WLFC FUNDING CORPORATION
Series 1997-1 Class A Note
CLASS A NOTE PURCHASE AGREEMENT
Dated as of: September 1, 1997
First Union National Bank of North Carolina
One First Union Center
Charlotte, North Carolina 28288
Dear Sirs:
WLFC Funding Corporation, a Delaware corporation (the "Issuer"),
proposes, subject to the terms and conditions stated herein, to issue to you
(the "Purchaser") the WLFC Funding Corporation Secured Note, Series 1997-1,
Class A (the "Class A Note") in the maximum principal amount of $80,000,000.
The Class A Note will be issued pursuant to the Series 1997-1 Supplement, dated
as of September 1, 1997, to the Indenture, dated as of September 1, 1997, each
between the Issuer and The Bank of New York, as trustee. The actual outstanding
principal balance of the Class A Note will be increased and decreased from time
to time in accordance with the terms of the Series 1997-1 Supplement.
Forms of the Indenture, the Series 1997-1 Supplement, the Contribution
and Sale Agreement, the Administration Agreement and the Class A Note have been
delivered to you and the Issuer understands that each of the foregoing are in
form and substance acceptable to you. Each such document and each document
attached to any of the foregoing is in substantially the form in which it will
be executed, with such changes as may be approved by you.
Section 1. DEFINITIONS. All capitalized terms not otherwise defined
in this Section or elsewhere in this Class A Note Purchase Agreement shall have
the respective meanings set forth in the Series 1997-1 Supplement or, if not
defined therein, the Indenture.
Section 2. COMMITMENT TO MAKE LOANS. (a) Subject to the terms and
conditions, and in reliance upon the representations and warranties set forth
herein and in the other Related Documents, the Purchaser agrees to make Loans to
the Issuer on the terms and subject to the conditions set forth in the Series
1997-1 Supplement.
(b) The Issuer shall give written notice to the Administrative Agent
(on its own behalf and on behalf of each Class A Noteholder) of a request for
either a Prime Loan or a LIBOR Loan no later than 1:00 p.m. (Charlotte, North
Carolina time) two (2) Business Days prior to the date on which such Loan is
requested to be made by the Class A Noteholder.
1
Each such written notice shall be in the form of Exhibit A hereto, shall be
irrevocable and shall specify (i) the date on which the requested Loan is to be
made; (ii) whether the requested Loan shall be a LIBOR Loan or a Prime Loan;
(iii) the full amount of the requested Loan; and (iv) the LIBOR Period or Prime
Period, as the case may be.
Section 3. DELIVERY OF CLASS A NOTE. (a) Delivery of the Class A
Note shall be made at the offices of Thacher Proffitt & Wood, Two World Trade
Center, New York, New York 10048, at 11:00 A.M., New York time, on December 19,
1997 or such later Business Day as may be agreed upon in writing by the Issuer
and you (the "Effective Date").
(b) The Class A Note to be delivered to you hereunder shall be issued
to you in fully registered form only and shall be registered in the name of
First Union National Bank of North Carolina. Such Class A Note shall be dated
December 19, 1997, authenticated by the Indenture Trustee, registered in your
name and issued in the maximum principal amount of $80,000,000. You hereby
authorize Thacher Proffitt & Wood, special counsel to the Purchaser, to receive
on your behalf the Class A Note to be delivered to you on the Closing Date, to
deliver a receipt therefor and to transmit such Class A Note to you.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. (a) The
Issuer represents (as of the Effective Date and as of each date on which a Loan
is made by a Class A Noteholder pursuant to the Series 1997-1 Supplement, unless
otherwise indicated) and warrants to, and agrees with, the Purchaser that:
(i) The Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, with
its chief executive office located at 180 Harbor Drive, Suite 207,
Sausalito, California 94965, and has the power to own its assets and to
engage in the activities in which it is presently engaged and is duly
qualified and in good standing under the laws of each jurisdiction where
its ownership of property or the conduct of its activities requires such
qualification, if the failure to so qualify would have a material adverse
effect on the financial condition of the Issuer or on the enforceability of
the Class A Note or the ability of the Issuer to perform its obligations
under this Agreement and the other Related Documents to which it is a
party. One hundred percent of the beneficial ownership of the Issuer is
owned by Willis Lease Finance Corporation ("WLFC"). The Issuer has no
subsidiaries;
(ii) The Issuer has the power, authority and legal right to
execute, deliver and perform its obligations under this Agreement and the
other Related Documents to which it is a party (collectively, the "Issuer
Documents"); the execution, delivery, and performance of the Issuer
Documents by the Issuer have been duly authorized by the Issuer by all
necessary action, the Issuer Documents, other than the Class A Note, have
been duly executed and delivered by the Issuer, and the Class A Note, when
issued in accordance with the terms hereof and of the Indenture and the
Series 1997-1 Supplement, will have been duly executed and delivered;
-2-
(iii) Each of the Issuer Documents (other than the Class A
Note), assuming due authorization, execution and delivery by the other
parties thereto, constitutes, and the Class A Note, when issued and
authenticated in accordance with the terms of the Indenture and the Series
1997-1 Supplement, will constitute, a legal, valid and binding obligation
of the Issuer, enforceable against the Issuer in accordance with its terms,
except that such enforcement may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws (whether statutory,
regulatory or decisional) now or hereafter in effect relating to creditors'
rights generally and (B) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(iv) The consummation of the transactions contemplated by
the Issuer Documents and the fulfillment of the terms therein will not
conflict with or result in any breach of any of the terms and provisions of
or constitute (with or without notice, lapse of time or both) a default
under the certificate of incorporation or by-laws of the Issuer, or any
indenture, agreement, mortgage, deed of trust, commitment letter or funding
arrangement with any lending institution or investment bank or other
instrument to which the Issuer is a party or by which it is bound, or
result in the creation or imposition of any lien, claim or encumbrance upon
any of its properties pursuant to the terms of such indenture, agreement,
mortgage, deed of trust, commitment letter or funding arrangement with any
lending institution or investment bank or other such instrument, other than
as created pursuant to the Indenture and the Series 1997-1 Supplement, or
violate any law or, any order, rule or regulation applicable to the Issuer
of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Issuer or any of its properties and there are no legal or governmental
proceedings pending or, to the best knowledge of the Issuer, threatened or
contemplated that would result in a material modification or revocation
thereof;
(v) There are no litigation, proceedings or investigations
to which the Issuer, or any Affiliate of the Issuer, is a party pending,
or, to the knowledge of Issuer, threatened, before any court, regulatory
body, administrative agency or other tribunal or governmental
instrumentality (A) asserting the invalidity of the Class A Note or the
other Issuer Documents, (B) seeking to prevent the issuance of the Class A
Note or the consummation of any of the transactions contemplated by the
other Issuer Documents, or (C) seeking any determination or ruling that
would materially and adversely affect the performance by the Issuer of its
obligations under, or the validity or enforceability of, the Class A Note
or the other Issuer Documents;
(vi) All approvals, authorizations, consents, orders or
other actions of any person, corporation or other organization, or of any
court, governmental agency or body or official, required in connection with
the execution and delivery of the Issuer Documents by the Issuer and with
the valid and proper authorization, issuance and sale of the Class A Note
pursuant to this Agreement, have been or will be taken or obtained on or
prior to the Effective Date;
-3-
(vii) No written materials delivered to the Purchaser by or
on behalf of the Issuer in connection with the sale of the Class A Note
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein or herein not
misleading. There is no fact peculiar to the Issuer or any Affiliate of
the Issuer or, to the knowledge of the Issuer, any Lease Agreement, Lessee
or Engine which the Issuer has not disclosed to you in writing which
materially adversely affects or, so far as the Issuer can now reasonably
foresee, will materially adversely affect the ability of the Issuer to
perform the transactions contemplated hereby and by the other Related
Documents;
(viii) The List of Engines to be created as of the Closing
Date and each supplement thereto will be available to you by the Issuer and
will be complete as of the date thereof and will include an accurate (in
all material respects) description of the Engines;
(ix) The representations and warranties made by the Issuer
in the Issuer Documents are true and correct in all material respects and
the Purchaser shall be entitled to rely on such representations and
warranties;
(x) Any taxes, fees and other governmental charges payable
by the Issuer in connection with the execution and delivery of the Issuer
Documents, the pledge of the Collateral to the Indenture Trustee, and the
execution, delivery and sale of the Class A Note, have been paid;
(xi) To the extent the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), may be deemed to apply to the Class A Note
and the Loans, none of the transactions contemplated in the Issuer
Documents (including, without limitation thereof, the use of the proceeds
from the sale of the Class A Note) will violate or result in a violation of
Section 7 of the Exchange Act, or any regulations issued pursuant thereto;
(xii) Concurrently with the execution and delivery of this
Agreement, the Issuer is executing no other Note Purchase Agreement with
respect to the Class A Note;
(xiii) The Issuer is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(xiv) For so long as the Series 1997-1 Class A Notes are the
only Notes outstanding under the Indenture, each of the Indenture and the
Series 1997-1 Supplement need not be qualified as an "indenture" pursuant
to the terms of the Trust Indenture Act of 1939, as amended;
(xv) The Issuer has not taken and will not take, directly or
indirectly, any action prohibited by Rules 101 and 102 under Regulation M
of the Securities and Exchange Commission in connection with the offering
of the Class A Note;
-4-
(xvi) To the extent that the Securities Act may be deemed to
apply to the Class A Note and the Loans, neither the Issuer nor any
affiliate (as defined in Rule 501(b) of Regulation D under the Securities
Act ("Regulation D")) of the Issuer has directly, or through any agent,
including, without limitation, First Union, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security
(as defined in the Securities Act) which is or will be integrated with the
sale of the Class A Note in a manner that would render the issuance and
sale of the Class A Note a violation of the Securities Act or require the
registration of the Class A Note under the Securities Act or (ii) engaged
in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with the offering of the Class A
Note.
(xvii) To the extent that the Securities Act may be deemed to
apply to the Class A Note and the Loans, assuming compliance by you with
your agreements set forth in Section 6 hereof, it is not necessary in
connection with the offer, sale and delivery of the Class A Note in the
manner contemplated by this Agreement to register the Class A Note under
the Securities Act;
(xviii) No event has occurred and is continuing that
constitutes, or with the passage of time or the giving of notice or both
would constitute, an Early Amortization Event under, and as defined in, the
Indenture. The Issuer is not in violation of any agreement, charter
instrument, by-law or other instrument to which they are a party or by
which they are or may be bound;
(xix) The aggregate amount of Scheduled Payments payable by
the Lessees under the Lease Agreements during each Collection Period is
sufficient to pay the Monthly Servicing Fee, and the principal and interest
on the Class A Note, as such payments become due and payable, in accordance
with the Indenture and the Series 1997-1 Supplement;
(xx) The Issuer agrees that it will not directly or
indirectly, sell or offer to sell the Class A Note or similar security in a
manner that would render the issuance and sale of the Class A Note pursuant
to this Agreement a violation of Section 5 of the Securities Act.
Section 5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF WLFC. WLFC
hereby represents (as of the Effective Date and as of each date on which a Loan
is made by a Class A Noteholder pursuant to the Series 1997-1 Supplement, unless
otherwise indicated) and warrants to, and agrees with, the Purchaser that:
(i) The representations and warranties made by WLFC in this
Note Purchase Agreement, the Guaranty, the Contribution and Sale Agreement,
the Servicing Agreement and any other Related Document to which it is a
party (collectively, the "WLFC Documents") are true and correct in all
material respects and the Purchaser shall be entitled to rely on such
representations and warranties;
-5-
(ii) No written materials delivered to the Purchaser by or
on behalf of WLFC in connection with the sale of the Class A Note contain
any untrue statement of a material fact or omit a material fact necessary
to make the statements contained therein or herein not misleading. There
is no fact peculiar to WLFC or any Affiliate of WLFC or, to the knowledge
of WLFC, any Lease Agreement, Lessee or Engine which WLFC had not disclosed
to you in writing which materially affects adversely or, so far as WLFC can
now reasonably foresee, will materially affect adversely the ability of
WLFC to perform the transactions contemplated hereby and by the Indenture,
the Series 1997-1 Supplement, the Servicing Agreement and the Class A Note;
(iii) Any taxes, fees and other governmental charges payable
by WLFC on or prior to the Effective Date in connection with the execution
and delivery of the WLFC Documents, have been, or will be, paid on or prior
to the Effective Date;
(iv) To the extent that the Exchange Act may be deemed to
apply to the Class A Note and the Loans, none of the transactions
contemplated herein (including, without limitation thereof, the use of the
proceeds from the sale of the Class A Note) will violate or result in a
violation of Section 7 of the Exchange Act or any regulations issued
pursuant thereto including, without limitation, Regulations G, T, U and X
of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter
II. WLFC will not use any distribution from the Issuer of proceeds
received by the Issuer from the sale of the Class A Note to purchase or
carry, directly or indirectly, margin stock;
(v) No event has occurred and is continuing that
constitutes, or with the passage of time or the giving of notice or both
would constitute an Early Amortization Event under, and as defined in, the
Servicing Agreement or the Indenture and the Series 1997-1 Supplement,
respectively. WLFC is not in violation in any material respect of any term
of any agreement, charter instrument, by-law or other instrument to which
it is a party or by which it is or may be bound;
(vi) The aggregate amount of Scheduled Payments payable by
the Lessees under the Lease Agreements during each Collection Period is
sufficient to cover the Monthly Servicing Fee, and pay the principal and
interest on the Class A Note, as such payments become due and payable, in
accordance with the Indenture and the Series 1997-1 Supplement; and
(vii) To the extent that the Securities Act may be deemed to
apply to the Class A Note and the Loans, neither WLFC nor any affiliate (as
defined in Rule 501(b) of Regulation D) of WLFC has directly, or through
any agent, including, without limitation, First Union, (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or will be
integrated with the sale of the Class A Note in a manner that would render
the issuance and sale of the Class A Note a violation of the Securities Act
or require the registration of the Class A Note under the Securities Act or
(ii) engaged in any form of
-6-
general solicitation or general advertising (within the meaning of
Regulation D) in connection with the offering of the Class A Note. It is
not necessary in connection with the offer, sale and delivery of the Class
A Note to register the Class A Note under the Securities Act.
Section 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
PURCHASER. The Purchaser hereby represents (as of the Effective Date) and
warrants to, and agrees with, the Issuer and WLFC that:
(a) The Purchaser understands and acknowledges that the Class A Note
is not a security under federal or state securities laws but evidences the
obligations of the Issuer in accordance with the terms of the Supplement and the
Indenture to repay the Loans extended pursuant to the Indenture and the Series
1997-1 Supplement, and further understands that the Class A Note purchased by it
has not been registered under the Securities Act or the securities laws of any
State and, if the Class A Note is not then registered under applicable federal
and State securities law (which registration the Issuer is not obligated to
effect), it will not offer to sell, transfer or otherwise dispose of the Class A
Note except in a transaction which is exempt from such registration;
(b) The Purchaser is not acquiring its Class A Note with a view to or
for sale or transfer in connection with any distribution of the Class A Note
under the Securities Act, but subject, nevertheless, to any requirement of law
that the disposition of its property shall at all times be within its control;
(c) The Purchaser will not dispose of the Class A Note purchased by
it in violation of any applicable federal or state securities laws;
(d) The Purchaser is an "accredited investor" as defined in
Regulation D under the Securities Act;
(e) The Purchaser (i) is not an "employee benefit plan" within the
meaning of Section 3(3) of ERISA or a "plan" within the meaning of Section
4975(e)(1) of the Code ("Benefit Plan") and it is not directly or indirectly
acquiring the Class A Note on behalf of, as investment manager of, as named
fiduciary of, as trustee of, or with assets of a Benefit Plan, (ii) the
acquisition will qualify for a statutory or administrative prohibited
transaction exemption under ERISA and the Code and will not give rise to a
non-exempt transaction described in Section 406 of ERISA or Section 4975(e)(1)
of the Code, (iii) the source of funds (a "Source") to be used by the purchaser
to pay the purchase price of the Class A Note is a guaranteed benefit policy
within the meaning of Section 401(b)(2) of ERISA, or (iv) the source of funds to
be used by the purchaser to pay the purchase price of the Class A Note is an
"insurance company general account" within the meaning of Department of Labor
Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there
is no "employee benefit plan" (within the meaning of Section 3(3) of ERISA or
Section 4975(e)(1) of the Code and treating as a single plan, all plans
maintained by the same employer (or an affiliate within the meaning of Section
V(a)(1) of PTE 95-60) or employee organization) with respect to which the amount
of the general account reserves and liabilities for all contracts held by or on
behalf
-7-
of such plan, exceed ten percent (10%) of the total reserves and liabilities of
such general account (exclusive of separate account liabilities) plus surplus,
as set forth in the NAIC Annual Statement filed with the purchaser's state of
domicile;
(f) Neither the Purchaser nor any Person acting on its behalf has
offered to sell the Class A Note by any form of general solicitation or general
advertising. The Class A Note Purchaser has not offered the Class A Note in any
manner that would render the issuance and sale of the Class A Note a violation
of the Securities Act or any state securities laws, or require registration
pursuant thereto, not has it authorized nor will it authorize any Person to act
in such manner;
(g) Purchaser has conducted an independent investigation of the risks
involved in making the Loan and holding the Note and understands those risks.
Purchaser has been provided with all information concerning the Note, the Issuer
and the Servicer that it has requested and has had an opportunity to discuss the
terms of the Note and the Issuer and the Servicer with representatives of the
Issuer and the Servicer; and
(h) By purchasing the Class A Note, the Purchaser has authorized and
instructed the Indenture Trustee to enter into the Administration Agreement on
behalf of the Purchaser and the Purchaser hereby acknowledges that the Indenture
Trustee shall have no liability for the acts or omissions of the Administrative
Agent.
Section 7. CONDITIONS OF THE PURCHASER'S OBLIGATION. (I) CONDITIONS
TO INITIAL LOAN. The Purchaser's obligation to make the initial Loan shall be
subject to the accuracy in all material respects of the representations and
warranties of the Issuer and WLFC in each of the Series 1997-1 Transaction
Documents, to the performance in all material respects by WLFC and the Issuer of
their respective obligations thereunder, to the satisfaction of all of the
conditions precedent set forth in Sections 501 and 502 of the Series 1997-1
Supplement and to the following additional conditions:
(a) All of the respective representations and warranties of the
Issuer under the Issuer Documents and of WLFC under the WLFC Documents shall be
true and correct in all material respects as of the date made, and no event
shall have occurred which, with notice or the passage of time, would constitute
an Event of Default under the Indenture or an Early Amortization Event under the
Indenture; each of such Issuer Documents and WLFC Documents shall have been duly
authorized, executed and delivered and shall be in full force and effect;
(b) All conditions to closing required to be fulfilled pursuant to
Article V of the Contribution and Sale Agreement shall have been fulfilled or
waived, and the Indenture Trustee shall have received originals (constructively
or actually) or copies of all documents required to be so delivered;
(c) Each of Gibson, Dunn & Crutcher LLP, counsel for WLFC, and
in-house counsel of WLFC shall have delivered to you its respective written
opinion, dated the Effective Date, which opinions shall state that they may
be relied upon by subsequent Class A Noteholders, in
-8-
form and substance satisfactory to you, to the effect set forth in paragraphs
(ii) (with respect to the enforceability opinion) and (v) of Exhibit B hereto
with respect to the opinion of Gibson, Dunn & Crutcher LLP, and paragraphs (i),
(ii) (with respect to matters other than enforceability), (iii) and (iv) of
Exhibit B hereto with respect to the opinion of in-house counsel;
(d) Gibson, Dunn & Crutcher LLP, counsel to the Issuer, shall have
furnished to you its written opinion, dated the Effective Date, which opinion
shall state that it may be relied upon by subsequent Class A Noteholders, in
form and substance satisfactory to you, to the effect set forth in Exhibit C
hereto;
(e) Gibson, Dunn & Crutcher LLP, counsel for WLFC and the Issuer,
shall have delivered to you its written opinion, dated the Closing Date, which
opinion shall state that it may be relied upon by subsequent Class A
Noteholders, in form and substance satisfactory to you, to the effect set forth
in Exhibit E hereto;
(f) Emmet, Marvin & Marvin, counsel to the Indenture Trustee, shall
have furnished to you and to the Issuer its written opinion, dated the Effective
Date, which opinion shall state that it may be relied upon by subsequent Class A
Noteholders, in form and substance satisfactory to you, in the form of Exhibit D
hereto;
(g) The Issuer shall have furnished to you on the Closing Date a
certificate, dated the Closing Date, signed by an authorized officer, to the
effect that:
(i) The representations and warranties made by the Issuer
in the Issuer Documents are true and correct in all material respects on
the Closing Date;
(ii) The Issuer has complied with all of the agreements and
satisfied all the conditions on its part to be performed or satisfied on or
prior to the Closing Date pursuant to the terms of the Issuer Documents;
and
(iii) The written information supplied by the Issuer to the
Purchaser (other than projections and other estimates) did not contain any
untrue statement of a material fact, and any estimates or projections so
supplied to the Purchaser were based on assumptions which the Issuer
believed to be reasonable (except as otherwise disclosed therein).
(h) WLFC shall have furnished to you on the Closing Date a
certificate, dated the Closing Date, signed by an authorized officer, to the
effect that:
(i) The representations and warranties made by WLFC in the
WLFC Documents are true and correct in all material respects on the Closing
Date;
(ii) WLFC has complied with all of the agreements and
satisfied all the conditions on its part to be performed or satisfied on or
prior to the Closing Date pursuant to the terms of the WLFC Documents; and
-9-
(iii) The written factual information supplied by WLFC to the
Purchaser (other than projections and other estimates) did not contain any
untrue statement of a material fact in light of the circumstances under
which they were made, and any estimates or projections so supplied to the
Purchaser were based on assumptions which WLFC believed to be reasonable
(except as otherwise disclosed therein);
(i) Any taxes, fees and other governmental charges which are due and
payable prior to the Effective Date and the Closing Date by WLFC or the Issuer
in connection with the execution, delivery and performance of the Issuer
Documents and WLFC Documents shall have been paid at or prior to the Effective
Date or the Closing Date, as the case may be;
(j) As of the related Transfer Date, the Issuer has good title to,
and is the sole owner of, the Collateral, free and clear from any Lien except
for the rights of the Lessees under the Lease Agreements and the Lien of the
Indenture Trustee and shall not have assigned to any Person other than the
Indenture Trustee any of its right, title or interest in the Lease Agreements,
the Engines or any other Transferred Assets;
(k) The Indenture Trustee or its agent shall have received, to be
held in trust pursuant to the Indenture and the Series 1997-1 Supplement, the
Transferred Assets including the Lease Agreements and all documents, instruments
and other assets required by the Indenture and the Series 1997-1 Supplement to
be delivered to the Indenture Trustee with respect thereto as of the Closing
Date and as of each related Transfer Date, as applicable;
(l) No fact or condition shall exist under applicable law or
applicable regulations thereunder or interpretations thereof by any regulatory
authority which in the Purchaser's reasonable opinion would make it illegal for
the Issuer to issue and sell the Class A Note or for the Issuer or any of the
other parties thereto to perform their respective obligations under any Related
Document;
(m) The Asset Base as of the Closing Date shall be not less than the
Outstanding Obligations;
(n) The Issuer, WLFC, the Purchaser and the Indenture Trustee shall
each have received a fully executed counterpart original and any required
conformed copies of all Related Documents delivered at or prior to the Closing
Date;
(o) All corporate, trust and other proceedings in connection with the
sale of the Class A Note and the transactions contemplated hereby and all
documents and certificates incident thereto shall be satisfactory in form and
substance to the Purchaser and its counsel, and the Purchaser shall have
received such other documents and certificates incident to such transaction as
the Purchaser or such counsel shall reasonably request;
(p) WLFC shall have furnished to the Purchaser (a) a consolidated
statement of income of WLFC for the fiscal quarter ended December 31, 1996 and a
consolidated
-10-
balance sheet of WLFC dated as of September 30, 1997, each of which shall be in
form and substance satisfactory to the Purchaser, and (b) from the independent
accounting firm which regularly audits WLFC's financial statements, a
consolidated statement of income of WLFC for the fiscal year ended December 31,
1996 and a consolidated balance sheet of WLFC dated as of December 31, 1996,
each of which shall be in form and substance satisfactory to the Purchaser and
be certified by such accounting firm to fairly present the financial condition
of WLFC, to have been prepared in accordance with Generally Accepted Accounting
Principles applied on a basis consistent with that of the preceding fiscal year
and to have been based upon an audit by such accounting firm made in accordance
with generally accepted auditing standards;
(q) The Purchaser shall have received the following, in each case in
form and substance satisfactory to it and its special counsel:
(i) a copy of resolutions of the Board of Directors of the
Issuer, certified by the Secretary or an Assistant Secretary of the Issuer
as of the Effective Date, duly authorizing the issuance, sale and delivery
of the Class A Note by the Issuer and the execution, delivery and
performance by the Issuer of the Issuer Documents and any other Related
Documents to which it is a party and any other documents executed by or on
behalf of the Issuer in connection with the transactions contemplated
hereby; and an incumbency certificate of the Issuer as to the person or
persons executing and delivering each such document;
(ii) a copy of resolutions of the Board of Directors of
WLFC, certified by the Secretary or an Assistant Secretary of WLFC as of
the Effective Date, duly authorizing the execution, delivery and
performance by WLFC of the WLFC Documents and any other Related Documents
to which it is a party and any other documents executed by or on behalf of
WLFC in connection with the transactions contemplated hereby; and an
incumbency certificate of WLFC as to the person or persons executing and
delivering each such document; and
(iii) such other documents and evidence with respect to WLFC,
the Issuer and the Indenture Trustee as the Purchaser may reasonably
request in order to establish the corporate existence and good standing of
each thereof, the proper taking of all appropriate corporate proceedings in
connection with the transactions contemplated hereby and the compliance
with the conditions set forth herein; and
(r) The Purchaser shall receive on or before the Closing Date and
each Transfer Date, as the case may be, evidence that UCC-1 financing statements
and FAA recordations set forth in Section 2.03 of the Contribution and Sale
Agreement have been filed in the appropriate filing offices, reflecting the
interest of the Issuer and the Indenture Trustee in the Collateral;
(s) Reserved;
-11-
(t) No action or proceeding shall have been instituted nor shall any
governmental action be threatened before any court or government agency nor
shall any order, judgment or decree have been issued or proposed to be issued by
any court or governmental agency to set aside, restrain, enjoin or prevent the
performance of the Contribution and Sale Agreement, the Indenture, the other
Related Documents or any of the other agreements or the transactions
contemplated hereby;
(u) Reserved;
(v) All actions, approvals, consents, waivers, exemptions, variances,
franchises, orders, permits, authorizations, rights and licenses required to be
taken, given or obtained by or from any Federal, State or other governmental
authority or agency, or by or from any trustee or holder of any indebtedness or
obligation of WLFC or the Issuer, or that are necessary or, in the opinion of
the Purchaser's special counsel, advisable in connection with the transactions
contemplated herein shall have been delivered to the Purchaser.
(II) CONDITIONS TO EACH SUBSEQUENT LOAN. In addition to those
conditions precedent set forth in Section 7(I) hereof, the Purchaser's
obligation to make a Loan on each date subsequent to the date on which the
initial Loan is made shall be subject to the satisfaction of each of the
following conditions:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. Before and after
giving effect to such Loan, the representations, warranties and covenants in
Sections 4 and 5, or in any other Related Document given by the Issuer, WLFC or
any officer thereof, shall be true and correct in all material respects as
though made on such date on which the Loan is made.
(b) NOTICE. The Purchaser shall have received timely notice of such
Loan and such other documents required pursuant to the terms of this Agreement
and the Indenture and the Series 1997-1 Supplement with respect to such Loan.
Each request for a Loan shall be deemed to be a certification to the Purchaser
that the conditions set forth in this Section 7(II) have been satisfied.
Section 8. INTENTION OF THE PARTIES. The Indenture, the Series
1997-1 Supplement and the Class A Note have been structured with the intention
that the Class A Note will qualify under applicable tax law as indebtedness, and
the Purchaser by acceptance of its Class A Note (and any Person which is a
beneficial owner of any interest in a Class A Note, by virtue of such person's
acquisition of a beneficial interest therein) agrees to treat the Class A Note
for purposes of federal, state and local income or franchise taxes and any other
tax imposed on or measured by income, as indebtedness.
Section 9. EXPENSES. Whether or not the transactions contemplated
hereby and by the Series 1997-1 Transaction Documents shall be consummated, the
Issuer and WLFC agree, jointly and severally, to pay promptly all reasonable
out-of-pocket expenses incurred by you in connection with such transactions
prior to the Effective Date, prior to the Closing Date, prior to each date on
which a Loan is made by a Class A Noteholder pursuant to the Series 1997-1
Supplement, and in connection with any amendment initiated, directly or
indirectly, by
-12-
the Issuer and WLFC (whether or not such amendment becomes effective) or waiver
of any such document, including, without limitation, (i) the cost and expenses
of preparing and reproducing the Series 1997-1 Transaction Documents, (ii) the
cost of arranging for delivery or performance of conditions precedent, (iii) the
fees and disbursements of Thacher Proffitt & Wood and (iv) all costs and
expenses incurred in connection with the transfer and delivery of the Collateral
and the issuance of the Class A Note to you, including custodial fees, Indenture
Trustee's fees, fees for financing statement filings and continuations, and the
Issuer's, WLFC's, and the Indenture Trustee's attorney's and accountant's fees.
The Issuer and WLFC further agree that they will pay or cause to be paid,
promptly upon demand, any reasonable expense incurred by the Purchaser in
connection with the making of any amendment to, the enforcement (after the
occurrence of an Event of Default or an Early Amortization Event under the
Indenture or the Series 1997-1 Supplement) of the Purchaser's rights with
respect to, or the giving of any release, consent or waiver in respect of, this
Class A Note Purchase Agreement and any document executed pursuant hereto or
thereto, including the reasonable fees and disbursements of one counsel to
represent the Purchaser in connection therewith, in each case that are related
to or arise out of a request of, or an action taken by, or that are otherwise
required by, a Person other than the Purchaser. The Issuer and WLFC further
agree that they will pay, or reimburse the Purchaser for, promptly upon demand,
all reasonable costs and expenses (including reasonable legal fees and
disbursements of one counsel for all the Class A Noteholders) incident to or in
connection with any proceeding or governmental investigation against or with
respect to the Issuer, WLFC or any subsidiary or affiliate of any of them and
which result solely because of the ownership by the Purchaser of the Class A
Note. The obligations of the Issuer and WLFC under the immediately preceding
sentence shall survive the termination of the Indenture.
Section 10. SURVIVAL. The parties hereto agree that the
representations, warranties and covenants made by each of them in this Class A
Note Purchase Agreement, and in any document, certificate or other instrument
delivered pursuant hereto or thereto shall be deemed to be relied upon by the
other, notwithstanding any investigation heretofore or hereafter made by or on
behalf of such other party. All representations, warranties and covenants made
by any party to this Class A Note Purchase Agreement, or in any such document,
certificate or other instrument shall survive the delivery of and payment for
the Class A Note.
Section 11. NOTICES. (a) All demands, notices and communications
hereunder shall be in writing, sent by courier service, by facsimile (with
subsequent telephone confirmation of receipt thereof) or hand delivery to the
following addresses (or to such other address as the parties may have designated
in writing to the other parties): (a) in the case of the Purchaser, at the
address stated on the signature page of this Agreement, (b) in the case of the
Issuer, at the following address: 180 Harbor Drive, Suite 207, Sausalito,
California 94965 (with a copy to WLFC), (c) in the case of WLFC, at the
following address: 180 Harbor Drive, Suite 200, Sausalito, California 94965; or
with respect to any other Persons, at the respective address set forth in the
Series 1997-1 Supplement. Notice shall be effective and deemed received (a) two
days after being delivered to the courier service, if sent by courier, (b) upon
receipt of confirmation of transmission, if sent by telecopy, or (c) when
delivered, if delivered by hand.
-13-
(b) The Purchaser hereby agrees to promptly provide the Indenture
Trustee, the Issuer and the Administrative Agent, with a copy of a confirmation
for each LIBOR Period setting forth LIBOR for such LIBOR Period and the
outstanding principal balance of the Loan for such LIBOR Period.
Section 12. SEVERABILITY OF PROVISIONS. Any part, provision,
representation, warranty or covenant of this Class A Note Purchase Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Class A Note Purchase Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 13. COUNTERPARTS. This Class A Note Purchase Agreement may
be executed simultaneously in any number of counterparts. Each counterpart
shall be deemed to be an original, and all such counterparts shall constitute
one and the same instrument.
Section 14. GOVERNING LAW. This Class A Note Purchase Agreement
shall be construed and enforced in accordance with the internal laws of the
State of New York, without giving effect to the principles of conflicts of law,
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with the laws of the State of New York.
Section 15. CONSENT TO JURISDICTION. Any legal suit, action or
proceeding against any of the Issuer, WLFC or the Purchaser arising out of or
relating to this Agreement, or any transaction contemplated hereby, may be
instituted in any federal or state court in New York County, State of New York,
and each of the Issuer, WLFC and the Purchaser hereby waives any objection which
it may now or hereafter have to the laying of venue of any such suit, action or
proceeding, and, solely for the purposes of enforcing this Agreement, each of
the Issuer, WLFC and the Purchaser hereby irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding. Each of the Issuer and WLFC hereby irrevocably appoints and
designates CT Corporation Systems, having an address at 1633 Broadway, New York,
New York 10019, its true and lawful attorney-in-fact and duly authorized agent
for the limited purpose of accepting service of legal process and the Issuer and
WLFC each agree that service of process upon such party shall constitute
personal service of such process on such Person. Each of the Issuer and WLFC
shall maintain the designation and appointment of such authorized agent until
all amounts payable under this Agreement shall have been paid in full. If such
agent shall cease to so act, each of the Issuer and WLFC shall immediately
designate and appoint another such agent satisfactory to the other parties
hereto and shall promptly deliver to the other parties hereto evidence in
writing of such other agent's acceptance of such appointment.
-14-
Section 16. SUCCESSORS AND ASSIGNS. This Class A Note Purchase
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective permitted successors and assigns. The provisions of this
Class A Note Purchase Agreement are intended to be for the benefit of all
Holders, from time to time, of the Class A Note purchased by you, and shall be
enforceable by any Class A Noteholder, whether or not an express assignment of
rights under this Class A Note Purchase Agreement has been made by you or your
successor or assign. Notwithstanding the foregoing, you shall at all times be
the Holder of record of not less than fifty percent (50%) of the unpaid
principal balance of the Class A Notes then outstanding.
Section 17. WAIVER; PRIOR AGREEMENTS. No term or provision of this
Class A Note Purchase Agreement may be waived or modified unless such waiver or
modification is in writing and signed by the party against whom such waiver or
modification is sought to be enforced. This Class A Note Purchase Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof.
Section 18. FURTHER AGREEMENTS. The Purchaser, the Issuer and WLFC
agree to execute and deliver to the other such additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purposes of
this Class A Note Purchase Agreement.
Section 19. GENERAL INTERPRETIVE PRINCIPLES. For purposes of this
Class A Note Purchase Agreement except as otherwise expressly provided or unless
the context otherwise requires:
(a) the terms defined in this Class A Note Purchase Agreement have
the meanings assigned to them in this Class A Note Purchase Agreement and
include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with Generally Accepted Accounting Principles as
in effect on the date hereof;
(c) references herein to "Articles", "Sections", "Subsections",
"paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, paragraphs and other subdivisions of
this Class A Note Purchase Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
-15-
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
-16-
IN WITNESS WHEREOF, the Purchaser, WLFC and the Issuer have caused
their names to be signed hereto by their respective authorized representatives
as of the date first above written.
Very truly yours,
WILLIS LEASE FINANCE CORPORATION
By: /s/ Charles F. Willis
Name: CHARLES F. WILLIS
Title: PRESIDENT
WLFC FUNDING CORPORATION
By: /s/ James D. McBride
Name: JAMES D. MCBRIDE
Title: CHIEF FINANCIAL OFFICER
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By:/s/ Russell D. Morrison
Name: RUSSELL D. MORRISON
Title: VICE PRESIDENT
Address: One First Union Center
Charlotte, North Carolina 28288
Attention: Milton Anderson