EXECUTION COPY
SECOND AMENDMENT TO
AMENDED AND RESTATED SERIES 1997-1 (*)
SUPPLEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED SERIES 1997-1 SUPPLEMENT,
dated as of February 9, 2000 (the "Second Amendment"), is entered into by and
among WLFC FUNDING CORPORATION, as issuer (the "Issuer") and THE BANK OF NEW
YORK, as indenture trustee (the "Indenture"). Capitalized terms used and not
otherwise defined herein are used as defined in the Supplement (as defined
below).
WHEREAS, the parties hereto entered into that certain ▇▇▇▇▇▇▇ and
Restated Series 1997-1 Supplement, dated as of February 11, 1999, as amended by
the First Amendment, dated as of May 12, 1999 (the "Supplement"); and
WHEREAS, the parties hereto desire to amend the Supplement in certain
respects as provided herein;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
(a) The definition of "Conversion Date" in Section 1.1 of the
Supplement is hereby modified, amended and restated to read in its entirety as
follows:
"CONVERSION DATE means the Payment Date occurring on February
9, 2001; PROVIDED, HOWEVER, that such Conversion Date may be
extended annually by the Issuer for one year periods if
approved by all of the Holders of the Class A Notes."
(b) The first paragraph of the definition of "Eligible Engine" in
Section 1.1 of the Supplement is hereby modified, amended and restated to read
in its entirety as follows:
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(*) Portions of the material in this Exhibit have been redacted pursuant to a
request for confidential treatment and the redacted material has been filed
separately with the Commission. An asterisk has been placed in the precise
places in this Agreement where we have redacted information and the
asterisk is keyed to a legend which states that the material has been
omitted pursuant to a request for confidential treatment.
""ELIGIBLE ENGINE" means any Engine that, individually or when
considered with all Eligible Engines then owned (either
directly or beneficially) by Issuer, as applicable, shall
comply with each of the following requirements, unless any of
such requirements is waived in writing by the Deal Agent:"
(c) Clauses (6) and (8) of the definition of "Eligible Lease" in
Section 1.1 of the Supplement are hereby modified, amended and restated to read
in their entirety as follows:
"(6) LEGAL CAPACITY. The Lessee had the legal capacity to
execute such Lease Agreement and the Seller or the Owner
Trustee, as applicable, had the legal capacity to execute such
Lease Agreement or the related acquisition documentation, as
the case may be;
(8) NO CONSENT. No Lease Agreement requires the prior written
consent of a Lessee or contains another restriction relating
to the transfer or assignment of such Lease Agreement by
Seller, the Owner Trustee or the Issuer (except such consent
as have been obtained or restrictions satisfied on or prior to
the related Transfer Date);"
(d) The following clause (16) is added to the end of the
definition of "Eligible Lease" contained in Section 1.1 of the Supplement as
follows:
"(16) if the Lessee of such Engine is domiciled or principally
located in a non-U.S. jurisdiction, (a) such Engine shall be
owned by and leased from an Owner Trustee (acting under a
Trust Agreement), (b) such Owner Trustee shall have executed
and delivered to the Administrative Agent an Owner Trustee
Guaranty, (c) such Owner Trustee shall have executed and
delivered to the Administrative Agent an Owner Trustee
Mortgage covering, among other things, such Engine and Lease
Agreement, and (d) the Issuer shall have executed and
delivered to the Administrative Agent a Beneficial Interest
Pledge Agreement covering, among other things, Issuer's
beneficial interest in the Owner Trust, PROVIDED that this
clause (16) shall only apply to Subsequent Lease
Transactions."
(e) The definition of "Series 1997-1 Transaction Documents" is
hereby modified, amended and restated to read in its entirety as follows:
"SERIES 1997-1 TRANSACTION DOCUMENTS means any and all of the
Indenture, this Supplement, the Series 1997-1 Notes, the
Servicing Agreement, the Contribution and Sale Agreement, the
Class A Note Purchase Agreement, the Administration Agreement,
each Beneficial Interest Pledge Agreement, each Owner Trustee
Guaranty, each Owner Trustee Mortgage, each Trust Agreement
and any and all other agreements, documents and instruments
executed and delivered by or on behalf or in support of Issuer
with respect to the issuance and sale of the Series 1997-1
Notes, as any of the foregoing may from time to time be
amended, modified, supplemented or renewed."
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(f) The following definitions are hereby added in their entirety
to Section 1.1 of the Supplement:
""AMENDMENT DATE" shall mean the date on which this Second
Amendment shall become effective.
"OWNER TRUST" shall have the meaning set forth in Section 5.2.
"SUBSEQUENT LEASE TRANSACTIONS" shall mean those Leases of any
Engine, which Leases shall, on or after the Amendment Date, be
added to the Borrowing Base; PROVIDED, HOWEVER, that
Subsequent Lease Transactions shall not include those
involving LOT and those approved by the Deal Agent."
(g) The following definitions are hereby added in their entirety
to Schedule 1 of the Supplement:
"Developed Asia/Pacific Rim" means the following countries:
Australia, Fiji, Hong Kong, Japan, New Zealand, Singapore and
Taiwan.
"Developed Europe" means the following countries: Austria,
Belgium, Denmark, Finland, France, Germany, Greece, Iceland,
Ireland, Italy, Malta, Norway, Portugal, Spain, Sweden,
Switzerland, The Netherlands and the United Kingdom.
"Emerging Africa/Middle East/Europe" means the following
countries: Hungary, Poland, Bahrain, Israel, Qatar, South
Africa and Turkey.
"Emerging Asia" means the following countries: China,
Indonesia, Korea, Malaysia, Philippines and Thailand.
"Emerging Latin/South America" means the following countries:
Argentina, Aruba, Brazil, Chile, Columbia, Jamaica and Mexico.
"Emerging Market" means Emerging Latin/South America, Emerging
Asia and Emerging Africa/Middle East/Europe.
(h) The definition of "Single Lessee Percentage" in Schedule 1 of
the Supplement is hereby amended and restated to read in its entirety as
follows:
"Single Lessee Percentage" means(*); PROVIDED, HOWEVER, that
if a Lessee is located in an Emerging Market, the Single
Lessee Percentage shall mean(*).
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(*) This redacted material has been omitted pursuant to a request for
confidential treatment and the material has been filed separately with
the Commission.
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(i) Section 3 in Schedule 1 of the Supplement is hereby amended
and restated to read in its entirety as follows:
"Section 3: Geographic Concentration Table"
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GEOGRAPHIC REGION MAXIMUM GEOGRAPHIC PERCENTAGE
------------------------------------------------------------ ---------------------------------------------------------
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Emerging Africa/Middle East/Europe *%
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Emerging Asia *%
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China *%
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Developed Asia/Pacific Rim *%
------------------------------------------------------------ ---------------------------------------------------------
Developed Europe *%
------------------------------------------------------------ ---------------------------------------------------------
North America *%
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Emerging Latin/South America *%
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Emerging Markets *%
------------------------------------------------------------ ---------------------------------------------------------
(j) The following provision is added in its entirety to the end of
the last sentence of Section 4.8 of the Supplement:
"PROVIDED, HOWEVER, that this requirement shall not apply to
Subsequent Lease Transactions."
(k) Clauses (f) (i) and (j) of Section 5.2 of the Supplement is
hereby modified, amended and restated in their entirety as follows:
"(f) SECURITY DOCUMENTS. All UCC financing statements,
documents of similar import in other jurisdictions, including
the documents required to be filed in connection with the
Owner Trust, and other documents reasonably requested by
Series 1997-1 Noteholders shall have been delivered to the
Deal Agent.
(i) PERFECTED SECURITY INTEREST. The Deal Agent shall have
received evidence to its satisfaction that the Indenture
Trustee has (or upon Funding, will have) a first priority
security in each Engine, and related Lease Agreements that
will be the subject of such Loan; PROVIDED, HOWEVER, that if
the applicable laws of any jurisdiction in which an Engine is
required to be registered does not provide for a means to
obtain such first priority security, then the Issuer shall
provide additional assurances satisfactory to the Purchasers.
Notwithstanding the foregoing, for all Subsequent Lease
Transactions involving an Engine that is covered by the laws
of a foreign jurisdiction: (i) the Engine will be owned by an
owner trust that is
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(*) This redacted material has been omitted pursuant to a request for
confidential treatment and the material has been filed separately with the
Commission.
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established solely to hold such assets and the related leases
in connection with the Indenture (the "Owner Trust"), (ii)
the Issuer will be the sole beneficiary of the Trust Estate
(as that term is defined in the Trust Agreement), and (iii)
the Issuer hereby grants a security interest in its beneficial
interest in the Trust Estate to the Indenture Trustee,
PROVIDED, HOWEVER, that the Deal Agent can, in its discretion,
allow a transaction covered by a foreign jurisdiction to not
use an Owner Trust structure.
(j) APPRAISAL. The Deal Agent shall have received an Appraisal
in form, scope and for a value satisfactory to the Deal Agent
with respect to each Engine that will be the subject of such
Loan."
(l) The following subsections are hereby added in their entirety
to the end of Section 5.2 of the Supplement:
"(z) CARGO-ONLY CARRIERS. After giving effect to the transfer
of Engines on any Transfer Date, the percentage of Engines
leased to cargo-only carriers shall not exceed (*)of all
Eligible Engines.
(aa) OWNER TRUSTEE DOCUMENTS. The Deal Agent shall have
received (i) a copy of the resolutions of the Board of
Directors of the Owner Trustee, in its individual capacity,
certified by the Secretary or an Assistant Secretary of the
Owner Trustee, duly authorizing the execution, delivery and
performance by the Owner Trustee of each of the Related
Documents to which the Owner Trustee is or will be a party;
(ii) an incumbency certificate of Owner Trustee, as to the
persons authorized to execute and deliver the Loan Documents
to which it is or will be a party and the signatures of such
person or persons; and (iii) a legal opinion of counsel to the
Owner Trustee with respect to the due authorization, execution
and delivery by the Owner Trustee of the Loan Documents to
which it is or will be a party."
(m) Section 7.1(5) of the Supplement is hereby amended and
restated to read as follows:
"(5) The Asset Base shall be less than or equal to
$60,000,000"
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(*) This redacted material has been omitted pursuant to a request for
confidential treatment and the material has been filed
separately with the Commission.
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(n) The following clause is hereby added in its entirety to the
end of Section 7.1 of the Supplement:
"(8) Outstandings exceed *% of the aggregate Appraised Values
of each Eligible Engine."
SECTION 2. SUPPLEMENT IN FULL FORCE AND EFFECT AS AMENDED. Except as
specifically amended hereby, the Supplement shall remain in full force and
effect. All references to the Supplement shall be deemed to mean the Supplement
as modified hereby. This Second Amendment shall not constitute a novation of the
Supplement, but shall constitute an amendment thereof. The parties hereto agree
to be bound by the terms and conditions of the Supplement, as amended by this
Second Amendment, as though such terms and conditions were set forth herein.
SECTION 3. MISCELLANEOUS.
(a) This Second Amendment may be executed in any number of
counterparts, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument but all
of which together shall constitute one and the same agreement.
(b) The descriptive headings of the various sections of this
Second Amendment are inserted for convenience of reference only and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.
(c) This Second Amendment may not be amended or otherwise modified
except as provided in the Supplement.
(d) THIS SECOND AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS.
(e) First Union Securities, Inc. certifies by acknowledgment
hereof that it is the sole Noteholder.
[Remainder of Page Intentionally Left Blank]
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* This redacted material has been omitted pursuant to a request for
confidential treatment and the material has been filed
separately with the Commission.
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IN WITNESS WHEREOF, the parties have caused this Second Amendment to
the Amended and Restated Series 1997-1 Supplement to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.
WLFC FUNDING CORPORATION
By:
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Name:
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Title:
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THE BANK OF NEW YORK, as indenture trustee
By:
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Name:
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Title:
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THE BANK OF NEW YORK, as securities intermediary
By:
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Name:
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Title:
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Consented and agreed to:
FIRST UNION SECURITIES, INC.,
as the sole Noteholder on
behalf of the Purchasers
By:
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Title:
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