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ADMINISTRATION AGREEMENT
among
WLFC FUNDING CORPORATION,
as Issuer,
▇▇▇▇▇▇ LEASE FINANCE CORPORATION,
as Servicer
FIRST UNION CAPITAL MARKETS CORP.,
as Administrative Agent
and
THE BANK OF NEW YORK,
as Indenture Trustee
Dated as of September 1, 1997
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This ADMINISTRATION AGREEMENT, dated as of September 1, 1997 (the
"Agreement"), among WLFC FUNDING CORPORATION, a Delaware corporation (the
"Issuer"), ▇▇▇▇▇▇ LEASE FINANCE CORPORATION, a California corporation (the
"Servicer"), FIRST UNION CAPITAL MARKETS CORP., a North Carolina corporation
(the "Administrative Agent") and THE BANK OF NEW YORK, a New York banking
corporation, as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer is issuing its Series 1997-1 Notes (the "Series
1997-1 Notes") pursuant to the Series 1997-1 Supplement, dated as of September
1, 1997 (the "Series 1997-1 Supplement") to the Indenture, dated as of September
1, 1997 (the "Indenture"), each between the Issuer and The Bank of New York, as
trustee (the "Indenture Trustee");
WHEREAS, pursuant to the Indenture and the other Related Documents,
the Administrative Agent is required to perform certain duties referred to
therein; and
WHEREAS, the Administrative Agent has the capacity to provide the
services required thereby and is willing to perform such services on the terms
set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
SECTION 1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to such terms in the Series
1997-1 Supplement or, if not defined therein, as defined in the Indenture.
SECTION 2. APPOINTMENT AND AUTHORITY OF ADMINISTRATIVE AGENT.
Subject to the terms and conditions set forth herein, the Indenture Trustee, on
behalf of the Noteholders, hereby appoints the Administrative Agent to perform
all of the activities set forth in Section 3 hereof. By executing this
Agreement, the Administrative Agent hereby accepts such appointment.
SECTION 3. DUTIES OF THE ADMINISTRATIVE AGENT. Subject to the
limitations set forth in this Agreement, the duties of the Administrative Agent
shall be limited to the following:
(a) COORDINATION OF THE ISSUANCE OF ADDITIONAL SERIES. At
the request of the Issuer, the Administrative Agent shall coordinate the
issuance of additional Series pursuant to Section 1006 of the Indenture.
(b) FACILITATION OF TRANSFER TO REPLACEMENT SERVICER. Upon
receipt of a copy of a notice that a Servicer Termination Notice has been issued
pursuant to
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Section 405(b) of the Indenture, the Administrative Agent shall use reasonable
efforts to locate a qualified replacement Servicer to fulfill the duties of the
then current Servicer in accordance with, and subject to the terms and
conditions set forth in, Section 405(b) of the Indenture. The Administrative
Agent agrees to perform the duties set forth in Section 405(b) of the Indenture.
(c) DETERMINATION OF LIBOR. The Administrative Agent shall
determine LIBOR pursuant to the terms and conditions of Section 202(c) of the
Series 1997-1 Supplement. The Class A Noteholder has agreed, pursuant to
Section 11(b) of the Note Purchase Agreement, to provide the Administrative
Agent, among others, with a copy of confirmation for each LIBOR Period setting
forth LIBOR for such LIBOR Period and the outstanding principal balance of the
Loan for such LIBOR Period.
(d) The Administrative Agent shall take all action required
of it under the Indenture or the Series 1997-1 Supplement, including the
determination of whether to grant any waivers, consents or approvals described
therein, and the implementation thereof. All such obligations of the
Administrative Agent set forth therein are incorporated herein by reference and
failure to take any such action shall constitute a breach of this Agreement.
SECTION 4. STANDARD OF CARE; CONFORMITY WITH APPLICABLE LAW;
LIABILITY OF ADMINISTRATIVE AGENT. (a) The Administrative Agent will perform
its duties hereunder in accordance with the same standard of care exercised by
the Administrative Agent in the conduct of similar affairs for its own account.
(b) The Administrative Agent will not, in performing its
obligations hereunder, take any action that would be in violation of any law,
rule or regulation that may be applicable to the Administrative Agent, its
property or the services to be performed hereunder.
(c) The Administrative Agent shall not (a) be liable for
any action taken or omitted to be taken by it under or in connection with this
Agreement (except for its own gross negligence or willful misconduct), or (b) be
responsible in any manner for any recital, statement, representation or warranty
made by the Issuer, Indenture Trustee or Servicer, or any officer thereof,
contained in this Agreement or in any other Related Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or in any other Related Document, or for the value of any Collateral
or the validity, effectiveness, genuineness, enforceability or sufficiency of
any Related Document, or for any failure of the Issuer or Servicer or any other
party to any Related Document to perform its obligations thereunder except to
the extent set forth therein. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
other document reasonably believed by it to be genuine and correct and to have
been signed or sent by the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by the Administrative Agent.
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SECTION 5. RECORDS. The Administrative Agent shall maintain
appropriate books of account and records relating to services performed
hereunder, which books of account and records shall upon prior written notice to
the Administrative Agent be accessible for inspection at the offices of the
Administrative Agent by the Issuer, the Servicer and the Indenture Trustee, and
the agents of any of them, at such inspecting party's expense during the
Administrative Agent's normal business hours.
SECTION 6. INDEMNIFICATION. (a) The Administrative Agent hereby
agrees to indemnify and hold harmless the Indenture Trustee, each Noteholder and
their respective directors, officers and shareholders (each an "INDEMNIFIED
PARTY") from and against any and all damages, losses, liabilities, costs and
expenses incurred by an Indemnified Party resulting from the gross negligence or
willful misconduct of the Administrative Agent in performing (or failing to
perform) its obligations under this Agreement. An Indemnified Party shall
immediately notify the Administrative Agent of any damages, losses,
liabilities, costs or expenses which an Indemnified Party has determined has
given or would give rise to a right of indemnification hereunder and the
Administrative Agent shall have the exclusive right to compromise or defend any
such liability or claim at its own expense, which decision shall be binding and
conclusive upon an Indemnified Party. Failure to give such notice shall not
relieve the Administrative Agent of its obligations hereunder; PROVIDED,
HOWEVER, that the Administrative Agent shall not be liable or otherwise be held
responsible for any damages, losses, liabilities, costs or expenses resulting
from the failure to give such notice. The Administrative Agent hereby agrees to
indemnify and hold harmless the Issuer from and against any and all damages,
losses, liabilities, costs and expenses incurred by the Issuer resulting from
the gross negligence or willful misconduct of the Administrative Agent in
performing its obligations under Section 3(c) hereof.
(b) The Issuer and the Servicer shall jointly and severally indemnify
upon demand the Administrative Agent from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind whatsoever which may at any time
(including at any time following the repayment of any Outstanding Obligations
and the termination or resignation of the related Administrative Agent) be
imposed on, incurred by or asserted against any such Person in any way relating
to or arising out of this Agreement or any document contemplated by or referred
to herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by any such Person under or in connection with any of
the foregoing; PROVIDED, HOWEVER, that neither the Issuer nor the Servicer shall
be liable for the payment to the Administrative Agent of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's negligence or willful misconduct.
SECTION 7. COMPENSATION. As compensation for the performance of
the Administrative Agent's obligations under this Agreement, the Servicer agrees
to pay quarterly
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in arrears, beginning with the third Payment Date, to the Administrative
Agent a fee at the rate of ____% * per annum of the sum of the Aggregate
Outstanding Obligations of all Series then Outstanding on the related
quarterly Payment Date; notwithstanding payment of such fee by the Servicer,
each of the parties hereto acknowledge that the Administrative Agent is the
agent of the Noteholders. If the Servicer fails to pay such fee, the Issuer
shall pay such unpaid amounts from amounts on deposit in the Series 1997-1
Series Account in accordance with the provisions of Section 302 of the Series
1997-1 Supplement. In addition, the Administrative Agent shall also be
entitled to be reimbursed in accordance with Section 302 of the Series 1997-1
Supplement for its expenses incurred in taking any actions required pursuant
to Section 405(b) of the Indenture.
SECTION 8. INDEPENDENCE OF THE ADMINISTRATIVE AGENT. For all
purposes of this Agreement, the Administrative Agent shall be an agent of the
Noteholders and shall not be subject to the supervision of the Issuer, Servicer
or Indenture Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder; PROVIDED, HOWEVER, that the
Administrative Agent shall act in accordance with directions from the Requisite
Global Majority when required by the Indenture or the Related Documents.
SECTION 9. NO JOINT VENTURE. Nothing contained in this Agreement
(i) shall constitute the Administrative Agent, the Issuer, the Servicer and the
Indenture Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on any of them or (iii) shall be
deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
SECTION 10. OTHER ACTIVITIES OF THE ADMINISTRATIVE AGENT. Nothing
herein shall prevent the Administrative Agent or its Affiliates from engaging in
other businesses or, in its sole discretion, from acting in a similar capacity
as an administrator for any other Person even though such Person may engage in
business activities similar to those of the Issuer and/or the Servicer.
SECTION 11. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF
ADMINISTRATIVE AGENT. (a) This Agreement shall continue in force until all of
the Outstanding Obligations under the Indenture are paid in full, upon which
event this Agreement shall automatically terminate.
(b) The Administrative Agent may resign its duties
hereunder by providing each of the Issuer, the Servicer and the Indenture
Trustee with at least 60 days' prior written notice.
--------------------
* This redacted material has been omitted pursuant to a request for
confidential treatment and the material has been filed separately.
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(c) The Indenture Trustee, acting at the written direction
of the Requisite Global Majority, or of the Issuer, may remove the
Administrative Agent immediately upon written notice of termination to the
Administrative Agent (with a copy to each of the Issuer and the Servicer) if any
of the following events shall occur:
(i) the Administrative Agent shall default in any
material respect the performance of any of its duties under this Agreement which
failure continues unremedied for a period of fifteen (15) days after the receipt
by the Administrative Agent of written notice thereof specifying with reasonable
detail the default;
(ii) a court having jurisdiction in the premises
shall enter a decree or order for relief, and such decree or order shall not
have been vacated within 60 days, in respect of the Administrative Agent in any
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the Administrative
Agent or any substantial part of its property or order the winding-up or
liquidation of its affairs; or
(iii) the Administrative Agent shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, shall consent to the entry of an order for relief in
an involuntary case under any such law, or shall consent to the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official for the Administrative Agent or any substantial part of its property,
shall consent to the taking of possession by any such official of any
substantial part of its property, shall make any general assignment for the
benefit of creditors or shall fail generally to pay its debts as they become
due.
(d) No resignation or removal of the Administrative Agent
pursuant to this Section 11 shall be effective until (i) a successor
Administrative Agent shall have been appointed by the Requisite Global Majority
(which successor shall also be reasonably acceptable to the Issuer) and
(ii) such successor Administrative Agent shall have agreed in writing to be
bound by the terms of this Agreement in the same manner as the Administrative
Agent is bound hereunder or as otherwise approved by the Requisite Global
Majority. A copy of any such appointment and the agreement executed by such
successor Administrative Agent shall be promptly sent to each of the Issuer, the
Servicer and the Indenture Trustee.
SECTION 12. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL.
Promptly upon the effective date of termination of this Agreement pursuant to
Section 11(a) of this Agreement or the resignation or removal of the
Administrative Agent pursuant to Section 11(b) or (c) of this Agreement,
respectively, the Administrative Agent shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. In the event of the resignation or removal of the
Administrative Agent pursuant to Section 11(b) or (c) of this Agreement,
respectively, the Administrative Agent shall cooperate with the Indenture
Trustee and take all reasonable steps requested to assist the Requisite Global
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Majority and the Indenture Trustee in making an orderly transfer of the duties
of the Administrative Agent.
SECTION 13. NOTICES. Any notice, report or other communication
given hereunder shall be in writing and addressed as follows:
(a) If to the Issuer, to:
WLFC Funding Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: 415/▇▇▇-▇▇▇▇
with a copy to:
the Servicer and
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Esq.
Telephone: 213/▇▇▇-▇▇▇▇
Fax: 213/▇▇▇-▇▇▇▇
(b) If to the Administrative Agent, to:
First Union Capital Markets Corp.
One First Union Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(c) If to the Indenture Trustee, to:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ Backed Finance ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(d) If to the Servicer, to:
▇▇▇▇▇▇ Lease Finance Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: 415/▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Esq.
Telephone: 213/▇▇▇-▇▇▇▇
Fax: 213/▇▇▇-▇▇▇▇
(e) If to any Noteholder, at the address set forth in the
Note Register.
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed
given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered (or, in the case of the Issuer or the Servicer, by
internationally recognized courier service) to the address of such party as
provided above.
SECTION 14. Amendments. This Agreement may be amended from time to
time by the parties hereto, provided that any amendment must be accompanied by
the written consent of the Requisite Global Majority. Prior to the execution of
any amendment to this Agreement, the Issuer will provide notice of any such
amendment to each Rating Agency, if any.
SECTION 15. SUCCESSORS AND ASSIGNS. This Agreement may not be
assigned by the Administrative Agent except to an Affiliate unless (i) such
assignment is previously consented to in writing by the Indenture Trustee
(acting at the direction of the Control Party of each Series), (ii) such
assignee is reasonably acceptable to the Issuer, and (iii) each Rating Agency,
if any, shall have received prior notice of each such assignment.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES.
SECTION 17. CONSENT TO JURISDICTION. Any legal suit, action or
proceeding against any of the parties hereto 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
parties hereto 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 and the Servicer hereby
irrevocably submits to the non-exclusive jurisdiction of any such court in any
such suit, action or proceeding. Each of the Issuer and the Servicer hereby
irrevocably appoints and designates CT Corporation Systems, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, its true and lawful attorney-in-fact and duly
authorized agent for the limited purpose of accepting
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service of legal process and the Issuer agrees that service of process upon such
party shall constitute personal service of such process on such Person. Each of
the Issuer and the Servicer 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
the Servicer shall immediately designate and appoint another such agent
satisfactory to the Administrative Agent and shall promptly deliver to the
Administrative Agent evidence in writing of such other agent's acceptance of
such appointment.
SECTION 18. HEADINGS. The section headings hereof have been
inserted for convenience of reference only and shall not be construed to affect
the meaning, construction or effect of this Agreement.
SECTION 19. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute but one
and the same agreement.
SECTION 20. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable under any applicable law, rule or regulation or that
would result in the imposition of any fine or adverse regulatory or other
consequence in any jurisdiction shall be ineffective to the extent thereof
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.
SECTION 21. AGREEMENT NOT TO FILE PETITION IN BANKRUPTCY. The
Administrative Agent hereby agrees that it shall not institute against, or join
any other person in instituting against, the Issuer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any insolvency, bankruptcy or similar law of any jurisdiction,
for one year and a day after the last date on which any Note of any Series was
Outstanding.
SECTION 22. BINDING EFFECT; THIRD-PARTY BENEFICIARIES. This
Agreement will inure to the benefit of and be binding upon the parties hereto.
SECTION 23. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
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IN WITNESS WHEREOF, the parties have caused this Administration
Agreement to be duly executed and delivered as of the day and year first above
written.
WLFC FUNDING CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CHIEF FINANCIAL OFFICER
FIRST UNION CAPITAL MARKETS CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
▇▇▇▇▇▇ LEASE FINANCE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: PRESIDENT
THE BANK OF NEW YORK, not in its individual
capacity but solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇. Laser
Name: ▇▇▇▇▇▇ ▇. LASER
Title: ASSISTANT VICE PRESIDENT