies of the trust agreement of WEST, as in effect on the Initial Closing Date, and of the resolutions of WEST, and of any required consent relating to the transactions contemplated in this Agreement and the Related Documents.(f) The Series A2 Noteholders shall have received from the Secretary or other Responsible Officer of WEST Funding, in the officer’s individual capacity, a certificate, dated the Closing Date, to the effect that:(i) each individual who, as an officer or representative of WEST Funding, signed any Related Document or any other document or certificate delivered on or before the Initial Closing Date in connection with the transactions contemplated in the Related Documents, was at the respective times of such signing and delivery, and is as of the Initial Closing Date, duly elected or appointed, qualified, and acting as such officer or
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representative, and the signature of the individual appearing on the documents and certificates is the officer’s genuine signature; and(ii) no event (including any act or omission on the part of WEST Funding) has occurred since the date of the good standing certificate referred to in paragraph (c) above that has affected the good standing of WEST Funding under the laws of its chartering jurisdiction, and(iii) attached to such certificate are accurate copies of the relevant organizational documents of WEST Funding, as in effect on the Initial Closing Date, and of the resolutions of WEST Funding, and of any required consent relating to the transactions contemplated in the Related Documents.(g) The Series A2 Noteholders shall have received from Thomas C. Nord, in his capacity as General Counsel of Willis and Pillsbury Winthrop Shaw Pittman LLP, in its capacity as special New York counsel for Willis, WEST and WEST Funding, an opinion or opinions, dated the Initial Closing Date and addressed to the Series A2 Noteholders, addressing corporate/entity matters, enforceability, security interest, tax, securities law and disclosure matters, that is or are in form and substance reasonably acceptable to the Series A2 Noteholders.(h) The Series A2 Noteholders shall have received from Morris, James, Hitchens & Williams LLP, in its capacity as special Delaware counsel for Willis, WEST and WEST Funding, an opinion or opinions, dated the Initial Closing Date and addressed to the Series A2 Noteholders, addressing Delaware entity and security interest perfection matters, that is in form and substance reasonably acceptable to the Series A2 Noteholders.(i) The Series A2 Noteholders shall have received from Pillsbury Winthrop Shaw Pittman LLP, in its capacity as special bankruptcy counsel for Willis, WEST and WEST Funding, an opinion or opinions, dated the Closing Date and addressed to the Indenture Trustee and the Security Trustee, addressing “true sale” matters in connection with the transfers contemplated under the Asset Transfer Agreement, and substantive consolidation with respect to WEST and its subsidiaries and Willis, in each case under the U.S. federal bankruptcy law, that is or are in form and substance acceptable to the Placement Agent in its sole discretion.(j) The Series A2 Notes shall have been rated by Moody’s and Fitch not less than Baa1 and “A”, respectively, and such ratings shall not have been rescinded.(k) The Series A2 Transaction Documents and the Related Documents shall have been duly executed and delivered by the parties thereto.(l) The Series A2 Notes shall have been executed by WEST and authenticated by the Indenture Trustee.(m) Evidence of recordation of the Initial Engine Mortgages with the FAA and an opinion from McAfee & Taft in its capacity as special The Series A2 Notes shall have been executed by WEST and authenticated by the Indenture Trustee.
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(n) All proceedings in connection with the transactions contemplated by this Agreement, the other Series A2 Transaction Documents and the Related Documents shall be satisfactory in form and substance to the Series A2 Noteholders.Section 3.03. Conditions Precedent To Loans . The obligations of the Series A2 Noteholders to make Loans on any Funding Date after the Initial Closing Date are subject to the following conditions precedent:
(a) Funding Request . WEST shall have delivered a Funding Request to the Series A2 Noteholders in respect of such Loans at least three (3) Business Days prior to the Funding Date.(b) Series A2 Loans . On such Funding Date, Loans are also made by the Series B2 Noteholders under the Series B2 Note Purchase Agreement in an amount that shall be accompanied by a proportionate partial reduction of the aggregate Maximum Commitments of the Series A2 Noteholders under this Agreement.(c) No Conversion Event . As of the Funding Date, as applicable, no Conversion Event shall have occurred, unless Noteholders representing one hundred percent (100%) of the Outstanding Principal Balance of the Series A2 Notes and the Series B2 Notes have waived the occurrence of each and every Conversion Event that has occurred.
(d) No Early Amortization Event . Before and after giving effect to such Loan, no Early Amortization Event shall have occurred, unless Noteholders representing one hundred percent (100%) of the Outstanding Principal Balance of the Series A2 Notes and the Series B2 Note have waived the occurrence of each and every Early Amortization Event that has occurred.
(e) No Servicer Termination Event . Before and after giving effect to such Loan, no Servicer Termination Event shall have occurred, unless Noteholders representing one hundred percent (100%) of the Outstanding Principal Balance of the Series A2 Notes and the Series B2 Note have waived the occurrence of each and every Servicer Termination Event that has occurred.
(f) No Violation of Maximum Commitment . Before and after giving effect to such Loan, the aggregate Outstanding Principal Balance of the Series A2 Notes will not exceed the Maximum Commitment of the Series A2 Noteholders.
(g) No Senior Borrowing Base Deficiency . Before and after giving effect to such Loan, and the acquisition of any Additional Engine with the proceeds thereof, no Senior Borrowing Base Deficiency is or would be continuing.
(h) Senior Borrowing Base and Junior Borrowing Base . Before and after giving effect to such Loan, the aggregate Outstanding Principal Balance of all Series then Outstanding does not exceed the Senior Borrowing Base or the Junior Borrowing Base, as the case may be.
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(i) Certificate . Each of the following shall be true and the Indenture Trustee shall have received a certificate signed by a Controlling Trustee of WEST stating that
(i) the representations and warranties of WEST contained in this Agreement are true and correct on and as of the Funding Date, as though made on and as of such date;(ii) the conditions described in clauses (a), (b) and (c) are satisfied; and(iii) no Default or Event of Default has occurred or is continuing;(j) Available Collections Amount . If the proceeds of the Loan are being used to increase the Available Collections Amount on any Payment Date, the Indenture Trustee shall have received a certificate from the Administrative Agent to the effect that the Available Collections Amount for such Payment Date without the inclusion of such Loan is in an amount sufficient to pay Base Interest on all Series B Notes in accordance with Section 3.13 of the Indenture.
(k) Engine Modifications . If the proceeds of the Loan are being used to fund Mandatory Engine Modifications or Discretionary Engine Modifications, the Indenture Trustee, the Series A2 Noteholders and the Series B Noteholders shall have received (x) evidence satisfactory to the Indenture Trustee, the Series A2 Noteholders and the Series B2 Noteholders that the approvals by the Controlling Trustees required by Section 5.03(c) of the Indenture and (y) invoices or other evidence of the cost of such Mandatory Engine Modifications or Discretionary Engine Modifications, as the case may be, have been obtained.
(l) Funding Date Engine . If the proceeds of the Loan are to be used to acquire the Third Remaining Engine or an Additional Engine (all such Engines being collectively referred to herein with respect to the applicable Funding Date as, the “Funding Date Engines” ), the Indenture Trustee shall have received evidence satisfactory to the Indenture Trustee as to the following:
(i) the approvals by the Controlling Trustees required by Section 5.03(b) have been obtained;(ii) the Funding Date Engine satisfies the requirements in the definition of an “Engine” in the Indenture, and the purchase price for the Funding Date Engine satisfies the requirements of Section 5.03(b) of the Indenture;(iii) no Event of Loss has occurred with respect to the Funding Date Engine and that no other damage has occurred with respect to the Funding Date Engine that would materially adversely affect the value of the Funding Date Engine;(iv) the Mortgage with respect to each Funding Date Engine has been duly registered with the FAA, and such other filings and actions as the Indenture Trustee reasonably deems necessary have been made and taken to establish the priority and perf | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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