0001636222FALSEDallasTexas00016362222024-12-032024-12-03
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 3, 2024
WINGSTOP INC.
(Exact name of registrant as specified in its charter)
| | | | | | | | |
| Delaware | 001-37425 | 47-3494862 |
| (State or other jurisdiction of incorporation or organization) | Commission File Number | (IRS Employer Identification No.) |
| | |
| 2801 N Central Expressway | | |
| Suite 1600 | | |
Dallas, Texas | | 75001 |
| (Address of principal executive offices) | | (Zip Code) |
(972) 686-6500
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): | | | | | |
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| | | | | | | | |
| Securities registered pursuant to Section 12(b) of the Act: |
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
| Common Stock, par value $0.01 per share | WING | NASDAQ Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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| Item 1.01. | Entry into a Material Definitive Agreement |
General
As previously announced, on November 19, 2024, Wingstop Inc. (the “Company,” “we,” “our,” or “us”) entered into a definitive agreement relating to an existing securitized financing facility pursuant to a privately placed securitization transaction (the “2024 Securitization”). To complete the 2024 Securitization, on December 3, 2024 (the “Closing Date”), Wingstop Funding LLC, a Delaware limited liability company (the “Issuer”), a limited purpose, bankruptcy-remote, indirect wholly owned subsidiary of the Company issued $500 million of its Series 2024-1 5.858% Fixed Rate Senior Secured Notes, Class A-2 (the “2024 Class A-2 Notes”). The offering was exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”). In connection with the 2024 Securitization, the Issuer also increased the capacity of its revolving financing facility of Series 2022-1 Variable Funding Senior Notes, Class A-1 (the “Variable Funding Notes”) from $200 million to $300 million. Following the increase, borrowing capacity under the Variable Funding Notes permits borrowings of up to a maximum principal amount of $300 million, a portion of which may be used to issue letters of credit. The 2024 Class A-2 Notes and the Variable Funding Notes are referred to collectively as the “Notes.” Subject to certain limitations, the Notes are secured by certain of the Company’s domestic and foreign revenue-generating assets, consisting principally of franchise-related agreements, intellectual property, and vendor rebate contracts (collectively, the “Securitized Assets”), that were previously contributed or otherwise transferred to the Issuer and certain other limited-purpose, bankruptcy-remote, wholly owned indirect subsidiaries of the Company (collectively, the “Securitization Entities”) that act as guarantors pursuant to a guarantee and collateral agreement previously entered into.
2024 Class A-2 Notes
The 2024 Class A-2 Notes were issued pursuant to a second amended and restated Base Indenture, dated as of March 9, 2022, as amended by the First Supplement to the Second Amended and Restated Base Indenture (the “Base Indenture”) and the related Series 2024-1 Supplement thereto (the “Series 2024-1 Supplement”), each dated December 3, 2024, by and between the Issuer and Citibank, N.A., as trustee (in such capacity, the “Trustee”) and securities intermediary. The Base Indenture and the Series 2024-1 Supplement (collectively with the Series 2022-1 Supplement and any other series supplements to the Base Indenture, the “Indenture”) will allow the Issuer to issue additional series of notes in the future, subject to certain conditions set forth therein.
Interest and principal payments on the 2024 Class A-2 Notes are payable on a quarterly basis. The requirement to make such quarterly principal payments on the 2024 Class A-2 Notes is subject to certain financial conditions set forth in the Indenture. The legal final maturity date of the 2024 Class A-2 Notes is in December 2054, but, unless earlier prepaid to the extent permitted under the Indenture, the anticipated repayment date of the 2024 Class A-2 Notes will be in December 2031. If the Issuer has not repaid or refinanced the 2024 Class A-2 Notes prior to the anticipated repayment date, additional interest will accrue on the 2024 Class A-2 Notes in an amount equal to the greater of (A) 5.00% per annum and (B) a per annum interest rate equal to the excess, if any, by which the sum of the following exceeds the original interest rate of the 2024 Class A-2 Notes (i) the yield to maturity (adjusted to a quarterly bond-equivalent basis) on such anticipated repayment date of the United States Treasury Security having a term closest to 10 years, plus (ii) 5.00%, plus (iii) 1.60%.
Variable Funding Notes
In connection with the Securitization, the Issuer also entered into an amendment and restatement to the revolving financing facility consisting of Variable Funding Notes, which, subject to certain financial and other borrowing conditions set forth in the Variable Funding Note Purchase Agreement, permits borrowings of up to a maximum principal amount of $300 million, a portion of which may be used to issue letters of credit. The Variable Funding Notes were issued under the Indenture and allow for borrowings on a revolving basis. Borrowings and certain additional terms related to the Variable Funding Notes are governed by the Amended and Restated Class A-1 Note Purchase Agreement, dated December 3, 2024, by and among the Issuer, the Guarantors, Wingstop Restaurants Inc., as manager (the “Manager”), certain conduit investors, financial institutions, and funding agents, Morgan Stanley & Co. LLC, as swingline lender, administrative agent and provider of letters of credit (the “Variable Funding Note Purchase Agreement”). The Variable Funding Notes will be governed by both the Variable Funding Note Purchase Agreement and the Indenture. Depending on the type of borrowing under the Variable Funding Notes, interest on the Variable Funding Notes will be based on (i) the prime rate, (ii) overnight federal funds rates, (iii) the secured overnight financing rate or (iv) with respect to advances made by conduit investors, the weighted average cost of, or related to, the issuance of commercial paper allocated to fund or maintain such advances, in each case plus any applicable margin, as more fully set forth in the Variable Funding Note Purchase Agreement and the Series 2022-1 Supplement to the Base Indenture, as supplemented by the First Supplement to Series 2022-1 Supplement, dated December 3, 2024, by and between the Issuer and the Trustee (the "Series 2022-1 Supplement"). The Issuer has not drawn on the Variable Funding Notes as of the Closing Date.
Commitment fees and other usage fees apply to the Variable Funding Notes facility depending on the type of borrowing requested. There is a 60-basis points draw fee on borrowings requested pursuant to the terms of the Variable Funding Note Purchase Agreement. Additionally, during a commitment availability period, there is a 30-basis point commitment fee on the committed portion of the Variable Funding Notes facility which is payable quarterly. It is anticipated that the principal and interest on the Variable Funding Notes will be repaid in full on or prior to December of 2029, subject to two additional one-year extensions at the option of the Manager. Following the anticipated repayment date (and any extensions thereof), additional interest will accrue on the Variable Funding Notes equal to 5.00% per annum.
Covenants and Restrictions
The Notes are subject to a series of covenants and restrictions customary for transactions of this type, including (i) that the Issuer maintains specified reserve accounts to be used to make required payments in respect of the Notes, (ii) provisions relating to optional and mandatory prepayments and the related payment of specified amounts, including specified make-whole payments in the case of the 2024 Class A-2 Notes under certain circumstances, (iii) certain indemnification payments in the event, among other things, that the assets pledged as collateral for the Notes are in stated ways defective or ineffective, and (iv) covenants relating to recordkeeping, access to information, and similar matters. The 2024 Class A-2 Notes are also subject to customary rapid amortization events provided for in the Indenture, including events tied to failure to maintain stated debt service coverage ratios, the sum of global gross sales for specified restaurants being below certain levels on certain measurement dates, certain change of control and manager termination events, an event of default, and the failure to repay or refinance the 2024 Class A‑2 Notes on the applicable anticipated repayment date or scheduled maturity date. The Notes are also subject to certain customary events of default, including events relating to non-payment of required interest, principal or other amounts due on or with respect to the Notes, failure to comply with covenants within certain time frames, certain bankruptcy events, breaches of specified representations and warranties, failure of security interests to be effective, and certain judgments.
Use of Proceeds
On the Closing Date, a portion of the net proceeds of the offering were used to pay fees and expenses related to the issuance of the 2024 Notes. The Company intends to use the remaining proceeds for general corporate purposes, which may include the repurchase of shares of the Company's common stock.
The foregoing summaries do not purport to be complete and are subject to, and qualified in their entirety by reference to, the complete copies of the Base Indenture, the Series 2024-1 Supplement, the Series 2022-1 Supplement, the Variable Funding Note Purchase Agreement, the Guarantee and Collateral Agreement and the Management Agreement, which have been filed as Exhibits 4.1, 4.2, and 10.1, respectively, hereto and are hereby incorporated herein by reference. Interested parties should read the documents in their entirety.
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| Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant |
The information set forth under Item 1.01 above is hereby incorporated by reference into this Item 2.03.
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| Item 9.01. | Financial Statements and Exhibits |
| | | | | |
| (d) | Exhibits |
| 4.1 | |
| 4.2 | Series 2024-1 Supplement to Base Indenture, dated as of December 3, 2024, by and between Wingstop Funding LLC, as Issuer of the Series 2024-1 fixed rate senior secured notes, Class A-2, and Series 2022-1 variable funding senior secured notes, Class A-1, and Citibank, N.A., as Trustee and Series 2024-1 Securities Intermediary. |
| 4.3 | |
| 10.1 | Amended and Restated Class A-1 Note Purchase Agreement, dated as of December 3, 2024, by and among Wingstop Funding LLC, as Issuer, each of Wingstop Guarantor LLC and Wingstop Franchising LLC, each as a Guarantor, Wingstop Restaurants Inc., as Manager, the conduit investors party thereto, the financial institutions party thereto, certain funding agents, Morgan Stanley Asset Funding Inc., as Administrative Agent and Morgan Stanley Bank, N.A., as L/C Provider. |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL Document) |
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. | | | | | | | | | | | | | | |
| | | | Wingstop Inc. |
| | | | |
| | | | |
| Date: | December 3, 2024 | | By: | /s/ Alex R. Kaleida |
| | | | Chief Financial Officer (Principal Financial and Accounting Officer) |
FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED BASE INDENTURE
FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED BASE INDENTURE, dated and effective (subject to Section 2 below) as of December 3, 2024 (this “Amendment”), is entered into by and among (i) WINGSTOP FUNDING LLC, a Delaware limited liability company, as the issuer (the “Issuer”) and (ii) CITIBANK, N.A., a national banking association, as the trustee under the Indenture referred to below (together with its successors and assigns in such capacity, the “Trustee”) and as securities intermediary. Capitalized terms used and not defined herein shall have the meanings set forth or incorporated by reference in the Indenture.
RECITALS
WHEREAS, the Issuer and the Trustee have entered into the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (as the same may be further amended, supplemented or otherwise modified from time to time prior to the date hereof and exclusive of the Series Supplements thereto, the “Base Indenture”; and together with each Series Supplement entered into on or prior to the date hereof and any additional Series Supplements thereto entered into from time to time, the “Indenture”).
WHEREAS, Section 13.1(a) of the Base Indenture provides, among other things, that the Issuer and the Trustee, without the consent of any Noteholder, the Control Party, the Controlling Class Representative or any other Secured Party, may at any time, and from time to time, make certain amendments, waivers and other modifications to the Base Indenture, including the amendments set forth in this Amendment not otherwise indicated as being effective as of the 2024 Springing Amendments Implementation Date.
WHEREAS, with respect to the amendments set forth in this Amendment which are indicated to be effective as of the 2024 Springing Amendments Implementation Date, (a) the Holders of the Series 2024-1 Class A-2 Notes (as defined in the Series 2024-1 Supplement, dated as of the date hereof, to the Base Indenture referenced herein) have, by their purchase of such Series 2024-1 Class A-2 Notes, consented to such amendments and (b) any Holders of Additional Notes will be deemed to consent to such amendments by their purchase thereof. Therefore, effective as of the 2024 Springing Amendments Implementation Date, all Holders of the Notes will have consented to such amendments.
WHEREAS, the Issuer desires to amend the Base Indenture in certain respects, as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows:
1.Amendments to the Base Indenture. The Base Indenture, excluding all the annexes, schedules, and exhibits attached thereto, is hereby amended as reflected in the conformed copy of the Base Indenture attached as Exhibit A to this Amendment, with certain of
such amendments, as indicated in Exhibit A in this Amendment taking effect upon the 2024 Springing Amendments Implementation Date, to delete the stricken text (indicated textually in the same manner as the following example: stricken text and stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text and double-underlined text).
2.Effect of Amendment. Except as expressly amended and modified by this Amendment, all provisions of the Base Indenture shall remain in full force and effect and each reference to the Base Indenture and words of similar import in the Base Indenture, as amended hereby, shall be a reference to the Base Indenture as amended hereby and as the same may be further amended, supplemented or otherwise modified and in effect from time to time. This Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any provision of the Base Indenture other than as set forth herein. This Amendment may not be amended, supplemented or otherwise modified except in accordance with the terms of the Base Indenture. This Amendment constitutes a Supplement pursuant to Section 13.3 of the Base Indenture. This Amendment shall inure to the benefit of and be binding on the respective successors and assigns of the parties hereto, each Noteholder and each other Secured Party.
3.Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
4.Counterparts. This Amendment may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such respective counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of this Amendment in Portable Document Format (PDF) or by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “execute,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Amendment and the transactions contemplated hereby (including without limitation amendments, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Indenture Trustee, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
5.Matters relating to the Trustee. The Trustee makes no representations or warranties as to the correctness of the recitals contained herein, which shall be taken as statements of the Issuer, or the validity or sufficiency of this Amendment and the Trustee shall not be accountable or responsible for or with respect to nor shall the Trustee have any responsibility for any provisions thereof. In entering into this Amendment, the Trustee shall
have all of the rights, powers, duties and obligations of the Trustee under the Base Indenture and any other Transaction Document to which the Trustee is party and, for the avoidance of doubt, shall be entitled to the benefit of every provision thereunder relating to the conduct of or affecting the liability of or affording protection to the Trustee.
6.Representations and Warranties. Each party hereto represents and warrants to each other party hereto that this Amendment has been duly and validly executed and delivered by such party and constitutes its legal, valid and binding obligation, enforceable against such party in accordance with its terms.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
| | | | | |
| WINGSTOP FUNDING LLC, as Issuer |
| |
| By: | /s/ Alex Kaleida |
| Name: Alex R. Kaleida |
| Title: Senior Vice President and Chief Financial Officer |
First Supplement to the Second Amended and Restated Base Indenture
| | | | | |
| CITIBANK, N.A., in its capacity as Trustee |
| |
| By: | /s/ Trang Tran-Rojas |
| Name: Trang Tran-Rojas |
| Title: Senior Trust Officer |
First Supplement to the Second Amended and Restated Base Indenture
Exhibit A
Conformed Copy of the Base Indenture
[see attached]
Conformed Copy of the Second Amended and Restated Base Indenture, as amended by the First
Supplement dated as of December 3, 2024
WINGSTOP FUNDING LLC,
as Issuer
and
CITIBANK, N.A.,
as Trustee and Securities Intermediary
SECOND AMENDED AND RESTATED BASE INDENTURE
Dated as of March 9, 2022
TABLE OF CONTENTS
Page
| | | | | | | | |
| Article I DEFINITIONS AND INCORPORATION BY REFERENCE | 1 |
| Section 1.1 | Definitions | 1 |
| Section 1.2 | Cross-References | 1 |
| Section 1.3 | Accounting and Financial Determinations; No Duplication | 2 |
| Section 1.4 | Rules of Construction | 2 |
| Article II THE NOTES | 3 |
| Section 2.1 | Designation and Terms of Notes | 3 |
| Section 2.2 | Notes Issuable in Series | 4 |
| Section 2.3 | Series Supplement for Each Series | 9 |
| Section 2.4 | Execution and Authentication | 10 |
| Section 2.5 | Note Registrar and Paying Agent | 11 |
| Section 2.6 | Paying Agent to Hold Money in Trust | 11 |
| Section 2.7 | Noteholder List | 12 |
| Section 2.8 | Transfer and Exchange | 12 |
| Section 2.9 | Persons Deemed Owners | 13 |
| Section 2.10 | Replacement Notes | 13 |
| Section 2.11 | Treasury Notes | 14 |
| Section 2.12 | Book-Entry Notes | 14 |
| Section 2.13 | Definitive Notes | 16 |
| Section 2.14 | Cancellation | 16 |
| Section 2.15 | Principal and Interest | 17 |
| Section 2.16 | Tax Matters | 17 |
| Article III SECURITY | 17 |
| Section 3.1 | Grant of Security Interest | 17 |
| Section 3.2 | Certain Rights and Obligations of the Issuer Unaffected | 19 |
| Section 3.3 | Performance of Collateral Documents | 20 |
| Section 3.4 | Stamp, Other Similar Taxes and Filing Fees | 20 |
| Section 3.5 | Authorization to File Financing Statements | 20 |
| Article IV REPORTS | 21 |
| Section 4.1 | Reports and Instructions to Trustee | 21 |
| Section 4.2 | [Reserved]. | 23 |
| Section 4.3 | Rule 144A Information | 23 |
| Section 4.4 | Reports, Financial Statements and Other Information to Noteholders | 23 |
| Section 4.5 | Manager | 24 |
| Section 4.6 | No Constructive Notice. | 24 |
| Article V ALLOCATION AND APPLICATION OF COLLECTIONS | 24 |
| Section 5.1 | Management Accounts | 24 |
| Section 5.2 | Senior Notes Interest Reserve Account. | 25 |
| Section 5.3 | Senior Subordinated Notes Interest Reserve Account. | 26 |
| Section 5.4 | Cash Trap Reserve Account | 27 |
| | | | | | | | |
| Section 5.5 | Collection Account | 27 |
| Section 5.6 | Collection Account Administrative Accounts | 28 |
| Section 5.7 | Hedge Payment Account. | 29 |
| Section 5.8 | Trustee as Securities Intermediary | 29 |
| Section 5.9 | Establishment of Series Accounts; Legacy Accounts | 31 |
| Section 5.10 | Collections and Investment Income | 31 |
| Section 5.11 | Application of Weekly Collections on Weekly Allocation Dates | 35 |
| Section 5.12 | Quarterly Payment Date Applications | 38 |
| Section 5.13 | Determination of Quarterly Interest | 49 |
| Section 5.14 | Determination of Quarterly Principal | 49 |
| Section 5.15 | Prepayment of Principal | 49 |
| Section 5.16 | Retained Collections Contributions | 49 |
| Section 5.17 | Interest Reserve Letters of Credit. | 50 |
| Section 5.18 | Replacement of Ineligible Accounts. | 51 |
| Section 5.19 | Instructions and Directions. | 52 |
| Article VI DISTRIBUTIONS | 52 |
| Section 6.1 | Distributions in General | 52 |
| Article VII REPRESENTATIONS AND WARRANTIES | 53 |
| Section 7.1 | Existence and Power | 53 |
| Section 7.2 | Company and Governmental Authorization | 53 |
| Section 7.3 | No Consent | 53 |
| Section 7.4 | Binding Effect | 54 |
| Section 7.5 | Litigation | 54 |
| Section 7.6 | Employee Benefit Plans | 54 |
| Section 7.7 | Tax Filings and Expenses | 54 |
| Section 7.8 | Disclosure | 55 |
| Section 7.9 | Investment Company Act | 55 |
| Section 7.10 | Regulations T, U and X | 55 |
| Section 7.11 | Solvency | 55 |
| Section 7.12 | Ownership of Equity Interests; Subsidiaries | 55 |
| Section 7.13 | Security Interests | 56 |
| Section 7.14 | Transaction Documents | 56 |
| Section 7.15 | Non-Existence of Other Agreements | 57 |
| Section 7.16 | Compliance with Contractual Obligations and Laws | 57 |
| Section 7.17 | Other Representations | 57 |
| Section 7.18 | Insurance | 57 |
| Section 7.19 | Exchange Act | 57 |
| Section 7.20 | Intellectual Property | 57 |
| Article VIII COVENANTS | 58 |
| Section 8.1 | Payment of Notes | 58 |
| Section 8.2 | Maintenance of Office or Agency | 58 |
| Section 8.3 | Payment and Performance of Obligations | 59 |
| Section 8.4 | Maintenance of Existence | 59 |
| Section 8.5 | Compliance with Laws | 59 |
| Section 8.6 | Inspection of Property; Books and Records | 59 |
| | | | | | | | |
| Section 8.7 | Actions under the Transaction Documents | 60 |
| Section 8.8 | Notice of Defaults and Other Events | 61 |
| Section 8.9 | Notice of Material Proceedings | 62 |
| Section 8.10 | Further Requests | 62 |
| Section 8.11 | Further Assurances | 62 |
| Section 8.12 | Liens | 63 |
| Section 8.13 | Other Indebtedness | 63 |
| Section 8.14 | Employee Benefit Plans | 63 |
| Section 8.15 | Mergers | 64 |
| Section 8.16 | Asset Dispositions | 64 |
| Section 8.17 | Acquisition of Property | 64 |
| Section 8.18 | Dividends, Officers’ Compensation, etc | 64 |
| Section 8.19 | Legal Name, Location Under Section 9-301 or 9-307 | 65 |
| Section 8.20 | Charter Documents | 65 |
| Section 8.21 | Investments | 65 |
| Section 8.22 | No Other Agreements | 65 |
| Section 8.23 | Other Business | 66 |
| Section 8.24 | Maintenance of Separate Existence | 66 |
| Section 8.25 | Covenants Regarding the Securitization IP | 67 |
| Section 8.26 | Insurance | 68 |
| Section 8.27 | Litigation | 68 |
| Section 8.28 | [Reserved] | 69 |
| Section 8.29 | Series Hedge Agreements; Derivatives Generally | 69 |
| Section 8.30 | Future Securitization Entities | 69 |
| Section 8.31 | Tax Lien Reserve Amount | 70 |
| Section 8.32 | Bankruptcy Proceedings. | 70 |
| Article IX REMEDIES | 70 |
| Section 9.1 | Rapid Amortization Events | 70 |
| Section 9.2 | Events of Default | 71 |
| Section 9.3 | Rights of the Control Party and Trustee upon Event of Default | 74 |
| Section 9.4 | Waiver of Appraisal, Valuation, Stay and Right to Marshaling | 76 |
| Section 9.5 | Limited Recourse | 77 |
| Section 9.6 | Optional Preservation of the Collateral | 77 |
| Section 9.7 | Waiver of Past Events | 77 |
| Section 9.8 | Control by the Control Party | 77 |
| Section 9.9 | Limitation on Suits | 78 |
| Section 9.10 | Unconditional Rights of Noteholders to Receive Payment | 78 |
| Section 9.11 | The Trustee May File Proofs of Claim | 78 |
| Section 9.12 | Undertaking for Costs | 79 |
| Section 9.13 | Restoration of Rights and Remedies | 79 |
| Section 9.14 | Rights and Remedies Cumulative | 79 |
| Section 9.15 | Delay or Omission Not Waiver | 80 |
| Section 9.16 | Waiver of Stay or Extension Laws | 80 |
| Article X THE TRUSTEE | 80 |
| Section 10.1 | Duties of the Trustee | 80 |
| | | | | | | | |
| Section 10.2 | Rights of the Trustee | 83 |
| Section 10.3 | Individual Rights of the Trustee | 86 |
| Section 10.4 | Notice of Events of Default and Defaults | 86 |
| Section 10.5 | Compensation and Indemnity | 87 |
| Section 10.6 | Replacement of the Trustee | 87 |
| Section 10.7 | Successor Trustee by Merger, etc. | 88 |
| Section 10.8 | Eligibility Disqualification | 88 |
| Section 10.9 | Appointment of Co-Trustee or Separate Trustee | 88 |
| Section 10.10 | Representations and Warranties of Trustee | 89 |
| Section 10.11 | Confidentiality. | 89 |
| Article XI CONTROLLING CLASS REPRESENTATIVE AND CONTROL PARTY | 91 |
| Section 11.1 | Controlling Class Representative. | 91 |
| Section 11.2 | Resignation or Removal of the Controlling Class Representative | 93 |
| Section 11.3 | Expenses and Liabilities of the Controlling Class Representative. | 93 |
| Section 11.4 | Control Party. | 94 |
| Section 11.5 | Note Owner List. | 95 |
| Article XII DISCHARGE OF INDENTURE | 96 |
| Section 12.1 | Termination of the Issuer’s and Guarantors’ Obligations | 96 |
| Section 12.2 | Application of Trust Money | 99 |
| Section 12.3 | Repayment to the Issuer | 99 |
| Section 12.4 | Reinstatement | 99 |
| Article XIII AMENDMENTS | 100 |
| Section 13.1 | Without Consent of the Controlling Class Representative or the Noteholders | 100 |
| Section 13.2 | With Consent of the Controlling Class Representative or the Noteholders | 103 |
| Section 13.3 | Supplements | 105 |
| Section 13.4 | Revocation and Effect of Consents | 105 |
| Section 13.5 | Notation on or Exchange of Notes | 105 |
| Section 13.6 | The Trustee to Sign Amendments, etc. | 105 |
| Section 13.7 | Amendments and Fees. | 105 |
| Article XIV MISCELLANEOUS | 106 |
| Section 14.1 | Notices. | 106 |
| Section 14.2 | Communication by Noteholders With Other Noteholders | 108 |
| Section 14.3 | Officer’s Certificate as to Conditions Precedent | 109 |
| Section 14.4 | Statements Required in Certificate | 109 |
| Section 14.5 | Rules by the Trustee | 109 |
| Section 14.6 | Benefits of Indenture | 109 |
| Section 14.7 | Payment on Business Day | 109 |
| Section 14.8 | Governing Law | 109 |
| Section 14.9 | Successors | 110 |
| Section 14.10 | Severability | 110 |
| Section 14.11 | Counterpart Originals | 110 |
| Section 14.12 | Table of Contents, Headings, etc. | 110 |
| Section 14.13 | No Bankruptcy Petition Against the Securitization Entities | 110 |
| | | | | | | | |
| Section 14.14 | Recording of Indenture | 110 |
| Section 14.15 | Waiver of Jury Trial | 111 |
| Section 14.16 | Submission to Jurisdiction; Waivers | 111 |
| Section 14.17 | Calculation of Holdco Leverage Ratio and Senior Leverage Ratio | 111 |
| Section 14.18 | Permitted Asset Dispositions; Release of Collateral. | 114 |
| Section 14.19 | No Credit Support. | 114 |
| Section 14.20 | Indemnification Obligations. | 114 |
| Section 14.21 | Electronic Communications. | 114 |
| Section 14.22 | Amendment and Restatement. | 115 |
| Section 14.23 | Electronic Signatures and Transmission. | 115 |
ANNEXES
Annex A Base Indenture Definitions List
EXHIBITS
Exhibit A Form of Weekly Manager’s Certificate
Exhibit B Form of Quarterly Noteholders’ Report
Exhibit C-1 Form of Notice of Grant of Security Interest in Trademarks
Exhibit C-2 Form of Notice of Grant of Security Interest in Patents
Exhibit C-3 Form of Grant of Security Interest in Copyrights
Exhibit D-1 Form of Supplemental Notice of Grant of Security Interest in Trademarks
Exhibit D-2 Form of Supplemental Notice of Grant of Security Interest in Patents
Exhibit D-3 Form of Supplemental Grant of Security Interest in Copyrights
Exhibit E Form of Investor Request Certification
Exhibit F Form of CCR Election Notice
Exhibit G Form of CCR Nomination
Exhibit H Form of CCR Ballot
Exhibit I Form of CCR Acceptance Letter
Exhibit J Form of Note Owner Certificate
SCHEDULES
Schedule 7.3 Consents
Schedule 7.7 Proposed Tax Assessments
Schedule 7.18 Insurance
Schedule 7.20 Pending Actions or Proceedings Relating to the Securitization IP
Schedule 8.11 Liens
Schedule 8.14 Employee Benefit Plans
This SECOND AMENDED AND RESTATED BASE INDENTURE, dated as of March 9, 2022 is entered into by and between WINGSTOP FUNDING LLC, a Delaware limited liability company (the “Issuer”), and CITIBANK, N.A., a national banking association, as trustee (in such capacity, the “Trustee”) and as securities intermediary.
W I T N E S S E T H:
WHEREAS, the Issuer and the Trustee previously entered into that certain Base Indenture, dated as of November 14, 2018 (the “Original Base Indenture”), to provide for the issuance from time to time of one or more Series of Notes;
WHEREAS, the Issuer and the Trustee amended and restated the Original Base Indenture in the form of that certain Amended and Restated Base Indenture, dated as of October 30, 2020 (the “Original Amended and Restated Base Indenture”);
WHEREAS, the Issuer desires to amend and restate the Original Amended and Restated Base Indenture in the form of this Base Indenture;
WHEREAS, the Issuer has duly authorized this Base Indenture and the execution and delivery hereof to provide for the amendment and restatement of the Original Amended and Restated Base Indenture and the issuance from time to time of one or more series of asset-backed notes (including any Additional Notes, the “Notes”) under this Base Indenture, as provided in this Base Indenture and in Supplements hereto; and
WHEREAS, all things necessary to make this Base Indenture a legal, valid and binding agreement of the Issuer, in accordance with its terms, have been done, and the Issuer proposes to do all the things necessary to make the Notes, when executed by the Issuer and authenticated and delivered by the Trustee (or registered in the case of Uncertificated Notes) hereunder and duly issued by the Issuer, the legal, valid and binding obligations of the Issuer as hereinafter provided;
NOW, THEREFORE, for and in consideration of the premises and the receipt of the Notes by the Noteholders, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Noteholders (in accordance with the priorities set forth herein and in any Series Supplement), as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
(a)Capitalized terms used herein (including the preamble and the recitals hereto) and not otherwise defined herein shall have the meanings assigned to such terms in this Base Indenture Definitions List attached hereto as Annex A (the “Base Indenture Definitions List”), as such Base Indenture Definitions List may be amended, supplemented or otherwise modified from time to time in accordance with the provisions hereof.
(b)Any terms used in the Indenture (including, without limitation, for purposes of Article III) that are defined in the UCC and pertaining to Collateral shall be construed and defined as set forth in the UCC, unless otherwise defined in the Indenture.
Section 1.2 Cross-References.
Unless otherwise specified, references in the Indenture and in each other Transaction Document to any Article or Section are references to such Article or Section of the Indenture or such
other Transaction Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.
Section 1.3 Accounting and Financial Determinations; No Duplication.
Where the character or amount of any asset or liability or item of income or expense is required to be determined, or any accounting computation is required to be made, for the purpose of the Indenture or any other Transaction Document, such determination or calculation shall be made, to the extent applicable and except as otherwise specified in the Indenture or such other Transaction Document, in accordance with GAAP. When used herein, the term “financial statement” shall include the notes and schedules thereto. All accounting determinations and computations hereunder or under any other Transaction Document shall be made without duplication.
Section 1.4 Rules of Construction.
In the Indenture and the other Transaction Documents, unless the context otherwise requires:
(a)the singular includes the plural and vice versa;
(b)reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by the Indenture and the other applicable Transaction Documents, as the case may be, and reference to any Person in a particular capacity only refers to such Person in such capacity;
(c)reference to any gender includes the other gender;
(d)reference to any Requirement of Law means such Requirement of Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time;
(e)“including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term;
(f)the word “or” is always used inclusively herein (for example, the phrase “A or B” means “A or B or both”, not “either A or B but not both”), unless used in an “either ... or” construction;
(g)reference to any Transaction Document or other contract or agreement means such Transaction Document, contract or agreement as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof, except (i) with respect to defined terms that define such Transaction Document or other contract or agreement as of certain amendments or other modifications thereto and (ii) as the context requires otherwise;
(h)with respect to the determination of any period of time, except as otherwise specified, “from” means “from and including” and “to” means “to but excluding”; and
(i)reference to each roman-numeral-denominated Tranche within an alphanumerical Class of Notes shall be deemed to have the same alphanumerical priority.
(j)if (i) any funds deposited to an Account are to be paid or allocated, or any action described in the Weekly Manager’s Certificate is to be taken on or prior to the “following Weekly Allocation Date”, the “Weekly Allocation Date immediately following” or on the “immediately following Weekly Allocation Date”, such payment, allocation or action shall occur on (or prior to, if applicable) the Weekly Allocation Date related to the Weekly Collection Period in which such deposit occurs or on (or prior to, if applicable) the Weekly Allocation Date to which the Weekly Manager’s Certificate relates, as applicable, and (ii) an action or event is to occur with respect to a Quarterly Fiscal Period immediately
preceding a Weekly Allocation Date, such action or event shall occur with respect to the most recent Quarterly Fiscal Period ending prior to such Weekly Allocation Date;
(k)if any payment is due, or any action described in a Quarterly Noteholders’ Report is to be taken, on (or prior to) the “related Quarterly Payment Date”, on the “following Quarterly Payment Date”, on the “immediately succeeding Quarterly Payment Date”, on the “next succeeding Quarterly Payment Date” or on the “immediately following Quarterly Payment Date”, such payment shall be due, or such action shall occur, as applicable, either (i) on (or prior to, if applicable) the Quarterly Payment Date related to the Weekly Collection Period in which such payment accrues or on (or prior to, if applicable) the Quarterly Payment Date to which such Quarterly Noteholders’ Report relates or (ii) on the Quarterly Payment Date related to the applicable Quarterly Calculation Date on which such payment is calculated; and
(l)references to (i) the “preceding Weekly Collection Period” means the most recent Weekly Collection Period ending prior to the indicated date, (ii) the “immediately preceding Quarterly Fiscal Period” means the most recent Quarterly Fiscal Period ending prior to the indicated date and (iii) “immediately preceding Quarterly Calculation Date” means the most recent Quarterly Calculation Date.
ARTICLE II
THE NOTES
Section 2.1 Designation and Terms of Notes.
(a)Each Series of Notes shall be substantially in the form specified in the applicable Series Supplement and shall bear, upon its face, the designation for such Series to which it belongs as selected by the Issuer, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted hereby or by the applicable Series Supplement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined to be appropriate by the Authorized Officer of the Issuer executing such Notes, as evidenced by execution of such Notes by such Authorized Officer. All Notes of any Series shall, except as specified in the applicable Series Supplement and in this Base Indenture, be equally and ratably entitled as provided herein to the benefits hereof without preference, priority or distinction on account of the actual time or times of authentication and delivery (or registration in the case of Uncertificated Notes), all in accordance with the terms and provisions of this Base Indenture and any applicable Series Supplement. The aggregate principal amount of Notes which may be authenticated and delivered (or with respect to Uncertificated Notes, registered) under this Base Indenture is unlimited. The Notes of each Series shall be issued in the denominations set forth in the applicable Series Supplement.
(b)With respect to any Class A-1 Note Purchase Agreement entered into by the Issuer in connection with the issuance of any Class A-1 Notes, whether or not any of the following shall have been specifically provided for in the applicable provision of the Indenture Documents, the following shall be true (except to the extent that the Series Supplement with respect to such Class of Notes or such Class A-1 Note Purchase Agreement provides otherwise):
(i)for purposes of any provision of any Indenture Document relating to any vote, consent, direction, waiver or the like to be given by such Class on any date, with respect to the related Class A-1 Notes Outstanding, the relevant principal amount of such Class A-1 Notes to be used in tabulating the percentage of such Class voting, consenting, directing, waiving or the like shall be deemed to be the related Class A-1 Notes Voting Amount;
(ii)for purposes of any provisions of any Indenture Document relating to termination, discharge or the like, such Class shall continue to be deemed Outstanding unless and until all commitments to extend credit under such Class A-1 Note Purchase Agreement have been terminated thereunder and the Outstanding Principal Amount of such Class shall have been reduced to zero; and
(iii)notwithstanding the foregoing, and for the avoidance of doubt, a Series Supplement or such Class A-1 Note Purchase Agreement may provide for different treatment of commitments of a Noteholder of a Class A-1 Note subject to such Series Supplement or such Class A-1 Note Purchase Agreement that has failed to make a payment required to be made by it under the terms of such Class A-1 Note Purchase Agreement, that has provided written notification that it does not intend to make a payment required to be made by it thereunder when due or that has become the subject of an Event of Bankruptcy.
Section 2.2 Notes Issuable in Series.
(a)The Notes shall be issued in one or more Series of Notes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant to a Supplement to the existing Series Supplement. Any Series of Class A-1 Notes may be uncertificated if provided for in its Series Supplement.
(b)So long as each of the certifications described in clauses (iii)(H) (if applicable) and (vi) below are true and correct as of the applicable Series Closing Date, Notes to be issued (other than with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the related Series Supplement) may be executed by the Issuer and delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request at least five (5) Business Days (except in the case of the issuance of the first Series of Notes on the Closing Date or in connection with a Series Refinancing Event) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer upon notice to the Trustee no later than 5:00 p.m. (New York City time) two (2) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer to the Trustee and the Control Party, and receipt by the Trustee and the Control Party, of the following:
(i)a Company Order authorizing and directing the authentication and delivery (or registration in the case of Uncertificated Notes) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the Notes to be authenticated (or registered in the case of Uncertificated Notes) and the Note Rate with respect to such Notes;
(ii)a Series Supplement for a new Series of Notes or a Supplement to the related Series Supplement for Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer and the Trustee and specifying the Principal Terms of such Notes;
(iii)in the case of any Additional Notes, if there is one or more Series of Notes Outstanding (apart from such Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such Additional Notes) will be repaid in full from the proceeds of the issuance of such Additional Notes or otherwise on the applicable Series Closing Date):
(A)no Cash Trapping Period is in effect or will commence as a result of the issuance of such Additional Notes;
(B)the Rating Agency Condition with respect to the issuance of such Additional Notes has been satisfied;
(C)no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the issuance of such Additional Notes;
(D)no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Additional Notes;
(E)subject to the terms of Section 5.16, the Additional Notes DSCR is greater than or equal to 2.00x after giving pro forma effect to the issuance of such Additional Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(F)the Senior Leverage Ratio is less than or equal to 7.00x and the Holdco Leverage Ratio is less than or equal to 7.50x, in each case after giving pro forma effect to the issuance of such Additional Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(G)the legal final maturity for any such Additional Notes (other than the Class A-1 Notes) will not be prior to the legal final maturity of any Class of Senior Notes then Outstanding;
(H)an Officer’s Certificate, executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date, certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1)all conditions precedent with respect to the authentication and delivery (or registration in the case of Uncertificated Notes) of such Additional Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Additional Notes have been satisfied or waived;
(2)the Guarantee and Collateral Agreement is in full force and effect as to such Additional Notes;
(3)each of the parties to the Transaction Documents with respect to such Additional Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is one year and one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; and
(4)all representations and warranties of the Issuer in this Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date, which
representation and warranty shall remain true and correct as of such earlier date in all material respects);
(I)other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of Notes, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without such consents as are required under this Base Indenture or the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to the Trustee and the Control Party. For the avoidance of doubt, Additional Notes may be fixed rate notes, floating rate notes and/or notes subject to a revolving commitment;
(J)all costs, fees and expenses with respect to the issuance of such Additional Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date have been paid or will be paid from the proceeds of the issuance of such Additional Notes or other available amounts; and
(K)if such Additional Notes include Subordinated Debt, the terms of such Additional Notes include the Subordinated Debt Provisions to the extent applicable;
(iv)a Tax Opinion, dated the applicable Series Closing Date; provided that, if there are no Notes Outstanding or if all Series of Notes Outstanding will be repaid in full from the proceeds of the issuance of such Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be required to be given in connection with the issuance of such Notes;
(v)one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that:
(A)all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Closing Date);
(B)the related Series Supplement or, if applicable, the Supplement to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms;
(C)such Notes have been duly authorized by the Issuer, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the
Trustee, such Notes will be legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(D)none of the Securitization Entities is required to be registered under the Investment Company Act within the meaning of Section 3(a)(1) thereof;
(E)the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, and such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such Notes;
(F)based on a reasoned analysis, the assets and liabilities of each Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of Parent;
(G)neither the execution and delivery by the Issuer of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or Supplement to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer of its obligations under such Notes and the Series Supplement (or the Supplement to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) (i) conflicts with the Charter Documents of the Issuer, (ii) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to the Issuer (which orders and decrees may be set forth in a schedule to such opinion);
(H)neither the execution and delivery by the Issuer of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the Supplement to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer of its payment obligations under such Notes and the related Series Supplement (or the Supplement to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) (i) violates any applicable law, rule or regulation of any relevant jurisdiction or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any Governmental Authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made;
(I)there is no action, proceeding or investigation pending or threatened against Parent or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(J)unless such Notes are being offered pursuant to a registration statement that has been declared effective under the Securities Act, it is not necessary in connection with the offer and sale of such Notes by the Issuer to the initial purchasers thereof or by the initial purchasers to the initial investors in such Notes to register such Notes under the Securities Act; and
(K)all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the Supplement to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Closing Date);
(vi)one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) the related Series Supplement (or the Supplement to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the Supplement to the Series Supplement pursuant to which such Additional Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii)any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viii)such other documents, instruments, certifications, agreements or other items as the Trustee may reasonably require.
(c)Upon satisfaction, or waiver by the Control Party (which waiver shall be in writing) (as directed by the Controlling Class Representative), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes), as provided above, such Notes upon execution thereof by the Issuer.
(d)With regard to any Additional Notes issued pursuant to this Section 2.2, the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided that at any time on or after the Series Anticipated Repayment Date for any Series of Notes, the proceeds from the issuance of Subordinated Notes may only
be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e)The issuance of Additional Notes shall not be subject to the consent of the Holders of any Series of Notes Outstanding. Additional Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization Entities.
Section 2.3 Series Supplement for Each Series.
In conjunction with the issuance of any Notes (other than Additional Notes of an existing Series, Class, Subclass or Tranche of Notes), the parties hereto shall execute a Series Supplement for such Notes, which shall specify the relevant terms with respect to such Notes, which may include without limitation:
(a)its name or designation;
(b)the Initial Principal Amount with respect to such Notes;
(c)the Note Rate with respect to such Notes;
(d)the Series Closing Date;
(e)the Series Anticipated Repayment Date, if any;
(f)the Series Legal Final Maturity Date;
(g)the principal amortization schedule with respect to such Notes, if any;
(h)each Rating Agency rating such Notes, if any;
(i)the name of the Clearing Agency or Clearing Agencies, if any;
(j)the names of the Series Distribution Accounts and any other Series Accounts to be used with respect to such Notes and the terms governing the operation of any such account and the use of moneys therein;
(k)the method of allocating amounts deposited into any Series Distribution Account with respect to such Notes;
(l)whether such Notes will be issued in one or more Classes, Subclasses or Tranches, and the rights and priorities of each such Class, Subclass or Tranche;
(m)any deposit of funds to be made in any Base Indenture Account or any Series Account on the Series Closing Date;
(n)whether such Notes may be issued as either Definitive Notes, Uncertificated Notes and/or Book-Entry Notes and any limitations imposed thereon;
(o)whether such Notes include Senior Notes, Senior Subordinated Notes and/or Subordinated Notes;
(p)whether such Notes include Class A-1 Notes or subfacilities of Class A-1 Notes issued pursuant to a Class A-1 Note Purchase Agreement;
(q)the terms of any related Series Hedge Agreement and the applicable Hedge Counterparty, if any; and
(r)any other relevant terms of such Notes (all such terms, the “Principal Terms” of such Series).
In conjunction with the issuance of Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, the parties hereto shall execute a Supplement to the Series Supplement for such existing Series, Class, Subclass or Tranche of Notes.
Section 2.4 Execution and Authentication.
(a)The Notes (other than Uncertificated Notes) shall, upon issuance pursuant to Section 2.2, be executed on behalf of the Issuer by an Authorized Officer of the Issuer and delivered by the Issuer to the Trustee for authentication and redelivery as provided herein. The signature of such Authorized Officer on the Notes may be manual or facsimile. If an Authorized Officer of the Issuer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note shall nevertheless be valid.
(b)At any time and from time to time after the execution and delivery of this Base Indenture, the Issuer may deliver Notes (other than Uncertificated Notes) of any particular Series (issued pursuant to Section 2.2) executed by the Issuer to the Trustee for authentication, together with one or more Company Orders for the authentication and delivery (or registration in the case of Uncertificated Notes) of such Notes, and the Trustee, in accordance with such Company Order and this Base Indenture, shall authenticate and deliver such Notes (or register such Notes, in the case of Uncertificated Notes).
(c)No Note (other than Uncertificated Notes) shall be entitled to any benefit under the Indenture or be valid for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for below, duly executed by the Trustee by the manual signature of a Trust Officer. Such signatures on such certificate shall be conclusive evidence, and the only evidence, that the Note has been duly authenticated under this Base Indenture. The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate any applicable Notes. Unless limited by the term of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Base Indenture to authentication by the Trustee includes authentication by such authenticating agent. The Trustee’s certificate of authentication shall be in substantially the following form:
“This is one of the Notes of a Series issued under the within mentioned Indenture.
| | | | | | | | | | | | | | |
| | | CITIBANK, N.A., as Trustee |
| | | | |
| | | By: | |
| | | Name: |
| | | Title: Authorized Signatory” |
(d)Each Note (other than Uncertificated Notes) shall be dated and issued as of the date of its authentication by the Trustee.
(e)Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Note to the Trustee for cancellation as provided in Section 2.14 together with a written statement to the Trustee and the Servicer (which need not comply with Section 14.3) stating that such Note has never been issued and sold by the Issuer, for all purposes of the Indenture such Note shall be deemed never to have been authenticated and delivered hereunder and shall not be entitled to the benefits of the Indenture.
Section 2.5 Note Registrar and Paying Agent.
(a)The Issuer shall (i) maintain an office or agency where Notes may be presented for registration of transfer or for exchange (or de-registration in the case of Uncertificated Notes) (the “Note Registrar”) and (ii) appoint a paying agent (which shall satisfy the eligibility criteria set forth in Section 10.8(a)) (the “Paying Agent”) at whose office or agency Notes (or evidence of ownership of Uncertificated Notes) may be presented for payment. The Note Registrar shall keep a register of the Notes (including the name and address of each such Noteholder) and of their transfer and exchange. The Trustee shall indicate in its books and records the commitment of each Noteholder, if applicable, and the principal amount owing to each Noteholder from time to time. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Paying Agent” shall include any additional paying agent, and the term “Note Registrar” shall include any co-registrars. The Issuer may change the Paying Agent or the Note Registrar without prior notice to any Noteholder. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Base Indenture. The Trustee is hereby initially appointed as the Note Registrar and the Paying Agent and shall send copies of all notices and demands received by the Trustee (other than those sent by the Issuer to the Trustee and those addressed to the Issuer) in connection with the Notes to the Issuer. Upon any resignation or removal of the Note Registrar, the Issuer shall promptly appoint a successor Note Registrar or, in the absence of such appointment, the Issuer shall assume the duties of the Note Registrar.
(b)The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this Base Indenture. Such agency agreement shall implement the provisions of this Base Indenture that relate to such Agent. If the Issuer fails to maintain a Note Registrar or Paying Agent, the Trustee hereby agrees to act as such, and shall be entitled to appropriate compensation in accordance with this Base Indenture until the Issuer shall appoint a replacement Note Registrar or Paying Agent, as applicable.
Section 2.6 Paying Agent to Hold Money in Trust.
(a)The Issuer will cause the Paying Agent (if the Paying Agent is not the Trustee) to execute and deliver to the Trustee an instrument in which the Paying Agent shall agree with the Trustee (and if the Trustee is the Paying Agent, it hereby so agrees), subject to the provisions of this Section 2.6, that the Paying Agent will:
(i)hold all sums held by it for the payment of amounts due with respect to the Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(ii)give the Trustee notice of any default by the Issuer of which it has Actual Knowledge in the making of any payment required to be made with respect to the Notes;
(iii)at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by the Paying Agent;
(iv)immediately resign as the Paying Agent and forthwith pay to the Trustee all sums held by it in trust for the payment of Notes if at any time it ceases to meet the standards required to be met by a Trustee hereunder at the time of its appointment; and
(v)comply with all requirements of the Code and other applicable tax law (including for the avoidance of doubt, FATCA) with respect to the withholding from any payments made by it on any Notes of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith.
(b)The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of the Indenture or for any other purpose, by Company Order direct the Paying Agent to pay to the Trustee all sums held in trust by the Paying Agent, such sums to be held by the Trustee in trust upon the same terms as those upon which the sums were held in trust by the Paying Agent. Upon such
payment by the Paying Agent to the Trustee, the Paying Agent shall be released from all further liability with respect to such money.
(c)Subject to applicable laws with respect to escheat of funds, any money held by the Trustee or the Paying Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed for two years after such amount has become due and payable shall be discharged from such trust and be paid to the Issuer upon delivery of a Company Request. The Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof (but only to the extent of the amounts so paid to the Issuer), and all liability of the Trustee or the Paying Agent with respect to such trust money paid to the Issuer shall thereupon cease; provided, however, that the Trustee or the Paying Agent, before being required to make any such repayment, may, at the expense of the Issuer, cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in New York City, and in a newspaper customarily published on each Business Day and of general circulation in London, if applicable, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than thirty (30) days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer. The Trustee may also adopt and employ, at the expense of the Issuer, any other commercially reasonable means of notification of such repayment.
Section 2.7 Noteholder List.
(a)The Trustee will furnish or cause to be furnished by the Note Registrar to the Issuer, the Manager, the Control Party, the Controlling Class Representative or the Paying Agent, within five (5) Business Days after receipt by the Trustee of a request therefor from the Issuer, the Manager, the Control Party, the Controlling Class Representative or the Paying Agent, respectively, in writing, the names and addresses of the Noteholders of each Series as of the most recent Record Date for payments to such Noteholders. Every Noteholder, by receiving and holding a Note or beneficial interest therein, agrees that none of the Trustee, the Note Registrar, the Issuer, the Servicer, the Controlling Class Representative nor any of their respective agents shall be held accountable by reason of any disclosure of any such information as to the names and addresses of the Noteholders in the Note Register.
(b)The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Noteholders of each Series of Notes. If the Trustee is not the Note Registrar, the Issuer shall furnish to the Trustee at least seven (7) Business Days before each Quarterly Payment Date and at such other time as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Noteholders of each Series of Notes.
Section 2.8 Transfer and Exchange.
(a)Upon surrender for registration of transfer of any Note (or as set forth in any Series Supplement with respect to the transfer and registration or de-registration of any Uncertificated Notes) at the office or agency of the Note Registrar, if the requirements of Section 2.8(f) and Section 8-401(a) of the New York UCC are met, the Issuer shall (except in the case of Uncertificated Notes) execute and, after the Issuer has executed, the Trustee shall authenticate and deliver to the Noteholder, in the name of the designated transferee or transferees, one or more new Notes, in any authorized denominations, of the same Series and Class (and, if applicable, Subclass or Tranche) and a like original aggregate principal amount of the Notes so transferred. At the option of any Noteholder, Notes may be exchanged (or de-registered) for other Notes (or in the case of an exchange for Uncertificated Notes, registered) of the same Series and Class (and, if applicable, Subclass or Tranche) in authorized denominations of like original aggregate principal amount of the Notes so exchanged, upon surrender (or de-registration) of the Notes to be exchanged at any office or agency of the Note Registrar maintained for such purpose. Whenever Notes of any Series are so surrendered for exchange (or de-registration), if the requirements of Section 2.8(f) and Section 8-401(a) of the New York UCC are met, the Issuer shall execute (other than Uncertificated Notes) and, after the Issuer has executed, the Trustee shall authenticate and deliver to the Noteholder the Notes (other than Uncertificated Notes) which the Noteholder making the exchange is entitled to receive.
(b)Every Note presented or surrendered for registration of transfer or exchange shall be (i) (other than Uncertificated Notes) duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Trustee, the Issuer and the Note Registrar duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing with a medallion signature guarantee and (ii) accompanied by such other documents as the Trustee and the Note Registrar may require to document the identities and/or signatures of the transferor and the transferee (including but not limited to the applicable Internal Revenue Service Form W-8 or W-9). The Issuer shall execute and deliver to the Trustee or the Note Registrar, as applicable, Notes in such amounts and at such times as are necessary to enable the Trustee to fulfill its responsibilities under the Indenture and the Notes.
(c)All Notes issued and authenticated upon any registration of transfer or exchange of the Notes (including any transfer of Uncertificated Notes) shall be the valid obligations of the Issuer, evidencing the same indebtedness, and entitled to the same benefits under the Indenture, as the Notes surrendered upon such registration of transfer or exchange.
(d)The preceding provisions of this Section 2.8 notwithstanding, (i) the Trustee, the Issuer or the Note Registrar, as the case may be, shall not be required (A) to issue, register the transfer of or exchange (or de-registration) of any Note of any Series for a period beginning at the opening of business fifteen (15) days preceding the selection of any Series of Notes for redemption and ending at the close of business on the day of the mailing of the relevant notice of redemption or (B) to register the transfer of or exchange any Note so selected for redemption, and (ii) no assignment or transfer of a Note or any commitment in respect thereof shall be effective until such assignment or transfer shall have been recorded in the Note Register and in the books and records of the Trustee, as applicable, pursuant to Section 2.5(a) or as otherwise set forth in a Series Supplement with respect to Uncertificated Notes.
(e)No service charge shall be payable for any registration of transfer or exchange (or de-registration) of Notes, but the Note Registrar or the Trustee, as the case may be, may require payment by the Noteholder of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration, de-registration, transfer or exchange of Notes.
(f)Unless otherwise provided in the applicable Series Supplement, registration of transfer of Notes containing a legend relating to the restrictions on transfer of such Notes (which legend shall be set forth in the applicable Series Supplement) shall be effected only if the conditions set forth in such applicable Series Supplement are satisfied. Notwithstanding any other provision of this Section 2.8 and except as otherwise provided in Section 2.13 or any applicable Series Supplement with respect to Uncertificated Notes, the typewritten Note or Notes representing Book-Entry Notes for any Series may be transferred, in whole but not in part, only to another nominee of the Clearing Agency for such Series, Class, Subclass or Tranche, or to a successor Clearing Agency for such Series, Class, Subclass or Tranche selected or approved by the Issuer or to a nominee of such successor Clearing Agency, only if in accordance with this Section 2.8 and Section 2.12.
Section 2.9 Persons Deemed Owners.
Prior to due presentment for registration of transfer of any Note (or any other transfer and de-registration of Uncertificated Notes), the Trustee, the Servicer, the Controlling Class Representative, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered (as of the day of determination) as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever (other than purposes in which the vote or consent of a Note Owner is expressly required pursuant to this Base Indenture or the applicable Series Supplement), whether or not such Note is overdue, and none of the Trustee, the Servicer, the Controlling Class Representative, any Agent nor the Issuer shall be affected by notice to the contrary.
Section 2.10 Replacement Notes.
(a)If (i) any mutilated Note is surrendered to the Trustee, or the Trustee receives evidence to its reasonable satisfaction of the destruction, loss or theft of any Note, and (ii) there is
delivered to the Issuer and the Trustee such security or indemnity as may be required by them to hold the Issuer and the Trustee harmless, then, provided that the requirements of Section 2.8(f) and Section 8-405 of the New York UCC are met, the Issuer shall execute and, upon its request, the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note; provided, however, that if any such destroyed, lost or stolen Note, but not a mutilated Note, shall have become, or within seven (7) days shall be, due and payable, instead of issuing a replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so due or payable without surrender thereof. If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen Note pursuant to the preceding sentence, a protected purchaser (within the meaning of Section 8-303 of the New York UCC) of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuer and the Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered or any assignee of such Person, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Trustee in connection therewith.
(b)Upon the issuance of any replacement Note (or registration of Uncertificated Notes) under this Section 2.10, the Issuer may require the payment by the Holder of such Note of a sum sufficient to cover any Tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Trustee and the Note Registrar) connected therewith.
(c)Every replacement Note issued (or registered in the case of Uncertificated Notes) pursuant to this Section 2.10 in replacement of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer and such replacement Note shall be entitled to all the benefits of the Indenture equally and proportionately with any and all other Notes duly issued under the Indenture (in accordance with the priorities and other terms set forth herein and in each applicable Series Supplement).
(d)The provisions of this Section 2.10 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.11 Treasury Notes.
In determining whether the Noteholders of the required Aggregate Outstanding Principal Amount of Notes or the required Outstanding Principal Amount of any Series or any Class, Subclass or Tranche of any Series of Notes, as the case may be, have concurred in any direction, waiver or consent, Notes owned, legally or beneficially, by the Issuer or any Affiliate of the Issuer shall be considered as though they are not Outstanding, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes of which a Trust Officer has received written notice of such ownership shall be so disregarded. Absent written notice to a Trust Officer of such ownership, the Trustee shall not be deemed to have knowledge of the identity of the individual Note Owners.
Section 2.12 Book-Entry Notes.
(a)Unless otherwise provided in any applicable Series Supplement (including with respect to Uncertificated Notes), the Notes of each Class, Subclass or Tranche of each Series, upon original issuance, shall be issued in the form of typewritten Notes representing Book-Entry Notes and delivered to the depository (or its custodian) specified in such Series Supplement (the “Depository”) which shall be the Clearing Agency on behalf of such Series or such Class, Subclass or Tranche. The Notes of each Class, Subclass or Tranche of each Series shall, unless otherwise provided in the applicable Series Supplement (including with respect to Uncertificated Notes), initially be registered on the Note Register in the name of the Clearing Agency or the nominee of the Clearing Agency. No Note Owner will receive a definitive note representing such Note Owner’s interest in the related Series of Notes,
except as provided in Section 2.13. Unless and until definitive, fully registered Notes of any Series or any Class, Subclass or Tranche of any Series (“Definitive Notes”) have been issued to Note Owners pursuant to Section 2.13 (or as otherwise set forth in any applicable Series Supplement with respect to Uncertificated Notes):
(i)the provisions of this Section 2.12 shall be in full force and effect with respect to each such Series, Class, Subclass or Tranche;
(ii)the Issuer, the Paying Agent, the Note Registrar, the Trustee, the Servicer and the Controlling Class Representative may deal with the Clearing Agency and the applicable Clearing Agency Participants for all purposes (including the payment of principal of, premium, if any, and interest on the Notes and the giving of instructions or directions hereunder or under the applicable Series Supplement) as the sole Holder of the Notes, and shall have no obligation to the Note Owners;
(iii)to the extent that the provisions of this Section 2.12 conflict with any other provisions of the Indenture, the provisions of this Section 2.12 shall control with respect to each such Series of the Notes or such Class, Subclass or Tranche;
(iv)subject to the rights of the Servicer and the Controlling Class Representative under the Indenture, and except for the rights granted pursuant to Section 11.5(b), the rights of Note Owners of each such Series, Class, Subclass or Tranche of Notes shall be exercised only through the Clearing Agency and the applicable Clearing Agency Participants and shall be limited to those established by law and agreements between such Note Owners and the Clearing Agency and/or the Clearing Agency Participants, and all references in the Indenture to actions by the Noteholders shall refer to actions taken by the Clearing Agency upon instructions from the Clearing Agency Participants, and all references in the Indenture to distributions, notices, reports and statements to the Noteholders shall refer to distributions, notices, reports and statements to the Clearing Agency, as registered holder of the Notes of such Series, Class, Subclass or Tranche for distribution to the Note Owners in accordance with the Applicable Procedures of the Clearing Agency; and
(v)subject to the rights of the Servicer and the Controlling Class Representative under the Indenture and the rights granted pursuant to Section 11.5(b), whenever the Indenture requires or permits actions to be taken based upon instructions or directions of Noteholders evidencing a specified percentage of the Aggregate Outstanding Principal Amount of Notes or the Outstanding Principal Amount of a Series or Class, Subclass or Tranche, the applicable Clearing Agency shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Note Owners and/or their related Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Outstanding Notes or such Series or such Class, Subclass or Tranche of such Series of Notes Outstanding, as the case may be, and has delivered such instructions in writing to the Trustee.
(b)Pursuant to the Depository Agreement applicable to a Series, Class, Subclass or Tranche, unless and until Definitive Notes of such Series, Class, Subclass or Tranche, are issued pursuant to Section 2.13 (or as otherwise set forth in any applicable Series Supplement with respect to Uncertificated Notes), the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit distributions of principal, premium, if any, and interest on the Notes to such Clearing Agency Participants.
(c)Whenever notice or other communication to the Noteholders is required under the Indenture, unless and until Definitive Notes shall have been issued to Note Owners pursuant to Section 2.13, the Trustee and the Issuer shall give all such notices and communications specified herein to be given to Noteholders to the applicable Clearing Agency for distribution to the Note Owners in accordance with the Applicable Procedures of each Clearing Agency.
Section 2.13 Definitive Notes.
(a)The Notes of any Series or Class, Subclass or Tranche of any Series, to the extent provided in the related Series Supplement, upon original issuance, may be issued in the form of Definitive Notes or Uncertificated Notes. The applicable Series Supplement shall set forth the legend relating to the restrictions on transfer of such Definitive Notes (or transfer and de-registration with respect to Uncertificated Notes) and such other restrictions as may be applicable.
(b)With respect to the Notes of any Series, Class, Subclass or Tranche, issued in the form of typewritten Notes representing Book-Entry Notes, if (i) (A) the Issuer advises the Trustee in writing that the Clearing Agency with respect to any such Series of Notes is no longer willing or able to discharge properly its responsibilities under the applicable Depository Agreement and (B) the Trustee or the Issuer are unable to locate a qualified successor or (ii) after the occurrence of a Rapid Amortization Event, with respect to any Series of Notes Outstanding, Note Owners holding a beneficial interest in excess of 50% of the aggregate Outstanding Principal Amount of such Series, Class, Subclass or Tranche, of Notes advise the Trustee and the applicable Clearing Agency through the applicable Clearing Agency Participants in writing that the continuation of a book-entry system through the applicable Clearing Agency is no longer in the best interests of such Note Owners, the Trustee shall notify all Note Owners of such Series, Class, Subclass or Tranche, through the applicable Clearing Agency Participants, of the occurrence of any such event and of the availability of Definitive Notes (or Uncertificated Notes) to Note Owners of such Series. Upon surrender to the Trustee of the Notes of such Series, Class, Subclass or Tranche, by the applicable Clearing Agency, accompanied by registration instructions from the applicable Clearing Agency for registration, the Issuer shall execute (other than with respect to Uncertificated Notes) and the Trustee shall authenticate, upon receipt of a Company Order, and deliver an equal aggregate principal amount of Definitive Notes in accordance with the instructions of the Clearing Agency. Neither the Issuer nor the Trustee shall be liable for any delay in delivery of such instructions and may each conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Notes of such Series, Class, Subclass or Tranche, of Notes, all references herein to obligations imposed upon or to be performed by the applicable Clearing Agency shall be deemed to be imposed upon and performed by the Trustee, to the extent applicable with respect to such Definitive Notes, and the Trustee shall recognize the Holders of the Definitive Notes of such Series, Class, Subclass or Tranche, as Noteholders of such Series hereunder and under the applicable Series Supplement.
Section 2.14 Cancellation.
The Issuer may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered (or registered in the case of Uncertificated Notes) hereunder which the Issuer or an Affiliate thereof may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled (or de-registered) by the Trustee. Immediately upon the delivery of any Notes by the Issuer to the Trustee for cancellation pursuant to this Section 2.14 (or as set forth in any applicable Series Supplement with respect to de-registration of Uncertificated Notes), the security interest of the Secured Parties in such Notes shall automatically be deemed to be released by the Trustee, and the Trustee shall execute and deliver to the Issuer any and all documentation reasonably requested and prepared by the Issuer at its expense to evidence such automatic release. The Note Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment (or de-registration of Uncertificated Notes). The Trustee shall cancel (or de-register) all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation. Except as provided in any Class A-1 Note Purchase Agreement executed and delivered in connection with the issuance of any Series or any Class, Subclass or Tranche of any Series of Notes, the Issuer may not issue new Notes to replace Notes that it has redeemed or paid or that have been delivered to the Trustee for cancellation (or de-registration). All cancelled Notes held by the Trustee shall be disposed of in accordance with the Trustee’s standard disposition procedures unless the Issuer shall direct that cancelled Notes be returned to it for destruction pursuant to a Company Order. No cancelled (or de-registered) Notes may be reissued. No provision of this Base Indenture or any Supplement that relates to prepayment procedures, penalties, fees, make-whole payments or any other related matters shall be applicable to any Notes cancelled (or de-registered) pursuant to and in accordance with this Section 2.14.
Section 2.15 Principal and Interest.
(a)The principal of and premium, if any, on each Series, Class, Subclass or Tranche, of Notes shall be due and payable at the times and in the amounts set forth in the applicable Series Supplement and subject to and in accordance with the Priority of Payments.
(b)Each Series, Class, Subclass or Tranche, of Notes shall accrue interest as provided in the applicable Series Supplement and such interest shall be due and payable for such Series on each Quarterly Payment Date in accordance with the Priority of Payments.
(c)Except as provided in the following sentence, the Person in whose name any Note is registered at the close of business on any Record Date with respect to a Quarterly Payment Date for such Note shall be entitled to receive the principal, premium, if any, and interest payable on such Quarterly Payment Date notwithstanding the cancellation (or de-registration) of such Note upon any registration of transfer, exchange or substitution of such Note subsequent to such Record Date. Any interest payable at maturity shall be paid to the Person to whom the principal of such Note is payable.
(d)Pursuant to the authority of the Paying Agent under Section 2.6(a)(v), except as otherwise provided pursuant to any Class A-1 Note Purchase Agreement to the extent that the Paying Agent has been notified in writing of such exception by the Issuer or the applicable Class A-1 Administrative Agent, the Paying Agent shall make all payments of interest on the Notes net of any applicable withholding taxes and Noteholders shall be treated as having received as payments of interest any amounts withheld with respect to such withholding taxes.
Section 2.16 Tax Matters.
(a)The Issuer has structured this Base Indenture and the Notes have been (or will be) issued with the intention that the Notes will qualify under applicable tax law as indebtedness of the Issuer or, if the Issuer is treated as a division of another entity, such other entity, and any entity acquiring any direct or indirect interest in any Note by acceptance of its Notes (or, in the case of a Note Owner, by virtue of such Note Owner’s acquisition of a beneficial interest therein) (or registration of an Uncertificated Note) agrees to treat the Notes (or beneficial interests therein) for all purposes of federal, state, local and foreign income or franchise taxes, and any other tax imposed on or measured by income, as indebtedness of the Issuer or, if the Issuer is treated as a division of another entity, such other entity.
(b)Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, agrees to provide and shall provide to the Trustee, Paying Agent and/or the Issuer (or other Person responsible for withholding of taxes) with the Tax Information, and will update or replace such Tax Information as necessary at any time required by law or promptly upon request. Further, each Noteholder and Note Owner is deemed to understand, acknowledge and agree that the Trustee, Paying Agent and Issuer (or other Person responsible for withholding of taxes) have the right to withhold on payments with respect to a Note (without any corresponding gross-up) where an applicable party fails to comply with the requirements set forth in the preceding sentence or the Trustee, Paying Agent or Issuer (or other Person responsible for withholding of taxes) is otherwise required to so withhold under applicable law.
ARTICLE III
SECURITY
Section 3.1 Grant of Security Interest.
(a)To secure the Obligations, the Issuer hereby pledges, assigns, conveys, delivers, transfers and sets over to the Trustee, for the benefit of the Secured Parties, and hereby grants to the Trustee, for the benefit of the Secured Parties, a security interest in the Issuer’s right, title and interest in, to and under all of the following property to the extent now owned or at any time hereafter acquired by the Issuer (collectively, the “Indenture Collateral”):
(i)(x) the Equity Interests of any Person (including, without limitation, Wingstop Franchisor) owned by the Issuer and all rights as a member, shareholder or partner of each such Person under the Charter Documents of each such Person and (y) any rights to receive any asset contribution fees under the applicable Contribution Agreements to which the Issuer (and its direct and indirect subsidiaries) is a party entered into in connection with the Securitization Transaction;
(ii)each Account established in the name of the Issuer and all amounts on deposit in or otherwise credited to such Accounts; provided, that the security interest in (A) each Series Distribution Account with respect to the Senior Notes and the funds or securities deposited therein or credited thereto shall only be for the benefit of the Holders of the applicable Class, Subclass or Tranche of the Senior Notes, as set forth in the applicable Series Supplement, and the Trustee, in its capacity as trustee for the Senior Noteholders, (B) the Series Distribution Account with respect to the Senior Subordinated Notes and the funds or securities deposited therein or credited thereto shall only be for the benefit of the Senior Subordinated Noteholders and the Trustee, in its capacity as trustee for the Senior Subordinated Noteholders, and (C) the Series Distribution Account with respect to the Subordinated Notes and the funds or securities deposited therein or credited thereto shall only be for the benefit of the Subordinated Noteholders and the Trustee, in its capacity as trustee for the Subordinated Noteholders;
(iii)any rights of the Issuer under or in respect of any Interest Reserve Letter of Credit;
(iv)the books and records (whether in physical, electronic or other form) of the Issuer, including those books and records maintained by the Manager on behalf of the Issuer relating to the Franchise Assets, the Contributed Vendor Rebate Contracts, the New Vendor Rebate Contracts or and the Securitization IP;
(v)the rights, powers, remedies and authorities of the Issuer under (x) each of the Transaction Documents (other than the Indenture and the Notes) to which it is a party and (y) each of the documents relating to the Franchise Assets, the Contributed Vendor Rebate Contracts or the New Vendor Rebate Contracts to which it is a party;
(vi)any and all other property of the Issuer now or hereafter acquired, including, without limitation, all accounts, chattel paper, commercial tort claims, deposit accounts, documents, equipment, fixtures, general intangibles, health-care-insurance receivables, instruments, inventory, securities, securities accounts and other investment property and letter-of-credit rights; and
(vii)all payments, proceeds, supporting obligations and accrued and future rights to payment with respect to the foregoing;
provided that (A) the Indenture Collateral shall exclude the Collateral Exclusions; (B) the Issuer shall not be required to pledge, and the Collateral shall not include, more than 65% of the Voting Equity Interests (and any rights associated with such Voting Equity Interests) of any foreign Subsidiary (or any domestic Subsidiary, substantially all of the assets which consist of equity (or equity and debt) of one or more foreign Subsidiaries) of the Issuer that is a corporation for United States federal income tax purposes; (C) the Issuer shall not be required to pledge any assets owned by a foreign Subsidiary; and (D) any cash collateral deposited by any Non-Securitization Entities with the Issuer to secure such Non-Securitization Entities’ obligations under any Letter of Credit Reimbursement Agreement will not constitute Indenture Collateral until such time (if any) as the Issuer is entitled to withdraw such funds from the applicable bank account pursuant to the terms of such Letter of Credit Reimbursement Agreement to reimburse the Issuer for any amounts due by such Non-Securitization Entities to the Issuer pursuant to such Letter of Credit Reimbursement Agreement that such Non-Securitization Entities have not paid to the Issuer in accordance with the terms thereof. The Trustee, on behalf of the Secured Parties, acknowledges that it shall have no security interest in any Collateral Exclusions.
(b)The foregoing grant is made in trust to secure the Obligations and to secure compliance with the provisions of this Base Indenture and any Series Supplements, all as provided in this Base Indenture. The Trustee, on behalf of the Secured Parties, acknowledges such grant, accepts the trusts under this Base Indenture in accordance with the provisions of this Base Indenture and agrees to perform its duties required in this Base Indenture. The Indenture Collateral shall secure the Obligations equally and ratably without prejudice, priority or distinction (except, with respect to any Series of Notes, as otherwise stated in the applicable Series Supplement or in the applicable provisions of this Base Indenture).
(c)The parties hereto agree and acknowledge that each certificated Equity Interest constituting Indenture Collateral may be held by a custodian on behalf of the Trustee.
(d)To the extent that any Company-Owned Restaurants, real property or other assets are elected to be contributed by any Non-Securitization Entity to any Securitization Entity as securitization-owned restaurants, securitization-owned real property or other property to be owned by such Securitization Entity, such Securitization Entity shall do such acts and things, and execute and deliver to the Trustee and the Control Party such additional assignments, agreements, powers and instruments, if any, as the Control Party and such Securitization Entity shall agree, with respect to obtaining or maintaining the security interest of the Trustee in such securitization-owned restaurants, securitization-owned real property or other assets on behalf of the Secured Parties as a perfected security interest subject to no prior Liens (other than Permitted Liens), or assuring and confirming to the Trustee, the Control Party or the other Secured Parties their rights, powers and remedies hereunder, including, without limitation, security agreements, mortgages, title insurance policies, surveys, environmental reports and Opinions of Counsel, in each case, in form and substance reasonably satisfactory to the Control Party and the Trustee.
Section 3.2 Certain Rights and Obligations of the Issuer Unaffected.
(a)Notwithstanding the grant of the security interest in the Indenture Collateral hereunder to the Trustee, on behalf of the Secured Parties, the Issuer acknowledges that the Manager, on behalf of the Securitization Entities, shall, subject to the terms and conditions of the Management Agreement, nevertheless have the right, subject to the Trustee’s right to revoke such right, in whole or in part, in the event of the occurrence of an Event of Default, (i) to give, in accordance with the Managing Standard, all consents, requests, notices, directions, approvals, extensions and waivers, if any, which are required or permitted to be given by the Issuer under the Collateral Documents, and to enforce all rights, remedies, powers, privileges and claims of the Issuer under the Collateral Documents and (ii) to take any other actions required or permitted under the terms of the Management Agreement.
(b)The grant of the security interest by the Issuer in the Indenture Collateral to the Trustee on behalf of the Secured Parties shall not (i) relieve the Issuer from the performance of any term, covenant, condition or agreement on the Issuer’s part to be performed or observed under or in connection with any of the Collateral Documents or (ii) impose any obligation on the Trustee or any of the other Secured Parties to perform or observe any such term, covenant, condition or agreement on the Issuer’s part to be so performed or observed or impose any liability on the Trustee or any of the other Secured Parties for any act or omission on the part of the Issuer or from any breach of any representation or warranty on the part of the Issuer.
(c)The Issuer hereby agrees to indemnify and hold harmless the Trustee and each other Secured Party (including their respective directors, officers, employees and agents) from and against any and all losses, liabilities (including liabilities for penalties), claims, demands, actions, suits, judgments, reasonable and documented out-of-pocket costs and expenses arising out of or resulting from the security interest granted hereby, whether arising by virtue of any act or omission on the part of the Issuer or otherwise, including, without limitation, the reasonable and documented out-of-pocket costs, expenses and disbursements (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any other Secured Party in enforcing the Indenture or any other Transaction Document or preserving any of its rights to, or realizing upon, any of the Collateral; provided, however, that the foregoing indemnification shall not extend to any action by the Trustee or any other Secured Party which constitutes gross negligence, bad faith or willful misconduct by the Trustee or such other Secured Party or any other
indemnified person hereunder. The indemnification provided for in this Section 3.2 shall survive the removal of, or a resignation by, any Person as Trustee as well as the termination of this Base Indenture or any Series Supplement.
Section 3.3 Performance of Collateral Documents.
Upon the occurrence of a default or breach (after giving effect to any applicable grace or cure periods) by any Person party to (a) a Transaction Document or (b) a Franchise Document or other Collateral Document (only if a Manager Termination Event or an Event of Default has occurred and is continuing), promptly following a request from the Trustee to do so and at the Issuer’s expense, the Issuer agrees to take all such lawful action as permitted under this Base Indenture as the Trustee (acting at the direction of the Control Party (at the direction of the Controlling Class Representative)) may reasonably request to compel or secure the performance and observance by such Person of its obligations to the Issuer, and to exercise any and all rights, remedies, powers and privileges lawfully available to the Issuer to the extent and in the manner directed by the Trustee (acting at the direction of the Control Party (at the direction of the Controlling Class Representative)), including, without limitation, the transmission of notices of default and the institution of legal or administrative actions or proceedings to compel or secure performance by such Person of its obligations thereunder. If (i) the Issuer shall have failed, within ten (10) Business Days of receiving the direction of the Trustee, to take commercially reasonable action to accomplish such directions of the Trustee, (ii) the Issuer refuses to take any such action, as reasonably determined by the Trustee in good faith, or (iii) the Control Party (at the direction of the Controlling Class Representative) reasonably determines that such action must be taken immediately, in any such case the Control Party (at the direction of the Controlling Class Representative) may, but shall not be obligated to, take, and the Trustee shall take (if so directed by the Control Party (at the direction of the Controlling Class Representative)), at the expense of the Issuer, such previously directed action and any related action permitted under this Base Indenture which the Control Party (at the direction of the Controlling Class Representative) thereafter determines is appropriate (without the need under this provision or any other provision under this Base Indenture to direct the Issuer to take such action), on behalf of the Issuer and the Secured Parties.
Section 3.4 Stamp, Other Similar Taxes and Filing Fees.
The Issuer shall indemnify and hold harmless the Trustee and each other Secured Party from any present or future claim for liability for any stamp, documentary or other similar tax, and any penalties or interest and expenses with respect thereto, that may be assessed, levied or collected by any jurisdiction in connection with the Indenture, any other Transaction Document or any Indenture Collateral. The Issuer shall pay, and indemnify and hold harmless each Secured Party against, any and all amounts in respect of all search, filing, recording and registration fees, taxes, excise taxes and other similar imposts that may be payable or determined to be payable in respect of the execution, delivery, performance and/or enforcement of the Indenture or any other Transaction Document.
Section 3.5 Authorization to File Financing Statements.
(a)The Issuer hereby irrevocably authorizes the Control Party on behalf of the Secured Parties at any time and from time to time to file or record in any filing office in any applicable jurisdiction financing statements and other filing or recording documents or instruments with respect to the Indenture Collateral to perfect the security interests of the Trustee for the benefit of the Secured Parties under this Base Indenture. The Issuer authorizes the filing of any such financing statement, document or instrument naming the Trustee as secured party and indicating that the Indenture Collateral includes (a) “all assets” or words of similar effect or import regardless of whether any particular assets comprised in the Indenture Collateral fall within the scope of Article 9 of the UCC, including, without limitation, any and all Securitization IP, or (b) as being of an equal or lesser scope or with greater detail. The Issuer agrees to furnish any information necessary to accomplish the foregoing promptly upon the Control Party’s request. The Issuer also hereby ratifies and authorizes the filing on behalf of the Secured Parties of any financing statement with respect to the Indenture Collateral made prior to the date hereof.
(b)The Issuer acknowledges that the Indenture Collateral may include certain rights of the Issuer as a secured party under the Transaction Documents. To the extent the Issuer is a secured party under the Transaction Documents, the Issuer hereby irrevocably appoints the Trustee as its representative with respect to all financing statements filed to perfect such security interests and authorizes the Control Party on behalf of the Secured Parties to make such filings as it deems necessary to reflect the Trustee as secured party of record with respect to such financing statements.
ARTICLE IV
REPORTS
Section 4.1 Reports and Instructions to Trustee.
(a)Weekly Manager’s Certificate. By 4:30 p.m. (New York City time) on the Business Day prior to each Weekly Allocation Date, the Issuer shall furnish, or cause the Manager to furnish, to the Trustee, the Back-Up Manager and the Servicer a certificate substantially in the form of Exhibit A specifying the allocation of Collections on deposit in the Collection Account on the following Weekly Allocation Date (each, a “Weekly Manager’s Certificate”); provided that such Weekly Manager’s Certificate shall be considered confidential information and shall not be disclosed by such recipients to any Noteholder, Note Owner or other Person without the prior written consent of the Issuer.
(b)Quarterly Noteholders’ Report. On or before the third (3rd) Business Day prior to each Quarterly Payment Date, the Issuer shall furnish, or cause the Manager to furnish, a statement substantially in the form of Exhibit B with respect to each Series of Notes (each, a “Quarterly Noteholders’ Report”), including the Manager’s statement specified in such exhibit, to the Trustee, each Rating Agency, the Servicer and each Paying Agent, with a copy to the Back-Up Manager.
(c)Quarterly Compliance Certificates. On or before the third (3rd) Business Day prior to each Quarterly Payment Date, the Issuer shall furnish, or cause the Manager to furnish, to the Trustee and each Rating Agency (with a copy to each of the Servicer and the Back-Up Manager) an Officer’s Certificate to the effect that, except as provided in a notice delivered pursuant to Section 8.8, no Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default has occurred or is continuing (each, a “Quarterly Compliance Certificate”).
(d)Scheduled Principal Payments Deficiency Notices. On the Quarterly Calculation Date with respect to any Quarterly Fiscal Period, the Issuer shall furnish, or cause the Manager to furnish, to the Trustee and each Rating Agency (with a copy to each of the Servicer and the Back-Up Manager) written notice of any Scheduled Principal Payments Deficiency Event with respect to any Class or Series of Notes that occurred with respect to such Quarterly Fiscal Period (any such notice, a “Scheduled Principal Payments Deficiency Notice”).
(e)Annual Accountants’ Reports. Within one hundred and fifty (150) days after the end of each fiscal year, commencing with the fiscal year ending on or around December 26, 2020, the Issuer shall furnish, or cause the Manager to furnish, to the Trustee, the Servicer, the Back-Up Manager (in the case of the report of the Independent Auditors) and each Rating Agency the report of the Independent Auditors or the Back-Up Manager required to be delivered to the Issuer by the Manager pursuant to Section 3.3 of the Management Agreement.
(f)Securitization Entity Financial Statements. The Manager on behalf of the Securitization Entities shall provide to the Trustee, the Servicer, the Back-Up Manager and each Rating Agency with respect to each Series of Notes Outstanding the following financial statements:
(i)as soon as available and in any event within seventy-five (75) days after the end of each of the first three Quarterly Fiscal Periods of each fiscal year, an unaudited consolidated balance sheet of the Issuer as of the end of such Quarterly Fiscal Period and unaudited consolidated statements of operations and comprehensive income, changes in members’ equity and cash flows of the Issuer for such fiscal quarter and for the fiscal year-to-date period then ended (in the case of the second and third fiscal quarters of each fiscal year); and
(ii)as soon as available and in any event within one hundred and twenty (120) days after the end of each fiscal year, an audited consolidated balance sheet of the Securitization Entities as of the end of such fiscal year and audited consolidated statements of operations and comprehensive income, changes in members’ equity and cash flows of the Securitization Entities for such fiscal year, setting forth in comparative form (where appropriate) the comparable amounts for the previous fiscal year, prepared in accordance with GAAP and accompanied by an opinion thereon of the Independent Auditors stating that such audited consolidated financial statements present fairly, in all material respects, the financial position of the Securitization Entities and the results of their operations and cash flows in accordance with GAAP.
(g)Parent Financial Statements. The Manager, acting on behalf of the Securitization Entities, shall provide to the Trustee, the Servicer, the Back-Up Manager and each Rating Agency with respect to each Series of Notes Outstanding the following financial statements:
(i)as soon as available and in any event within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, an unaudited consolidated balance sheet of Parent as of the end of such fiscal quarter and unaudited consolidated statements of operations and comprehensive income and cash flows of Parent for such fiscal quarter and for the fiscal year-to-date period then ended (in the case of the second and third fiscal quarters of each fiscal year); and
(ii)as soon as available and in any event within one hundred and twenty (120) days after the end of each fiscal year, an audited consolidated balance sheet of Parent as of the end of such fiscal year and audited consolidated statements of operations and comprehensive income, changes in stockholders’ equity and cash flows of Parent for such fiscal year, setting forth in comparative form (where appropriate) the comparable amounts for the previous fiscal year, prepared in accordance with GAAP and accompanied by an opinion thereon of the Independent Auditors stating that such audited consolidated financial statements present fairly, in all material respects, the financial position of Parent and the results of its operations and cash flows in accordance with GAAP. Notwithstanding the foregoing, the obligations set forth in this clause 4.1(g) may be satisfied by furnishing Parent’s Form 10-K or 10-Q, as applicable, as filed with the SEC, to the Trustee, the Servicer, the Back-Up Manager and each Rating Agency; and
(iii)If at any time the Manager is no longer consolidated with Parent for purposes of Parent’s financial statements in accordance with GAAP, separate financial statements of the Manager meeting the requirements of the documents required pursuant to clause (ii) above, together with any related documents prepared by third parties, will be required to be delivered concurrently with each such financial statement of the Securitization Entities.
(h)Additional Information. The Issuer shall furnish, or cause to be furnished, from time to time such additional information regarding the financial position, results of operations or business of the Manager or any Securitization Entity as the Trustee, the Servicer, the Manager or the Back-Up Manager may reasonably request, subject to Requirements of Law and to the confidentiality provisions of the Transaction Documents to which such recipient is a party.
(i)Instructions as to Withdrawals and Payments. The Issuer shall furnish, or cause to be furnished, to the Trustee or the Paying Agent, as applicable (with a copy to each of the Servicer, the Manager and the Back-Up Manager), written instructions to make withdrawals and payments from the Collection Account and any other Base Indenture Account or Series Account, as contemplated herein and in any Series Supplement; provided that such written instructions (other than those contained in Quarterly Noteholders’ Reports) shall be considered confidential information and shall not be disclosed by such recipients to any other Person without the prior written consent of the Issuer; provided, further, that such written instructions shall be subject in all respects to the confidentiality provisions of any Transaction Documents to which such recipient is a party. The Trustee and the Paying Agent shall promptly follow any such written instructions.
(j)Copies to each Rating Agency. The Issuer shall deliver, or shall cause the Manager to deliver, a copy of each report, certificate or instruction, as applicable, described in this Section 4.1 to each Rating Agency at its address as listed in or otherwise designated pursuant to Section 14.1 or in the applicable Series Supplement, including any e-mail address.
Section 4.2 [Reserved].
Section 4.3 Rule 144A Information.
For so long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Issuer agrees to provide to any Noteholder or Note Owner, and to any prospective purchaser of Notes designated by such Noteholder or Note Owner upon the request of such Noteholder or Note Owner or prospective purchaser, any information required to be provided to such holder, owner or prospective purchaser to satisfy the conditions set forth in Rule 144A(d)(4) under the Securities Act.
Section 4.4 Reports, Financial Statements and Other Information to Noteholders.
(a) This Base Indenture, the Guarantee and Collateral Agreement, each Series Supplement, the Quarterly Noteholders’ Reports, the Quarterly Compliance Certificates, the financial statements referenced in Sections 4.1(f) and 4.1(g), the reports referenced in Section 4.1(e) and the Offering Memorandum related to each Series of Notes issued hereunder shall be made available to (a) each Rating Agency pursuant to Section 4.1(j) above and (b) the Servicer, the Manager, the Back-Up Manager, and Permitted Recipients in a password-protected area of the Trustee’s internet website at www.sf.citidirect.com (or such other address as the Trustee may specify from time to time) or on a third-party investor information platform or such other address as the Issuer may specify from time to time (it being agreed that in the event there is any discrepancy between any documentation or information posted on any such website hosted by the Issuer and the Trustee’s website, the Trustee’s website will control). Assistance in using the Trustee’s internet website can be obtained by emailing the Trustee’s service desk at CST@citi.com or by calling the Trustee’s customer service desk at (888) 855-9695 or such email address or such other telephone number as the Trustee may specify from time to time. The Trustee or any such third-party platform, as the case may be, shall require each party (other than the Control Party, the Servicer, the Manager, the Back-Up Manager and any Rating Agency) accessing such password-protected area to register as a Permitted Recipient and to make the applicable representations and warranties described below in an Investor Request Certification (which, for the avoidance of doubt, may take the form of an electronic submission). The Trustee and any such third-party platform may disclaim responsibility for any information distributed by it for which the Trustee or such third-party, as the case may be, was not the original source. Each time a Permitted Recipient accesses such internet website, it will be deemed to have confirmed such representations and warranties as of the date thereof. The Trustee or any such third-party platform shall provide the Servicer and the Manager with copies of such Investor Request Certifications, including the identity, contact information, e-mail address and telephone number of the Permitted Recipients, upon request, but shall have no responsibility for any of the information contained therein. The Trustee shall have the right to change the way any such information is made available in order to make such distribution more convenient and/or more accessible, and the Trustee shall provide timely and adequate notification to all above parties regarding any such changes.
(b) The Trustee shall (or shall request that the Manager) make available, upon reasonable advance notice and at the expense of the requesting party, copies of the Base Indenture, the Guarantee and Collateral Agreement, each Series Supplement, the Quarterly Noteholders’ Reports, the Quarterly Compliance Certificates, the financial statements referenced in Sections 4.1(f) and 4.1(g), the reports referenced in Section 4.1(e) and the Offering Memorandum related to each Series of Notes issued hereunder to any Permitted Recipient that provides the Trustee with an Investor Request Certification in the form of Exhibit E.
Section 4.5 Manager.
Pursuant to the Management Agreement, the Manager has agreed to provide certain reports, notices, instructions and other services on behalf of the Issuer. The Noteholders by their acceptance of the Notes consent to the provision of such reports and notices to the Trustee by the Manager in lieu of the Issuer. Any such reports and notices that are required to be delivered to the Noteholders hereunder shall be delivered by the Trustee. The Trustee shall have no obligation whatsoever to verify, reconfirm or recalculate any information or material contained in any of the reports, financial statements or other information delivered to it pursuant to this Article IV or the Management Agreement. All distributions, allocations, remittances and payments to be made by the Trustee or the Paying Agent hereunder or under any Supplement or Class A-1 Note Purchase Agreement shall be made based solely upon the most recently delivered written reports and instructions provided to the Trustee or Paying Agent, as the case may be, by the Manager.
Section 4.6 No Constructive Notice.
Delivery of reports, information, Officer’s Certificates and documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such reports, information, Officer’s Certificates and documents will not constitute constructive notice to the Trustee of any information contained therein or determinable from information contained therein, including any Securitization Entity’s, the Manager’s or any other Person’s compliance with any of its covenants under the Indenture, the Notes or any other Transaction Document (as to which the Trustee is entitled to rely exclusively on the most recent Quarterly Compliance Certificate described above).
ARTICLE V
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 5.1 Management Accounts.
(a)Establishment of the Management Accounts. As of the Closing Date, Wingstop Franchisor has established in the name of and for the benefit of Wingstop Franchisor the Concentration Account and the International Franchisee Payment Account. Following the Closing Date, if the Issuer is required to deposit Asset Disposition Proceeds to the Asset Disposition Proceeds Account pursuant to Section 5.10(c), the Issuer shall establish and maintain the Asset Disposition Proceeds Account in the name of and for the benefit of the Issuer. Following the Closing Date, if the Issuer is required to deposit Insurance/Condemnation Proceeds to the Insurance Proceeds Account pursuant to Section 5.10(d), the Issuer shall establish and maintain the Insurance Proceeds Account in the name of and for the benefit of the Issuer. Each Management Account shall be (A) pledged to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 of this Base Indenture or Section 3.1 of the Guarantee and Collateral Agreement, as applicable, and (B) if not established with the Trustee, subject to an Account Control Agreement. Each Management Account shall be an Eligible Account and, in addition, from time to time, the Issuer or any other Securitization Entity may establish additional accounts for the purpose of depositing Collections therein (each such account and any investment accounts related thereto into which funds are transferred for investment purposes pursuant to Section 5.1(b), an “Additional Management Account”); provided that each such Additional Management Account is (A) an Eligible Account, (B) pledged by the Issuer or such other Securitization Entity to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 or the Guarantee and Collateral Agreement and (C) if not established with the Trustee, subject to an Account Control Agreement.
(b)Administration of the Management Accounts. The Issuer (or the Manager or a Sub-Manager on its behalf) may invest any amounts held in the Management Accounts in Eligible Investments, and such amounts may be transferred by the Issuer (or the Manager or a Sub-Manager on its behalf) into an investment account for the sole purpose of investing in Eligible Investments so long as such investment account is (A) an Eligible Account, (B) pledged by the applicable Securitization Entity to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 or the Guarantee and Collateral
Agreement and (C) if not established with the Trustee, subject to an Account Control Agreement. Notwithstanding anything herein or in any other Transaction Document, the Issuer and the Manager shall not transfer any funds into any such investment account until such time as an Account Control Agreement is entered into with respect thereto (if such account is not established with the Trustee), it being agreed that the execution and delivery of such Account Control Agreement shall not be required as a condition precedent to the issuance of Notes on the Closing Date. All income or other gain from such Eligible Investments shall be credited to the related Management Account, and any loss resulting from such Eligible Investments shall be charged to the related Management Account. The Issuer shall not direct (or permit) the disposal of any Eligible Investments prior to the maturity thereof if such disposal would result in a loss of any portion of the initial purchase price of such Eligible Investment. Prior to any Sub-Manager acting on behalf of any Securitization Entity in accordance with this Section 5.1(b), it will provide to the Trustee all applicable know-your-customer documentation required by the Trustee.
(c)Earnings from the Management Accounts. All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Management Accounts shall be deemed to be Investment Income on deposit for distribution to the Collection Account in accordance with Section 5.10(f)(ii).
(d)Franchise Capital Account. Following the Closing Date, Wingstop Franchisor and any Future Securitization Entity that from time to time acts as the “franchisor” or licensor with respect to Franchise Agreements or Development Agreements (or the Manager on each of their behalf) may deposit to the Franchisor Capital Account (which may be an Interest Reserve Account), or any future account established in respect of similar purposes, unrestricted funds (including Residual Amounts) or the proceeds of capital contributions thereto directed to be made to such account necessary to meet large-franchisor exemptions, franchisor liquidity or similar exemptions under applicable franchise laws therein. The amounts on deposit in any such Franchise Capital Account shall not be subject to any limitations (other than the balance in such account not exceeding the Manager’s reasonable estimate of the amounts required to meet any such exemptions) and Wingstop Franchisor or such Future Securitization Entity, as applicable, may withdraw such amounts in its sole discretion, except as expressly set forth herein or in the other Transaction Documents.
(e)No Duty to Monitor. The Trustee shall have no duty or responsibility to monitor the amounts of deposits into or withdrawals from any Management Account.
Section 5.2 Senior Notes Interest Reserve Account.
(a)Establishment of the Senior Notes Interest Reserve Account. As of the Closing Date, the Issuer has established with the Trustee an account in the name of Wingstop Franchisor for the benefit of the Senior Noteholders and the Trustee, solely in its capacity as trustee for the Senior Noteholders, bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the foregoing Secured Parties (the “Senior Notes Interest Reserve Account”). The Senior Notes Interest Reserve Account shall be an Eligible Account. The Issuer shall cause Wingstop Franchisor to direct the Trustee to maintain the Senior Notes Interest Reserve in its name and for the benefit of the Senior Noteholders and the Trustee pursuant to Section 3.5 of the Guarantee and Collateral Agreement. The Senior Notes Interest Reserve Account, as of the Closing Date and at all times thereafter, shall be (A) pledged to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 or the Guarantee and Collateral Agreement and (B) if not established with the Trustee, subject to an Account Control Agreement. The Senior Notes Interest Reserve Account shall be an Eligible Account.
(b)Administration of the Senior Notes Interest Reserve Account. All amounts held in the Senior Notes Interest Reserve Account shall be invested in Eligible Investments at the written direction (which may be in the form of standing directions) of the Issuer (or the Manager on its behalf), and such amounts may be transferred by the Issuer (or the Manager on its behalf) into an investment account for the sole purpose of investing in Eligible Investments so long as such investment account is (A) an Eligible Account, (B) pledged by the Issuer to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 and (C) if not established with the Trustee, subject to an Account Control Agreement. In the absence of written investment instructions hereunder, funds on deposit in the Senior Notes Interest Reserve Account shall remain uninvested. All income or other gain from such Eligible
Investments shall be credited to the Senior Notes Interest Reserve Account, and any loss resulting from such Eligible Investments shall be charged to the Senior Notes Interest Reserve Account. The Issuer shall not direct (or permit) the disposal of any Eligible Investments prior to the maturity thereof if such disposal would result in a loss of any portion of the initial purchase price of such Eligible Investment.
(c)Earnings from the Senior Notes Interest Reserve Account. All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Senior Notes Interest Reserve Account shall be deemed to be Investment Income on deposit for distribution to the Collection Account in accordance with Section 5.10(f)(i).
(d)Certain Deposits to the Senior Notes Interest Reserve Account. Wingstop Franchisor may deposit to the Senior Notes Interest Reserve Account unrestricted funds (including Residual Amounts) or the proceeds of capital contributions thereto directed to be made to such account necessary to meet large-franchisor exemptions or similar exemptions or franchisor liquidity requirements under applicable franchise laws therein. The amounts on deposit in the Senior Notes Interest Reserve Account shall not be subject to any limitations (other than the balance in such account not exceeding the Manager’s reasonable estimate of the amounts required to meet any such exemptions), except that the aggregate amount held on deposit in the Senior Notes Interest Reserve Account (together with any amounts available to be drawn under any Interest Reserve Letter of Credit for the Senior Notes) shall at all times be equal to or greater than the Senior Notes Interest Reserve Amount for the next Weekly Allocation Date. The Manager may deposit or cause to be deposited to the Senior Notes Interest Reserve Account unrestricted funds as a contribution to Wingstop Franchisor, in each case to be credited in support of any franchisor liquidity or net worth requirement of any Governmental Authority applicable to Wingstop Franchisor, including in respect of eligibility for any exemptions applicable to franchisors or licensors of franchises. The Trustee shall have no obligation whatsoever to monitor the amounts held in the Senior Notes Interest Reserve Account other than with respect to deposits to and withdrawals from the Senior Notes Interest Reserve Account pursuant to Section 5.11 or Section 5.12, and shall act solely upon the written instructions of the Manager with respect to any deposits to and withdrawals from the Senior Notes Interest Reserve Account.
Section 5.3 Senior Subordinated Notes Interest Reserve Account.
(a)Establishment of the Senior Subordinated Notes Interest Reserve Account. After the Closing Date in connection with the initial issuance of any Senior Subordinated Notes, the Issuer shall establish with the Trustee an account in the name of and for the benefit of Wingstop Franchisor (the “Senior Subordinated Notes Interest Reserve Account”). In connection with any such issuance of Senior Subordinated Notes, the Issuer shall cause Wingstop Franchisor to direct the Trustee to establish and maintain the Senior Subordinated Notes Interest Reserve in its name and for the benefit of the Senior Subordinated Noteholders and the Trustee pursuant to Section 3.5 of the Guarantee and Collateral Agreement. The Senior Subordinated Notes Interest Reserve Account, as of the date of establishment and at all times thereafter, shall be (A) pledged to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 or the Guarantee and Collateral Agreement and (B) if not established with the Trustee, subject to an Account Control Agreement. The Senior Subordinated Notes Interest Reserve Account shall be an Eligible Account.
(b)Administration of the Senior Subordinated Notes Interest Reserve Account. All amounts held in the Senior Subordinated Notes Interest Reserve Account shall be invested in Eligible Investments at the written direction (which may be in the form of standing directions) of the Issuer (or the Manager on its behalf), and such amounts may be transferred by the Issuer (or the Manager on its behalf) into an investment account for the sole purpose of investing in Eligible Investments so long as such investment account is (A) an Eligible Account, (B) pledged by the Issuer to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 and (C) if not established with the Trustee, subject to an Account Control Agreement. In the absence of written investment instructions hereunder, funds on deposit in the Senior Subordinated Notes Interest Reserve Account shall remain uninvested. All income or other gain from such Eligible Investments shall be credited to the Senior Subordinated Notes Interest Reserve Account, and any loss resulting from such Eligible Investments shall be charged to the Senior Subordinated Notes Interest Reserve Account. The Issuer shall not direct (or permit) the disposal of any
Eligible Investments prior to the maturity thereof if such disposal would result in a loss of any portion of the initial purchase price of such Eligible Investment.
(c)Earnings from the Senior Subordinated Notes Interest Reserve Account. All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Senior Subordinated Notes Interest Reserve Account shall be deemed to be Investment Income on deposit for distribution to the Collection Account in accordance with Section 5.10(f)(i).
Section 5.4 Cash Trap Reserve Account.
(a)Establishment of the Cash Trap Reserve Account. As of the Closing Date, the Issuer has established with the Trustee the Cash Trap Reserve Account in the name of the Trustee for the benefit of the Secured Parties, bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Secured Parties. The Cash Trap Reserve Account shall be an Eligible Account.
(b)Administration of the Cash Trap Reserve Account. All amounts held in the Cash Trap Reserve Account shall be invested in Eligible Investments at the written direction (which may be standing directions) of the Issuer (or the Manager on its behalf) and such amounts may be transferred by the Issuer (or the Manager on its behalf) into an investment account for the sole purpose of investing in Eligible Investments so long as such investment account is (A) an Eligible Account, (B) pledged by the Issuer to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 and (C) if not established with the Trustee, subject to an Account Control Agreement. In the absence of written investment instructions hereunder, funds on deposit in the Cash Trap Reserve Account shall remain uninvested. All income or other gain from such Eligible Investments shall be credited to the Cash Trap Reserve Account, and any loss resulting from such Eligible Investments shall be charged to the Cash Trap Reserve Account. The Issuer shall not direct (or permit) the disposal of any Eligible Investments prior to the maturity thereof if such disposal would result in a loss of any portion of the initial purchase price of such Eligible Investment.
(c)Earnings from the Cash Trap Reserve Account. All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Cash Trap Reserve Account shall be deemed to be Investment Income on deposit for distribution to the Collection Account in accordance with Section 5.10(f)(i).
Section 5.5 Collection Account.
(a)Establishment of Collection Account. As of the Closing Date, the Issuer has established with the Trustee the Collection Account in the name of the Trustee for the benefit of the Secured Parties, bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Secured Parties. The Collection Account shall be an Eligible Account.
(b)Administration of the Collection Account. All amounts held in the Collection Account shall be invested in Eligible Investments at the written direction (which may be in the form of standing directions) of the Issuer (or the Manager on its behalf), and such amounts may be transferred by the Issuer (or the Manager on its behalf) into an investment account for the sole purpose of investing in Eligible Investments so long as such investment account is (A) an Eligible Account, (B) pledged by the Issuer to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 and (C) if not established with the Trustee, subject to an Account Control Agreement. In the absence of written investment instructions hereunder, funds on deposit in the Collection Account shall remain uninvested. All income or other gain from such Eligible Investments shall be credited to the Collection Account, and any loss resulting from such Eligible Investments shall be charged to the Collection Account. The Issuer shall not direct (or permit) the disposal of any Eligible Investments prior to the maturity thereof if such disposal would result in a loss of any portion of the initial purchase price of such Eligible Investment. On and after the 2024 Springing Amendments Implementation Date, to the extent any amounts become payable by the Trustee to an account bank or securities intermediary under an Account Control Agreement with respect to any Management Accounts, amounts held in the Collection Account may be withdrawn by the Trustee at any time and paid to such account bank or securities intermediary, and similarly apply proceeds of the Collateral as a result of exercise of remedies, in each case, so long as the
Trustee has provided the Manager with notice of any amounts owed to an account bank or securities intermediary (with a copy of such notice also being provided to the Servicer and the Back-Up Manager).
(c)Earnings from the Collection Account. All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Collection Account shall be deemed to be Investment Income on deposit for distribution in accordance with Section 5.11.
Section 5.6 Collection Account Administrative Accounts.
(a)Establishment of Collection Account Administrative Accounts. The following administrative accounts associated with the Collection Account, each of which shall be an Eligible Account, shall be established by the Trustee in the name of the Trustee for the benefit of the Secured Parties, bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Secured Parties (collectively, the “Collection Account Administrative Accounts”), either as of the Closing Date or, in the case of any Collection Account Administrative Accounts with respect to the Senior Subordinated Notes or the Subordinated Notes, after the Closing Date in connection with the initial issuance of any such Notes:
(i)an account for the deposit of the Class A-1 Notes Quarterly Commitment Fees Amount (the “Class A-1 Notes Commitment Fees Account”);
(ii)an account for the deposit of the Senior Notes Quarterly Interest Amount (the “Senior Notes Interest Payment Account”);
(iii)an account for the deposit of the Senior Subordinated Notes Quarterly Interest Amount, if any (the “Senior Subordinated Notes Interest Payment Account”);
(iv)an account for the deposit of the Subordinated Notes Quarterly Interest Amount, if any (the “Subordinated Notes Interest Payment Account”);
(v)an account for the deposit of the amounts allocable to the payment of principal of the Senior Notes (the “Senior Notes Principal Payment Account”);
(vi)an account for the deposit of the amounts allocable to the payment of principal of the Senior Subordinated Notes, if any (the “Senior Subordinated Notes Principal Payment Account”);
(vii)an account for the deposit of the amounts allocable to the payment of principal of the Subordinated Notes, if any (the “Subordinated Notes Principal Payment Account”);
(viii)an account for the deposit of Senior Notes Quarterly Post-ARD Contingent Additional Interest (the “Senior Notes Post-ARD Contingent Additional Interest Account”);
(ix)an account for the deposit of Senior Subordinated Notes Quarterly Post-ARD Contingent Additional Interest, if any (the “Senior Subordinated Notes Post-ARD Contingent Additional Interest Account”);
(x)an account for the deposit of Subordinated Notes Quarterly Post-ARD Contingent Additional Interest, if any (the “Subordinated Notes Post-ARD Contingent Additional Interest Account”); and
(xi) an account for the deposit of Securitization Operating Expenses (the “Securitization Operating Expense Account”).
(b)Administration of the Collection Account Administrative Accounts. All amounts held in the Collection Account Administrative Accounts shall be invested in Eligible Investments at the written direction (which may be in the form of standing directions) of the Issuer (or the Manager on its behalf), and such amounts may be transferred by the Issuer (or the Manager on its behalf) into an investment account for the sole purpose of investing in Eligible Investments so long as such investment account is (A) an Eligible Account, (B) pledged by the Issuer to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 and (C) if not established with the Trustee, subject to an Account Control Agreement. In the absence of written investment instructions hereunder, funds on deposit in the Collection Account Administrative Accounts shall remain uninvested. All income or other gain from such Eligible Investments shall be credited to the related Collection Account Administrative Account, and any loss resulting from such Eligible Investments shall be charged to the related Collection Account Administrative Account. The Issuer shall not direct (or permit) the disposal of any Eligible Investments prior to the maturity thereof if such disposal would result in a loss of any portion of the initial purchase price of such Eligible Investment.
(c)Earnings from the Collection Account Administrative Accounts. All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Collection Account Administrative Accounts shall be deemed to be Investment Income on deposit for distribution to the Collection Account in accordance with Section 5.10(f)(i).
Section 5.7 Hedge Payment Account.
(a)Establishment of the Hedge Payment Account. On or prior to the Series Closing Date of the first Series of Notes issued pursuant to this Base Indenture providing for a Series Hedge Agreement, the Issuer (or the Manager on its behalf) shall establish and maintain with the Trustee the Hedge Payment Account in the name of the Trustee for the benefit of the Secured Parties, bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Secured Parties. The Hedge Payment Account shall be an Eligible Account.
(b)Administration of the Hedge Payment Account. All amounts held in the Hedge Payment Account shall be invested in Eligible Investments at the written direction (which may be in the form of standing directions) of the Issuer (or the Manager on its behalf), and such amounts may be transferred by the Issuer (or the Manager on its behalf) into an investment account for the sole purpose of investing in Eligible Investments so long as such investment account is (A) an Eligible Account, (B) pledged by the Issuer to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1 and (C) if not established with the Trustee, subject to an Account Control Agreement. In the absence of written investment instructions hereunder, funds on deposit in the Hedge Payment Account shall remain uninvested. All income or other gain from such Eligible Investments shall be credited to the Hedge Payment Account, and any loss resulting from such Eligible Investments shall be charged to the Hedge Payment Account. The Issuer shall not direct (or permit) the disposal of any Eligible Investments prior to the maturity thereof if such disposal would result in a loss of any portion of the initial purchase price of such Eligible Investment.
(c)Earnings from the Hedge Payment Account. All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Hedge Payment Account shall be deemed to be Investment Income on deposit for distribution to the Collection Account in accordance with Section 5.10(f)(i).
Section 5.8 Trustee as Securities Intermediary.
(a)The Trustee or other Person holding any Base Indenture Account held in the name of the Trustee for the benefit of the Secured Parties (collectively, the “Trustee Accounts”) shall be the “Securities Intermediary”. If the Securities Intermediary in respect of any Trustee Account is not the Trustee, the Issuer shall obtain the express agreement of such other Person to the obligations of the Securities Intermediary set forth in this Section 5.8.
(b)The Securities Intermediary agrees that:
(i)the Trustee Accounts are accounts to which “financial assets” within the meaning of Section 8-102(a)(9) (“Financial Assets”) of the UCC in effect in the State of New York (the “New York UCC”) will or may be credited;
(ii)the Trustee Accounts are “securities accounts” within the meaning of Section 8-501 of the New York UCC and the Securities Intermediary qualifies as a “securities intermediary” under Section 8-102(a) of the New York UCC;
(iii)all securities or other property (other than cash) underlying any Financial Assets credited to any Trustee Account shall be registered in the name of the Securities Intermediary, indorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any Financial Asset credited to any Trustee Account be registered in the name of the Issuer, payable to the order of the Issuer or specially indorsed to the Issuer;
(iv)all property delivered to the Securities Intermediary pursuant to this Base Indenture will be promptly credited to the appropriate Trustee Account;
(v)each item of property (whether investment property, security, instrument or cash) credited to a Trustee Account shall be treated as a Financial Asset under Article 8 of the New York UCC;
(vi)if at any time the Securities Intermediary shall receive any entitlement order from the Trustee (including those directing transfer or redemption of any Financial Asset) relating to the Trustee Accounts, the Securities Intermediary shall comply with such entitlement order without further consent by the Issuer or any other Person;
(vii)the Trustee Accounts shall be governed by the laws of the State of New York, regardless of any provision of any other agreement; for purposes of all applicable UCCs and all issues specified in Article 2(1) of the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary, New York shall be deemed to be the Securities Intermediary’s jurisdiction, and the Trustee Accounts (as well as the “securities entitlements” (as defined in Section 8-102(a)(17) of the New York UCC) related thereto) shall be governed by the laws of the State of New York;
(viii)the Securities Intermediary has not entered into, and until termination of this Base Indenture will not enter into, any agreement with any other Person relating to the Trustee Accounts and/or any Financial Assets credited thereto pursuant to which it has agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person and the Securities Intermediary has not entered into, and until the termination of this Base Indenture will not enter into, any agreement with the Issuer purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 5.8(b)(vi); and
(ix)except for the claims and interest of the Trustee, the Secured Parties, the Issuer and the other Securitization Entities in the Trustee Accounts, neither the Securities Intermediary nor, in the case of the Trustee, any Trust Officer knows of any claim to, or interest in, the Trustee Accounts or any Financial Asset credited thereto; if the Securities Intermediary or the Trustee has Actual Knowledge of the assertion by any other person of any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Trustee Account or any Financial Asset carried therein, the Securities Intermediary will promptly notify the Trustee, the Servicer, the Manager, the Back-Up Manager and the Issuer thereof.
(c)At any time after the occurrence and during the continuation of an Event of Default, the Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Trustee Accounts and in all Proceeds thereof, and (acting at the direction of the Controlling Class Representative) shall be the only Person authorized to originate entitlement orders in respect of the
Trustee Accounts; provided that at all other times the Issuer shall, subject to the terms of the Indenture and the other Transaction Documents, be authorized to instruct the Trustee to originate entitlement orders in respect of the Trustee Accounts.
Section 5.9 Establishment of Series Accounts; Legacy Accounts.
(a)Establishment of Series Accounts. To the extent specified in the Series Supplement with respect to any Series of Notes, the Trustee may establish and maintain one or more Series Accounts and/or administrative accounts of any such Series Account in accordance with the terms of such Series Supplement.
(b)Legacy Accounts. In the case of any mandatory or optional redemption in full of any Class, Subclass, Tranche or Series of Notes issued pursuant to this Base Indenture, on the Notes Discharge Date with respect to such Class, Subclass, Tranche or Series of Notes, the Issuer may (but is not required to) elect to have all or any portion of the funds held in any Legacy Account with respect to such Class, Subclass, Tranche or Series of Notes transferred to the applicable distribution account for such Class, Subclass, Tranche or Series of Notes, for application toward the prepayment of such Class, Subclass, Tranche or Series of Notes; provided that the foregoing shall not limit any provisions set forth in the applicable Series Supplement. If the Issuer does not elect to have such funds so transferred, or if the Issuer elects to have only a portion of such funds so transferred, any funds remaining in the applicable Legacy Account after the applicable Notes Discharge Date shall be deposited into the Collection Account for application in accordance with the Priority of Payments. When the balance of any Legacy Account has been reduced to zero, the Trustee may close such account. The Trustee shall make the distributions and transfers and shall close any accounts as contemplated by this Section 5.9 pursuant to instructions delivered by the Issuer to the Trustee.
Section 5.10 Collections and Investment Income.
(a)Deposits to the Concentration Account and International Franchisee Payment Account. Until the Indenture is terminated pursuant to Section 12.1, the Issuer and each other Securitization Entity shall deposit (or cause to be deposited) the following amounts to the Concentration Account, in each case, to the extent owed to it or the other Securitization Entities and promptly after receipt (but in any event on or prior to the Weekly Allocation Date relating to the Weekly Collection Period in which such amount was received):
(i)all Franchisee Payment Amounts will be either deducted from the accounts of domestic Franchisees and deposited into the Concentration Account or paid by international Franchisees to the International Franchisee Payment Account and deposited by the Manager into the Concentration Account, in each case, in accordance with the terms of the related Franchise Agreements;
(ii)all Company-Owned Restaurant Payment Amounts;
(iii)all amounts received under the Contributed Vendor Rebate Contracts and any New Vendor Rebate Contracts;
(iv)all amounts received under the Wingstop IP License Agreement, other license fees and any other amounts received in respect of the Securitization IP, including recoveries from the enforcement of the Securitization IP;
(v)equity contributions, if any, made by any Non-Securitization Entity (directly or indirectly) to the Issuer to the extent such equity contributions are directed to be made to the Concentration Account; and
(vi)all other amounts constituting Retained Collections not referred to in the preceding clauses other than Indemnification Amounts, Insurance/Condemnation Proceeds, Asset Disposition Proceeds and other amounts required to be deposited directly to other Management Accounts or to the Collection Account.
(b)Withdrawals from the Concentration Account. The Manager may (and in the case of subclause (iv) below, shall) withdraw available amounts on deposit in the Concentration Account to make the following payments and deposits:
(i)on a daily basis, as necessary, to the extent of amounts deposited to the Concentration Account that the Manager determines were required to be deposited to another account or were deposited to the Concentration Account in error;
(ii)on a daily basis, as necessary, to pay or distribute any amounts reasonably determined by the Manager to constitute Excluded Amounts (other than Advertising Fees) then on deposit in the Concentration Account;
(iii)as soon as practicable, and in any event within five (5) Business Days following receipt, to transfer any Advertising Fees then on deposit in the Concentration Account to the Manager for application by the Manager to fund existing or future domestic or international marketing and advertising activities; and
(iv)on a weekly basis at or prior to 10:00 a.m. (New York City time) on each Weekly Allocation Date, all Retained Collections with respect to the preceding Weekly Collection Period then on deposit in such Concentration Account (which, for the avoidance of doubt, will include any Investment Income with respect thereto) to the Collection Account for application to make payments and deposits in the order of priority set forth in the Priority of Payments.
(c)Deposits and Withdrawals from the Asset Disposition Proceeds Account. If any Securitization Entity disposes of property pursuant to a Permitted Asset Disposition or any other disposition not permitted under the terms of this Base Indenture, (i) to the extent the proceeds thereof do not constitute Asset Disposition Proceeds, as determined by the Manager, on behalf of the related Securitization Entity, such proceeds (net of the amounts described in clause (B) of the definition of “Asset Disposition Proceeds” and, in the case of Post-Issuance Acquired Assets only, further net of (without duplication of any amounts in such clause (B)) the original cost of acquisition of such asset, including reasonable and customary related expenses) shall be treated as Collections with respect to the Quarterly Fiscal Period in which such proceeds are received; and (ii) to the extent the proceeds thereof constitute Asset Disposition Proceeds, as determined by the Manager, on behalf of the related Securitization Entity, such Asset Disposition Proceeds shall be promptly deposited to the Asset Disposition Proceeds Account. At the election of such Securitization Entity or the Manager on its behalf, the Securitization Entities may reinvest such Asset Disposition Proceeds in Eligible Assets within one (1) calendar year following receipt of such Asset Disposition Proceeds (or, if any Securitization Entity shall have entered into a binding commitment to reinvest such Asset Disposition Proceeds in Eligible Assets within one (1) calendar year following receipt of such Asset Disposition Proceeds, within eighteen (18) calendar months following receipt of such Asset Disposition Proceeds) and/or may utilize such Asset Disposition Proceeds to pay, or to allocate funds to the Asset Disposition Proceeds Account to reimburse the Securitization Entities for amounts previously paid, for investments in Eligible Assets made within the one (1) calendar year period prior to the receipt of such Asset Disposition Proceeds; provided that after the occurrence and during the continuance of any Rapid Amortization Period, (A) all amounts withdrawn from the Asset Disposition Proceeds Account shall be withdrawn substantially in accordance with a Quarterly Fiscal Period budget submitted to, and approved by, the Control Party (in consultation with the Back-Up Manager) prior to such withdrawal and (B) withdrawals of any amounts from the Asset Disposition Proceeds Account in excess in any material respect of amounts set forth in such Quarterly Fiscal Period budget will be subject to (i) the delivery by the Manager to the Control Party, the Trustee and the Back-Up Manager of an explanation in reasonable detail for the variance together with related information and (ii) the prior approval of the Control Party (in consultation with the Back-Up Manager). To the extent any Asset Disposition Proceeds have not been so reinvested in Eligible Assets within such one (1) calendar year period (or eighteen (18) calendar month period, as applicable) (each such period, an “Asset Disposition Reinvestment Period”), the Issuer (or the Manager on its behalf) shall instruct the Trustee in the Weekly Manager’s Certificate delivered for the Weekly Allocation Date immediately following the end of such Asset Disposition Reinvestment Period to withdraw an amount equal to all such un-reinvested Asset Disposition Proceeds on such immediately following Weekly Allocation Date and promptly deposit such
amount to the Collection Account to be applied in accordance with priority (i) of the Priority of Payments on such Weekly Allocation Date and the related prepayment shall be made on the Quarterly Payment Date indicated in the Weekly Manager’s Certificate. In the event that such Securitization Entity has elected not to reinvest such Asset Disposition Proceeds (and such Asset Disposition Proceeds are not used to reimburse the Securitization Entities for amounts previously paid as set forth above), such Asset Disposition Proceeds shall be deposited to the Collection Account promptly following such decision (as indicated in the Weekly Manager’s Certificate delivered for the immediately following Weekly Allocation Date) and applied in accordance with priority (i) of the Priority of Payments on such Weekly Allocation Date and the related prepayment shall be made on the Quarterly Payment Date indicated in the Weekly Manager’s Certificate.
(d)Deposits and Withdrawals from the Insurance Proceeds Account. All Insurance/Condemnation Proceeds received by or on behalf of any Securitization Entity in respect of the Collateral shall be promptly deposited to the Insurance Proceeds Account. At the election of such Securitization Entity (as notified by the Manager to the Trustee, the Servicer and the Back-Up Manager promptly after receipt of the Insurance/Condemnation Proceeds, which notice shall be required only with respect to Insurance/Condemnation Proceeds in an aggregate amount in excess of $5,000,000 in any fiscal year) and so long as no Rapid Amortization Event has occurred and is continuing, the Securitization Entities may reinvest such Insurance/Condemnation Proceeds to repair or replace the assets in respect of which such proceeds were received within one (1) calendar year following receipt of such Insurance/Condemnation Proceeds (or, if any Securitization Entity shall have entered into a binding commitment to reinvest such Insurance/Condemnation Proceeds within one (1) calendar year following receipt of such Insurance/Condemnation Proceeds, within eighteen (18) calendar months following receipt of such Insurance/Condemnation Proceeds); provided that (i) in the event the Manager has repaired or replaced the assets with respect to which such Insurance/Condemnation Proceeds have been received prior to the receipt of such Insurance/Condemnation Proceeds, such Insurance/Condemnation Proceeds shall be used to reimburse the Manager for any expenditures in connection with such repair or replacement and (ii) any Insurance/Condemnation Proceeds received in connection with the exercise of any non-temporary condemnation, eminent domain or similar powers exercised pursuant to any Requirements of Law may be reinvested in Eligible Assets. To the extent such Insurance/Condemnation Proceeds have not been so reinvested or otherwise applied in the manner described above within such one (1) calendar year period (or eighteen (18) calendar month period, as applicable) (each such period, a “Casualty Reinvestment Period”), the Issuer (or the Manager on its behalf) shall instruct the Trustee, in the Weekly Manager’s Certificate delivered for the Weekly Allocation Date immediately following the end of such Casualty Reinvestment Period, to withdraw an amount equal to all such un-reinvested Insurance/Condemnation Proceeds and promptly deposit such amounts to the Collection Account to be applied in accordance with priority (i) of the Priority of Payments on such immediately following Weekly Allocation Date and the related prepayment shall be made on the Quarterly Payment Date indicated in such Weekly Manager’s Certificate. In the event that such Securitization Entity has elected to not reinvest such Insurance/Condemnation Proceeds, it (or the Manager on its behalf) shall instruct the Trustee in the Weekly Manager’s Certificate delivered for the immediately following Weekly Allocation Date to withdraw such Insurance/Condemnation Proceeds and deposit such amounts to the Collection Account promptly following such decision to pay principal of each Series and/or Class of Notes Outstanding in accordance with priority (i) of the Priority of Payments on the immediately following Weekly Allocation Date and the related prepayment shall be made on the Quarterly Payment Date indicated in such Weekly Manager’s Certificate unless such amounts are used to reimburse any Securitization Entities or their Affiliates for amounts previously paid in respect of repairs or replacement of such assets with respect to which such Insurance/Condemnation Proceeds have been received.
(e)Deposits to the Collection Account. The Manager (or (i) with respect to clause (vi) below, the Trustee at the direction of the Issuer, or the Manager on its behalf or (ii) with respect to clause (viii), the Trustee or the Control Party) will deposit or cause to be deposited to the Collection Account the following amounts, in each case, promptly after receipt (unless otherwise specified below):
(i)the amounts required to be withdrawn from the Concentration Account and deposited to the Collection Account pursuant to and in accordance with Section 5.10(b)(iv);
(ii)Indemnification Amounts within five (5) Business Days following either (i) the receipt by the Manager of such amounts if WRI is not the Manager or (ii) if WRI is the Manager, the date such amounts are required to be paid by the related Contributor or by the Manager under the Management Agreement or any other Transaction Document;
(iii)Insurance/Condemnation Proceeds remaining in the Insurance Proceeds Account on the Weekly Allocation Date following the expiration of the Casualty Reinvestment Period and Insurance/Condemnation Proceeds where the applicable Securitization Entity (or the Manager on its behalf) elects not to reinvest such amounts promptly upon the later of such election and receipt of such Insurance/Condemnation Proceeds;
(iv)Asset Disposition Proceeds remaining in the Asset Disposition Proceeds Account on the Weekly Allocation Date following the expiration of the Asset Disposition Reinvestment Period and Asset Disposition Proceeds where the applicable Securitization Entity (or the Manager on its behalf) elects not to reinvest such amounts promptly upon the later of such election and receipt of such Asset Disposition Proceeds;
(v)the Series Hedge Receipts, if any, received by the Securitization Entities in respect of any Series Hedge Agreements entered into by the Securitization Entities in connection with the issuance of additional Series of Notes following the Original Closing Date;
(vi)upon the occurrence of any Interest Reserve Release Event, the amounts on deposit in the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, to the extent that no Senior Notes Interest Reserve Account Deficit Amount or Senior Subordinated Notes Interest Reserve Account Deficit Amount, as applicable, will be outstanding on the immediately following Weekly Allocation Date;
(vii)any other amounts required to be deposited to the Collection Account hereunder or under any other Transaction Document; and
(viii)amounts obtained by the Trustee or the Control Party on account of or as a result of the exercise by the Trustee or the Control Party of any of its rights under the Indenture, including, without limitation, under Article IX hereof, upon receipt thereof.
(f)Investment Income. On a weekly basis at or prior to 10:00 a.m. (New York City time) on each Weekly Allocation Date, the Issuer (or the Manager on its behalf) (i) shall instruct the Trustee in writing to transfer any Investment Income on deposit in the Indenture Trust Accounts (other than the Collection Account) to the Collection Account and (ii) shall transfer any Investment Income on deposit in the Management Accounts to the Collection Account, in each case for application as Collections on that Weekly Allocation Date.
(g)Payment Instructions. In accordance with and subject to the terms of the Management Agreement, the Issuer shall cause the Manager to instruct (i) each Franchisee obligated at any time to pay Franchisee Payment Amounts to make such payment to the Concentration Account or the International Franchisee Payments Account and (ii) any Person (not an Affiliate of the Issuer) obligated at any time to make any payments with respect to the Securitization Assets, including, without limitation, the Securitization IP, to make such payment to the Concentration Account, the Collection Account or the International Franchisee Payments Account, as determined by the Issuer or the Manager.
(h)Misdirected Collections. The Issuer agrees that if any Collections shall be received by the Issuer or any other Securitization Entity in an account other than an Account or in any other manner, such monies, instruments, cash and other proceeds will not be commingled by the Issuer or such other Securitization Entity with any of their other funds or property, if any, but will be held separate and apart therefrom and shall be held in trust by the Issuer or such other Securitization Entity for, and, within one (1) Business Day of the identification of such payment, paid over to, the Trustee, with any necessary endorsement. The Trustee shall withdraw from the Collection Account any monies on deposit therein that the Manager certifies to the Trustee and the Servicer are not Retained Collections and pay such amounts to or at the direction of the Manager. All monies, instruments, cash and other proceeds of
the Collateral received by the Trustee pursuant to the Indenture shall be immediately deposited in the Collection Account and shall be applied as provided in this Article V.
Section 5.11Application of Weekly Collections on Weekly Allocation Dates. On each Weekly Allocation Date (unless the Issuer shall have failed to deliver by 4:30 p.m. (New York City time) on the day prior to such Weekly Allocation Date the Weekly Manager’s Certificate relating to such Weekly Allocation Date, in which case the application of Retained Collections relating to such Weekly Allocation Date shall occur on the Business Day immediately following the day on which such Weekly Manager’s Certificate is delivered), the Trustee shall, based solely on the information contained in such Weekly Manager’s Certificate and, if delivered in accordance with the terms of the Servicing Agreement, an Omitted Payable Sums Certification (and only to the extent of the information contained therein), withdraw the amount on deposit in the Collection Account as of 10:00 a.m. (New York City time) on such Weekly Allocation Date in respect of such preceding Weekly Collection Period for allocation or payment in the following order of priority:
(i)first, solely with respect to any funds consisting of Indemnification Amounts, Insurance/Condemnation Proceeds and Asset Disposition Proceeds on deposit in the Collection Account on such Weekly Allocation Date in the following order of priority: (A) to reimburse the Trustee and, then, the Servicer, for any unreimbursed Advances (and accrued interest thereon at a rate equal to the Prime Rate plus 3.00%, compounding monthly, the “Advance Interest Rate”), then (B) to reimburse the Manager for any unreimbursed Manager Advances (and accrued interest thereon at the Advance Interest Rate), then (C) on and after any Class A-1 Notes Renewal Date (after giving effect to any extensions), to make an allocation to the applicable Principal Payment Account, in the amount necessary to prepay and permanently reduce the commitments under all related Class A-1 Notes on a pro rata basis, then (D) to make an allocation to the applicable Principal Payment Account, in the amount necessary to prepay the Outstanding Principal Amount of all Senior Notes of each Class on a pro rata basis (other than Class A-1 Notes) in alphanumerical order of designation, then (E) to make an allocation to the applicable Principal Payment Account, in the amount necessary to prepay the Outstanding Principal Amount of all Senior Subordinated Notes of each Class on a pro rata basis in alphanumerical order of designation, then (F) to make an allocation to the applicable Principal Payment Account, in the amount necessary to prepay the Outstanding Principal Amount of all Subordinated Notes of each Class on a pro rata basis in alphanumerical order of designation; provided that any prepayments made pursuant to subclauses (C), (D), (E) or (F) of this clause first will be made on the Quarterly Payment Date indicated in the Weekly Manager’s Certificate;
(ii)second, (A) to reimburse the Trustee and, then, the Servicer, and then, the Back-Up Manager, for any unreimbursed Advances (and accrued interest thereon at the Advance Interest Rate), then (B) to reimburse the Manager for any unreimbursed Manager Advances (and accrued interest thereon at the Advance Interest Rate), and then (C) to pay the Servicer all Servicing Fees, Liquidation Fees and Workout Fees for such Weekly Allocation Date, together with any such fees previously accrued and unpaid;
(iii)third, to pay Successor Manager Transition Expenses, if any;
(iv)fourth, to pay the Weekly Management Fee to the Manager, together with any previously accrued and unpaid Weekly Management Fee;
(v)fifth, pro rata, to deposit to the Securitization Operating Expense Account, an amount equal to any previously accrued and unpaid Securitization Operating Expenses together with any Securitization Operating Expenses that are expected to be payable prior to the immediately following Weekly Allocation Date, in an aggregate amount not to exceed the Capped Securitization Operating Expenses Amount with respect to the fiscal year in which such Weekly Allocation Date occurs after giving effect to all deposits previously made to the Securitization Operating Expense Account in such fiscal year, to be distributed pro rata based on the amount of each type of Securitization Operating Expense payable on such Weekly Allocation Date pursuant to this priority (v); provided, that the deposit to the Securitization Operating Expense Account of an amount equal to all accrued and unpaid fees, expenses and indemnities
payable to the Trustee and, on and after the 2024 Springing Amendments Implementation Date, the Back-Up Manager, and all indemnities payable to the Servicer, will not be subject to the Capped Securitization Operating Expenses Amount if and for so long as an Event of Default has occurred and is continuing; provided, further, that the payment of any such fees, expenses and indemnities payable to the Trustee and, on and after the 2024 Springing Amendments Implementation Date, the Back-Up Manager and any such indemnities payable to the Servicer that were incurred during any period while an Event of Default has occurred and is continuing shall not be subject to the Capped Securitization Operating Expenses Amount, regardless of whether or not an Event of Default exists at the time of such payment;
(vi)sixth, to deposit to the applicable Indenture Trust Account, ratably according to the amounts required to be deposited as set forth in subclauses (A) through (C) below, the following amounts until the amounts required to be deposited pursuant to subclauses (A) through (C) below are deposited in full: (A) to allocate to the applicable Interest Payment Account for each Class of Senior Notes, pro rata by amount due within each such Series, an amount equal to the Senior Notes Accrued Quarterly Interest Amount, (B) to allocate to the Class A-1 Notes Commitment Fees Account, the Class A-1 Notes Accrued Quarterly Commitment Fees Amount and (C) to allocate to the Hedge Payment Account, the amount of the accrued and unpaid Series Hedge Payment Amount, if any, payable on or before the next Quarterly Payment Date to a Hedge Counterparty, if any; provided that the deposit to the Hedge Payment Account pursuant to this subclause (C) will exclude any termination payment payable to a Hedge Counterparty, if any;
(vii)seventh, to pay to each Class A-1 Administrative Agent pursuant to the related Class A-1 Note Purchase Agreement for payment, pro rata by amount due, of the Capped Class A-1 Notes Administrative Expenses Amount due for such Weekly Allocation Date;
(viii)eighth, to allocate to the applicable Interest Payment Account for each Class of Notes that are Senior Subordinated Notes, pro rata by amount due within each such Class, an amount equal to the Senior Subordinated Notes Accrued Quarterly Interest Amount;
(ix)ninth, to deposit to the applicable Interest Reserve Account, an amount equal to any Senior Notes Interest Reserve Account Deficit Amount and any Senior Subordinated Notes Interest Reserve Account Deficit Amount for each Class of Senior Notes and Senior Subordinated Notes in alphanumerical order of designation;
(x)tenth, pro rata, (A) to allocate to the applicable Principal Payment Account, an amount equal to the sum of (1) any Senior Notes Accrued Scheduled Principal Payments Amount and (2) any Senior Notes Scheduled Principal Payment Deficiency Amount with respect to prior Quarterly Payment Dates and (3) amounts then known by the Manager that will become due under any Class A-1 Note Purchase Agreement prior to the immediately succeeding Quarterly Payment Date with respect to the cash collateralization of letters of credit issued under such Class A-1 Note Purchase Agreement and (B) to deposit to the applicable Series Distribution Account in respect of each Series of Class A-1 Notes for which the Class A-1 Notes Renewal Date has not occurred, any outstanding amounts due and payable in respect of principal for such Series, for payment to the applicable Noteholders of such Series of Class A-1 Notes on such Weekly Allocation Date;
(xi)eleventh, to pay any Supplemental Management Fee, together with any previously accrued and unpaid Supplemental Management Fee;
(xii)twelfth, on and after any Class A-1 Notes Renewal Date (after giving effect to any extensions) for one or more Series of Notes, if the related Class A-1 Notes of such Series have not been repaid on or before such date, 100% of the amounts remaining on deposit in the Collection Account to the Senior Notes Principal Payment Account to allocate to such Class A-1 Notes of such Series on a pro rata basis (including a commensurate permanent reduction of any remaining related Class A-1 Commitments in respect thereof) until the Outstanding Principal Amount of such Class A-1 Notes of such Series will be reduced to zero on the next Quarterly
Payment Date after giving effect to all deposits in the Senior Notes Principal Payment Account allocable to such Class A-1 Notes;
(xiii)thirteenth, so long as no Rapid Amortization Event has occurred and is continuing, and such Weekly Allocation Date occurs during a Cash Trapping Period, to deposit into the Cash Trap Reserve Account an amount equal to the Cash Trapping Amount, if any, on such Weekly Allocation Date;
(xiv)fourteenth, if a Rapid Amortization Event has occurred and is continuing, to allocate first, (x) 100% of the amounts remaining on deposit in the Collection Account to the Senior Notes Principal Payment Account to each Class of Senior Notes, first, to the Class A-1 Notes on a pro rata basis (including a commensurate permanent reduction of any remaining Class A-1 Commitments) and then, to each remaining Class of Senior Notes on a pro rata basis until the Outstanding Principal Amount of each such Class will be reduced to zero on the next Quarterly Payment Date after giving effect to all deposits in the Senior Notes Principal Payment Account, and then second, (y) 100% of the amounts remaining on deposit in the Collection Account to the Senior Subordinated Notes Principal Payment Account to each Class of Senior Subordinated Notes until the Outstanding Principal Amount of each such Class will be reduced to zero on the next Quarterly Payment Date after giving effect to all deposits in the Senior Subordinated Notes Principal Payment Account;
(xv)fifteenth, so long as no Rapid Amortization Event has occurred and is continuing, to allocate to the Senior Subordinated Notes Principal Payment Account an amount equal to the sum of (1) the Senior Subordinated Notes Accrued Scheduled Principal Payments Amount, if any, and (2) the Senior Subordinated Notes Scheduled Principal Payment Deficiency Amount, if any;
(xvi)sixteenth, to allocate to the Subordinated Notes Interest Payment Account for each Class of Subordinated Notes, pro rata by amount due within each such Class, an amount equal to the Subordinated Notes Accrued Quarterly Interest Amount;
(xvii)seventeenth, so long as no Rapid Amortization Event has occurred and is continuing, to allocate to the Subordinated Notes Principal Payment Account an amount equal to the sum of (1) the Subordinated Notes Accrued Scheduled Principal Payments Amount, if any, and (2) the Subordinated Notes Scheduled Principal Payment Deficiency Amount, if any;
(xviii)eighteenth, if a Rapid Amortization Event has occurred and is continuing, to allocate 100% of the amounts remaining on deposit in the Collection Account to the Subordinated Notes Principal Payment Account to each Class of Subordinated Notes until the Outstanding Principal Amount of each such Class will be reduced to zero on the next Quarterly Payment Date after giving effect to all deposits in the Subordinated Notes Principal Payment Account;
(xix)nineteenth, to deposit to the Securitization Operating Expense Account, an amount equal to any accrued and unpaid Securitization Operating Expenses (together with any Securitization Operating Expenses that are expected to be payable prior to the immediately following Weekly Allocation Date) in excess of the Capped Securitization Operating Expenses Amount after giving effect to priority (v) above;
(xx)twentieth, to each Class A-1 Administrative Agent pursuant to the related Class A-1 Note Purchase Agreement for payment, pro rata by amount due, of the Excess Class A-1 Notes Administrative Expenses Amounts due for such Weekly Allocation Date;
(xxi)twenty-first, to each Class A-1 Administrative Agent pursuant to the related Class A-1 Note Purchase Agreement for payment, pro rata by amount due, of the Class A-1 Notes Other Amounts due for such Weekly Allocation Date;
(xxii)twenty-second, to allocate to the Senior Notes Post-ARD Contingent Additional Interest Account, any Senior Notes Accrued Quarterly Post-ARD Contingent Additional Interest Amount for the Senior Notes for such Weekly Allocation Date;
(xxiii)twenty-third, to allocate to the Senior Subordinated Notes Post-ARD Contingent Additional Interest Account, any Senior Subordinated Notes Accrued Quarterly Post-ARD Contingent Additional Interest Amount for the Senior Subordinated Notes for such Weekly Allocation Date;
(xxiv)twenty-fourth, to allocate to the Subordinated Notes Post-ARD Contingent Additional Interest Account, any Subordinated Notes Accrued Quarterly Post-ARD Contingent Additional Interest Amount for the Subordinated Notes for such Weekly Allocation Date;
(xxv)twenty-fifth, to deposit to the Hedge Payment Account, (A) any accrued and unpaid Series Hedge Payment Amount that constitutes a termination payment payable to a Hedge Counterparty; and (B) any other due and unpaid amounts payable to a Hedge Counterparty, pursuant to the related Series Hedge Agreement, in each case pro rata to each Hedge Counterparty, if any, according to the amount due and payable to each of them;
(xxvi)twenty-sixth, to allocate to the applicable Principal Payment Account(s) an amount equal to any unpaid premiums and make-whole prepayment consideration; and
(xxvii)twenty-seventh, to pay the remaining funds, if any (the “Residual Amount”), at the direction of the Issuer.
Section 5.12 Quarterly Payment Date Applications.
(a)Senior Notes Interest Payment Account.
(i)On each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing on the related Quarterly Payment Date to withdraw the funds allocated to the Senior Notes Interest Payment Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period (or, to the extent necessary to pay any Class A-1 Notes Interest Adjustment Amount, the then-current Quarterly Fiscal Period), and, if applicable, funds allocated to the Senior Notes Interest Payment Account pursuant to subclause (ii) below, to be paid for the benefit of the Senior Noteholders, up to the accrued and unpaid Senior Notes Quarterly Interest Amount due on such Quarterly Payment Date, sequentially in order of alphanumerical designation and pro rata among each Class of Senior Notes of the same alphanumerical designation based upon the amount of the Senior Notes Quarterly Interest Amount payable with respect to each such Class, and deposit such funds into the applicable Series Distribution Accounts. Amounts on deposit in the Senior Notes Interest Payment Account as of the Closing Date, if any, shall be deemed to be funds allocated to the Senior Notes Interest Payment Account during the first Quarterly Fiscal Period ending after the Closing Date.
(ii)If the amount of funds allocated to the Senior Notes Interest Payment Account referred to in subclause (i) is insufficient to pay the accrued and unpaid Senior Notes Quarterly Interest Amount due on such Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.12(p) shall be triggered and any funds reallocated as a result thereof into the Senior Notes Interest Payment Account shall be distributed in accordance with subclause (i) above. If such insufficiency is not eliminated following the reallocation of funds as set forth in Section 5.12(p), the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw an amount equal to any remaining insufficiency from first, the Senior Notes Interest Reserve Account to the extent of funds on deposit therein and second, from funds available to be
drawn under any Interest Reserve Letter of Credit relating to the Senior Notes, and deposit such funds into the Senior Notes Interest Payment Account for further deposit to the applicable Series Distribution Accounts pursuant to subclause (i); provided that in the event that amounts on deposit in the Senior Notes Interest Reserve Account or funds available to be drawn under any Interest Reserve Letter of Credit relating to the Senior Notes are required to be withdrawn in connection with a Class A-1 Notes Quarterly Commitment Fees Amount insufficiency under Section 5.12(b)(ii), the amounts withdrawn under this Section 5.12(a)(ii) and under Section 5.12(b)(ii) shall be allocated ratably based on the respective insufficiencies towards which such amounts are required to be allocated.
(iii)If, as determined on any Quarterly Calculation Date, the amount equal to the excess of (i) the accrued and unpaid Senior Notes Quarterly Interest Amount for the Interest Accrual Period with respect to each Class of Senior Notes ending most recently prior to the next succeeding Quarterly Payment Date over (ii) the amount that will be available to make payments of interest on the Senior Notes in accordance with subclauses (i) and (ii) above on such Quarterly Payment Date, is greater than zero (a “Senior Notes Interest Accrual Shortfall Amount”), then in accordance with the terms and conditions of the Servicing Agreement, by 3:00 p.m. (New York City time) on the Business Day preceding such Quarterly Payment Date, the Servicer shall make a Debt Service Advance in such amount unless the Servicer notifies the Issuer, the Manager, the Back-Up Manager and the Trustee by such time that it has, reasonably and in good faith, determined such Debt Service Advance (and interest thereon) is a Nonrecoverable Advance or an Advance Suspension Period is then in effect. If the Servicer fails to make such Debt Service Advance (unless the Servicer has, reasonably and in good faith, determined that such Debt Service Advance (and interest thereon) would be a Nonrecoverable Advance or an Advance Suspension Period is then in effect), pursuant to Section 10.1(l), the Trustee shall make the Debt Service Advance unless it determines that such Debt Service Advance (and interest thereon) is a Nonrecoverable Advance or an Advance Suspension Period is then in effect; provided, further, for the avoidance of doubt, that if for any reason (other than the Servicer’s determination in accordance with the Servicing Agreement that such Advance is a Nonrecoverable Advance) such Debt Service Advance is not made by the Servicer on or prior to such Quarterly Payment Date and such Senior Notes Quarterly Interest Amount has not been paid in full thereafter, whether due to the occurrence of an Advance Suspension Period or otherwise, such Debt Service Advance shall still be required to be made (following the cure of such Advance Suspension Period, if applicable). In determining whether any Debt Service Advance (and interest thereon) is a Nonrecoverable Advance, the Trustee may conclusively rely on the determination of the Servicer. All Debt Service Advances shall be deposited into the Senior Notes Interest Payment Account. If, after giving effect to all Debt Service Advances made with respect to any Quarterly Payment Date, the Senior Notes Interest Accrual Shortfall Amount with respect to such Quarterly Payment Date remains greater than zero (such amount, a “Senior Notes Interest Shortfall Amount”), then the payment of the Senior Notes Quarterly Interest Amount as reduced by such Senior Notes Interest Shortfall Amount to be distributed on such Quarterly Payment Date to the Senior Notes shall be paid to the Senior Notes, sequentially in order of alphanumerical designation and pro rata among each Class of Senior Notes of the same alphanumerical designation based upon the amount of the Senior Notes Quarterly Interest Amount payable with respect to each such Class; provided that such reduction shall not be deemed to be a waiver of any default caused by the existence of such Senior Notes Interest Shortfall Amount. An additional amount of interest may accrue on the Senior Notes Interest Shortfall Amount for each subsequent Interest Accrual Period until the Senior Notes Interest Shortfall Amount is paid in full, as set forth in the applicable Series Supplement.
(b)Class A-1 Notes Commitment Fees Account.
(i)On each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing on the related Quarterly Payment Date to withdraw the
funds allocated to the Class A-1 Notes Commitment Fees Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period (or, to the extent necessary to pay any Class A-1 Notes Commitment Fees Adjustment Amount, the then-current Quarterly Fiscal Period), and, if applicable, funds allocated to the Class A-1 Notes Commitment Fees Account pursuant to subclause (ii) below, to be paid for the benefit of the Noteholders of the applicable Class A-1 Notes, up to the Class A-1 Notes Quarterly Commitment Fees Amount accrued and unpaid with respect to the applicable Class A-1 Notes, pro rata among each Series of Class A-1 Notes based upon the Class A-1 Notes Quarterly Commitment Fees Amount payable with respect to each such Series, and deposit such funds into the applicable Series Distribution Account. Amounts on deposit in the Class A-1 Notes Commitment Fees Account as of the Closing Date, if any, shall be deemed to be funds allocated to the Class A-1 Notes Commitment Fees Account during the first Quarterly Fiscal Period ending after the Closing Date.
(ii)If the amount of funds allocated to the Class A-1 Notes Commitment Fees Account referred to in subclause (i) is insufficient to pay the accrued and unpaid Class A-1 Notes Quarterly Commitment Fees Amount due on such Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.12(p) shall be triggered and any funds reallocated as a result thereof into the Class A-1 Notes Commitment Fees Account will be distributed in accordance with subclause (i) above. If such insufficiency is not eliminated following the reallocation of funds as set forth in Section 5.12(p), the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw an amount equal to any remaining insufficiency from first, the Senior Notes Interest Reserve Account to the extent of funds on deposit therein and second, from funds available to be drawn under any Interest Reserve Letter of Credit relating to the Senior Notes, and deposit such funds into the Class A-1 Notes Commitment Fees Account for further deposit to the applicable Series Distribution Accounts pursuant to subclause (i); provided that in the event that amounts on deposit in the Senior Notes Interest Reserve Account or funds available to be drawn under any Interest Reserve Letter of Credit relating to the Senior Notes are required to be withdrawn in connection with a Senior Notes Quarterly Interest Amount insufficiency under Section 5.12(a)(ii), the amounts withdrawn under this Section 5.12(b)(ii) and under Section 5.12(a)(ii) shall be allocated ratably based on the respective insufficiencies towards which such amounts are required to be allocated.
(iii)If, as determined on any Quarterly Calculation Date, the result of (i) the accrued and unpaid Class A-1 Notes Quarterly Commitment Fees Amounts for the Interest Accrual Period ending most recently prior to the next succeeding Quarterly Payment Date over (ii) the amount that shall be available to make payments on the Class A-1 Notes Quarterly Commitment Fees Amounts in accordance with subclauses (i) and (ii) on such Quarterly Payment Date, is greater than zero (a “Class A-1 Notes Commitment Fees Shortfall Amount”), then such amount available to be distributed on such Quarterly Payment Date to the Class A-1 Notes shall be paid to the Class A-1 Notes, pro rata among each Series of Class A-1 Notes based upon the amount of Class A-1 Notes Quarterly Commitment Fees Amounts payable with respect to each such Class; provided that such reduction shall not be deemed to be a waiver of any default caused by the existence of such Class A-1 Notes Commitment Fees Shortfall Amount. An additional amount of interest may accrue on each such Class A-1 Notes Commitment Fees Shortfall Amount for each subsequent Interest Accrual Period until each such Class A-1 Notes Commitment Fees Shortfall Amount is paid in full, as set forth in the applicable Series Supplement.
(c)Senior Subordinated Notes Interest Payment Account.
(i)To the extent any Series of Senior Subordinated Notes has been issued, on each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing on the next Quarterly Payment Date to withdraw the funds allocated to the Senior Subordinated Notes Interest Payment Account, on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period, and, if applicable, funds allocated
to the Senior Subordinated Notes Interest Payment Account pursuant to subclause (ii) below, to be paid for the benefit of the Holders of the Senior Subordinated Notes, up to the accrued and unpaid Senior Subordinated Notes Quarterly Interest Amount due on such Quarterly Payment Date, sequentially in order of alphanumerical designation and pro rata among each Class of Senior Subordinated Notes of the same alphanumerical designation based upon the amount of the Senior Subordinated Notes Quarterly Interest Amount payable with respect to each such Class, and deposit such funds into the applicable Series Distribution Accounts.
(ii)If the amount of funds allocated to the Senior Subordinated Notes Interest Payment Account referred to in subclause (i) is insufficient to pay the accrued and unpaid Senior Subordinated Notes Quarterly Interest Amount due on such Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.12(p) shall be triggered and any funds reallocated as a result thereof into the Senior Subordinated Notes Interest Payment Account shall be distributed in accordance with subclause (i) above. If such insufficiency is not eliminated following the reallocation of funds as set forth in Section 5.12(p), the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw an amount equal to any remaining insufficiency from first, the Senior Subordinated Notes Interest Reserve Account to the extent of funds on deposit therein and second, from funds available to be drawn under any Interest Reserve Letter of Credit relating to the Senior Subordinated Notes, and deposit such funds into the Senior Subordinated Notes Interest Payment Account for further deposit to the applicable Series Distribution Accounts pursuant to subclause (i).
(iii)If, as determined on any Quarterly Calculation Date, the result of (i) the accrued and unpaid Senior Subordinated Notes Quarterly Interest Amount due on such Quarterly Payment Date over (ii) the amount that shall be available to make payments of interest on the Senior Subordinated Notes on such Quarterly Payment Date in accordance with subclauses (i) and (ii) above, is greater than zero (a “Senior Subordinated Notes Interest Shortfall Amount”), then such amount available to be distributed on such Quarterly Payment Date to the Senior Subordinated Notes shall be paid to the Senior Subordinated Notes, sequentially in order of alphanumerical designation and pro rata among each Class of Senior Subordinated Notes of the same alphanumerical designation based upon the amount of the Senior Subordinated Notes Quarterly Interest Amount payable with respect to each such Class; provided that such reduction shall not be deemed to be a waiver of any default caused by the existence of such Senior Subordinated Notes Interest Shortfall Amount. An additional amount of interest may accrue on the Senior Subordinated Notes Interest Shortfall Amount for each subsequent Interest Accrual Period until the Senior Subordinated Notes Interest Shortfall Amount is paid in full, as set forth in the applicable Series Supplement.
(d)Senior Notes Principal Payment Account.
(i)On each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing on the related Quarterly Payment Date to withdraw the funds allocated to the Senior Notes Principal Payment Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period, to be paid for the benefit of (A) in the case of funds allocated pursuant to priority (i) of the Priority of Payments, the Noteholders of each applicable Class of Senior Notes up to the aggregate amount of such allocated Indemnification Amounts, Asset Disposition Proceeds and Insurance/Condemnation Proceeds in the order of priority set forth in priority (i) of the Priority of Payments and (B) in the case of funds allocated pursuant to priorities (x)(A), (xii), (xiv) and (xxvi) of the Priority of Payments and subclause (ii) below, if applicable, excluding any Principal Release Amounts, the Noteholders of each applicable Class of Senior Notes in the order of priority set forth in the Priority of Payments with respect to such priorities (x)(A), (xii), (xiv) and (xxvi), in each case sequentially in order of alphanumerical designation and pro rata among each such applicable Class of Senior Notes of the same alphanumerical designation based upon the Outstanding
Principal Amount of the Senior Notes of such Class, and deposit such funds into the applicable Series Distribution Account.
(ii)If the aggregate amount of funds allocated to the Senior Notes Principal Payment Account pursuant to priorities (x)(A), (xii), (xiv) and (xxvi) of the Priority of Payments on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period is insufficient to pay the sum (without duplication) of (A) the Senior Notes Scheduled Principal Payments Amounts or any Senior Notes Scheduled Principal Payment Deficiency Amounts due with respect to each applicable Class of Senior Notes on such Quarterly Payment Date, (B) so long as no Rapid Amortization Period is continuing, if a Class A-1 Notes Amortization Event has occurred and is continuing, the Outstanding Principal Amount of the Class A-1 Notes affected by such Class A-1 Notes Amortization Event and (C) if a Rapid Amortization Event has occurred and is continuing, the Outstanding Principal Amount of the Senior Notes, on the next Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.12(p) shall be triggered and any funds reallocated as a result thereof into the Senior Notes Principal Payment Account shall be distributed in accordance with subclause (i) above.
(iii)Payment of principal of any Class A-1 Notes of any Series of Notes shall be distributed in accordance with the applicable Series Supplement and Class A-1 Note Purchase Agreement to the parties thereto. If any payment of principal of any Class A-1 Notes of any Series pursuant to subclause (i) above is required pursuant to the applicable Series Supplement or Class A-1 Note Purchase Agreement to be deposited with the applicable L/C Provider to serve as collateral and act as security (the “Cash Collateral”) for any obligations of the Issuer relating to letters of credit issued thereunder (the “Collateralized Letters of Credit”), then upon the expiration of the Collateralized Letters of Credit the Cash Collateral shall be remitted in accordance with such Series Supplement or Class A-1 Note Purchase Agreement.
(e)Senior Subordinated Notes Principal Payment Account.
(i)To the extent any Series of Senior Subordinated Notes has been issued, on each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw on the next Quarterly Payment Date the funds allocated to the Senior Subordinated Notes Principal Payment Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period, to be paid for the benefit of (A) in the case of funds allocated pursuant to priority (i) of the Priority of Payments, the Holders of each applicable Class of Senior Subordinated Notes up to the aggregate amount of such allocated Indemnification Amounts, Asset Disposition Proceeds and Insurance/Condemnation Proceeds in the order of priority set forth in priority (i) of the Priority of Payments and (B) in the case of funds allocated pursuant to priorities (xiv), (xv) and (xxvi) of the Priority of Payments, and subclause (ii) below, if applicable, excluding any applicable Principal Release Amounts, the Holders of each applicable Class of Senior Subordinated Notes in the order of priority set forth in the Priority of Payments with respect to such priorities (xiv), (xv) and (xxvi), in each case sequentially in order of alphanumerical designation and pro rata among each such Class of Senior Subordinated Notes of the same alphanumerical designation based upon the Outstanding Principal Amount of the Senior Subordinated Notes of such Class, and deposit such funds into the applicable Series Distribution Account.
(ii)If the aggregate amount of funds allocated to the Senior Subordinated Notes Principal Payment Account pursuant to priorities (xiv), (xv) and (xxvi) of the Priority of Payments on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period is insufficient to pay the sum (without duplication) of (A) the Senior Subordinated
Notes Scheduled Principal Payments Amounts and any Senior Subordinated Notes Scheduled Principal Payment Deficiency Amounts due with respect to each applicable Class of Senior Subordinated Notes on such Quarterly Payment Date and (B) if a Rapid Amortization Period is continuing, the Outstanding Principal Amount of the Senior Subordinated Notes, on the next Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.12(p) shall be triggered and any funds reallocated as a result thereof into the Senior Subordinated Notes Principal Payment Account shall be distributed in accordance with subclause (i) above.
(f)Subordinated Notes Interest Payment Account.
(i)To the extent any Series of Subordinated Notes has been issued, on each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing on the next Quarterly Payment Date to withdraw the funds allocated to the Subordinated Notes Interest Payment Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period, and, if applicable, funds allocated to the Subordinated Notes Interest Payment Account pursuant to subclause (ii) below, to be paid for the benefit of the Holders of the Subordinated Notes, up to the accrued and unpaid Subordinated Notes Quarterly Interest Amount, sequentially in order of alphanumerical designation and pro rata among each Class of Subordinated Notes of the same alphanumerical designation based upon the amount of the Subordinated Notes Quarterly Interest Amount payable with respect to each such Class, and deposit such funds into the applicable Series Distribution Accounts.
(ii)If the amount of funds allocated to the Subordinated Notes Interest Payment Account referred to in subclause (i) is insufficient to pay the accrued and unpaid Subordinated Notes Quarterly Interest Amount due on such Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.12(p) shall be triggered and any funds reallocated as a result thereof into the Subordinated Notes Interest Payment Account shall be distributed in accordance with subclause (i) above.
(iii)If, as determined on any Quarterly Calculation Date, the result of (i) the accrued and unpaid Subordinated Notes Quarterly Interest Amounts due on such Quarterly Payment Date over (ii) the amount that shall be available to make payments of interest on the Subordinated Notes in accordance with subclauses (i) and (ii) on such Quarterly Payment Date, is greater than zero (the “Subordinated Notes Interest Shortfall Amount”), then such amount available to be distributed on such Quarterly Payment Date to the Subordinated Notes shall be paid to each Class of Subordinated Notes, sequentially in order of alphanumerical designation and pro rata among each Class of Subordinated Notes of the same alphanumerical designation based upon the amount of the Subordinated Notes Quarterly Interest Amount payable with respect to each such Class; provided that such reduction shall not be deemed to be a waiver of any default caused by the existence of such Subordinated Notes Interest Shortfall Amount. An additional amount of interest may accrue on the Subordinated Notes Interest Shortfall Amount for each subsequent Interest Accrual Period until the Subordinated Notes Interest Shortfall Amount is paid in full, as specified in the applicable Series Supplement.
(g)Subordinated Notes Principal Payment Account.
(i)To the extent any Series of Subordinated Notes has been issued, on each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw on the next Quarterly Payment Date the funds allocated to the Subordinated
Notes Principal Payment Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period, to be paid for the benefit of (A) in the case of funds allocated pursuant to priority (i) of the Priority of Payments, the Holders of each applicable Class of Subordinated Notes up to the aggregate amount of such allocated Indemnification Amounts, Asset Disposition Proceeds and Insurance/ Condemnation Proceeds in the order of priority set forth in priority (i) of the Priority of Payments and (B) in the case of funds allocated pursuant to priorities (xvii), (xviii) and (xxvi) of the Priority of Payments, and subclause (ii) below, if applicable, excluding any applicable Principal Release Amounts, the Holders of each applicable Class of Subordinated Notes in the order of priority set forth in the Priority of Payments with respect to such priorities (xvii), (xviii) and (xxvi), in each case sequentially in order of alphanumerical designation and pro rata among each such Class of Subordinated Notes of the same alphanumerical designation based upon the Outstanding Principal Amount of the Subordinated Notes of such Class and deposit such funds into the applicable Series Distribution Account.
(ii)If the aggregate amount of funds allocated to the Subordinated Notes Principal Payment Account pursuant to priorities (xvii), (xviii) and (xxvi) of the Priority of Payments on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period is insufficient to pay the sum (without duplication) of (A) the Subordinated Notes Scheduled Principal Payments Amounts and any Subordinated Notes Scheduled Principal Payment Deficiency Amounts due with respect to each applicable Class of Subordinated Notes on such Quarterly Payment Date and (B) if a Rapid Amortization Period is continuing, the Outstanding Principal Amount of the Subordinated Notes, on the next Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.12(p) shall be triggered and any funds reallocated as a result thereof into the Subordinated Notes Principal Payment Account shall be distributed in accordance with subclause (i) above.
(h)Senior Notes Post-ARD Contingent Additional Interest Account.
(i)On each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw on the related Quarterly Payment Date the funds allocated to the Senior Notes Post-ARD Contingent Additional Interest Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period, and, if applicable, funds allocated to the Senior Notes Post-ARD Contingent Additional Interest Account pursuant to subclause (ii) below, to be paid for the benefit of the Noteholders of each applicable Class of Senior Notes, up to the accrued and unpaid Senior Notes Quarterly Post-ARD Contingent Additional Interest due on such Quarterly Payment Date, sequentially in order of alphanumerical designation and pro rata among each such Class of Senior Notes of the same alphanumerical designation based upon the Senior Notes Quarterly Post-ARD Contingent Additional Interest payable on each such Class, and deposit such funds into the applicable Series Distribution Accounts.
(ii)If the aggregate amount of funds allocated to the Senior Notes Post-ARD Contingent Additional Interest Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period referred to in subclause (i) is insufficient to pay the Senior Notes Quarterly Post-ARD Contingent Additional Interest due on such Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.12(p) shall be triggered and any funds reallocated as a result thereof into the Senior Notes Post-ARD Contingent Additional Interest Account shall be distributed in accordance with subclause (i) above.
(i)Senior Subordinated Notes Post-ARD Contingent Additional Interest Account.
(i)To the extent any Series of Senior Subordinated Notes has been issued, on each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw on the next Quarterly Payment Date the funds allocated to the Senior Subordinated Notes Post-ARD Contingent Additional Interest Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period, and, if applicable, the funds allocated to the Senior Subordinated Notes Post-ARD Contingent Additional Interest Account pursuant to subclause (ii) below, to be paid for the benefit of the Noteholders of each applicable Class of Senior Subordinated Notes, up to the accrued and unpaid Senior Subordinated Notes Quarterly Post-ARD Contingent Additional Interest due on such Quarterly Payment Date, sequentially in order of alphanumerical designation and pro rata among each such Class of Senior Subordinated Notes of the same alphanumerical designation based upon the Senior Subordinated Notes Quarterly Post-ARD Contingent Additional Interest payable on each such Class, and deposit such funds into the applicable Series Distribution Accounts.
(ii)If the aggregate amount of funds allocated to the Senior Subordinated Notes Post-ARD Contingent Additional Interest Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period referred to in subclause (i) is insufficient to pay the Senior Subordinated Notes Quarterly Post-ARD Contingent Additional Interest due on such Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.12(p) shall be triggered and any funds reallocated as a result thereof into the Senior Subordinated Notes Post-ARD Contingent Additional Interest Account shall be distributed in accordance with subclause (i) above.
(j)Subordinated Notes Post-ARD Contingent Additional Interest Account.
(i)To the extent any Series of Subordinated Notes has been issued, on each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw on the next Quarterly Payment Date the funds allocated to the Subordinated Notes Post-ARD Contingent Additional Interest Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period, and, if applicable, funds allocated to the Subordinated Notes Post-ARD Contingent Additional Interest Account pursuant to subclause (ii) below, to be paid for the benefit of the Noteholders of each applicable Class of Subordinated Notes, up to the accrued and unpaid Subordinated Notes Quarterly Post-ARD Contingent Additional Interest due on such Quarterly Payment Date, sequentially in order of alphanumerical designation and pro rata among each such Class of Subordinated Notes of the same alphanumerical designation based upon the Subordinated Notes Quarterly Post-ARD Contingent Additional Interest payable on each such Class, and deposit such funds into the applicable Series Distribution Accounts.
(ii)If the aggregate amount of funds allocated to the Subordinated Notes Post-ARD Contingent Additional Interest Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period referred to in subclause (i) is insufficient to pay the Subordinated Notes Quarterly Post-ARD Contingent Additional Interest due on such Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.12(p) shall be triggered and any funds reallocated as a result thereof into the Subordinated Notes Post-ARD Contingent Additional Interest Account shall be distributed in accordance with subclause (i) above.
(k)Amounts on Deposit in the Senior Notes Interest Reserve Account and the Senior Subordinated Notes Interest Reserve Account and the Cash Trap Reserve Account.
(i)On each Weekly Allocation Date that is a Cash Trapping Release Date, the Trustee, pursuant to the related Weekly Manager’s Certificate, shall withdraw on such Weekly Allocation Date from funds on deposit in the Cash Trap Reserve Account an amount equal to the applicable Cash Trapping Release Amount and deposit such funds into the Collection Account for distribution in accordance with the Priority of Payments on the next following Weekly Allocation Date. On the first Weekly Allocation Date following the commencement of the Rapid Amortization Period (including a Rapid Amortization Period due to an Event of Default), the Trustee, pursuant to the related Weekly Manager’s Certificate, shall withdraw on such Weekly Allocation Date all funds then on deposit in the Cash Trap Reserve Account and deposit such funds into the Collection Account for distribution in accordance with the Priority of Payments on the next following Weekly Allocation Date.
(ii)Amounts on deposit in the Cash Trap Reserve Account shall also be available to make an optional prepayment of the Notes (in each case, in accordance with the terms of the applicable Series Supplement) in the sole discretion of the Issuer. Any such amounts used to make an optional prepayment will be allocated, after giving effect to all other payments to be made as of the related Optional Prepayment Date, including all other releases and payments from the Cash Trap Reserve Account, in the following order of priority (the “CTOP Payment Priority”): first to the Trustee, for any unreimbursed Advances (and accrued interest thereon at a rate equal to the Advance Interest Rate), second, to the Servicer for any unreimbursed Advances (and accrued interest thereon at a rate equal to the Advance Interest Rate), third, to pre-fund payments determined by the Manager to be required to be paid on the next Weekly Allocation Date pursuant to priorities (ii) through (xxvi) of the Priority of Payments (except for priority (xiii) thereof) and then fourth, to the Senior Notes Principal Payment Account to make such optional prepayment; provided that any such optional prepayment will be accompanied by the payment of any make-whole prepayment premiums related thereto, to the extent such prepayment premiums are otherwise payable in connection with the optional prepayment of such Notes in accordance with the applicable Series Supplement.
(iii)If the Issuer (or the Manager on its behalf) determines, with respect to any Series of Senior Notes, that the amount to be deposited in any Series Distribution Account in accordance with this Section 5.12 on any Series Legal Final Maturity Date related to such Series of Senior Notes is less than the Outstanding Principal Amount of such Series of Senior Notes, on the Quarterly Calculation Date immediately preceding such Series Legal Final Maturity Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee thereof in writing, and the Trustee shall, in accordance with such instruction on such Series Legal Final Maturity Date, withdraw from the Senior Notes Interest Reserve Account an amount equal to such insufficiency (and, to the extent the amount in the Senior Notes Interest Reserve Account is insufficient, the Issuer (or the Manager on its behalf) shall instruct the Control Party to draw on the applicable Interest Reserve Letter of Credit) and deposit such amount into the applicable Series Distribution Accounts, to be paid to the Senior Notes sequentially in order of alphanumeric designation and pro rata among each Class of Senior Notes of the same alphanumerical designation (for which purpose any roman-numeral-denominated Tranche within an alphanumerical Class of Notes shall be deemed to have the same alphanumerical priority) based upon the Outstanding Principal Amount of the Senior Notes of each such Class.
(iv)If the Issuer (or the Manager on its behalf) determines, with respect to any Series of Senior Subordinated Notes, that the amount to be deposited in any Series Distribution Account in accordance with this Section 5.12 on any Series Legal Final Maturity Date related to such Series of Senior Subordinated Notes is less than the Outstanding Principal Amount of such Series of Senior Subordinated Notes, on the Quarterly Calculation Date immediately preceding such Series Legal Final Maturity Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee thereof in writing, and the Trustee shall, in accordance with such instruction on such Series Legal Final Maturity Date, withdraw from the Senior Subordinated Notes Interest Reserve Account an amount equal to such insufficiency (and, to the extent the amount in the Senior Subordinated Notes Interest Reserve Account is insufficient, the Issuer shall instruct the Control Party to make a draw on the applicable Interest Reserve Letter of Credit) and deposit such amount into the applicable Series Distribution Accounts, to be paid to the Senior Subordinated Notes sequentially in order of alphanumeric designation and pro rata among each Class of Senior Subordinated Notes of the same alphanumerical designation (for which purpose any roman-numeral-denominated Tranche within an alphanumerical Class of Notes shall be deemed to have the same alphanumerical priority) based upon the Outstanding Principal Amount of the Senior Subordinated Notes of each such Class.
(v)On any date on which no Senior Notes are Outstanding, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw on such date any funds then on deposit in the Senior Notes Interest Reserve Account and to deposit all remaining funds into the Collection Account and/or to return any outstanding Interest Reserve Letter of Credit maintained with respect to the Senior Notes to the issuer thereof for cancellation.
(vi)On any date on which no Senior Subordinated Notes are Outstanding, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw on such date any funds then on deposit in the Senior Subordinated Notes Interest Reserve Account and to deposit all remaining funds into the Collection Account and/or to return any outstanding Interest Reserve Letter of Credit maintained with respect to the Senior Subordinated Notes to the issuer thereof for cancellation.
(l)Principal Release Amount.
(i)If a Rapid Amortization Period or Event of Default is continuing, each Principal Release Amount shall be applied in the order set forth in Section 5.12(d)(i), Section 5.12(e)(i) or Section 5.12(g)(i), as applicable, notwithstanding the exclusion of Principal Release Amounts therein.
(ii)So long as no Rapid Amortization Period, Event of Default or Class A-1 Notes Amortization Event is continuing, on each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw on the related Quarterly Payment Date any Principal Release Amount from the Senior Notes Principal Payment Account, Senior Subordinated Notes Principal Payment Account or Subordinated Notes Principal Payment Account, as applicable, and apply such funds on such Quarterly Payment Date to the extent necessary to pay, in the following order of priority, (A) unreimbursed Advances of the Trustee (with interest thereon at the Advance Interest Rate), (B) unreimbursed Advances of the Servicer (with interest thereon at the Advance Interest Rate), (C) unreimbursed Manager Advances (with interest thereon at the Advance Interest Rate), (D) pro rata, Senior Notes Quarterly Interest Amounts, Class A-1 Notes Quarterly Commitment Fees Amounts, and Series Hedge Payment
Amounts, and (E) Senior Subordinated Notes Quarterly Interest Amounts, in each case, after giving effect to other amounts available for payment thereof as described in this Section 5.12. The Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to distribute the remainder of such Principal Release Amount, if any, in the priority set forth in the Priority of Payments, beginning at priority (xi), but excluding (i) priority (xv) in the case of a Principal Release Amount with respect to any Series of Senior Subordinated Notes or (ii) priority (xvii) in the case of a Principal Release Amount with respect to any Series of Subordinated Notes.
(iii)If no Rapid Amortization Period or Event of Default is continuing, but a Class A-1 Notes Amortization Event is continuing, on each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw on the related Quarterly Payment Date any Principal Release Amount from the Senior Notes Principal Payment Account, Senior Subordinated Notes Principal Payment Account or Subordinated Notes Principal Payment Account, as applicable, to the extent necessary to pay the Outstanding Principal Amount of the applicable Class A-1 Notes, and deposit such funds into the applicable Series Distribution Account for distribution to the Noteholders of the applicable Class A-1 Notes, pro rata, after giving effect to other amounts available for payment thereof. The Issuer (or the Manager on its behalf) will instruct the Trustee in writing to distribute the remainder of the Principal Release Amount, if any, in the priority set forth in the Priority of Payments, beginning at priority (xi), but excluding (i) priority (xv) in the case of a Principal Release Amount with respect to any Series of Senior Subordinated Notes or (ii) priority (xvii) in the case of a Principal Release Amount with respect to any Series of Subordinated Notes.
(m)Securitization Operating Expense Account. On each Weekly Allocation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing to withdraw on such date an amount equal to the lesser of (i) the sum of all Securitization Operating Expenses then due and payable and (ii) the amount on deposit in the Securitization Operating Expense Account after giving effect to any deposits thereto pursuant to the Priority of Payments on such date and apply such funds to pay any Securitization Operating Expenses then due and payable.
(n)Hedge Payment Account.
(i)On each Quarterly Calculation Date, the Issuer (or the Manager on its behalf) shall instruct the Trustee in writing on the related Quarterly Payment Date to withdraw the funds allocated to the Hedge Payment Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period and, if applicable, funds allocated to the Hedge Payment Account pursuant to subclause (ii) below, up to the accrued and unpaid amount of Series Hedge Payment Amount, and distribute such funds among each Hedge Counterparty, pro rata based upon the Series Hedge Payment Amount payable to each Hedge Counterparty.
(ii)If the amount of funds allocated to the Hedge Payment Account on each Weekly Allocation Date with respect to the immediately preceding Quarterly Fiscal Period is insufficient to pay the aggregate accrued and unpaid Series Hedge Payment Amount due and payable since the prior Quarterly Payment Date, then a Quarterly Reallocation Event pursuant to Section 5.12(p) shall be triggered and any funds reallocated as a result thereof into the Hedge Payment Account will be distributed in accordance with subclause (i) above.
(o)Optional Prepayments. The Issuer shall have the right to optionally prepay the Outstanding Principal Amount of any Series, Class, Subclass or Tranche of Notes, in whole or in part in
accordance with the related Series Supplement; provided that following a Series Anticipated Repayment Date for any Series of Notes that remains Outstanding, all optional prepayments must be applied first, to Senior Notes, second, to Senior Subordinated Notes and third, to Subordinated Notes.
(p)Quarterly Reallocation Events. In the event that there exists any shortfall with respect to amounts payable under any subsection of this Section 5.12 that specifically refers to this clause (p) (a “Quarterly Reallocation Event”), the Issuer (or the Manager on its behalf) shall instruct the Trustee to reallocate on the relevant Quarterly Calculation Date the aggregate funds on deposit in the Specified Indenture Trust Accounts that were allocated during the immediately preceding Quarterly Fiscal Period to the Specified Indenture Trust Accounts in sequential order in the aggregate amounts due under priorities (vi), (viii), (x), (xii), (xiii), (xiv), (xv), (xvi), (xvii), (xviii), (xxii), (xxiii), (xxiv) and (xxvi) of the Priority of Payments for such Quarterly Fiscal Period.
Section 5.13 Determination of Quarterly Interest.
Quarterly payments of interest and fees on each Series of Notes shall be determined, allocated and distributed in accordance with the procedures set forth in the applicable Series Supplement.
Section 5.14 Determination of Quarterly Principal.
Quarterly payments of principal, if any, of each Series of Notes shall be determined, allocated and distributed in accordance with the procedures set forth in the applicable Series Supplement.
Section 5.15 Prepayment of Principal.
Mandatory prepayments of principal, if any, of each Series of Notes shall be determined, allocated and distributed in accordance with the procedures set forth in the applicable Series Supplement, if not otherwise described herein.
Section 5.16 Retained Collections Contributions.
Between the Closing Date and the Final Series Legal Final Maturity Date, the Issuer may designate Retained Collections Contributions to be included in Net Cash Flow, but not more than (x) for all Retained Collections Contributions made in any single Quarterly Fiscal Period, the greater of (A) 5% of Net Cash Flow over the four (4) Quarterly Fiscal Periods immediately preceding the relevant date of determination and (B) $7 million, (y) for all Retained Collections Contributions made during any period of four (4) consecutive Quarterly Fiscal Periods, the greater of (A) 15% of Net Cash Flow over the four (4) Quarterly Fiscal Periods immediately preceding the relevant date of determination and (B) $15 million and (z) for all Retained Collections Contributions made from the Closing Date to the Final Series Legal Final Maturity Date, the greater of (A) 25% of Net Cash Flow during the four (4) Quarterly Fiscal Periods immediately preceding the relevant date of determination and (B) $30 million; provided that any Retained Collections Contributions made to the Issuer following a Quarterly Fiscal Period, but on or before the related Quarterly Calculation Date, may, at the Issuer’s discretion as designated in the related Weekly Manager’s Certificate or Quarterly Noteholders’ Report, as applicable, be included in Net Cash Flow for such Quarterly Fiscal Period; provided that any Retained Collections Contribution made shall be excluded from Net Cash Flow for purposes of calculations undertaken in the following circumstances: (i) calculating the Additional Notes DSCR in connection with the issuance of any Additional Notes pursuant to Section 2.2 and (ii) satisfaction of the Series 2020-1 Class A-2 Non-Amortization Test.
The Issuer may not designate equity contributions as Retained Collections Contributions to the extent such equity contributions were funded by the proceeds of a draw under any Class A-1 Notes.
If any Retained Collections Contribution is included in Net Cash Flow for the purpose of calculating the DSCR, such Retained Collections Contribution shall be retained in the Collection Account until the Weekly Allocation Date on which either (i) the DSCR for the period of four (4) Quarterly Fiscal Periods ended immediately prior to such Weekly Allocation Date is at least 1.50x without giving effect to the inclusion of such Retained Collections Contribution or (ii) such Retained Collections Contribution is required to pay any shortfall in the amounts payable under priorities (ii) through (xxvi) of the Priority of Payments, to the extent of any shortfall on such Weekly Allocation Date.
Section 5.17 Interest Reserve Letters of Credit.
(a)The Issuer may, in lieu of funding (or as partial replacement for funding) the Senior Notes Interest Reserve Account and/or the Senior Subordinated Notes Interest Reserve Account in the amounts required hereunder, maintain one or more Interest Reserve Letters of Credit issued under a Class A-1 Note Purchase Agreement for the benefit of the Trustee and the Control Party, in each case on behalf of the Holders of the Senior Notes or the Holders of the Senior Subordinated Notes, as applicable, each in a face amount equal to or (at the election of the Manager) greater than the amounts required to be funded in respect of such account(s) had such Interest Reserve Letter of Credit not been issued.
Where on any Quarterly Calculation Date the Issuer (or the Manager on its behalf) instructs the Trustee to withdraw funds from the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, for allocation or payment on the following Quarterly Payment Date, such funds shall be drawn first, from the aggregate amount on deposit in the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account (with the Manager instructing the Trustee in writing as to the Senior Notes Interest Reserve Account or Senior Subordinated Notes Interest Reserve Account from which such amounts shall be withdrawn), on such Quarterly Calculation Date and second, from amounts available to be drawn under any applicable Interest Reserve Letter of Credit.
(b)Each such Interest Reserve Letter of Credit (i) shall name the Control Party and the Trustee, each for the benefit of the Holders of the Senior Notes or the Holders of the Senior Subordinated Notes, as applicable, as the beneficiary thereof; (ii) shall allow the Trustee or the Control Party to submit a notice of drawing in respect of such Interest Reserve Letter of Credit whenever amounts would otherwise be required to be withdrawn from the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, pursuant to Section 5.12; (iii) shall have an expiration date of no later than ten (10) Business Days prior to the then-current Class A-1 Notes Renewal Date (after giving effect to any extensions) specified in the related Class A-1 Note Purchase Agreement pursuant to which such Interest Reserve Letter of Credit was issued; and (iv) shall indicate by its terms that the proceeds in respect of drawings under such Interest Reserve Letter of Credit shall be paid directly into the Senior Notes Interest Reserve Account, the Senior Notes Interest Payment Account, the Senior Subordinated Notes Interest Reserve Account, the Senior Subordinated Notes Interest Payment Account, the Class A-1 Notes Commitment Fees Account or the applicable Series Distribution Account pursuant to Section 5.12, as applicable.
Upon the occurrence and continuance of an Interest Reserve Release Event, at the election of the Manager the resulting excess funds on deposit in the Senior Notes Interest Reserve Account or Senior Subordinated Interest Reserve Account, as applicable, shall be withdrawn and released to the Collection Account as Collections in accordance with Section 5.10(e)(vi) and/or the excess amount of the related Interest Reserve Letter of Credit may be reduced by delivering a replacement or amended Interest Reserve Letter of Credit to the Control Party reflecting such reduced amount. If the existing Interest Reserve Letter of Credit is amended, the Trustee and the Control Party shall be entitled to execute or acknowledge such amendment based solely on the written confirmation from the Manager as to the amount reflected in such amendment being at least equal difference between the Senior Notes Interest Reserve Amount or Senior Subordinated Notes Interest Reserve Amount, as applicable, and the amount on deposit in the Senior Notes Interest Reserve Account or Senior Subordinated Notes Interest Reserve Account, as applicable, and without the consent of any Noteholder, the Trustee, the Controlling Class Representative or any other Secured Party. If a replacement Interest Reserve Letter of Credit is provided, the Control Party shall
(without the consent of any Noteholder, the Trustee, the Controlling Class Representative or any other Secured Party) deliver to the L/C Provider the replaced Interest Reserve Letter of Credit for termination simultaneously with the receipt by the Control Party of such replacement Interest Reserve Letter of Credit, in each case to the extent that after the Control Party’s receipt thereof, no Senior Notes Interest Reserve Account Deficit Amount or Senior Subordinated Notes Interest Reserve Account Deficit Amount, as applicable, will exist for the immediately following Weekly Allocation Date.
(c)If, on the date that is ten (10) Business Days prior to the expiration of any such Interest Reserve Letter of Credit, such Interest Reserve Letter of Credit has not been replaced or renewed and the Issuer has not otherwise deposited funds into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable, in the amounts that would otherwise be required had such Interest Reserve Letter of Credit not been issued, the Control Party (on behalf of the Trustee) shall submit a notice of drawing under such Interest Reserve Letter of Credit and use the proceeds thereof to fund a deposit into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account as directed in writing by the Manager, in an amount equal to the Senior Notes Interest Reserve Account Deficit Amount or the Senior Subordinated Notes Interest Reserve Account Deficit Amount on such date, in each case calculated as if such Interest Reserve Letter of Credit had not been issued.
(d)If, on any day, (i) the short-term debt credit rating of any L/C Provider which has issued an Interest Reserve Letter of Credit is withdrawn by S&P or downgraded below “A-2” or (ii) the long-term debt credit rating of any L/C Provider is withdrawn by S&P or downgraded below “BBB” (each of cases (i) and (ii), an “L/C Downgrade Event”), then (a) on the tenth (10th) Business Day after the occurrence of such L/C Downgrade Event, the Control Party (on behalf of the Trustee) shall submit a notice of drawing under each Interest Reserve Letter of Credit issued by such L/C Provider and use the proceeds thereof to fund a deposit into the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account (as directed in writing by the Manager), in an amount equal to the Senior Notes Interest Reserve Account Deficit Amount or the Senior Subordinated Notes Interest Reserve Account Deficit Amount on such date, in each case calculated as if such Interest Reserve Letter of Credit had not been issued or (b) prior to the tenth (10th) Business Day after the occurrence of such L/C Downgrade Event, the Issuer will obtain one or more replacement Interest Reserve Letters of Credit on substantially the same terms as each such Interest Reserve Letter of Credit being replaced.
Section 5.18 Replacement of Ineligible Accounts.
If, at any time, any Management Account or any of the Senior Notes Interest Reserve Account, the Senior Subordinated Notes Interest Reserve Account, the Cash Trap Reserve Account, the Collection Account or any Collection Account Administrative Account shall cease to be an Eligible Account (each, an “Ineligible Account”), the Issuer shall (i) within five (5) Business Days of obtaining knowledge thereof, notify the Control Party thereof and (ii) within sixty (60) days of obtaining knowledge thereof, (A) establish, or cause to be established, a new account that is an Eligible Account in substitution for such Ineligible Account, (B) with the exception of any Management Account, following the establishment of such new Eligible Account, transfer, or, with respect to the Trustee Accounts maintained at the Trustee, instruct the Trustee in writing to transfer, all cash and investments from such Ineligible Account into such new Eligible Account, (C) in the case of a Management Account, following the establishment of such new Eligible Account, transfer, or cause to be transferred, all cash and investments from such Ineligible Account into such new Eligible Account, (D) in the case of a Management Account, transfer, or cause to be transferred, all items deposited in the lock-box related to such Ineligible Account to a new lock-box related to such new Eligible Account, and (E) pledge, or cause to be pledged, such new Eligible Account to the Trustee for the benefit of the Secured Parties and, if such Ineligible Account is required to be subject to an Account Control Agreement in accordance with the terms of the Indenture, cause such new Eligible Account to be subject to an Account Control Agreement in form and substance reasonably acceptable to the Control Party and the Trustee. In the event that any of the Collection Account, any Management Account or any Collection Account Administrative Account becomes an Ineligible Account, the Manager shall, promptly following the establishment of such related new Eligible Account, notify each Franchisee of a change in payment instructions, if any.
Section 5.19 Instructions and Directions.
Any instructions or directions to be provided by or on behalf of the Issuer referenced in this Article V (a) with respect to a Quarterly Calculation Date or Quarterly Payment Date, respectively, will be contained in the applicable Quarterly Noteholders’ Report for such Quarterly Calculation Date or Quarterly Payment Date, as applicable, and (b) with respect to a Weekly Allocation Date will be contained in the Weekly Manager’s Certificate for such Weekly Allocation Date or, if applicable, an Omitted Payable Sums Certification.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions in General.
(a)Unless otherwise specified in the applicable Series Supplement, on each Quarterly Payment Date, the Paying Agent shall pay to the Noteholders of each Series of record on the preceding Record Date the amounts payable thereto (A) in the case of Book-Entry Notes, by wire transfer in immediately available funds released by the Paying Agent from the applicable Series Distribution Account and (B) in the case of Definitive Notes, by wire transfer in immediately available funds released by the Paying Agent from the applicable Series Distribution Account no later than 12:30 p.m. (New York City time) if a Noteholder has provided to the Paying Agent and the Trustee wiring instructions at least five (5) Business Days prior to the applicable Quarterly Payment Date; provided that the final principal payment due on a Note shall only be paid upon due presentment and surrender of such Note for cancellation in accordance with the provisions of the Note at the applicable Corporate Trust Office, which surrender shall also constitute a general release by the applicable Noteholder from any claims against the Securitization Entities, the Manager, the Trustee and their affiliates.
(b)All Notes issued under the Indenture that are part of a Class with an alphanumerical designation that contains the letter “A”, together with any Subclasses or Tranches thereof, will be classified as “Class A Notes” or “Senior Notes” for all purposes under the Indenture. All Notes, if any, issued under the Indenture that are part of a Class with an alphanumerical designation that contains the letter “B” through “L”, together with any Subclasses or Tranches thereof, will be classified as “Senior Subordinated Notes” for all purposes under the Indenture. All Notes, if any, issued under the Indenture that are part of a Class with an alphanumerical designation that contains the letter “M” through “Z”, together with any Subclasses or Tranches thereof, will be classified as “Subordinated Notes” for all purposes under the Indenture. Unless otherwise specified in the applicable Series Supplement, in this Base Indenture or in any applicable Class A-1 Note Purchase Agreement, payments of interest, principal (when due) and other amounts (when due) to Noteholders of all Classes within a Series of Notes shall be made from amounts allocated in accordance with the Priority of Payments among each Class of Notes in alphanumerical order (i.e., A-1, A-2, B-1, B-2 and not A-1, B-1, A-2, B-2) and pro rata among Holders of Notes within each Class of the same alphanumerical designation according to the amount then due and payable; provided, however, that any roman-numeral-denominated Tranche within an alphanumerical Class of Notes shall be deemed to have the same alphanumerical priority (i.e., “Class A-2-I Notes” will be pari passu and pro rata in right of payment according to the amount then due and payable with respect to “Class A-2-II Notes” and “Class-A-2-III Notes”) except to the extent otherwise specified in this Base Indenture, the related Series Supplement or in the related Class A-1 Note Purchase Agreement, including in connection with an Optional Prepayment in whole or in part of one or more Tranches within such alphanumerical Class of Notes ahead of the remaining Tranches; provided, further, that, unless otherwise specified in the applicable Series Supplement, in this Base Indenture or in any applicable Class A-1 Note Purchase Agreement, all distributions to Noteholders of all Classes within a Series of Notes having the same alphabetical designation (without giving effect to any numerical designation) shall be pari passu and pro rata according to the amount then due and payable with each other with respect to the distribution of Collateral proceeds resulting from the exercise of remedies upon an Event of Default.
(c)Unless otherwise specified in the applicable Series Supplement, the Trustee shall distribute all amounts owed to the Noteholders of any Class of Notes pursuant to the instructions of the Issuer whether set forth in a Quarterly Noteholders’ Report, Company Order or otherwise.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
The Issuer hereby represents and warrants, for the benefit of the Trustee and the Noteholders, as follows as of each Series Closing Date (subject to any amendments or other modifications hereto in connection with a Series Refinancing Event on or about such Series Closing Date, in which case the Issuer shall make such representations and warranties as so amended or otherwise modified):
Section 7.1 Existence and Power.
Each Securitization Entity (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, (b) is duly qualified to do business as a foreign entity and in good standing under the laws of each jurisdiction where the character of its property, the nature of its business or the performance of its obligations under the Transaction Documents make such qualification necessary, except to the extent that the failure to so qualify is not reasonably likely to result in a Material Adverse Effect, and (c) has all limited liability company, corporate or other powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted, and for purposes of the transactions contemplated by the Indenture and the other Transaction Documents.
Section 7.2 Company and Governmental Authorization.
The execution, delivery and performance by the Issuer of this Base Indenture and any Series Supplement and by the Issuer and each other Securitization Entity of the other Transaction Documents to which it is a party (a) is within such Securitization Entity’s limited liability company, corporate or other powers and has been duly authorized by all necessary limited liability company, corporate or other action, (b) requires no action by or in respect of, or filing with, any Governmental Authority which has not been obtained (other than any actions or filings that may be undertaken after the Closing Date pursuant to the terms of this Base Indenture or any other Transaction Document) and (c) does not contravene, or constitute a default under, any Requirements of Law with respect to such Securitization Entity or any Contractual Obligation with respect to such Securitization Entity or result in the creation or imposition of any Lien on any property of any Securitization Entity, except for Liens created by this Base Indenture or the other Transaction Documents, except in the case of clauses (b) and (c) above, solely with respect to the Contribution Agreements, the violation of which could not reasonably be expected to have a Material Adverse Effect. This Base Indenture and each of the other Transaction Documents to which each Securitization Entity is a party has been executed and delivered by a duly Authorized Officer of such Securitization Entity.
Section 7.3 No Consent.
Except as set forth on Schedule 7.3, no consent, action by or in respect of, approval or other authorization of, or registration, declaration or filing with, any Governmental Authority or other Person is required for the valid execution and delivery by the Issuer of this Base Indenture and any Series Supplement and by the Issuer and each other Securitization Entity of any Transaction Document to which it is a party or for the performance of any of the Securitization Entities’ obligations hereunder or thereunder, other than such consents, approvals, authorizations, registrations, declarations or filings (a) as shall have been obtained or made by such Securitization Entity on or prior to the Closing Date or as are permitted to be obtained subsequent to the Closing Date in accordance with Section 7.13 or Section 8.25, or (b) relating to the performance of any Franchise Document, Contributed Vendor Rebate Contract or
New Vendor Rebate Contract the failure of which to obtain is not reasonably likely to have a Material Adverse Effect.
Section 7.4 Binding Effect.
This Base Indenture and each other Transaction Document to which a Securitization Entity is a party is a legal, valid and binding obligation of each such Securitization Entity enforceable against such Securitization Entity in accordance with its terms (except as may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by general equitable principles, whether considered in a proceeding at law or in equity, or by an implied covenant of good faith and fair dealing).
Section 7.5 Litigation.
There is no action, suit, proceeding or investigation pending against or, to the knowledge of the Issuer, threatened against or affecting any Securitization Entity or of which any property or assets of such Securitization Entity is the subject before any court or arbitrator or any other Governmental Authority that, individually or in the aggregate, would affect the validity or enforceability of this Base Indenture or any Series Supplement or materially adversely affect the performance by the Securitization Entities of their obligations hereunder or thereunder or is reasonably likely to have a Material Adverse Effect.
Section 7.6 Employee Benefit Plans.
No Securitization Entity or any member of a Controlled Group that includes a Securitization Entity has established, maintains, contributes to, or has any liability in respect of (or has in the past three years established, maintained, contributed to, or had any liability in respect of) any Pension Plan or Multiemployer Plan, other than as set forth on Schedule 8.14. No Securitization Entity has any contingent liability with respect to any post-retirement welfare benefits under a Welfare Plan, other than liability for continuation coverage described in Part 6 of Subtitle B of Title I of ERISA or other applicable continuation of coverage laws and other than as set forth on Schedule 8.14. Each Employee Benefit Plan presently complies and has been maintained in compliance with its terms and with the requirements of all applicable statutes, rules and regulations, including ERISA and the Code, except for such instances of noncompliance as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No “prohibited transaction” (within the meaning of Section 406 of ERISA or Section 4975 of the Code) has occurred with respect to any Employee Benefit Plan, other than transactions effected pursuant to a statutory or administrative exemption or such transactions as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as would not reasonably be expected to have a Material Adverse Effect, each such Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.
Section 7.7 Tax Filings and Expenses.
Each Securitization Entity has filed, or caused to be filed, all federal, state, local and foreign Tax returns and all other Tax returns which, to the knowledge of the Issuer, are required to be filed by, or with respect to the income, properties or operations of, such Securitization Entity (whether information returns or not), and has paid, or caused to be paid, all Taxes due, if any, pursuant to said returns or pursuant to any assessment received by any Securitization Entity or otherwise, except such Taxes, if any, as are being contested in good faith and by appropriate proceedings and for which adequate reserves have been set aside in accordance with GAAP. As of the Closing Date, except as set forth on Schedule 7.7, the Issuer is not aware of any proposed Tax assessments against any Wingstop Entity. Except as would not reasonably be expected to have a Material Adverse Effect, no tax deficiency has been determined adversely to any Securitization Entity, nor does any Securitization Entity have any
knowledge of any tax deficiencies. Each Securitization Entity has paid all fees and expenses required to be paid by it in connection with the conduct of its business, the maintenance of its existence and its qualification as a foreign entity authorized to do business in each state and each foreign country in which it is required to so qualify, except to the extent that the failure to pay such fees and expenses is not reasonably likely to result in a Material Adverse Effect.
Section 7.8 Disclosure.
All certificates, reports, statements, notices, documents and other information furnished to the Trustee or the Noteholders by or on behalf of the Securitization Entities pursuant to any provision of the Indenture or any other Transaction Document, or in connection with or pursuant to any amendment or modification of, or waiver under, the Indenture or any other Transaction Document, are, at the time the same are so furnished, complete and correct in all material respects (when taken together with all other information furnished by or on behalf of the Wingstop Entities to the Trustee or the Noteholders, as the case may be), and give the Trustee or the Noteholders, as the case may be, true and accurate knowledge of the subject matter thereof in all material respects, and the furnishing of the same to the Trustee or the Noteholders, as the case may be, shall constitute a representation and warranty by the Issuer made on the date the same are furnished to the Trustee or the Noteholders, as the case may be, to the effect specified herein.
Section 7.9 Investment Company Act.
Neither the Issuer nor any other Securitization Entity is an “investment company” within the meaning of Section 3(a)(1) of the Investment Company Act.
Section 7.10 Regulations T, U and X.
The proceeds of the Notes will not be used to purchase or carry any “margin stock” (as defined or used in the regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X thereof) in such a way that could cause the transactions contemplated by the Transaction Documents to fail to comply with the regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X thereof. No Securitization Entity owns or is engaged in the business of extending credit for the purpose of purchasing or carrying any margin stock.
Section 7.11 Solvency.
Both before and after giving effect to the transactions contemplated by the Indenture and the other Transaction Documents, (i) the fair value of the assets of the Securitization Entities, when taken as a whole, will exceed their debts and liabilities, including contingent liabilities; (ii) the present fair saleable value of the property of the Securitization Entities, when taken as a whole, will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities as such debts and other liabilities become absolute and matured; (iii) the Securitization Entities, taken as a whole, do not intend to, and do not believe that they will, incur debts or liabilities beyond their ability to pay such debts and liabilities as they mature; and (iv) the Securitization Entities, taken as a whole, will not have unreasonably small capital with which to conduct the business in which they are engaged as such business is now conducted and is proposed to be conducted after the Closing Date, and no Event of Bankruptcy has occurred with respect to any Securitization Entity.
Section 7.12 Ownership of Equity Interests; Subsidiaries.
(a)All of the issued and outstanding limited liability company interests of the Issuer are directly owned by Funding Holdco, have been duly authorized and validly issued, are fully paid and non-assessable and are owned of record by Funding Holdco free and clear of all Liens other than Liens in favor of the Trustee for the benefit of the Secured Parties and Permitted Liens.
(b)All of the issued and outstanding limited liability company interests of Wingstop Franchisor are directly owned by the Issuer, have been duly authorized and validly issued, are fully paid and non-assessable and are owned of record by the Issuer free and clear of all Liens other than Liens in favor of the Trustee for the benefit of the Secured Parties and Permitted Liens.
Section 7.13 Security Interests.
(a)The Issuer and each Guarantor owns and has good title to its Collateral, free and clear of all Liens other than Permitted Liens. This Base Indenture and the Guarantee and Collateral Agreement constitute a valid and continuing Lien on the Collateral in favor of the Trustee on behalf of and for the benefit of the Secured Parties, which Lien on the Collateral has been perfected and is prior to all other Liens (other than Permitted Liens), and is enforceable as such as against creditors of and purchasers from the Issuer and each Guarantor in accordance with its terms (except, in each case, as described on Schedule 8.11 and as subject to Section 7.13(b), Sections 8.25(c) and 8.25(d)), except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by general equitable principles, whether considered in a proceeding at law or in equity, or by an implied covenant of good faith and fair dealing. Except as set forth in Schedule 8.11, the Issuer and the Guarantors have received all consents and approvals required by the terms of the Collateral to the pledge of the Collateral to the Trustee hereunder and under the Guarantee and Collateral Agreement. Subject to Sections 7.13(b), 8.25(c) and 8.25(d), the Issuer and the Guarantors will have filed, or have caused the filing of, all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the first-priority security interest (subject to Permitted Liens) in the Collateral (other than Intellectual Property) granted to the Trustee hereunder or under the Guarantee and Collateral Agreement within ten (10) days of the date of this Agreement or such Series Closing Date.
(b)Other than the security interest granted to the Trustee hereunder, pursuant to the other Transaction Documents or any other Permitted Lien, none of the Issuer or any Guarantor has pledged, assigned, sold or granted a security interest in the Collateral. All action necessary (including the filing of UCC-1 financing statements) to protect and evidence the Trustee’s security interest in the Collateral in the United States has been or will be duly and effectively taken, including, without limitation, the actions required to be taken by the Issuer or Guarantors with respect to the Securitization IP set forth in Sections 8.25(c) and (d), subject in each case to Sections 7.13(a), 8.25(c) and 8.25(d), and except as described on Schedule 8.11. No security agreement, financing statement, equivalent security or lien instrument or continuation statement authorized by the Issuer or any Guarantor and listing the Issuer or such Guarantor as debtor covering all or any part of the Collateral is on file or of record in any jurisdiction, except in respect of Permitted Liens or such as may have been filed, recorded or made by the Issuer or such Guarantor in connection with a Contribution Agreement or in favor of the Trustee on behalf of the Secured Parties in connection with this Base Indenture and the Guarantee and Collateral Agreement, and neither the Issuer or any Guarantor has authorized any such filing.
(c)All authorizations in this Base Indenture and the Guarantee and Collateral Agreement for the Trustee to endorse checks, instruments and securities and to execute financing statements, continuation statements, security agreements and other instruments with respect to the Collateral and to take such other actions with respect to the Collateral authorized by this Base Indenture and the Guarantee and Collateral Agreement are powers coupled with an interest and are irrevocable.
Section 7.14 Transaction Documents.
The Indenture Documents, the Account Agreements, the Depository Agreements and the other Transaction Documents required to be entered into as of such Series Closing Date are in full force and effect. There are no outstanding defaults thereunder nor have events occurred which, with the giving of notice, the passage of time or both, would constitute a default thereunder.
Section 7.15 Non-Existence of Other Agreements.
Other than as permitted by Section 8.22, (a) no Securitization Entity is a party to any contract or agreement of any kind or nature and (b) no Securitization Entity is subject to any material obligations or liabilities of any kind or nature in favor of any third party, including, without limitation, Contingent Obligations. No Securitization Entity has engaged in any activities since its formation (other than those incidental to its formation, the authorization and the issuance of any Series of Notes, the execution of the Transaction Documents to which such Securitization Entity is a party and the performance of the activities referred to in or contemplated by such agreements).
Section 7.16 Compliance with Contractual Obligations and Laws.
No Securitization Entity is in violation of (a) its Charter Documents, (b) any Requirement of Law with respect to such Securitization Entity or (c) any Contractual Obligation with respect to such Securitization Entity except, solely with respect to clauses (b) and (c), to the extent such violation could not reasonably be expected to result in a Material Adverse Effect.
Section 7.17 Other Representations.
All representations and warranties of each Securitization Entity made in each other Transaction Document to which it is a party are true and correct (i) if qualified as to materiality, in all respects and (ii) if not qualified as to materiality, in all material respects (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct (x) if qualified as to materiality, in all respects, and (y) if not so qualified, in all material respects, as of such earlier date), and are repeated herein as though fully set forth herein.
Section 7.18 Insurance.
The Securitization Entities maintain, or cause to be maintained, the insurance coverages (or self-insure for such risks) described on Schedule 7.18 hereto, in such amounts and covering such risks as is adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Securitization Entities are in full force and effect, and the Securitization Entities are in compliance with the terms of such policies in all material respects. None of the Securitization Entities has any reason to believe that it will not be able to renew its existing insurance coverage, in all material respects, as and when such coverage expires or to obtain similar coverage, in all material respects, from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material Adverse Effect. All such insurance is primary coverage, all premiums therefor due on or before the date hereof have been paid in full, and the terms and conditions thereof are no less favorable to the Securitization Entities than the terms and conditions of insurance maintained by their Affiliates that are not Securitization Entities.
Section 7.19 Exchange Act.
Payments on the Notes will not depend primarily on cash flow from self-liquidating financial assets within the meaning of Section 3(a)(79) of the Exchange Act.
Section 7.20 Intellectual Property.
(a)All of the registrations and applications included in the Securitization IP are subsisting, unexpired and have not been abandoned in any applicable jurisdiction except where such expiration or abandonment could not reasonably be expected to have a Material Adverse Effect.
(b)Except as set forth on Schedule 7.20, (i) the use of the Securitization IP and the operation of the Wingstop System does not infringe, misappropriate or otherwise violate the Intellectual Property rights of any third party in a manner that could reasonably be expected to have a Material Adverse Effect and (ii) to the Issuer’s knowledge, the Securitization IP is not being infringed or violated by any third party in a manner that could reasonably be expected to have a Material Adverse Effect.
(c)Except as set forth on Schedule 7.20, no action or proceeding is pending or, to the Issuer’s knowledge, threatened that seeks to limit, cancel or challenge the validity of any Securitization IP, or the use thereof, that could reasonably be expected to have a Material Adverse Effect.
(d)The Issuer has not made and will not hereafter make any assignment, pledge, mortgage, hypothecation or transfer of any of the Securitization IP other than the Contribution Agreements, Permitted Liens and Permitted Asset Dispositions under Sections 8.12 and 8.16.
ARTICLE VIII
COVENANTS
Section 8.1Payment of Notes.
(a)The Issuer shall pay or cause to be paid the principal of, and premium, if any, and interest, subject to Section 2.15(d), on the Notes when due pursuant to the provisions of this Base Indenture and any applicable Series Supplement. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent holds on that date money designated for and sufficient to pay all principal, premium, if any, and interest then due. Except as otherwise provided pursuant to any Class A-1 Note Purchase Agreement or any other Transaction Document, amounts properly withheld under the Code or any applicable state, local or foreign law by any Person from a payment to any Noteholder of interest or principal or premium, if any, shall be considered as having been paid by the Issuer to such Noteholder for all purposes of the Indenture and the Notes.
(b)By acceptance of its Notes, each Noteholder agrees that the failure to provide the Paying Agent with appropriate tax certifications (which includes (i) an Internal Revenue Service Form W-9 for United States persons (as defined under Section 7701(a)(30) of the Code), or any applicable successor form, or (ii) an applicable Internal Revenue Service Form W-8 for Persons other than United States persons, or any applicable successor form) may result in amounts being withheld from payments to such Noteholder under this Base Indenture and any Series Supplement and that amounts withheld pursuant to applicable laws shall be considered as having been paid by the Issuer as provided in the foregoing clause (a).
Section 8.2Maintenance of Office or Agency.
(a)The Issuer shall maintain an office or agency (which, with respect to the surrender for registration of, or transfer or exchange or the payment of principal and premium, may be an office of the Trustee, the Note Registrar, co-registrar or the Paying Agent) where Notes may be surrendered for registration of transfer or exchange (or de-registration), where notices and demands to or upon the Issuer in respect of the Notes and the Indenture may be served, and where, at any time when the Issuer is obligated to make a payment of principal of, and premium, if any, on the Notes, the Notes may be surrendered for payment. The Issuer will give prompt written notice to the Trustee and the Servicer of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee and the Servicer with the address thereof, such presentations and surrenders may be made or served at the Corporate Trust Office and notices and demands may be made at the address set forth in Section 14.1 hereof.
(b)The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Issuer will give prompt written notice to the Trustee and the Servicer of any such designation or rescission and of any change in the location of any such other office
or agency. The Issuer hereby designates the Corporate Trust Office as one such office or agency of the Issuer.
Section 8.3Payment and Performance of Obligations.
The Issuer shall, and shall cause each other Securitization Entity to, pay and discharge and fully perform, at or before maturity, all of their respective material obligations and liabilities, including, without limitation, Tax liabilities and other governmental claims levied or imposed upon any Securitization Entity or upon the income, properties or operations of any Securitization Entity, judgments, settlement agreements and all obligations of each Securitization Entity under the Collateral Documents, except where the same may be contested in good faith by appropriate proceedings (and without derogation from the material obligations of the Issuer hereunder and the Guarantors under the Guarantee and Collateral Agreement regarding the protection of the Collateral from Liens (other than Permitted Liens)), and shall maintain, in accordance with GAAP, reserves as appropriate for the accrual of any of the same.
Section 8.4Maintenance of Existence.
The Issuer shall, and shall cause each other Securitization Entity to, maintain its existence as a limited liability company or corporation validly existing and in good standing under the laws of its state of organization or incorporation and duly qualified as a foreign limited liability company or corporation licensed under the laws of each state in which the failure to so qualify would be reasonably likely to result in a Material Adverse Effect. The Issuer shall, and shall cause each other Securitization Entity organized in the United States (other than any Future Securitization Entity that is a corporation) to, be treated as a disregarded entity within the meaning of United States Treasury Regulation Section 301.7701-2(c)(2), and the Issuer shall not, and shall not permit any other Securitization Entity organized in the United States (other than any Future Securitization Entity that is a corporation) to, be classified as a corporation or as an association taxable as a corporation or a publicly traded partnership taxable as a corporation for United States federal income tax purposes.
Section 8.5Compliance with Laws.
The Issuer shall, and shall cause each other Securitization Entity to, comply in all respects with all Requirements of Law with respect to the Issuer or such other Securitization Entity except where such non-compliance would not be reasonably likely to result in a Material Adverse Effect; provided that such non-compliance will not result in a Lien (other than a Permitted Lien) on any of the Collateral or any criminal liability on the part of any Securitization Entity, the Manager or the Trustee.
Section 8.6Inspection of Property; Books and Records.
The Issuer shall, and shall cause each other Securitization Entity to, keep proper books of record and account in which full, true and correct entries shall be made of all dealings and transactions, business and activities in accordance with GAAP. The Issuer shall, and shall cause each other Securitization Entity to, permit, at reasonable times upon reasonable notice, the Servicer, the Controlling Class Representative and the Trustee or any Person appointed by any of them as its agent to visit and inspect any of its properties, examine its books and records and discuss its affairs, finances and accounts with its officers, directors, managers, employees and independent certified public accountants, and up to one (1) such visit and inspection by each of the Servicer, the Controlling Class Representative and the Trustee, or any Person appointed by them shall be reimbursable as a Securitization Operating Expense per calendar year, with any additional visit or inspection by any such Person being at such Person’s sole cost and expense; provided, however, that during the continuance of a Warm Back-Up Management Trigger Event, an Advance Period continuing for at least sixty (60) days, a Rapid Amortization Event, a Default or an Event of Default, or to the extent expressly required without the instruction of any other party under the terms of any Transaction Documents, any such Person may visit and conduct such activities at any
time and all such visits and activities will constitute a Securitization Operating Expense. In addition, the Issuer shall and shall cause each other Securitization Entity to cooperate with all reasonable requests of the Servicer, Control Party, any Successor Manager and/or Back-Up Manager in connection with the performance by such parties, as and to the extent required under and pursuant to the applicable Transaction Documents, of their respective obligations under the Transaction Documents (including any duty by any such parties to obtain an appraisal of the Collateral, or perform an in-depth situation analysis of the Manager and its financial position and/or of the Collateral and/or the Securitization Entities during a Warm Back-Up Management Trigger Event, a Hot Back-Up Management Trigger Event, in connection with a Consent Request or Consent Recommendation, in connection with a proposed Advance, or if an Advance Period has been continuing for at least sixty (60) days, as applicable). For purpose of clarity and the avoidance of doubt, the foregoing sentence is for the benefit of the Servicer, the Control Party and the Back-Up Manager and is not intended to create any additional duties of the Servicer, the Control Party or the Back-Up Manager over those duties of the respective parties as specifically set forth in the applicable Transaction Documents.
Section 8.7Actions under the Transaction Documents.
(a)Except as otherwise provided in Section 8.7(d), the Issuer shall not, nor shall permit any other Securitization Entity to, take any action that would permit any Securitization Entity or any other Person party to a Transaction Document to have the right to refuse to perform any of its respective obligations under any of the Transaction Documents or that would result in the amendment, waiver, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any Transaction Document.
(b)Except as otherwise provided in Section 3.2(a) or Section 8.7(d), the Issuer shall not, nor shall permit any other Securitization Entity to, take any action which would permit any other Person party to a Franchise Document, Contributed Vendor Rebate Contract or New Vendor Rebate Contract to have the right to refuse to perform any of its respective obligations under such Franchise Document, Contributed Vendor Rebate Contract or New Vendor Rebate Contract or that would result in the amendment, waiver, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, such Franchise Document, Contributed Vendor Rebate Contract or New Vendor Rebate Contract if such action when taken on behalf of any Securitization Entity by the Manager would constitute a breach by the Manager of the Management Agreement.
(c)The Issuer shall not, nor shall permit any other Securitization Entity to, without the prior written consent of the Control Party, except as otherwise provided hereunder (including in Section 3.2(a)), exercise any right, remedy, power or privilege available to it with respect to any obligor under a Collateral Document or under any instrument or agreement included in the Collateral, take any action to compel or secure performance or observance by any such obligor of its obligations to the Issuer or such other Securitization Entity or give any consent, request, notice, direction or approval with respect to any such obligor if such action when taken on behalf of any Securitization Entity by the Manager would constitute a breach by the Manager of the Management Agreement.
(d)The Issuer agrees that it will not, and will cause each Securitization Entity not to, without the prior written consent of the Control Party, amend, modify, waive, supplement, terminate or surrender, or agree to any amendment, modification, supplement, termination, waiver or surrender of, the terms of any of the Transaction Documents; provided, however, that the Securitization Entities may agree to any amendment, modification, supplement or waiver of any such term of any Transaction Document without any such consent (x) to the extent permitted under the terms of such other Transaction Documents, (y) with respect to any Indenture Document, as contemplated by Article XIII or (z) with respect to any Transaction Document that is not an Indenture Document, as follows:
(i)to add to the covenants of any Securitization Entity for the benefit of the Secured Parties, or to add to the covenants of any Wingstop Entity for the benefit of any Securitization Entity;
(ii)to terminate any such Transaction Document if any party thereto (other than a Securitization Entity) becomes, in the reasonable judgment of the Issuer, unable to pay its debts as they become due, even if such party has not yet defaulted on its obligations under such Transaction Document, so long as the Issuer enters into a replacement agreement with a new party within ninety (90) days of the termination of such Transaction Document;
(iii)to make such other provisions in regard to matters or questions arising under such Transaction Documents as the parties thereto may deem necessary or desirable, which are not inconsistent with the provisions thereof and which shall not materially and adversely affect the interests of any Noteholder, any Note Owner or any other Secured Party; provided that an Officer’s Certificate shall be delivered to the Trustee, the Back-Up Manager and the Servicer to such effect;
(iv)to make conforming changes related to the joinder or addition of Future Securitization Entities; or
(v)in connection with a Series Refinancing Event.
For the avoidance of doubt, the prior written consent of the Control Party shall not be required for any amendment, modification, supplement, termination, waiver or surrender of, the terms of any of the Transaction Documents to the extent that all affected Noteholders have provided consent, through the purchase of Notes that include such terms. The Control Party may conclusively rely on a Noteholder having granted consent to any amendment, modification, supplement, termination, waiver or surrender of, the terms of any of the Transaction Documents to the extent that such Noteholder has acquired Note(s) of a new Series with such amended terms and conditions.
Promptly after the effectiveness of any such amendment, modification, supplement or waiver, the Issuer shall send to the Trustee, the Servicer, the Back-Up Manager and each Rating Agency a copy of such consent or agreement, but the failure to do so shall not impair or affect its validity.
(e)Upon the occurrence of a Manager Termination Event under the Management Agreement, (a) the Issuer shall not, nor shall permit any other Securitization Entity to, without the prior written consent of the Control Party (at the direction of the Controlling Class Representative), terminate WRI as the initial Manager and appoint any Successor Manager in accordance with the Management Agreement and (b) the Issuer shall, and shall cause each other Securitization Entity to, terminate WRI as the initial Manager and appoint one or more Successor Managers in accordance with the Management Agreement if and when so directed by the Control Party (at the direction of the Controlling Class Representative).
Section 8.8Notice of Defaults and Other Events.
Promptly (and in any event within three (3) Business Days) upon becoming aware of (i) any Potential Rapid Amortization Event, (ii) any Rapid Amortization Event, (iii) any Potential Manager Termination Event, (iv) any Manager Termination Event, (iv) any Default, (v) any Event of Default or (vi) any other default under any Transaction Document, the Issuer shall give the Trustee, the Servicer, the Control Party, the Manager, the Back-Up Manager, the Controlling Class Representative and each Rating Agency with respect to each Series of Notes Outstanding notice thereof, together with an Officer’s Certificate setting forth the details thereof and any action with respect thereto taken or contemplated to be taken by the Issuer. The Issuer shall, at its expense, promptly provide to the Servicer, the Manager, the Back-Up Manager, the Controlling Class Representative and the Trustee such additional information as the Servicer, the Manager, the Back-Up Manager, the Controlling Class Representative or the Trustee may reasonably request from time to time in connection with the matters so reported, and the actions so taken or contemplated to be taken.
Section 8.9Notice of Material Proceedings.
Without limiting Section 8.27 or Section 8.25(b), promptly (and in any event within ten (10) Business Days) upon the determination by either the chief financial officer or the chief legal officer of Parent (or other person acting in a substantially similar capacity on behalf of Parent) that the commencement or existence of any litigation, arbitration or other proceeding with respect to any Wingstop Entity would be reasonably likely to have a Material Adverse Effect, the Issuer shall give written notice thereof to the Trustee, the Servicer, the Back-Up Manager and each Rating Agency.
Section 8.10Further Requests.
The Issuer shall, and shall cause each other Securitization Entity to, promptly furnish to the Trustee such other information as, and in such form as, the Trustee may reasonably request in connection with the transactions contemplated hereby or by any Series Supplement.
Section 8.11Further Assurances.
(a)The Issuer shall, and shall cause each other Securitization Entity to, do such further acts and things, and execute and deliver to the Trustee and the Control Party such additional assignments, agreements, powers and instruments, as are necessary or desirable to obtain or maintain the security interest of the Trustee in the Collateral on behalf of the Secured Parties as a first priority perfected security interest subject to no prior Liens (other than Permitted Liens and except as set forth on Schedule 8.11 and as subject to Section 8.25), to carry into effect the purposes of the Indenture or the other Transaction Documents or to better assure and confirm unto the Trustee, the Control Party, the Noteholders or the other Secured Parties their rights, powers and remedies hereunder including, without limitation, the filing of any financing or continuation statements or amendments under the UCC in effect in any jurisdiction with respect to the liens and security interests granted hereby and by the Guarantee and Collateral Agreement, except in each case as set forth on Schedule 8.11 and in each case as subject to Sections 8.25(c) and 8.25(d). If the Issuer fails to perform any of its agreements or obligations under this Section 8.11(a), then the Control Party may perform such agreement or obligation, and the expenses of the Control Party incurred in connection therewith shall be payable by the Issuer upon the Control Party’s demand therefor. The Control Party is hereby authorized to execute and file any financing statements, continuation statements, amendments or other instruments necessary or appropriate to perfect or maintain the perfection of the Trustee’s security interest in the Collateral.
(b)If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any promissory note, chattel paper or other instrument, such note, chattel paper or instrument shall be deemed to be held in trust and immediately pledged and within two (2) Business Days physically delivered to the Trustee hereunder, and shall, subject to the rights of any Person in whose favor a prior Permitted Lien has been perfected, be duly endorsed in a manner satisfactory to the Trustee and delivered to the Trustee promptly; provided, that neither the Issuer nor any other Securitization Entity shall be required to deliver any Franchisee Note.
(c)Notwithstanding the provisions set forth in clauses (a) and (b) above, the Issuer and the Guarantors shall not be required to (i) perfect any security interest in any fixtures (other than through a central filing of a UCC financing statement) or any Franchisee Notes or (ii) grant or perfect any security interest in any real property other than to the extent required pursuant to Section 3.1(d).
(d)If during any Quarterly Fiscal Period the Issuer or any Guarantor shall obtain an interest in any commercial tort claim or claims (as such term is defined in the New York UCC) and such commercial tort claim or claims (when added to any past commercial tort claim or claims that were obtained by any Securitization Entity prior to such Quarterly Fiscal Period that are still outstanding) have an aggregate value equal to or greater than $3,000,000 as of the last day of such Quarterly Fiscal Period, the Issuer or such Guarantor shall notify the Servicer on or before the third (3rd) Business Day prior to the next succeeding Quarterly Payment Date that it has obtained such an interest and shall sign and deliver documentation acceptable to the Servicer granting a security interest under this Base Indenture or the
Guarantee and Collateral Agreement, as the case may be, in and to such commercial tort claim or claims whether obtained during such Quarterly Fiscal Period or prior to such Quarterly Fiscal Period.
(e)The Issuer will, and will cause each other Securitization Entity to, warrant and defend the Trustee’s right, title and interest in and to the Collateral and the income, distributions and Proceeds thereof, for the benefit of the Trustee on behalf of the Secured Parties, against the claims and demands of all Persons whomsoever.
(f)On or before April 30th of each calendar year, commencing with April 30, 2021, the Issuer shall furnish to the Trustee, each Rating Agency and the Servicer (with a copy to the Back-Up Manager) an Opinion of Counsel either stating that, in the opinion of such counsel, (i) such action has been taken with respect to the recording, filing, re-recording and refiling of this Base Indenture, any indentures supplemental hereto, the Guarantee and Collateral Agreement and any other requisite documents and with respect to the execution and filing of any financing statements, continuation statements and amendments to financing statements and such other documents as are, subject to clause (c) above, necessary to maintain the perfection of the Lien and security interest created by this Base Indenture and the Guarantee and Collateral Agreement under Article 9 of the New York UCC in the United States and reciting the details of such action or (ii) no such action is necessary to maintain the perfection of such Lien and security interest; provided that with respect to financing statements, the foregoing shall apply solely to financing statements naming a Securitization Entity as debtor and the Trustee as secured party (or any continuations thereof) and shall not, for the avoidance of doubt, apply to any financing statements assigned to the Trustee by a Securitization Entity. Each such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Base Indenture, any indentures supplemental hereto, the Guarantee and Collateral Agreement and any other requisite documents and the execution and filing of any financing statements, continuation statements and amendments or other documents that will, in the opinion of such counsel, be required, subject to clause (c) above, to maintain the perfection of the lien and security interest of this Base Indenture and the Guarantee and Collateral Agreement under Article 9 of the New York UCC in the Collateral in the United States until April 30 in the following calendar year.
Section 8.12Liens.
The Issuer shall not, and shall not permit any other Securitization Entity to, create, incur, assume or permit to exist any Lien upon any of its property (including the Collateral), other than (i) Liens in favor of the Trustee for the benefit of the Secured Parties and (ii) other Permitted Liens.
Section 8.13Other Indebtedness.
The Issuer shall not, and shall not permit any other Securitization Entity to, create, assume, incur, suffer to exist or otherwise become or remain liable in respect of any Indebtedness other than (i) Indebtedness under the Indenture or the Guarantee and Collateral Agreement or any other Transaction Document, (ii) any guarantee by any Securitization Entity of the obligations of any other Securitization Entity, (iii) Indebtedness of a Securitization Entity owed to a Securitization Entity, (iv) any purchase money Indebtedness incurred in order to finance the acquisition, lease or improvement of equipment in the ordinary course of business, or (v) guarantees for the benefit of Franchisees of Indebtedness in an aggregate principal amount at any time outstanding of up to the greater of (x) $20,000,000 and (y) 5.0% of the Net Cash Flow for the preceding four (4) Quarterly Fiscal Periods most recently ended as of such date and for which financial statements have been prepared.
Section 8.14Employee Benefit Plans.
No Securitization Entity or any member of a Controlled Group that includes a Securitization Entity shall establish, sponsor, maintain, contribute to, incur any obligation to contribute to or incur any liability (whether current, contingent or otherwise) in respect of any Pension Plan or Multiemployer Plan, other than as set forth on Schedule 8.14 or as would, individually or in the aggregate, not reasonably be expected to result in a Material Adverse Effect. No Securitization Entity
shall incur any material contingent liability with respect to any post-retirement welfare benefits under a Welfare Plan or pursuant to any other agreement, other than liability for continuation coverage described in Part 6 of Subtitle B of Title I of ERISA or other applicable continuation of coverage laws.
Section 8.15Mergers.
On and after the Closing Date, the Issuer shall not, and shall not permit any other Securitization Entity to, merge or consolidate with or into any other Person (whether by means of a single transaction or a series of related transactions), other than any merger or consolidation of any Securitization Entity with any other Securitization Entity or any merger or consolidation of any Securitization Entity with any other entity to which the Control Party has given prior written consent.
Section 8.16 Asset Dispositions.
The Issuer shall not, and shall not permit any other Securitization Entity to, sell, transfer, lease, license, liquidate or otherwise dispose of any of its property (whether by means of a single transaction or a series of related transactions), including any Equity Interests of any other Securitization Entity (it being acknowledged and agreed, for the avoidance of doubt, that modifications or terminations of any Franchise Documents and other contracts in accordance with the Managing Standard shall not be considered a disposal thereof for purposes of this section), other than Permitted Asset Dispositions.
Section 8.17 Acquisition of Property.
The Issuer shall not, and shall not permit any other Securitization Entity to, acquire, by long-term or operating lease or otherwise, any property (i) if such acquisition when effected on behalf of any Securitization Entity by the Manager would constitute a breach by the Manager of the Management Agreement or (ii) that, unless otherwise permitted by the Transaction Documents, is a lease, license or other contract or permit, if the grant of a lien or security interest in any of the applicable Securitization Entity’s right, title and interest in, to or under such lease, license, contract or permit in the manner contemplated by the Indenture and the Guarantee and Collateral Agreement (a) would be prohibited by the terms of such lease, license, contract or permit, (b) would constitute or result in the abandonment, invalidation or unenforceability of any right, title or interest of the applicable Securitization Entity therein or (c) would otherwise result in a breach thereof or the termination or a right of termination thereof, except to the extent that any such prohibition, breach, termination or right of termination is rendered ineffective pursuant to the UCC or any other applicable law. Notwithstanding any language to the contrary in this Section 8.17, in the case of clause (ii) above, the Issuer and each Securitization Entity will be in compliance with this Section 8.17 if the Issuer and each Securitization Entity uses commercially reasonable efforts to comply with clause (ii).
Section 8.18Dividends, Officers’ Compensation, etc.
The Issuer shall not declare or pay any distributions on any of its limited liability company interests; provided that, so long as no Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default has occurred and is continuing with respect to any Series of Notes Outstanding or would result therefrom, the Issuer may declare and pay distributions to the extent permitted under the Delaware Limited Liability Company Act and the Issuer’s Charter Documents. The Issuer shall not, and shall not permit any other Securitization Entity to, redeem, purchase, retire or otherwise acquire for value any Equity Interest in or issued by such Securitization Entity or set aside or otherwise segregate any amounts for any such purpose except as expressly permitted by the Indenture or as consented to by the Control Party. The Issuer may draw on Class A-1 Commitments with respect to any Series of Class A-1 Notes for the purposes set forth in the applicable Class A-1 Note Purchase Agreement, subject to any conditions or restrictions set forth in such Class A-1 Note Purchase Agreement.
Section 8.19Legal Name, Location Under Section 9-301 or 9-307.
The Issuer shall not, and shall not permit any other Securitization Entity to change its location (within the meaning of Section 9-301 or 9-307 of the applicable UCC) or its legal name without at least thirty (30) days’ prior written notice to the Trustee, the Servicer, the Manager, the Back-Up Manager and each Rating Agency with respect to each Series of Notes Outstanding. In the event that the Issuer or any other Securitization Entity desires to so change its location or change its legal name, the Issuer will, or will cause such other Securitization Entity to, make any required filings, and prior to actually changing its location or its legal name the Issuer shall or shall cause such other Securitization Entity to, deliver to the Trustee and the Servicer (i) an Officer’s Certificate confirming that all required filings have been made, subject to Sections 8.11(c), 8.25(c) and 8.25(d), to continue the perfected interest of the Trustee on behalf of the Secured Parties in the Collateral under Article 9 of the applicable UCC in respect of the new location or new legal name of the Issuer or other Securitization Entity and (ii) copies of all such required filings with the filing information duly noted thereon by the office in which such filings were made.
Section 8.20Charter Documents.
The Issuer shall not, and shall not permit any other Securitization Entity to, amend, or consent to the amendment of, any of its Charter Documents to which it is a party as a member or shareholder unless, prior to such amendment, the Control Party shall have consented thereto and the Rating Agency Condition with respect to each Series of Notes Outstanding shall have been satisfied with respect to such amendment; provided that the Issuer and the other Securitization Entities shall be permitted to amend their Charter Documents without having to meet the Rating Agency Condition to cure any ambiguity, defect or inconsistency therein or if such amendments could not reasonably be deemed to be disadvantageous to any Noteholder in the reasonable judgment of the Control Party. The Control Party may rely on an Officer’s Certificate to make such determination. The Issuer shall provide written notice to each Rating Agency (with a copy to the Servicer) of any amendment of any Charter Document of any Securitization Entity.
Section 8.21 Investments.
The Issuer shall not, and shall not permit any other Securitization Entity to, make, incur, or suffer to exist any loan, advance, extension of credit or other Investments that when made on behalf of any Securitization Entity by the Manager would constitute a breach by the Manager of the Management Agreement, which restriction will not prohibit (a) Investments in the Accounts and Eligible Investments, (b) any Franchisee Note, (c) Investments in any other Securitization Entity, (d) causing Letters of Credit to be issued for the sole benefit of one or more Non-Securitization Entity as described in Section 8.24 (a)(v) or any other Investment in, or agreement with, Non-Securitization Entities entered into in connection with the Transaction Documents, (e) loans or advances by Wingstop Franchisor or any other Securitization Entity to any Non-Securitization Entity using funds on deposit in a Franchise Capital Account, (f) guarantees with respect to operating leases and product volumes or (g) guarantees for the benefit of Franchisees of Indebtedness in an aggregate principal amount at any time outstanding of up to the greater of (x) $20 million and (y) 5.0% of the Net Cash Flow for the preceding four (4) Quarterly Fiscal Periods most recently ended as of such date and for which financial statements have been prepared.
Section 8.22No Other Agreements.
The Issuer shall not, and shall not permit any other Securitization Entity to, enter into or be a party to any agreement or instrument (other than any Transaction Document, Franchise Document, Contributed Vendor Rebate Contract or New Vendor Rebate Contract or any other document expressly permitted or contemplated by a Series Supplement or the Transaction Documents, as the same may be amended, supplemented or otherwise modified from time to time, any documents related to any Series Hedge Agreement (subject to Section 8.29), any documents relating to the transactions described in the
proviso to Section 8.24(a)(vi) or any documents or agreements incidental thereto) if such agreement when effected on behalf of any Securitization Entity by the Manager would constitute a breach by the Manager of the Management Agreement.
Section 8.23Other Business.
The Issuer shall not, and shall not permit any other Securitization Entity to, engage in any business or enterprise or enter into any transaction, other than the incurrence and payment of ordinary course operating expenses, the issuing and selling of the Notes and other activities related to or incidental to any of the foregoing or any other transaction which when effected on behalf of any Securitization Entity by the Manager would not constitute a breach by the Manager of the Management Agreement.
Section 8.24Maintenance of Separate Existence.
(a)The Issuer shall, and shall cause each other Securitization Entity to:
(i)maintain its own deposit and securities account or accounts, separate from those of any of its Affiliates (other than the other Securitization Entities) (such Affiliates, the “Non-Securitization Affiliates”), with commercial banking institutions and ensure that the funds of the Securitization Entities will not be diverted to any Person who is not a Securitization Entity or for other than the use of the Securitization Entities, nor will such funds be commingled with the funds of any of its Non-Securitization Affiliates other than as provided in the Transaction Documents;
(ii)ensure that all transactions between it and any of its Non-Securitization Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’s length basis, it being understood and agreed that the transactions contemplated in the Transaction Documents and the transactions described in the proviso to the following clause (v) meet the requirements of this clause (ii);
(iii)issue separate financial statements from all of its Non-Securitization Affiliates prepared at least quarterly and prepared in accordance with GAAP;
(iv)conduct its affairs in its own name and in accordance with its Charter Documents and the other Transaction Documents and observe all necessary, appropriate and customary limited liability company or corporate formalities (as applicable), including, but not limited to, holding all regular and special meetings appropriate to authorize all of its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(v)not assume or guarantee any of the liabilities of any of its Non-Securitization Affiliates; provided that the Securitization Entities may, pursuant to any Letter of Credit Reimbursement Agreement, cause letters of credit to be issued pursuant to the Class A-1 Note Purchase Agreements that are for the sole benefit of one or more Non-Securitization Entities if the Issuer receives a fee from each Non-Securitization Entity whose obligations are secured by any such letter of credit in an amount equal to the cost to the Issuer in connection with the issuance and maintenance of such letter of credit plus 25 basis points per annum, it being understood that such fee is an arm’s length fair market fee;
(vi)take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all material respects with respect to it and (y) comply in all material respects with those procedures described in such provisions which are applicable to it;
(vii)maintain at least two Independent Managers on its board of managers or board of directors, as the case may be;
(viii)to the fullest extent permitted by law, so long as any Notes remain Outstanding, remove or replace any Independent Manager only for Cause and only after providing the Trustee and the Control Party with at least five (5) Business Days’ prior written notice of (A) any proposed removal of such Independent Manager and (B) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements for an Independent Manager set forth in its Charter Documents; and
(ix)(A) provide, or cause the Manager to provide, to the Trustee and the Control Party a copy of the executed agreement with respect to the appointment of any replacement Independent Manager and (B) provide, or cause the Manager to provide, to the Trustee, the Control Party and each Noteholder written notice of the identity and contact information for each Independent Manager at any time such information changes.
(b)The Issuer, on behalf of itself and each of the other Securitization Entities, confirms that the statements relating to the Issuer referenced in the opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP regarding substantive consolidation matters delivered to the Trustee on each Series Closing Date are true and correct with respect to itself and each other Securitization Entity, and that the Issuer shall, and shall cause each other Securitization Entity to, comply with any covenants or obligations assumed to be complied with by it therein as if such covenants and obligations were set forth herein.
Section 8.25Covenants Regarding the Securitization IP.
(a)The Issuer shall not, nor shall it permit any other Securitization Entity to, take or omit to take any action with respect to the prosecution, maintenance, enforcement and defense of Wingstop Franchisor’s rights in and to the Securitization IP that would constitute a breach by the Manager of the Management Agreement if such action were taken or omitted by the Manager on behalf of any Securitization Entity.
(b)The Issuer shall notify the Trustee, the Back-Up Manager and the Servicer in writing within fifteen (15) Business Days of knowing or having reason to know that any application or registration relating to any material Securitization IP (now or hereafter existing) may become abandoned or dedicated to the public domain, or of any material adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the USPTO or USCO or any court but excluding office actions in the course of prosecution and any non-final determinations (other than in an adversarial proceeding) of the USPTO or USCO) regarding the validity of any Securitization Entity’s ownership of any material Securitization IP, its right to register the same, or to keep and maintain the same.
(c)The Issuer caused Wingstop Franchisor to execute, deliver and file, within fifteen (15) Business Days after the Original Closing Date, instruments substantially in the form of Exhibit C-1 hereto with respect to Trademarks, Exhibit C-2 hereto with respect to Patents and Exhibit C-3 hereto with respect to Copyrights, or otherwise in form and substance satisfactory to the Control Party, and any other instruments or documents as may have been reasonably necessary or, in the Control Party’s opinion, desirable to perfect or protect the Trustee’s security interest granted under this Base Indenture and the Guarantee and Collateral Agreement in the Trademarks, Patents and Copyrights included in the Original Closing Date Securitization IP that are registered in the United States under federal law. In addition to the foregoing, within fifteen (15) Business Days after the Original Closing Date, the Issuer caused Wingstop Franchisor to take all other actions necessary (including the filing of UCC-1 financing statements with respect to Trademarks and Patents) to protect and evidence the Trustee’s security interest in the Securitization IP registered in the United States under federal law pursuant to Section 7.13(b), subject to Sections 7.13(a), 8.25(c) and 8.25(d), and except as described on Schedule 8.11.
(d)If the Issuer or any Guarantor, either itself or through any agent, licensee or designee, files or otherwise acquires an application for the registration of any Patent, Trademark or
Copyright with the USPTO or USCO, the Issuer or such Guarantor (i) shall give the Trustee and the Control Party written notice thereof on the later of (A) fifteen (15) Business Days thereafter and (B) the following Quarterly Payment Date and (ii) upon reasonable request of the Control Party, solely with respect to such applications filed in the United States, in a reasonable time after such filing (and in any event within one hundred eighty (180) days thereof), shall execute and deliver all instruments and documents, and take all further action, that the Control Party may reasonably request in order to continue, perfect or protect the security interest granted hereunder or under the Guarantee and Collateral Agreement in the United States, including, without limitation, executing and delivering (w) the Supplemental Notice of Grant of Security Interest in Trademarks substantially in the form attached hereto as Exhibit D-1 for Trademarks in the United States, (x) the Supplemental Notice of Grant of Security Interest in Patents substantially in the form attached hereto as Exhibit D-2 for Patents in the United States and/or (y) the Supplemental Grant of Security Interest in Copyrights substantially in the form attached hereto as Exhibit D-3 for Copyrights in the United States, as applicable. In addition to the foregoing, the Issuer or the Guarantor shall take all other actions necessary (including the filing of UCC-1 financing statements with respect to Trademarks and Patents) to protect and evidence the Trustee’s security interest in Patents, Trademarks and Copyrights acquired by the Issuer and the Guarantor following the Original Closing Date, subject to Sections 7.13(a), 8.25(c) and 8.25(d), and except as described on Schedule 8.11.
(e)In the event that any material Securitization IP is infringed upon, misappropriated or diluted by a third party in a manner that would reasonably be expected to have a Material Adverse Effect, Wingstop Franchisor upon becoming aware of such infringement, misappropriation or dilution shall promptly notify the Trustee and the Control Party in writing. Wingstop Franchisor shall take all reasonable and appropriate actions, at its expense, to protect or enforce such Securitization IP, including, if reasonable, suing for infringement, misappropriation or dilution and seeking an injunction (including, if appropriate, temporary and/or preliminary injunctive relief) against such infringement, misappropriation or dilution, unless the failure to take such actions on behalf of Wingstop Franchisor by the Manager would not constitute a breach by the Manager of the Management Agreement; provided that if Wingstop Franchisor decides not to take any action with respect to an infringement, misappropriation or dilution that would reasonably be expected to have a Material Adverse Effect, it shall deliver written notice to the Trustee, the Manager, the Back-Up Manager and the Control Party setting forth in reasonable detail the basis for its decision not to act, and none of the Trustee, the Manager, the Back-Up Manager or the Control Party shall be required to take any actions on its behalf to protect or enforce the Securitization IP against such infringement, misappropriation or dilution; provided, further, that the Manager shall be required to act if failure to do so would constitute a breach of the Managing Standard.
(f)With respect to licenses of third-party Intellectual Property entered into after the Original Closing Date by the Securitization Entities (including, for the avoidance of doubt, by the Manager acting on behalf of the Securitization Entities, as applicable), the Securitization Entities (or the Manager on their behalf) shall use commercially reasonable efforts to include terms permitting the grant by the Securitization Entities of a security interest therein to the Trustee for the benefit of the Secured Parties and to allow the Manager (and any Successor Manager) the right to use such Intellectual Property in the performance of its duties under the Management Agreement.
Section 8.26Insurance.
The Issuer shall cause the Manager to list each Securitization Entity as an “additional insured” or “loss payee”, as may apply, on any insurance maintained by the Manager for the benefit of such Securitization Entity pursuant to the Management Agreement.
Section 8.27Litigation.
If Parent is not then subject to Section 13 or 15(d) of the Exchange Act, the Issuer shall provide a written report to the Servicer, the Manager, the Back-Up Manager and each Rating Agency on each Quarterly Payment Date that sets forth all outstanding litigation, arbitration or other proceedings against any Wingstop Entity that would have been required to be disclosed in Parent’s annual reports, quarterly reports and other public filings which Parent would have been required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act if Parent were subject to such Section 13 or 15(d) of the Exchange Act.
Section 8.28[Reserved].
Section 8.29 Series Hedge Agreements; Derivatives Generally.
(a)No Series Hedge Agreement shall be provided in respect of any Series of Notes, nor will any Hedge Counterparty have any rights hereunder, as third-party beneficiary or otherwise, unless the Control Party has provided its prior written consent to such Series Hedge Agreement, such consent not to be unreasonably withheld, conditioned or delayed, and the Issuer has delivered a copy of such prior written consent to each Rating Agency (with a copy to the Servicer).
(b)Without the prior written consent of the Control Party, such consent not to be unreasonably withheld, conditioned or delayed, the Issuer shall not, and shall not permit any other Securitization Entity to, enter into any other derivative contract, swap, option, hedging contract, forward purchase contract or other similar agreement or instrument (other than forward purchase agreements entered into by the Issuer or another Securitization Entity with third-party vendors in the ordinary course of business) if any such contract, agreement or instrument requires the Issuer to expend any financial resources (other than amounts paid using the Residual Amount) to satisfy any payment obligations owed in connection therewith.
Section 8.30Future Securitization Entities .
(a)Any of the existing Securitization Entities, in accordance with and as permitted under the Transaction Documents and upon prior written notice to each Rating Agency, may form or cause to be formed Future Securitization Entities from time to time following the Closing Date. At the time any Future Securitization Entities are created or acquired, or any Competitive Business is contributed into any existing Securitization Entity or Future Securitization Entity, the definitions of “Securitization Entities”, “Guarantors” and any related terms or provisions in this Base Indenture and the other Transaction Documents will be deemed to include and refer to such additional Future Securitization Entities and the definition of “Securitization IP” will be deemed to include all of the existing and after-acquired U.S. and non-U.S. Intellectual Property (in each case other than Excluded IP) related to such Future Securitization Entity or Competitive Business, as applicable. Any Future Securitization Entity will become a party to the Guarantee and Collateral Agreement as a Guarantor (or co-issuer) pursuant to an Assumption Agreement pursuant to which the Future Securitization Entity will, together with the other Guarantors, jointly and severally guarantee to the Trustee, for the benefit of the Secured Parties, the payment obligations the obligations of the Issuer under the Indenture and the other Transaction Documents and will secure such guarantee by granting to the Trustee, for the benefit of the Secured Parties, a security interest in substantially all of its assets.
(b)Each Future Securitization Entity shall be formed or reconstituted as a special purpose entity with two (2) independent managers or independent directors that meet the qualifications and perform the duties of the published criteria of each then-applicable Rating Agency. Future Securitization Entities may be formed or reconstituted by the Issuer without the consent of the Control Party; provided that such Future Securitization Entity is a Delaware limited liability company or a Delaware corporation (so long as the use of such corporate form is reasonably satisfactory to the Control Party) and shall have adopted Charter Documents substantially similar to the Charter Documents of the Securitization Entities that are Delaware limited liability companies as in existence on the Closing Date. If the Issuer desires to create, incorporate, form or otherwise organize a Future Securitization Entity that does not comply with the immediately preceding sentence, the Issuer shall first obtain the prior written consent of the Control Party, such consent not to be unreasonably withheld, conditioned or delayed.
(c)The Issuer shall cause each Future Securitization Entity to promptly execute an assumption agreement in substantially the form set forth as Exhibit A to the Guarantee and Collateral Agreement (each, an “Assumption Agreement”) pursuant to which such Future Securitization Entity shall become jointly and severally obligated under the Guarantee and Collateral Agreement with the other Guarantors.
(d)Upon the execution and delivery of an Assumption Agreement as required in clause (c) above, any Future Securitization Entity party thereto shall become a party to the Guarantee and Collateral Agreement with the same force and effect as if originally named therein as a Guarantor and, without limiting the generality of the Guarantee and Collateral Agreement, shall assume all obligations and liabilities of a Guarantor thereunder.
(e)The Issuer shall deliver, or shall cause the Manager to deliver, to each Rating Agency any Opinion of Counsel prepared in connection with the formation of any Future Securitization Entity.
Section 8.31Tax Lien Reserve Amount.
In the event a Tax Lien Reserve Amount is contributed to Funding Holdco, such amount will be contributed by Funding Holdco to the Issuer and held in an account in the name of the Trustee, solely in its capacity as the Trustee, for the benefit of the Secured Parties, as security for the obligation of the Securitization Entities to have the asserted lien released; provided that the Tax Lien Reserve Amount may only be released from such account as follows: (a) if evidence reasonably satisfactory to the Servicer is provided to the Trustee, the Servicer, the Manager, the Back-Up Manager and the Controlling Class Representative indicating that the related tax lien has been released, such amount will be withdrawn and paid according to the written instructions of the Issuer (or the Manager on its behalf); (b) all or a portion of such amount will be withdrawn and paid to the IRS on behalf of the Wingstop Entities upon the written instructions of the Issuer (or the Manager on its behalf); or (c) after the occurrence and during the continuation of an Event of Default, or after the receipt by a Securitization Entity of notice that the IRS intends to execute on the related tax lien in respect of the assets of any Securitization Entity, all or a portion of such Tax Lien Reserve Amount may be withdrawn and paid to the IRS upon the written instructions of the Control Party (with notice of such payment to the Manager).
Section 8.32Bankruptcy Proceedings.
The Issuer shall, and shall cause each other Securitization Entity to, promptly object to the institution of any bankruptcy proceeding against it and take all necessary or advisable steps to cause the dismissal of any such proceeding (including, without limiting the generality of the foregoing, timely filing an answer and any other appropriate pleading objecting to (i) the institution of any proceeding to have any Securitization Entity, as the case may be, adjudicated as bankrupt or insolvent or (ii) the filing of any petition seeking relief, reorganization, arrangement, adjustment or composition in respect of any Securitization Entity, as the case may be, under applicable bankruptcy law or any other applicable law).
ARTICLE IX
REMEDIES
Section 9.1Rapid Amortization Events.
The Notes will be subject to rapid amortization in whole and not in part following the occurrence of any of the following events as declared by the Control Party (at the direction of the Controlling Class Representative) by written notice to the Issuer (with a copy to the Manager, the Back-Up Manager and the Trustee) (each, a “Rapid Amortization Event”); provided that a Rapid Amortization Event described in clause (d) below will occur automatically without any declaration thereof by the Control Party unless the Control Party and each Noteholder of solely the applicable Series of Notes (or Class, Subclass or Tranche thereof) Outstanding that have not been (or, without such consent, will not otherwise be) repaid or refinanced in full on or prior to the respective Series Anticipated Repayment Date for such Series of Notes (or Class, Subclass or Tranche thereof) and that resulted (or, without such consent, would otherwise result) in such occurrence of a Rapid Amortization Event have agreed to waive such event in accordance with the terms of Section 9.7:
(a)the failure to maintain a DSCR of at least 1.20x as calculated on any Quarterly Calculation Date; provided, that such DSCR threshold may be increased at the request of the Issuer subject to approval by the Control Party and, to the extent that any Rapid Amortization Event has occurred and is continuing, each Noteholder of each Series of applicable Notes outstanding;
(b)the occurrence of a Manager Termination Event;
(c)the occurrence of an Event of Default;
(d)the Issuer has not repaid or refinanced any Series of Notes (or Class, Subclass or Tranche thereof) in full on or prior to the Series Anticipated Repayment Date provided for such Series of Notes (or Class, Subclass or Tranche thereof) in the Series Supplement for such Series, Class, Subclass or Tranche of Notes; provided, that, the Series 2020-1 Supplement will provide, and the Series Supplement for any Series of Additional Notes (or Class, Subclass or Tranche thereof) may provide, that if the DSCR is greater than 2.00x as of the applicable Series Anticipated Repayment Date, and any such Series, Class, Subclass or Tranche of Notes is repaid or refinanced within one (1) calendar year from its Series Anticipated Repayment Date, such Rapid Amortization Event will no longer be in effect following such repayment or refinancing; provided, that such DSCR threshold may be increased at the request of the Issuer subject to approval by the Control Party and each Noteholder of solely the applicable Series of Notes (or Class, Subclass or Tranche thereof) Outstanding that have not been (or, without such consent, will not otherwise be) repaid or refinanced in full on or prior to the respective Series Anticipated Repayment Date for such Series of Notes (or Class, Subclass or Tranche thereof) and that resulted (or, without such consent, would otherwise result) in such occurrence of a Rapid Amortization Event; or
(e)Wingstop System-Wide Sales as calculated on any Quarterly Calculation Date are less than $555,000,000; provided that such threshold may be increased or decreased at the request of the Issuer subject to approval by the Control Party and satisfaction of the Rating Agency Condition.
Except as provided in clause (d) above, Rapid Amortization Events shall not be curable.
Section 9.2Events of Default.
If any one of the following events shall occur (each, an “Event of Default”):
(a)the Issuer defaults in the payment of interest on any Series of Notes Outstanding when the same becomes due and payable and such default continues for two (2) Business Days (or, in the case of a failure to pay such interest when due resulting solely from an administrative error or omission by the Trustee, such default continues for a period of two (2) Business Days after the Trustee has Actual Knowledge of such administrative error or omission); provided that failure to pay any contingent or additional interest on any Series of Notes (including, but not limited to, the Post-ARD Contingent Additional Interest and additional interest accruing on Class A-1 Notes following the related Class A-1 Notes Renewal Date) on any Quarterly Payment Date (including a Series Legal Final Maturity Date) will not be an Event of Default;
(b)(i) the Issuer (x) defaults in the payment of any principal of any Series of Notes on the Series Legal Final Maturity Date or as and when due in connection with any mandatory or optional prepayment (subject to an irrevocable notice of prepayment) or (y) fails to make any other principal payments of any Series of Notes due from funds available in the Collection Account in accordance with the Priority of Payments on any Weekly Allocation Date; provided that in the case of a failure to pay principal under either clause (x) or (y) resulting solely from an administrative error or omission by the Trustee, an Event of Default will not occur until such failure continues for a period of two (2) Business Days after the Trustee receives written notice or the Trustee has Actual Knowledge of such administrative error or omission or (ii) any Advance Period shall have occurred and be continuing for ninety (90) or more consecutive days;
(c)any Securitization Entity fails to perform or comply in any material respect with any of the covenants (other than those covered by clause (a) or clause (b) above) (including any covenant
to pay any amount other than interest on or principal of the Notes when due in accordance with the Priority of Payments), or any of its representations or warranties contained in any Transaction Document to which it is a party proves to be incorrect in any material respect as of the date made or deemed to be made, and such default, failure or breach continues for a period of thirty (30) consecutive days or, in the case of a failure to comply with any of the agreements, covenants or provisions of the Wingstop IP License Agreement, such longer cure period as may be permitted under the Wingstop IP License Agreement (or, solely with respect to a failure to comply with (i) any obligation to deliver a notice, financial statement, report or other communication within the specified time frame set forth in the applicable Transaction Document, such failure continues for a period of five (5) consecutive Business Days after the specified time frame for delivery has elapsed or (ii) Section 8.7, 8.12, 8.13, 8.14, 8.15, 8.17, 8.18, 8.19, 8.20, 8.21, 8.22, 8.23, 8.24, 8.25, or 8.32, such failure continues for a period of ten (10) consecutive Business Days), in each case, following the earlier to occur of the Actual Knowledge of such Securitization Entity of such breach or failure and the default caused thereby or written notice to such Securitization Entity by the Trustee, the Back-Up Manager or the Control Party (at the direction of the Controlling Class Representative) of such default, breach or failure; provided that no Event of Default will occur pursuant to this clause (c) if, with respect to any such representation deemed to have been false in any material respect when made which can be remedied by making a payment of an Indemnification Amount, (i) the relevant Contributor or the Manager, as applicable, has paid the required Indemnification Amount in accordance with the terms of the Transaction Documents and (ii) such Indemnification Amount has been deposited into the Collection Account; provided, further that the failure to pay any Prepayment Consideration on any date (other than the Series Legal Final Maturity Date for the related Notes and any other date on which the related Notes must be paid in full) will not be an Event of Default;
(d)the occurrence of an Event of Bankruptcy with respect to any Securitization Entity;
(e)the Interest-Only DSCR as calculated as of any Quarterly Calculation Date is less than 1.10x;
(f)the SEC or other regulatory body having jurisdiction reaches a final determination that any Securitization Entity is required to register as an “investment company” under the Investment Company Act or is under the “control” of a Person that is required to register as an “investment company” under the Investment Company Act;
(g)any of the Transaction Documents or any material portion thereof ceases to be in full force and effect or enforceable in accordance with its terms (other than in accordance with the express termination provisions thereof) or any Wingstop Entity so asserts in writing;
(h)other than with respect to Collateral with an aggregate fair market value of less than $10,000,000 the Trustee ceases to have for any reason a valid and perfected first priority security interest in the Collateral (subject to Permitted Liens) in which perfection can be achieved under the UCC or other applicable Requirements of Law in the United States to the extent required by the Transaction Documents or any Securitization Entity or any Affiliate thereof so asserts in writing;
(i)any Securitization Entity fails to perform or comply with any material provision of its organizational documents, any provision of Section 8.24 or any affirmative covenant in the Guarantee and Collateral Agreement relating to legal separateness of the Securitization Entities, which failure is reasonably likely to cause the contribution of the Collateral to such Securitization Entity pursuant to the Contribution Agreements to fail to constitute a “true contribution” or other absolute transfer of such Collateral pursuant to the Contribution Agreements or is reasonably likely to cause a court of competent jurisdiction to disregard the separate existence of such Securitization Entity relative to any Person other than another Securitization Entity and, in each case, such failure continues for more than thirty (30) consecutive days following the earlier to occur of the Actual Knowledge of such Securitization Entity or written notice to such Securitization Entity from the Trustee, the Back-Up Manager or the Control Party (at the direction of the Controlling Class Representative) of such failure;
(j)a final, non-appealable ruling has been made by a court of competent jurisdiction that the contribution of the Collateral (other than any immaterial portion of the Collateral and any
Collateral that has been disposed of to the extent permitted or required under the Transaction Documents) pursuant to a Contribution Agreement does not constitute a “true contribution” or other absolute transfer of such Collateral pursuant to such agreement;
(k)a final, non-appealable judgment for an amount exceeding $20,000,000 (when aggregated with the amount of all other final, non-appealable judgments) (to the extent not covered by independent third-party insurance as to which the insurer is rated at least “A-” by A.M. Best Company) is rendered against any Securitization Entity, and either (i) enforcement proceedings are commenced by any creditor upon such judgment or order or (ii) there is any period of forty-five (45) consecutive days during which such judgment remains unsatisfied or a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, will not be in effect;
(l)(i) the failure of (i) WRI to own 100% of the Equity Interests of Funding Holdco or (ii) Funding Holdco to own 100% of the Equity Interests of the Issuer; provided, that no Default or Event of Default shall result under the foregoing clause (i) so long as Wingstop Holdings, Inc. directly or indirectly owns 100% of the Equity Interests of Funding Holdco and WRI;
(m)other than as permitted under the Indenture or the other Transaction Documents, the Securitization Entities collectively fail to have good title to any material portion of the Securitization IP or the Securitization Entities collectively fail to have good title in or to the Franchise Assets;
(n)(i) any Securitization Entity engages in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan, (ii) any failure to meet the “minimum funding standard” (as defined in Section 302 of ERISA), whether or not waived, exists with respect to any Pension Plan and is not fully discharged within thirty (30) days thereafter, (iii) any Lien in an amount equal to at least $1,000,000 in favor of the PBGC or a Pension Plan arises on the assets of any Securitization Entity and is not fully discharged within thirty (30) days thereafter, (iv) a Reportable Event occurs with respect to, or proceedings commence to have a trustee appointed, or a trustee is appointed, to administer or to terminate, any Pension Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Control Party, likely to result in the termination of such Pension Plan for purposes of Title IV of ERISA, (v) any Pension Plan terminates for purposes of Title IV of ERISA, or (vi) any Securitization Entity incurs, or in the reasonable opinion of the Control Party is likely to incur, any liability in connection with a complete or partial withdrawal from, or the Insolvency or termination of a Multiemployer Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse Effect on any Securitization Entity; or
(o)the IRS files notice of a lien pursuant to Section 6323 of the Code with regard to the assets of any Securitization Entity and such lien has not been released within sixty (60) days, unless (i) the Manager or an Affiliate thereof has provided evidence that payment to satisfy the full amount of the asserted liability has been provided to the IRS, and the IRS has released such asserted lien within sixty (60) days of such payment, or (ii) such lien or the asserted liability is being contested in good faith and the Manager has caused to be contributed to the Securitization Entities funds in the amount necessary to satisfy the asserted liability (the “Tax Lien Reserve Amount”), which such funds are set aside and remitted to a collateral deposit account;
then (i) in the case of any Event of Default described in each clause above (except for clause (d) thereof) that has occurred and is continuing, the Trustee, if so directed by the Control Party (acting at the direction of the Controlling Class Representative) and on behalf of the Noteholders, by written notice to the Issuer, will declare the Outstanding Principal Amount of all Series of Notes Outstanding to be immediately due and payable and, upon any such declaration, such Outstanding Principal Amount, together with accrued and unpaid interest thereon through the date of acceleration and all other amounts due to the Noteholders and the other Secured Parties under the Indenture Documents, shall become immediately due and payable or (ii) in the case of any Event of Default described in clause (d) above that has occurred and is continuing, the Outstanding Principal Amount of all Series of Notes Outstanding, together with interest accrued but unpaid thereon through the date of acceleration, and all other amounts due to the Noteholders
and the other Secured Parties under the Indenture, shall automatically become immediately due and payable.
If any Securitization Entity obtains Actual Knowledge that a Default or an Event of Default has occurred and is continuing, such Securitization Entity shall promptly notify the Trustee and the Control Party. Promptly following the Trustee’s receipt of written notice hereunder of any Event of Default, the Trustee shall send a copy thereof to the Issuer, the Servicer, each Rating Agency, the Controlling Class Representative, the Manager, the Back-Up Manager, each Class A-1 Administrative Agent, each Noteholder and each other Secured Party.
At any time after such a declaration of acceleration of maturity with respect to the Notes has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee, as hereinafter provided in this Article IX, the Control Party (at the direction of the Controlling Class Representative), by written notice to the Issuer and to the Trustee, may rescind and annul such declaration and its consequences, if (i) the Issuer has paid or deposited with the Trustee a sum sufficient to pay (a) all overdue installments of interest and principal on the Notes (excluding principal amounts due solely as a result of the acceleration) and (b) all unpaid taxes, administrative expenses and other sums paid or advanced by the Trustee or the Servicer under the Transaction Documents and the reasonable compensation, expenses, disbursements and Advances of the Trustee and the Servicer, their agents and counsel, and any unreimbursed Advances (with interest thereon at the Advance Interest Rate), Servicing Fees, Liquidation Fees or Workout Fees and (ii) all existing Events of Default, other than the non-payment of the principal of the Notes which has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 9.7. No such rescission shall affect any subsequent default or impair any right consequent thereon. Any Default or Event of Default described in clause (d) above will not be subject to waiver without the consent of the Control Party (acting at the direction of the Controlling Class Representative) and each Noteholder. Any other Default or Event of Default may be waived by the Control Party (at the direction of the Controlling Class Representative) by written notice to the Trustee.
Section 9.3Rights of the Control Party and Trustee upon Event of Default.
(a)Payment of Principal and Interest. The Issuer covenants that if (i) default is made in the payment of any interest on any Series of Notes Outstanding when the same becomes due and payable, (ii) the Notes are accelerated following the occurrence of an Event of Default or (iii) default is made in the payment of the principal of or premium, if any, on any Series of Notes Outstanding when due and payable, the Issuer will, to the extent of funds available, upon demand of the Trustee, at the direction of the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative), pay to the Trustee, for the benefit of the Noteholders, the whole amount then due and payable on the Notes for principal, premium, if any, and interest, and, to the extent payment at such rate of interest shall be legally enforceable, upon overdue installments of interest, at the applicable Note Rate and any default rate, as applicable, and in addition thereto such further amount as shall be sufficient to cover costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel.
(b)Proceedings To Collect Money. In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee at the direction of the Control Party (at the direction of the Controlling Class Representative), in its own name and as trustee of an express trust, may institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuer and collect in the manner provided by law out of the property of the Issuer, wherever situated, the moneys adjudged or decreed to be payable.
(c)Other Proceedings. If and when an Event of Default shall have occurred and be continuing, the Trustee, at the direction of the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative) shall take one or more of the following actions:
(i)proceed to protect and enforce its rights and the rights of the Noteholders and the other Secured Parties, by such appropriate Proceedings as the Control Party (at the direction of the Controlling Class Representative) shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in the Indenture or any other Transaction Document or in aid of the exercise of any power granted therein, or to enforce any other proper remedy or legal or equitable right vested in the Trustee by the Indenture or any other Transaction Document or by law, including any remedies of a secured party under applicable Requirements of Law;
(ii)(A) direct the Issuer to exercise (and the Issuer agrees to exercise) all rights, remedies, powers, privileges and claims of the Issuer against any party to any Collateral Document arising as a result of the occurrence of such Event of Default or otherwise, including the right or power to take any action to compel performance or observance by any such party of its obligations to the Issuer, and any right of the Issuer to take such action independent of such direction shall be suspended, and (B) if (x) the Issuer shall have failed, within ten (10) Business Days of receiving the direction of the Trustee (given at the direction of the Control Party (at the direction of the Controlling Class Representative)), to take commercially reasonable action to accomplish such directions of the Trustee, (y) the Issuer refuses to take such action or (z) the Control Party (at the direction of the Controlling Class Representative) reasonably determines that such action must be taken immediately, take (or the Control Party on behalf of the Trustee shall take) such previously directed action (and any related action as permitted under the Indenture thereafter determined by the Trustee or the Control Party to be appropriate without the need under this provision or any other provision under the Indenture to direct the Issuer to take such action);
(iii)institute Proceedings from time to time for the complete or partial foreclosure of the Indenture or, to the extent applicable, any other Transaction Document with respect to the Collateral; provided that the Trustee shall not be required to take title to any real property in connection with any foreclosure or other exercise of remedies hereunder or under such Transaction Documents and title to such property will instead be acquired in an entity designated and (unless owned by a third party) controlled by the Control Party; and/or
(iv)sell all or a portion of the Collateral at one or more public or private sales called and conducted in any manner permitted by law; provided that the Trustee shall not proceed with any such sale without the prior written consent of the Control Party (at the direction of the Controlling Class Representative), and the Trustee will provide notice to the Issuer and each Holder of Subordinated Notes and Senior Subordinated Notes of a proposed sale of Collateral.
(d)Sale of Collateral. In connection with any sale of the Collateral hereunder, under the Guarantee and Collateral Agreement (which may proceed separately and independently from the exercise of remedies under the Indenture), under any judgment, order or decree in any judicial proceeding for the foreclosure or involving the enforcement of the Indenture, the Guarantee and Collateral Agreement or any other Transaction Document:
(i)any of the Trustee, any Noteholder, any Hedge Counterparty and/or any other Secured Party may bid for and purchase the property being sold, and upon compliance with the terms of the sale may hold, retain, possess and dispose of such property in its own absolute right without further accountability;
(ii)the Trustee (at the direction of the Control Party (at the direction of the Controlling Class Representative)) may make and deliver to the purchaser or purchasers a good and sufficient deed, bill of sale and instrument of assignment and transfer of the property sold;
(iii)all right, title, interest, claim and demand whatsoever, either at law or in equity or otherwise, of any Securitization Entity of, in and to the property so sold shall be divested; and such sale shall be a perpetual bar both at law and in equity against such Securitization Entity and its successors and assigns, and against any and all Persons claiming or
who may claim the property sold or any part thereof from, through or under such Securitization Entity or its successors or assigns; and
(iv)the receipt of the Trustee or of the officer thereof making such sale shall be a sufficient discharge to the purchaser or purchasers at such sale for his or their purchase money, and such purchaser or purchasers, and his or their assigns or personal representatives, shall not, after paying such purchase money and receiving such receipt of the Trustee or of such officer thereof, be obliged to see to the application of such purchase money or be in any way answerable for any loss, misapplication or non-application thereof.
(e)Application of Proceeds. Any amounts obtained by the Trustee or the Control Party on account of or as a result of the exercise by the Trustee or the Control Party of any right hereunder or under the Guarantee and Collateral Agreement (a) shall be deposited into the Collection Account and, other than with respect to amounts owed to a depositary bank or securities intermediary under the related Account Control Agreement, shall be held by the Trustee as additional collateral for the repayment of the Obligations and (b) shall be applied first to pay a depositary bank or securities intermediary in respect of amounts owed to it under the related Account Control Agreement and then as provided in the priority set forth in the Priority of Payments; provided that, unless otherwise provided in this Article IX, with respect to any distribution to any Class of Notes, notwithstanding the provisions of Article V, such amounts shall be distributed sequentially in order of alphabetical (as opposed to alphanumerical) designation and pro rata among each Class of Notes of the same alphabetical designation based upon the Outstanding Principal Amount of the Notes of each such Class.
(f)Additional Remedies. In addition to any rights and remedies now or hereafter granted hereunder or under applicable law with respect to the Collateral, the Trustee shall have all of the rights and remedies of a secured party under the UCC and similar laws as enacted in any applicable jurisdiction.
(g)Proceedings. The Trustee may maintain a Proceeding even if it does not possess any of the Notes or does not produce any of them in the Proceeding, and any such Proceeding instituted by the Trustee shall be in its own name as trustee. All remedies are cumulative to the extent permitted by law.
(h)Power of Attorney. The Issuer hereby grants to the Trustee an absolute power of attorney to sign, upon the occurrence and during the continuance of an Event of Default, any document which may be required by the USPTO, USCO, any similar office or agency in each foreign country in which any Securitization IP is located, or any Governmental Authority in order to effect an absolute assignment of all right, title and interest in or to any Securitization IP, and record the same.
Section 9.4Waiver of Appraisal, Valuation, Stay and Right to Marshaling. To the extent it may lawfully do so, the Issuer for itself and for any Person who may claim through or under it hereby:
(a)agrees that neither it nor any such Person will step up, plead, claim or in any manner whatsoever take advantage of any appraisal, valuation, stay, extension or redemption laws, now or hereafter in force in any jurisdiction, which may delay, prevent or otherwise hinder (i) the performance, enforcement or foreclosure of the Indenture or the Guarantee and Collateral Agreement, (ii) the sale of any of the Collateral or (iii) the putting of the purchaser or purchasers thereof into possession of such property immediately after the sale thereof;
(b)waives all benefit or advantage of any such laws;
(c)waives and releases all rights to have the Collateral marshaled upon any foreclosure, sale or other enforcement of the Indenture or the Guarantee and Collateral Agreement; and
(d)consents and agrees that, subject to the terms of the Indenture and the Guarantee and Collateral Agreement, all the Collateral may at any such sale be sold by the Trustee as an entirety or
in such portions as the Trustee may (upon direction by the Control Party (at the direction of the Controlling Class Representative)) determine.
Section 9.5Limited Recourse.
Notwithstanding any other provision of the Indenture, the Notes or any other Transaction Document or otherwise, the liability of the Securitization Entities to the Noteholders and any other Secured Parties under or in relation to the Indenture, the Notes or any other Transaction Document or otherwise, is limited in recourse to the Collateral. The proceeds of the Collateral having been applied in accordance with the terms hereof, none of the Noteholders or any other Secured Parties shall be entitled to take any further steps against any Securitization Entity to recover any sums due but still unpaid hereunder, under the Notes or under any of the other agreements or documents described in this Section 9.5, all claims in respect of which shall be extinguished.
Section 9.6Optional Preservation of the Collateral.
If the maturity of the Outstanding Notes of each Series has been accelerated pursuant to Section 9.2 following an Event of Default, and such declaration and its consequences have not been rescinded and annulled, the Trustee, at the direction of the Control Party (acting at the direction of the Controlling Class Representative), shall elect to maintain possession of such portion, if any, of the Collateral as the Control Party (acting at the direction of the Controlling Class Representative) shall in its discretion determine.
Section 9.7 Waiver of Past Events.
Prior to the declaration of the acceleration of the maturity of each Series of Notes Outstanding as provided in Section 9.2 and subject to Section 13.2, the Control Party (at the direction of the Controlling Class Representative), by notice to the Trustee, each Rating Agency and the Servicer (with a copy to the Back-Up Manager), may waive any existing Default or Event of Default described in any clause of Section 9.2 (except Section 9.2(d)) and its consequences; provided that, before any waiver may be effective, the Trustee, the Back-Up Manager and the Servicer must have received any reimbursement then due or payable in respect of unreimbursed Advances (including interest thereon) or any other amounts then due to the Servicer, the Back-Up Manager or the Trustee hereunder or under the other Transaction Documents; provided, further, that the Control Party shall provide written notice of any such waiver to each Rating Agency (with a copy to the Servicer and the Back-Up Manager). Upon any such waiver, such Default shall cease to exist and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of the Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. A Default or an Event of Default described in Section 9.2(d) shall not be subject to waiver without the consent of the Control Party (acting at the direction of the Controlling Class Representative) and each Noteholder. The Control Party (at the direction of the Controlling Class Representative), by notice to the Trustee, each Rating Agency, the Back-Up Manager and the Servicer, may waive any existing Potential Rapid Amortization Event or any existing Rapid Amortization Event; provided that a Rapid Amortization Event pursuant to clause (d) of Section 9.1 shall require the consent of each affected Noteholder of the applicable Series of Notes (or Class, Subclass or Tranche thereof) Outstanding that have not been (or, without such consent, will not otherwise be) repaid or refinanced in full on or prior to the respective Series Anticipated Repayment Date for such Series of Notes (or Class, Subclass or Tranche thereof) and that resulted (or without such consent, would otherwise result) in such occurrence of a Rapid Amortization Event.
Section 9.8Control by the Control Party.
Notwithstanding any other provision hereof, the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative) may cause the institution of and direct the time, method and place of conducting any proceeding in respect of any enforcement of the Collateral, in respect
of any enforcement of Liens on the Collateral or conducting any proceeding for any remedy available to the Trustee and direct the exercise of any trust or power conferred on the Trustee; provided that:
(a)such direction of time, method and place shall not be in conflict with any rule of law, the Servicing Standard or the Indenture;
(b)the Control Party (at the direction of the Controlling Class Representative) may take any other action deemed proper by the Control Party (at the direction of the Controlling Class Representative) that is not inconsistent with such direction (as the same may be modified by the Control Party (at the direction of the Controlling Class Representative)); and
(c)such direction shall be in writing;
provided, further, that, subject to Section 10.1, the Trustee need not take any action that it determines might involve it in liability unless it has received an indemnity for such liability as provided herein.
Section 9.9Limitation on Suits.
Any other provision of the Indenture to the contrary notwithstanding, a Holder of Notes may pursue a remedy with respect to the Indenture or any other Transaction Document only if:
(a)the Noteholder gives to the Trustee, the Control Party and the Controlling Class Representative written notice of a continuing Event of Default;
(b)the Noteholders of at least 25% of the Aggregate Outstanding Principal Amount of all then Outstanding Notes make a written request to the Trustee, the Control Party and the Controlling Class Representative to pursue the remedy;
(c)such Noteholder or Noteholders offer and, if requested, provide to the Trustee, the Control Party and the Controlling Class Representative an indemnity satisfactory to the Trustee, the Control Party and the Controlling Class Representative against any loss, liability or expense;
(d)the Trustee does not comply with the request within sixty (60) days after receipt of the request and the offer and, if requested, the provision of indemnity reasonably satisfactory to it;
(e)during such sixty (60) day period, the Majority of Controlling Class Members do not give the Trustee a direction inconsistent with the request; and
(f)the Control Party (at the direction of the Controlling Class Representative) has consented to the pursuit of such remedy.
A Noteholder may not use the Indenture or any other Transaction Document to prejudice the rights of another Noteholder or to obtain a preference or priority over another Noteholder.
Section 9.10Unconditional Rights of Noteholders to Receive Payment.
Notwithstanding any other provision of the Indenture, the right of any Holder of a Note to receive payment of principal of and premium, if any, and interest on the Note, on or after the respective due dates expressed in the Note, or to bring suit for the enforcement of any such payment on or after such respective dates, is absolute and unconditional and shall not be impaired or affected without the consent of the Holder of the Note.
Section 9.11The Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel), the Noteholders and any other Secured Party (as applicable) allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes), its creditors or its property, and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claim, and any custodian in any such judicial proceeding is hereby authorized by each Noteholder and each other Secured Party to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Noteholders or any other Secured Party, to pay the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 10.5. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 10.5 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money and other properties which any of the Noteholders or any other Secured Party may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Noteholder or any other Secured Party any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Noteholder or any other Secured Party, or to authorize the Trustee to vote in respect of the claim of any Noteholder or any other Secured Party in any such proceeding.
Section 9.12Undertaking for Costs.
In any suit for the enforcement of any right or remedy under the Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of any undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 9.12 does not apply to a suit by the Trustee, a suit by a Noteholder pursuant to Section 9.9, a suit by the Control Party or a suit by Noteholders of more than 10% of the Aggregate Outstanding Principal Amount of all Series of Notes.
Section 9.13 Restoration of Rights and Remedies.
If the Trustee, any Noteholder or any other Secured Party has instituted any Proceeding to enforce any right or remedy under the Indenture or any other Transaction Document and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Trustee or to such Noteholder or other Secured Party, then and in every such case the Trustee and the Noteholders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee, the Noteholders and the other Secured Parties shall continue as though no such Proceeding had been instituted.
Section 9.14Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Notes or any other Secured Party is intended to be exclusive of any other right or remedy, and every right or remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given under the Indenture or any other Transaction Document or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy under the Indenture or any other Transaction Document, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 9.15Delay or Omission Not Waiver.
No delay or omission of the Trustee, the Control Party, the Controlling Class Representative, any Holder of any Note or any other Secured Party to exercise any right or remedy accruing upon any Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default shall impair any such right or remedy or constitute a waiver of any such Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default or an acquiescence therein. Every right and remedy given by this Article IX or by law to the Trustee, the Control Party, the Controlling Class Representative, the Holders of Notes or any other Secured Party may be exercised from time to time to the extent not inconsistent with the Indenture, and as often as may be deemed expedient, by the Trustee, the Control Party, the Controlling Class Representative, the Holders of Notes or any other Secured Party, as the case may be.
Section 9.16Waiver of Stay or Extension Laws.
The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of the Indenture or any other Transaction Document; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantages of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, the Control Party or the Controlling Class Representative by relying on any such law, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE X
THE TRUSTEE
Section 10.1Duties of the Trustee.
(a)If an Event of Default or a Rapid Amortization Event of which a Trust Officer of the Trustee shall have Actual Knowledge has occurred and is continuing, the Trustee shall (except in the case of the receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or any other Transaction Document in which event the Trustee’s sole responsibility will be to await such directions and act or refrain from acting in accordance with such directions) exercise the rights and powers vested in it by this Base Indenture and the other Transaction Documents, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs; provided that the Trustee will have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Event of Default, a Rapid Amortization Event, a Manager Termination Event or a Servicer Termination Event of which a Trust Officer has not received written notice; provided, further, that the Trustee will have no liability in connection with any action or inaction due to the acts or failure to act of the Control Party or the Controlling Class Representative in connection with any Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event, or for acting or failing to act due to any direction or lack of direction from the Control Party or the Controlling Class Representative. The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence, fraud, bad faith or willful misconduct. The Trustee agrees that it shall not exercise any rights or remedies available to it as a result of the occurrence of a Rapid Amortization Event or an Event of Default until after the Trustee has given prior written notice thereof to the Controlling Class Representative and the Control Party and has obtained the written direction of the Control Party (subject to Section 11.4(e), at the direction of the Controlling Class Representative). The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of the Indenture, shall examine them to determine whether they conform to the requirements of the Indenture; provided that the Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Issuer under the Indenture.
(b)Except during the occurrence and continuance of an Event of Default or a Rapid Amortization Event of which the Trustee shall have Actual Knowledge:
(i)the Trustee undertakes to perform only those duties that are specifically set forth in the Indenture or any other Transaction Document to which it is a party and no others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Indenture or any other Transaction Document to which it is a party, and no other duties or implied covenants or obligations shall be read into the Indenture or any other Transaction Document against the Trustee; and
(ii)in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of the Indenture and any other applicable Transaction Document; provided that, in the case of any such certificates or opinions which by any provision of the Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine such certificates or opinions to determine whether or not they conform to the requirements of the Indenture and shall promptly notify the party of any non-conformity.
(c)The Trustee may not be relieved from liability for its own negligence, fraud, bad faith or willful misconduct, except that:
(i)this clause (c) does not limit the effect of clause (a) of this Section 10.1;
(ii)the Trustee will not be liable in its individual capacity for any error of judgment made in good faith by a Trust Officer, unless it is proven that the Trustee was negligent in ascertaining the pertinent facts;
(iii)the Trustee will not be liable in its individual capacity with respect to any action it takes, suffers or omits to take in good faith in accordance with the direction of the Manager, the Issuer, the Control Party or the requisite Noteholders under the circumstances if such direction is required or permitted by the terms of the Indenture; and
(iv)the Trustee shall not be charged with knowledge of any Default, Event of Default, Potential Rapid Amortization Event, Rapid Amortization Event, Manager Termination Event, Potential Manager Termination Event, Servicer Termination Event or the commencement and continuation of a Cash Trapping Period until such time as a Trust Officer of the Trustee shall have Actual Knowledge or shall have received written notice thereof, and in the absence of such Actual Knowledge or receipt of such notice the Trustee may conclusively assume that no such event has occurred or is continuing.
(d)Notwithstanding anything to the contrary contained in the Indenture or any of the other Transaction Documents, no provision of the Indenture or the other Transaction Documents shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or exercise of its rights or powers hereunder or thereunder, if it has reasonable grounds for believing that the repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it by the security afforded to it by the terms of the Indenture or the Guarantee and Collateral Agreement. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.
(e)In the event that the Paying Agent or the Note Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Note Registrar, as the case may be, under the Indenture, the Trustee shall be obligated as soon as
practicable upon Actual Knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.
(f)Subject to Section 10.3, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law or the Indenture or any of the other Transaction Documents.
(g)Whether or not therein expressly so provided, every provision of the Indenture and the other Transaction Documents relating to the conduct of, affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 10.1.
(h)The Trustee shall not be responsible (i) for the existence, genuineness or value of any of the Collateral, (ii) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) for the validity of the title of the Securitization Entities to the Collateral, (v) for insuring the Collateral or (vi) for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except as otherwise provided by Section 10.1(e). Except as otherwise provided herein, the Trustee shall have no duty to inquire as to the performance or observance of any of the terms of the Indenture or the other Transaction Documents by the Securitization Entities.
(i)The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture at the direction of the Servicer, the Control Party, the Controlling Class Representative or the requisite percentage of Noteholders, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, exercising any trust or power conferred upon the Trustee under this Base Indenture or any other circumstances in which such direction is required or permitted by the terms of the Indenture.
(j)The Trustee shall have no duty (i) to see to any recording, filing or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording, filing or depositing or to any rerecording, refiling or redeposition of any thereof; (ii) to see to any insurance; (iii) except as otherwise provided by Section 10.1(e), to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind; or (iv) to confirm or verify the contents of any reports or certificates of the Manager, the Control Party, the Back-Up Manager or the Servicer delivered to the Trustee pursuant to this Base Indenture or any other Transaction Document believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties.
(k)The Trustee shall not be personally liable for special, indirect, consequential or punitive damages arising out of, in connection with or as a result of the performance of its duties under the Indenture.
(l)(i) Notwithstanding anything to the contrary in this Section 10.1, the Trustee shall make Debt Service Advances to the extent and in the manner set forth in Section 5.12(a) hereof; provided that, notwithstanding anything herein or in any other Transaction Document to the contrary, the Trustee will not be responsible for advancing any principal on the Senior Notes, any make-whole prepayment consideration, any Series Hedge Payment Amounts, any Class A-1 Notes Administrative Expenses, any Class A-1 Notes Quarterly Commitment Fees Amounts, any post-renewal additional interest on the Class A-1 Notes, any Post-ARD Contingent Additional Interest or any reserve amounts or any interest or principal payable on, or any other amount due with respect to, the Senior Subordinated Notes or the Subordinated Notes; provided that, for the avoidance of doubt, the Trustee will not be required to make any Debt Service Advance in respect of any Class A-1 Notes Interest Adjustment Amount to the extent such Debt Service Advance would be duplicative of a Debt Service Advance already made with respect to such Quarterly Calculation Date.
(ii) Notwithstanding anything herein to the contrary, to the extent the Servicer fails to make an Advance to be made by it pursuant to the terms and conditions of the Servicing Agreement, no Advance shall be required to be made hereunder by the Trustee if (x) the Trustee determines such Advance (including interest thereon) would, if made, constitute a Nonrecoverable Advance, (y) an Advance Suspension Period is then in effect or (z) the Manager elects to eliminate the obligation of the Servicer or the Trustee to provide Advances upon satisfaction of the Rating Agency Condition. The determination by the Trustee that it has made a Nonrecoverable Advance, or that any proposed Advance, if made, would constitute a Nonrecoverable Advance, shall be made by the Trustee in its reasonable good faith judgment. The Trustee is entitled to conclusively rely on the determination of the Servicer that an Advance is or would be a Nonrecoverable Advance. Any such determination will be conclusive and binding on the Noteholders. The Trustee may update or change its nonrecoverability determination at any time, and may decide that a requested Advance that was previously deemed to be a Nonrecoverable Advance shall have become recoverable. Notwithstanding the foregoing, all outstanding Advances made by the Trustee and any accrued interest thereon will be paid strictly in accordance with the Priority of Payments, even if the Trustee determines that any such advance is a Nonrecoverable Advance after such Advance has been made.
(iii) The Trustee shall be entitled to receive interest at the Advance Interest Rate accrued on the amount of each Advance made thereby (with its own funds) for so long as such Advance is outstanding. Such interest with respect to any Advance made pursuant to this Section 10.1(l) shall be payable out of Collections in accordance with the Priority of Payments pursuant to Section 5.11 hereof and the other applicable provisions of the Transaction Documents. Such interest will be calculated on the basis of a 360-day year of twelve 30-day months and will be due and payable in arrears on each Weekly Allocation Date.
Section 10.2Rights of the Trustee. Except as otherwise provided by Section 10.1:
(a)The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting based upon any resolution, Officer’s Certificate, Opinion of Counsel, certificate, instrument, report, consent, order, document or other paper reasonably believed by it to be genuine and to have been signed by or presented by the proper person.
(b)The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c)The Trustee may act through agents, custodians and nominees and shall not be liable for any misconduct or negligence on the part of, or for the supervision of, any such non-affiliated agent, custodian or nominee so long as such agent, custodian or nominee is appointed with due care; provided that the Trustee shall have received the consent of the Servicer prior to the appointment of any agent, custodian or nominee performing any material obligation of the Trustee hereunder.
(d)The Trustee shall not be liable for any action it takes, suffers or omits to take in the absence of negligence, fraud, bad faith and willful misconduct which it believes to be authorized or within the discretion or rights or powers conferred upon it by the Indenture or the other applicable Transaction Documents.
(e)The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Base Indenture, any Series Supplement or any other Transaction Document, or to institute, conduct or defend any litigation hereunder or thereunder or in relation hereto or thereto, at the request, order or direction of the Servicer, the Control Party, the Controlling Class Representative, any of the Noteholders or any other Secured Party pursuant to the provisions of this Base Indenture, any Series Supplement or any other Transaction Document, unless the Trustee has been offered security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities that may be incurred by it in compliance with such request, order or direction.
(f)In the event there is no Control Party or Controlling Class Representative, the Trustee’s sole obligation with respect to any Consent Requests, consents, directions, instructions or actions of the Control Party and the Controlling Class Representative will be to provide notice of the Consent Request or the matter requiring such consents, directions, instructions or actions of the Control Party or the Controlling Class Representative to the Controlling Class Members. The Issuer will thereupon seek the consent, direction, instruction or appropriate action from the Controlling Class Members and shall provide the Trustee with evidence of such consent, direction or instruction or the specific action to be taken. If the Issuer does not provide the Trustee with evidence that the Majority of Controlling Class Members has provided such consent, direction, instruction or specific action, the Trustee will have no further responsibility with respect to any rights, remedies or obligations of the Control Party and the Trustee will have no liability for any the relevant proposed consent, direction, instruction or action or failure to consent, direct, instruct or act on the part of the Control Party.
(fg) Prior to the occurrence of an Event of Default or Rapid Amortization Event, the Trustee shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by the Noteholders of at least 25% of the Aggregate Outstanding Principal Amount of all then Outstanding Notes. If the Trustee is so requested or determines in its own discretion to make such further inquiry or investigation into such facts or matters as it sees fit, the Trustee shall be entitled to examine the books, records and premises of the Securitization Entities, personally or by agent or attorney, at the sole cost of the Issuer, and the Trustee shall incur no liability by reason of such inquiry or investigation.
(gh) The right of the Trustee to perform any discretionary act enumerated in this Base Indenture shall not be construed as a duty, and the Trustee shall be not be liable in the absence of negligence, fraud, bad faith or willful misconduct for the performance of such act.
(hi) In accordance with the USA PATRIOT Act, to help fight the funding of terrorism and money laundering activities, the Trustee will obtain, verify and record information that identifies individuals or entities that establish a relationship or open an account with the Trustee. The Trustee will ask for the name, address, tax identification number and other information that will allow the Trustee to identify the individual or entity who is establishing the relationship or opening the account. The Trustee may also ask for formation documents such as articles of incorporation, an offering memorandum, or other identifying documents to be provided.
(ij) Notwithstanding anything to the contrary herein, any and all communications (both text and attachments) by or from the Trustee that the Trustee in its sole discretion deems to contain confidential, proprietary or sensitive information and sent by electronic mail will be encrypted. The recipient of the e-mail communication will be required to complete a one-time registration process.
(jk) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God, earthquakes, fires, floods, wars, civil or military disturbances, sabotage, epidemics, riots, interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service, accidents, labor disputes, acts of civil or military authority or governmental actions (it being understood that the Trustee shall use commercially reasonable efforts to resume performance as soon as practicable under the circumstances).
(kl) The Trustee shall not be required to give any bond or surety in respect of the execution of the trust created hereby or the powers granted hereunder.
(lm) All rights of action and claims under this Base Indenture may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, any such proceeding instituted by the Trustee shall be brought in its own name or in its capacity as Trustee. Any recovery of judgment shall, after provision for the payments to the Trustee provided for in Section 10.5, be distributed in accordance with Section 9.3(e).
(mn) The Trustee may request written direction from any applicable party any time the Indenture provides that the Trustee may be directed to act.
(no) Any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by a Company Order.
(op) Whenever in the administration of the Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee may, in the absence of bad faith, gross negligence or willful misconduct on its part, rely upon an Officer’s Certificate of the Issuer, the Manager or the Servicer and shall incur no liability for its reliance thereon.
(pq) The Trustee shall not be responsible for the accuracy of the books or records of, or for any acts or omissions of, DTC, any transfer agent (other than the Trustee itself acting in that capacity), Clearstream, Euroclear, any calculation agent (other than the Trustee itself acting in that capacity), or any agent appointed by it with due care or any Paying Agent (other than the Trustee itself acting in that capacity).
(qr) The Trustee and its Affiliates are permitted to receive additional compensation that could be deemed to be in the Trustee’s economic self-interest for (i) serving as an investment advisor, administrator, shareholder servicing agent, custodian or sub-custodian with respect to certain Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain Eligible Investments. The Trustee does not guarantee the performance of any Eligible Investments.
(rs) The Trustee shall have no obligation to invest and reinvest any cash held in the absence of timely and specific written investment direction from the Servicer or the Issuer. In no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon. The Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Servicer or the Issuer to provide timely written investment direction.
(st) The Trustee shall have no obligation to calculate nor shall it be responsible or liable for any calculation of the DSCR, the Interest-Only DSCR or the Additional Notes DSCR.
(tu) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee, in each case, with respect to its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(uv) The Trustee shall be afforded, in each Transaction Document, all of the rights, powers, immunities and indemnities granted to it in this Base Indenture as if such rights, powers, immunities and indemnities were specifically set out in each such Transaction Document.
(vw) For any purpose under the Transaction Documents, the Trustee may conclusively assume without incurring liability therefor that no Notes are held by any of the Securitization Entities, any other obligor upon the Notes, the Manager or any Affiliate of any of them unless a Trust Officer has received written notice at the Corporate Trust Office that any Notes are so held by any of the Securitization Entities, any other obligor upon the Notes, the Manager or any Affiliate of any of them.
(wx) The Trustee shall not have any responsibility to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of an engagement of Independent Auditors by the Issuer (or the Manager on behalf of the Issuer) or the terms of any agreed upon procedures in respect of such engagement; provided that the Trustee shall be authorized, upon receipt of a Company Order directing the same, to execute any acknowledgment or other agreement with the Independent Auditors required for the Trustee to receive any of the reports or instructions provided herein, which acknowledgment or agreement may include, among other things, (i) acknowledgment that the Issuer had agreed that the procedures to be performed by the Independent Auditors are sufficient for
the Issuer’s purposes, (ii) releases by the Trustee (on behalf of itself and the Holders) of claims against the Independent Auditors, and (iii) restrictions or prohibitions on the disclosure of information or documents provided to it by such firm of Independent Auditors (including to the Holders). Notwithstanding the foregoing, in no event shall the Trustee be required to execute any agreement in respect of the Independent Auditors that the Trustee reasonably determines adversely affects it.
Section 10.3Individual Rights of the Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Securitization Entities or any Affiliate of the Securitization Entities with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
Section 10.4Notice of Events of Default and Defaults.
If an Event of Default, a Default, a Rapid Amortization Event or a Potential Rapid Amortization Event occurs and is continuing and if the Trustee has Actual Knowledge thereof, or written notice of the existence thereof has been delivered to the Trustee at the Corporate Trust Office, the Trustee shall promptly provide the Noteholders, the Servicer, the Manager, the Back-Up Manager, the Issuer, any Class A-1 Administrative Agent and each Rating Agency with notice of such Event of Default, Default, Rapid Amortization Event or Potential Rapid Amortization Event, to the extent that the Notes of such Series are Book-Entry Notes, by telephone and e-mail and otherwise by first class mail.
Section 10.5Compensation and Indemnity.
(a)The Issuer shall promptly pay to the Trustee from time to time compensation for its acceptance of the Indenture and services hereunder and under the other Transaction Documents to which the Trustee is a party as the Trustee and the Issuer shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services in accordance with the provisions of the Indenture (including, without limitation, the Priority of Payments). Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and outside counsel. The Issuer shall not be required to reimburse any expense incurred by the Trustee through the Trustee’s own willful misconduct, bad faith or negligence. When the Trustee incurs expenses or renders services after an Event of Default or Rapid Amortization Event occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under the Bankruptcy Code.
(b)The Issuer shall indemnify and hold harmless the Trustee or any predecessor Trustee and their respective directors, officers, agents and employees from and against any loss, liability, claim, expense (including taxes, other than taxes based upon, measured by or determined by the income of the Trustee or such predecessor Trustee), damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of or in connection with (i) the activities of the Trustee or such predecessor Trustee pursuant to this Base Indenture, any Series Supplement or any other Transaction Document to which the Trustee is a party and (ii) the security interest granted hereby, whether arising by virtue of any act or omission on the part of the Issuer or otherwise, including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses reasonably incurred in connection with the defense of any actual or threatened action, proceeding, claim (whether asserted by the Issuer, the Servicer, the Control Party or any Noteholder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder or under any other Transaction Document, the preservation of any of its rights to, or the realization upon, any of the Collateral, or in connection with enforcing the provisions of this Section 10.5(b); provided, however, that the Issuer shall not indemnify the Trustee, any predecessor Trustee or their respective directors, officers, employees or agents if such acts, omissions or alleged acts or omissions constitute willful misconduct, bad faith or negligence by the Trustee or such predecessor Trustee, as the case may be.
(c)The provisions of this Section 10.5 shall survive the termination of the Indenture and the resignation and removal of the Trustee.
Section 10.6Replacement of the Trustee.
(a)A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 10.6.
(b)The Trustee may, after giving not less than thirty (30) days’ prior written notice to the Issuer, the Noteholders, the Servicer, the Manager, the Back-Up Manager, the Controlling Class Representative, each Class A-1 Administrative Agent and each Rating Agency, resign at any time from its office and be discharged from the trust hereby created; provided that no such resignation of the Trustee will be effective until a successor Trustee has assumed the obligations of the Trustee hereunder. The Control Party (at the direction of the Controlling Class Representative) or the Issuer may remove the Trustee by delivering written notice of such removal to the Trustee, or any Noteholder may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee, if at any time:
(i)the Trustee fails to comply with Section 10.8;
(ii)the Trustee becomes subject to Proceedings under any Insolvency Law;
(iii)the Trustee fails generally to pay its debts as such debts become due; or
(iv)the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for any reason, the Issuer shall promptly, with the prior written consent of the Control Party, appoint a successor Trustee. Within one year after the successor Trustee takes office, the Majority of Controlling Class Members (with the prior written consent of the Control Party) may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
(c)If a successor Trustee is not appointed and an instrument of acceptance by a successor Trustee is not delivered to the Trustee within thirty (30) days after the retiring Trustee resigns or is removed, at the direction of the Control Party, the retiring Trustee, at the expense of the Issuer, may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(d)If the Trustee after written request by the Issuer or by the Control Party at the direction of the Controlling Class Representative fails to comply with Section 10.8(b), the Issuer, the Control Party, the Servicer (if not the Control Party) or any Noteholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(e)A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Servicer and the Issuer. Thereupon the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all of the rights, powers and duties of the Trustee under this Base Indenture, any Series Supplement and any other Transaction Document to which the Trustee is a party. The successor Trustee shall mail a notice of its succession to the Noteholders and each Class A-1 Administrative Agent. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, so long as all sums owing to the retiring Trustee hereunder have been paid. Notwithstanding replacement of the Trustee pursuant to this Section 10.6, the Issuer’s obligations under Section 10.5 will continue for the benefit of the retiring Trustee.
(f)No successor Trustee may accept its appointment unless at the time of such acceptance such successor is qualified and eligible under this Base Indenture, a Rating Agency
Notification has been provided and the Control Party has provided its consent with respect to such appointment.
Section 10.7Successor Trustee by Merger, etc.
Subject to Section 10.8, if the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee, so long as (i) written notice of such consolidation, merger or conversion shall be provided to the Issuer, the Servicer, the Noteholders and each Class A-1 Administrative Agent and (ii) the resulting or successor corporation is eligible to be a Trustee under Section 10.8(a).
Section 10.8Eligibility Disqualification.
(a)There shall at all times be a Trustee hereunder which shall (i) be a bank or trust company organized and doing business under the laws of the United States of America or of any state thereof authorized under such laws to exercise corporate trustee power, (ii) be subject to supervision or examination by federal or state authority, (iii) have a combined capital and surplus of at least $250,000,000 as set forth in its most recent published annual report of condition, (iv) be reasonably acceptable to the Servicer and (v) have a long-term unsecured debt rating of at least “BBB+” by S&P.
(b)At any time the Trustee shall cease to satisfy the eligibility requirements of Section 10.8(a), the Trustee shall resign immediately after written request to do so by the Issuer or by the Control Party at the direction of the Controlling Class Representative.
Section 10.9Appointment of Co-Trustee or Separate Trustee.
(a)Notwithstanding any other provisions of this Base Indenture, any Series Supplement or any other Transaction Document, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Collateral may at the time be located, the Trustee shall have the power, upon notice to the Control Party, the Issuer and each Class A-1 Administrative Agent, and may execute and deliver all instruments, to appoint one or more Persons to act as co-trustee or co-trustees, or separate trustee or separate trustees, for all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders and the other Secured Parties, such title to the Collateral, or any part thereof, and, subject to the other provisions of this Section 10.9, such powers, duties, obligations, rights and trusts as the Trustee may consider necessary or desirable. Any co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 10.8(a) or shall be otherwise acceptable to the Servicer. No notice to the Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 10.6. No co-trustee shall be appointed without the consent of the Servicer and the Issuer unless such appointment is required as a matter of state law or to enable the Trustee to perform its functions hereunder.
(b)Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i)the Notes of each Series (other than Uncertificated Notes) shall be authenticated and delivered solely by the Trustee or an authenticating agent appointed by the Trustee;
(ii)all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed, the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Collateral or any
portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Trustee;
(iii)no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder, and such appointment shall not, and shall not be deemed to, constitute any such trustee or co-trustee as an agent of the Trustee; and
(iv)the Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.
(c)Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Base Indenture and the conditions of this Article X. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Base Indenture, any Series Supplement and any other Transaction Document to which the Trustee is a party, specifically including every provision of this Base Indenture, any Series Supplement, or any other Transaction Document which the Trustee is a party relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee and a copy thereof given to the Servicer and the Issuer.
(d)Any separate trustee or co-trustee may at any time constitute the Trustee, its agent or its attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect to this Base Indenture, any Series Supplement or any other Transaction Document on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
Section 10.10Representations and Warranties of Trustee.
The Trustee represents and warrants to the Issuer and the Noteholders that:
(a)the Trustee is a national banking association, organized, existing and in good standing under the laws of the United States;
(b)the Trustee has full power, authority and right to execute, deliver and perform this Base Indenture, any Series Supplement issued concurrently with this Base Indenture and each other Transaction Document to which it is a party and to authenticate the Notes (other than Uncertificated Notes which shall be registered), and has taken all necessary action to authorize the execution, delivery and performance by it of this Base Indenture, any Series Supplement issued concurrently with this Base Indenture and any such other Transaction Document and to authenticate the Notes;
(c)this Base Indenture and each other Transaction Document to which it is a party has been duly executed and delivered by the Trustee; and
(d)the Trustee meets the requirements of eligibility as a trustee hereunder set forth in Section 10.8(a).
Section 10.11Confidentiality.
(a)“Confidential Information” means trade secrets and other information (including, without limitation, know how, ideas, techniques, recipes, formulas, customer lists, customer information, financial information, business methods and processes, marketing plans, specifications, and other similar information as well as internal materials prepared by the owner of such information containing or based, in whole or in part, on any such information) that is confidential and proprietary to its owner and that is
disclosed by one party to an agreement to another party thereto whether in writing or disclosed orally, and whether or not designated as confidential.
(b)The Trustee acknowledges that during the term of this Base Indenture it may receive Confidential Information in its capacity as Trustee from any Non-Securitization Entity, the Securitization Entities, the Manager and the Back-Up Manager. The Trustee agrees to use reasonable controls (but in all events at least the same degree of care and controls that the Trustee uses to protect its own confidential and proprietary information of similar importance) to maintain the Confidential Information in confidence and only use the Confidential Information for purposes of its duties under this Base Indenture, and will not, at any time, disseminate or disclose any Confidential Information to any person or entity other than those of its affiliates and its and their directors, officers, employees, agents, consultants or representatives who have a “need to know” such information in connection with this Base Indenture (collectively, the “Representatives”), and its applicable regulatory authorities and auditors. The Trustee shall inform its Representatives of these restrictions, shall be liable for any action, or use or disclosure of Confidential Information by its Representatives which would have constituted a breach of this Section 10.11 had such Representative been a party hereto and shall immediately notify the Manager in the event of any loss or disclosure of any Confidential Information. Confidential Information shall not include information that: (i) is already known to the Trustee without restriction on use or disclosure prior to receipt of such information from any Non-Securitization Entity, a Securitization Entity or other party to a Transaction Document; (ii) is or becomes part of the public domain other than by breach of this Base Indenture by, or other wrongful act of, the Trustee or any of its Representatives; (iii) is developed by the Trustee independently of and without reference to any Confidential Information; (iv) is received by the Trustee from a third party who is not under any obligation to any Non-Securitization Entity, any Securitization Entity or any other party to a Transaction Document to maintain the confidentiality of such information or (v) is required to be disclosed by applicable law, statute, rule, regulation, subpoena, court order or legal process; provided that the Trustee promptly notifies the Securitization Entities and the Manager of any such requirement and reasonably cooperates with the Securitization Entities and the Manager to minimize the extent of any such disclosure. The duties hereunder shall survive termination of this Base Indenture and (A) for trade secret information, shall continue for as long as such information remains a trade secret under applicable law, and (B) for all other Confidential Information, shall continue for three (3) years after the term of this Base Indenture. Notwithstanding anything to the contrary in this Section 10.11, the disclosure of Confidential Information in accordance with the terms of any Transaction Document shall not be a violation of this Section 10.11.
(c)All books, records, documents, papers or other materials relating to any Non-Securitization Entity’s, any Securitization Entity’s or the Manager’s business, Intellectual Property, customers, suppliers, distributors, franchisees, products or projects received by the Trustee containing Confidential Information or other proprietary information or trade secrets of any Non-Securitization Entity, any Securitization Entity or the Manager, including any copies thereof, shall at all times be and remain the property of the applicable Non-Securitization Entity, Securitization Entity or the Manager, as the case may be, and shall be destroyed or returned immediately to the applicable Non-Securitization Entity, Securitization Entity or the Manager, as the case may be, upon termination of this Base Indenture, or earlier at the request of the applicable Non-Securitization Entity, Securitization Entity or the Manager; provided, however, that the Trustee may retain such limited media and materials containing Confidential Information for customary archival and audit purposes (including with respect to regulatory compliance) only for reference with respect to the prior dealings between the parties and subject to the confidentiality terms of this Base Indenture. Upon request, the Trustee shall provide an Officer’s Certificate attesting to the return and/or destruction of all materials containing any Non-Securitization Entity’s, any Securitization Entity’s or the Manager’s Confidential Information.
(d)Nothing in this Section 10.11 shall be construed as preventing any Non-Securitization Entity or any Securitization Entity, all of which shall be third-party beneficiaries of the rights arising under this Section 10.11, as applicable, from pursuing any and all remedies available to it for the breach or threatened breach of covenants made in this Section 10.11, including recovery of money damages for temporary or permanent injunctive relief.
ARTICLE XI
CONTROLLING CLASS REPRESENTATIVE AND CONTROL PARTY
Section 11.1Controlling Class Representative.
(a)Within five (5) Business Days following a CCR Re-election Event, the Trustee shall deliver a written notice to the Controlling Class Members (with copies to the Manager and the Issuer) in the form of Exhibit F announcing an election of, and soliciting nominations of candidates for, the Controlling Class Representative (a “CCR Election Notice”). The Trustee shall post the written notice on its password-protected website at http://www.sf.citidirect.com and deliver the written notice (i) with respect to Book-Entry Notes through the Applicable Procedures of the Clearing Agency and (ii) with respect to Class A-1 Notes via email to each Class A-1 Administrative Agent.
Each Controlling Class Member shall be allowed to nominate itself or one Eligible Third-Party Candidate as a candidate for Controlling Class Representative (a “CCR Candidate”) (and shall not be permitted to nominate any other Person as a CCR Candidate; provided that any nomination submitted by a Controlling Class Member may be submitted by means of the Applicable Procedures through its DTC custodian) by submitting its nomination directly to the Trustee in writing in the form attached as Exhibit G (a “CCR Nomination”) within the period specified in the CCR Election Notice, which shall be five (5) Business Days from the date thereof (the “CCR Nomination Period”). A candidate does not have to be a Controlling Class Member, but if it is not a Controlling Class Member, it must certify that (i) it is an established enterprise in the business of providing credit support, governance or other advisory services to holders of notes similar to the Notes issued by the Issuer and (ii) not (w) a Competitor, (x) a Franchisee, (y) any of the certain disqualified Persons identified by the Manager to the Trustee on or before the Closing Date or (z) formed solely to act as the Controlling Class Representative (the candidate described in clauses (i) and (ii), an “Eligible Third-Party Candidate”). Each Controlling Class Member nominating a CCR Candidate shall also be required to represent and warrant that, as of the date not more than ten (10) Business Days prior to the date of the CCR Election Notice (i) it was the Note Owner or Noteholder, as applicable, of the Outstanding Principal Amount of Notes of the Controlling Class specified in its CCR Nomination and (ii) the CCR Candidate is a Controlling Class Member or an Eligible Third-Party Candidate. CCR Nominations may be submitted by Controlling Class Members to the Trustee in pdf format via email at the email address for such purpose set forth in the CCR Election Notice, and no originals or medallion signature guarantees shall be required, and the Trustee shall be entitled to conclusively rely on, and shall be fully protected in relying on, CCR Nominations submitted in such manner. Each nomination shall include a contact for the CCR Candidate that will be available to answer any questions raised by a Noteholder or Note Owner. Such contact information shall be posted on the Trustee’s website. There is no minimum denomination required to be held by a Controlling Class Member for it to nominate itself or an Eligible Third-Party Candidate. On and after the 2024 Springing Amendments Implementation Date, each CCR Nomination will become irrevocable upon receipt by the Trustee of a valid and complete CCR Nomination.
(b)Based upon the CCR Nominations that are received by the Trustee by the last day of the CCR Nomination Period, (i) if no CCR Nomination has been received by the Trustee and there is no Controlling Class Representative, the Trustee shall notify the Manager, the Issuer, the Servicer and the Controlling Class Members that no CCR Nominations have been received and that no CCR Election shall be held, (ii) if one or more CCR Nomination has been received by the Trustee, the Trustee shall prepare and send to each applicable Controlling Class Member a ballot in the form of Exhibit H (the “CCR Ballot”) naming the top three candidates based upon the highest aggregate Outstanding Principal Amount of Notes of Controlling Class Members nominating such candidate (or, if fewer than three (3) candidates are nominated, the CCR Ballot shall list all candidates), or (iii) if no CCR Nomination has been received by the Trustee and there is a Controlling Class Representative at such time, the Person serving as the Controlling Class Representative shall be deemed re-elected and shall continue to serve as the Controlling Class Representative; provided that, for such nomination purposes, with respect to each Series of Class A 1 Notes Outstanding, the Class A 1 Notes Voting Amount shall be used in place of the Outstanding Principal Amount of such Notes. Each Controlling Class Member may, in its sole discretion, indicate its
vote for a CCR Candidate in an election for a Controlling Class Representative (a “CCR Election”) by returning a completed CCR Ballot directly to the Trustee within three (3) Business Days of the date of the CCR Ballot (a “CCR Election Period”), certifying that, as of the date of the CCR Ballot (the “CCR Voting Record Date”), it was the owner or beneficial owner of the Outstanding Principal Amount of Notes of the Controlling Class specified by such Controlling Class Member in the CCR Ballot, and including a notarization or medallion signature guarantee. On and after the 2024 Springing Amendments Implementation Date, in completing a CCR Ballot, the Controlling Class Member (or the DTC Custodian of such Note Owner) will vote the full Outstanding Principal Amount (or, with respect to the Class A-1 Notes, the Class A-1 Notes Voting Amount) of Notes of the Controlling Class specified in the CCR Ballot to one (1) candidate and, for the avoidance of doubt, no more than one (1) candidate will be indicated per CUSIP. CCR Ballots may be submitted by Controlling Class Members to the Trustee in pdf format via email at the email address for such purpose set forth in the CCR Ballots and no originals will be required, and the Trustee will be entitled to conclusively rely on, and will be fully protected in relying on, CCR Ballots submitted in such manner. On and after the 2024 Springing Amendments Implementation Date, each CCR Ballot will become irrevocable upon receipt by the Trustee of a valid and complete CCR Ballot.
(c)At the end of the CCR Election Period, the Trustee will tabulate the votes; provided that, for purposes of such tabulation of votes pursuant to this Section 11.1(c), with respect to each Series of Class A-1 Notes Outstanding, the Class A-1 Notes Voting Amount shall be used in place of the Outstanding Principal Amount of such Series. If both (i) the CCR Voting Amount is greater than or equal to the CCR Quorum Amount and (ii) a CCR Candidate receives votes representing in excess of 50% of the CCR Voting Amount, such CCR Candidate will be elected the Controlling Class Representative. Notes of the Controlling Class held by the Issuer or any Affiliate of the Issuer shall not be considered Outstanding for such voting purposes. If two CCR Candidates both receive votes from Controlling Class Members owning (or owning any beneficial interest) exactly 50% of the CCR Voting Amount, the Issuer (or the Manager on its behalf pursuant to the Management Agreement) shall select the Controlling Class Representative from among such CCR Candidates receiving votes from Controlling Class Members owning (or owning any beneficial interest) exactly 50% of the CCR Voting Amount. If either (i) no CCR Candidate receives votes representing at least 50% of the CCR Voting Amount or (ii) votes are submitted by less than the CCR Quorum Amount, the Trustee shall notify the Manager, the Securitization Entities, the Servicer, the Back-Up Manager, each Rating Agency and the Controlling Class Members that a Controlling Class Representative will not be elected and until a CCR Re-election Event occurs and a Controlling Class Representative is elected or selected pursuant to the terms set forth in this Article XI (i) the Control Party will exercise the rights of the Controlling Class Representative in accordance with the Servicing Standard and (ii) any deliverable or notice that is required to be provided to the Controlling Class Representative under a Transaction Document will be delivered to the Control Party.
(d)If a CCR Candidate is elected or chosen pursuant to Section 11.1(c), the Trustee shall forward an acceptance letter in the form of Exhibit I (a “CCR Acceptance Letter”) to the elected CCR Candidate for execution, pursuant to which the elected CCR Candidate shall (i) agree to act as the Controlling Class Representative, (ii) provide its name and contact information and permit such information to be shared with the Manager, the Securitization Entities, the Servicer (including in its capacity as Control Party), the Back-Up Manager, each Rating Agency and the Controlling Class Members and (iii) represent and warrant that it is a Controlling Class Member or an Eligible Third-Party Candidate. No elected CCR Candidate shall be appointed Controlling Class Representative unless such Person delivers a CCR Acceptance Letter to the Trustee within fifteen (15) Business Days of receipt thereof.
(e)Within two (2) Business Days of receipt of the CCR Acceptance Letter, the Trustee shall promptly forward copies thereof, or provide the new Controlling Class Representative’s name and address, to the Manager, the Securitization Entities, the Servicer, the Control Party, the Back-Up Manager, each Rating Agency and the Controlling Class Members.
(f)The prior Controlling Class Representative (if any) shall cease to be the Controlling Class Representative at the end of any CCR Election Period following a CCR Re-election Event (so long as a CCR Election is held at such time) unless it is re-elected as Controlling Class
Representative after such CCR Election Period as described above, even if no candidate is elected as a successor Controlling Class Representative at the end of such CCR Election Period.
(g)The Trustee shall be entitled to conclusively rely on, and shall be fully protected in all actions taken or not taken by it with respect to, (i) the email information provided by the applicable Class A-1 Administrative Agent and the Applicable Procedures of the Clearing Agencies (and the registered address of any Holders of Definitive Notes) for delivery of the CCR Election Notices and the CCR Ballots to Note Owners of Notes of the Controlling Class and (ii) the representations and warranties of the Persons submitting CCR Nominations, CCR Ballots and CCR Acceptance Letters. The Servicer (in its capacity as Servicer and Control Party) and the Back-Up Manager shall each be entitled to rely on the identity of the Controlling Class Representative provided by the Trustee with respect to any obligation or right under the Indenture and the other Transaction Documents that the Servicer (in its capacity as Servicer and Control Party) or the Back-Up Manager, as the case may be, may have to deliver information or otherwise communicate with the Controlling Class Representative or any of the Noteholders of the Controlling Class, with no liability to it for such reliance.
(h)Within two (2) Business Days of any other change in the name or address of the Controlling Class Representative of which the Trustee has received notice from the Controlling Class Representative, the Trustee shall deliver to each Noteholder, the Issuer, the Manager, the Back-Up Manager and the Servicer a notice setting forth the name and address of the new Controlling Class Representative.
(i)The Controlling Class Representative shall be entitled to receive from the Trustee, upon request, any memoranda delivered to the Trustee by the Back-Up Manager pursuant to the Back-Up Management Agreement; provided that it shall have first executed a confidentiality agreement, in form and substance satisfactory to the Manager, and such confidentiality agreement remains in effect. Any such memoranda shall be deemed to contain confidential information.
Section 11.2Resignation or Removal of the Controlling Class Representative. The Controlling Class Representative may at any time resign by giving written notice to the Trustee, the Servicer and to each Noteholder of the Controlling Class. As of any Record Date, a Majority of Controlling Class Members shall be entitled to remove any existing Controlling Class Representative by giving written notice to the Trustee, the Servicer and such existing Controlling Class Representative. No resignation or removal of the Controlling Class Representative will be effective until a successor Controlling Class Representative has been appointed pursuant to Section 11.1 or until the end of the CCR Election Period (or, if no CCR Election Period has occurred after a CCR Nomination Period, until the end of the related CCR Nomination Period) following such resignation or removal; provided that any Controlling Class Representative that has been removed pursuant to this Section 11.2 may subsequently be nominated as a CCR Candidate pursuant to Section 11.1 (provided that such Person satisfies the requirements of this Base Indenture) and appointed as Controlling Class Representative; provided, further, that an existing Controlling Class Representative will cease to be the Controlling Class Representative at the end of a CCR Election Period, even if no successor is re-elected pursuant to Section 11.1, unless such Controlling Class Representative is elected during such CCR Election Period (except that, if no CCR Nomination has been received by the Trustee and there is a Controlling Class Representative at such time, the Person serving as the Controlling Class Representative will be deemed re-elected and will continue to serve as the Controlling Class Representative). In addition to the foregoing, within two (2) Business Days of the selection, resignation or removal of the Controlling Class Representative, the Trustee shall notify the Servicer, the Back-Up Manager and the parties to this Base Indenture of such event.
Section 11.3Expenses and Liabilities of the Controlling Class Representative.
(a)The Controlling Class Representative shall have no liability to the Noteholders or Note Owners for any action or omission taken or made in good faith pursuant to the Indenture or for errors in judgment; provided that the Controlling Class Representative shall not be protected against any liability that would otherwise be imposed by reason of willful misfeasance, gross negligence or reckless disregard of its obligations or duties under the Indenture.
(b)Any and all expenses of the Controlling Class Representative shall be borne by the Controlling Class Members, pro rata according to their respective Outstanding Principal Amounts of Notes of the Controlling Class. Notwithstanding the foregoing, if a claim is made against the Controlling Class Representative in an action to which the Servicer or the Trustee are also named parties and, in the sole judgment of the Servicer, the Controlling Class Representative had acted in good faith, without gross negligence or willful misconduct, with regard to the subject of such claim, the Servicer on behalf of the Trustee shall be required to assume the defense (with any costs incurred in connection therewith being subject to a non-recoverability determination and being deemed to be reimbursable as a Collateral Protection Advance) of any such claim against the Controlling Class Representative, so long as there is no potential for the Servicer or the Trustee to be an adverse party in the same action as regards the Controlling Class Representative.
(c)Each Noteholder or Note Owner acknowledges and agrees, by its acceptance of its Notes or interests therein, that (i) the Controlling Class Representative may have special relationships and interests that conflict with those of Noteholders or Note Owners of one or more Classes of Notes, or that conflict with other Noteholders or Note Owners, (ii) the Controlling Class Representative may act solely in the interests of the Controlling Class Members or in its own interest, (iii) the Controlling Class Representative does not have any duties to Noteholders or Note Owners other than the Controlling Class Members, (iv) the Controlling Class Representative may take actions that favor the interests of the Controlling Class Members over the interests of Noteholders or Note Owners of one or more other Classes of Notes, or that favor its own interests over those of other Noteholders or Note Owners or other Controlling Class Members, (v) the Controlling Class Representative shall not be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance, by reason of its having acted solely in the interests of the Controlling Class Members or in its own interests, and (vi) the Controlling Class Representative shall have no liability whatsoever for having so acted pursuant to clauses (i) through (v), and no Note Owner or Noteholder may take any action whatsoever against the Controlling Class Representative for having so acted or against any director, officer, employee, agent or principal thereof for having so acted.
Section 11.4Control Party.
(a)Pursuant to the Indenture and the other Transaction Documents, the Control Party shall, subject to the Servicing Standard, approve or reject Consent Requests that do not require the consent of any Noteholder, including the Controlling Class Representative.
(b)For any Consent Request that expressly requires, pursuant to the terms of the Indenture or the other Transaction Documents, the consent, waiver or direction of the Controlling Class Representative, the Control Party shall review such Consent Request and shall formulate and present a Consent Recommendation to the Controlling Class Representative whether to approve or reject such Consent Request. The Control Party is not authorized to implement any such Consent Request until the Control Party receives the consent, waiver or direction of the Controlling Class Representative; provided that, subject to Section 6.3 of the Servicing Agreement, if the Controlling Class Representative fails to approve or reject a Consent Request within ten (10) Business Days after receipt of such Consent Request and the related Consent Recommendation, or if there is no Person acting as the Controlling Class Representative at such time, the Control Party shall approve or reject such Consent Request (other than with respect to the waiver of any Servicer Termination Events) in accordance with the Servicing Standard.
(c) For Consent Requests that expressly require the consent of affected Noteholders or 100% of the Noteholders pursuant to the terms of the Indenture or other Transaction Documents, the Control Party will review such Consent Request and will formulate and present a Consent Recommendation to the Trustee, which will forward such Consent Request and Consent Recommendation to the applicable Noteholders. The Control Party will be required to obtain the consent of the applicable Noteholders with respect to such Consent Request, as required under the Transaction Documents, to implement such Consent Requests.
(d)The Control Party shall promptly notify the Trustee, the Manager, the Back-Up Manager, the Issuer and the Controlling Class Representative if the Control Party determines, in
accordance with the Servicing Standard, not to implement a Consent Request or has not received the requisite consent of the Controlling Class Representative or the Noteholders, if applicable, to implement a Consent Request. The Trustee shall promptly notify the Control Party, the Manager, the Back-Up Manager, the Issuer and the Controlling Class Representative if the Trustee has not received the requisite consent of the required percentage of Noteholders to implement a Consent Request.
(e)Notwithstanding anything herein to the contrary, no advice, direction or objection from or by the Controlling Class Representative may (i) require or cause the Trustee or the Control Party to violate applicable Requirements of Law, the terms of this Indenture, the Notes, the Servicing Agreement or the other Transaction Documents, including, without limitation, with respect to the Control Party, the Control Party’s obligation to act in accordance with the Servicing Standard, (ii) expose the Control Party, the Servicer or the Trustee, or any of their respective Affiliates, officers, directors, members, managers, employees, agents or partners, to any material claim, suit or liability, or (iii) materially expand the scope of the Servicer’s or the Control Party’s responsibilities under the Servicing Agreement or the Trustee’s responsibility under this Indenture, the Notes and the other Transaction Documents or materially increase the scope of such parties’ responsibility under the applicable Transaction Documents. The Trustee and the Control Party will not be required to follow any such advice, direction or objection. In addition, notwithstanding anything herein or in the other Transaction Documents to the contrary, the Controlling Class Representative shall not be able to, after the occurrence and during the continuance of an Event of Default, prevent the Control Party from transferring the ownership of all or any portion of the Collateral (including by foreclosure on the Equity Interests of the Issuer) if any Advance by the Servicer is outstanding and the Control Party determines in accordance with the Servicing Standard that such transfer of ownership would be in the best interests of the Noteholders (taken as a whole).
(f)Notwithstanding anything herein to the contrary, any Consent Request affecting the rights of the Noteholders of any Class A-1 Notes will also require the consent of the applicable Class A-1 Administrative Agent.
Section 11.5Note Owner List.
(a)To facilitate communication among Note Owners, the Manager, the Trustee, the Control Party and the Controlling Class Representative, a Note Owner may elect, but is not required, to notify the Trustee of its name, address and other contact information, which will be kept in a register maintained by the Trustee.
(b)Any Note Owners holding beneficial interests of not less than $100,000,000 in aggregate principal amount of Notes that wish to communicate with the other Note Owners with respect to their rights hereunder or under the Notes may request in writing that the Trustee deliver a notice or communication to the other Note Owners through the Applicable Procedures of each Clearing Agency with respect to all Series of Notes Outstanding. If such a request is made and is accompanied by (i) a certificate substantially in the form of Exhibit J certifying that such Note Owners hold beneficial interests of not less than $100,000,000 in aggregate principal amount of Notes (each, a “Note Owner Certificate”) (upon which the Trustee may conclusively rely) and (ii) a copy of the communication which such Note Owners propose to transmit, then the Trustee, after having been adequately indemnified by such Note Owners for its costs and expenses, shall, within five (5) Business Days after receipt of the request, transmit the requested communication to the other Note Owners through the Applicable Procedures of each Clearing Agency with respect to all Series of Notes Outstanding and give the Issuer, the Servicer and the Controlling Class Representative notice that such request and transmission has been made. The Trustee shall have no obligation of any nature whatsoever with respect to any requested communication other than to transmit it in accordance with and subject to the terms hereof and to give notice of such request and transmission to the Issuer, the Servicer and the Controlling Class Representative.
ARTICLE XII
DISCHARGE OF INDENTURE
Seection 12.1Termination of the Issuer’s and Guarantors’ Obligations.
(a)Satisfaction and Discharge. The Indenture and the Guarantee and Collateral Agreement shall be discharged and cease to be of further effect when all Outstanding Notes theretofore authenticated and issued (or registered in the case of Uncertificated Notes), other than destroyed, lost or stolen Notes which have been replaced or paid, have been delivered to the Trustee for cancellation (or de-registration), the Issuer has paid all sums payable hereunder and under the Servicing Agreement and Back-Up Management Agreement, all commitments to extend credit under all Class A-1 Note Purchase Agreements have been terminated and all Series Hedge Agreements have been terminated and, in each case, all payments by the Issuer thereunder have been paid or otherwise provided for; except that (i) the Issuer’s obligations under Section 10.5 and the Guarantors’ guaranty thereof, (ii) the Trustee’s and the Paying Agent’s obligations under Sections 10.11, 12.2 and 12.3 and (iii) the Noteholders’ and the Trustee’s obligations under Section 14.13 shall survive.
Upon the termination of the last Series Supplement under which Notes are Outstanding, at the election of the Issuer, the Indenture, the Guarantee and Collateral Agreement and all other Indenture Documents shall be discharged and cease to be of further effect; except that (i) the Issuer’s obligations under Section 10.5 and the Guarantors’ guaranty thereof, (ii) the Trustee’s and the Paying Agent’s obligations under Sections 10.11, 12.2 and 12.3, and (iii) the Noteholders’ and the Trustee’s obligations under Section 14.13 shall survive.
The Trustee, on demand and at the expense of the Securitization Entities, shall execute proper instruments acknowledging confirmation of and discharge under the Indenture and the Guarantee and Collateral Agreement.
(b)Indenture Defeasance. The Issuer may terminate all of its obligations and all obligations of the Guarantors under the Indenture Documents and release all Collateral so long as:
(i)the Issuer irrevocably deposits in trust with the Trustee, or at the option of the Trustee with a trustee reasonably satisfactory to the Control Party, the Trustee and the Issuer under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, U.S. Dollars and/or Government Securities in an amount sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay (without consideration of any reinvestment) all principal, premiums, make-whole prepayment consideration, if any, interest on the Outstanding Notes (including additional interest that accrues after a Series Anticipated Repayment Date or Class A-1 Notes Renewal Date, if applicable) and Series Hedge Payment Amounts to the applicable prepayment date, redemption date or maturity date, as the case may be, and to pay all other sums payable by them under this Base Indenture, the Servicing Agreement, each other Transaction Document including any Series Hedge Agreement; provided that any Government Securities shall provide for the scheduled payment of all principal and interest thereon not later than the Business Day prior to the applicable prepayment date, redemption date or maturity date, as the case may be; and provided, further, that if (x) the deposit is held by a trustee of an irrevocable trust other than the Trustee, such trustee shall have been irrevocably instructed by the Issuer to pay such money or the proceeds of such Government Securities to the Trustee on or prior to the prepayment date, redemption date or maturity date, as applicable, and (y) the Trustee shall have been irrevocably instructed by the Issuer to apply such money or the proceeds of such Government Securities to the payment of principal, premiums, make-whole prepayment consideration and interest with respect to the Notes and such other sums;
(ii)all commitments under all Class A-1 Note Purchase Agreements have been terminated and all Series Hedge Agreements have been terminated, in each case, on or before the date of such deposit;
(iii)the Issuer delivers notice of such deposit to Noteholders not more than twenty (20) Business Days prior to the date of such deposit, and such notice is expressly stated to be, or as of the date of such deposit has become, irrevocable;
(iv)the Issuer delivers notice of such deposit to the Trustee, the Control Party, the Manager, the Back-Up Manager and each Rating Agency on or before the date of the deposit; and
(v)an Opinion of Counsel is delivered to the Trustee and the Servicer by the Issuer to the effect that all conditions precedent set forth herein with respect to such termination have been satisfied.
Upon satisfaction of such conditions, the Indenture, the Guarantee and Collateral Agreement and all other Indenture Documents shall cease to be of further effect; except that (i) the rights and obligations of the Trustee hereunder, including, without limitation, the Trustee’s rights to compensation and indemnity under Section 10.5, and the Guarantors’ guaranty thereof, (ii) the Trustee’s and the Paying Agent’s obligations under Sections 10.11, 12.2 and 12.3, (iii) the Noteholders’ and the Trustee’s obligations under Section 14.13, (iv) this Section 12.1(b) and (v) the Noteholders’ rights to registration of transfer and exchange under Section 2.8 and to replacement or substitution of mutilated, destroyed, lost or stolen Notes under Section 2.10(a) shall survive (or in each case, to de-registration and/or registration of Uncertificated Notes) in addition to any other provisions which by their express terms survive the termination thereof. The Trustee, on demand of the Securitization Entities, shall execute proper instruments acknowledging confirmation of and discharge under the Indenture and the Guarantee and Collateral Agreement.
(c)Series, Class, Subclass or Tranche Defeasance. Subject to the terms of each applicable Series Supplement, the Issuer, solely in connection with the payment in full (whether optional or mandatory) or a redemption in full of all Outstanding Notes of a particular Series, Class, Subclass or Tranche of Notes (the “Defeased Notes”) or in connection with the Series Legal Final Maturity Date of a particular Series of Notes, may terminate all Series Obligations with respect to such Series, Class, Subclass or Tranche of Notes (other than any provisions which by their express terms survive the termination thereof) and all Obligations of the Guarantors under the Indenture Documents in respect of such Series, Class, Subclass or Tranche of Notes as of any Business Day (the “Series Defeasance Date”) so long as:
(i)the Issuer irrevocably deposits in trust with the Trustee, or at the option of the Trustee with a trustee reasonably satisfactory to the Control Party, the Trustee and the Issuer under the terms of an irrevocable trust agreement in form and substance to the Trustee, U.S. Dollars and/or Government Securities in an amount sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay (without consideration of reinvestment) without duplication:
(1)all principal, premiums, make-whole prepayment consideration, commitment fees, administration expenses, Class A-1 Notes Other Amounts (if applicable), interest on the Defeased Notes (including additional interest that accrues after the applicable Series Anticipated Repayment Date or Class A-1 Notes Renewal Date, if applicable), Series Hedge Payment Amounts and any other Series Obligations that will be due and payable by the Issuer solely with respect to the Defeased Notes as of the applicable prepayment date, redemption date or Series Legal Final Maturity Date, as applicable, and to pay all other sums payable by them under this Base Indenture and each other Transaction Document (including each Series Hedge Agreement) with respect to the Defeased Notes;
(2)all Weekly Management Fees, Supplemental Management Fees, unreimbursed Advances (and outstanding interest thereon) and Manager Advances (and outstanding interest thereon), all fees, indemnities, reimbursements and expenses due to
the Trustee, the Manager, the Servicer and the Back-Up Manager, and all Successor Manager Transition Expenses and Successor Servicer Transition Expenses, in each case that will be due and payable as of the following Weekly Allocation Date or Quarterly Payment Date, as applicable; and
(3)all Securitization Operating Expenses, all Class A-1 Notes Administrative Expenses for the Defeased Notes, all Class A-1 Notes Interest Adjustment Amounts for the Defeased Notes and all Class A-1 Notes Other Amounts for the Defeased Notes, in each case, that are due and unpaid as of the Series Defeasance Date to the Actual Knowledge of the Manager;
provided, that any Government Securities shall provide for the scheduled payment of all principal and interest thereon not later than the Business Day prior to the applicable prepayment date, redemption date or Series Legal Final Maturity of the Defeased Notes, as the case may be; provided, further, that if (x) the deposit is held by a trustee of an irrevocable trust other than the Trustee, such trustee shall have been irrevocably instructed by the Issuer to pay such money or the proceeds of such Government Securities to the Trustee on or prior to the prepayment date, redemption date or Series Legal Final Maturity Date, as applicable, and (y) the Trustee shall have been irrevocably instructed by the Issuer to apply such money or the proceeds of such Government Securities to the payment of the Series Obligations with respect to the Defeased Notes and such other sums;
(ii)if applicable, all commitments under all Class A-1 Note Purchase Agreements and Series Hedge Agreements with respect to such Defeased Notes shall have been terminated on or before the Series Defeasance Date;
(iii)the Issuer delivers notice of prepayment, redemption or maturity of such Defeased Notes to the Noteholders of the Defeased Notes, the Manager, the Trustee, the Control Party, the Servicer, the Controlling Class Representative, the Back-Up Manager and each Rating Agency not more than twenty (20) Business Days prior to the Series Defeasance Date, and such notice is expressly stated to be, or as of the date of the deposit has become, irrevocable;
(iv)after giving effect to the deposit, if any other Series of Notes is Outstanding, the Issuer delivers to the Trustee an Officer’s Certificate of the Issuer stating that no Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default shall have occurred and be continuing on the date of such deposit;
(v)the Issuer delivers to the Trustee an Officer’s Certificate stating that the defeasance was not made by the Issuer with the intent of preferring the holders of the Defeased Notes over other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding other creditors;
(vi)the Issuer delivers notice of such deposit to the Control Party, the Manager, the Back-Up Manager and each Rating Agency on or before the date of the deposit;
(vii)such defeasance will not result in a breach or violation of, or constitute a default under, the Indenture or any other Indenture Documents; and
(viii)the Issuer delivers to the Trustee an Opinion of Counsel to the effect that all conditions precedent set forth herein with respect to such termination have been satisfied.
Upon satisfaction of such conditions, the Indenture, the Guarantee and Collateral Agreement and the other Indenture Documents shall cease to be of further effect with respect to such Defeased Notes (other than any provisions which by their express terms survive the termination thereof), the Issuer and the Guarantors shall be deemed to have paid and been discharged from their Series Obligations with respect to such Defeased Notes and thereafter such Defeased Notes shall be deemed to be “Outstanding” only for
purposes of (1) the Trustee’s and the Paying Agent’s obligations under Sections 12.2 and 12.3, (2) the Noteholders’ and the Trustee’s obligations under Section 14.13 and (3) the Noteholders’ rights to registration of transfer and exchange under Section 2.8 and to replacement or substitution of mutilated, destroyed, lost or stolen Notes under Section 2.10(a) (or in each case, to de-registration and/or registration of Uncertificated Notes). The Trustee, on demand of the Securitization Entities, shall execute proper instruments acknowledging confirmation of and discharge under the Indenture and the Guarantee and Collateral Agreement of such Series Obligations.
For the avoidance of doubt, upon the termination of a Series Supplement in accordance with the terms thereof, such Series of Notes shall be “Defeased Notes” and all Obligations with respect to such Series of Notes and all Obligations of the Guarantors under the Guarantee and Collateral Agreement in respect of such Series of Notes shall terminate and such date of termination shall be a “Series Defeasance Date.” Upon such termination of the applicable Series Supplement in accordance with its terms, the Indenture, the Guarantee and Collateral Agreement and the other Indenture Documents shall cease to be of further effect with respect to such Defeased Notes (other than any provisions which by their express terms survive the termination thereof), the Issuer and the Guarantors shall be deemed to have paid and been discharged from their Series Obligations with respect to such Defeased Notes and thereafter such Defeased Notes shall no longer be deemed Outstanding hereunder.
(d)After the conditions set forth in Section 12.1(a) have been met, or after the irrevocable deposit is made pursuant to Section 12.1(b) and satisfaction of the other conditions set forth therein have been met, the Trustee upon request of the Securitization Entities shall reassign (without recourse upon, or any warranty whatsoever by, the Trustee) and deliver all Collateral and documents then in the custody or possession of the Trustee promptly to the applicable Securitization Entities.
Section 12.2Application of Trust Money.
The Trustee or a trustee satisfactory to the Servicer, the Trustee and the Issuer shall hold in trust money or Government Securities deposited with it pursuant to Section 12.1. The Trustee shall apply the deposited money and the money from Government Securities through the Paying Agent in accordance with this Base Indenture and the other Transaction Documents to the payment of principal, premium, if any, and interest on the Notes and the other sums referred to above. The provisions of this Section 12.2 shall survive the expiration or earlier termination of the Indenture.
Section 12.3Repayment to the Issuer.
(a)The Trustee and the Paying Agent shall pay to the Issuer any excess money promptly (but in any event no later than five (5) Business Days following written request therefor) or, pursuant to Sections 2.10 and 2.14, return any cancelled Notes (or de-register such Notes) held by them at any time.
(b)Subject to Section 2.6(c), the Trustee and the Paying Agent shall pay to the Issuer (but in any event no later than five (5) Business Days following written request therefor) any money held by them for the payment of principal, premium or interest that remains unclaimed for two years after the date upon which such payment shall have become due.
(c)The provisions of this Section 12.3 shall survive the expiration or earlier termination of the Indenture.
Section 12.4Reinstatement.
If the Trustee is unable to apply any funds received under this Article XII by reason of any proceeding, order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under the Indenture and the other Indenture Documents and in respect of the Notes and the Guarantors’ obligations under the Guarantee and
Collateral Agreement shall be revived and reinstated as though no deposit had occurred, until such time as the Trustee is permitted to apply all such funds or property in accordance with this Article XII. If the Issuer or Guarantors make any payment of principal, premium or interest on any Notes or any other sums under the Indenture Documents while such obligations have been reinstated, the Issuer and the Guarantors shall be subrogated to the rights of the Noteholders or Note Owners or other Secured Parties who received such funds or property from the Trustee to receive such payment in respect of the Notes.
ARTICLE XIII
AMENDMENTS
Section 13.1 Without Consent of the Controlling Class Representative or the Noteholders.
ARTICLE XIIIWithout the consent of any Noteholder, the Control Party, the Controlling Class Representative or any other Secured Party, the Issuer and the Trustee, at any time and from time to time, may enter into one or more Supplements to this Base Indenture or amendments, modifications or supplements to any Supplement, the Guarantee and Collateral Agreement or any other Indenture Document, in form satisfactory to the Trustee (or solely with respect to clause (xiv) below, upon notice thereof from the Issuer to the Trustee and the Control Party), for any of the following purposes:
(i)to create a new Series of Notes in accordance with Section 2.2(b) or issue Additional Notes of an existing Series, Class, Subclass or Tranche of Notes and in connection therewith, and notwithstanding the Specified Payment Amendment Provisions (but solely with respect to such Series of Notes), to add or modify Events of Default, Rapid Amortization Events, Manager Termination Events to the extent that any such modifications render such events more restrictive from the perspective of the Securitization Entities;
(ii)to add to the covenants of the Securitization Entities for the benefit of any Noteholders or any other Secured Parties or to surrender for the benefit of the Noteholders and the other Secured Parties any right or power herein conferred upon the Securitization Entities;
(iii)to mortgage, pledge, convey, assign and transfer to the Trustee any property or assets as security for the Obligations and to specify the terms and conditions upon which such property or assets are to be held and dealt with by the Trustee and to set forth such other provisions in respect thereof as may be required by the Indenture or as may, consistent with provisions of this Base Indenture, be deemed appropriate by the Issuer, or to correct or to amplify the description of any such property or assets at any time so mortgaged, pledged, conveyed and transferred to the Trustee for the benefit of the Secured Parties;
(iv)to correct any manifest error or defect or to cure any ambiguity or to correct or supplement any provisions in this Base Indenture, any Series Supplement, any Notes, the Guarantee and Collateral Agreement or any other Indenture Document to which the Trustee is a party which may be inconsistent with any other provision therein or with any Offering Memorandum;
(v)to provide or supplement the provisions hereof in respect of Uncertificated Notes in addition to certificated Notes;
(vi)to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Notes of one or more Series and to add to or change any of the provisions of the Indenture or the Guarantee and Collateral Agreement as will be necessary to provide for or facilitate the administration of the trusts hereunder or thereunder by more than one Trustee;
(vii)to correct or supplement any provision of this Base Indenture, the Guarantee and Collateral Agreement, any Supplement or any other Indenture Document that may
be inconsistent with any other provision in this Base Indenture, the Guarantee and Collateral Agreement, any Supplement or any other Indenture Document to which the Trustee is a party; or to make this Base Indenture, the Guarantee and Collateral Agreement, any Supplement or any other Indenture Document consistent with any other provisions with respect to matters set forth in this Base Indenture, any Supplement, the Guarantee and Collateral Agreement, any other Indenture Document or with any offering memorandum for a Series of Notes;
(viii)to comply with Requirements of Law (as evidenced by an Opinion of Counsel);
(ix)to facilitate the transfer of Notes in accordance with applicable Requirements of Law (as evidenced by an Opinion of Counsel);
(x)to take any action necessary or helpful to avoid the imposition, under and in accordance with applicable Requirements of Law, of any Tax, including withholding Tax;
(xi)to allow any assets to be contributed to, or acquired by, any Securitization Entity in a manner that does not violate the Managing Standard and to provide for any applicable provisions with respect thereto; including for the application of refranchising asset disposition proceeds, insurance/condemnation proceeds and other proceeds thereof in accordance with the Priority of Payments;
(xii)to take any action necessary and appropriate to facilitate the origination of Franchise Documents or other Managed Assets or the management and preservation of the Franchise Documents or other Managed Assets, in each case, in accordance with the Managing Standard;
(xiii)to provide for mechanical provisions in respect of the issuance of Senior Subordinated Notes or Subordinated Notes;
(xiv)to amend the definition of “Quarterly Fiscal Period” to conform to any change to the Parent’s (or Manager’s if separate financial statements of the Manager are required to be delivered) quarterly fiscal periods or fiscal year end at any time following the Closing Date (to the extent such amendment is in accordance with the Managing Standard), together with corresponding operational or ministerial changes to the mechanics relating to other time periods in connection therewith;
(xv)to add provisions in respect of hedging and enhancement mechanics;
(xvi)in the case of any Class A-1 Note Purchase Agreement, to amend, modify, supplement or waive any of the terms thereof, pursuant to the terms of such agreement;
(xvii)to amend the terms of any Series Supplement or Class A-1 Note Purchase Agreement in connection with the implementation of a successor rate to LIBOR pursuant to the terms of such Series Supplement or Class A-1 Note Purchase Agreement;
(xviii)to amend, amend and restate or otherwise modify any Indenture Document in connection with a Series Refinancing Event; provided that such modifications shall take effect simultaneously with or following such payment in full, satisfaction and discharge or defeasance; provided further, that no such amendment shall adversely affect the rights of the Trustee without the prior written consent of the Trustee;
(xix)to enable the addition of international collateral, international franchise revenue and accounts denominated in non-U.S. currencies; provided, that, the related jurisdiction shall not be subject to, or the target of, any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control and the U.S. Department of State, or by the EU;
(xx)relating to a Series of Class A-1 Notes (regardless of whether such amendment, modification or waiver would have the effect of modifying cash flows allocated pursuant to the Priority of Payments or otherwise affect any other Class or Series of Notes) will be permitted with the consent of the Noteholders required therefor pursuant to the related Class A-1 Note Purchase Agreements (but without the consent of any other Person); provided, however no such amendment may adversely affect the Trustee without the Trustee’s prior consent, the Back-Up Manager without the Back-Up Manager’s prior consent or the Servicer without the Servicer’s prior consent; provided, further, that no such amendment may change the text of the provisions of the Priority of Payments or Section 5.10; or
(xxi) (A) subject to either the satisfaction of the Rating Agency Condition or the consent of a Majority of Controlling Class Members, to remove the requirement of the Servicer and the Trustee to make Advances, and (B) to modify the Indenture, any Series Supplement, any other Transaction Document or any Notes to effect any changes required by the applicable Rating Agency in order for such Rating Agency Condition to be satisfied or by the Majority of Controlling Class Members in order for such consent to be provided, as applicable, in each case with the consent of any party whose obligations or liabilities are materially increased thereby;
provided that, (i) other than in the case of any Supplement pursuant to clause (xiv), (xviii) or (xxi) above, as evidenced by an Officer’s Certificate delivered to the Trustee and the Servicer, such action could not reasonably be expected to adversely affect in any material respect the interests of any Noteholder, any Note Owner, the Trustee, the Servicer, the Back-Up Manager or any other Secured Party and (ii) the foregoing shall not apply to amendments and replacements of Interest Reserve Letters of Credit and other Letters of Credit issued under any Class A-1 Note Purchase Agreement.
In addition to the foregoing, without the consent of any Noteholder, the Control Party, the Controlling Class Representative or any other Secured Party, the Issuer (acting at the direction of the Manager) and the Trustee, at any time and from time to time, may enter into one or more Supplements hereto to amend the Priority of Payments in order to provide for supplemental scheduled payments of principal of one or more Series of Notes and/or the reallocation of a specified percentage of cash flow to pay principal of any then-Outstanding Series of Notes and/or one or more additional Series of Notes upon the occurrence of specified trigger events to be set forth in the related Series Supplement subject to satisfaction of the Rating Agency Condition with respect to each Series of Notes that will remain Outstanding and the other conditions applicable thereto set forth in Sections 13.3, 13.6 and 13.7 of this Base Indenture; provided, that no such amendment shall adversely affect the rights or obligations of the Trustee, the Back-Up Manager, the Servicer or the Noteholders of each Series of Class A-1 Notes without the prior written consent of the Trustee, the Back-Up Manager, the Servicer, or the Noteholders of each such Series of Class A-1 Notes, respectively (which, in the case of the Noteholders of each Series of Class A-1 Notes will be given by the Class A-1 Administrative Agent acting with the consent of each Noteholder of the Class A-1 Commitments); provided, further, that any amendment to the Priority of Payments that is senior to or pari passu with any amount payable to the Noteholders of each Series of Class A-1 Notes or any Class A-1 Administrative Agent shall be deemed to adversely affect the rights of the Noteholders of each such Series of Class A-1 Notes for purposes of the immediately preceding proviso.
In addition, on and after the 2022 Springing Amendments Implementation Date, notwithstanding anything to the contrary in the Transaction Documents, the Base Indenture, the Management Agreement, the Servicing Agreement, the Back-Up Management Agreement and the other Transaction Documents may be amended, amended and restated, supplemented or otherwise modified by the parties thereto or the applicable Securitization Entities, the Manager, the Trustee and any other applicable party may enter into new Transaction Documents without the consent of the Control Party, the Trustee, the Servicer or the Back-Up Manager (except to the extent that such amendment, restatement, supplement, modification or new Transaction Document impacts the rights, indemnities, protections, remedies, liabilities, duties and/or obligations of the Control Party, the Trustee, the Servicer or the Back-Up Manager, in which case the
consent of the Control Party, the Trustee, the Servicer or the Back-Up Manager, as applicable, will be required (x) to the extent that the Control Party, the Trustee, the Servicer or the Back-Up Manager, as applicable, will continue to act as Control Party, Trustee, Servicer or Back-Up Manager, as applicable, or (y) to the extent any surviving rights, indemnities, protections, remedies, liabilities, duties and/or obligations of the Control Party, Servicer or Back-Up Manager not continuing to act in such capacity are adversely affected, in each case, following the execution of any such amendment, restatement, supplement, modification or new Transaction Document), the Controlling Class Representative, or any Noteholder, for the purpose of modifying, replacing or subdividing the role of the Servicer, the Back-Up Manager, the Control Party or the Controlling Class Representative; provided that a Rating Agency Confirmation will be required for any change in respect of any of such parties’ obligation(s) to make Advances (or, with respect to any Notes rated by KBRA, satisfaction of the Rating Agency Condition with respect to KBRA, and receipt of a Rating Agency Confirmation from at least one other Rating Agency rating such Notes if KBRA is not the sole Rating Agency rating such Notes).
(a)Upon the request of the Issuer and receipt by the Control Party and the Trustee of the documents described in Section 2.2 and delivery by the Control Party of its consent thereto to the extent required by Section 2.2, the Trustee shall join with the Issuer in the execution of any Series Supplement authorized or permitted by the terms of this Base Indenture and shall make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into such Series Supplement which affects its own rights, duties or immunities under this Base Indenture or otherwise.
(b)A copy of each amendment or other modification pursuant to this Section 13.1 shall be delivered by the Issuer (or the Manager on its behalf) to any party to the applicable amended document, the Trustee and the Control Party.
(c)A copy of each amendment or other modification pursuant to this Section 13.1 shall be delivered by the Issuer (or the Manager on its behalf) to each Class A-1 Administrative Agent.
Section 13.2 With Consent of the Controlling Class Representative or the Noteholders.
(a)In addition to any amendments, modifications and waivers permitted under Section 13.1, the provisions of this Base Indenture, the Guarantee and Collateral Agreement, any Supplement and any other Indenture Document to which the Trustee is a party may from time to time be amended, modified or waived if such amendment, modification or waiver is in writing in a Supplement with the written consent of the Control Party (at the direction of the Controlling Class Representative); provided that (except with respect to amendments, modifications and waivers described in Section 13.1 that do not expressly require the consent of any Noteholder or other affected Secured Party):
(i)any amendment, waiver or other modification pursuant to this Section 13.2 that would reduce the percentage of the Aggregate Outstanding Principal Amount or the Outstanding Principal Amount of any Series of Notes that is required to (a) consent to amend, modify or waive the provisions of any Supplement under this Section 13.2 or (b) waive compliance with the provisions of the Indenture or any other Indenture Documents or the occurrence of defaults hereunder or thereunder or the exercise of remedies in respect thereof shall require the consent of each affected Noteholder;
(ii)any amendment, waiver or other modification pursuant to this Section 13.2 that would permit the creation of any Lien ranking prior to or on a parity with the Lien created by the Indenture, the Guarantee and Collateral Agreement or any other Transaction Document with respect to any material portion of the Collateral (except as otherwise permitted by the Transaction Documents), terminate the Lien created by the Indenture, the Guarantee and Collateral Agreement or any other Transaction Document on any material portion of the Collateral at any time subject thereto or deprive any Secured Party of any material portion of the security provided by the Lien created by the Indenture, the Guarantee and Collateral Agreement or any other Transaction Document shall require the consent of each affected Noteholder and each other affected Secured Party;
(iii)any amendment, waiver or other modification pursuant to this Section 13.2 that would (A) extend the due date for, or reduce the amount of any scheduled repayment or prepayment of principal of, premium, if any, or interest on any Note or any other Obligations (or reduce the principal amount of, premium, if any, or rate of interest on any Note or any other Obligations); (B) affect adversely the interests, rights or obligations of any Noteholder individually in comparison to any other Noteholder; (C) change the provisions of the Priority of Payments (other than in accordance with the last paragraph of Section 13.1(a)); (D) change any place of payment where, or the coin or currency in which, any Notes and the other Obligations or the interest thereon is payable; (E) impair the right to institute suit for the enforcement of the provisions of the Indenture requiring the application of funds available therefor, as provided in Article V, to the payment of any such amount due on the Notes and the other Obligations owing to Noteholders on or after the respective due dates thereof, (F) subject to the ability of the Control Party, acting independently or at the direction of the Controlling Class Representative, to waive certain events or modify thresholds as set forth in the Indenture Documents (including pursuant to Section 9.7 and including an increase or decrease of the threshold amount of Wingstop System-Wide Sales set forth in clause (e) of the definition of Rapid Amortization Event, which is subject to increase or decrease at the request of the Issuer, subject to approval by the Control Party and satisfaction of the Rating Agency Condition), amend or otherwise modify any of the specific language of the following definitions: “Default”, “Event of Default”, “Potential Rapid Amortization Event”, Rapid Amortization Event” or “Outstanding”; provided that the addition to any such definitions of additional such events, and the subsequent amendment thereof, shall not be deemed to violate this provision, or (G) amend, waive or otherwise modify this Section 13.2, in each case, shall require the consent of each affected Noteholder and each other affected Secured Party (this clause (iii) the “Specified Payment Amendment Provisions”); and
(iv)any amendment, waiver or other modification pursuant to this Section 13.2 that would change the time periods with respect to any requirement to deliver to Noteholders notice with respect to any repayment, prepayment or redemption shall require the consent of each affected Noteholder.
(b)Without limitation of the other conditions to an amendment, waiver or other modification to the Indenture, the Notes or the Guarantee and Collateral Agreement pursuant to this Section 13.2, any amendment, waiver or other modification to the Indenture, the Notes or the Guarantee and Collateral Agreement that could reasonably be expected to adversely affect the rights of the Holders of the Class A-1 Notes of any Series of Class A-1 Notes Outstanding shall require the consent of the related Class A-1 Administrative Agent.
(c)No failure or delay on the part of any Noteholder, the Trustee or any other Secured Party in exercising any power or right under the Indenture or any other Transaction Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right.
(d)The express requirement, in any provision hereof, that the Rating Agency Condition be satisfied as a condition to the taking of a specified action shall not be amended, modified or waived by the parties hereto without satisfying the Rating Agency Condition.
(e)A copy of each amendment or other modification pursuant to this Section 13.2 shall be delivered by the Issuer (or the Manager on its behalf) to any party to the applicable amended document, the Trustee and the Control Party.
(f)A copy of each amendment or other modification pursuant to this Section 13.2 shall be delivered by the Issuer (or the Manager on its behalf) to each Class A-1 Administrative Agent.
(g)Notwithstanding anything to the contrary herein, in addition to any amendment, modification or waiver effected in accordance with the provisions of Section 13.1 or Section 13.2(a), amendments, modifications and waivers to the DSCR, its constituent definitions and the DSCR thresholds set forth in any Indenture Document may be made with the consent of the Control Party (at the direction of the Controlling Class Representative).
Section 13.3 Supplements.
Each amendment or other modification to the Indenture, the Notes or the Guarantee and Collateral Agreement shall be set forth in a Supplement, a copy of which shall be delivered to each Rating Agency, the Servicer, the Controlling Class Representative, the Manager, the Back-Up Manager and the Issuer. The Issuer shall provide written notice to each Rating Agency of any amendment or modification to the Indenture, the Notes or the Guarantee and Collateral Agreement no less than ten (10) days prior to the effectiveness of the related Supplement, except in connection with the issuance of Additional Notes that will be rated by such Rating Agency; provided that such Supplement need not be in final form at the time such notice is given. The initial effectiveness of each Supplement shall be subject to the delivery to the Servicer and the Trustee of an Opinion of Counsel that such Supplement is authorized or permitted by this Base Indenture and the conditions precedent set forth herein with respect thereto have been satisfied. In addition to the manner provided in Sections 13.1 and 13.2, each Series Supplement may be amended as provided in such Series Supplement.
Section 13.4 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a Noteholder of a Note is a continuing consent by the Noteholder and every subsequent Noteholder of a Note or portion of a Note that evidences the same debt as the consenting Noteholder’s Note, even if notation of the consent is not made on any Note. Any such Noteholder or subsequent Noteholder, however, may revoke the consent as to their Note or portion of a Note if the Trustee receives written notice of revocation before the date the amendment or waiver becomes effective. An amendment or waiver becomes effective in accordance with its terms and thereafter binds every Noteholder. The Issuer may fix a record date for determining which Noteholders must consent to such amendment or waiver.
Section 13.5 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment or waiver on any Note thereafter authenticated. The Issuer, in exchange for all Notes, may issue and the Trustee shall authenticate new Notes that reflect the amendment or waiver. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment or waiver.
Section 13.6 The Trustee to Sign Amendments, etc.
The Trustee shall sign any Supplement or amendment authorized pursuant to this Article XIII if the Supplement or amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing such Supplement or amendment, the Trustee shall be entitled to receive, if requested, an indemnity reasonably satisfactory to it and to receive, and, subject to Section 10.1, shall be fully protected in relying upon, an Officer’s Certificate of the Issuer and an Opinion of Counsel as conclusive evidence that such Supplement or amendment is authorized or permitted by this Base Indenture and that all conditions precedent have been satisfied, and that it will be valid and binding upon the Issuer and the Guarantors in accordance with its terms.
Section 13.7 Amendments and Fees.
The Issuer, the Control Party and/or the Controlling Class Representative shall negotiate any amendments, waivers or modifications to the Indenture or the other Transaction Documents that require the consent of the Control Party or the Controlling Class Representative in good faith, and any consent required to be given by the Control Party or the Controlling Class Representative shall not be unreasonably denied or delayed. The Control Party shall be entitled to compensation or reimbursement in connection with any amendments or consents to this Base Indenture or to any Transaction Document as provided for in Section 4.1(b) of the Servicing Agreement.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices.
ARTICLE XIVAny notice or communication by the Issuer, the Manager or the Trustee to any other party hereto shall be in writing and delivered in person, delivered by e-mail (provided that any e-mail notice to the Trustee shall be in the form of an attachment of a .pdf or similar file), posted on a password protected website for which the recipient has granted access or mailed by first-class mail (registered or certified, return receipt requested) or overnight air courier guaranteeing next day delivery, to such other party’s address:
If to the Issuer:
Wingstop Inc.
2801 N Central Expy, Ste 1600
Wingstop Inc.
5501 LBJ Freeway, 5th Floor
Dallas, Texas 7524075204
Attention: Gerry McGrath, General Counsel
Email: gmcgrath@wingstop.com
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
Attention: Jordan Yarett
Email: jyarett@paulweiss.com
If to the Manager:
Wingstop Inc.
2801 N Central Expy, Ste 1600
Wingstop Inc.
5501 LBJ Freeway, 5th Floor
Dallas, Texas 7524075204
Attention: Gerry McGrath, General Counsel
Email: gmcgrath@wingstop.com
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
Attention: Jordan YarettCharles Pesant
Email: jyarettcpesant@paulweiss.com
If to the Back-Up Manager:
FTI Consulting, Inc.
11661168 Avenue of the Americas, 15th Floor
New York, NY 10036
Attention: Back-Up Manager c/o Robert J. Darefsky Michael Baumkirchner
E-mail: backupmanager@fticonsulting.com and
michael.baumkirchner@fticonsulting.com
and
FTI Consulting, Inc.
1500 Walnut Street, Suite 1515
Philadelphia, PA 19102
Attention: Back-Up Manager c/o Edmund Tedeschi
Facsimile: 212-841-9350
If to the Servicer:
Midland Loan Services,
a division of PNC Bank, National Association
10851 Mastin Street
Building 82, Suite 700
Overland Park, Kansas 66210
Attention: President
E-mail: Carrie.doctor-hartman@pnc.com
If to the Trustee:
Citibank, N.A.
388 Greenwich Street
New York, New York 10013
Attention: Agency & Trust–Wingstop Funding LLC
E-mail: anthony.bausa@citi.com or
call (888) 855-9695 to obtain the Citibank, N.A. account manager’s email address
If to any Rating Agency:
To the address set forth in the applicable Series Supplement
If to any Hedge Counterparty:
To the address provided in the applicable Series Hedge Agreement
(a)The Issuer or the Trustee by notice to each other party may designate additional or different addresses for subsequent notices or communications; provided that the Issuer may not at any time designate more than a total of three (3) addresses to which notices must be sent in order to be effective.
(b)Any notice (i) given in person shall be deemed delivered on the date of delivery of such notice, (ii) given by first-class mail shall be deemed given five (5) days after the date that such notice is mailed, (iii) delivered by overnight air courier shall be deemed delivered one (1) Business Day after the date that such notice is delivered to such overnight courier, (iv) when posted on a password-
protected internet website shall be deemed delivered after notice of such posting has been provided to the recipient and (v) delivered by e-mail shall be deemed delivered on the date of delivery of such notice.
(c)Notwithstanding any provisions of the Indenture to the contrary, the Trustee shall have no liability based upon or arising from the failure to receive any notice required by or relating to the Indenture, the Notes or any other Transaction Document.
(d)If the Issuer delivers a notice or communication to Noteholders, it shall deliver a copy to the Back-Up Manager, the Servicer, the Controlling Class Representative and the Trustee at the same time.
(e)Where the Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if sent in writing and mailed, first-class postage prepaid, to each Noteholder affected by such event, at its address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed (if any) for the giving of such notice. In any case where notice to a Noteholder is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given. Where the Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In the case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made that is satisfactory to the Trustee shall constitute a sufficient notification for every purpose hereunder.
(f)Notwithstanding any other provision herein, for so long as WRI is the Manager, any notice, communication, certificate, report, statement or other information required to be delivered by the Manager to the Issuer, or by the Issuer to the Manager, shall be deemed to have been delivered to both the Issuer and the Manager if the Manager has prepared or is otherwise in possession of such notice, communication, certificate, report, statement or other information, and in no event shall the Manager or the Issuer be in breach of any delivery requirements hereunder for constructive delivery pursuant to this Section 14.1(g).
(g)The Issuer shall provide to each Rating Agency a copy of each Opinion of Counsel and Officer’s Certificate delivered to the Trustee pursuant to any Transaction Document.
(h)Reasonably concurrently with the time any report, notice or other document is provided to each Rating Agency and/or the Trustee, or caused to be provided, by the Issuer or the Manager under this Base Indenture (including, without limitation, under Section 8.8, Section 8.9 or Section 8.11) or under the related Series Supplement, the Issuer shall provide each Class A-1 Administrative Agent with a copy of such report, notice or other document; provided, however, that neither the Manager nor the Issuer shall have any obligation under this Section 14.1(i) to deliver to any Class A-1 Administrative Agent copies of any Quarterly Noteholders’ Reports that relate solely to a Series of Notes other than such Series under which the related Class A-1 Notes were issued; provided, further, that this Section 14.1(i) shall not apply in connection with a Series Refinancing Event to a Class A-1 Administrative Agent for any Class A-1 Notes issued in connection therewith.
Section 14.2 Communication by Noteholders With Other Noteholders.
Noteholders may communicate with other Noteholders with respect to their rights under the Indenture or the Notes.
Section 14.3 Officer’s Certificate as to Conditions Precedent.
Upon any request or application by the Issuer to the Controlling Class Representative, the Servicer or the Trustee to take any action under the Indenture or any other Transaction Document, the Issuer to the extent requested by the Controlling Class Representative, the Servicer or the Trustee shall furnish to the Controlling Class Representative, the Servicer and the Trustee (a) an Officer’s Certificate of the Issuer in form and substance reasonably satisfactory to the Controlling Class Representative, the Servicer or the Trustee, as applicable (which shall include the statements set forth in Section 14.4), stating that all conditions precedent and covenants, if any, provided for in the Indenture or such other Transaction Documents relating to the proposed action have been complied with and (b) an Opinion of Counsel confirming the same. Such Opinion of Counsel shall be at the expense of the Issuer.
Section 14.4 Statements Required in Certificate.
Each certificate with respect to compliance with a condition or covenant provided for in the Indenture or any other Transaction Document shall include:
(a)a statement that the Person giving such certificate has read such covenant or condition;
(b)a brief statement as to the nature and scope of the examination or investigation upon which the statements contained in such certificate are based;
(c)a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to reach an informed opinion as to whether or not such covenant or condition has been complied with; and
(d)a statement as to whether or not such condition or covenant has been complied with.
Section 14.5 Rules by the Trustee.
The Trustee may make reasonable rules for action by or at a meeting of Noteholders.
Section 14.6 Benefits of Indenture.
Except as set forth in a Series Supplement, nothing in this Base Indenture or in the Notes, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders and the other Secured Parties, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 14.7 Payment on Business Day.
In any case where any Quarterly Payment Date, redemption date or maturity date of any Note shall not be a Business Day, then (notwithstanding any other provision of the Indenture) payment of interest or principal (and premium, if any), as the case may be, need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on the Quarterly Payment Date, redemption date or maturity date; provided, however, that no interest shall accrue for the period from and after such Quarterly Payment Date, redemption date or maturity date, as the case may be.
Section 14.8 Governing Law.
THIS BASE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section 14.9 Successors.
All agreements of the Issuer in the Indenture, the Notes and each other Transaction Document to which it is a party shall bind its successors and assigns; provided, however, that the Issuer may not assign its obligations or rights under the Indenture or any other Transaction Document, except with the written consent of the Control Party. All agreements of the Trustee in the Indenture shall bind its successors.
Section 14.10 Severability.
In case any provision in the Indenture, the Notes or any other Transaction Document shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 14.11 Counterpart Originals.
The parties may sign any number of copies of this Base Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 14.12 Table of Contents, Headings, etc.
The Table of Contents and headings of the Articles and Sections of the Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 14.13 No Bankruptcy Petition Against the Securitization Entities.
Each of the Noteholders, the Trustee and the other Secured Parties hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity any Insolvency proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, however, that nothing in this Section 14.13 shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Securitization Entities pursuant to the Indenture or any other Transaction Document. In the event that any such Noteholder or other Secured Party or the Trustee takes action in violation of this Section 14.13, each affected Securitization Entity shall file or cause to be filed an answer with the bankruptcy court or otherwise properly contesting the filing of such a petition by any such Noteholder or Secured Party or the Trustee against such Securitization Entity or the commencement of such action and raising the defense that such Noteholder or other Secured Party or the Trustee has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as its counsel advises that it may assert. The provisions of this Section 14.13 shall survive the termination of the Indenture and the resignation or removal of the Trustee. Nothing contained herein shall preclude participation by any Noteholder or any other Secured Party or the Trustee in the assertion or defense of its claims in any such proceeding involving any Securitization Entity.
Section 14.14 Recording of Indenture.
If the Indenture is subject to recording in any appropriate public recording offices, such recording is to be effected by the Issuer and at its expense.
Section 14.15 Waiver of Jury Trial.
EACH OF THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS BASE INDENTURE, THE NOTES, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
Section 14.16 Submission to Jurisdiction; Waivers.
Each of the Issuer and the Trustee hereby irrevocably and unconditionally:
(a)submits for itself and its property in any legal action or proceeding relating to the Indenture and the other Transaction Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of New York, sitting in New York County, the courts of the United States for the Southern District of New York, and appellate courts from any thereof;
(b)consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c)agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the Issuer or the Trustee, as the case may be, at its address set forth in Section 14.1 or at such other address of which the Trustee shall have been notified pursuant thereto;
(d)agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and
(e)waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 14.16 any special, exemplary, punitive or consequential damages.
Section 14.17 Calculation of Holdco Leverage Ratio and Senior Leverage Ratio.
(a)Holdco Leverage Ratio.
(i)In the event that the Wingstop Entities incur, repay, repurchase or redeem any Indebtedness subsequent to the commencement of the period for which the Holdco Leverage Ratio is being calculated, then the Holdco Leverage Ratio shall be calculated giving pro forma effect to such incurrence, repayment, repurchase or redemption of Indebtedness, as if the same had occurred at the beginning of the applicable preceding four Quarterly Fiscal Periods (including in the case of any incurrence or issuance, a pro forma application of the net proceeds therefrom); provided that the Manager may elect pursuant to an Officer’s Certificate delivered to the Trustee and the Control Party (with respect to which the Trustee and the Control Party shall have no obligation of any nature whatsoever) to treat all or any portion of the commitment in respect of any Indebtedness (including all or a portion of the commitments under any acquisition debt financing commitment arrangement (including customary bridge-to-bond or bridge-to-securitization commitments) with respect to Indebtedness not yet incurred, for all purposes of this Section 14.1(a) and the Transaction Documents) as being incurred at such time, in which case any subsequent incurrence of Indebtedness under such commitment shall not be deemed, for purposes of this calculation, to be an incurrence at such subsequent time.
(ii)For purposes of making the computation of the Holdco Leverage Ratio (including, without limitation, the calculation of Adjusted EBITDA used therein), investments, acquisitions, dispositions, refranchising transactions, mergers, amalgamations, consolidations and discontinued operations (as determined in accordance with GAAP) and any operational changes, business realignment projects or strategic initiatives, intellectual property development, lease buyouts or early terminations, transition and integration of operations, moving of any headquarters or corporate office, any refranchising, store closures (including annualized cost savings and projected cost savings associated with stores designated for closure plus related field expense savings), operating improvements and cost saving initiatives (including headcount reductions), restructurings, reorganizations and other similar initiatives and transactions (collectively, “Specified Actions”) that any of the Wingstop Entities has either determined to make or made during the preceding four Quarterly Fiscal Periods or subsequent to such preceding four Quarterly Fiscal Periods and on or prior to or simultaneously with or subsequent to the event for which the calculation of the Holdco Leverage Ratio is made (each, for purposes of the calculations described in this Section 14.17(a), a “pro forma event”) shall, at the discretion of the Manager, be calculated on a pro forma basis assuming that all such Specified Actions (and the change in Adjusted EBITDA resulting therefrom) had occurred on the first day of such preceding four Quarterly Fiscal Periods. If since the beginning of such period any Person that subsequently became a Wingstop Entity since the beginning of such preceding four Quarterly Fiscal Periods shall have made any Specified Action that would have required adjustment pursuant to this definition, then the Holdco Leverage Ratio shall, at the discretion of the Manager, be calculated giving pro forma effect thereto for such period as if such Specified Action had occurred at the beginning of the applicable preceding four Quarterly Fiscal Periods.
For the avoidance of doubt, when calculating the Holdco Leverage Ratio in connection any commitment in respect of any Indebtedness relating to an acquisition, the Holdco Leverage Ratio shall, at the discretion of the Manager, be calculated on a pro forma basis giving effect to such acquisition and the other transactions to be entered into in connection therewith (including such incurrence of Indebtedness and the use of proceeds therefrom) as if they occurred at the beginning of the period of four (4) consecutive Quarterly Fiscal Periods most recently ended as of such date of determination; provided that (x) the Holdco Leverage Ratio shall not be tested again at the time of the consummation of such acquisition or related transactions and (y) any such transaction shall be deemed to have occurred on the date the definitive agreements are entered into for purposes of subsequently calculating the Holdco Leverage Ratio after the date of such agreement and before the consummation of such acquisition.
(iii)For purposes of this Section 14.17(a), whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Manager. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of the Manager as set forth in an Officer’s Certificate delivered to the Trustee and the Control Party (with respect to which the Trustee and the Control Party shall have no obligation of any nature whatsoever) to reflect (1) excess owner compensation, reasonably estimated, expected or actual cost savings (including, without limitation, “run rate” cost savings), operating improvements, operating expense reductions, synergies, integration costs and expenses and other pro forma adjustments, in each case reasonably expected to result from the applicable pro forma event and (2) all adjustments of the nature used in connection with the calculation of “Adjusted EBITDA” as set forth in the definition thereof, to the extent such adjustments, without duplication, continue to be applicable to such preceding four Quarterly Fiscal Periods.
(b)Senior Leverage Ratio.
(i)In the event that the Securitization Entities incur, repay, repurchase or redeem any Senior Notes subsequent to the commencement of the period for which the Senior Leverage Ratio is being calculated, then the Senior Leverage Ratio shall be calculated giving pro forma effect to such incurrence, repayment, repurchase or redemption of Senior Notes, as if the same had occurred at the beginning of the applicable preceding four Quarterly Fiscal Periods (including in the case of any incurrence or issuance, a pro forma application of the net proceeds therefrom); provided that the Manager may elect pursuant to an Officer’s Certificate delivered to the Trustee and the Control Party (with respect to which the Trustee and the Control Party shall have no obligation of any nature whatsoever) to treat all or any portion of the commitment in respect of any Senior Notes (including all or a portion of the commitments under any acquisition debt financing commitment arrangement (including customary bridge-to-bond or bridge-to-securitization commitments) with respect to Senior Notes not yet issued, and the term “incur” and derivations thereof shall include the obtaining of any such commitment for such financing and any replacement or refinancing thereof for purposes of this Section 14.17(b) and the Transaction Documents) as being incurred at such time, in which case any subsequent issuance of Senior Notes under such commitment shall not be deemed, for purposes of this calculation, to be an incurrence at such subsequent time.
(ii)For purposes of making the computation of the Senior Leverage Ratio (including, without limitation, the calculation of Net Cash Flow used therein), Specified Actions that any of the Securitization Entities has either determined to make or made during the preceding four Quarterly Fiscal Periods or subsequent to such preceding four Quarterly Fiscal Periods (each, for purposes of the calculations described in this Section 14.17(b), a “pro forma event”) shall, at the discretion of the Manager, be calculated on a pro forma basis assuming that all such Specified Actions (and the change in Net Cash Flow resulting therefrom) had occurred on the first day of such preceding four Quarterly Fiscal Periods. If since the beginning of such period any Person that subsequently became a Securitization Entity since the beginning of such preceding four Quarterly Fiscal Periods shall have made any Specified Action that would have required adjustment pursuant to this Section 14.17(b), then the Senior Leverage Ratio shall, at the discretion of the Manager, be calculated giving pro forma effect thereto for such period as if such Specified Action had occurred at the beginning of the applicable preceding four Quarterly Fiscal Periods.
For the avoidance of doubt, when calculating the Senior Leverage Ratio in connection with any commitment in respect of any Senior Notes relating to an acquisition, the Senior Leverage Ratio shall, at the discretion of the Manager, be calculated on a pro forma basis giving effect to such acquisition and the other transactions to be entered into in connection therewith (including such incurrence of Senior Notes and the use of proceeds therefrom) as if they occurred at the beginning of the period of four (4) consecutive fiscal quarter periods most recently ended as of such date of determination; provided that (x) the Senior Leverage Ratio shall not be tested again at the time of the consummation of such acquisition or related transactions and (y) any such transaction shall be deemed to have occurred on the date the definitive agreements are entered into for purposes of subsequently calculating the Senior Leverage Ratio after the date of such agreement and before the consummation of such acquisition.
(iii)For purposes of this Section 14.17(b), whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Manager. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of the Manager as set forth in an Officer’s Certificate delivered to the Trustee and the Control Party (with respect to which the Trustee and the Control Party shall have no obligation of any nature whatsoever) to reflect (1) excess owner
compensation, reasonably estimated, expected or actual cost savings (including, without limitation, “run rate” cost savings), operating improvements, operating expense reductions, synergies, integration costs and expenses and other pro forma adjustments, in each case reasonably expected to result from the applicable pro forma event and (2) all adjustments of the nature used in connection with the calculation of “Net Cash Flow” as set forth in the definition thereof, to the extent such adjustments, without duplication, continue to be applicable to such preceding four Quarterly Fiscal Periods.
Section 14.18 Permitted Asset Dispositions; Release of Collateral.
After the consummation of any Permitted Asset Disposition, all Liens with respect to such property created in favor of the Trustee for the benefit of the Secured Parties under this Base Indenture and the other Transaction Documents shall be automatically released, and, upon written request of the Issuer, the Trustee, at the written direction of the Control Party, shall execute and deliver to the Securitization Entities any and all documentation reasonably requested and prepared by the Securitization Entities at their expense to effect or evidence the release by the Trustee of the Secured Parties’ security interest in the property disposed of in connection with such Permitted Asset Disposition.
Section 14.19 No Credit Support.
Each Noteholder, by its acceptance of its Note (or interest therein) acknowledges and agrees, that (i) the Notes are not guaranteed by, or subject to any credit support of, the Manager or any other Non-Securitization Entity and (ii) neither the Manager nor any other Non-Securitization Entity shall be liable in any respect for any Obligations. Furthermore, each Noteholder, by its acceptance of its Note (or interest therein) hereby waives any present or future right to assert, allege or claim that (i) the Notes are guaranteed by, or subject to any credit support of, the Manager or any other Non-Securitization Entity and (ii) the Manager or any other Non-Securitization Entity shall be liable in any respect for any Obligations.
Section 14.20 Indemnification Obligations.
For the avoidance of doubt, with respect to any indemnification provisions in this Indenture providing that a party to this Indenture is required to indemnify another party to this Indenture for attorney’s fees and expenses, such fees and expenses are intended to include attorney’s fees and expenses relating to the enforcement of such indemnity (but only after a non-appealable final judgment or court order in favor of the indemnified party with respect to such indemnity or as agreed to by the related parties pursuant to the settlement or otherwise).
Section 14.21 Electronic Communications.
The Trustee (in each of its capacities) agrees to accept and act upon instructions or directions pursuant to this Indenture or any documents executed in connection herewith sent by unsecured email or other similar unsecured electronic methods, provided, however, that any person providing such instructions or directions shall provide to the Trustee an incumbency certificate listing persons designated to provide such instructions or directions (including the email addresses of such persons), which incumbency certificate shall be amended whenever a person is added or deleted from the listing. If such person elects to give the Trustee email (of .pdf or similar files) (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee's reasonable understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee's reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. Any person providing such instructions or directions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 14.22 Amendment and Restatement.
The execution and delivery of this Base Indenture shall constitute an amendment and restatement, but not a novation, of the Original Amended and Restated Base Indenture and the obligations and liabilities of the Issuer under the Original Amended and Restated Base Indenture and the pledge of the Indenture Collateral made by the Issuer thereunder to the Trustee. Except as specifically amended and restated under this Base Indenture, all Liens, deeds of trust, mortgages, assignments and security interests securing the Original Amended and Restated Base Indenture and the obligations and liabilities of the Issuer relating thereto are hereby ratified, confirmed, renewed, extended, brought forward and rearranged as security for the Obligations, shall continue without any diminution thereof and shall remain in full force and effect on and after the Closing Date. The Issuer hereby reaffirms all UCC financing statements and continuation statements and amendments thereof filed and all other filings and recordations made in respect of the Indenture Collateral and the Liens and security interests granted under the Original Amended and Restated Base Indenture and this Base Indenture and acknowledges that all such filings and recordations were and remain authorized and effective on and after the date hereof.
Section 14.23 Electronic Signatures and Transmission.
For purposes of this Base Indenture, any Series Supplement and any Supplement thereto, any reference to “written” or “in writing” means any form of written communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by Electronic Transmission. “Electronic Transmission” means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process. The Trustee is authorized to accept written instructions, directions, reports, notices or other communications delivered by Electronic Transmission and shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by Electronic Transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such Electronic Transmission, and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties (except to the extent such action results from gross negligence, willful misconduct or fraud by the Trustee). Any requirement in this Base Indenture, any Series Supplement or Supplement that a document, including any Note, is to be signed or authenticated by "manual signature" or similar language shall not be deemed to prohibit signature to be by facsimile or electronic signature and shall not be deemed to prohibit delivery thereof by Electronic Transmission. Notwithstanding anything to the contrary in this Base Indenture, Series Supplement or Supplement, any and all communications (both text and attachments) by or from the Trustee that the Trustee in its sole discretion deems to contain confidential, proprietary and/or sensitive information and sent by Electronic Transmission will be encrypted. The recipient of the Electronic Transmission will be required to complete a one-time registration process.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the Issuer, the Trustee and the Securities Intermediary have caused this Base Indenture to be duly executed by its respective duly authorized officer as of the day and year first written above.
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| WINGSTOP FUNDING LLC, as Issuer |
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| By: | |
| Name: |
| Title: |
[Signature Page to Base Indenture]
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| CITIBANK, N.A., in its capacity as Trustee and as Securities Intermediary |
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| By: | |
| Name: |
| Title: |
[Signature Page to Base Indenture]
ANNEX A
BASE INDENTURE DEFINITIONS LIST
“2022 Omnibus Amendment and Reaffirmation Agreement” means the Omnibus Amendment and Reaffirmation Agreement, dated as of the Series 2022-1 Closing Date, by and among the Issuer, Funding Holdco, Wingstop Franchisor, the Manager, the Trustee, the Servicer, the Back-Up Manager and Morgan Stanley & Co. LLC.
“2022 Springing Amendments Implementation Date” means the date on which none of the Series 2020-1 2.841% Fixed Rate Senior Secured Notes, Class A-2 remain Outstanding, at which time the 2022 Springing Amendments shall automatically become effective.
“2022 Springing Amendments” means amendments to certain provisions of the Transaction Documents on a springing basis that shall not be effective until the 2022 Springing Amendments Implementation Date.
“2024 Omnibus Amendment and Reaffirmation Agreement” means the Omnibus Amendment and Reaffirmation Agreement, dated as of the Series 2024-1 Closing Date, by and among the Issuer, Funding Holdco, Wingstop Franchisor, the Manager, the Trustee, the Servicer, the Back-Up Manager, Morgan Stanley & Co. LLC and Barclays Capital Inc.
“2024 Springing Amendments Implementation Date” means the date on which none of the Series 2020-1 2.841% Fixed Rate Senior Secured Notes, Class A-2 and the Series 2022-1 3.734% Fixed Rate Senior Secured Notes, Class A-2 remain Outstanding, at which time the 2024 Springing Amendments shall automatically become effective.
“2024 Springing Amendments” means amendments to certain provisions of the Transaction Documents on a springing basis that shall not be effective until the 2024 Springing Amendments Implementation Date.
“Account Agreement” means each agreement governing the establishment and maintenance of any Management Account or any other Base Indenture Account or Series Account to the extent that any such account is not held at the Trustee.
“Account Control Agreement” means each control agreement, in form and substance reasonably satisfactory to the Servicer and the Trustee, pursuant to which the Trustee is granted the right to control deposits and withdrawals from, or otherwise to give instructions or entitlement orders in respect of, a deposit and/or securities account and any lock-box related thereto.
“Accounts” means, collectively, the Indenture Trust Accounts, the Management Accounts and any other account subject to an Account Control Agreement.
“Actual Knowledge” means the actual knowledge of (i) in the case of Parent or the Manager, the Chief Executive Officer, the Chief Financial Officer and the General Counsel; (ii) in the case of any Securitization Entity, any manager or director (as applicable) or any officer of such Securitization Entity who is also an officer of Parent described in clause (i) above; (iii) in the case of Parent, the Manager or any Securitization Entity, with respect to a relevant matter or event, an Authorized Officer of Parent, the Manager or such Securitization Entity, as applicable, directly responsible for managing the relevant asset or for administering the transactions relevant to such matter or event; (iv) with respect to the Trustee, an Authorized Officer of the Trustee responsible for administering the transactions relevant to the applicable matter or event; or (v) with respect to any other Person, any member of senior management of such Person.
“Ad Fund” has the meaning set forth in the Management Agreement.
“Additional Management Account” has the meaning set forth in Section 5.1(a) of this Base Indenture.
“Additional Notes” means each additional Series, Class, Subclass or Tranche of Notes or additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued by the Issuer from time to time following the Closing Date on the related Series Closing Date pursuant to Section 2.2.
“Additional Notes DSCR” means, at any time of determination and with respect to the issuance of any Additional Notes, the ratio calculated by dividing (i) the Net Cash Flow over the four immediately preceding Quarterly Fiscal Periods most recently ended by (ii) the Debt Service due during such period, in each case on a pro forma basis, calculated as if (a) such Additional Notes had been Outstanding and any assets acquired with the proceeds of such Additional Notes had been acquired at the commencement of such period and (b) any existing Indebtedness that has been paid, prepaid or repurchased and cancelled during such period, or any existing Indebtedness that will be paid, prepaid or repurchased and cancelled using the proceeds of such issuance, were so paid, prepaid or repurchased and cancelled as of the commencement of such period.
“Adjusted EBITDA” means, with respect to the Wingstop Entities for any period, EBITDA, plus:
(a) the sum of (i) equity compensation expense, (ii) management fees, (iii) management fee terminations, (iv) director fees and out-of-pocket expenses incurred in connection with attending board of director meetings, (v) costs, expenses or charges for such period incurred in connection with acquisitions, investments, equity issuances, asset dispositions, refranchising transactions, discontinued operations, reorganizations, restructurings, realignment initiatives, recapitalizations, mergers, consolidations or amalgamations, or incurrences, repayments, refinancings, amendments or modifications of indebtedness or similar transactions for such period (with respect to each of the foregoing in this clause (v), whether or not successful), (vi) other non-operating expenses, (vii) losses attributable to asset dispositions, (viii) extraordinary losses (net of extraordinary gains) and other non-recurring charges or expenses or non-cash charges, (ix) impairment losses on assets (including intangible assets and goodwill), (x) severance, relocation, retention, signing, recruiting and similar expenses, (xi) closed store expenses and lease buy-out expenses, (xii) proceeds from insurance in respect of liability or casualty events or business interruption, (xiii) expenses incurred in such period in connection with achieving compliance with laws and regulations applicable to public companies, including the Sarbanes-Oxley Act of 2002, expenses incurred in converting to PCAOB auditing standards and SEC guidance or regulations, including SEC staff accounting positions and related interpretations, applicable to public companies during such period, and (xiv) without duplication to the extent not captured in Consolidated Net Income cash amounts received during the period from (A) the sale or license of franchise and development rights to a foreign country or territory pursuant to a Franchise Agreement or Development Agreement and (B) the sale of franchise and development rights domestically pursuant to a Franchise Agreement or Development Agreement; and
(b) (i) the full year impact of cost savings initiatives that have already been implemented during the period presented, (ii) a full year of royalties from Franchise Agreements executed during the period presented, net of the royalties from Franchise Agreements terminated during the period presented, (iii) the full year impact for incremental royalties for certain Franchisees that are on temporary royalty abatement and product discount programs during the period presented, and (iv) the full year impact of Company-Owned Restaurant EBITDA for Company-Owned Restaurants opened or acquired during the period presented, net of the Company-Owned Restaurant EBITDA from Company-Owned Restaurants closed or sold during the period presented;
provided, that Adjusted EBITDA will exclude the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies (excluding, for the avoidance of doubt, changes in accounting estimates) after the Original Closing Date (including with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in accordance with Accounting Standards Codification 840 on the items in this definition, for which GAAP as in effect on the Original Closing Date shall be applied);
provided, further, that, the Manager, in accordance with the Managing Standard, may amend the definition of “Adjusted EBITDA” after the Closing Date with the consent of the Control Party.
“Advance” means a Collateral Protection Advance or a Debt Service Advance; provided, that, for purposes of priority (ii) of the Priority of Payments, “Advance” shall be deemed to include unreimbursed Back-Up Manager Consent Consultation Fees (x) to the extent such fees do not exceed the Back-Up Manager’s initial fee range estimate prior to the commencement of such consultation services, and such fee range estimate has been approved in advance in writing by the Control Party and (y) to the extent in excess of such fee range estimate, such fees have been approved in advance by the Control Party and in the case of a consent request Consent Request or, on and after the 2024 Springing Amendments Implementation Date, Consent Recommendation only, the Issuer (such consent not to be unreasonably withheld, conditioned or delayed).
“Advance Interest Rate” means a rate equal to the Prime Rate plus 3.00% per annum compounded monthly.
“Advance Period” has the meaning set forth in the Servicing Agreement.
“Advance Suspension Period” has the meaning set forth in the Servicing Agreement.
“Advertising Fees” means fees payable by Restaurant Operators, including fees and other amounts paid to the Ad Fund, to fund or support existing or future national and international marketing and advertising activities or materials for the Wingstop Brand.
“Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, such specified Person; provided, however, that no equity holder of Parent or any Affiliate of such equity holder shall be deemed to be an Affiliate of any Wingstop Entity. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities or other ownership or beneficial interests, by contract or otherwise; and the terms “controlling” and “controlled” have the meanings correlative to the meaning of “control”.
“After-Acquired Securitization IP” means all Intellectual Property (other than Excluded IP) created, developed, authored or acquired by or on behalf of, or licensed to or on behalf of, Wingstop Franchisor after the Closing Date pursuant to the Wingstop IP License Agreement or otherwise, including, without limitation, all Manager-Developed IP and all Licensee-Developed IP.
“Agent” means any Note Registrar or Paying Agent.
“Aggregate Outstanding Principal Amount” means the sum of the Outstanding Principal Amounts with respect to all Series of Notes.
“Allocated Note Amount” means, as of any date of determination, an amount equal to the greater of (x) zero and (y) with respect to (i) any Contributed Asset or New Asset in existence on the Closing Date, the pro rata portion of the amount of Notes issued on the Closing Date allocated to such asset on the Closing Date based on such asset’s contribution to Retained Collections during the period of
four Quarterly Fiscal Periods ending as of the third Quarterly Fiscal Period of 2020 and (ii) any New Asset arising after the Closing Date , the Outstanding Principal Amount of the Notes allocated to such New Asset, on the date such asset was included in the Securitization Assets, based on such asset’s contribution to Retained Collections during the then-most recently ended four Quarterly Fiscal Periods. With respect to any such asset that does not have a four Quarterly Fiscal Period operating period as of the date such asset was included in the Securitization Assets, such asset’s deemed contribution to Retained Collections will equal the average amount per Securitization Asset of Retained Collections contributed by other Securitization Assets of the same type for the relevant period, as determined by the Manager in accordance with the Managing Standard, calculated as of the date such asset was included in the Securitization Assets.
“Applicable Procedures” means the provisions of the rules and procedures of DTC, the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream, as in effect from time to time.
“Asset Disposition Proceeds” means the proceeds of any disposition (including all cash and cash equivalents received as payments of the purchase price for such disposition, including, without limitation, any cash or cash equivalents received in respect of deferred payment, or monetization of a note receivable, received as consideration for such disposition) pursuant to clause (j) or (o) (solely with respect to a sale or sale-leaseback) of the definition of “Permitted Asset Disposition” or any other disposition not permitted under the terms of the Indenture, net of (i.e., reduced by) the following amounts: (A) the principal amount of any Indebtedness that is secured by the applicable property and that is required to be repaid in connection with such disposition (other than Indebtedness under the Notes) to the extent such principal amount is actually repaid, (B) the reasonable and customary out-of-pocket expenses incurred by the Securitization Entities in connection with such disposition, as certified by the Manager, and (C) income taxes reasonably estimated to be actually payable within two (2) years of such disposition as a result of any gain recognized in connection therewith. For the avoidance of doubt, the proceeds of any Permitted Asset Disposition pursuant to any of the remaining clauses of the definition thereof (net of the amounts described in clause (B) of the preceding sentence and, in the case of Post-Issuance Acquired Assets only, further net of (without duplication of any amounts in such clause (B)) the original cost of acquisition of such asset, including reasonable and customary related expenses) shall not constitute Asset Disposition Proceeds and instead will be treated as Collections with respect to the Quarterly Fiscal Period in which such amounts are received. For the avoidance of doubt, proceeds resulting from the purchase and sale of operating locations (or potential operating locations) acquired by one or more Non-Securitization Entities (and not owned or financed by a Securitization Entity or otherwise contributed to the Collateral) and not otherwise required to be part of the Collateral will not constitute Asset Disposition Proceeds or Collections.
“Asset Disposition Proceeds Account” means an account in the name of the Issuer subject to an Account Control Agreement for the deposit of Asset Disposition Proceeds pursuant to Section 5.10(c) of this Base Indenture or any successor account.
“Asset Disposition Reinvestment Period” has the meaning specified in Section 5.10(c) of this Base Indenture.
“Assumption Agreement” has the meaning set forth in Section 8.30(c) of this Base Indenture.
“Authorized Officer” means, with respect to (i) any Securitization Entity, any officer who is authorized to act for such Securitization Entity in matters relating to such Securitization Entity, including an Authorized Officer of the Manager authorized to act on behalf of such Securitization Entity; (ii) Parent, the Chief Executive Officer, the Chief Financial Officer, or General Counsel or any other officer of Parent who is directly responsible for managing the business of the Wingstop Entities other than
the Securitization Entities; (iii) WRI, in its individual capacity or in its capacity as the Manager, the Chief Executive Officer, the Chief Financial Officer or General Counsel, or any other officer authorized to act for WRI or the Manager in matters relating to, and binding upon, WRI or the Manager, as applicable, with respect to the subject matter of the request, certificate or order in question or any other officer of the Manager who is directly responsible for managing the business of the Securitization Entities; (iv) the Trustee or any other bank or trust company acting as trustee of an express trust or as custodian, a Trust Officer; (v) the Servicer, any officer of the Servicer who is duly authorized to act for the Servicer with respect to the relevant matter; or (vi) the Control Party, any officer of the Control Party who is duly authorized to act for the Control Party with respect to the relevant matter. Each party may receive and accept a certification of the authority of any other party as conclusive evidence of the authority of any Person to act, and such certification may be considered as in full force and effect until receipt by such other party of written notice to the contrary.
“Back-Up Management Agreement” means the SecondThird Amended and Restated Back-Up Management and Consulting Agreement, dated as of the Series 2022-12024-1 Closing Date, by and among the Issuer, the other Securitization Entities party thereto, the Manager, the Trustee and the Back-Up Manager, as amended, supplemented or otherwise modified from time to time.
“Back-Up Manager” means FTI Consulting, Inc., a Maryland corporation, as back-up manager under the Back-Up Management Agreement, and any successor thereto.
“Back-Up Manager Consent Consultation Fees” has the meaning set forth in the Back-Up Management Agreement.
“Back-Up Manager Fees” means (i) all fees as agreed upon under a separate fee letter among the Manager, the Issuer and the Back-Up Manager and (ii) reimbursements of reasonable and documented out-of-pocket expenses, in each case incurred by the Back-Up Manager in performing services under such fee letter orhas the meaning set forth in the Back-Up Management Agreement, as applicable.
“Bankruptcy Code” means the provisions of Title 11 of the United States Code, as codified as 11 U.S.C. Section 101 et seq., as amended, and any successor statute of similar import, in each case as in effect from time to time.
“Base Indenture” means this Second Amended and Restated Base Indenture, dated as of the Series 2022-1 Closing Date, by and among the Issuer and the Trustee, including this Base Indenture Definitions List, as amended by the First Supplement to the Second Amended and Restated Base Indenture, dated as of the Series 2024-1 Closing Date and as further amended, supplemented or otherwise modified from time to time, exclusive of any Series Supplements.
“Base Indenture Account” means any account or accounts authorized and established pursuant to this Base Indenture for the benefit of the Secured Parties, including, without limitation, each account established pursuant to Article V of this Base Indenture.
“Base Indenture Definitions List” has the meaning set forth in Section 1.1(a) of this Base Indenture.
“Book-Entry Note” means Notes of any Series, ownership and transfers of which will be evidenced or made through book entries by a Clearing Agency as described in Section 2.12 of this Base Indenture; provided that, after the occurrence of a condition whereupon book-entry registration and transfer are no longer permitted and Definitive Notes are issued to the Note Owners, such Definitive Notes will replace Book-Entry Notes.
“Branded Restaurant” means, as of any date of determination, any restaurant operated in the United States or internationally under the Wingstop Brand.
“Business Day” means any day other than Saturday or Sunday or any other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, Dallas, Texas, New York, New York, or the city in which the Corporate Trust Office of any successor Trustee is located if so required by such successor.
“Business Day Adjustment” has the meaning set forth in the definition of “Quarterly Payment Date”.
“Capitalized Lease Obligations” means the obligations of a Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes of the Transaction Documents, the amount of such obligations will be the capitalized amount thereof determined in accordance with GAAP.
“Capped Class A-1 Notes Administrative Expenses Amount” means, for each Weekly Allocation Date with respect to any Quarterly Fiscal Period, an amount equal to the lesser of (a) the Class A-1 Notes Administrative Expenses that have become due and payable prior to such Weekly Allocation Date and have not been previously paid and (b) the amount by which (i) $100,000 exceeds (ii) the aggregate amount of Class A-1 Notes Administrative Expenses previously paid on each Weekly Allocation Date that occurs (x) during the period beginning on the Closing Date and ending on the date on which 52 or 53, as applicable, full and consecutive Weekly Collection Periods have occurred since the Closing Date and (y) during each successive period of 52 or 53, as applicable, consecutive Weekly Collection Periods after the period in the foregoing clause (x).
“Capped Securitization Operating Expenses Amount” means, for each Weekly Allocation Date that occurs (x) during the Initial Fiscal Year and (y) during each successive period of 52 or 53, as applicable, consecutive Weekly Collection Periods after the Initial Fiscal Year, the amount by which the Operating Expense Cap exceeds the aggregate amount of Securitization Operating Expenses already paid during such period; provided, however, that prior to the 2024 Springing Amendments Implementation Date, during any period that the Back-Up Manager is required to provide Warm Back-Up Management Duties or Hot Back-Up Management Duties pursuant to the Back-Up Management Agreement, such amount shall automatically be increased by an additional $500,000 (for avoidance of doubt, for a total of $1,000,000) solely in order to provide for the reimbursement of any increased fees and expenses incurred by the Back-Up Manager associated with the provision of such services and the Control Party, acting at the direction of the Controlling Class Representative, may further increase the Capped Securitization Operating Expenses Amount as calculated above in order to take account of any additional increased fees and expenses associated with the provision of such services and, on and after the 2024 Springing Amendments Implementation Date, (i) during any period that the Back-Up Manager is required to provide Warm Back-Up Management Duties pursuant to the Back-Up Management Agreement, such amount shall automatically be increased by an additional $500,000 (for avoidance of doubt, for a total of $1,000,000) solely in order to provide for the reimbursement of any increased fees and expenses incurred by the Back-Up Manager associated with the provision of such services and (ii) during any period that the Back-Up Manager is required to provide Hot Back-Up Management Duties pursuant to the Back-Up Management Agreement, such amount shall automatically be increased by an additional $1,000,000 (for avoidance of doubt, for a total of $2,000,000) solely in order to provide for the reimbursement of any increased fees and expenses incurred by the Back-Up Manager associated with the provision of such services and the Control Party, acting at the direction of the Controlling Class Representative, may further increase the Capped Securitization Operating Expenses Amount as calculated above in order to take account of any additional increased fees and expenses associated with the provision of such services. For purpose of this definition of “Capped Securitization Operating Expenses Amount”, “Operating Expense Cap” means (i) for purposes of clause (x) above, an amount equal to (A) $500,000, multiplied by (B) the
quotient of (1) the number of Weekly Collection Periods in the Initial Fiscal Year, divided by (2) 52, and (ii) for purposes of clause (y) above, $500,000.
“Carryover Class A-1 Notes Accrued Quarterly Commitment Fees Amount” means (a) for the first Weekly Allocation Date with respect to any Quarterly Fiscal Period, zero and (b) for any other Weekly Allocation Date with respect to such Quarterly Fiscal Period, the amount, if any, by which (i) the amount allocated to the Class A-1 Notes Commitment Fees Account with respect to the Class A-1 Notes Quarterly Commitment Fees Amounts on the immediately preceding Weekly Allocation Date with respect to such Quarterly Fiscal Period was less than (ii) the Class A-1 Notes Accrued Estimated Quarterly Commitment Fees Amount for such immediately preceding Weekly Allocation Date.
“Carryover Senior Notes Accrued Quarterly Interest Amount” means (a) for the first Weekly Allocation Date with respect to any Quarterly Fiscal Period, zero and (b) for any other Weekly Allocation Date with respect to such Quarterly Fiscal Period, the amount, if any, by which (i) the amount allocated to the Senior Notes Interest Payment Account with respect to the Senior Notes on the immediately preceding Weekly Allocation Date with respect to such Quarterly Fiscal Period was less than (ii) the Senior Notes Accrued Estimated Quarterly Interest Amount for such immediately preceding Weekly Allocation Date.
“Carryover Senior Notes Accrued Quarterly Post-ARD Contingent Additional Interest Amount” means (a) for the first Weekly Allocation Date with respect to any Quarterly Fiscal Period, zero and (b) for any other Weekly Allocation Date with respect to such Quarterly Fiscal Period, the amount, if any, by which (i) the amount allocated to the Senior Notes Post-ARD Contingent Additional Interest Account with respect to the Senior Notes Quarterly Post-ARD Contingent Additional Interest on the immediately preceding Weekly Allocation Date with respect to such Quarterly Fiscal Period was less than (ii) the Senior Notes Accrued Quarterly Post-ARD Contingent Additional Interest Amount for such immediately preceding Weekly Allocation Date.
“Carryover Senior Notes Accrued Scheduled Principal Payments Amount” means (a) for the first Weekly Allocation Date with respect to any Quarterly Fiscal Period, zero and (b) for any other Weekly Allocation Date with respect to such Quarterly Fiscal Period, the amount, if any, by which (i) the amount allocated to the Senior Notes Principal Payment Account with respect to the Senior Notes Scheduled Principal Payments Amounts on the immediately preceding Weekly Allocation Date with respect to such Quarterly Fiscal Period was less than (ii) the Senior Notes Accrued Scheduled Principal Payments Amount for such immediately preceding Weekly Allocation Date.
“Cash Collateral” has the meaning set forth in Section 5.12(d)(iii) of this Base Indenture.
“Cash Trap Reserve Account” means the reserve account established and maintained by the Trustee, in the name of the Trustee for the benefit of the Secured Parties, for the deposit of Cash Trapping Amounts upon the commencement of a Cash Trapping Period.
“Cash Trapping Amount” means, for any Weekly Allocation Date while a Cash Trapping Period is in effect, an amount equal to the product of (i) the applicable Cash Trapping Percentage and (ii) the amount of funds available in the Collection Account on such Weekly Allocation Date after payment of priorities (i) through (xii) of the Priority of Payments (but with respect to each Weekly Allocation Date that is a Cash Trapping Release Date, net of the Cash Trapping Release Amount released on such date); provided that, for any Weekly Allocation Date following the occurrence and during the continuance of a Rapid Amortization Event or an Event of Default, the Cash Trapping Amount shall be zero.
“Cash Trapping DSCR Threshold” means a DSCR equal to 1.75x.
“Cash Trapping Percentage” means, with respect to any Weekly Allocation Date during a Cash Trapping Period, (i) 50%, if the DSCR as calculated as of the immediately preceding Quarterly
Calculation Date is less than 1.75x but equal to or greater than 1.50x and (ii) 100%, if the DSCR as calculated as of the immediately preceding Quarterly Calculation Date is less than 1.50x.
“Cash Trapping Period” means a period beginning on any Quarterly Payment Date on which the DSCR as calculated as of the immediately preceding Quarterly Calculation Date is less than the Cash Trapping DSCR Threshold and ending on any subsequent Quarterly Payment Date on which the DSCR as calculated as of the immediately preceding Quarterly Calculation Date is equal to or exceeds the Cash Trapping DSCR Threshold; provided, that (x) such “Cash Trapping DSCR Threshold” and (y) the thresholds set forth in the definition of “Cash Trapping Percentage”, in each case, may be increased at the request of the Issuer subject to approval by the Control Party and, to the extent that any Cash Trapping Period is in effect, each Noteholder of each Series of applicable Notes outstanding.
“Cash Trapping Release Amount” means, with respect to any Weekly Allocation Date (i) on which a Cash Trapping Period is no longer continuing, the full amount on deposit in the Cash Trap Reserve Account and (ii) on which the Cash Trapping Percentage is equal to 50% and on the prior Weekly Allocation Date the applicable Cash Trapping Percentage was equal to 100%, 50% of the aggregate amount deposited to the Cash Trap Reserve Account during the most recent period in which the applicable Cash Trapping Percentage was equal to 100%, after having been reduced ratably for any withdrawals made from the Cash Trap Reserve Account during such period for any other purpose.
“Cash Trapping Release Date” means any Weekly Allocation Date (i) on which a Cash Trapping Period is no longer continuing or (ii) on which the Cash Trapping Percentage is equal to 50%, and on the prior Weekly Allocation Date, the applicable Cash Trapping Percentage was equal to 100%.
“Casualty Reinvestment Period” has the meaning set forth in Section 5.10(d) of this Base Indenture.
“Cause” means, with respect to any Independent Manager, (i) acts or omissions by such Independent Manager constituting fraud, dishonesty, gross negligence, willful misconduct or other deliberate action or material breach of the applicable Charter Documents which causes injury to the applicable Securitization Entity or an act by such Independent Manager involving moral turpitude or a serious crime, (ii) that such Independent Manager no longer meets the definition of “Independent Manager” as set forth in the applicable Securitization Entity’s Charter Documents or (iii) a material increase in fees charged by such Independent Manager; provided that the Independent Manager may only be removed for Cause pursuant to this clause (iii) with the consent of the Control Party.
“CCR Acceptance Letter” has the meaning set forth in Section 11.1(d) of this Base Indenture.
“CCR Ballot” has the meaning set forth in Section 11.1(b) of this Base Indenture.
“CCR Candidate” means any nominee submitted to the Trustee on a CCR Nomination pursuant to Section 11.1(a) of this Base Indenture.
“CCR Election” has the meaning set forth in Section 11.1(b) of this Base Indenture.
“CCR Election Notice” has the meaning set forth in Section 11.1(a) of this Base Indenture.
“CCR Election Period” has the meaning set forth in Section 11.1(b) of this Base Indenture.
“CCR Nomination” has the meaning set forth in Section 11.1(a) of this Base Indenture.
“CCR Nomination Period” has the meaning set forth in Section 11.1(a) of this Base Indenture.
“CCR Quorum Amount” means 50% of the sum of (x) the Outstanding Principal Amount (with respect to any Notes of the Controlling Class other than Class A-1 Notes) and (y) the Class A-1 Notes Voting Amount of the Notes of the Controlling Class as of the CCR Voting Record Date.
“CCR Re-election Event” means any of the following events: (i) an additional Series of Notes of the Controlling Class is issued after the Closing Date, (ii) the Controlling Class changes after the Closing Date, (iii) the Trustee receives written notice of the resignation or removal of any acting Controlling Class Representative, (iv) the Trustee receives a demand for an election for a Controlling Class Representative from a Majority of Controlling Class Members, which election will be at the expense of such Controlling Class Members (including Trustee expenses), (v) the Trustee receives written notice that an Event of Bankruptcy has occurred with respect to the acting Controlling Class Representative, (vi) there is no Controlling Class Representative and the Control Party requests an election be held or (vii) the Issuer (or the Manager on its behalf) requests an election to be held; provided, that with respect to a CCR Re-election Event that occurs as a result of clauses (iv), (vi) or (vii), no CCR Re-Election Event will be deemed to have occurred if it would result in more than two (2) CCR Re-election Events occurring in a single calendar year. Within two (2) Business Days of any other change in the name or address of the Controlling Class Representative of which the Trustee has received notice from the Controlling Class Representative, the Trustee will deliver to each Noteholder, the Issuer, the Manager, the Back Up Manager and the Servicer a notice setting forth the name and address of the new Controlling Class Representative. For the avoidance of doubt, (i) the issuance of the Series 2020-1 Notes on the Closing Date shall not be a CCR Re-election Event and (ii) the issuance of the Series 2022-12024-1 Notes on the Series 2022-12024-1 Closing Date will constitute a CCR Re-election Event.
“CCR Voting Amount” means (i) the Class A-1 Notes Voting Amount with respect to each Series of Class A-1 Notes of the Controlling Class and (ii) the Outstanding Principal Amount of each Series of Notes of the Controlling Class (other than Class A-1 Notes) or any beneficial interest therein, in each case, that are Outstanding as of the CCR Voting Record Date and, in each case, with respect to which votes were submitted).
“CCR Voting Record Date” has the meaning set forth in Section 11.1(b) of this Base Indenture.
“Charter Document” means, with respect to any entity and at any time, the certificate of incorporation, certificate of formation, operating agreement, by-laws, memorandum of association, articles of association and any other similar document, as applicable to such entity in effect at such time.
“Class” means, with respect to any Series of Notes, any one of the classes of Notes of such Series as specified in the applicable Series Supplement, for which purpose the Class A-1 Notes and Class A-2 Notes of any Series of Notes shall be treated as separate classes of Notes of such Series. General references to Classes shall refer to Subclasses or Tranches, to the extent that such references relate to distinctions that may apply on a Subclass or Tranche basis, as applicable, in each case as the context requires and subject to the terms of the applicable Series Supplement.
“Class A-1 Administrative Agent” means, with respect to any Class A-1 Notes, the Person identified as the “Class A-1 Administrative Agent” in the applicable Series Supplement.
“Class A-1 Commitment” means, with respect to any Class A-1 Notes, the obligation of each Class A-1 Lender in respect of such Class A-1 Notes to fund advances pursuant to the related Class A-1 Note Purchase Agreement.
“Class A-1 Lender” means, with respect to any Class A-1 Notes, the Person(s) acting in such capacity pursuant to the related Class A-1 Note Purchase Agreement.
“Class A-1 Note Purchase Agreement” means, with respect to any Class A-1 Notes, any note purchase agreement entered into by the Issuer, the other Securitization Entities party thereto and the Manager in connection with the issuance of such Class A-1 Notes that is identified as a “Class A-1 Note Purchase Agreement” in the applicable Series Supplement.
“Class A-1 Notes” means any Notes designated as “Class A-1” pursuant to the Series Supplement applicable to such Class of Notes.
“Class A-1 Notes Accrued Estimated Quarterly Commitment Fees Amount” has the meaning set forth in the definition of Class A-1 Notes Accrued Quarterly Commitment Fees Amount.
“Class A-1 Notes Accrued Quarterly Commitment Fees Amount” means, for each Weekly Allocation Date with respect to a Quarterly Fiscal Period, an amount equal to the sum of: (A) the sum of (i) the product of (1) the Fiscal Quarter Percentage and (2) the sum of (I) the Class A-1 Notes Estimated Quarterly Commitment Fees for such Quarterly Fiscal Period and (II) any Class A-1 Notes Commitment Fees Shortfall Amount together with any additional interest payable on such Class A-1 Notes Commitment Fees Shortfall Amount (each as determined pursuant to Section 5.12(b) of this Base Indenture) (the aggregate amounts set forth in this clause (A)(i)(2), the “Class A-1 Notes Accrued Estimated Quarterly Commitment Fees Amount”); provided that during the initial Quarterly Fiscal Period, any amounts prefunded to the Class A-1 Notes Commitment Fees Account or otherwise on deposit in the Class A-1 Notes Commitment Fees Account on or prior to the Closing Date may be used to satisfy all or a portion of any required funding of the Class A-1 Notes Accrued Estimated Quarterly Commitment Fees Amount on such Weekly Allocation Date, without any double counting of such prefunded amounts across multiple Weekly Allocation Dates and (ii) the Carryover Class A-1 Notes Accrued Quarterly Commitment Fees Amount for such Weekly Allocation Date; provided that the amounts allocated under this clause (A) during any Quarterly Fiscal Period shall be capped at the Class A-1 Notes Accrued Estimated Quarterly Commitment Fees Amount for such Quarterly Fiscal Period; and (B) without duplication, any Class A-1 Notes Commitment Fees Adjustment Amount with respect to the Interest Accrual Period ending in such Quarterly Fiscal Period, which amount in this clause (B) shall be limited to amounts on deposit in the Class A-1 Notes Commitment Fees Account if such Class A-1 Notes Commitment Fees Adjustment Amount is negative.
“Class A-1 Notes Administrative Expenses” means all amounts due and payable pursuant to any Class A-1 Note Purchase Agreement that are identified as “Class A-1 Notes Administrative Expenses” in the applicable Series Supplement.
“Class A-1 Notes Amortization Event” means, with respect to any Class A-1 Notes, any event designated as a “Class A-1 Notes Amortization Event” in the applicable Series Supplement.
“Class A-1 Notes Amortization Period” means, with respect to any Class A-1 Notes, the period identified as the “Class A-1 Notes Amortization Period” in the applicable Series Supplement.
“Class A-1 Notes Commitment Fees Account” has the meaning set forth in Section 5.6(a)(i) of this Base Indenture.
“Class A-1 Notes Commitment Fees Adjustment Amount” means, for any Class A-1 Notes for any Interest Accrual Period, the aggregate amount, if any, for such Interest Accrual Period that is identified as a “Commitment Fees Adjustment Amount” in the applicable Series Supplement.
“Class A-1 Notes Commitment Fees Shortfall Amount” has the meaning set forth in Section 5.12(b) of this Base Indenture.
“Class A-1 Notes Estimated Quarterly Commitment Fees” means, for any Quarterly Fiscal Period and with respect to any Class A-1 Notes Outstanding, the aggregate amount that is identified as “Class A-1 Notes Estimated Quarterly Commitment Fees” in each applicable Series Supplement.
“Class A-1 Notes Interest Adjustment Amount” means, for any Class A-1 Notes for any Interest Accrual Period, the aggregate amount, if any, for such Interest Accrual Period that is identified as an “Interest Adjustment Amount” in the applicable Series Supplement.
“Class A-1 Notes Maximum Principal Amount” means, with respect to any Class A-1 Notes Outstanding, the aggregate maximum principal amount of such Class A-1 Notes as identified in the applicable Series Supplement as reduced by any permanent reductions of commitments with respect to such Class A-1 Notes and any cancellations of repurchased Class A-1 Notes.
“Class A-1 Notes Other Amounts” means all amounts due and payable pursuant to any Class A-1 Note Purchase Agreement that are identified as “Class A-1 Notes Other Amounts” in the applicable Series Supplement.
“Class A-1 Notes Quarterly Commitment Fees Amount” means, with respect to any Class A-1 Notes Outstanding, the amount that is identified as a “Class A-1 Notes Quarterly Commitment Fees Amount” in the applicable Series Supplement.
“Class A-1 Notes Renewal Date” means, with respect to any Series of Class A-1 Notes, the date identified as the “Class A-1 Notes Renewal Date” in the applicable Series Supplement.
“Class A-1 Notes Voting Amount” means, with respect to any Series of Class A-1 Notes, the greater of (i) the Class A-1 Notes Maximum Principal Amount for such Series (after giving effect to any cancelled commitments) and (ii) the Outstanding Principal Amount of the Class A-1 Notes for such Series.
“Class A-2 Notes” means any Notes alphanumerically designated as “Class A-2” pursuant to the Series Supplement applicable to such Class of Notes.
“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act or any successor provision thereto or Euroclear or Clearstream.
“Clearing Agency Participant” means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
“Clearstream” means Clearstream Banking, société anonyme.
“Closing Date” means October 30, 2020.
“Closing Date Securitization IP” means all Intellectual Property (other than Excluded IP) created, developed, authored, acquired or owned by or on behalf of, or licensed to or on behalf of, Parent, WRI, Wingstop Franchisor, Funding Holdco or Issuer as of the Closing Date covering or embodied in (i) the Wingstop Brand, (ii) products or services sold or distributed under the Wingstop Brand, (iii) the Branded Restaurants, (iv) the Wingstop System or (v) the Contributed Franchise Business.
“Code” means the U.S. Internal Revenue Code of 1986, as amended, and any successor statute of similar import, in each case as in effect from time to time. References to sections of the Code also refer to any successor sections.
“Collateral” means, collectively, the Indenture Collateral, the “Collateral” as defined in the Guarantee and Collateral Agreement and any property subject to any other Indenture Document over which a Lien is granted to secure any Obligations.
“Collateral Documents” means, collectively, the Franchise Documents, Contributed Vendor Rebate Contracts, New Vendor Rebate Contracts and the Transaction Documents.
“Collateral Exclusions” means the following property of the Securitization Entities: (a) any license, other contract or permit, lease or sublease, in each case if the grant of a lien or security interest in the applicable Securitization Entity’s right, title and interest in, to or under such license, contract, permit, lease or sublease (or any rights or interests thereunder) in the manner contemplated by the Indenture (i) is prohibited by the terms of such lease, sublease, license, contract or permit (or any rights or interests thereunder) or would require consent of a third party (unless such consent has been obtained), (ii) would constitute or result in the abandonment, invalidation or unenforceability of any right, title or interest of the applicable Securitization Entity therein or (iii) would otherwise result in a breach thereof or the termination or a right of termination thereof, except, in each case, to the extent that any such prohibition, breach, termination or right of termination is rendered ineffective pursuant to the New York UCC or any other applicable Requirements of Law, (b) the Excepted Securitization IP Assets, (c) any leasehold interests in real property, (d) the Franchise Capital Account (except to the extent any Interest Reserve Account(s) serve as a Franchise Capital Account) and any amounts on deposit therein and (e) any Excluded Amounts.
“Collateral Protection Advance” means any advance of (a) payments of taxes, rent, assessments, insurance premiums and other related or similar costs and expenses necessary to protect, preserve or restore the Collateral and (b) payments of any Securitization Operating Expenses (excluding (i) any indemnification obligations, (ii) business and/or asset-related operating expenses, (iii) fees and expenses of external legal counsel that are not directly related to the maintenance or preservation of the Collateral and (iv) damages, costs, or expenses relating to fraud, bad faith, willful misconduct, violations of law, bodily injury, property damage or misappropriation of funds), to the extent not previously paid pursuant to a Manager Advance, in each case made by the Servicer pursuant to the Servicing Agreement in accordance with the Servicing Standard, or by the Trustee pursuant to the Indenture.
“Collateralized Letters of Credit” has the meaning set forth in Section 5.12(d)(iii) of this Base Indenture.
“Collection Account” means the account entitled “Wingstop Funding LLC Collection Account” maintained by the Trustee pursuant to Section 5.5 of this Base Indenture or any successor securities account maintained pursuant to Section 5.5 of this Base Indenture.
“Collection Account Administrative Accounts” has the meaning set forth in Section 5.6 of this Base Indenture.
“Collections” means, with respect to each Weekly Collection Period, all amounts received by or for the account (or in the case of ACH transactions, amounts remitted via ACH to or for the account of, but net of any such ACH remittances that are subsequently reversed by the transmitting bank) of the Securitization Entities during such Weekly Collection Period, in each case to the extent deposited in the Concentration Account or other applicable Account during such Weekly Collection Period (unless otherwise set forth below), including, without duplication:
(1)all Franchisee Payment Amounts and Company-Owned Restaurant Payment Amounts;
(2)without duplication of the foregoing clause (i), all amounts, including amounts received under the IP License Agreements, other license fees and any other amounts, received in respect of the Securitization IP, including recoveries from the enforcement of the Securitization IP;
(3)all amounts received under the Contributed Vendor Rebate Contracts and any New Vendor Rebate Contracts;
(4)all Indemnification Amounts, Insurance/Condemnation Proceeds, Asset Disposition Proceeds and (without duplication) all other amounts received upon the disposition of the Collateral, including proceeds received upon the disposition of property expressly excluded from the definition of “Asset Disposition Proceeds”, in each case that are required to be deposited into the Concentration Account or the Collection Account;
(5)any Series Hedge Receipts, if any, received by the Securitization Entities in respect of any Series Hedge Agreements entered into by the Securitization Entities in connection with the issuance of Additional Notes following the Original Closing Date, in each case that are required to be deposited into the Concentration Account or the Collection Account;
(6)any Investment Income earned on amounts on deposit in the Accounts;
(7)amounts withdrawn from the Senior Notes Interest Reserve Account for deposit to the Collection Account upon a reduction of the Senior Notes Interest Reserve Amount during such Weekly Collection Period;
(8)any equity contributions made to the Issuer (provided that the Manager may elect to have any such contributions transferred directly to the Trustee in connection with any Optional Prepayment of the Notes) during such Weekly Collection Period;
(9)to the extent not otherwise included above, any Excluded Amounts received during such Weekly Collection Period;
(10)Optional Prepayment Accrued Principal Release Amounts; and
(11)any other payments or proceeds received with respect to the Collateral during such Weekly Collection Period;
“Company Order” and “Company Request” mean a written order or request signed in the name of the Issuer by any Authorized Officer of the Issuer and delivered to the Trustee, the Control Party or the Paying Agent.
“Company-Owned Restaurant Payment Amounts” means any amounts payable by a Non-Securitization Entity that operates a Company-Owned Restaurant to a Securitization Entity, including, without limitation, royalties payable under the Wingstop IP License Agreement at the Company-Owned Restaurant Royalty Rate to any Securitization Entity by or on behalf of a Non-Securitization Entity that operates a Company-Owned Restaurant.
“Company-Owned Restaurant Royalty Rate” means, with respect to each Company-Owned Restaurant, a rate equal to six percent (6%) of the aggregate Gross Sales generated by such Company-Owned Restaurant.
“Company-Owned Restaurants” means, collectively, the Branded Restaurants that are (i) owned and operated by any Non-Securitization Entity or (ii) owned by any joint venture with a Non-Securitization Entity.
“Competitive Business” has the meaning set forth in the Management Agreement.
“Competitor” means any Person that is a direct or indirect franchisor, franchisee, developer, owner, sponsor or operator of any restaurant business that offers the same or similar products and services as offered by the Wingstop System, including, without limitation, generating a substantial proportion of revenue from the sale of chicken and primarily operating using eat-in or to-go services (it being understood that using wait staff to take and deliver orders is not “eat-in service” and that delivery is not “to-go service”); provided, however, that (a) a Person will not be a “Competitor” solely by virtue of its direct or indirect ownership of less than 5.0% of the Equity Interests in a “Competitor”, (b) a Person will not be a “Competitor” if such Person has policies and procedures that prohibit such Person from disclosing or making available any confidential information that such Person may receive as a noteholder or prospective investor in the Notes, to individuals involved in the business of buying, selling, holding or analyzing the Equity Interests of a “Competitor” or in the business of being a franchisor, franchisee, owner or operator of a large regional or national quick service, limited service or fast casual restaurant concept, and (c) a franchisee will only be a “Competitor” if it, or its Affiliates, directly or indirectly, owns, franchises or licenses, in the aggregate, ten or more individual locations of a particular concept.
“Concentration Account” means the account established and maintained at JPMorgan Chase Bank, N.A in the name of Wingstop Franchisor and pledged to the Trustee into which the Manager causes amounts to be deposited pursuant to Section 5.10(a) of this Base Indenture, together with any successor accounts established for Wingstop Franchisor by the Manager for such purpose pursuant to this Base Indenture and the Management Agreement.
“Confidential Information” has the meaning set forth in Section 10.11(a) of this Base Indenture.
“Consent Recommendation” means the recommendation by the Control Party to any Noteholder or the Controlling Class Representative in writing whether to approve or reject any Consent Request that requires the consent of such Noteholder or the Controlling Class Representative, as applicable.
“Consent Request” means any request for a direction, waiver, amendment, consent or certain other actions under the Transaction Documents.
“Consolidated Interest Expense” means, with respect to any Person for any period, consolidated interest expense, whether paid or accrued, of such Person and its Subsidiaries for such period, including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit, net costs under interest rate hedging agreements, amortization of discount, that portion of interest obligations with respect to any lease of any property (whether real, personal or mixed) that is properly classified as a liability on a balance sheet in conformity with GAAP, including all Capitalized Lease Obligations incurred by such Person, commitment fees and acceleration of fees and expenses payable in connection with Indebtedness.
“Consolidated Net Income” means, with respect to any Person for any period, the consolidated net income of such Person and its Subsidiaries (whether positive or negative) after adjusting for non-controlling interest in joint ventures, determined in accordance with GAAP, for such period.
“Contingent Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person (a) with respect to any indebtedness, lease, declared but unpaid dividends, letter of credit or other obligation of another if the primary purpose or intent thereof by the Person incurring the Contingent Obligation is to provide assurance to the obligee of such obligation of another that such obligation of another will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such obligation will be protected (in whole or in part) against loss in respect thereof or (b) under any letter of credit issued for the account of that Person or for which
that Person is otherwise liable for reimbursement thereof. “Contingent Obligation” will include (x) the direct or indirect guarantee, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another and (y) any liability of such Person for the obligations of another through any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise), (ii) to maintain the solvency of any balance sheet item, level of income or financial condition of another or (iii) to make take-or-pay or similar payments if required regardless of non-performance by any other party or parties to an agreement, if in the case of any agreement described under subclause (i) or (ii) of this clause (y) the primary purpose or intent thereof is as described in the preceding sentence. The amount of any Contingent Obligation will be equal to the amount of the obligation so guaranteed or otherwise supported.
“Contractual Obligation” means, with respect to any Person, any provision of any security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Contributed Assets” means all assets contributed under the Contribution Agreements.
“Contributed Development Agreements” means all Development Agreements and related guaranty agreements existing as of the Original Closing Date that were contributed to Wingstop Franchisor on the Original Closing Date pursuant to the applicable Contribution Agreements.
“Contributed Franchise Agreements” means all Franchise Agreements and related guaranty agreements existing as of the Original Closing Date that were contributed to Wingstop Franchisor on the Original Closing Date pursuant to the applicable Contribution Agreements.
“Contributed Franchise Business” means the business of franchising the Franchised Restaurants and the provision of ancillary goods and services in connection therewith, including pursuant to the Contributed Vendor Rebate Contracts and any New Vendor Rebate Contracts. For the avoidance of doubt, the Contributed Franchise Business does not include the Non-Contributed Property.
“Contributed Vendor Rebate Contracts” means all Vendor Rebate Contracts that were contributed to Wingstop Franchisor on the Original Closing Date pursuant to the applicable Contribution Agreements (including any amendments or renewals of the same).
“Contribution Agreements” means, collectively (in each case as amended, supplemented or otherwise modified from time to time):
(i)First-Tier Contribution Agreement, dated as of the Original Closing Date, by and between WRI and Funding Holdco;
(ii)Second-Tier Contribution Agreement, dated as of the Original Closing Date, by and between Funding Holdco and Issuer; and
(iii)Third-Tier Contribution Agreement, dated as of the Original Closing Date, by and between the Issuer and Wingstop Franchisor.
“Contributor” means any Non-Securitization Entity that contributed assets to the Securitization Entities on or prior to the Original Closing Date.
“Control Party” means, at any time, the Servicer, who will direct the Trustee to act (or refrain from acting) or will act on behalf of the Trustee in connection with Consent Requests.
“Controlled Group” means any group of trades or businesses (whether or not incorporated) under common control that is treated as a single employer for purposes of Section 302 or Title IV of ERISA.
“Controlling Class” means the most senior Class of Notes then Outstanding among all Series of Notes then Outstanding, for which purpose the Class A-1 Notes and the Class A-2 Notes will be treated as a single Class for so long as the Class A-1 Notes and the Class A-2 Notes remain Outstanding.
“Controlling Class Member” means, with respect to a Book-Entry Note of the Controlling Class, a Note Owner of such Book-Entry Note or a duly authorized representative of such Note Owner and, with respect to a Definitive Note of the Controlling Class, a Noteholder of such Definitive Note (excluding, in each case, any Securitization Entity or Affiliate thereof).
“Controlling Class Representative” means, at any time during which one or more Series of Notes is Outstanding, the representative, if any, that has been elected pursuant to Section 11.1 of this Base Indenture; provided that, if no Controlling Class Representative has been elected or if the Controlling Class Representative does not respond to a Consent Request within the time period specified in Section 11.4 of this Base Indenture, the Control Party will be entitled (but not required) to exercise the rights of the Controlling Class Representative with respect to such Consent Request other than with respect to Servicer Termination Events.
“Copyrights” has the meaning set forth in the definition of “Intellectual Property”.
“Corporate Trust Office” means the corporate trust office of the Trustee (a) for Note transfer purposes and presentment of the Notes for final payment thereon, Citibank, N.A., 480 Washington Boulevard, 30th16th Floor, Jersey City, New Jersey 07310, Attention: Securities Window –Wingstop Funding LLC and (b) for all other purposes, Citibank, N.A., 388 Greenwich Street, New York, New York 10013, Attention: Agency & Trust– Wingstop Funding LLC or call (888) 855-9695 to obtain Citibank, N.A. account manager’s email address, or such other address as the Trustee may designate from time to time by notice to the Holders, each Rating Agency and the Issuer or the principal corporate trust office of any successor Trustee.
“CTOP Payment Priority” has the meaning set forth in Section 5.12(k) of this Base Indenture.
“Current GAAP” means as of any date of determination, the generally accepted accounting principles in the United States promulgated or adopted by the Financial Accounting Standards Board and its predecessors and successors in effect as of such date of determination.
“Debt Service” means, with respect to any Quarterly Payment Date, the sum of (A) the Senior Notes Quarterly Interest Amount plus (B) the Senior Subordinated Notes Quarterly Interest Amount plus (C) the aggregate Class A-1 Notes Quarterly Commitment Fees Amounts plus (D) with respect to each Class of Senior Notes and Senior Subordinated Notes Outstanding, the aggregate amount of Scheduled Principal Payments, if any, that would be due and payable on such Quarterly Payment Date, as ratably reduced, in each case, by the aggregate amount of any payments of Indemnification Amounts, Insurance/Condemnation Proceeds or Asset Disposition Proceeds, after giving effect to any optional or mandatory prepayment of principal of any such Senior Notes or Senior Subordinated Notes or any repurchase and cancellation of such Senior Notes or Senior Subordinated Notes, but without giving effect to any reductions available due to satisfaction of any Series Non-Amortization Test on the applicable Non-Amortization Test Date. For the purposes of calculating the Debt Service for the Initial Quarterly Payment Date, Debt Service shall be deemed to be the sum of (A) the product of (x) the sum of the amounts referred to in clauses (A) through (C) of the definition of “Debt Service” multiplied by (y) a fraction the numerator of which is ninety (90) and the denominator of which is the actual number of days elapsed during the period commencing on and including the Closing Date and ending on but excluding
the Initial Quarterly Payment Date, plus (B) the amount referred to in clause (D) of the definition of “Debt Service”, assuming for purposes of this calculation only that a Scheduled Principal Payment is due and payable on the Initial Quarterly Payment Date after the Closing Date.
“Debt Service Advance” means an advance made by the Servicer (or, if the Servicer fails to do so, the Trustee) on a Quarterly Payment Date in an amount equal to the excess of the Senior Notes Quarterly Interest Amount due on such Quarterly Payment Date over the amount on deposit in Indenture Trust Accounts available to pay such amounts on such Quarterly Payment Date in accordance with Section 5.12(a) of this Base Indenture.
“Deemed Retained Collections” has the meaning set forth in the definition of “Retained Collections” in this Base Indenture.
“Default” means any Event of Default or any occurrence that with notice or the lapse of time or both would become an Event of Default.
“Defeased Notes” has the meaning set forth in Section 12.1(c) of this Base Indenture.
“Definitive Notes” has the meaning set forth in Section 2.12(a) of this Base Indenture.
“Depository” has the meaning set forth in Section 2.12(a) of this Base Indenture.
“Depository Agreement” means, with respect to a Series or Class of a Series of Notes having Book-Entry Notes, the agreement among the Issuer, the Trustee and the Clearing Agency governing the deposit of such Notes with the Clearing Agency, or as otherwise provided in the applicable Series Supplement.
“Development Agreements” means all development agreements for Branded Restaurants pursuant to which a Franchisee, developer or other Person, in each case that is unaffiliated with Parent, obtains the rights to develop (in order to operate as a Franchisee) one or more Branded Restaurants within a geographical area and all master license agreements pursuant to which a Franchisee also is authorized to grant subfranchises.
“Dollar” or “$” or “U.S.$” or “U.S. Dollar” means the lawful currency of the United States.
“DSCR” means an amount calculated as of any Quarterly Calculation Date by dividing (i) the Net Cash Flow over the four (4) immediately preceding Quarterly Fiscal Periods most recently ended by (ii) the Debt Service due with respect to the four (4) immediately preceding Quarterly Fiscal Periods most recently ended; provided that, (w) for purposes of calculating the DSCR as of the first Quarterly Calculation Date following the Closing Date (which will be the Quarterly Calculation Date preceding the Initial Quarterly Payment Date occurring in September 2022), clause (ii) shall be deemed to equal the Debt Service for the most recently ended Quarterly Fiscal Period times four (and the Debt Service measured for such Quarterly Fiscal Period shall be adjusted as set forth in the definition of such term to account for the irregular number of days in the initial Interest Accrual Period), (x) for purposes of calculating the DSCR as of the second Quarterly Calculation Date following the Closing Date (which will be the Quarterly Calculation Date preceding the Quarterly Payment Date occurring in June 2021), clause (ii) shall be deemed to equal the Debt Service for the most recently ended Quarterly Fiscal Period times three plus the Debt Service for the Initial Quarterly Payment Date occurring in September 2022 (as adjusted as set forth in the definition of Debt Service to account for the irregular number of days in the initial Interest Accrual Period), (y) for purposes of calculating the DSCR as of the third Quarterly Calculation Date following the Closing Date (which will be the Quarterly Calculation Date preceding the Quarterly Payment Date occurring in September 2021), clause (ii) shall be deemed to equal the Debt Service for the most recently ended Quarterly Fiscal Period times two plus the Debt Service Due for the
Quarterly Payment Dates occurring in March 2021 and June 2021 (with the former being adjusted as set forth in the definition of Debt Service to account for the irregular number of days in the initial Interest Accrual Period) and (z) for purposes of calculating the DSCR as of the fourth Quarterly Calculation Date following the Closing Date (which will be the Quarterly Calculation Date preceding the Quarterly Payment Date occurring in December 2021), clause (ii) shall be deemed to equal the Debt Service for the three most recently ended Quarterly Fiscal Periods plus the Debt Service Due for the Quarterly Payment Date occurring in March 2021 (as adjusted as set forth in the definition of Debt Service to account for the irregular number of days in the initial Interest Accrual Period).
For purposes of calculating the DSCR for any period during which one or more Permitted Acquisitions occurs, such Permitted Acquisition (and all other Permitted Acquisitions that have been consummated during the applicable period) shall be deemed to have occurred as of the first day of the applicable period of measurement for the purpose of calculating Net Cash Flow, and all income statement items (whether positive or negative) attributable to the property or Person acquired in such Permitted Acquisition shall be included, together with such adjustments included in Adjusted EBITDA and Senior Leverage Ratio in accordance with the definitions thereof.
“DTC” means the Depository Trust Company together with its successors and assigns.
“EBITDA” means, with respect to the Wingstop Entities, Consolidated Net Income, plus (i) Consolidated Interest Expense (net of consolidated interest income to the extent included in Consolidated Net Income for such period), (ii) income and franchise tax expense or benefit and (iii) depreciation, amortization and other non-cash charges.
“Eligible Account” means (a) a segregated identifiable trust account established in the trust department of a Qualified Trust Institution or (b) a separately identifiable deposit or securities account established at a Qualified Institution.
“Eligible Assets” means any asset used or useful to the Securitization Entities or Company-Owned Restaurants in the operation of the Wingstop Brand or their other assets, including, without limitation, (i) capital assets, capital expenditures, renovations or improvements or other assets intended to generate revenue for the Securitization Entities or (ii) distributions to any Non-Securitization Entity that will be used to fund capital assets, capital expenditures, renovations or improvements or other assets intended to generate revenue for one or more Company-Owned Restaurants.
“Eligible Investments” means (a) time or demand deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) whose short-term debt is rated at least “A-2” (or then equivalent grade) by S&P and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than ninety (90) days from the date of acquisition thereof; (b) readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than three hundred sixty (360) days from the date of acquisition thereof; provided that the full faith and credit of the United States of America is pledged in support thereof; (c) commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least “A-2” (or the then equivalent grade) by S&P, with maturities of not more than one hundred eighty (180) days from the date of acquisition thereof; and (d) investments, classified in accordance with GAAP as current assets of the relevant Person making such investment, in money market investment programs registered under the Investment Company Act, which have the highest rating obtainable from S&P, and the portfolios of which are invested primarily in investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition. Notwithstanding the foregoing, all Eligible Investments must either (A) be at all times available for withdrawal or liquidation at par (or for commercial paper issued at a discount, at
the applicable purchase price) or (B) mature on or prior to (i) in the case of the Asset Disposition Proceeds Account or Insurance Proceeds Account, the Business Day prior to the date that the relevant Asset Disposition Proceeds or Insurance/Condemnation Proceeds are required to be deposited into the Collection Account, (ii) in the case of each other Management Account and the Collection Account, the Business Day prior to the immediately succeeding Weekly Allocation Date, and (iii) in the case of each other Indenture Trust Account, the Business Day prior to the last Business Day of each Quarterly Fiscal Period.
“Eligible Third-Party Candidate” has the meaning set forth in Section 11.1(a) of this Base Indenture.
“Employee Benefit Plan” means any “employee benefit plan”, as such term is defined in Section 3(3) of ERISA, established, maintained or contributed to by any Securitization Entity, or with respect to which any Securitization Entity has any liability.
“Enhancement” means with respect to any Series of Notes, the rights and benefits provided to the Noteholders of such Series of Notes pursuant to any letter of credit, surety bond, cash collateral account, spread account, guaranteed rate agreement, maturity guaranty facility, tax protection agreement, interest rate swap or any other similar arrangement entered into by the Issuer in connection with the issuance of such Series of Notes as provided for in the applicable Series Supplement in accordance with the terms of this Base Indenture.
“Enhancement Agreement” means any contract, agreement, instrument or document governing the terms of any Enhancement or pursuant to which any Enhancement is issued or outstanding.
“Equity Interests” means any (a) membership interest in any limited liability company, (b) general or limited partnership interest in any partnership, (c) common, preferred or other stock interest in any corporation, (d) share, participation, unit or other interest in the property or enterprise of an issuer that evidences ownership rights therein, (e) ownership or beneficial interest in any trust or (f) option, warrant or other right to convert any interest into or otherwise receive any of the foregoing.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections.
“Euroclear” means Euroclear Banking, S.A./N.V., or any successor thereto, as operator of the Euroclear System.
“Event of Bankruptcy” shall be deemed to have occurred with respect to a Person if:
(a) a case or other proceeding is commenced, without the application or consent of such Person, in any court, seeking the liquidation, reorganization, debt arrangement, dissolution, winding up or composition or readjustment of debts of such Person, the appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like for such Person or all or any substantial part of its assets, or any similar action with respect to such Person under any law relating to Insolvency, winding up or composition or adjustment of debts, and such case or proceeding continues undismissed, or unstayed and in effect, for a period of sixty (60) consecutive days; or an order for relief in respect of such Person is entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or
(b) such Person commences a voluntary case or other proceeding under any applicable Insolvency, debt arrangement, dissolution or other similar law now or hereafter in effect, or consents to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) for such Person or for any substantial part of its property, or makes any general assignment for the benefit of creditors; or
(c) the board of directors or board of managers (or similar body) of such Person votes to implement any of the actions set forth in clause (b) above.
“Event of Default” means any of the events set forth in Section 9.2 of this Base Indenture.
“Excepted Securitization IP Assets” means (i) any right to use third-party Intellectual Property pursuant to a license to the extent such rights are not able to be pledged; and (ii) any application for registration of a Trademark that would be invalidated, canceled, voided or abandoned due to the grant and/or enforcement of an assignment or security interest, including intent-to-use applications filed with the USPTO pursuant to 15 U.S.C. Section 1051(b) prior to the filing of a statement of use or amendment to allege use pursuant to 15 U.S.C. Section 1051(c) or (d); provided that at such time as the grant and/or enforcement of the assignment or security interest would not cause such application to be invalidated, canceled, voided or abandoned, such Trademark application will not be considered an “Excepted Securitization IP Asset”.
“Excess Class A-1 Notes Administrative Expenses Amount” means, for each Weekly Allocation Date, an amount equal to the amount by which (a) the Class A-1 Notes Administrative Expenses that have become due and payable prior to such Weekly Allocation Date and have not been previously paid exceed (b) the Capped Class A-1 Notes Administrative Expenses Amount for such Weekly Allocation Date.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Amounts” consist of (i) Advertising Fees; (ii) amounts in respect of sales taxes and other comparable taxes (if any) that are due and payable to a Governmental Authority or other unaffiliated third party; (iii) withholding and other statutory taxes (if any) included in Collections but required to be remitted to a Governmental Authority; (iv) amounts paid by Franchisees to the Manager in respect of fees or expenses payable to unaffiliated third parties for services provided to Franchisees, including, without limitation, rental payments, property taxes, insurance and common area maintenance expenses on subleased franchised restaurant locations which have been paid or are payable by the Manager to a third party landlord, bona fide third-party repairs and maintenance fees, advertising agency fees and production costs, surveys, third-party audits, food safety audits, mystery shoppers, consulting fees, franchise brokerage fees and software licensing and subscription fees; (v) fees and expenses paid by or on behalf of any Securitization Entity in connection with registering, maintaining and enforcing the Securitization IP or the payment of third-party Intellectual Property licensing and subscription fees, or any other fees, expenses or costs in connection with indemnification obligations and other obligations under any license, (vi) any proceeds from or collections in respect of Non-Contributed Property; (vii) amounts paid by Franchisees to the Manager relating to goods or corporate services provided by the Manager, including, without limitation, repairs and maintenance, asset development services, gift card administration, employee training and maintenance and support of store-level and above store-level information technology systems, including, without limitation, point-of-sale, back of house, technology fees, mobile order and/or mobile payment systems, vendor rebates, vendor sourcing surcharges, vendor approval fees and other vendor contribution payments, in each case to the extent such goods or services are not provided by the Manager pursuant to the Management Agreement; (viii) any amounts received under the Contributed Vendor Rebate Contracts or any New Vendor Rebate Contracts (A) by Company-Owned Restaurants in the ordinary course of business, (B) in respect of annual convention payments or Franchisee “brand partner” meeting payments, (C) in respect of promotional payments or other direct advertising to fund existing or future national and international marketing and advertising activities or materials for the Wingstop Brand or (D) from Performance Food Group or any other Wingstop System-wide food distributor, (ix) gift card program amounts; (x) account expenses and fees paid to the banks at
which the Management Accounts are held; (xi) tenant improvement allowances and similar amounts received from landlords (if any); (xii) proceeds of directors’ and officers’ insurance; (xiii) amounts received as reimbursement for hotel, travel and training costs in connection with Franchisee training or operational programs; (xiv) insurance and condemnation proceeds payable by the Securitization Entities to third parties or by Franchisees to the Manager or the Securitization Entities; (xv) any amounts that cannot be transferred to the Concentration Account or the Collection Account due to applicable law, (xvi) any revenue sharing, brokerage or other fees, costs and expenses related to licenses and (xvii) any other amounts deposited into the Concentration Account or otherwise included in Collections that are not required to be deposited into the Collection Account pursuant to any Transaction Document. Excluded Amounts will not be transferred into the Collection Account and therefore will not be available to pay interest on and principal of the Notes. Excluded Amounts will not constitute Collateral for the Securitization Transaction regardless of whether such amounts are deposited into Management Accounts.
“Excluded IP” means (i) any Software licensed to or on behalf of a Non-Securitization Entity and (ii) any proprietary Software owned by a Non-Securitization Entity.
“Extension Period” means, with respect to any Series or any Class of any Series of Notes, the period from the Series Anticipated Repayment Date (or any previously extended Series Anticipated Repayment Date) with respect to such Series or Class to the Series Anticipated Repayment Date with respect to such Series or Class as extended in connection with the provisions of the applicable Series Supplement.
“FDIC” means the U.S. Federal Deposit Insurance Corporation.
“FATCA” means Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereunder or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, any published intergovernmental agreement entered into in connection with the implementation of such sections of the Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to such published intergovernmental agreement.
“Final Series Legal Final Maturity Date” means the Series Legal Final Maturity Date with respect to the last Series of Notes Outstanding.
“Financial Assets” has the meaning set forth in Section 5.8(b) of this Base Indenture.
“Fiscal Quarter Percentage” means (i) with respect to each Weekly Allocation Date relating to the initial Quarterly Fiscal Period, 12.5%, and (ii) with respect to each other Weekly Allocation Date, 10%.
“Franchise Agreement” means a franchise or license agreement whereby a third-party that is unaffiliated with Parent is duly authorized by a Wingstop Entity, and agrees, to operate a Branded Restaurant, including a multi-unit license agreement pursuant to which such third-party is authorized to operate multiple Branded Restaurants.
“Franchise Assets” means, collectively, with respect to Wingstop Franchisor (i) all Contributed Franchise Agreements and Contributed Development Agreements and all Franchisee Payment Amounts thereon; (ii) all New Franchise Agreements and New Development Agreements and all Franchisee Payment Amounts thereon, (iii) all rights to enter into New Franchise Agreements and New Development Agreements for Branded Restaurants; (iv) the Franchisee Notes, if any; and (v) any and all other property of every nature, now or hereafter transferred, mortgaged, pledged or assigned as security for payment or performance of any obligation of the Franchisees or other Persons, as applicable, to Wingstop Franchisor under its Franchise Agreements and Development Agreements and all guarantees of such obligations and the rights evidenced by or reflected in such Franchise Agreements and Development
Agreements, together, in each case, with all payments, proceeds and accrued and future rights to payment thereon.
“Franchise Capital Account” means one or more accounts (which may, at the election of the Manager, be an Interest Reserve Account) into which the Manager may cause unrestricted funds of or contributed to Wingstop Franchisor or to any Future Securitization Entity that from time to time acts as the “franchisor” or licensor with respect to Franchise Agreements or Development Agreements to be credited in support of any franchisor liquidity or net worth requirement of any Governmental Authority applicable to Wingstop Franchisor or such Future Securitization Entity, including in respect of eligibility for any exemptions applicable to franchisors or licensors of franchises.
“Franchise Documents” means, collectively, all Franchise Agreements (including master franchise agreements and related service or license agreements), Development Agreements and agreements related thereto, together with any modifications, amendments, extensions or replacements of the foregoing.
“Franchised Restaurants” means collectively, the Original Closing Date Franchised Restaurants and the New Franchised Restaurants.
“Franchisee” means any Person that is a franchisee or licensee under a Franchise Agreement.
“Franchisee Note” means each note issued after the Original Closing Date by a Franchisee and owing to Wingstop Franchisor.
“Franchisee Payment Amounts” means any amounts payable by or on behalf of a Franchisee (or a prospective Franchisee under a Development Agreement) to a Securitization Entity, including, without limitation, Franchisee Royalty Payments and payments in respect of Franchisee Notes, other than Excluded Amounts.
“Franchisee Royalty Payments” means any amounts payable by or on behalf of a Franchisee or a prospective Franchisee under a Franchise Agreement or a Development Agreement to a Securitization Entity, including, without limitation, all initial franchise fees, development fees, royalties and all other fees or amounts payable to any Securitization Entity by or on behalf of Franchisees under the Franchise Documents, other than Excluded Amounts.
“Funding Holdco” means Wingstop Guarantor LLC, a Delaware limited liability company and an indirect, wholly owned subsidiary of Wingstop.
“Future Securitization Entity” means any entity that becomes a direct or indirect wholly-owned special purpose Subsidiary of Funding Holdco, the Issuer or Wingstop Franchisor after the Closing Date in accordance with and as permitted under the Transaction Documents and is designated by the Manager as a “Future Securitization Entity” pursuant to Section 8.30. The Future Securitization Entities will be formed or reconstituted as special purpose entities with two (2) independent managers or independent directors that meet the published criteria of each then-applicable Rating Agency.
“GAAP” means the generally accepted accounting principles in the United States promulgated or adopted by the Financial Accounting Standards Board and its predecessors and successors in effect from time to time; provided that for purposes of computing each of the Holdco Leverage Ratio and the Senior Leverage Ratio (including any financial and accounting terms included in the components thereof), Original Closing Date GAAP will continue to apply irrespective of any change in Current GAAP after the Original Closing Date; provided, further, that the Manager, in accordance with the Managing Standard, may amend this definition as it applies to the computation of the Holdco Leverage Ratio or the Senior Leverage Ratio (including any financial and accounting terms included in the components thereof)
to reflect Original Closing Date GAAP or Current GAAP, as applicable, in each case with the consent of the Control Party.
“Government Securities” means readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof and as to which obligations the full faith and credit of the United States of America is pledged in support thereof.
“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision of the foregoing, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Gross Sales” means the aggregate revenues a Branded Restaurant receives from the sale of, or the provision of services with respect to, food, beverages, other menu items and other merchandise, whether for cash or on credit, less (i) applicable sales taxes such Branded Restaurant collects and remits to the appropriate tax authority, (ii) valid coupon credits and employee discounts deducted from revenues initially recorded as Gross Sales, and (iii) revenue such Branded Restaurant derives from selling or issuing Wingstop-branded gift or loyalty cards (although revenue such Branded Restaurant derives from selling products and services to customers using those cards for payment is included in Gross Sales), but without deduction of any other costs or expenses whatsoever.
“Guarantee” means, as to any Person, any (a) obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable or performable by another Person (the “Primary Obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness of the payment or performance of such Indebtedness, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) Lien on any assets of such Person securing any Indebtedness of any other Person, whether or not such Indebtedness is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided, however, that the term “Guarantee” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or entered into in connection with any acquisition or disposition of assets permitted hereby (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be (i) with respect to a Guarantee pursuant to clause (a) above, an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith or (ii) with respect to a Guarantee pursuant to clause (b) above, the fair market value of the assets subject to (or that could be subject to) the related Lien. The term “Guarantee” as a verb has a corresponding meaning; provided that, the Manager, in accordance with the Managing Standard, may amend this definition of “Guarantee” after the Closing Date with the consent of the Control Party including, without limitation, in connection with any change of control.
“Guarantee and Collateral Agreement” means the Amended and Restated Guarantee and Collateral Agreement, dated as of the Closing Date, by and among the Guarantors and the Trustee, as amended, supplemented or otherwise modified from time to time.
“Guarantors” means Funding Holdco and Wingstop Franchisor and any other guarantors from time to time party to the Guarantee and Collateral Agreement.
“Hedge Counterparty” means an institution that enters into a Swap Contract with one or more Securitization Entities to provide certain financial protections with respect to changes in interest rates applicable to a Class, Subclass, Tranche or Series of Notes if and as specified in the applicable Series Supplement.
“Hedge Payment Account” means an account (including any investment accounts related thereto) in the name of the Trustee, for the benefit of the Secured Parties, into which amounts payable to a Hedge Counterparty are deposited, bearing a designation clearly indicating that the funds deposited therein are held by the Trustee for the benefit of the Secured Parties.
“Holdco Leverage Ratio” means, as of the date of the incurrence of any Indebtedness by any Wingstop Entity, the ratio of (a) (i) Indebtedness of the Wingstop Entities at such time, giving effect to the incurrence of such Indebtedness (provided, that with respect to each Series of Class A-1 Notes or any other series of revolving notes Outstanding, the aggregate principal amount of such Series of Class A-1 Notes or such other series of revolving notes will be deemed to be equal to the Class A-1 Notes Maximum Principal Amount or maximum principal amount for such Series), less (ii) the sum of (w) the cash and cash equivalents of the Securitization Entities credited to the Interest Reserve Accounts (including any Franchise Capital Account), the Cash Trap Reserve Account and the Principal Payment Account(s) as of the most recently ended Quarterly Fiscal Period, (x) the cash and cash equivalents of the Securitization Entities maintained in the Management Accounts as of the end of the most recently ended Quarterly Fiscal Period that, pursuant to a Weekly Manager’s Certificate will have been paid to the Manager or constituted the Residual Amount on the related Weekly Allocation Date after the end of the most recently ended Quarterly Fiscal Period, (y) the available amount of each Interest Reserve Letter of Credit as of the end of the most recently ended Quarterly Fiscal Period and (z) the unrestricted cash and cash equivalents of the Wingstop Entities as of the end of the most recently ended Quarterly Fiscal Period (in each case, excluding any unrestricted cash or cash equivalents contributed to the Wingstop Entities solely with the intent of satisfying such condition in bad faith and immediately redistributed to the parent companies of the Wingstop Entities) to (b) Adjusted EBITDA of the Wingstop Entities for the four Quarterly Fiscal Periods most recently ended as of such date and for which financial statements are required to have been delivered. The Manager, in accordance with the Managing Standard, may amend the definition of “Holdco Leverage Ratio” with the consent of the Control Party.
“Hot Back-Up Management Duties” has the meaning set forth in the Back-Up Management Agreement.
“Hot Back-Up Management Trigger Event” has the meaning set forth in the Back-Up Management Agreement.
“Improvements” means, with respect to any Intellectual Property, proprietary rights in any additions, modifications, developments, variations, refinements, enhancements or improvements that are derivative works as defined and recognized by applicable Requirements of Law.
“Indebtedness” means, as applied to any Person, if and to the extent the same would constitute indebtedness or a liability on a balance sheet prepared in accordance with GAAP, without duplication, (a) all indebtedness for borrowed money in any form, including net obligations in respect of derivatives, (b) all notes payable, (c) any obligation owed for all or any part of the deferred purchase price for property or services, which purchase price is (i) due more than one year from the date of the incurrence of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument (other than (x) such obligations accrued in the ordinary course, (y) an earn-out obligation until such obligation becomes a liability on the balance sheet of such Person under GAAP, and (z) liabilities associated with prepayments and deposits received by that Person), (d) all indebtedness secured by any Lien on any property or asset owned by that Person regardless of whether the indebtedness secured thereby has been assumed by that Person or is nonrecourse to the credit of that Person, and (e) all Guarantees of such Person in respect of any of the foregoing.
Notwithstanding the foregoing, Indebtedness will not include (i) trade accounts and accrued expenses payable in the ordinary course of business, (ii) intercompany indebtedness among Non-Securitization Entities, (iii) any liability for federal, state, local or other taxes owed or owing to any governmental entity, (iv) amounts payable under third-party license agreements and third-party supply agreements or similar trade debt incurred in the ordinary course of business and in a manner consistent with the Managing Standard, (v) that portion of obligations with respect to any lease of any property, whether real, personal or mixed, (vi) prepaid or deferred revenue, (vii) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase prices of an asset to satisfy unperformed obligations of the seller of such asset, (viii) defined benefit liabilities, (ix) obligations of any advertising fund, marketing fund, technology fund or similar fund or (x) liabilities under tax receivable agreements to the extent associated with a corresponding tax asset.
The Manager, in accordance with the Managing Standard, may amend this definition of “Indebtedness” after the Closing Date with the consent of the Control Party including, without limitation, in connection with any change of control.
“Indemnification Amount” means (i) with respect to any Franchise Asset, Contributed Vendor Rebate Contract or New Vendor Rebate Contract, an amount equal to the Allocated Note Amount for such asset and (ii) with respect to any Securitization IP, any amount required to reimburse the applicable Securitization Entity for the expenses related to defending or enforcing its rights in such Securitization IP.
“Indenture” means this Base Indenture, together with all Series Supplements, as amended, supplemented or otherwise modified from time to time by Supplements thereto in accordance with its terms.
“Indenture Collateral” has the meaning set forth in Section 3.1(a) of this Base Indenture.
“Indenture Documents” means, with respect to any Series of Notes, collectively, this Base Indenture, the related Series Supplement, the Notes of such Series, the Guarantee and Collateral Agreement, the related Account Control Agreements, any related Class A-1 Note Purchase Agreement and any other agreements relating to the issuance or the purchase of the Notes of such Series or the pledge of Collateral under any of the foregoing.
“Indenture Trust Accounts” means, collectively, the Collection Account, the Cash Trap Reserve Account, the Class A-1 Notes Commitment Fees Account, the Interest Payment Account(s), the Interest Reserve Accounts (certain of which Interest Reserve Accounts may also, at the election of the Manager, serve as a Franchise Capital Account), the Principal Payment Account(s), the Securitization Operating Expense Account, the Post-ARD Contingent Additional Interest Account(s), the Hedge Payment Account, the Series Distribution Accounts and such other accounts as the Trustee may establish from time to time pursuant to its authority to establish additional accounts pursuant to the Indenture.
“Independent” means, as to any Person, any other Person (including, in the case of an accountant or lawyer, a firm of accountants or lawyers and any member thereof or an investment bank and any member thereof) who (i) does not have and is not committed to acquire any material direct or any material indirect financial interest in such Person or in any Affiliate of such Person and (ii) is not connected with such Person or an Affiliate of such Person as an officer, employee, promoter, underwriter, voting trustee, partner, director or Person performing similar functions. “Independent” when used with respect to any accountant may include an accountant who audits the books of such Person if, in addition to satisfying the criteria set forth above, the accountant is independent with respect to such Person within the meaning of Rule 101 of the Code of Ethics of the American Institute of Certified Public Accountants. Whenever any Independent Person’s opinion or certificate is to be furnished to the Trustee, such opinion or certificate shall state that the signer has read this definition and that the signer is Independent within the meaning hereof.
“Independent Auditors” means the Independent registered public accounting firm appointed pursuant to the Management Agreement or any successor Independent registered public accounting firm.
“Independent Manager” means, with respect to any limited liability company or corporation, an individual who has prior experience as an independent director, independent manager or independent member with at least three years of employment experience and who is provided by Corporation Service Company, CT Corporation, Lord Securities Corporation, National Registered Agents, Inc., Stewart Management Company, Wilmington Trust, National Association, Wilmington Trust SP Services, Inc., Citadel SPV LLC, or, if none of those companies is then providing professional independent managers, another nationally-recognized company reasonably approved by the Trustee, in each case that is not an Affiliate of such Person and that provides professional independent managers and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Manager and is not, and has never been, and will not while serving as Independent Manager be, any of the following:
(i) a member, partner, equityholder, manager, director, officer or employee of such Person, the member or shareholder thereof, or any of their respective equityholders or Affiliates (other than as an independent manager or special member of such Person or an Affiliate of such Person that is not in the direct chain of ownership of such Person (except for a Securitization Entity) and that is required by a creditor to be a single purpose bankruptcy remote entity; provided that such independent manager is employed by a company that routinely provides professional independent directors or managers in the ordinary course of its business);
(ii) a creditor, supplier or service provider (including a provider of professional services) to such Person, or any of its equityholders or Affiliates (other than a nationally-recognized company that routinely provides professional independent directors or managers and other corporate services to such Person or any of its equityholders or Affiliates in the ordinary course of its business);
(iii) a family member of any such member, partner, equityholder, manager, director, officer, employee, creditor, supplier or service provider; or
(iv) a Person that controls (whether directly, indirectly or otherwise) any Person described in clause (i), (ii) or (iii) above.
A natural person who otherwise satisfies the foregoing definition and satisfies clause (i) by reason of being the independent director or manager of a “special purpose entity” which is an Affiliate of any Person shall be qualified to serve as an Independent Manager of such Person; provided that the fees that such individual earns from serving as independent director or manager of any Affiliate of such Person in any given year constitute in the aggregate less than 5% of such individual’s annual income for that year.
“Ineligible Account” has the meaning set forth in Section 5.18 of this Base Indenture.
“Initial Fiscal Year” means the period commencing on the first day of the Weekly Collection Period that includes the Closing Date and ending on (and including) the last Weekly Collection Period of the 2020 fiscal year of the Securitization Entities.
“Initial Principal Amount” means, with respect to any Series, Class (or Subclass) or Tranche of Notes, the aggregate initial principal amount of such Series, Class (or Subclass) or Tranche of Notes specified in the applicable Series Supplement.
“Initial Quarterly Payment Date” means the Quarterly Payment Date occuring in September 2022with respect to any Series of Notes, has the meaning specified in the applicable Series Supplement.
“Insolvency” means any liquidation, insolvency, Event of Bankruptcy, rehabilitation, composition, reorganization or conservation; and when used as an adjective, “Insolvent”.
“Insolvency Law” means any applicable federal, state or foreign law relating to liquidation, insolvency, bankruptcy, rehabilitation, composition, reorganization, conservation or other similar law now or hereafter in effect.
“Insurance/Condemnation Proceeds” means an amount equal to: (i) any cash payments or proceeds received by the Securitization Entities (a) by reason of theft, physical destruction or damage or any other similar event with respect to any properties or assets of the Securitization Entities under any policy of insurance (other than liability insurance) in respect of a covered loss thereunder or (b) as a result of any non-temporary condemnation, taking, seizing or similar event with respect to any properties or assets of the Securitization Entities by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable documented costs incurred by the Securitization Entities in connection with the adjustment or settlement of any claims of the Securitization Entities in respect thereof and (b) any bona fide direct costs incurred in connection with any disposition of such assets as referred to in clause (i)(b) of this definition, including income taxes reasonably estimated to be actually payable by the Securitization Entities’ direct or indirect parent as a result of any gain recognized in connection therewith. For the avoidance of doubt, “Insurance/Condemnation Proceeds” shall not include any proceeds of policies of insurance not described above, such as business interruption insurance and other insurance procured in the ordinary course of business, which shall be treated as ordinary Collections.
“Insurance Proceeds Account” means an account in the name of the Issuer subject to an Account Control Agreement for the deposit of Insurance/Condemnation Proceeds pursuant to Section 5.10(d) of this Base Indenture or any successor account.
“Intellectual Property” or “IP” means all rights in intellectual property of any type throughout the world, including (i) all U.S., state and non-U.S. trademarks, service marks, trade names, trade dress, designs, logos, slogans and other indicia of source or origin, whether registered or unregistered, registrations and pending applications to register the foregoing, internet domain names, and all goodwill of any business connected with the use thereof or symbolized thereby (“Trademarks”); (ii) all patents (including, during the term of a patent, the inventions claimed thereunder) and industrial designs (including any continuations, extensions, divisionals, continuations in part, provisionals, reissues, and re-examinations thereof) (“Patents”); (iii) all rights in computer programs, including in both source code and object code therefor, together with related documentation and explanatory materials and databases, including any Copyrights, Patents and Trade Secrets therein (“Software”); (iv) all copyrights (whether registered or unregistered) in unpublished and published works (“Copyrights”); (v) all trade secrets and other confidential or proprietary information, including with respect to unpatented inventions, operating procedures, know how, procedures and formulas for preparing food and beverage products, specifications for certain food and beverage products, inventory methods, customer service methods, financial control methods and training techniques (“Trade Secrets”); (vi) all social media account names or identifiers (e.g., Twitter® handle or Facebook® account name); (vii) all Improvements of or to any of the foregoing; and (viii) all registrations, applications for registration or issuances, recordings, renewals and extensions relating to any of the foregoing.
“Interest Accrual Period” means a period commencing on and including the fifth (5) day of the calendar month in which the immediately preceding Quarterly Payment Date occurred and ending on but excluding the fifth (5th) day of the calendar month that includes the then-current Quarterly Payment
Date, in each case without giving effect to any Business Day Adjustment; provided that the initial Interest Accrual Period for any Series will commence on and include the Series Closing Date and end on but exclude the fifth (5th) day of the calendar month that includes the next Quarterly Payment Date (unless otherwise specified in the applicable Series Supplement); provided, further, that, for any Series, the Interest Accrual Period immediately preceding the Quarterly Payment Date on which the last payment on the Notes of such Series is to be made will end on such Quarterly Payment Date; provided, further, that, solely with respect to any Class A-1 Notes of any Series of Notes, the Interest Accrual Period shall be the applicable Interest Accrual Period specified in the applicable Series Supplement and Class A-1 Note Purchase Agreement.
“Interest-Only DSCR” means the DSCR calculated as of any Quarterly Calculation Date without giving effect to clause (D) of the definition of “Debt Service”.
“Interest Payment Account” means each of the Senior Notes Interest Payment Account, the Senior Subordinated Notes Interest Payment Account and the Subordinated Notes Interest Payment Account.
“Interest Reserve Account” means each of the Senior Notes Interest Reserve Account and the Senior Subordinated Notes Interest Reserve Account.
“Interest Reserve Letter of Credit” means any letter of credit issued under a Class A-1 Note Purchase Agreement for the benefit of the Trustee and the Control Party, in each case on behalf of the Senior Noteholders or the Senior Subordinated Noteholders, as applicable.
“Interest Reserve Release Event” means, as of any date of determination and with respect to the Senior Notes or Senior Subordinated Notes Outstanding, as applicable, the determination by the Manager, in accordance with the Managing Standard, that as of the immediately following Weekly Allocation Date (A) the amount on deposit in the Senior Notes Interest Reserve Account or the Senior Subordinated Notes Interest Reserve Account, as applicable will be greater than (B) the excess of (i) the Senior Notes Interest Reserve Amount or the Senior Subordinated Notes Interest Reserve Amount, as applicable over (ii) the amount available under any Interest Reserve Letter of Credit relating to the Senior Notes or the Senior Subordinated Notes, as applicable.
“Interim Successor Manager” means upon the resignation or termination of the Manager pursuant to the terms of the Management Agreement and prior to the appointment of any successor to the Manager by the Control Party (at the direction of the Controlling Class Representative), the Back-Up Manager.
“International Franchisee Payment Account(s)” means the account established and maintained at JPMorgan Chase Bank, N.A. and subject to an Account Control Agreement into which the Manager shall cause to be deposited international Franchisee Payment Amounts and amounts from international Franchisees that constitute Excluded Amounts pursuant to the terms of this Base Indenture, together with any successor account(s) established for Wingstop Franchisor by the Manager for such purpose pursuant to this Base Indenture and the Management Agreement.
“Investment Company Act” means the Investment Company Act of 1940, as amended.
“Investment Income” means the investment income earned on a specified account during a specified period, in each case net of all losses and expenses allocable thereto.
“Investments” means, with respect to any Person(s), all investments by such Person(s) in other Persons in the form of loans (including guarantees), advances or capital contributions (excluding (x) accounts receivable, (y) trade credit and advances to customers and (z) commission, travel, moving and other similar advances to officers, directors, employees and consultants of such Person(s) (including
Affiliates) made in the ordinary course of business in an aggregate amount not to exceed $1,000,000 at any time outstanding), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet of such Person in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property.
“Investor Request Certification” means a certification substantially in the form of Exhibit E to this Base Indenture.
“IP License Agreement” or “IP License Agreements” means the Wingstop IP License Agreement.
“IRS” means the Internal Revenue Service.
“Issuer” means Wingstop Funding LLC, a Delaware limited liability company.
“KBRA” means Kroll Bond Rating Agency, LLC or any successor thereto.
“L/C Downgrade Event” has the meaning specified in Section 5.17(d) of this Base Indenture.
“L/C Provider” means, with respect to any Series of Class A-1 Notes, the party identified as the “L/C Provider” or the “L/C Issuing Bank”, as the context requires, in the applicable Class A-1 Note Purchase Agreement.
“Legacy Account” means, on or after the date that any Class, Series, Subclass or Tranche of Notes issued pursuant to this Base Indenture is no longer Outstanding, any account maintained by the Trustee to which funds have been allocated in accordance with the Priority of Payments for the payment of interest, fees or other amounts solely in respect of such Class, Series, Subclass or Tranche of Notes.
“Letter of Credit Reimbursement Agreement” means a reimbursement agreement, by and among Parent and the Issuer, as may be amended, supplemented or otherwise modified from time to time, which permits Letters of Credit to be issued pursuant to a Class A-1 Note Purchase Agreement that are for the sole benefit of one or more Non-Securitization Entities and that provide that the Issuer will receive a fee from each Non-Securitization Entity whose obligations are secured by any such Letter of Credit in an amount equal to the cost to the Issuer in connection with the issuance and maintenance of such Letter of Credit plus an agreed-upon margin.
“Licensee-Developed IP” means all Intellectual Property (other than the Excluded IP) created, developed, authored, acquired or owned by or on behalf of the licensee under the Wingstop IP License Agreement related to (i) the Wingstop Brand, (ii) products or services sold or distributed under the Wingstop Brand, (iii) the Branded Restaurants, (iv) the Wingstop System or (v) the Contributed Franchise Business, including, without limitation, all Improvements to any Securitization IP.
“Lien” means, when used with respect to any Person, any interest in any real or personal property, asset or other right held, owned or being purchased or acquired by such Person which secures payment or performance of any obligation, and will include any mortgage, lien, pledge, encumbrance, charge, retained security title of a conditional vendor or lessor, or other security interest of any kind, whether arising under a security agreement, mortgage, lease, deed of trust, chattel mortgage, assignment, pledge, retention or security title, financing or similar statement, or arising as a matter of law, judicial process or otherwise.
“Liquidation Fee” has the meaning set forth in the Servicing Agreement.
“Majority of Controlling Class Members” means with respect to the Controlling Class Members (or, if specified, any subset thereof) and as of any day of determination, Controlling Class Members that hold in excess of 50% of the sum of (i) the Class A-1 Notes Voting Amount with respect to each Series of Class A-1 Notes of the Controlling Class and (ii) the Outstanding Principal Amount of each Series of Notes of the Controlling Class (other than the Class A-1 Notes) or any beneficial interest therein as of such day of determination (excluding any Notes or beneficial interests in Notes held by any Securitization Entity or any Affiliate of any Securitization Entity).
“Managed Assets” means the assets that the Manager has agreed to manage and service pursuant to the Management Agreement in accordance with the standards and the procedures described therein.
“Management Accounts” means, collectively, the Concentration Account, the Asset Disposition Proceeds Account, the Franchise Capital Account, the Insurance Proceeds Account, the International Franchisee Payment Account and such other accounts as may be established by the Manager from time to time pursuant to the Management Agreement that the Manager designates as a “Management Account” for purposes of the Management Agreement, so long as each such other account is either established with the Trustee or subject to an Account Control Agreement.
“Management Agreement” means the Amended and Restated Management Agreement, dated as of the Series 2020-1 Closing Date, by and among the Manager, the Securitization Entities and the Trustee, as amended as of the Series 2022-1 Closing Date, as further amended as of the Series 2024-1 Closing Date and as further amended, amended and restated, supplemented or otherwise modified from time to time.
“Manager” means WRI, as manager under the Management Agreement, and any successor thereto.
“Manager Advance” has the meaning set forth in the Management Agreement.
“Manager-Developed IP” means all Intellectual Property (other than Excluded IP) created, developed, authored, acquired or owned by or on behalf of the Manager related to (i) the Wingstop Brand, (ii) products or services sold or distributed under the Wingstop Brand, (iii) the Branded Restaurants, (iv) the Wingstop System or (v) the Contributed Franchise Business, including, without limitation, all Improvements to any Securitization IP.
“Manager Termination Event” means the occurrence of an event specified in Section 6.1(a) of the Management Agreement.
“Managing Standard” has the meaning set forth in the Management Agreement.
“Material Adverse Effect” means:
(a)with respect to the Manager, a material adverse effect on (i) its results of operations, business, properties or financial condition, taken as a whole, (ii) its ability to conduct its business or to perform in any material respect its obligations under the Management Agreement or any other Transaction Document, (iii) the Collateral, taken as a whole, or (iv) the ability of the Securitization Entities to perform in any material respect their obligations under the Transaction Documents;
(b) with respect to the Collateral, a material adverse effect with respect to (i) the Wingstop Brand in any jurisdiction that is material to the business of the Securitization Entities or with respect to the Securitization IP, taken as a whole, the enforceability of the terms thereof, the likelihood of the payment of the amounts required with respect thereto in accordance with the terms thereof, the value thereof, or the security interest in the rights thereto granted by the Securitization Entities under the terms
of the Transaction Documents or (ii) the Franchise Assets, taken as a whole, or the Collateral, taken as a whole, the enforceability of the terms thereof, the likelihood of the payment of the amounts required with respect thereto in accordance with the terms thereof, the value thereof, the ownership thereof by the Securitization Entities (as applicable) or the Lien of the Indenture or the Guarantee and Collateral Agreement on such Collateral;
(c) with respect to any Securitization Entity, a materially adverse effect on the results of operations, business, properties or financial condition of such Securitization Entity, taken as a whole, or the ability of such Securitization Entity to conduct its business or to perform in any material respect its obligations under any of the Transaction Documents; or
(d) with respect to any Person or matter, a material impairment to the rights of or benefits available to, taken as a whole, the Securitization Entities, the Trustee or the Noteholders under any Transaction Document or the enforceability of any material provision of any Transaction Document;
provided that where “Material Adverse Effect” is used in any Transaction Document without specific reference, such term will have the meaning specified in clauses (a) through (d), as the context may require.
“Multiemployer Plan” means any Pension Plan that is a “multiemployer plan” as defined in Section 4001 of ERISA.
“Net Cash Flow” means, with respect to any Quarterly Payment Date and the immediately preceding Quarterly Fiscal Period, the amount (not less than zero) equal to:
(a) the Retained Collections with respect to such Quarterly Fiscal Period; minus
(b) the amount (without duplication) equal to the sum of (i) the Securitization Operating Expenses paid on each Weekly Allocation Date with respect to such Quarterly Fiscal Period pursuant to priority (v) of the Priority of Payments; (ii) the Weekly Management Fees and Supplemental Management Fees paid on each Weekly Allocation Date to the Manager with respect to such Quarterly Fiscal Period; (iii) the Servicing Fees, Liquidation Fees and Workout Fees paid to the Servicer on each Weekly Allocation Date with respect to such Quarterly Fiscal Period; and (iv) the amount of Class A-1 Notes Administrative Expenses paid on each Weekly Allocation Date with respect to such Quarterly Fiscal Period; minus
(c) the amount, if any, by which equity contributions included in such Retained Collections exceeds the relevant amount of Retained Collections Contributions permitted to be included in Net Cash Flow pursuant to Section 5.16 of this Base Indenture;
Funds released from the Cash Trap Reserve Account or the Interest Reserve Account(s) (other than such funds expressly constituting Collections pursuant to the definition thereof) will not constitute Retained Collections for purposes of the definition of “Net Cash Flow”.
“New Assets” means a New Franchise Agreement, a New Development Agreement, a New Vendor Rebate Contract or any other Managed Asset contributed to, or otherwise entered into or acquired by, the Securitization Entities after the Original Closing Date.
“New Development Agreements” means all Development Agreements and related guaranty agreements entered into by Wingstop Franchisor after the Original Closing Date.
“New Franchise Agreements” means all Franchise Agreements and related guaranty agreements entered into by Wingstop Franchisor after the Original Closing Date, in its capacity as
franchisor for Branded Restaurants (including all renewals thereof and of Contributed Franchise Agreements).
“New Franchised Restaurants” means Branded Restaurants that are owned and operated by Franchisees pursuant to a Franchise Agreement entered into by Wingstop Franchisor after the Original Closing Date.
“New Vendor Rebate Contracts” means all Vendor Rebate Contracts contributed to Wingstop Franchisor pursuant to the applicable Contribution Agreements or entered into by Wingstop Franchisor or any other Wingstop Entity from time to time after the Original Closing Date (including any amendments or renewals of the same); provided that New Vendor Rebate Contracts shall be deemed to include any Vendor Rebate Contract that, in the good faith determination of the Manager, (i) individually, or together with any other Vendor Rebate Contract, was entered into to replace a similar product or service set forth in a then-existing Contributed Vendor Rebate Contract or New Vendor Rebate Contract and (ii) would not reasonably have been expected to generate Retained Collections of less than $100,000 in the prior Fiscal Year if such agreement had been contributed to, or entered into by, Wingstop Franchisor prior to the beginning of such Fiscal Year (assuming the Securitization Transactions had occurred).
“New York UCC” has the meaning set forth in Section 5.8(b) of this Base Indenture.
“Non-Amortization Test Date” means any date designated as a “Non-Amortization Test Date” in any Series Supplement.
“Non-Contributed Property” means all property of Parent and the other Non-Securitization Entities that is not contributed to the Securitization Entities, including, without limitation:
(a) all real property and real estate leases;
(b) the ownership interest of Parent in each of its subsidiaries (other than the Issuer and Wingstop Franchisor);
(c) the Company-Owned Restaurants and all contracts and agreements relating thereto;
(d) any employment, consulting or independent contractor agreements with respect to employees, consultants or independent contractors of Non-Securitization Entities after the Original Closing Date;
(e) any vendor, supplier, distribution, sponsorship, and other similar third-party agreements (other than the Contributed Vendor Rebate Contracts and New Vendor Rebate Contracts);
(f) any Excluded Amounts and Excluded IP; and
(g) the Ad Fund and the proceeds therein.
“Nonrecoverable Advance” means any portion of an Advance previously made and not previously reimbursed, or proposed to be made, which, together with any then-outstanding Advances, and the interest accrued or that would reasonably be expected to accrue thereon, in the reasonable and good faith judgment of the Servicer or the Trustee, as applicable, would not be ultimately recoverable from subsequent payments or collections from any funds on deposit in the Collection Account or funds reasonably expected to be deposited in the Collection Account following such date of determination, giving due consideration to allocations and disbursements of funds in such accounts and the limited assets of the Securitization Entities.
“Non-Securitization Affiliate” has the meaning specified in Section 8.24(a)(i) of this Base Indenture.
“Non-Securitization Entity” means Parent and each of its direct and indirect subsidiaries other than the Securitization Entities.
“Note Owner” means, with respect to a Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note, as reflected on the books of the Clearing Agency that holds such Book-Entry Note, or on the books of a Person maintaining an account with such Clearing Agency (directly or as an indirect participant, in accordance with the rules of such Clearing Agency).
“Note Owner Certificate” has the meaning specified in Section 11.5(b) of this Base Indenture.
“Note Purchase Agreement” means each note purchase agreement entered into by the Issuer in connection with the issuance of Notes hereunder, which in the case of any Class A-1 Notes shall be identified as a “Class A-1 Note Purchase Agreement” in the applicable Series Supplement.
“Note Rate” means, with respect to any Series, Class, Subclass or Tranche of Notes, the annual rate at which interest (other than contingent or additional interest) accrues on the Notes of such Series, Class, Subclass or Tranche of Notes (or the formula on the basis of which such rate will be determined) as stated in the applicable Series Supplement.
“Note Register” means the register maintained pursuant to Section 2.5(a) of this Base Indenture, providing for the registration of the Notes and transfers and exchanges thereof, subject to such reasonable regulations as the Issuer may prescribe.
“Note Registrar” has the meaning specified in Section 2.5(a) of this Base Indenture.
“Noteholder” or “Holder” means the Person in whose name a Note is registered in the Note Register.
“Notes” has the meaning specified in the recitals to this Base Indenture.
“Notes Discharge Date” means, with respect to any Class, Subclass, Series or Tranche of Notes, the first date on which such Class, Subclass, Series or Tranche of Notes is no longer Outstanding.
“Obligations” means (a) all principal, interest, premiums, make-whole payments, and Series Hedge Payment Amounts, if any, at any time and from time to time, owing by the Issuer on the Notes or owing by the Guarantors pursuant to the Guarantee and Collateral Agreement, (b) the payment and performance of all other obligations, covenants and liabilities of the Issuer or the Guarantors arising under the Indenture, the Notes, any other Indenture Document, the Back-Up Management Agreement or the Servicing Agreement or of the Guarantors under the Guarantee and Collateral Agreement and (c) the obligation of the Issuer to pay to the Trustee all fees and expenses payable to the Trustee under the Indenture and the other Transaction Documents to which it is a party.
“Offering Memorandum” means, with respect to any Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, the final offering memorandum, private placement memorandum or other offering document pursuant to which such Notes are offered for sale to prospective Noteholders.
“Officer’s Certificate” means a certificate signed by an Authorized Officer of the party delivering such certificate.
“Omitted Payable Sums Certification” has the meaning set forth in the Servicing Agreement.
“Omnibus Amendment and Reaffirmation Agreement” means the Omnibus Amendment and Reaffirmation Agreement, dated as of October 30, 2020, by and among the Issuer, Funding Holdco, Wingstop Franchisor, the Manager, the Trustee, the Servicer, the Back-Up Manager, Barclays Bank PLC and Barclays Capital Inc.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee and the Control Party. The counsel may be an employee of, or counsel to, the Securitization Entities, Parent, the Manager or the Back-Up Manager, as the case may be.
“Optional Prepayment Accrued Principal Release Amount” means, in the event of an optional prepayment in part in accordance with the terms of any Series Supplement in respect of Senior Notes, an amount, if positive, equal to the excess of (i) amounts on deposit in the Senior Notes Principal Payment Account over (ii) such amount that would have otherwise accrued for the relevant period based on the Senior Notes Accrued Scheduled Principal Payments Amount as adjusted after such optional prepayment. Optional Prepayment Accrued Principal Release Amounts shall be withdrawn from the Senior Notes Principal Payment Account and deposited in the Collection Account as Collections to be applied on the next Weekly Allocation Date in accordance with the Priority of Payments as directed in the related Weekly Manager’s Certificate.
“Optional Scheduled Principal Payment” means, each principal payment with respect to any Series of Notes, or Class, Subclass or Tranche thereof identified as an “Optional Scheduled Principal Payment” in the applicable Series Supplement.
“Original Amended and Restated Base Indenture” has the meaning specified in the recitals to this Base Indenture.
“Original Closing Date” means November 14, 2018.
“Original Closing Date Franchised Restaurants” means the Branded Restaurants owned and operated by Franchisees pursuant to Franchise Agreements that were contributed to Wingstop Franchisor on the Original Closing Date pursuant to the applicable Contribution Agreements.
“Original Closing Date GAAP” means the generally accepted accounting principles in the United States promulgated or adopted by the Financial Accounting Standards Board and its predecessors and successors in effect as of the Original Closing Date.
“Original Closing Date Securitization IP” means all Intellectual Property (other than Excluded IP) created, developed, authored, acquired or owned by or on behalf of, or licensed to or on behalf of, Parent, WRI, Wingstop Franchisor, Funding Holdco or Issuer as of the Original Closing Date covering or embodied in (i) the Wingstop Brand, (ii) products or services sold or distributed under the Wingstop Brand, (iii) the Branded Restaurants, (iv) the Wingstop System or (v) the Contributed Franchise Business.
“Other Products and Services” means any and all businesses, products, or services other than (i) the Contributed Franchise Business and the business of franchising the Company-Owned Restaurants and the provision of ancillary goods and services in connection therewith and (ii) the operation, ownership, or franchising of Branded Restaurants.
“Outstanding” means, with respect to the Notes, as of any time, all of the Notes of any one or more Series, Class Tranche, or Subclass, as the case may be, theretofore authenticated and delivered (or registered for Uncertificated Notes) under the Indenture except:
(i) Notes theretofore canceled (or de-registered) by the Note Registrar or delivered to the Note Registrar for cancellation (or de-registration for Uncertificated Notes), including any such Notes delivered to the Note Registrar by a Wingstop Entity;
(ii) Notes, or portions thereof, for whose payment or redemption funds in the necessary amount have been theretofore irrevocably deposited with the Trustee in trust for the Noteholders of such Notes pursuant to the Indenture; provided that, if such Notes or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to the Indenture or provision therefore reasonably satisfactory to the Trustee has been made;
(iii) Notes that have been paid in full, satisfied and discharged or defeased in accordance with the Indenture;
(iv) Notes in exchange for, or in lieu of which other Notes have been authenticated and delivered (or registered in the case of Uncertificated Notes) pursuant to the Indenture, unless proof reasonably satisfactory to the Trustee is presented that any such Notes are held by a holder in due course or a Protected Purchaser; and
(v) Notes alleged to have been mutilated, destroyed, lost or stolen for which replacement Notes have been issued as provided in the Indenture;
provided that (A) in determining whether the Noteholders of the requisite Outstanding Principal Amount have given any request, demand, authorization, direction, notice, consent, waiver or vote under the Indenture, the following Notes shall be disregarded and deemed not to be Outstanding: (x) Notes owned by the Securitization Entities or any other obligor upon the Notes or any Affiliate of any of them and (y) Notes held in any accounts with respect to which the Manager or any Affiliate thereof exercises discretionary voting authority; provided, further, that in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or vote, only Notes as described under clause (x) or (y) above that a Trust Officer actually knows to be so owned shall be so disregarded; and (B) Notes owned in the manner indicated in clause (x) or (y) above that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not a Securitization Entity or any other obligor or the Manager, an Affiliate thereof, or an account for which the Manager or an Affiliate of the Manager exercises discretionary voting authority.
“Outstanding Principal Amount” means, with respect to any one or more Series, Classes, Subclasses or Tranches of Notes, as applicable at any time, the aggregate principal amount Outstanding of such Notes at such time, as calculated in accordance with the applicable Series Supplement.
“Parent” means Wingstop Inc., a Delaware corporation.
“Patents” has the meaning set forth in the definition of “Intellectual Property”.
“Paying Agent” has the meaning specified in Section 2.5(a) of this Base Indenture.
“PBGC” means the Pension Benefit Guaranty Corporation established under Section 4002 of ERISA.
“Pension Plan” means any “employee pension benefit plan”, as such term is defined in Section 3(2) of ERISA, that is subject to Title IV of ERISA and to which any company in the same Controlled Group as the Issuer has liability, including any liability (whether present, contingent or otherwise) by reason of having been a substantial employer within the meaning of Section 4063 of ERISA for any time within the preceding five years or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.
“Permitted Acquisition” means any acquisition of assets by the Securitization Entities not prohibited under the Transaction Documents that occurs after the Closing Date.
“Permitted Asset Disposition” means each of the following:
(a) the disposition of obsolete, surplus or worn out property, and the abandonment, cancellation or lapse of Securitization IP registrations or applications that, in the reasonable good faith judgment of the Manager, are no longer commercially reasonable to maintain;
(b) the disposition of inventory in the ordinary course of business;
(c) the disposition of equipment or real property to the extent that (x) such property is exchanged for credit against the purchase price or other payment obligations in respect of similar replacement property or other Eligible Assets (including, without limitation, credit against rental obligations under a real estate lease) or (y) the proceeds thereof are applied to the purchase price of such replacement property or other Eligible Assets in accordance with this Base Indenture;
(d) (x) ordinary course licenses of Securitization IP to the Non-Securitization Entities and to the Manager in connection with the performance of its Services under the Management Agreement, (y) ordinary course licenses or similar arrangements for the exploitation of Securitization IP entered into with one or more (A) new or pre-existing Securitization Entities in connection with securitization-owned restaurants or Franchised Restaurants, (B) Non-Securitization Entities in connection with Company-Owned Restaurants and Other Products and Services or (C) joint ventures in which any Securitization Entity or Non-Securitization Entity holds an interest; provided that, in the case of clauses (y)(B) and (y)(C), the applicable Securitization Entity will receive fair market value, whether in the form of royalties or other proceeds, in connection with such exploitation, and (z) any licenses of Securitization IP under the Wingstop IP License Agreement;
(e) non-exclusive licenses of Securitization IP (i) granted in the ordinary course of business, (ii) that when effected on behalf of any Securitization Entity by the Manager would not constitute a breach by the Manager of the Management Agreement acting in accordance with the Managing Standard and (iii) that would not reasonably be expected to materially and adversely impact the Securitization IP (taken as a whole);
(f) any decision to abandon, fail to pursue, settle, or otherwise resolve any claim or cause of action to enforce or seek remedy for the infringement, misappropriation, dilution or other violation of any Securitization IP, or other remedy against any third party, in each such case, where it is not commercially reasonable to pursue such claim or remedy in light of the cost, potential remedy, or other factors; provided that such action (or failure to act) would not reasonably be expected to materially and adversely impact the Securitization IP (taken as a whole);
(g) dispositions of equipment leased to Franchisees;
(h) dispositions of property of a Securitization Entity to any other Securitization Entity to the extent not otherwise prohibited under the Transaction Documents, including, but not limited to, any licenses of Securitization IP;
(i) dispositions of property relating to assets for which Indemnification Amounts were paid or are due and payable;
(j) any other sale, license, lease, transfer or other disposition of property to which the Control Party has given the relevant Securitization Entity prior written consent;
(k) any sale, lease, liquidation, license, transfer or other disposition (including franchising or refranchising) of a Post-Issuance Acquired Asset;
(l) (i) any disposition of accounts receivables or Franchisee Notes, in the ordinary course of business, in connection with any collection or compromise thereof or (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business, in each case that would not reasonably be expected to result in a Material Adverse Effect;
(m) any other sale, lease, license, liquidation, transfer or other disposition of property not directly or indirectly constituting any asset dispositions permitted by the other clauses of this definition and so long as such disposition when effected on behalf of any Securitization Entity by the Manager does not constitute a breach by the Manager of the Management Agreement and does not exceed $5,000,000 per annum;
(n) any disposition of a future securitization-owned restaurant or Company-Owned Restaurant; and
(o) dispositions pursuant to the sale, lease, sub-lease or sale-leaseback of securitization-owned real property;
it being understood that any delivery to the Trustee of any Note, at any time and in any amount, by the Issuer, together with any cancellation thereof pursuant to Section 2.14 of this Base Indenture, shall be deemed to be a Permitted Asset Disposition.
“Permitted Liens” means (a) Liens for (i) taxes, assessments or other governmental charges not delinquent or (ii) taxes, assessments or other charges being contested in good faith and by appropriate proceedings and with respect to which adequate reserves have been established, and are being maintained, in accordance with, and to the extent required under, GAAP; (b) all Liens created or permitted under the Transaction Documents in favor of the Trustee for the benefit of the Secured Parties; (c) Liens existing on the Original Closing Date, which were released on such date; provided that intellectual property recordations need not have been terminated of record on the Original Closing Date so long as such intellectual property recordations were terminated of record within sixty (60) days after the Original Closing Date; (d) encumbrances in the nature of (i) a ground lessor’s fee interest, (ii) zoning restrictions, (iii) easements, covenants, and rights of way whether or not shown by the public records, and overlaps, encroachments and any matters not of record which would be disclosed by an accurate survey or a personal inspection of the property, (iv) title to any portion of any premises lying within the right of way or boundary of any public road or private road, (v) landlords’ and lessors’ Liens on rented premises, (vi) restrictions on transfers or assignment of leases or licenses of Intellectual Property, (vii) restrictions of record on the use of real property, which, in each case (as described in clauses (d)(i) through (vii) above), do not detract from the value of the encumbered property or impair the use thereof in the business of any Securitization Entity, (viii) contractual transfer restrictions in existence on the Original Closing Date and thereafter any such contractual transfer restriction so long as the inclusion of such contractual transfer restriction in any contract entered into on behalf of any Securitization Entity by the Manager would not constitute a breach by the Manager of the Management Agreement, (ix) the interest of a lessee in property leased to a Franchisee or a prospective Franchisee, (x) any licenses or sublicenses granted in the Securitization IP under any Franchise Document, the Wingstop IP License Agreement or any license of Securitization IP permitted under the definition of “Permitted Asset Disposition” and (xi) Liens securing purchase money Indebtedness permitted under the Indenture and incurred in order to finance the acquisition, lease or improvement of equipment in the ordinary course of business, to the extent secured solely by such equipment and, in each case, sublicenses permitted under any of the foregoing; (e) deposits or pledges made (i) in connection with casualty insurance maintained in accordance with the Transaction Documents, (ii) to secure the performance of bids, tenders, contracts or leases, (iii) to secure statutory obligations or surety or appeal bonds or (iv) to secure indemnity, performance or other similar bonds in
the ordinary course of business of any Securitization Entity; (f) Liens of carriers, warehouses, mechanics and similar Liens, in each case securing obligations (i) that are not yet due and payable or not overdue for more than forty-five (45) days from the date of creation thereof or (ii) being contested in good faith by any Securitization Entity in appropriate proceedings (so long as such Securitization Entity shall, in accordance with GAAP, have set aside on its books adequate reserves with respect thereto); (g) restrictions under federal, state or foreign securities laws on the transfer of securities; (h) any liens arising under law or pursuant to documentation governing permitted accounts in connection with the Securitization Entities’ cash management system; (i) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default; (j) Liens arising in connection with any Capitalized Lease Obligation, sale-leaseback transaction or Indebtedness, in each case that is permitted under the Indenture; (k) Liens on any asset of a Franchised Restaurant existing at the time such Franchised Restaurant is repurchased or leased from a Franchisee; (l) Liens not securing Indebtedness that attach to any Collateral in an aggregate outstanding amount not exceeding $1,000,000 at any time; (m) Liens on Collateral that has been pledged pursuant to any Class A-1 Note Purchase Agreement with respect to letters of credit issued thereunder and (n) Liens arising in connection with the terms of any product supply agreement.
“Permitted Recipient” means holders of a beneficial interest in the Notes, prospective investors in the Notes, third-party investor diligence or service providers and the initial purchaser of any Notes.
“Person” means any individual, corporation (including a business trust), partnership, limited liability partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated association or government or any agency or political subdivision thereof.
“Plan” means (i) any “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (ii) any “plan” (as defined in Section 4975(e)(1) of the Code) that is subject to Section 4975 of the Code and (iii) any entity whose underlying assets are deemed to include assets of a plan described in clauses (i) or (ii) for purposes of Title I of ERISA and/or Section 4975 of the Code.
“Post-ARD Contingent Additional Interest” means any Senior Notes Quarterly Post-ARD Contingent Additional Interest, Senior Subordinated Notes Quarterly Post-ARD Contingent Additional Interest and Subordinated Notes Quarterly Post-ARD Contingent Additional Interest.
“Post-Issuance Acquired Asset” means any asset acquired, built or developed after the Closing Date (other than After-Acquired Securitization IP), including, for the avoidance of doubt, (i) Franchise Assets entered into or acquired by the Wingstop Franchisor after the Closing Date, (ii) any asset acquired, built or developed in connection with the permitted reinvestment of Asset Disposition Proceeds after the Closing Date and (iii) any real estate assets or securitization-owned restaurants acquired after the Closing Date. In connection with the issuance of additional Series of Notes, the Issuer may, at its sole discretion, irrevocably elect that any Collateral that is a Post-Issuance Acquired Asset immediately prior to such issuance of additional Series of Notes be deemed no longer to be a Post-Issuance Acquired Asset upon such issuance of Additional Notes. The Issuer will provide at least five (5) Business Days’ prior written notice of any such election to the Trustee and the Servicer, which will include a schedule specifying the Post-Issuance Acquired Assets subject to the election.
“Potential Manager Termination Event” means any occurrence or event which, with the giving of notice, the passage of time or both, would constitute a Manager Termination Event.
“Potential Rapid Amortization Event” means any occurrence or event which, with the giving of notice, the passage of time or both, would constitute a Rapid Amortization Event.
“Prepayment Consideration” means, with respect to any Series of Notes, the premium to be paid on certain prepayments of principal with respect to such Series of Notes, identified as a “Prepayment Consideration” pursuant to the applicable Series Supplement.
“Prime Rate” means the higher of (i) the rate of interest publicly announced from time to time by a commercial bank mutually agreed upon by the Manager and the Servicer as its reference rate, base rate or prime rate and (ii) 2.00% per annum.
“Principal Payment Account” means each of the Senior Notes Principal Payment Account, the Senior Subordinated Notes Principal Payment Account and the Subordinated Notes Principal Payment Account.
“Principal Release Amount” means, with respect to any Series and any Quarterly Payment Date for which the related Series Non-Amortization Test is satisfied as of the related Non-Amortization Test Date, the amounts in respect of Scheduled Principal Payments with respect to such Series that have been allocated to the Senior Notes Principal Payment Account, the Senior Subordinated Notes Principal Payment Account or the Subordinated Notes Principal Payment Account, as applicable, pursuant to the Priority of Payments during the applicable Quarterly Fiscal Period, net of any Optional Scheduled Principal Payment with respect to such Series for such Quarterly Payment Date.
“Principal Terms” has the meaning specified in Section 2.3 of this Base Indenture.
“Priority of Payments” means the allocation and payment obligations set forth in Sections 5.11 and 5.12 of this Base Indenture, as supplemented by the allocation and payment obligations with respect to each Series of Notes described in the applicable Series Supplement. For the avoidance of doubt, references to priorities of the Priority of Payments shall refer to the priorities set forth in Section 5.11.
“Proceeding” means any suit in equity, action at law or other judicial or administrative proceeding.
“Proceeds” has the meaning specified in Section 9-102(a)(64) of the applicable UCC.
“pro forma event” has the meaning set forth in Section 14.17(a) and Section 14.17(b) of this Base Indenture.
“Protected Purchaser” has the meaning specified in Section 8-303 of the UCC.
“Qualified Institution” means a depository institution organized under the laws of the United States of America or any state thereof or incorporated under the laws of a foreign jurisdiction with a branch or agency located in the United States of America or any state thereof and subject to supervision and examination by federal or state banking authorities that at all times has the Required Rating and, in the case of any such institution organized under the laws of the United States of America, whose deposits are insured by the FDIC.
“Qualified Trust Institution” means an institution organized under the laws of the United States of America or any state thereof or incorporated under the laws of a foreign jurisdiction with a branch or agency located in the United States of America or any state thereof and subject to supervision and examination by federal or state banking authorities that at all times (i) is authorized under such laws to act as a trustee or in any other fiduciary capacity, (ii) has capital, surplus and undivided profits of not less than $250,000,000 as set forth in its most recent published annual report of condition and (iii) has a long term deposits rating of not less than “BBB” by S&P.
“Quarterly Calculation Date” means, with respect to any Quarterly Payment Date, the date that is four (4) Business Days prior to such Quarterly Payment Date. Unless specified otherwise in the Indenture, any reference to a Quarterly Calculation Date relating to a Quarterly Payment Date means the Quarterly Calculation Date occurring in the same calendar month as such Quarterly Payment Date, without giving effect to any Business Day Adjustment, and any reference to a Quarterly Calculation Date relating to a Quarterly Fiscal Period means the Quarterly Fiscal Period most recently ended on or prior to such Quarterly Calculation Date.
“Quarterly Compliance Certificate” has the meaning set forth in Section 4.1(c) of this Base Indenture.
“Quarterly Fiscal Period” means each of the following quarterly fiscal periods of the Securitization Entities: (i) four (4) 13-week fiscal periods of the Securitization Entities in connection with each of their 52-week fiscal years and (ii) three (3) 13-week fiscal periods and one (1) 14-week fiscal period of the Securitization Entities in connection with each of their 53-week fiscal years. The last day of the fourth Quarterly Fiscal Period of each fiscal year of the Securitization Entities is the last Saturday in December of such fiscal year.
“Quarterly Noteholders’ Report” has the meaning set forth in Section 4.1(b) of this Base Indenture.
“Quarterly Payment Date” means, unless otherwise specified in any Series Supplement for the related Series of Notes, the fifth (5th) day of each of March, June, September and December in respect of each respective immediately preceding Quarterly Fiscal Period (or, if such day is not a Business Day, the next succeeding Business Day (a “Business Day Adjustment”)), commencing on the Quarterly Payment Date occurring in March 2021. Unless specified otherwise in the Indenture, any reference to a Quarterly Fiscal Period relating to a Quarterly Payment Date means the Quarterly Fiscal Period most recently ended prior to such Quarterly Payment Date, and any reference to an Interest Accrual Period relating to a Quarterly Payment Date means the Interest Accrual Period most recently ended prior to such Quarterly Payment Date.
“Quarterly Reallocation Event” has the meaning set forth in Section 5.12(p) of this Base Indenture.
“Rapid Amortization Event” has the meaning specified in Section 9.1 of this Base Indenture.
“Rapid Amortization Period” means the period commencing on the date on which a Rapid Amortization Event occurs and ending on the earlier to occur of the waiver of the occurrence of such Rapid Amortization Event in accordance with Section 9.7 of this Base Indenture and the date on which there are no Notes Outstanding.
“Rating Agency”, with respect to any Series of Notes, has the meaning specified in the applicable Series Supplement.
“Rating Agency Condition” means, with respect to any Outstanding Series of Notes and any event or action to be taken or proposed to be taken requiring satisfaction of the Rating Agency Condition in the Indenture or in any other Transaction Document, a condition that is satisfied if the Manager has notified the Issuer, the Servicer and the Trustee in writing that the Manager has provided each Rating Agency then rating such Outstanding Series of Notes and the Servicer with a written notification setting forth in reasonable detail such event or action and has actively solicited (by written request and by request via email and telephone) a Rating Agency Confirmation from each such Rating Agency, and each such Rating Agency has either provided the Manager with a Rating Agency
Confirmation with respect to such event or action or informed the Manager that it declines to review such event or action; provided that:
(i) except in connection with (x) the issuance of Additional Notes, as to which the conditions of clause (ii) below will apply in all cases and (y) a Rating Agency Confirmation from KBRA with respect to any event or action to be taken or proposed to be taken (other than the issuance of Additional Notes, as to which the conditions of clause (iii) below will apply in all cases), the Rating Agency Condition in respect of a specific Rating Agency will be required to be satisfied in connection with any such event or action only if the Manager determines in its sole discretion that the policies of such Rating Agency permit it to deliver such Rating Agency Confirmation;
(ii) the Rating Agency Condition will not be required to be satisfied in respect of a specific Rating Agency if the Manager provides an Officer’s Certificate (along with copies of all written requests for such Rating Agency Confirmation and copies of all related email correspondence) to the Issuer, the Servicer and the Trustee certifying that:
(A) the Manager has not received any response from such Rating Agency within ten (10) Business Days following the date of delivery of the initial solicitation; and
(B) the Manager has no reason to believe that such event or action would result in such Rating Agency withdrawing its credit ratings on such Outstanding Series of Notes or assigning credit ratings on such Outstanding Series of Notes below the lower of (1) the then-current credit ratings on such Outstanding Series of Notes or (2) the initial credit ratings assigned to such Outstanding Series of Notes by such Rating Agency; and
(C) solely in connection with any issuance of Additional Notes, either:
(1) at least one Rating Agency Confirmation has been obtained from any Rating Agency then rating any Series of Notes; or
(2) (A) if such Additional Notes rank the same priority as any outstanding Notes, each Rating Agency then rating such outstanding Notes has rated the Additional Notes no lower than the lower of (x) the then-current credit rating assigned by such Rating Agency or (y) the initial credit rating assigned by such Rating Agency to each outstanding Series of Notes ranking on the same priority as the Additional Notes, or, (B) if no outstanding Series of Notes ranks on the same priority as such Additional Notes, the Control Party shall have provided its written consent to the issuance of such Additional Notes; and
(3) the Rating Agency Condition will not be required to be satisfied in respect of KBRA (except in connection with the issuance of Additional Notes, as to which the conditions in clause (ii)(C) will apply) if the Managers provide an Officers’ Certificate (along with copies of all written notices for such Rating Agency Confirmation) to each Co-Issuer, the Servicer and the Trustee certifying that the Managers have notified KBRA at least ten (10) Business Days prior to taking such event or action to be taken or proposed to be taken.
“Rating Agency Confirmation” means, with respect to any Outstanding Series of Notes, a confirmation from a Rating Agency that a proposed event or action will not result in (i) a withdrawal of its credit ratings on such Outstanding Series of Notes or (ii) the assignment of credit ratings on such Outstanding Series of Notes below the lower of (A) the then-current credit ratings on such Outstanding Series of Notes or (B) the initial credit ratings on such Outstanding Series of Notes.
“Rating Agency Notification” means, with respect to any prospective action or occurrence, a written notification to each Rating Agency setting forth in reasonable detail such action or occurrence.
“Record Date” means, with respect to any Quarterly Payment Date, the close of business on the last Business Day of the calendar month immediately preceding the calendar month in which such Quarterly Payment Date is scheduled to occur without, for the avoidance of doubt, giving effect to any Business Day Adjustment.
“Reportable Event” means any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Single Employer Plan (other than an event for which the 30-day notice period is waived).
“Representatives” has the meaning specified in Section 10.11(b) of this Base Indenture.
“Required Rating” means (i) a short-term certificate of deposit rating from S&P of at least “A-2” and (ii) a long-term unsecured debt rating of not less than “BBB” by S&P.
“Requirements of Law” means, with respect to any Person or any of its property, the certificate of incorporation or articles of association and bylaws, limited liability company agreement, partnership agreement or other organizational or governing documents of such Person or any of its property, and any law, treaty, rule or regulation, or determination of any arbitrator or Governmental Authority, in each case applicable to, or binding upon, such Person or any of its property or to which such Person or any of its property is subject, whether federal, state, local or foreign (including usury laws, the Federal Truth in Lending Act, state franchise laws and retail installment sales acts).
“Residual Amount” means, for any Weekly Allocation Date with respect to any Quarterly Fiscal Period, the amount, if any, by which the amount allocated to the Collection Account on such Weekly Allocation Date exceeds the sum of the amounts to be paid and/or allocated on such Weekly Allocation Date pursuant to priorities (i) through (xxvi) of the Priority of Payments.
“Restaurant Operator” means each (i) Franchisee and (ii) Non-Securitization Entity that operates a Company Owned Restaurant.
“Retained Collections” means, with respect to any specified period of time, the amount equal to (i) Collections received over such period minus, (ii) without duplication of the amounts set forth in the definition thereof, the Excluded Amounts over such period. Funds released from the Cash Trap Reserve Account, but excluding Cash Trapping Release Amounts, shall not constitute Retained Collections.
Solely for the purposes of calculating any financial measure pursuant to this Base Indenture and the other Transaction Documents, the amount of any deferred Franchisee Payment Amounts shall constitute “Retained Collections”, as if such amount was received on the date due, instead of the date actually received at the election of the Manager, to the extent that the Manager or another Non-Securitization Entity makes a corresponding equity contribution (other than with the proceeds of a draw under the Class A-1 Notes) equal to such amount (“Deemed Retained Collections”). If and when the Securitization Entities receive a deferred Franchisee Payment Amount relating to Deemed Retained Collections, such deferred receipt shall not then constitute “Retained Collections,” for purposes of calculating any financial measure pursuant to this Base Indenture and the other Transaction Documents (i.e. there shall be no double-counting of Deemed Retained Collections and related deferred Franchisee Payment Amounts when such deferred Franchisee Payment Amounts are received).
For the avoidance of doubt, with respect to the Quarterly Fiscal Period ending December 26, 2020, all Retained Collections received during the portion of such Quarterly Fiscal Period occurring
prior to the Closing Date shall be Retained Collections for purposes of all calculations hereunder, including Net Cash Flow, the Senior Leverage Ratio and the DSCR.
“Retained Collections Contribution” means, with respect to any Quarterly Fiscal Period, any cash contribution made to the Issuer at any time prior to the Final Series Legal Final Maturity Date to be included in Net Cash Flow in accordance with Section 5.16 of this Base Indenture; provided, that (i) any equity contribution made with respect to Deemed Retained Collections will constitute a Retained Collections Contribution until the date of receipt of payment of the corresponding deferred Franchisee Payment Amount and (ii) on and after such date of receipt, such equity contribution, for the avoidance of doubt, shall not be a Retained Collections Contribution for purposes of any determination relating to the percentage and dollar limits set forth in Section 5.16.
“Rule 144A” means Rule 144A under the Securities Act, as such regulation may be amended, supplemented, replaced or otherwise modified from time to time.
“S&P” means S&P Global Ratings or any successor thereto.
“Scheduled Principal Payments” means, with respect to any Series, Class, Subclass or Tranche of Notes, any payments scheduled to be made pursuant to the applicable Series Supplement that reduce the amount of principal Outstanding with respect to such Series, Class, Subclass or Tranche on a periodic basis that are identified as “Scheduled Principal Payments” in the applicable Series Supplement.
“Scheduled Principal Payments Deficiency Event” means, with respect to any Quarterly Fiscal Period, as of the Quarterly Calculation Date with respect to such Quarterly Fiscal Period, the occurrence of the following event: the amount of funds on deposit in the Senior Notes Principal Payment Account after the last Weekly Allocation Date with respect to such Quarterly Fiscal Period is less than the Senior Notes Aggregate Scheduled Principal Payments for the next succeeding Quarterly Payment Date.
“Scheduled Principal Payments Deficiency Notice” has the meaning specified in Section 4.1(d) of this Base Indenture.
“SEC” means the United States Securities and Exchange Commission.
“Secured Parties” means (i) the Trustee, (ii) the Noteholders, (iii) the Servicer, (iv) the Control Party, (v) the Manager, (vi) the Back-Up Manager, (vii) each Class A-1 Administrative Agent and (viii) each Hedge Counterparty, if any, together with their respective successors and assigns.
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Intermediary” has the meaning set forth in Section 5.8(a) of this Base Indenture.
“Securitization Assets” means all assets owned by the Securitization Entities, including, but not limited to, the Collateral.
“Securitization Entities” means, collectively, Funding Holdco, Wingstop Franchisor and the Issuer.
“Securitization IP” means, collectively, the Closing Date Securitization IP and the After-Acquired Securitization IP, except that “Securitization IP” will not include, solely for purposes of the licenses granted under the Wingstop IP License Agreement, any rights to use licensed third-party Intellectual Property to the extent that such rights are not sublicensable without the consent of or any payment to such third party, or any other action by the licensee thereof, unless such consent has been obtained or payment has been made.
“Securitization Operating Expense Account” has the meaning set forth in Section 5.6(a)(xi) of this Base Indenture.
“Securitization Operating Expenses” means all expenses incurred by the Securitization Entities and payable to third parties in connection with the maintenance and operation of the Securitization Entities and the transactions contemplated by the Transaction Documents to which they are a party (other than those paid from the Concentration Account or the International Franchisee Payment Accounts), including (i) accrued and unpaid Taxes (other than U.S. federal, state, local and foreign Taxes based on income, profits or capital, including franchise, excise, withholding or similar taxes), filing fees and registration fees payable by or directly attributable to the Securitization Entities to any federal, state, local or foreign governmental authority; (ii) fees and expenses payable to (A) the Trustee under the Indenture or the other Transaction Documents to which it is a party, (B) the Back-Up Manager as Back-Up Manager Fees and, on and after the 2024 Springing Amendments Implementation Date, if not paid as an Advance under priority (ii) of the Priority of Payments, as unreimbursed Back-Up Manager Consent Consultation Fees (x) to the extent such fees do not exceed the Back-Up Manager’s initial fee range estimate prior to the commencement of such consultation services, and such fee range estimate has been approved in advance in writing by the Control Party and (y) to the extent in excess of such fee range estimate, such fees have been approved in advance by the Control Party and in the case of a Consent Request or Consent Recommendation only, the Issuer (such consent not to be unreasonably withheld, conditioned or delayed, (C) any Rating Agency and (D) independent certified public accountants (including, for the avoidance of doubt, any incremental auditor costs) and external legal counsel; (iii) Successor Servicer Transition Expenses, if any, (iv) the indemnification obligations of the Securitization Entities under the Transaction Documents to which they are a party (including any interest thereon at the Advance Interest Rate, if applicable); and (v) independent director and manager fees.
“Securitization Transaction” means the transactions contemplated by the Transaction Documents.
“Senior Debt” means any issuance of Indebtedness under the Indenture by the Issuer that by its terms (through its alphabetical designation as “Class A” pursuant to the Series Supplement applicable to such Indebtedness) is senior in the right to receive interest and principal on such Indebtedness to the right to receive interest and principal on any Subordinated Debt.
“Senior Leverage Ratio” means, as of any date of determination, the ratio of (a) (i) the aggregate principal amount of each Class of Senior Notes Outstanding (provided, that with respect to each Series of Class A-1 Notes or any other series of revolving notes Outstanding, the aggregate principal amount of such Series of Class A-1 Notes or such other series of revolving notes will be deemed to be equal to the Class A-1 Notes Maximum Principal Amount or maximum principal amount for such Series) as of the end of the most recently ended Quarterly Fiscal Period less (ii) the sum of (x) the cash and cash equivalents of the Securitization Entities credited to the Senior Notes Interest Reserve Account (including any Franchise Capital Account), the Cash Trap Reserve Account and the Principal Payment Account(s) as of the end of the most recently ended Quarterly Fiscal Period and (y) the available amount of each Interest Reserve Letter of Credit with respect to the Senior Notes as of the end of the most recently ended Quarterly Fiscal Period to (b) Net Cash Flow of the Securitization Entities for the immediately preceding four (4) Quarterly Fiscal Periods most recently ended as of such date and for which financial statements are required to have been delivered.
“Senior Noteholder” means any Holder of Senior Notes of any Series.
“Senior Notes” or “Class A Notes” means any issuance of Notes under the Indenture by the Issuer that by its terms (through its alphabetical designation as “Class A” pursuant to the Series Supplement applicable to such Notes) is senior in the right to receive interest and principal on such Notes to the right to receive interest and principal on any Senior Subordinated Notes and any Subordinated Notes.
“Senior Notes Accrued Estimated Quarterly Interest Amount” has the meaning set forth in the definition of “Senior Notes Accrued Quarterly Interest Amount” herein.
“Senior Notes Accrued Quarterly Interest Amount” means, for each Weekly Allocation Date with respect to any Quarterly Fiscal Period, an amount equal to the sum of: (A) the sum of (i) the product of (1) the Fiscal Quarter Percentage and (2) the sum of (I) the Senior Notes Estimated Quarterly Interest Amount for such Quarterly Fiscal Period, and (II) any Senior Notes Interest Shortfall Amount together with any additional interest payable on such Senior Notes Interest Shortfall Amount (each as determined pursuant to Section 5.12(a)) (the aggregate amounts set forth in this clause (A)(i)(2), the “Senior Notes Accrued Estimated Quarterly Interest Amount”); provided that during the initial Quarterly Fiscal Period, any amounts prefunded to the Senior Notes Interest Payment Amount or otherwise on deposit in the Senior Notes Interest Payment Account on or prior to the Closing Date may be used to satisfy all or a portion of any required funding of the Senior Notes Accrued Estimated Quarterly Interest Amount on such Weekly Allocation Date, without any double counting of such prefunded amounts across multiple Weekly Allocation Dates and (ii) the Carryover Senior Notes Accrued Quarterly Interest Amount for such Weekly Allocation Date; provided that the amounts allocated under this clause (A) during any Quarterly Fiscal Period shall be capped at the Senior Notes Accrued Estimated Quarterly Interest Amount for such Quarterly Fiscal Period; and (B) without duplication, any Class A-1 Notes Interest Adjustment Amount with respect to the Interest Accrual Period ending in such Quarterly Fiscal Period, which amount in this clause (B) shall be limited to amounts on deposit in the Senior Notes Interest Payment Account if such Class A-1 Notes Interest Adjustment Amount is negative.
“Senior Notes Accrued Quarterly Post-ARD Contingent Additional Interest Amount” means, for each Weekly Allocation Date with respect to a Quarterly Fiscal Period, an amount equal to the lesser of (a) the sum of (i) the product of (1) the Fiscal Quarter Percentage and (2) the Senior Notes Quarterly Post-ARD Contingent Additional Interest for the Interest Accrual Period ending in the next succeeding Quarterly Fiscal Period and (ii) the Carryover Senior Notes Accrued Quarterly Post-ARD Contingent Additional Interest Amount for such Weekly Allocation Date and (b) the amount, if any, by which (i) the Senior Notes Quarterly Post-ARD Contingent Additional Interest for the Interest Accrual Period ending in the next succeeding Quarterly Fiscal Period exceeds (ii) the aggregate amount previously allocated to the Senior Notes Post-ARD Contingent Additional Interest Account with respect to the Senior Notes Quarterly Post-ARD Contingent Additional Interest on each preceding Weekly Allocation Date with respect to such Quarterly Fiscal Period.
“Senior Notes Accrued Scheduled Principal Payments Amount” means, for each Weekly Allocation Date with respect to any Quarterly Fiscal Period, an amount equal to the lesser of (a) the sum of (i) the product of (1) the Fiscal Quarter Percentage and (2) the Senior Notes Aggregate Scheduled Principal Payments for the Quarterly Payment Date in the next succeeding Quarterly Fiscal Period (except with respect to the period from the Closing Date until the Initial Quarterly Payment Date, in which case such amount will be zero) and (ii) the Carryover Senior Notes Accrued Scheduled Principal Payments Amount for such Weekly Allocation Date and (b) the amount, if any, by which (i) the Senior Notes Aggregate Scheduled Principal Payments for the Quarterly Payment Date in the next succeeding Quarterly Fiscal Period exceeds (ii) the aggregate amount previously allocated to the Senior Notes Principal Payment Account with respect to the Senior Notes Aggregate Scheduled Principal Payments on each preceding Weekly Allocation Date (or prefunded on the Closing Date) with respect to such Quarterly Fiscal Period. As of each Weekly Allocation Date, if any Series Non-Amortization Test, including the Non-Amortization Test for the Class A-2 Notes issued on the Closing Date, is satisfied as of the immediately preceding Non-Amortization Test Date, the Issuer may elect to deem the Scheduled Principal Payment with respect to such Series for purposes of calculating the Senior Notes Aggregate Scheduled Principal Payments in clause (i) to equal zero for such Weekly Allocation Date.
“Senior Notes Aggregate Scheduled Principal Payments” means, for any Quarterly Payment Date, with respect to all Senior Notes Outstanding, the aggregate amount of Senior Notes
Scheduled Principal Payments Amounts due and payable on all such Senior Notes on such Quarterly Payment Date.
“Senior Notes Estimated Quarterly Interest Amount” means, for any Quarterly Fiscal Period, with respect to any Senior Notes Outstanding, the aggregate amount that is identified as “Senior Notes Estimated Quarterly Interest Amount” in each applicable Series Supplement.
“Senior Notes Interest Accrual Shortfall Amount” has the meaning set forth in Section 5.12(a)(iii) of this Base Indenture.
“Senior Notes Interest Payment Account” has the meaning set forth in Section 5.6 of this Base Indenture.
“Senior Notes Interest Reserve Account” has the meaning set forth in Section 5.2(a) of this Base Indenture.
“Senior Notes Interest Reserve Account Deficit Amount” means, as of any date of determination, the excess, if any, of the Senior Notes Interest Reserve Amount over the sum of (a) the amount on deposit in the Senior Notes Interest Reserve Account and (b) the amount available under any Interest Reserve Letter of Credit relating to the Senior Notes.
“Senior Notes Interest Reserve Amount” means, with respect to any Quarterly Payment Date (and any Weekly Allocation Date related thereto and any drawing date in respect of any Class A-1 Notes), an amount equal to the Senior Notes Quarterly Interest Amount and the Class A-1 Notes Quarterly Commitment Fees Amount due on such Quarterly Payment Date (with the interest and Class A-1 Notes Quarterly Commitment Fees Amount payable with respect to the Class A-1 Notes on such Quarterly Payment Date being based on the good faith utilization estimate of the Manager as set forth in the applicable Weekly Manager’s Certificate), which amount will increase or decrease in accordance with any increase or reduction in the Outstanding Principal Amount of the Senior Notes or any reduction in the Class A-1 Notes Maximum Principal Amount in accordance with the Manager’s good faith utilization estimate with respect to the Class A-1 Notes as set forth in the applicable Weekly Manager’s Certificate, it being understood that the Senior Notes Interest Reserve Amount may be funded in whole or in part with the proceeds of a drawing under any Class A-1 Notes.
“Senior Notes Interest Shortfall Amount” has the meaning set forth in Section 5.12(a) of this Base Indenture.
“Senior Notes Post-ARD Contingent Additional Interest Account” has the meaning set forth in Section 5.6(a)(viii) of this Base Indenture.
“Senior Notes Principal Payment Account” has the meaning set forth in Section 5.6(a)(v) of this Base Indenture.
“Senior Notes Quarterly Interest Amount” means, with respect to each Quarterly Payment Date, (a) the aggregate amount of interest due and payable, with respect to the related Interest Accrual Period, on the Senior Notes that is identified as a “Senior Notes Quarterly Interest Amount” in the applicable Series Supplement (other than any Post-ARD Contingent Additional Interest), plus (b) to the extent not otherwise included in clause (a), with respect to any Class A-1 Notes Outstanding, the aggregate amount of any letter of credit fees due and payable on issued but undrawn Letters of Credit, with respect to such Interest Accrual Period, on such Class A-1 Notes pursuant to the applicable Class A-1 Note Purchase Agreement.
“Senior Notes Quarterly Post-ARD Contingent Additional Interest” means, for any Interest Accrual Period, with respect to any Class of Senior Notes Outstanding, the aggregate amount of
interest accrued with respect to such Interest Accrual Period on each such Class of Senior Notes that is identified as “Senior Notes Quarterly Post-ARD Contingent Additional Interest” in the applicable Series Supplement (including, for the avoidance of doubt, any Post-ARD Contingent Additional Interest on the Class A-1 Notes).
“Senior Notes Scheduled Principal Payments Amounts” means, with respect to any Class of Senior Notes Outstanding, any Scheduled Principal Payments with respect to such Class of Senior Notes.
“Senior Notes Scheduled Principal Payment Deficiency Amount” means, with respect to any Senior Notes Outstanding and any Quarterly Payment Date, the sum of (a) the amount, if any, by which (i) the Senior Notes Aggregate Scheduled Principal Payments exceeds (ii) the sum of (x) the amount of funds on deposit in the Senior Notes Principal Payment Account plus (y) any other funds on deposit in the Indenture Trust Accounts that are available to pay the Senior Notes Aggregate Scheduled Principal Payments on such Quarterly Payment Date in accordance with the Indenture, and (b) any Senior Notes Aggregate Scheduled Principal Payments due but unpaid from any previous Quarterly Payment Dates.
“Senior Subordinated Noteholder” means any Holder of Senior Subordinated Notes of any Series.
“Senior Subordinated Notes” means any issuance of Notes under the Indenture by the Issuer that are part of a Class with an alphanumerical designation that contains any letter from “B” through “L” of the alphabet, together with any Subclasses or Tranches thereof.
“Senior Subordinated Notes Accrued Quarterly Interest Amount” means, for each Weekly Allocation Date with respect to a Quarterly Fiscal Period and any Senior Subordinated Notes, the amount defined in the applicable Series Supplement.
“Senior Subordinated Notes Accrued Quarterly Post-ARD Contingent Additional Interest Amount” means, for each Weekly Allocation Date with respect to a Quarterly Fiscal Period and any Senior Subordinated Notes, the amount defined in the applicable Series Supplement.
“Senior Subordinated Notes Accrued Scheduled Principal Payments Amount” means, for each Weekly Allocation Date with respect to any Quarterly Fiscal Period and any Senior Subordinated Notes, the amount defined in the applicable Series Supplement.
“Senior Subordinated Notes Interest Payment Account” has the meaning set forth in Section 5.6(a)(iii) of this Base Indenture.
“Senior Subordinated Notes Interest Reserve Account” has the meaning set forth in Section 5.3(a) of this Base Indenture.
“Senior Subordinated Notes Interest Reserve Account Deficit Amount” means, as of any date of determination, the excess, if any, of the Senior Subordinated Notes Interest Reserve Amount over the sum of (a) the amount on deposit in the Senior Subordinated Notes Interest Reserve Account and (b) the amount available under any Interest Reserve Letter of Credit relating to the Senior Subordinated Notes.
“Senior Subordinated Notes Interest Reserve Amount” means, with respect to any Quarterly Payment Date (and any Weekly Allocation Date related thereto), an amount equal to the Senior Subordinated Notes Quarterly Interest Amount due on such Quarterly Payment Date.
“Senior Subordinated Notes Interest Shortfall Amount” has the meaning set forth in Section 5.12(c)(iii) of this Base Indenture.
“Senior Subordinated Notes Post-ARD Contingent Additional Interest Account” has the meaning set forth in Section 5.6(a)(ix) of this Base Indenture.
“Senior Subordinated Notes Principal Payment Account” has the meaning set forth in Section 5.6(a)(vi) of this Base Indenture.
“Senior Subordinated Notes Quarterly Interest Amount” means, with respect to each Quarterly Payment Date, the aggregate amount of interest due and payable, with respect to any Class of Senior Subordinated Notes Outstanding, on the Senior Subordinated Notes that is identified as the “Senior Subordinated Notes Quarterly Interest Amount” in the applicable Series Supplement.
“Senior Subordinated Notes Quarterly Post-ARD Contingent Additional Interest” means, for any Interest Accrual Period, with respect to any Class of Senior Subordinated Notes Outstanding, the aggregate amount of interest accrued with respect to such Interest Accrual Period on each such Class of Senior Subordinated Notes that is identified as “Senior Subordinated Notes Quarterly Post-ARD Contingent Additional Interest” in the applicable Series Supplement.
“Senior Subordinated Notes Scheduled Principal Payments Amounts” means, with respect to any Class of Senior Subordinated Notes Outstanding, any Scheduled Principal Payments with respect to such Class of Senior Subordinated Notes.
“Senior Subordinated Notes Scheduled Principal Payment Deficiency Amount”, with respect to any Series of Senior Subordinated Notes, has the meaning specified in the related Series Supplement.
“Series” or “Series of Notes” means each series of Notes issued and authenticated pursuant to this Base Indenture and the applicable Series Supplement.
“Series 2020-1 Closing Date” means the Closing Date.
“Series 2020-1 Notes” means the Series 2020-1 2.841% Fixed Rate Senior Secured Notes, Class A-2 and those Class A-1 Notes issued pursuant to the Class A-1 Note Purchase Agreement (Series 2020-1 Class A-1 Notes), dated as of the Closing Date, by and among the Issuer and Barclays Bank PLC.
“Series 2020-1 Supplement” means that Series Supplement pursuant to which the Issuer issues the Series 2020-1 Notes.
“Series 2022-1 Closing Date” means March 9, 2022.
“Series 2022-1 Notes” means the Series 2022-1 3.734% Fixed Rate Senior Secured Notes, Class A-2 and those Class A-1 Notes issued pursuant to the Class A-1 Note Purchase Agreement (Series 2022-1 Class A-1 Notes), dated as of the Series 2022-1 Closing Date, by and among, inter alia, the Issuer and Morgan Stanley Asset Funding Inc.
“Series 2024-1 Closing Date” means December 3, 2024.
“Series 2024-1 Notes” means the Series 2024-1 5.858% Fixed Rate Senior Secured Notes, Class A-2.
“Series Account” means any account or accounts established pursuant to a Series Supplement for the benefit of a Series of Notes (or any Class thereof).
“Series Anticipated Repayment Date” means, with respect to any Series, Class, Subclass or Tranche of Notes, the “Anticipated Repayment Date” for such Series, Class, Subclass or Tranche of Notes as set forth in the related Series Supplement.
“Series Closing Date” means, with respect to (i) any Series, Class, Subclass or Tranche of Notes, the date of issuance of such Series, Class, Subclass or Tranche of Notes, as specified in the applicable Series Supplement and (ii) Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, the date of issuance of such Additional Notes specified in the Supplement to the applicable Series Supplement.
“Series Defeasance Date” has the meaning set forth in Section 12.1(c) of this Base Indenture.
“Series Distribution Account” means, with respect to any Series of Notes or any Class of any Series of Notes, an account established to receive distributions to be paid to the Noteholders of such Series of Notes or such Class pursuant to the applicable Series Supplement.
“Series Hedge Agreement” means, with respect to any Series of Notes, or Class, Subclass or Tranche thereof, the relevant Swap Contract, if any, described in the applicable Series Supplement.
“Series Hedge Payment Amount” means all amounts payable by the Issuer under a Series Hedge Agreement including any termination payment payable by the Issuer.
“Series Hedge Receipts” means all amounts received by the Securitization Entities under a Series Hedge Agreement.
“Series Legal Final Maturity Date” means, with respect to any Series, Class, Subclass or Tranche of Notes, the “Series Legal Final Maturity Date” set forth in the related Series Supplement.
“Series Non-Amortization Test” for any Series of Notes, has the meaning set forth in the applicable Series Supplement; or, if not specified therein, means a test that will be satisfied for any Quarterly Payment Date if the level of the Senior Leverage Ratio is less than or equal to 5.0x as calculated on the Non-Amortization Test Date immediately preceding such Quarterly Payment Date.
“Series Obligations” means, with respect to a Series of Notes, (a) all principal, interest, premiums, make-whole payments and Series Hedge Payment Amounts, if any, at any time and from time to time, owing by the Issuer on such Series of Notes or owing by the Guarantors pursuant to the Guarantee and Collateral Agreement on such Series of Notes, (b) the payment and performance of all other obligations, covenants and liabilities of the Issuer or the Guarantors arising under the Indenture, the Notes or any other Indenture Document, the Back-Up Management Agreement or the Servicing Agreement, in each case, solely with respect to such Series of Notes, and (c) the obligation of the Issuer to pay to the Trustee all fees and expenses payable to the Trustee under the Indenture and the other Transaction Documents to which it is a party.
“Series Refinancing Event” means the issuance of Additional Notes in conjunction with the payment in full, satisfaction and discharge or termination or defeasance of all other Series of Notes outstanding at such time.
“Series Supplement” means a Series Supplement to this Base Indenture complying (to the extent applicable) with the terms of Section 2.3 of this Base Indenture, as the same may be amended or
otherwise modified from time to time, including in connection with the issuance of Additional Notes of an existing Series, Class, Subclass or Tranche of Notes pursuant to Section 2.3.
“Servicer” means Midland Loan Services, a division of PNC Bank, National Association, as servicer under the Servicing Agreement, and any successor thereto.
“Servicer Termination Event” has the meaning set forth in the Servicing Agreement.
“Services” has the meaning set forth in the Management Agreement.
“Servicing Agreement” means the Second Amended and Restated Servicing Agreement, dated as of the Series 2022-1 Closing Date, by and among the Issuer, the other Securitization Entities party thereto, the Manager, the Servicer and the Trustee, as amended as of the Series 2024-1 Closing Date and as amended, supplemented or otherwise modified from time to time.
“Servicing Fees” has the meaning set forth in the Servicing Agreement.
“Servicing Standard” has the meaning set forth in the Servicing Agreement.
“Single Employer Plan” means any Pension Plan that is covered by Title IV of ERISA, but that is not a Multiemployer Plan.
“Software” has the meaning set forth in the definition of “Intellectual Property”.
“Specified Indenture Trust Accounts” means the Senior Notes Interest Payment Account, the Class A-1 Notes Commitment Fees Account, the Senior Subordinated Notes Interest Payment Account, the Subordinated Notes Interest Payment Account, the Senior Notes Principal Payment Account, the Senior Subordinated Notes Principal Payment Account, the Subordinated Notes Principal Payment Account, the Senior Notes Post-ARD Contingent Additional Interest Account, the Senior Subordinated Notes Post-ARD Contingent Additional Interest Account, the Subordinated Notes Post-ARD Contingent Additional Interest Account, the Cash Trap Reserve Account and the Hedge Payment Account.
“Specified Bankruptcy Opinion Provisions” means the provisions contained in the legal opinion(s) delivered in connection with the issuance of each Series of Notes relating to the non-substantive consolidation of the Securitization Entities with any of Parent or any other Non-Securitization Affiliate.
“Specified Payment Amendment Provisions” has the meaning set forth in Section 13.2(a)(iii).
“Subclass” means, with respect to any Class of any Series of Notes, any one of the subclasses of Notes of such Class as specified in the applicable Series Supplement.
“Sub-Manager” means any sub-manager appointed pursuant to the terms of the Management Agreement to provide Services thereunder, so long as the Manager remains primarily and directly liable for the performance of its obligations under the Management Agreement notwithstanding any such sub-managing arrangement.
“Subordinated Debt” means any issuance of Indebtedness under the Indenture by the Issuer that by its terms (through its alphabetical designation as “Class B” through “Class Z” pursuant to the Series Supplement applicable to such Indebtedness) subordinates the right to receive interest and principal on such Indebtedness to the right to receive interest and principal on any Senior Debt.
“Subordinated Debt Provisions” means, with respect to the issuance of any Series of Notes that includes Subordinated Debt, the terms of such Subordinated Debt will include the following provisions: (a) if there is an Extension Period in effect with respect to the Senior Debt issued on the Closing Date, the principal of any Subordinated Debt will not be permitted to be repaid out of the Priority of Payments unless such Senior Debt is no longer Outstanding, (b) if the Senior Debt issued on the Closing Date is refinanced on or prior to the Series Anticipated Repayment Date of such Senior Debt and any such Subordinated Debt having a Series Anticipated Repayment Date on or before the Series Anticipated Repayment Date of such Senior Debt is not refinanced on or prior to the Series Anticipated Repayment Date of such Senior Debt, such Subordinated Debt will begin to amortize on the date that the Senior Debt is refinanced pursuant to a scheduled principal payment schedule to be set forth in the applicable Series Supplement and (c) if the Senior Debt issued on the Closing Date is not refinanced on or prior to the Quarterly Payment Date following the seventh anniversary of the Closing Date, such Subordinated Debt will not be permitted to be refinanced.
“Subordinated Noteholder” means any Holder of Subordinated Notes of any Series.
“Subordinated Notes” means any issuance of Notes under the Indenture by the Issuer that are part of a Class, Subclass or Tranche with an alphanumerical designation that contains any letter from “M” through “Z” of the alphabet.
“Subordinated Notes Accrued Quarterly Interest Amount” means, for each Weekly Allocation Date with respect to a Quarterly Fiscal Period and any Subordinated Notes, the amount defined in the applicable Series Supplement.
“Subordinated Notes Accrued Quarterly Post-ARD Contingent Additional Interest Amount” means, for each Weekly Allocation Date with respect to a Quarterly Fiscal Period and any Subordinated Notes, the amount defined in the applicable Series Supplement.
“Subordinated Notes Accrued Scheduled Principal Payments Amount” means, for each Weekly Allocation Date with respect to any Quarterly Fiscal Period and any Subordinated Notes, the amount defined in the applicable Series Supplement.
“Subordinated Notes Interest Payment Account” has the meaning set forth in Section 5.6(a)(iv) of this Base Indenture.
“Subordinated Notes Interest Shortfall Amount” has the meaning set forth in Section 5.12(f) of this Base Indenture.
“Subordinated Notes Post-ARD Contingent Additional Interest Account” has the meaning set forth in Section 5.6(a)(x) of this Base Indenture.
“Subordinated Notes Principal Payment Account” has the meaning set forth in Section 5.6(a)(vii) of this Base Indenture.
“Subordinated Notes Quarterly Interest Amount” means, for each Quarterly Payment Date, with respect to each Class of Subordinated Notes Outstanding, the aggregate amounts identified as the “Subordinated Notes Quarterly Interest Amount” in the applicable Series Supplement.
“Subordinated Notes Quarterly Post-ARD Contingent Additional Interest” means, for any Interest Accrual Period, with respect to any Class of Subordinated Notes Outstanding, the aggregate amount of interest accrued with respect to such Interest Accrual Period on each such Class of Subordinated Notes that is identified as “Subordinated Notes Quarterly Post-ARD Contingent Additional Interest” in the applicable Series Supplement.
“Subordinated Notes Scheduled Principal Payments Amounts” means, with respect to any Class of Subordinated Notes Outstanding, any Scheduled Principal Payments with respect to such Class of Subordinated Notes.
“Subordinated Notes Scheduled Principal Payment Deficiency Amount”, with respect to any Series of Subordinated Notes, has the meaning specified in the related Series Supplement.
“Subsidiary” means, with respect to any Person (herein referred to as the “parent”), any corporation, partnership, limited liability company, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, controlled or held by the parent or (b) that is, at the time any determination is being made, otherwise controlled by the parent and/or one or more Subsidiaries of the parent.
“Successor Manager” means any successor to the Manager appointed by the Control Party (at the direction of the Controlling Class Representative), that has accepted such appointment, upon the resignation or termination of the Manager pursuant to the terms of the Management Agreement.
“Successor Manager Transition Expenses” means all costs and expenses incurred by a Successor Manager or the Interim Successor Manager in connection with the termination, resignation, removal and replacement of the Manager under the Management Agreement.
“Successor Servicer Transition Expenses” means all costs and expenses incurred by a successor Servicer in connection with the termination, removal and replacement of the Servicer under the Servicing Agreement.
“Supplement” means a Series Supplement or such other supplement to this Base Indenture or other Indenture Document amending or modifying this Base Indenture or such other Indenture Document complying (to the extent applicable) with the terms of Article XIII of this Base Indenture.
“Supplemental Management Fee” means, for each Weekly Allocation Date with respect to any Quarterly Fiscal Period, the amount, approved in writing by the Control Party acting at the direction of the Controlling Class Representative, by which, with respect to any Quarterly Fiscal Period, (i) the expenses incurred or other amounts charged by the Manager since the beginning of such Quarterly Fiscal Period in connection with the performance of the Manager’s obligations under the Management Agreement and the amount of any current or projected Tax Payment Deficiency, if applicable, exceed (ii) the Weekly Management Fees received and to be received by the Manager from the Issuer on such Weekly Allocation Date and each preceding Weekly Allocation Date with respect to such Quarterly Fiscal Period.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement,
together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Tax” means (i) any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, environmental, customs duties, capital stock, profits, documentary, property, franchise, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, or other tax of any kind whatsoever, including any interest, penalty, fine, assessment or addition thereto, and (ii) any transferee liability in respect of any items described in clause (i) above.
“Tax Information” means information and/or properly completed and signed tax certifications sufficient to eliminate the imposition of or to determine the amount of any withholding of tax, including backup withholding and withholding required pursuant to FATCA.
“Tax Lien Reserve Amount” has the meaning set forth in Section 9.2(o) of this Base Indenture.
“Tax Opinion” means an opinion of tax counsel of nationally recognized standing in the United States experienced in such matters, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, to be delivered in connection with the issuance of each new Series of Notes to the effect that, for United States federal income tax purposes, (a) the issuance of such new Series of Notes will not affect adversely the United States federal income tax characterization of any Series of Notes Outstanding or Class thereof that was (based upon an Opinion of Counsel) properly treated as debt at the time of their issuance, (b) except with respect to any Future Securitization Entity (including Future Securitization Entities organized with the consent of the Control Party pursuant to Section 8.30(b) of this Base Indenture) that will be treated as a corporation for United States federal income tax purposes, each Securitization Entity organized in the United States (i) will as of the date of issuance be treated as a disregarded entity and (ii) will not as of the date of issuance be classified as a corporation or as an association or publicly traded partnership taxable as a corporation and (c) such new Series of Notes will as of the date of issuance be properly treated as debt, excluding any new Series of Subordinated Notes, provided the Control Party consents to such issuance.
“Tax Payment Deficiency” means any Tax liability of Parent (or, if Parent is not the taxable parent entity of Funding Holdco, such other taxable parent entity) (including Taxes imposed under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law)) attributable to the operations of the Securitization Entities or their direct or indirect Subsidiaries that the Manager determines cannot be satisfied by Parent (or such other taxable parent entity) from its available funds.
“Trade Secrets” has the meaning set forth in the definition of “Intellectual Property”.
“Trademarks” has the meaning set forth in the definition of “Intellectual Property”.
“Tranche” means, with respect to any Class or Subclass of any Series of Notes, any one of the tranches of Notes of such Class or Subclass as specified in the applicable Series Supplement.
“Transaction Documents” means the Indenture, the Notes, the Guarantee and Collateral Agreement, each Account Control Agreement, the Management Agreement, the Servicing Agreement, the Back-Up Management Agreement, any Series Hedge Agreement, the Contribution Agreements, the Note Purchase Agreements, the Wingstop IP License Agreement, any Enhancement Agreement, the Charter Documents of each Securitization Entity, each Letter of Credit Reimbursement Agreement, the Omnibus Amendment and Reaffirmation Agreement, the 2022 Omnibus Amendment and Reaffirmation Agreement, the 2024 Omnibus Amendment and Reaffirmation Agreement and any additional document
identified as a “Transaction Document” in the Series Supplement for any Series of Notes Outstanding and any other material agreements entered into, or certificates delivered, pursuant to the foregoing documents.
“Trust Officer” means any officer within the corporate trust department of the Trustee, including any Vice President, Assistant Vice President or Assistant Treasurer of the Corporate Trust Office, or any trust officer, or any officer customarily performing functions similar to those performed by any such officer, in each case having direct responsibility for the administration of the Indenture, and also any officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject.
“Trustee Accounts” has the meaning set forth in Section 5.8(a) of this Base Indenture.
“UCC” means the Uniform Commercial Code as in effect from time to time in the specified jurisdiction or any applicable jurisdiction, as the case may be.
“Uncertificated Note” means any Note issued in uncertificated, fully registered form evidenced by entry in the Note Register.
“United States” or “U.S.” means the United States of America, its 50 states and the District of Columbia. For the avoidance of doubt, “United States” and “U.S.” shall not include any territories, possessions or commonwealths of the United States of America.
“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, and any successor statute of similar import, in each case as in effect from time to time.
“USCO” means the U.S. Copyright Office and any successor U.S. Federal office.
“USPTO” means the U.S. Patent and Trademark Office and any successor U.S. Federal office.
“Vendor Rebate Contract” means any vendor, supplier, distribution or other similar third-party agreement entered into by any Wingstop Entity that in the good faith determination of the Manager, would reasonably have been expected to generate Retained Collections in excess of $1,000,000 in the prior Fiscal Year if such agreement had been contributed to, or entered into by, Wingstop Franchisor prior to the beginning of such Fiscal Year (assuming the Securitization Transactions had occurred); provided that for purposes of determining whether any replacement Contributed Vendor Rebate Contract or New Vendor Rebate Contract entered into by any Wingstop Entity constitutes a New Vendor Rebate Contract the foregoing determination of the Manager will be disregarded.
“Voting Equity Interests” means, with respect to any Person as of any date, the Equity Interests of such Person that are at the time entitled to vote in the election of the board of directors or similar body of such Person.
“Warm Back-Up Management Duties” has the meaning set forth in the Back-Up Management Agreement.
“Warm Back-Up Management Trigger Event” has the meaning set forth in the Back-Up Management Agreement.
“Weekly Allocation Date” means, with respect to each Weekly Collection Period, the fifth (5th) Business Day following the date on which such Weekly Collection Period ends.
“Weekly Collection Period” means, with respect to Collections, each weekly period commencing at 12:00 a.m. (local time) on each Sunday per week and ending at 11:59 p.m. (local time) on each Saturday per week. References to “local time” refer to the local time at the Branded Restaurant or other location receiving the relevant Collections.
“Weekly Management Fee” has the meaning set forth in the Management Agreement.
“Weekly Manager’s Certificate” has the meaning specified in Section 4.1(a) of this Base Indenture.
“Welfare Plan” means any “employee welfare benefit plan,” as such term is defined in Section 3(1) of ERISA.
“Wingstop Brand” means the Wingstop name and Trademarks owned by Wingstop Franchisor, whether alone or in combination with other words or symbols, and any variations or derivatives of any of the foregoing.
“Wingstop Entities” means Parent and each of its direct and indirect subsidiaries, including the Securitization Entities.
“Wingstop Franchisor” means Wingstop Franchising LLC, a Delaware limited liability company and a direct, wholly-owned subsidiary of the Issuer.
“Wingstop IP License Agreement” means the Wingstop IP License Agreement, dated as of the Original Closing Date, between Wingstop Franchisor, as licensor, and WRI, as licensee, as amended, supplemented or otherwise modified from time to time.
“Wingstop System” means the system of Branded Restaurants operating under the Wingstop Brand.
“Wingstop System-Wide Sales” means with respect to any Quarterly Calculation Date, aggregate Gross Sales (which shall be permitted to include a good faith estimate (in accordance with the Managing Standard) of estimated Gross Sales of up to 10% of the total to the extent actual Gross Sales are not available as of such Quarterly Calculation Date) (prior to adjustment on account of any costs, expenses, fees or royalties) for all Branded Restaurants (as reported by the respective Franchisees, in the case of a Franchised Restaurant) in the Wingstop System for the four (4) Quarterly Fiscal Periods ended immediately prior to such Quarterly Calculation Date.
“Workout Fee” has the meaning set forth in the Servicing Agreement.
“WRI” means Wingstop Restaurants, Inc., a Texas corporation.
“written” or “in writing” means any form of written communication, including, without limitation, by means of e-mail, facsimile, telex, telecopier device, telegraph or cable.
WINGSTOP FUNDING LLC,
as Issuer
and
CITIBANK, N.A.,
as Trustee and Series 2024-1 Securities Intermediary
SERIES 2024-1 SUPPLEMENT
Dated as of December 3, 2024
to
SECOND AMENDED AND RESTATED BASE INDENTURE
Dated as of March 9, 2022
$500,000,000 Series 2024-1 5.858% Fixed Rate Senior Secured Notes, Class A-2
Table of Contents
| | | | | | | | | | | |
| | | Page |
| PRELIMINARY STATEMENT | |
| | | |
| DESIGNATION 1 | |
| | | |
| ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION | |
| | | |
| ARTICLE II Reserved | |
| | | |
| ARTICLE III SERIES 2024-1 ALLOCATIONS; PAYMENTS | |
| Section 3.1 | Allocations with Respect to the Series 2024-1 Notes | |
| Section 3.2 | Application of Collections on Weekly Allocation Dates to the Series 2024-1 Notes | |
| Section 3.3 | Certain Distributions from Series 2024-1 Class A-2 Distribution Account | |
| Section 3.4 | Reserved | |
| Section 3.5 | Series 2024-1 Class A-2 Interest | |
| Section 3.6 | Payment of Series 2024-1 Class A-2 Note Principal | |
| Section 3.7 | Reserved | |
| Section 3.8 | Series 2024-1 Class A-2 Distribution Account | |
| Section 3.9 | Trustee as Securities Intermediary | |
| Section 3.10 | Manager | |
| Section 3.11 | Replacement of Ineligible Accounts | |
| | | |
| ARTICLE IV FORM OF SERIES 2024-1 CLASS A-2 NOTES | |
| Section 4.1 | Reserved | |
| Section 4.2 | Issuance of Series 2024-1 Class A-2 Notes | |
| Section 4.3 | Reserved | |
| Section 4.4 | Transfer Restrictions of Series 2024-1 Class A-2 Notes | |
| Section 4.5 | Note Owner Representations and Warranties | |
| Section 4.6 | Limitation on Liability | |
| | | |
| ARTICLE V GENERAL | |
| Section 5.1 | Information | |
| Section 5.2 | Exhibits | |
| Section 5.3 | Ratification of Base Indenture | |
| Section 5.4 | Notices to Rating Agency | |
| Section 5.5 | Counterparts | |
| Section 5.6 | Governing Law | |
| Section 5.7 | Amendments | |
| Section 5.8 | Termination of Series Supplement | |
| Section 5.9 | Entire Agreement | |
| | | | | |
| ANNEXES | |
| |
| Annex A | Series 2024-1 Supplemental Definitions List |
| |
| EXHIBITS | |
| |
| Exhibit A-1: | Form of Rule 144A Global Series 2024-1 Class A-2 Note |
| Exhibit A-2: | Form of Temporary Regulation S Global Series 2024-1 Class A-2 Note |
| Exhibit A-3: | Form of Permanent Regulation S Global Series 2024-1 Class A-2 Note |
| Exhibit B-1: | Form of Transferee Certificate - Series 2024-1 Class A-2 Notes, Rule 144A to Temporary Regulation S |
| Exhibit B-2: | Form of Transferee Certificate - Series 2024-1 Class A-2 Notes, Rule 144A to Permanent Regulation S |
| Exhibit B-3: | Form of Transferee Certificate - Series 2024-1 Class A-2 Notes, Temporary Regulation S or Permanent Regulation S to Rule 144A |
This SERIES 2024-1 SUPPLEMENT, dated as of December 3, 2024 (this “Series Supplement”), is entered into by and between WINGSTOP FUNDING LLC, a Delaware limited liability company, as the issuer (the “Issuer”), and CITIBANK, N.A., a national banking association, as the trustee (in such capacity, the “Trustee”) and as Series 2024-1 Securities Intermediary, and is a Series Supplement to the Second Amended and Restated Base Indenture, dated as of March 9, 2022, by and between the Issuer and Citibank, N.A., as the Trustee and as Securities Intermediary (as amended by the First Supplement to the Second Amended and Restated Base Indenture, dated as of the date hereof and as further amended, amended and restated, modified or supplemented from time to time, exclusive of Series Supplements, the “Base Indenture”).
PRELIMINARY STATEMENT
WHEREAS, Sections 2.2 and 13.1 of the Base Indenture provide, among other things, that the Issuer and the Trustee may at any time and from time to time enter into a Series Supplement to the Base Indenture for the purpose of authorizing the issuance of one or more Series of Notes (as defined in Annex A of the Base Indenture) upon satisfaction of the conditions set forth therein; and
WHEREAS, all such conditions have been met for the issuance of the Series of Notes authorized hereunder.
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
There is hereby created a Series of Notes to be issued pursuant to the Base Indenture and this Series Supplement, and such Series of Notes shall be designated as the Series 2024-1 Notes. On the Series 2024-1 Closing Date, one (1) Class of Notes of such Series of Notes shall be issued: Series 2024-1 5.858% Fixed Rate Senior Secured Notes, Class A-2 (as referred to herein, the “Series 2024-1 Class A-2 Notes” or the “Series 2024-1 Notes”).
For purposes of the Base Indenture and this Series Supplement, the Series 2024-1 Class A-2 Notes shall be deemed to be a Class of “Senior Notes”.
ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION
All capitalized terms used herein (including in the preamble and the recitals hereto) and not otherwise defined herein shall have the meanings assigned to such terms in the Series 2024-1 Supplemental Definitions List attached hereto as Annex A (the “Series 2024-1 Supplemental Definitions List”) as such Series 2024-1 Supplemental Definitions List may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof. All capitalized terms not otherwise defined herein or therein shall have the meanings assigned thereto in the Base Indenture or the Base Indenture Definitions List attached to the Base Indenture as Annex A thereto, as such Base Indenture or Base Indenture Definitions List may be amended, supplemented or otherwise modified from time to time in accordance with the terms of the Base Indenture. Unless otherwise specified herein, all Article, Exhibit, Section or Subsection references herein shall refer to Articles, Exhibits, Sections or Subsections of this Series Supplement. Unless otherwise stated herein, as the context otherwise requires or if such term is otherwise defined in the Base Indenture, each capitalized term used or defined herein shall relate only to the Series 2024-1 Notes and not to any other Series of Notes issued by the Issuer. The
rules of construction set forth in Section 1.4 of the Base Indenture shall apply for all purposes under this Series Supplement.
ARTICLE II
Reserved
ARTICLE III
SERIES 2024-1 ALLOCATIONS; PAYMENTS
With respect to the Series 2024-1 Notes only, the following shall apply:
Section 3.1 Allocations with Respect to the Series 2024-1 Notes. On the Series 2024-1 Closing Date, (i) the net proceeds from the issuance and sale of the Series 2024-1 Class A-2 Notes to the Initial Purchasers shall be paid to, or at the direction of, the Issuer and (ii) the Issuer shall apply such net proceeds to, among other things, make an initial deposit into the Senior Notes Interest Reserve Account and/or arrange for the issuance of an Interest Reserve Letter of Credit in an aggregate then undrawn and unexpired face amount equal to or, at the election of the Manager, greater than the Initial Senior Notes Interest Reserve Deposit.
Section 3.2 Application of Collections on Weekly Allocation Dates to the Series 2024-1 Notes. On each Weekly Allocation Date, the Issuer (or the Manager on its behalf) shall deliver a Weekly Manager’s Certificate to the Trustee, which Weekly Manager’s Certificate or, if applicable, an Omitted Payable Sums Certification, will instruct the Trustee to allocate from the Collection Account to the applicable Indenture Trust Account all amounts relating to the Series 2024-1 Notes pursuant to, and to the extent that funds are available therefor in accordance with the provisions of, the Priority of Payments.
Section 3.3 Certain Distributions from Series 2024-1 Class A-2 Distribution Account. On each Quarterly Payment Date, based solely upon the most recent Quarterly Noteholders’ Report and in accordance with the order of priority set forth therein, the Trustee shall, in accordance with Section 6.1 of the Base Indenture, remit to the Series 2024-1 Class A-2 Noteholders from the Series 2024-1 Class A-2 Distribution Account, the amounts withdrawn from the Senior Notes Interest Payment Account, the Senior Notes Principal Payment Account, the Senior Notes Post-ARD Contingent Additional Interest Account or otherwise, as applicable, pursuant to Section 5.12(a), (d), (h) or otherwise, as applicable, of the Base Indenture, and deposited in the Series 2024-1 Class A-2 Distribution Account for the payment of interest and, to the extent applicable, principal or other amounts in respect of the Series 2024-1 Class A-2 Notes on such Quarterly Payment Date.
Section 3.4 Reserved.
Section 3.5 Series 2024-1 Class A-2 Interest.
(a)Series 2024-1 Class A-2 Notes Interest. From the Series 2024-1 Closing Date until the Series 2024-1 Class A-2 Outstanding Principal Amount has been paid in full, the Series 2024-1 Class A-2 Outstanding Principal Amount will accrue interest for each Interest Accrual Period (after giving effect to all payments of principal (if any) made to Series 2024-1 Class A-2 Noteholders as of the first day of such Interest Accrual Period, and also giving effect to prepayments, repurchases and cancellations of Series 2024-1 Class A-2 Notes during such Interest Accrual Period) at the Series 2024-1 Class A-2 Note Rate. Such accrued interest will be due and payable in arrears on each Quarterly Payment Date, from amounts that are made available for payment thereof (i) on any related Weekly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of
the Base Indenture, commencing on the Initial Quarterly Payment Date; provided that in any event all accrued but unpaid interest shall be due and payable in full on the Series 2024-1 Legal Final Maturity Date, on any Series 2024-1 Prepayment Date with respect to a prepayment in full of the Series 2024-1 Class A-2 Notes or on any other day on which all of the Series 2024-1 Class A-2 Outstanding Principal Amount is required to be paid in full. To the extent any interest accruing at the Series 2024-1 Class A-2 Note Rate is not paid when due, such unpaid interest will accrue interest at the Series 2024-1 Class A-2 Note Rate. All computations of interest at the Series 2024-1 Class A-2 Note Rate shall be made on a 30/360 Day Basis.
(b)Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest.
(i)Post-ARD Contingent Additional Interest. From and after the Series 2024-1 Class A-2 Anticipated Repayment Date, if the Series 2024-1 Final Payment has not been made on the Series 2024-1 Class A-2 Notes, then additional interest (the “Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest”) will accrue on the Series 2024-1 Class A-2 Outstanding Principal Amount at an interest rate equal to the rate determined by the Manager to be the greater of (I) 5.0% per annum and (II) a per annum rate equal to the amount, if any, by which the sum of the following exceeds the Series 2024-1 Class A-2 Note Rate: (A) the yield to maturity (adjusted to a quarterly bond-equivalent basis) on the Series 2024-1 Class A-2 Anticipated Repayment Date of the United States Treasury Security having a term closest to 10 years, plus (B) 5.0%, plus (C) 1.60% (the “Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest Rate”). In addition, regular interest will continue to accrue at the Series 2024-1 Class A-2 Note Rate from and after the Series 2024-1 Class A-2 Anticipated Repayment Date. All computations of Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest shall be made on a 30/360 Day Basis.
(ii)Payment of Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest. Amounts accrued in respect of Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest will be due and payable on any applicable Quarterly Payment Date as and when amounts are made available for payment thereof (I) on any related Weekly Allocation Date in accordance with the Priority of Payments and (II) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so made available. The failure to pay any Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest in excess of available amounts in accordance with the foregoing (including on the Series 2024-1 Legal Final Maturity Date) will not be an Event of Default and interest will not accrue on any unpaid portion thereof; provided that in any event all accrued but unpaid Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest shall be due and payable in full on the Series 2024-1 Legal Final Maturity Date, on any Series 2024-1 Prepayment Date with respect to a prepayment in full of the Series 2024-1 Class A-2 Notes or otherwise as part of any Series 2024-1 Final Payment.
(c)Series 2024-1 Class A-2 Initial Interest Accrual Period. The initial Interest Accrual Period for the Series 2024-1 Class A-2 Notes shall commence on (and include) the Series 2024-1 Closing Date and end on (but exclude) the Initial Quarterly Payment Date.
Section 3.6 Payment of Series 2024-1 Class A-2 Note Principal.
(a)Series 2024-1 Class A-2 Notes Principal Payment on the Series 2024-1 Class A-2 Legal Final Maturity Date. The Series 2024-1 Class A-2 Outstanding Principal Amount shall be due and payable on the Series 2024-1 Legal Final Maturity Date. The Series
2024-1 Class A-2 Outstanding Principal Amount is not prepayable, in whole or in part, except as set forth in the Base Indenture and this Section 3.6.
(b)Series 2024-1 Class A-2 Anticipated Repayment Date. The Series 2024-1 Final Payment Date is anticipated to occur on the Quarterly Payment Date occurring in December 2031 (the “Series 2024-1 Class A-2 Anticipated Repayment Date”).
(c)Payment of Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amounts. Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amounts will be due and payable in accordance with the definition thereof on any applicable Quarterly Payment Date, commencing on the Quarterly Payment Date in March 2025 and prior to the Series 2024-1 Class A-2 Anticipated Repayment Date, as and when amounts are made available for payment thereof (i) on any related Weekly Allocation Date in accordance with the Priority of Payments, subject to the terms set forth in the Base Indenture; and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so made available, and failure to pay any Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amounts in excess of available amounts in accordance with the foregoing will not be an Event of Default; provided that Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amounts shall only be due and payable on a Quarterly Payment Date if the Series 2024-1 Class A-2 Non-Amortization Test is not satisfied for such Quarterly Payment Date (as measured on the related Series 2024-1 Non-Amortization Test Date); provided, further, that if the Series 2024-1 Class A-2 Non-Amortization Test is satisfied as of the related Series 2024-1 Non-Amortization Test Date for a Quarterly Payment Date, the Issuer may, solely at its option, exercised on the Quarterly Calculation Date with respect to such Quarterly Payment Date, prior to the Series 2024-1 Class A-2 Anticipated Repayment Date, pay all or any part of such Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amounts on such Quarterly Payment Date in an amount not to exceed the Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amount that would otherwise be due on such Quarterly Payment Date if the Series 2024-1 Class A-2 Non-Amortization Test was not satisfied. There will be no scheduled payment of principal of the Series 2024-1 Class A-2 Notes (and therefore the Series 2024-1 Class A-2 Non-Amortization Test will not be applicable) on the Initial Quarterly Payment Date.
(d)Series 2024-1 Class A-2 Notes Mandatory Payments of Principal. During any Rapid Amortization Period, principal payments shall be due and payable on each Quarterly Payment Date on the Series 2024-1 Class A-2 Notes as and when amounts are made available for payment thereof (i) on any related Weekly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so made available; provided, however, with respect to a Rapid Amortization Event pursuant to Section 9.1(d) of the Base Indenture, if the DSCR is greater than 2.00x as of the Series 2024-1 Class A-2 Anticipated Repayment Date, and the Series 2024-1 Class A-2 Notes are repaid or refinanced within one (1) calendar year from the Series 2024-1 Class A-2 Anticipated Repayment Date, such Rapid Amortization Event will no longer be in effect following such repayment or refinancing. Such payments shall be ratably allocated among the Series 2024-1 Class A-2 Noteholders based on their respective portion of the Series 2024-1 Class A-2 Outstanding Principal Amount.
(e)Series 2024-1 Class A-2 Make-Whole Prepayment Consideration Payments; Series 2024-1 Class A-2 Call Redemption Premium.
(i)In connection with (i) any mandatory prepayment of any Series 2024-1 Class A-2 Notes made with any Asset Disposition Proceeds pursuant to Section 3.6(h) or (ii) any optional prepayment of any Series 2024-1 Class A-2 Notes made pursuant to Section 3.6(f), in each case of clause (i) and (ii), made prior to the Quarterly Payment Date in the Target Month (the “Prepayment Consideration End Date”) (each, a “Series 2024-1 Class A-2 Prepayment”), the Issuer shall pay, in the manner described herein, the Series 2024-1 Class A-2 Make-Whole Prepayment Consideration to the Series 2024-1 Class A-2 Noteholders with respect to the principal portion of the Series 2024-1 Prepayment Amount.
(ii) The Series 2024-1 Class A-2 Call Redemption Premium will be payable in lieu of the applicable Series 2024-1 Class A-2 Make-Whole Prepayment Consideration on the Series 2024-1 Class A-2 Notes by the Issuer upon any redemption or refinancing of the Series 2020-1 Class A-2 Notes, the Series 2022-1 Class A-1 Notes, the Series 2022-1 Class A-2 Notes and the Series 2024-1 Class A-2 Notes in full at any time on or after the Quarterly Payment Date in March 2027 and on or prior to the Quarterly Payment Date in December 2027. The “Series 2024-1 Class A-2 Call Redemption Premium” means an amount equal to the lower of (A)(x) the product of (i) the Outstanding Principal Amount of the Series 2024-1 Class A-2 Notes at the time of the redemption or refinancing of the Series 2024-1 Class A-2 Notes in full and (ii) 101% minus (y) the Outstanding Principal Amount of the Series 2024-1 Class A-2 Notes being prepaid and (B) the applicable Series 2024-1 Class A-2 Make-Whole Prepayment Consideration otherwise payable with respect to such Outstanding Principal Amount of such Series 2024-1 Class A-2 Notes. In the event that the Series 2024-1 Class A-2 Call Redemption Premium is paid, such amount will be in lieu of any Series 2024-1 Class A-2 Make-Whole Prepayment Consideration otherwise required to be paid on the Series 2024-1 Class A-2 Notes being repaid in full. For purposes of the Base Indenture, “Series 2024-1 Class A-2 Call Redemption Premium” shall be deemed to be a “Prepayment Consideration”.
(iii)For the avoidance of doubt, no Series 2024-1 Class A-2 Make-Whole Prepayment Consideration or Series 2024-1 Class A-2 Call Redemption Premium (as applicable) shall be payable in connection with any prepayment that is not a Series 2024-1 Class A-2 Prepayment, including (i) prepayments funded by Indemnification Amounts or Insurance/Condemnation Proceeds, (ii) any mandatory prepayment of principal of the Series 2024-1 Class A-2 Notes due to a Rapid Amortization Event, (iii) the payments of Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amounts, Series 2024-1 Class A-2 Optional Scheduled Principal Payments and Series 2024-1 Class A-2 Notes Scheduled Principal Payment Deficiency Amounts, (iv) prepayments made with funds in the Cash Trap Reserve Account (other than optional prepayments of Senior Notes made with funds in the Cash Trap Reserve Account at the sole discretion of the Issuer in accordance with the CTOP Payment Priority, for which Series 2024-1 Class A-2 Make-Whole Prepayment Consideration will be payable), (v) prepayments pursuant to the EU/UK Applicable Investor Put Option and (vi) cancellations of Series 2024-1 Class A-2 Notes.
(f)Optional Prepayment of Series 2024-1 Class A-2 Notes. Subject to Sections 3.6(e) and 3.6(g), the Issuer shall have the option to prepay (including, without limitation, optional prepayments from the Cash Trap Reserve Account paid in accordance with the CTOP Payment Priority and prepayments with the proceeds of equity contributions) the Outstanding Principal Amount of the Series 2024-1 Class A-2 Notes in whole or in part on any Business Day that is specified as the Series 2024-1 Prepayment Date in the applicable Prepayment Notice (each, an “Optional Prepayment Date”); provided, that no such optional prepayment may be made unless the following conditions shall be satisfied:
(i) in the case of a prepayment of the Series 2024-1 Class A-2 Notes in part:
(A) the amount on deposit in the Series 2024-1 Class A-2 Distribution Account (including amounts to be transferred from the Cash Trap Reserve Account), together with the amount on deposit in the Senior Notes Principal Payment Account that is allocable to the Series 2024-1 Class A-2 Notes to be prepaid, is sufficient to pay the principal amount of the Series 2024-1 Class A-2 Notes to be prepaid and any Series 2024-1 Class A-2 Make-Whole Prepayment Consideration or Series 2024-1 Class A-2 Call Redemption Premium (as applicable) required pursuant to Section 3.6(e);
(B) the amounts on deposit in, or allocable to, the Series 2024-1 Class A-2 Distribution Account to be distributed on the Quarterly Payment Date which coincides with, or immediately follows, such Optional Prepayment Date, as the case may be, are sufficient to pay (in addition to the amounts described in clause (i)(A)) the Prepayment Condition Amounts on such Quarterly Payment Date; and
(C) if such prepayment is not made on a Quarterly Payment Date, the amounts on deposit in the Senior Notes Interest Payment Account allocable to the Series 2024-1 Class A-2 Notes, or other available amounts, are sufficient to pay all accrued and unpaid interest on the principal amount to be prepaid on such Optional Prepayment Date; and
(ii) in the case of an optional prepayment of the Series 2024-1 Class A-2 Notes in whole:
(A) the amounts on deposit in the Indenture Trust Accounts, the Series 2024-1 Class A-2 Distribution Account (after giving effect to the applicable allocations set forth therein on such Optional Prepayment Date pursuant to Section 3.6(i)(iii)), or other available amounts, in each case allocable to the Series 2024-1 Class A-2 Notes, are sufficient to pay all outstanding monetary Obligations (including unreimbursed Advances with interest thereon at the Advance Interest Rate, unpaid fees and Securitization Operating Expenses) in respect of the Series 2024-1 Class A-2 Notes, including unpaid interest accrued in respect of the period on and prior to such Optional Prepayment Date, and
(B) the amounts on deposit in the Collection Account, the Indenture Trust Accounts or otherwise available are reasonably expected by the Manager to be sufficient to pay the Prepayment Condition Amounts, other than with respect to the Series 2024-1 Class A-2 Notes, on the immediately following Quarterly Payment Date, if any, or are sufficient to pay such amounts on such Optional Prepayment Date, if such date is a Quarterly Payment Date,
or, in each case, any shortfalls in such amounts have been deposited to the applicable accounts.
(g)Notices of Prepayments.
(i)The Issuer shall give prior written notice (each, a “Prepayment Notice”) at least fifteen (15) Business Days but not more than twenty (20) Business Days
prior to any Series 2024-1 Prepayment with respect to the Series 2024-1 Class A-2 Notes pursuant to Section 3.6(f) to each Series 2024-1 Class A-2 Noteholder, the Rating Agency, the Servicer, the Control Party and the Trustee; provided that at the written request of the Issuer, such notice to the affected Series 2024-1 Class A-2 Noteholders shall be given by the Trustee in the name and at the expense of the Issuer. In connection with any such Prepayment Notice, the Issuer shall provide a written instruction to the Trustee directing the Trustee to distribute such prepayment in accordance with the applicable provisions of Section 3.6.
(ii)With respect to each such Series 2024-1 Prepayment, the related Prepayment Notice shall, in each case, specify (A) whether such prepayment is optional or mandatory, (B) the Series 2024-1 Prepayment Date on which such prepayment will be made, which in all cases shall be a Business Day, (C) the Series 2024-1 Prepayment Amount and (D) if such Series 2024-1 Prepayment is subject to Series 2024-1 Class A-2 Make-Whole Prepayment Consideration or Series 2024-1 Class A-2 Call Redemption Premium, the Series 2024-1 Class A-2 Make-Whole Prepayment Consideration Calculation Date selected by the Issuer.
(iii)Any such optional prepayment and Prepayment Notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control. The Issuer shall have the option to provide in any Prepayment Notice that the payment of the amounts set forth in Section 3.6(f) and the performance of the Issuer’s obligations with respect to such optional prepayment may be performed by another Person.
(iv)The Issuer shall have the option, by written notice to the Trustee, the Control Party, the Rating Agency and the affected Noteholders, to revoke, or amend the Series 2024-1 Prepayment Date set forth in, any Prepayment Notice relating to an optional prepayment at any time up to the second Business Day before the Series 2024-1 Prepayment Date set forth in such Prepayment Notice; provided that at the request of the Issuer, such notice to the Series 2024-1 Class A-2 Noteholders shall be given by the Trustee in the name and at the expense of the Issuer.
(h)Indemnification Amounts; Asset Disposition Proceeds; Insurance/Condemnation Proceeds. Any Indemnification Amounts, Asset Disposition Proceeds or Insurance/Condemnation Proceeds allocated to the Senior Notes Principal Payment Account in accordance with Section 5.11(i) of the Base Indenture shall be withdrawn from the Senior Notes Principal Payment Account in accordance with Section 5.12 (d) of the Base Indenture and deposited in the Series 2024-1 Class A-2 Distribution Account and used to prepay the Series 2024-1 Class A-2 Notes (based on their respective portion of the Series 2024-1 Class A-2 Outstanding Principal Amount), on the Quarterly Payment Date indicated in the Weekly Manager’s Certificate or Quarterly Noteholders Report, as applicable. In connection with any prepayment made with Indemnification Amounts or Insurance/Condemnation Proceeds pursuant to this Section 3.6(h), the Issuer shall not be obligated to pay any Series 2024-1 Class A-2 Make-Whole Prepayment Consideration. The Issuer shall, however, be obligated to pay any applicable Series 2024-1 Class A-2 Make-Whole Prepayment Consideration required to be paid pursuant to Section 3.6(e) in connection with any prepayment made with Asset Disposition Proceeds pursuant to this Section 3.6(h); provided, for avoidance of doubt, that it shall not constitute an Event of Default if any such Series 2024-1 Class A-2 Make-Whole Prepayment Consideration is not paid because insufficient funds are available to pay such Series 2024-1 Class A-2 Make-Whole Prepayment Consideration, in accordance with the Priority of Payments.
(i)Distributions of Optional Prepayments of Series 2024-1 Class A-2 Notes.
(i)No later than five (5) Business Days prior to the Series 2024-1 Prepayment Date for each Series 2024-1 Prepayment to be made pursuant to Section 3.6(f) in respect of the Series 2024-1 Class A-2 Notes, the Issuer shall provide the Trustee with a written report (“Optional Prepayment Issuer Order”) instructing the Trustee to withdraw from the Collection Account the amounts set forth in such Optional Prepayment Issuer Order. Such Optional Prepayment Issuer Order shall indicate (A) the Series 2024-1 Prepayment Amount to be transferred from the Collection Account to the Series 2024-1 Class A-2 Distribution Account and/or if applicable, the source of other funds to be deposited into the Series 2024-1 Distribution Account for such prepayment and (B) the amount to be distributed to the Series 2024-1 Class A-2 Noteholders with respect to principal, interest and, if any, Series 2024-1 Class A-2 Make-Whole Prepayment Consideration or Series 2024-1 Class A-2 Call Redemption Premium, as applicable. Such written report may be consolidated with additional payment instructions as necessary to effect other distributions occurring on, or substantially concurrently with, such Series 2024-1 Prepayment Date.
(ii)On the Series 2024-1 Prepayment Date for each Series 2024-1 Prepayment to be made pursuant to Section 3.6(f) in respect of the Series 2024-1 Class A-2 Notes, the Trustee shall, in accordance with Section 6.1 of the Base Indenture (except that, notwithstanding anything to the contrary therein, references to the distributions being made on a Quarterly Payment Date shall be deemed to be references to distributions made on such Series 2024-1 Prepayment Date and references to the Record Date shall be deemed to be references to the Prepayment Record Date) and based solely upon the applicable written instruction provided to the Trustee pursuant to Section 3.6(g), distribute to the Noteholders of record on the preceding Prepayment Record Date on a pro rata basis, based on their respective portion of the Series 2024-1 Class A-2 Outstanding Principal Amount, the amount on deposit in the Series 2024-1 Class A-2 Distribution Account in order to pay (without duplication) (A) the applicable portion of the Series 2024-1 Class A-2 Outstanding Principal Amount and any applicable Series 2024-1 Class A-2 Make-Whole Prepayment Consideration or Series 2024-1 Class A-2 Call Redemption Premium (as applicable) with respect thereto, (B) in the case of an optional prepayment on a Series 2024-1 Prepayment Date that is not a Quarterly Payment Date, interest on such portion of the Series 2024-1 Class A-2 Outstanding Principal Amount being prepaid, and (C) in the case of an optional prepayment in whole, the outstanding monetary Obligations described in Section 3.6(f)(ii)(A), in each case due and payable on such Series 2024-1 Prepayment Date.
(iii)If the Series 2024-1 Class A-2 Notes are paid in whole on a Series 2024-1 Prepayment Date that is not an Weekly Allocation Date, the Issuer shall have the option to instruct the Trustee to withdraw amounts on deposit in the Collection Account on such Series 2024-1 Prepayment Date and deposit such amounts in the Series 2024-1 Class A-2 Distribution Account, so long as the Issuer (or the Manager on its behalf) determines that the Residual Amount on the Weekly Allocation Date immediately following such Series 2024-1 Prepayment Date shall be greater than zero. The delivery of any such instruction to the Trustee shall be deemed to be a certification from the Issuer or the Manager, as applicable, as to the satisfaction of such condition, on which the Trustee may conclusively rely.
(j)Series 2024-1 Notices of Final Payment. The Issuer shall notify the Trustee, the Servicer and the Rating Agency on or before the Prepayment Record Date preceding the Series 2024-1 Prepayment Date that will be the Series 2024-1 Final Payment Date; provided, however, that with respect to any Series 2024-1 Final Payment that is made in connection with any mandatory or optional prepayment in full, the Issuer shall not be obligated to provide any additional notice to the Trustee, the Servicer or the Rating Agency of such Series 2024-1 Final Payment beyond the notice required to be given in connection with such prepayment pursuant to Section 3.6(g). The Trustee shall provide any written notice required under this Section 3.6(j) to each Person in whose name a Series 2024-1 Class A-2 Note is registered at the close of business
on such Prepayment Record Date of the Series 2024-1 Prepayment Date that will be the Series 2024-1 Final Payment Date. Such written notice to be sent to the Series 2024-1 Class A-2 Noteholders shall be made at the expense of the Issuer and shall be mailed by the Trustee within five (5) Business Days of receipt of notice from the Issuer indicating that the Series 2024-1 Final Payment will be made and shall specify that such Series 2024-1 Final Payment will be payable only upon presentation and surrender (or deregistration, in the case of Uncertificated Notes) of the Series 2024-1 Class A-2 Notes, which such surrender shall also constitute a general release by the applicable Noteholder from any claims against the Securitization Entities, the Manager, the Trustee and their affiliates.
Section 3.7 Reserved.
Section 3.8 Series 2024-1 Class A-2 Distribution Account.
(a)Establishment of Series 2024-1 Class A-2 Distribution Account. The Trustee has established and shall maintain in the name of the Issuer subject to the lien of the Trustee for the benefit of the Series 2024-1 Class A-2 Noteholders an account (the “Series 2024-1 Class A-2 Distribution Account”) bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2024-1 Class A-2 Noteholders. The Series 2024-1 Class A-2 Distribution Account shall be an Eligible Account. Initially, the Series 2024-1 Class A-2 Distribution Account will be established with the Trustee. Amounts on deposit in the Series 2024-1 Class A-2 Distribution Account shall remain uninvested.
(b)Series 2024-1 Class A-2 Distribution Account Constitutes Additional Collateral for Series 2024-1 Class A-2 Notes. In order to secure and provide for the repayment and payment of the Obligations with respect to the Series 2024-1 Class A-2 Notes, the Issuer hereby grants a security interest in and assigns, pledges, grants, transfers and sets over to the Trustee, for the benefit of the Series 2024-1 Class A-2 Noteholders, all of the Issuer’s right, title and interest, if any, in and to the following (whether now or hereafter existing or acquired): (i) the Series 2024-1 Class A-2 Distribution Account, including any security entitlement with respect thereto; (ii) all funds and other property (including, without limitation, Financial Assets) on deposit therein from time to time; (iii) all certificates and instruments, if any, representing or evidencing any or all of the Series 2024-1 Class A-2 Distribution Account or the funds on deposit therein from time to time; (iv) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for the Series 2024-1 Class A-2 Distribution Account or the funds on deposit therein from time to time; and (v) all proceeds of any and all of the foregoing, including, without limitation, cash (the items in the foregoing clauses (i) through (v) are referred to, collectively, as the “Series 2024-1 Class A-2 Distribution Account Collateral”).
(c)Termination of Series 2024-1 Class A-2 Distribution Account. On or after the date on which all accrued and unpaid interest on and principal of all Outstanding Series 2024-1 Class A-2 Notes have been paid, the Trustee, acting in accordance with the written instructions of the Issuer (or the Manager on its behalf), shall withdraw from the Series 2024-1 Class A-2 Distribution Account all amounts on deposit therein (and the proceeds of any other instruments and other property credited thereto) and deposit all such amount into the Collection Account for distribution pursuant to the Priority of Payments and all Liens, if any, created in favor of the Trustee for the benefit of the Series 2024-1 Class A-2 Noteholders under the Indenture with respect to Series 2024-1 Class A-2 Distribution Account shall be automatically released, and the Trustee, upon written request of the Issuer, at the written direction of the
Control Party, shall execute and deliver to the Issuer any and all documentation reasonably requested and prepared by the Issuer at the Issuer’s expense to effect or evidence the release by the Trustee of the Series 2024-1 Class A-2 Noteholders’ security interest in the Series 2024-1 Class A-2 Distribution Account Collateral.
Section 3.9 Trustee as Securities Intermediary.
(a)The Trustee or other Person holding the Series 2024-1 Class A-2 Distribution Account shall be the “Series 2024-1 Securities Intermediary”. If the Series 2024-1 Securities Intermediary in respect of the Series 2024-1 Class A-2 Distribution Account is not the Trustee, the Issuer shall obtain the express agreement of such other Person to the obligations of the Series 2024-1 Securities Intermediary set forth in this Section 3.9.
(b)The Series 2024-1 Securities Intermediary agrees that:
(i)The Series 2024-1 Class A-2 Distribution Account is an account to which Financial Assets will or may be credited;
(ii)The Series 2024-1 Class A-2 Distribution Accounts are “securities accounts” within the meaning of Section 8-501 of the New York UCC and the Series 2024-1 Securities Intermediary qualifies as a “securities intermediary” under Section 8-102(a) of the New York UCC;
(iii)All securities or other property (other than cash) underlying any Financial Assets credited to the Series 2024-1 Class A-2 Distribution Account shall be registered in the name of the Series 2024-1 Securities Intermediary, indorsed to the Series 2024-1 Securities Intermediary or in blank or credited to another securities account maintained in the name of the Series 2024-1 Securities Intermediary, and in no case will any Financial Asset credited to the Series 2024-1 Class A-2 Distribution Account be registered in the name of the Issuer, payable to the order of the Issuer or specially indorsed to the Issuer;
(iv)All property delivered to the Series 2024-1 Securities Intermediary pursuant to this Series Supplement will be promptly credited to the Series 2024-1 Class A-2 Distribution Account;
(v)Each item of property (whether investment property, security, instrument or cash) credited to the Series 2024-1 Class A-2 Distribution Account shall be treated as a Financial Asset;
(vi)If at any time the Series 2024-1 Securities Intermediary shall receive any entitlement order from the Trustee (including those directing transfer or redemption of any Financial Asset) relating to the Series 2024-1 Class A-2 Distribution Account, the Series 2024-1 Securities Intermediary shall comply with such entitlement order without further consent by the Issuer, any other Securitization Entity or any other Person;
(vii)The Series 2024-1 Class A-2 Distribution Account shall be governed by the laws of the State of New York, regardless of any provision of any other agreement. For purposes of all applicable UCCs, the State of New York shall be deemed to the Series 2024-1 Securities Intermediary’s jurisdiction and the Series 2024-1 Class A-2 Distribution Account (as well as the “security entitlements” (as defined in Section 8-102(a)(17) of the New York UCC) related thereto) shall be governed by the laws of the State of New York. The parties further agree that with respect to the Series 2024-1 Class A-2 Distribution Account the law applicable to all the issues in Article 2(1) of The Hague
Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary shall be the law of the State of New York;
(viii)The Series 2024-1 Securities Intermediary has not entered into, and until termination of this Series Supplement will not enter into, any agreement with any other Person relating to the Series 2024-1 Class A-2 Distribution Account and/or any Financial Assets credited thereto pursuant to which it has agreed to comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person, and the Series 2024-1 Securities Intermediary has not entered into, and until the termination of this Series Supplement will not enter into, any agreement with the Issuer purporting to limit or condition the obligation of the Series 2024-1 Securities Intermediary to comply with entitlement orders as set forth in Section 3.9(b)(vi); and
(ix)Except for the claims and interest of the Trustee, the Secured Parties and the Securitization Entities in the Series 2024-1 Class A-2 Distribution Account, neither the Series 2024-1 Securities Intermediary nor, in the case of the Trustee, any Trust Officer knows of any claim to, or interest in, the Series 2024-1 Class A-2 Distribution Account or any Financial Asset credited thereto. If the Series 2024-1 Securities Intermediary or, in the case of the Trustee, a Trust Officer has Actual Knowledge of the assertion by any other person of any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Series 2024-1 Class A-2 Distribution Account or any Financial Asset carried therein, the Series 2024-1 Securities Intermediary will promptly notify the Trustee, the Manager, the Servicer and the Issuer thereof.
(c)At any time after the occurrence and during the continuation of an Event of Default, the Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Series 2024-1 Class A-2 Distribution Account and in all proceeds thereof, and shall (acting at the direction of the Control Party (at the direction of the Controlling Class Representative)) be the only Person authorized to originate entitlement orders in respect of the Series 2024-1 Class A-2 Distribution Account; provided, however, that at all other times the Issuer shall be authorized to instruct the Trustee to originate entitlement orders in respect of the Series 2024-1 Class A-2 Distribution Account.
Section 3.10 Manager. Pursuant to the Management Agreement, the Manager has agreed to provide certain reports, notices, instructions and other services on behalf of the Issuer. The Series 2024-1 Class A-2 Noteholders by their acceptance of the Series 2024-1 Class A-2 Notes consent to the provision of such reports and notices to the Trustee by the Manager in lieu of the Issuer. Any such reports and notices that are required to be delivered to the Series 2024-1 Class A-2 Noteholders hereunder will be made available on the Trustee’s website in the manner set forth in Section 4.4 of the Base Indenture.
Section 3.11 Replacement of Ineligible Accounts. If, at any time, the Series 2024-1 Class A-2 Distribution Account shall cease to be an Eligible Account (the “Series 2024-1 Ineligible Account”), the Issuer shall (i) within five (5) Business Days of obtaining Actual Knowledge thereof, notify the Control Party thereof and (ii) within sixty (60) days of obtaining Actual Knowledge thereof, (A) establish, or cause to be established, a new account that is an Eligible Account in substitution for the Series 2024-1 Ineligible Account, (B) following the establishment of such new Eligible Account, transfer or, with respect to the Trustee Accounts maintained at the Trustee, instruct the Trustee in writing to transfer all cash and investments from the Series 2024-1 Ineligible Account into such new Eligible Account and (C) pledge, or cause to be pledged, such new Eligible Account to the Trustee for the benefit of the Secured Parties and, if such new Eligible Account is not established with the Trustee, cause such new Eligible Account to be subject to an Account Control Agreement.
ARTICLE IV
FORM OF SERIES 2024-1 CLASS A-2 NOTES
Section 4.1 Reserved.
Section 4.2 Issuance of Series 2024-1 Class A-2 Notes.
(a)The Series 2024-1 Class A-2 Notes may be offered and sold in the Series 2024-1 Class A-2 Initial Principal Amount on the Series 2024-1 Closing Date by the Issuer pursuant to the Series 2024-1 Class A-2 Note Purchase Agreement. The Series 2024-1 Class A-2 Notes will be resold initially only to the Issuer or its Affiliates or (A) in each case, to Persons that are not Competitors, (B) in the United States, to Persons that are QIBs purchasing for their own account or the account of one or more other Persons, each of which is a QIB, in reliance on Rule 144A and (C) outside the United States, to Persons that are not a U.S. person (as defined in Regulation S) (a “U.S. Person”) in reliance on Regulation S, purchasing for their own account or the account of one or more other Persons, each of which is a non-U.S. Person. The Series 2024-1 Class A-2 Notes may thereafter be transferred in reliance on Rule 144A and/or Regulation S and in accordance with the procedure described herein. The Series 2024-1 Class A-2 Notes will be Book-Entry Notes and DTC will be the Depository for the Series 2024-1 Class A-2 Notes. The Applicable Procedures shall be applicable to transfers of beneficial interests in the Series 2024-1 Class A-2 Notes. The Series 2024-1 Class A-2 Notes shall be issued in an authorized minimum denomination of $100,000 and in any whole number denomination in excess thereof.
(b)Global Notes.
(i)Rule 144A Global Notes. The Series 2024-1 Class A-2 Notes offered and sold in their initial distribution in reliance upon Rule 144A will be issued in the form of one or more global notes in fully registered form, without coupons, substantially in the form set forth in Exhibit A-1 hereto, registered in the name of Cede & Co. (“Cede”), as nominee of DTC, and deposited with the Trustee, as custodian for DTC (collectively, for purposes of this Section 4.1 and Section 4.2, the “Rule 144A Global Notes”). The aggregate principal amount of the Rule 144A Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, in connection with a corresponding decrease or increase in the aggregate principal amount of the corresponding class of Temporary Regulation S Global Notes or Permanent Regulation S Global Notes, as hereinafter provided.
(ii)Temporary Regulation S Global Notes and Permanent Regulation S Global Notes. Any Series 2024-1 Class A-2 Notes offered and sold on the Series 2024-1 Closing Date in reliance upon Regulation S will be issued in the form of one or more global notes in fully registered form, without coupons, substantially in the form set forth in Exhibit A-2 hereto, registered in the name of Cede, as nominee of DTC, and deposited with the Trustee, as custodian for DTC, for credit to the respective accounts at DTC of the designated agents holding on behalf of Euroclear or Clearstream. Until such time as the Restricted Period shall have terminated with respect to any Series 2024-1 Class A-2 Note, such Series 2024-1 Class A-2 Notes shall be referred to herein collectively, for purposes of this Section 4.1 and Section 4.2, as the “Temporary Regulation S Global Notes.” After such time as the Restricted Period shall have terminated, the Temporary Regulation S Global Notes shall be exchangeable, in whole or in part, for interests in one or more permanent global notes in registered form without interest coupons, substantially in the form set forth in Exhibit A-3 hereto, as hereinafter provided (collectively, for purposes of this Section 4.1 and Section 4.2, the “Permanent Regulation S Global Notes”). The aggregate principal amount of the Temporary Regulation S Global Notes or the Permanent Regulation S Global Notes may from time
to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, in connection with a corresponding decrease or increase of aggregate principal amount of the corresponding Rule 144A Global Notes, as hereinafter provided.
(c)Definitive Notes. The Series 2024-1 Global Notes shall be exchangeable in their entirety for one or more definitive notes in registered form, without interest coupons (collectively, for purposes of this Section 4.1 and Section 4.2, the “Definitive Notes”) pursuant to Section 2.13 of the Base Indenture and this Section 4.1(c) in accordance with their terms and, upon complete exchange thereof, such Series 2024-1 Global Notes shall be surrendered for cancellation at the applicable Corporate Trust Office.
Section 4.3 Reserved.
Section 4.4 Transfer Restrictions of Series 2024-1 Class A-2 Notes.
(a)A Series 2024-1 Global Note may not be transferred, in whole or in part, to any Person other than DTC or a nominee thereof, or to a successor Depository or to a nominee of a successor Depository, and no such transfer to any such other Person may be registered; provided, however, that this Section 4.2(a) shall not prohibit any transfer of a Series 2024-1 Class A-2 Note that is issued in exchange for a Series 2024-1 Global Note in accordance with Section 2.8 of the Base Indenture and shall not prohibit any transfer of a beneficial interest in a Series 2024-1 Global Note effected in accordance with the other provisions of this Section 4.2.
(b)The transfer by a Series 2024-1 Class A-2 Note Owner holding a beneficial interest in a Class A-2 Note in the form of a Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Rule 144A Global Note shall be made upon the deemed representation of the transferee that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB and is not a Competitor, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as such transferee has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A.
(c)If a Series 2024-1 Class A-2 Note Owner holding a beneficial interest in a Class A-2 Note in the form of a Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in the Temporary Regulation S Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Temporary Regulation S Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.2(c). Upon receipt by the Note Registrar, at the applicable Corporate Trust Office, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Note Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Temporary Regulation S Global Note, in a principal amount equal to that of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form set forth in Exhibit B-1 hereto given by the Series 2024-1 Class A-2 Note
Owner holding such beneficial interest in such Rule 144A Global Note, the Note Registrar shall instruct the Trustee, as custodian of DTC, to reduce the principal amount of the Rule 144A Global Note, and to increase the principal amount of the Temporary Regulation S Global Note, by the principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Temporary Regulation S Global Note having a principal amount equal to the amount by which the principal amount of such Rule 144A Global Note was reduced upon such exchange or transfer.
(d)If a Series 2024-1 Class A-2 Note Owner holding a beneficial interest in a Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in the Permanent Regulation S Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Permanent Regulation S Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.2(d). Upon receipt by the Note Registrar, at the applicable Corporate Trust Office, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Note Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Permanent Regulation S Global Note in a principal amount equal to that of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form of Exhibit B-2 hereto given by the Series 2024-1 Class A-2 Note Owner holding such beneficial interest in such Rule 144A Global Note, the Note Registrar shall instruct the Trustee, as custodian of DTC, to reduce the principal amount of such Rule 144A Global Note, and to increase the principal amount of the Permanent Regulation S Global Note, by the principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Permanent Regulation S Global Note having a principal amount equal to the amount by which the principal amount of such Rule 144A Global Note was reduced upon such exchange or transfer.
(e)If a Series 2024-1 Class A-2 Note Owner holding a beneficial interest in a Temporary Regulation S Global Note or a Permanent Regulation S Global Note wishes at any time to exchange its interest in such Temporary Regulation S Global Note or such Permanent Regulation S Global Note for an interest in the Rule 144A Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Rule 144A Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.2(e). Upon receipt by the Note Registrar, at the applicable Corporate Trust Office, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Note Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Rule 144A Global Note in a principal amount equal to that of the beneficial interest in such Temporary Regulation S Global Note or such Permanent Regulation S Global Note, as the case may be, to be so exchanged or transferred, (ii) a written
order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) with respect to a transfer of a beneficial interest in such Temporary Regulation S Global Note or Permanent Regulation S Global Note, a certificate in substantially the form set forth in Exhibit B-3 hereto given by such Series 2024-1 Class A-2 Note Owner holding such beneficial interest in such Temporary Regulation S Global Note or such Permanent Regulation S Global Note, the Note Registrar shall instruct the Trustee, as custodian of DTC, to reduce the principal amount of such Temporary Regulation S Global Note or such Permanent Regulation S Global Note, as the case may be, and to increase the principal amount of the Rule 144A Global Note, by the principal amount of the beneficial interest in such Temporary Regulation S Global Note or such Permanent Regulation S Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for DTC) a beneficial interest in the Rule 144A Global Note having a principal amount equal to the amount by which the principal amount of such Temporary Regulation S Global Note or such Permanent Regulation S Global Note, as the case may be, was reduced upon such exchange or transfer.
(f)In the event that a Series 2024-1 Global Note or any portion thereof is exchanged for Series 2024-1 Class A-2 Notes other than Series 2024-1 Global Notes, such other Series 2024-1 Class A-2 Notes may in turn be exchanged (upon transfer or otherwise) for Series 2024-1 Class A-2 Notes that are not Series 2024-1 Global Notes or for a beneficial interest in a Series 2024-1 Global Note (if any is then outstanding) only in accordance with such procedures as may be adopted from time to time by the Issuer and the Note Registrar, which shall be substantially consistent with the provisions of Sections 4.2(a) through (e) and Section 4.2(g) (including the certification requirement intended to ensure that transfers and exchanges of beneficial interests in a Series 2024-1 Global Note comply with Rule 144A or Regulation S under the Securities Act, as the case may be) and any Applicable Procedures.
(g)Until the termination of the Restricted Period with respect to any Series 2024-1 Class A-2 Note, interests in the Temporary Regulation S Global Notes representing such Series 2024-1 Class A-2 Note may be held only through Clearing Agency Participants acting for and on behalf of Euroclear and Clearstream; provided that this Section 4.4(g) shall not prohibit any transfer in accordance with Section 4.4(d). After the expiration of the applicable Restricted Period, interests in the Permanent Regulation S Global Notes may be transferred without requiring any certifications other than those set forth in this Section 4.4.
(h)The Series 2024-1 Class A-2 Notes Rule 144A Global Notes, the Series 2024-1 Class A-2 Notes Temporary Regulation S Global Notes and the Series 2024-1 Class A-2 Notes Permanent Regulation S Global Notes shall bear the following legend:
THE ISSUANCE AND SALE OF THIS SERIES 2024-1 CLASS A-2 NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION, AND WINGSTOP FUNDING LLC (THE “ISSUER”) HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “1940 ACT”). THIS NOTE OR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO (A)
PERSONS THAT ARE NOT COMPETITORS AND THAT ARE QIBS, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A QIB AND NOT A COMPETITOR, (B) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE NOT “U.S. PERSONS” IN OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S UNDER THE 1933 ACT, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR (C) THE ISSUER OR AN AFFILIATE OF THE ISSUER, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION, AND, IN EACH CASE, IN COMPLIANCE WITH THE CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION.
BY ITS ACQUISITION OR ACCEPTANCE HEREOF, THE HOLDER (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) REPRESENTS THAT (A) IT IS NOT A COMPETITOR AND IS (X) A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A OR (Y) NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, AS APPLICABLE, (B) IT IS NOT A COMPETITOR AND IS ACTING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PERSON WHICH IS EITHER (X) A QUALIFIED INSTITUTIONAL BUYER OR (Y) NOT A U.S. PERSON, AND IN EACH CASE WITH RESPECT TO WHICH IT EXERCISES SOLE INVESTMENT DISCRETION WHICH IS NOT A COMPETITOR, (C) IT AND EACH ACCOUNT FOR WHICH IT IS PURCHASING WILL HOLD AND TRANSFER AT LEAST THE MINIMUM DENOMINATION OF NOTES, (D) IT UNDERSTANDS THAT THE ISSUER MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN ITS NOTES FROM ONE OR MORE BOOK-ENTRY DEPOSITORIES AND (E) IT WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS TO ANY SUBSEQUENT TRANSFEREES.
EACH PERSON (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE WILL BE DEEMED TO HAVE MADE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE. EACH PERSON TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE IN THE FORM OF AN INTEREST IN A [TEMPORARY REGULATION S GLOBAL NOTE] [RULE 144A GLOBAL NOTE] OR [PERMANENT REGULATION S GLOBAL NOTE] WILL BE REQUIRED TO DELIVER A TRANSFER CERTIFICATE IN THE FORM REQUIRED BY THE INDENTURE AND WILL BE REQUIRED TO MAKE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE.
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT AND WILL BE VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO ANY PERSON CAUSING SUCH VIOLATION, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE TRUSTEE
OR ANY INTERMEDIARY; PROVIDED, HOWEVER, THAT THE PRECEDING PORTION OF THIS SENTENCE SHALL NOT OPERATE TO INVALIDATE ANY OTHERWISE BONA FIDE TRANSFER TO AN ELIGIBLE TRANSFEREE WHERE A PREVIOUS ERRONEOUSLY-REGISTERED TRANSFEROR IN THE CHAIN OF TITLE OF SUCH TRANSFEREE WOULD HAVE BEEN INELIGIBLE SOLELY ON ACCOUNT OF BEING A COMPETITOR.
IF THIS NOTE WAS ACQUIRED IN THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR NOT TO HAVE BEEN A QUALIFIED INSTITUTIONAL BUYER AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS A QUALIFIED INSTITUTIONAL BUYER. THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS NOT A QUALIFIED INSTITUTIONAL BUYER OR WHO IS A COMPETITOR.
IF THIS NOTE WAS ACQUIRED OUTSIDE THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR TO HAVE BEEN A “U.S. PERSON” AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS NOT A “U.S. PERSON.” THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS A “U.S. PERSON” OR WHO IS A COMPETITOR.
BY ACCEPTING THIS NOTE, EACH PURCHASER COVENANTS THAT IT WILL NOT AT ANY TIME PRIOR TO THE DATE WHICH IS ONE (1) YEAR AND ONE (1) DAY AFTER THE PAYMENT IN FULL OF THE LATEST MATURING NOTE, INSTITUTE AGAINST, OR JOIN WITH ANY OTHER PERSON IN INSTITUTING AGAINST, ANY SECURITIZATION ENTITY ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS, UNDER ANY FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
(i)The Series 2024-1 Class A-2 Notes Temporary Regulation S Global Notes shall also bear the following legend:
UNTIL FORTY (40) DAYS AFTER THE ORIGINAL ISSUE DATE OF THE NOTES (THE “RESTRICTED PERIOD”) IN CONNECTION WITH THE OFFERING OF THE NOTES IN THE UNITED STATES FROM OUTSIDE OF THE UNITED STATES, THE SALE, PLEDGE OR TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS AND RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE ACQUIRING THIS NOTE, ACKNOWLEDGES THAT SUCH HOLDER IS EITHER (I) NOT A “U.S. PERSON” AND NOT A COMPETITOR OR (II) THE ISSUER OR AN AFFILIATE OF THE ISSUER, AND THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER THE 1933 ACT, AND AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS NOTE MAY BE TRANSFERRED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO A HOLDER THAT IS NOT A “U.S. PERSON” AND NOT A COMPETITOR PURCHASING FOR
THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR TO THE ISSUER OR AN AFFILIATE OF THE ISSUER AND IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS OF THE STATES, TERRITORIES AND POSSESSIONS OF THE UNITED STATES GOVERNING THE OFFER AND SALE OF SECURITIES, AND PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD, ONLY (I) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE 1933 ACT OR (II) PURSUANT TO AND IN ACCORDANCE WITH RULE 144A UNDER THE 1933 ACT.
(j)The Series 2024-1 Global Notes issued in connection with the Series 2024-1 Class A-2 Notes shall also bear the following legend:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, 55 WATER STREET, NEW YORK, NEW YORK 10004, OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR THE NOTE REGISTRAR, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
(k)The required legends set forth above shall not be removed from the applicable Series 2024-1 Class A-2 Notes except as provided herein. The legend required for a Series 2024-1 Class A-2 Notes Rule 144A Global Note may be removed from such Series 2024-1 Class A-2 Notes Rule 144A Global Note if there is delivered to the Issuer and the Note Registrar such satisfactory evidence, which may include an Opinion of Counsel, as may be reasonably required by the Issuer that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Series 2024-1 Class A-2 Notes Rule 144A Global Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee at the direction of the Issuer (or the Manager, on its behalf), shall authenticate and deliver in exchange for such Series 2024-1 Class A-2 Notes Rule 144A Global Note a Series 2024-1 Class A-2 Note or Series 2024-1 Class A-2 Notes having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Series 2024-1 Class A-2 Notes Rule 144A Global Note has been removed from a Series 2024-1 Class A-2 Note as provided above, no other Series 2024-1 Class A-2 Note issued in exchange for all or any part of such Series 2024-1 Class A-2 Note shall bear such legend, unless the Issuer has reasonable cause to believe that such other Series 2024-1 Class A-2 Note is a “restricted security”
within the meaning of Rule 144 under the Securities Act and instructs the Trustee to cause a legend to appear thereon.
Section 4.5 Note Owner Representations and Warranties. Each Person who becomes a Note Owner of a beneficial interest in a Series 2024-1 Class A-2 Note, other than the Issuer or an Affiliate of the Issuer, will be deemed to represent, warrant and agree on the date such Person acquires any interest in any Series 2024-1 Class A-2 Note as follows:
(a)With respect to any sale of Series 2024-1 Class A-2 Notes pursuant to Rule 144A, it is not a Competitor and is a QIB pursuant to Rule 144A, and is aware that any sale of Series 2024-1 Class A-2 Notes to it will be made in reliance on Rule 144A. Its acquisition of Series 2024-1 Class A-2 Notes in any such sale will be for its own account or for the account of another QIB that is not a Competitor.
(b)With respect to any sale of Series 2024-1 Class A-2 Notes pursuant to Regulation S, at the time the buy order for such Series 2024-1 Class A-2 Notes was originated, it was outside the United States and the offer was made to a Person who is not a U.S. Person nor a Competitor, and was not purchasing for the account or benefit of a U.S. Person or a Competitor.
(c)It will, and each account for which it is purchasing will, hold and transfer at least the minimum denomination of Series 2024-1 Class A-2 Notes.
(d)It understands that the Issuer, the Manager and the Servicer may receive a list of participants holding positions in the Series 2024-1 Class A-2 Notes from one or more book-entry depositories. The purchaser agrees that the Trustee or its agents will not be held accountable by reason of any disclosure of any such information as to the name and addresses of the Note Owners in the register maintained by the Trustee.
(e)It understands that the Manager, the Issuer and the Servicer may receive (i) a list of Note Owners that have requested access to the Trustee’s password-protected website or that have voluntarily registered as a Note Owner with the Trustee and (ii) copies of Noteholder confirmations of representations and warranties executed to obtain access to the Trustee’s password-protected website.
(f)It will provide to each person to whom it transfers Series 2024-1 Class A-2 Notes notices of any restrictions on transfer of such Series 2024-1 Class A-2 Notes.
(g)It understands that (i) the Series 2024-1 Class A-2 Notes are being offered in a transaction not involving any public offering in the United States within the meaning of the Securities Act, (ii) the Series 2024-1 Class A-2 Notes have not been registered under the Securities Act, (iii) such Series 2024-1 Class A-2 Notes may be offered, resold, pledged or otherwise transferred only to (a) Persons that are not Competitors and that are QIBs, purchasing for their own account or the account of one or more other Persons, each of which is a QIB and is not a Competitor, (b) Persons that are not Competitors and that are not “U.S. Persons” in offshore transactions in reliance on Regulation S under the Securities Act, purchasing for their own account or the account of one or more other Persons, each of which is a non-U.S. Person and not a Competitor, or (c) the Issuer or an Affiliate of the Issuer, in each case, in accordance with any applicable securities laws of any state of the United States and any other relevant jurisdiction, and (iv) it will, and each subsequent holder of a Series 2024-1 Class A-2 Note is required to, notify
any subsequent purchaser of a Series 2024-1 Class A-2 Note of the resale restrictions set forth in clause (iii) above.
(h)It understands that the certificates evidencing the Rule 144A Global Notes will bear legends substantially similar to those set forth in Sections 4.2(h) and (j).
(i)It understands that the certificates evidencing the Temporary Regulation S Global Notes will bear legends substantially similar to those set forth in Sections 4.2(h), (i) and (j), as applicable.
(j)It understands that the certificates evidencing the Permanent Regulation S Global Notes will bear legends substantially similar to those set forth in Sections 4.2(h) and (j).
(k)Either (a) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise), nor a governmental, church, non-U.S. or other plan that is subject to any Similar Law or (b) its acquisition, holding and disposition of the Series 2024-1 Class A-2 Notes (or any interest therein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Similar Law).
(l)If it is using assets of a Plan to acquire or hold the Series 2024-1 Class A-2 Notes or any interest therein, then such purchaser or transferee, as applicable, further represents that (i) none of WRI, the Guarantors, the Issuer, the Initial Purchasers, the Trustee, the Servicer or the Back-Up Manager or any of their respective affiliates or agents (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied upon for any advice, with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Series 2024-1 Class A-2 Notes, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Series 2024-1 Class A-2 Notes, and (ii) the decision to invest in the Series 2024-1 Class A-2 Notes has been made at the recommendation or direction of an independent fiduciary who (a) is independent of the Transaction Parties; (b) is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies; (c) is a fiduciary (under ERISA and/or Section 4975 of the Code) with respect to the Plan’s investment in the Series 2024-1 Class A-2 Notes and is responsible for exercising independent judgment in evaluating the investment in the Series 2024-1 Class A-2 Notes; and (d) is aware of and acknowledges that (1) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the Plan’s investment in the Series 2024-1 Class A-2 Notes, and (2) the Transaction Parties have a financial interest in the Plan’s investment in the Series 2024-1 Class A-2 Notes.
(m)It understands that any subsequent transfer of the Series 2024-1 Class A-2 Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and it agrees to be bound by, and not to resell, pledge or otherwise transfer the Series 2024-1 Class A-2 Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act.
(n)It is not a Competitor.
Section 4.6 Limitation on Liability. None of the Issuer, Parent, WRI, the Trustee, the Servicer, the Initial Purchasers, any Paying Agent or any of their respective Affiliates shall have any responsibility or liability with respect to (i) any aspects of the records maintained by DTC or its nominee or any of the Agent Members relating to or for payments made thereby on account of beneficial interests in a Rule l44A Global Note or a Regulation S Global Note or (ii) any records maintained by the Noteholder with respect to the beneficial holders thereof or payments made thereby on account of beneficial interests held therein.
ARTICLE V
GENERAL
Section 5.1 Information. On or before the date that is three (3) Business Days prior to each Quarterly Payment Date, the Issuer shall furnish, or cause to be furnished, a Quarterly Noteholders’ Report, substantially in the form of Exhibit B to the Base Indenture, with respect to the Series 2024-1 Class A-2 Notes to the Trustee, the Servicer and the Back-Up Manager, setting forth, inter alia, the following information with respect to such Quarterly Payment Date:
(i)the total amount available to be distributed to Series 2024-1 Class A-2 Noteholders on such Quarterly Payment Date;
(ii)the amount of such distribution allocable to the payment of interest on the Series 2024-1 Class A-2 Notes;
(iii)the amount of such distribution allocable to the payment of principal of the Series 2024-1 Class A-2 Notes;
(iv)the amount of such distribution allocable to the payment of any Series 2024-1 Class A-2 Make-Whole Prepayment Consideration or Series 2024-1 Class A-2 Call Redemption Premium, if any;
(v)whether, to the Actual Knowledge of the Issuer, any Potential Rapid Amortization Event, Rapid Amortization Event, Default, Event of Default, Potential Manager Termination Event or Manager Termination Event has occurred, or any Cash Trapping Period is in effect, in each case, as of the related Quarterly Calculation Date;
(vi)the DSCR and the Interest-Only DSCR for such Quarterly Payment Date and the three Quarterly Payment Dates immediately preceding such Quarterly Payment Date;
(vii)a calculation of the Holdco Leverage Ratio and the Senior Leverage Ratio as of the related Quarterly Calculation Date;
(viii)the number of Franchised Restaurants and Company-Owned Restaurants that are open for business as of the last day of the preceding Quarterly Fiscal Period;
(ix)the amount of Wingstop System-Wide Sales during the preceding Quarterly Fiscal Period;
(x)the amount on deposit in the Senior Notes Interest Reserve Account (and the availability under any Interest Reserve Letter of Credit relating to the Senior Notes), and the amount on deposit, if any, in the Cash Trap Reserve Account, in each case, as of the close of business on the last Business Day of the preceding Quarterly Fiscal Period; and
(xi)the occurrence of any amendment to the definition of “Quarterly Fiscal Period” during the preceding Quarterly Fiscal Period.
Any Series 2024-1 Class A-2 Noteholder may obtain copies of each Quarterly Noteholders’ Report in accordance with the procedures set forth in Section 4.4 of the Base Indenture.
Section 5.2 Exhibits. The annexes, exhibits and schedules attached hereto and listed on the table of contents hereto supplement the annexes, exhibits and schedules included in the Base Indenture.
Section 5.3 Ratification of Base Indenture. As supplemented by this Series Supplement, the Base Indenture is in all respects ratified and confirmed and the Base Indenture as so supplemented by this Series Supplement shall be read, taken and construed as one and the same instrument.
Section 5.4 Notices to Rating Agency. The address for any notice or communication by any party to the Rating Agency shall be the address set forth below:
Kroll Bond Rating Agency, LLC
805 Third Avenue, 29th Floor
New York, NY 10022
Attention: ABS Surveillance
Email: abssurveillance@kbra.com
Section 5.5 Counterparts. This Series Supplement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. For purposes of this Series Supplement, any reference to "written" or "in writing" means any form of written communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by Electronic Transmission. "Electronic Transmission" means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process. The Trustee is authorized to accept written instructions, directions, reports, notices or other communications delivered by Electronic Transmission and shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by Electronic Transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such Electronic Transmission, and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties (except to the extent such action results from gross negligence, willful misconduct or fraud by the Trustee). Any requirement in this Series Supplement that is to be signed or authenticated by "manual signature" or similar language shall not be deemed to prohibit signature to be by facsimile or electronic signature and shall not be deemed to prohibit delivery thereof by Electronic Transmission. Notwithstanding anything to the contrary in this Series Supplement, any and all communications (both text and attachments) by or from the Trustee that the Trustee in its sole discretion deems to contain confidential, proprietary and/or sensitive information and sent by Electronic Transmission will be encrypted. The recipient of the Electronic Transmission will be required to complete a one-time registration process.
Section 5.6 Governing Law. THIS SERIES SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section 5.7 Amendments. This Series Supplement may not be modified or amended except in accordance with the terms of the Base Indenture.
Section 5.8 Termination of Series Supplement; Series Defeasance. This Series Supplement shall cease to be of further effect when (i) all Outstanding Series 2024-1 Class A-2 Notes theretofore authenticated and issued have been delivered (other than destroyed, lost, or stolen Series 2024-1 Class A-2 Notes that have been replaced or paid) to the Trustee for cancellation and (ii) the Issuer has paid all sums payable hereunder; provided that any provisions of this Series Supplement required for the Series 2024-1 Final Payment to be made shall survive until the Series 2024-1 Final Payment is paid to the Series 2024-1 Class A-2 Noteholders. In accordance with Section 6.1(a) of the Base Indenture, the final principal payment due on each Series 2024-1 Class A-2 Note shall only be paid upon due presentment and surrender of such Note for cancellation in accordance with the provisions of such Note at the applicable Corporate Trust Office, which such surrender shall also constitute a general release by the applicable Noteholder from any claims against the Securitization Entities, the Manager, the Trustee and their affiliates.
(b) In addition to (and notwithstanding) the terms of Section 12.1 of the Base Indenture, upon the payment in full (whether optional or mandatory) or a redemption in full of the Series 2024-1 Class A-2 Notes as provided hereunder as Defeased Notes, the Obligations of the Issuer and the Guarantors under the Indenture Documents in respect of such Defeased Notes shall be terminated.
Section 5.9 Entire Agreement. This Series Supplement, together with the exhibits and schedules hereto and the other Indenture Documents, contains a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all previous oral statements and other writings with respect thereto.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Issuer, the Trustee and the Series 2024-1 Securities Intermediary have caused this Series Supplement to be duly executed by its respective duly authorized officer as of the day and year first written above.
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WINGSTOP FUNDING LLC,
as the Issuer |
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| By: | /s/ Alex Kaleida |
| | Name: Alex R. Kaleida |
| Title: Senior Vice President and Chief Financial Officer |
Wingstop Series 2024-1 Supplement to Base Indenture
| | | | | |
CITIBANK, N.A., not in its individual capacity, but solely as Trustee and as Series 2024-1 Securities Intermediary |
|
|
| |
| By: | /s/ Trang Tran-Rojas |
| Name: Trang Tran-Rojas |
| Title: Senior Trust Officer |
Wingstop Series 2024-1 Supplement to Base Indenture
ANNEX A
SERIES 2024-1 SUPPLEMENTAL DEFINITIONS LIST
“30/360 Day Basis” means the accrual of interest calculated on the basis of a 360-day year consisting of twelve 30-day months.
“Agent Members” means members of, or participants in, DTC.
“Cede” has the meaning set forth in Section 4.2(b)(i) of the Series 2024-1 Supplement.
“Change in Law” means (a) any law, rule or regulation or any change therein or in the interpretation or application thereof (whether or not having the force of law), in each case, adopted, issued or occurring after the Series 2024-1 Closing Date or (b) any request, guideline or directive (whether or not having the force of law) from any government or political subdivision or agency, authority, bureau, central bank, commission, department or instrumentality thereof, or any court, tribunal, grand jury or arbitrator, or any accounting board or authority (whether or not a Governmental Authority) which is responsible for the establishment or interpretation of national or international accounting principles, in each case, whether foreign or domestic (each, an “Official Body”) charged with the administration, interpretation or application thereof, or the compliance with any request or directive of any Official Body (whether or not having the force of law) made, issued or occurring after the Series 2024-1 Closing Date.
“Change of Control” has the meaning ascribed to such term in the Management Agreement.
“Definitive Notes” has the meaning set forth in Section 4.2(c) of the Series 2024-1 Supplement.
“DTC” means The Depository Trust Company, and any successor thereto.
“EU/UK Applicable Investor Put Option” has the meaning set forth in the EU/UK Risk Retention Letter.
“EU/UK Risk Retention Letter” means that certain letter agreement, dated as of the Series 2024-1 Closing Date, entered into by WRI in favor of the Issuer, the Trustee (for itself and for the benefit of the EU/UK Applicable Investors (as defined therein)) and the Initial Purchasers.
“FATCA” means (a) Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations thereunder or official interpretations thereof, (b) any treaty, law, regulation, or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction with the purpose (in either case) of facilitating the implementation of (a) above, or (c) any agreement pursuant to the implementation of paragraphs (a) or (b) above with the U.S. Internal Revenue Service or any other Governmental Authority in the United States.
“Initial Purchasers” means, collectively, Morgan Stanley & Co. LLC and Barclays Capital Inc.
“Initial Quarterly Payment Date” means the Quarterly Payment Date occurring in March 2025.
“Initial Senior Notes Interest Reserve Deposit” means an aggregate amount equal to or (at the election of the Manager) greater than the Senior Notes Interest Reserve Amount in respect of the Initial Quarterly Payment Date.
“Offering Memorandum” means the Offering Memorandum for the offering and sale of the Series 2024-1 Class A-2 Notes, dated as of November 19, 2024 prepared by the Issuer.
“Official Body” has the meaning set forth in the definition of Change in Law.
“Permanent Regulation S Global Notes” has the meaning set forth in Section 4.2(b)(ii) of the Series 2024-1 Supplement.
“Prepayment Condition Amounts” means, with respect to any Quarterly Payment Date, the following amounts with respect to such Quarterly Payment Date: the Senior Notes Quarterly Interest Amount, the Class A-1 Notes Quarterly Commitment Fees Amount, the Senior Subordinated Notes Quarterly Interest Amount, the Senior Notes Aggregate Scheduled Principal Payments, the aggregate amount of Senior Subordinated Notes Accrued Scheduled Principal Payments Amount for the corresponding Quarterly Fiscal Period, the Subordinated Notes Quarterly Interest Amount, and the aggregate amount of Subordinated Notes Accrued Scheduled Principal Payments Amounts for the corresponding Quarterly Fiscal Period.
“Prepayment Consideration End Date” has the meaning set forth in Section 3.6(e) of the Series 2024-1 Supplement.
“Prepayment Notice” has the meaning set forth in Section 3.6(g) of the Series 2024-1 Supplement.
“Prepayment Record Date” means, with respect to the date of any Series 2024-1 Prepayment, the last day of the calendar month immediately preceding the date of such Series 2024-1 Prepayment unless such last day is less than ten (10) Business Days prior to the date of such Series 2024-1 Prepayment, in which case the “Prepayment Record Date” will be the last day of the second calendar month immediately preceding the date of such Series 2024-1 Prepayment.
“Qualified Institutional Buyer” or “QIB” means a Person who is a “qualified institutional buyer” as defined in Rule 144A.
“Rating Agency” means KBRA, and any successor or successors thereto. In the event that at any time the rating agency rating the Series 2024-1 Class A-2 Notes is not KBRA, references to rating categories of such former Rating Agency in the Series 2024-1 Supplement shall be deemed instead to be references to the equivalent categories of such other rating agency (or rating agencies) as then is rating the Series 2024-1 Class A-2 Notes as of the most recent date on which such other rating agency published ratings for the type of security in respect of which such alternative rating agency is used.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Notes” means, collectively, the Temporary Regulation S Global Notes and the Permanent Regulation S Global Notes.
“Restricted Period” means, with respect to any Series 2024-1 Class A-2 Notes sold pursuant to Regulation S, the period commencing on the Series 2024-1 Closing Date and ending on the 40th day after the Series 2024-1 Closing Date.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 144A Global Notes” has the meaning set forth in Section 4.2(b)(i) of the Series 2024-1 Supplement.
“Series 2024-1 Class A-2 Anticipated Repayment Date” has the meaning set forth in Section 3.6(b) of the Series 2024-1 Supplement. For purposes of the Base Indenture, the “Series 2024-1 Class A-2 Anticipated Repayment Date” shall be deemed to be an “Anticipated Repayment Date”.
“Series 2024-1 Class A-2 Call Redemption Premium” has the meaning set forth in Section 3.6(e)(ii) of the Series 2024-1 Supplement.
“Series 2024-1 Class A-2 Distribution Account” has the meaning set forth in Section 3.8(a) of the Series 2024-1 Supplement.
“Series 2024-1 Class A-2 Initial Principal Amount” means the aggregate initial outstanding principal amount of the Series 2024-1 Class A-2 Notes as of the Series 2024-1 Closing Date, which is $500,000,000.
“Series 2024-1 Class A-2 Make-Whole Prepayment Consideration” means the amount (not less than zero) calculated by the Manager on behalf of the Issuer equal to (i) the discounted present value as of a date not earlier than the fifth (5th) Business Day prior to the date of any relevant prepayment of the Series 2024-1 Class A-2 Notes (each, a “Series 2024-1 Class A-2 Make-Whole Prepayment Consideration Calculation Date”) of all future installments of interest (excluding any interest required to be paid on the applicable prepayment date) on and principal of the Series 2024-1 Class A-2 Notes that the Issuer would otherwise be required to pay on the Series 2024-1 Class A-2 Notes (or such portion thereof to be prepaid) from the date of such prepayment to and including the Prepayment Consideration End Date, assuming principal payments are made pursuant to the then-applicable schedule of payments (assuming for this purpose that the Series 2024-1 Class A-2 Non-Amortization Test on each Series 2024-1 Non-Amortization Test Date for each Quarterly Payment Date on and after the date of such prepayment is not satisfied and giving effect to any ratable reductions in the Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amounts due to optional and mandatory prepayments, including prepayments in connection with a Rapid Amortization Event and cancellations of repurchased Notes prior to the date of such prepayment and assuming no future prepayments are to be made in connection with a Rapid Amortization Event and no future cancellations of repurchased Notes are to be made) and the entire remaining unpaid principal amount of the Series 2024-1 Class A-2 Notes or portion thereof is paid on the Prepayment Consideration End Date minus (ii) the Outstanding Principal Amount of the Series 2024-1 Class A-2 Notes (or portion thereof) being prepaid. For the purposes of the calculation of the discounted present value in clause (i) above, such present value will be determined by the Manager using a discount rate equal to the sum of (x) the yield to maturity (adjusted to a quarterly bond-equivalent basis), on the Series 2024-1 Class A-2 Make-Whole Prepayment Consideration Calculation Date, of the United States Treasury Security having a maturity closest to the Prepayment Consideration End Date plus (y) 0.50%. For purposes of the Base Indenture, “Series 2024-1 Class A-2 Make-Whole Prepayment Consideration” shall be deemed to be a “Prepayment Consideration”.
“Series 2024-1 Class A-2 Make-Whole Prepayment Consideration Calculation Date” has the meaning set forth in the definition of “Series 2024-1 Class A-2 Make-Whole Prepayment Consideration”.
“Series 2024-1 Class A-2 Non-Amortization Test” means a test that will be satisfied for any Quarterly Payment Date only if (x) the Senior Leverage Ratio is less than or equal to 5.00:1.00 as calculated on the related Series 2024-1 Non-Amortization Test Date immediately preceding such Quarterly Payment Date (other than with respect to the Initial
Quarterly Payment Date) and (y) no Rapid Amortization Event has occurred and is continuing as of such related Series 2024-1 Non-Amortization Test Date. For purposes of the Base Indenture, the “Series 2024-1 Class A-2 Non-Amortization Test” shall be deemed to be a “Series Non-Amortization Test”. There shall be no scheduled payment of principal of the Series 2024-1 Class A-2 Notes (and therefore the Series 2024-1 Class A-2 Non-Amortization Test will not be applicable) on the Initial Quarterly Payment Date.
“Series 2024-1 Class A-2 Noteholder” means the Person in whose name a Series 2024-1 Class A-2 Note is registered in the Note Register.
“Series 2024-1 Class A-2 Note Owner” means, with respect to a Series 2024-1 Note that is a Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note, as reflected on the books of the Clearing Agency that holds such Book-Entry Note, or on the books of a Person maintaining an account with such Clearing Agency (directly or as an indirect participant, in accordance with the rules of such Clearing Agency).
“Series 2024-1 Class A-2 Note Purchase Agreement” means the Purchase Agreement, dated as of November 19, 2024, by and among Morgan Stanley & Co. LLC and Barclays Capital Inc., as initial purchasers, the Issuer, the Guarantors, Parent and WRI, as amended, supplemented or otherwise modified from time to time.
“Series 2024-1 Class A-2 Note Rate” means 5.858% per annum.
“Series 2024-1 Class A-2 Notes” has the meaning specified in the “Designation” of the Series 2024-1 Supplement.
“Series 2024-1 Class A-2 Notes Scheduled Principal Payment Deficiency Amount” means, with respect to any Quarterly Calculation Date, the amount, if positive, equal to the difference between (i) the Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amount due and payable, if any, on the related Quarterly Payment Date plus any Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amounts due but unpaid from any previous Quarterly Payment Dates and (ii) the amount of funds on deposit in the Senior Notes Principal Payment Account with respect to such amounts set forth in clause (i) and allocated to the Series 2024-1 Class A-2 Notes.
“Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amount” means, with respect to the Series 2024-1 Class A-2 Notes and each Quarterly Payment Date prior to the Series 2024-1 Class A-2 Anticipated Repayment Date, $1,250,000; provided that, following (i) the allocation of any mandatory prepayments, including mandatory prepayments pursuant to priority (i)(D) of the Priority of Payments and mandatory payments in connection with a Rapid Amortization Event, (ii) any optional prepayments pursuant to Section 2.5(f), and (iii) any repurchases or cancellations of Series 2024-1 Class A-2 Notes pursuant to Section 2.14 of the Base Indenture, all remaining Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amounts for each remaining Quarterly Payment Date prior to the Series 2024-1 Class A-2 Anticipated Repayment Date will be reduced by an amount equal to the percentage of each such Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amount representing the ratio between (A) the principal amount of such prepayment, repurchase or cancellation and (B) the Outstanding Principal Amount of the Series 2024-1 Class A-2 Notes immediately prior to such prepayment, repurchase or cancellation; provided, further, that in respect of each Weekly Allocation Date for which the Series 2024-1 Class A-2 Non-Amortization Test was satisfied as of the immediately preceding Series 2024-1 Non-Amortization Test Date, the Issuer may elect to deem (as set forth in the applicable Weekly Manager’s Certificate) the Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amount to equal zero. For purposes of the Base Indenture, the “Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amount” shall be deemed to be
“Scheduled Principal Payments”. Notwithstanding the foregoing, the Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amount for the Initial Quarterly Payment date shall be $0.
“Series 2024-1 Class A-2 Optional Scheduled Principal Payment” means any payment of principal made in the event the Series 2024-1 Class A-2 Non-Amortization Test is satisfied for any Quarterly Payment Date (as measured on the related Series 2024-1 Non-Amortization Test Date), solely at the election of the Issuer, in an amount not to exceed the Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amount that would otherwise be due on such Quarterly Payment Date if the Series 2024-1 Class A-2 Non-Amortization Test was not satisfied. For purposes of the Base Indenture, each “Series 2024-1 Class A-2 Optional Scheduled Principal Payment” shall be deemed to be an “Optional Scheduled Principal Payment”.
“Series 2024-1 Class A-2 Outstanding Principal Amount” means, on any date, an amount equal to (a) the Series 2024-1 Class A-2 Initial Principal Amount, minus (b) the aggregate amount of principal payments (whether pursuant to the payment of Series 2024-1 Class A-2 Notes Scheduled Principal Payment Amounts, a prepayment, a purchase and cancellation, a redemption or otherwise) made to Series 2024-1 Class A-2 Noteholders with respect the Series 2024-1 Class A-2 Notes on or prior to such date. For purposes of the Base Indenture, the “Series 2024-1 Class A-2 Outstanding Principal Amount” shall be deemed to be an “Outstanding Principal Amount.”
“Series 2024-1 Class A-2 Prepayment” has the meaning set forth in Section 3.6(e)(i) of the Series 2024-1 Supplement.
“Series 2024-1 Class A-2 Quarterly Interest Amount” means, with respect to each Interest Accrual Period, an amount equal to the accrued interest at the Series 2024-1 Class A-2 Note Rate on the Outstanding Principal Amount of the Series 2024-1 Class A-2 Notes (as of the first day of such Interest Accrual Period after giving effect to all payments of principal (if any) made to such Series 2024-1 Class A-2 Noteholders as of such day and also giving effect to prepayments, repurchases and cancellations of Series 2024-1 Class A-2 Notes during such Interest Accrual Period), calculated on a 30/360 Day Basis. For purposes of the Base Indenture, “Series 2024-1 Class A-2 Quarterly Interest Amount” shall be deemed to be a “Senior Notes Estimated Quarterly Interest Amount” and a “Senior Notes Quarterly Interest Amount.”
“Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest” has the meaning set forth in Section 3.5(b)(i) of the Series 2024-1 Supplement. For purposes of the Base Indenture, Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest shall be deemed to be “Senior Notes Quarterly Post-ARD Contingent Additional Interest”.
“Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest Rate” has the meaning set forth in Section 3.5(b)(i) of the Series 2024-1 Supplement.
“Series 2024-1 Closing Date” means the Closing Date.
“Series 2024-1 Final Payment” means the payment of all accrued and unpaid interest on and principal of all Outstanding Series 2024-1 Class A-2 Notes.
“Series 2024-1 Final Payment Date” means the date on which the Series 2024-1 Final Payment is made.
“Series 2024-1 Global Notes” means, collectively, the Regulation S Global Notes and the Rule 144A Global Notes.
“Series 2024-1 Ineligible Account” has the meaning set forth in Section 3.11 of the Series 2024-1 Supplement.
“Series 2024-1 Legal Final Maturity Date” means the Quarterly Payment Date occurring in December 2054. For purposes of the Base Indenture, the “Series 2024-1 Legal Final Maturity Date” shall be deemed to be a “Series Legal Final Maturity Date”.
“Series 2024-1 Non-Amortization Test Date” means, with respect to a Quarterly Payment Date, the Quarterly Payment Date immediately preceding such Quarterly Payment Date. For purposes of the Base Indenture, the “Series 2024-1 Non-Amortization Test Date” shall be deemed to be a “Non-Amortization Test Date”.
“Series 2024-1 Prepayment” means a Series 2024-1 Class A-2 Prepayment.
“Series 2024-1 Prepayment Amount” means the aggregate principal amount of the applicable Class of Notes to be prepaid on any Series 2024-1 Prepayment Date, together with all accrued and unpaid interest thereon to such date.
“Series 2024-1 Prepayment Date” means the date on which any Series 2024-1 Class A-2 Prepayment is made, which shall be, with respect to any Series 2024-1 Prepayment pursuant to Section 2.5(f), the date specified as such in the applicable Prepayment Notice and, with respect to any Series 2024-1 Prepayment made during a Rapid Amortization Period pursuant to Section 2.5(d) or pursuant to Section 2.5(h), the immediately succeeding Quarterly Payment Date.
“Series 2024-1 Securities Intermediary” has the meaning set forth in Section 3.9(a) of the Series 2024-1 Supplement.
“Series 2024-1 Supplement” means the Series 2024-1 Supplement, dated as of the Series 2024-1 Closing Date, by and among the Issuer, the Trustee and the Series 2024-1 Securities Intermediary, as amended, supplemented or otherwise modified from time to time.
“Similar Law” means any federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
“Target Month” means the 24th month prior to the Series 2024-1 Class A-2 Anticipated Repayment Date.
“Temporary Regulation S Global Notes” has the meaning set forth in Section 4.2(b) of the Series 2024-1 Supplement.
“U.S. Person” has the meaning set forth in Section 4.2(a) of the Series 2024-1 Supplement.
EXHIBIT A-1
THE ISSUANCE AND SALE OF THIS RULE 144A GLOBAL SERIES 2024-1 CLASS A-2 NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION, AND WINGSTOP FUNDING LLC (THE “ISSUER”) HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “1940 ACT”). THIS NOTE OR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO (A) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE QIBS, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A QIB AND NOT A COMPETITOR, (B) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE NOT “U.S. PERSONS” IN OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S UNDER THE 1933 ACT, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR (C) THE ISSUER OR AN AFFILIATE OF THE ISSUER, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION, AND, IN EACH CASE, IN COMPLIANCE WITH THE CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION.
BY ITS ACQUISITION OR ACCEPTANCE HEREOF, THE HOLDER (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) REPRESENTS THAT (A) IT IS NOT A COMPETITOR AND IS (X) A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A OR (Y) NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, AS APPLICABLE, (B) IT IS NOT A COMPETITOR AND IS ACTING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PERSON WHICH IS EITHER (X) A QUALIFIED INSTITUTIONAL BUYER OR (Y) NOT A U.S. PERSON, AND IN EACH CASE WITH RESPECT TO WHICH IT EXERCISES SOLE INVESTMENT DISCRETION AND WHICH IS NOT A COMPETITOR, (C) IT AND EACH ACCOUNT FOR WHICH IT IS PURCHASING WILL HOLD AND TRANSFER AT LEAST THE MINIMUM DENOMINATION OF NOTES, (D) IT UNDERSTANDS THAT THE ISSUER MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN ITS NOTES FROM ONE OR MORE BOOK-ENTRY DEPOSITORIES AND (E) IT WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS TO ANY SUBSEQUENT TRANSFEREES.
EACH PERSON (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE WILL BE DEEMED TO HAVE MADE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE. EACH PERSON TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE IN THE FORM OF AN INTEREST IN A TEMPORARY REGULATION S GLOBAL NOTE OR A PERMANENT REGULATION S GLOBAL NOTE WILL BE REQUIRED TO DELIVER A TRANSFER CERTIFICATE IN THE FORM REQUIRED BY THE INDENTURE AND WILL BE REQUIRED TO MAKE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE.
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT AND WILL BE VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO ANY PERSON CAUSING SUCH VIOLATION, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE TRUSTEE OR ANY INTERMEDIARY; PROVIDED, HOWEVER, THAT THE PRECEDING PORTION OF THIS SENTENCE SHALL NOT OPERATE TO INVALIDATE ANY OTHERWISE BONA FIDE TRANSFER TO AN ELIGIBLE TRANSFEREE WHERE A PREVIOUS ERRONEOUSLY-REGISTERED TRANSFEROR IN THE CHAIN OF TITLE OF SUCH TRANSFEREE WOULD HAVE BEEN INELIGIBLE SOLELY ON ACCOUNT OF BEING A COMPETITOR.
IF THIS NOTE WAS ACQUIRED IN THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR NOT TO HAVE BEEN A QUALIFIED INSTITUTIONAL BUYER AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS A QUALIFIED INSTITUTIONAL BUYER. THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS NOT A QUALIFIED INSTITUTIONAL BUYER OR WHO IS A COMPETITOR.
IF THIS NOTE WAS ACQUIRED OUTSIDE THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR TO HAVE BEEN A “U.S. PERSON” AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS NOT A “U.S. PERSON.” THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS A “U.S. PERSON” OR WHO IS A COMPETITOR.
BY ACCEPTING THIS NOTE, EACH PURCHASER COVENANTS THAT IT WILL NOT AT ANY TIME PRIOR TO THE DATE WHICH IS ONE (1) YEAR AND ONE (1) DAY AFTER THE PAYMENT IN FULL OF THE LATEST MATURING NOTE, INSTITUTE AGAINST, OR JOIN WITH ANY OTHER PERSON IN INSTITUTING AGAINST, ANY SECURITIZATION ENTITY ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS, UNDER ANY FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, 55 WATER STREET, NEW YORK, NEW YORK 10004, OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR THE NOTE REGISTRAR, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
FORM OF RULE 144A GLOBAL SERIES 2024-1 CLASS A-2 NOTE
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP Number: 974153 AE8
ISIN Number: US974153AE88
Common Code: 294934367
WINGSTOP FUNDING LLC
SERIES 2024-1 5.858% FIXED RATE SENIOR SECURED NOTES, CLASS A-2
WINGSTOP FUNDING LLC, a limited liability company formed under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, up to the principal sum of [ ] DOLLARS ($[ ]) as provided below and in the Indenture referred to herein. Payments of principal shall be payable in the amounts and at the times set forth in the Indenture described herein; provided, however, that the entire unpaid principal amount of this Note shall be due on December 2054 (the “Series 2024-1 Legal Final Maturity Date”). The Issuer will pay interest on this Rule 144A Global Series 2024-1 Class A-2 Note (this “Note”) at the Series 2024-1 Class A-2 Note Rate applicable to the Series 2024-1 Class A-2 Notes for each Interest Accrual Period in accordance with the terms of the Indenture. Such interest will be payable in arrears on each Quarterly Payment Date, which will be on the fifth day (or, if such fifth day is not a Business Day, the next succeeding Business Day (a “Business Day Adjustment”)) of each of March, June, September and December, commencing March 2025 (each, a “Quarterly Payment Date”). Such interest will accrue for each Quarterly Payment Date with respect to (i) initially, the period from and including December 3, 2024 to but excluding the Initial Quarterly Payment Date, without giving effect to any Business Day Adjustment and (ii) thereafter, any period commencing on and including the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment) in which the immediately preceding Quarterly Payment Date occurred, and ending on but excluding the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment) that includes the then-current Quarterly Payment Date, in each case without giving effect to any Business Day Adjustment (each, an “Interest Accrual Period”). Interest with respect to the Notes (and interest on any defaulted payments of interest or principal) will be computed on the basis of a 360-day year consisting of twelve 30-day months. In addition, under the circumstances set forth in the Indenture, the Issuer shall also pay additional interest on this Note at the Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest Rate applicable to the Series 2024-1 Class A-2 Notes, and such additional interest shall be computed and shall be payable in the amounts and at the times set forth in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private
debts. All payments made by the Issuer with respect to this Note shall be applied as provided in the Indenture.
This Note is subject to mandatory and optional prepayment as set forth in the Indenture.
Interests in this Note are exchangeable or transferable in whole or in part for interests in a Temporary Regulation S Global Note or a Permanent Regulation S Global Note; provided that such transfer or exchange complies with the applicable provisions of the Indenture relating to the transfer of the Notes. Interests in this Note in certain circumstances may also be exchangeable or transferable in whole but not in part for duly executed and issued registered Definitive Notes; provided that such transfer or exchange complies with Sections 2.8 and 2.13 of the Base Indenture and Section 4.2(c) of the Series 2024-1 Supplement.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Although a summary of certain provisions of the Indenture is set forth below and on the reverse hereof and made a part hereof, this Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Issuer and the Trustee. A copy of the Indenture may be requested from the Trustee by writing to the Trustee at Citibank, N.A., 388 Greenwich Street, New York, NY 10013, Attention: Agency & Trust – Wingstop Funding LLC. To the extent not defined herein, the capitalized terms used herein have the meanings ascribed to them in the Indenture. In the event of any inconsistency between the provisions of this Note and the Indenture, the provisions of the Indenture shall govern.
Subject to the next following paragraph, the Issuer hereby certifies and declares that all acts, conditions and things required to be done and performed and to have happened prior to the creation of this Note and to constitute it as the valid obligation of the Issuer enforceable in accordance with its terms have been done and performed and have happened in due compliance with all applicable laws and in accordance with the terms of the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee whose name appears below by manual, electronic or facsimile signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually, electronically or in facsimile, by its Authorized Officer.
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| Date: | | | | |
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| | | WINGSTOP FUNDING LLC, as Issuer |
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| | | By: | |
| | | Name: |
| | | Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2024-1 Class A-2 Notes issued under the within mentioned Indenture.
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| CITIBANK, N.A., as Trustee |
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| By: | |
| Name: |
| Title: Authorized Signatory |
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Series 2024-1 Class A-2 Notes of the Issuer designated as its Series 2024-1 5.858% Fixed Rate Senior Secured Notes, Class A-2 (herein called the “Series 2024-1 Class A-2 Notes”), all issued under (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (as amended by the First Supplement to the Second Amended and Restated Indenture, dated as of December 3, 2024 and as further amended, amended and restated, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2024-1 Supplement to the Base Indenture, dated as of December 3, 2024 (the “Series 2024-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2024-1 Supplement are referred to herein collectively as the “Indenture”. The Series 2024-1 Class A-2 Notes are subject to all terms of the Indenture. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture.
The Series 2024-1 Class A-2 Notes are and will be secured by the Collateral pledged as security therefor as provided in the Indenture.
The Notes will be issued in minimum denominations of $100,000 and in any whole number denomination in excess thereof.
As provided for in the Indenture, the Series 2024-1 Class A-2 Notes may be prepaid, in whole or in part, at the option of the Issuer. In addition, the Series 2024-1 Class A-2 Notes are subject to mandatory prepayment as provided for in the Indenture. In certain circumstances, the Issuer will be obligated to pay the Series 2024-1 Class A-2 Make-Whole Prepayment Consideration or the Series 2024-1 Class A-2 Call Redemption Premium (as applicable) in connection with a mandatory or optional prepayment of the Series 2024-1 Class A-2 Notes as described in the Indenture. As described above, the entire unpaid principal amount of this Note shall be due and payable on the Series 2024-1 Legal Final Maturity Date. All payments of principal of the Series 2024-1 Class A-2 Notes will be made pro rata to the Series 2024-1 Class A-2 Noteholders entitled thereto.
Principal of and interest on this Note which is payable on a Quarterly Payment Date or on any date on which payments are permitted to be made as provided for in the Indenture shall be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the applicable Record Date or Prepayment Record Date, as the case may be.
Interest and additional interest, if any, will each accrue on the Series 2024-1 Class A-2 Notes at the rates set forth in the Indenture. The interest and additional interest, if any, will be computed on the basis set forth in the Indenture. The amount of interest payable on the Series 2024-1 Class A-2 Notes on each Quarterly Payment Date will be calculated as set forth in the Indenture.
Payments of principal and interest on this Note are subordinated to the payment of certain other amounts in accordance with the Priority of Payments.
If an Event of Default shall occur and be continuing, this Note may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Amounts payable in respect of this Note shall be made by wire transfer of immediately available funds to the account designated by DTC or its nominee.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee, the Issuer and the Note Registrar duly executed by, the Series 2024-1 Class A-2 Noteholder hereof or its attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and accompanied by such other documents as the Trustee and the Note Registrar may require and as may be required by the Series 2024-1 Supplement, and thereupon one or more new Series 2024-1 Class A-2 Notes of authorized denominations in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Series 2024-1 Class A-2 Noteholder, by acceptance of a Series 2024-1 Class A-2 Note, covenants and agrees by accepting the benefits of the Indenture that, prior to the date that is one year and one day after the payment in full of the latest maturing note issued under the Indenture, such Series 2024-1 Class A-2 Noteholder will not institute against, or join with any other Person in instituting against, any Securitization Entity any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, however, that nothing herein shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Securitization Entities pursuant to the Indenture or any other Transaction Document.
It is the intent of the Issuer and each Series 2024-1 Class A-2 Noteholder that, for federal, state, local income and franchise tax purposes only, the Series 2024-1 Class A-2 Notes will evidence indebtedness of the Issuer secured by the Collateral. Each Series 2024-1 Class A-2 Noteholder, by the acceptance of this Note, agrees to treat this Note (or beneficial interests herein) for all purposes of federal, state, local income or franchise taxes, and any other tax imposed on or measured by income, as indebtedness of the Issuer or, if the Issuer is treated as a division of another entity, such other entity.
The Indenture permits certain amendments to be made thereto without the consent of the Control Party, the Controlling Class Representative or any Series 2024-1 Class A-2 Noteholders, provided that certain conditions precedent are satisfied. The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Series 2024-1 Class A-2 Noteholders under the Indenture at any time by the Issuer with the consent of the Control Party (acting at the direction of the Controlling Class Representative) and without the consent of any Series 2024-1 Class A-2 Noteholders. The Indenture also contains provisions permitting the Control Party (acting at the direction of the Controlling Class Representative) to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences without the consent of any Series 2024-1 Class A-2 Noteholders. Any such consent or waiver of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Series 2024-1 Class A-2 Noteholder and upon all future Series 2024-1 Class A-2 Noteholders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
Each purchaser or transferee of this Note (or any interest herein) shall be deemed to represent and warrant that either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise), nor a governmental, church, non-U.S. or other plan that is subject to any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of the Series 2024-1 Notes (or any interest therein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
The term “Issuer” as used in this Note includes any successor or assignee to the Issuer under the Indenture.
The Series 2024-1 Class A-2 Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations set forth therein.
This Note and the Indenture shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without regard to conflicts of law principles (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate and in the coin or currency herein prescribed.
ASSIGNMENT
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Social Security or taxpayer I.D. or other identifying number of assignee: | |
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto |
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| (name and address of assignee) |
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints |
attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. |
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| Dated: | | | | |
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| | | By: | 1 |
| | | Signature Guaranteed: |
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1 NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note, without alteration, enlargement or any change whatsoever. |
SCHEDULE OF EXCHANGES IN RULE 144A
GLOBAL SERIES 2024-1 CLASS A-2 NOTE
The initial principal balance of this Rule 144A Global Series 2024-1 Class A-2 Note is $[ ]. The following exchanges of an interest in this Rule 144A Global Series 2024-1 Class A-2 Note for an interest in a corresponding Temporary Regulation S Global Series 2024-1 Class A-2 Note or a Permanent Regulation S Global Series 2024-1 Class A-2 Note have been made:
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| Date | | Amount of Increase
(or Decrease) in the Principal Amount of this Rule 144A Global Note | | Remaining Principal Amount of this Rule 144A Global Note following the Increase or Decrease | | Signature of Authorized Officer of Trustee or Note Registrar |
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EXHIBIT A-2
THE ISSUANCE AND SALE OF THIS TEMPORARY REGULATION S GLOBAL SERIES 2024-1 CLASS A-2 NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION, AND WINGSTOP FUNDING LLC (THE “ISSUER”) HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “1940 ACT”). THIS NOTE OR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO (A) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE QIBS, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A QIB AND NOT A COMPETITOR, (B) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE NOT “U.S. PERSONS” IN OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S UNDER THE 1933 ACT, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR (C) THE ISSUER OR AN AFFILIATE OF THE ISSUER, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION, AND, IN EACH CASE, IN COMPLIANCE WITH THE CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION.
BY ITS ACQUISITION OR ACCEPTANCE HEREOF, THE HOLDER (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) REPRESENTS THAT (A) IT IS NOT A COMPETITOR AND IS (X) A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A OR (Y) NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, AS APPLICABLE, (B) IT IS NOT A COMPETITOR AND IS ACTING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PERSON WHICH IS EITHER (X) A QUALIFIED INSTITUTIONAL BUYER OR (Y) NOT A U.S. PERSON, AND IN EACH CASE WITH RESPECT TO WHICH IT EXERCISES SOLE INVESTMENT DISCRETION AND WHICH IS NOT A COMPETITOR, (C) IT AND EACH ACCOUNT FOR WHICH IT IS PURCHASING WILL HOLD AND TRANSFER AT LEAST THE MINIMUM DENOMINATION OF NOTES, (D) IT UNDERSTANDS THAT THE ISSUER MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN ITS NOTES FROM ONE OR MORE BOOK-ENTRY DEPOSITORIES AND (E) IT WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS TO ANY SUBSEQUENT TRANSFEREES.
EACH PERSON (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE WILL BE DEEMED TO HAVE MADE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE. EACH PERSON TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE IN THE FORM OF AN INTEREST IN A RULE 144A GLOBAL NOTE OR A PERMANENT REGULATION S GLOBAL NOTE WILL BE REQUIRED TO DELIVER A TRANSFER CERTIFICATE IN THE FORM REQUIRED BY THE INDENTURE AND WILL BE REQUIRED TO MAKE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE.
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT AND WILL BE VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO ANY PERSON CAUSING SUCH VIOLATION, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE TRUSTEE OR ANY INTERMEDIARY; PROVIDED, HOWEVER, THAT THE PRECEDING PORTION OF THIS SENTENCE SHALL NOT OPERATE TO INVALIDATE ANY OTHERWISE BONA FIDE TRANSFER TO AN ELIGIBLE TRANSFEREE WHERE A PREVIOUS ERRONEOUSLY-REGISTERED TRANSFEROR IN THE CHAIN OF TITLE OF SUCH TRANSFEREE WOULD HAVE BEEN INELIGIBLE SOLELY ON ACCOUNT OF BEING A COMPETITOR.
IF THIS NOTE WAS ACQUIRED IN THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR NOT TO HAVE BEEN A QUALIFIED INSTITUTIONAL BUYER AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS A QUALIFIED INSTITUTIONAL BUYER. THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS NOT A QUALIFIED INSTITUTIONAL BUYER OR WHO IS A COMPETITOR.
IF THIS NOTE WAS ACQUIRED OUTSIDE THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR TO HAVE BEEN A “U.S. PERSON” AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS NOT A “U.S. PERSON.” THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS A “U.S. PERSON” OR WHO IS A COMPETITOR.
BY ACCEPTING THIS NOTE, EACH PURCHASER COVENANTS THAT IT WILL NOT AT ANY TIME PRIOR TO THE DATE WHICH IS ONE (1) YEAR AND ONE (1) DAY AFTER THE PAYMENT IN FULL OF THE LATEST MATURING NOTE, INSTITUTE AGAINST, OR JOIN WITH ANY OTHER PERSON IN INSTITUTING AGAINST, ANY SECURITIZATION ENTITY ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS, UNDER ANY FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
UNTIL FORTY (40) DAYS AFTER THE ORIGINAL ISSUE DATE OF THE NOTES (THE “RESTRICTED PERIOD”) IN CONNECTION WITH THE OFFERING OF THE NOTES IN THE UNITED STATES FROM OUTSIDE OF THE UNITED STATES, THE SALE, PLEDGE OR TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS AND RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE ACQUIRING THIS NOTE, ACKNOWLEDGES THAT SUCH HOLDER IS EITHER (I) NOT A “U.S. PERSON” AND NOT A COMPETITOR OR (II) THE ISSUER OR AN AFFILIATE OF THE ISSUER, AND THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER THE 1933 ACT, AND AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS NOTE MAY BE TRANSFERRED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO A HOLDER THAT IS NOT A “U.S. PERSON” AND NOT A COMPETITOR PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR TO THE ISSUER OR AN AFFILIATE OF THE ISSUER AND IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS OF THE STATES, TERRITORIES AND POSSESSIONS OF THE UNITED STATES GOVERNING THE OFFER AND SALE OF
SECURITIES, AND PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD, ONLY (I) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE 1933 ACT OR (II) PURSUANT TO AND IN ACCORDANCE WITH RULE 144A UNDER THE 1933 ACT.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, 55 WATER STREET, NEW YORK, NEW YORK 10004, OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR THE NOTE REGISTRAR, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
FORM OF TEMPORARY REGULATION S GLOBAL SERIES 2024-1 CLASS A-2 NOTE
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP Number: U97015 AD0
ISIN Number: USU97015AD07
Common Code: 294934391
WINGSTOP FUNDING LLC
SERIES 2024-1 5.858% FIXED RATE SENIOR SECURED NOTES, CLASS A-2
WINGSTOP FUNDING LLC, a limited liability company formed under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, up to the principal sum of [ ] DOLLARS ($[ ]) as provided below and in the Indenture referred to herein. Payments of principal shall be payable in the amounts and at the times set forth in the Indenture described herein; provided, however, that the entire unpaid principal amount of this Note shall be due on December 2054 (the “Series 2024-1 Legal Final Maturity Date”). The Issuer will pay interest on this Temporary Regulation S Global Series 2024-1 Class A-2 Note (this “Note”) at the Series 2024-1 Class A-2 Note Rate applicable to the Series 2024-1 Class A-2 Notes for each Interest Accrual Period in accordance with the terms of the Indenture. Such interest will be payable in arrears on each Quarterly Payment Date, which will be on the fifth day (or, if such fifth day is not a Business Day, the next succeeding Business Day (a “Business Day Adjustment”)) of each of March, June, September and December, commencing March 2025 (each, a “Quarterly Payment Date”). Such interest will accrue for each Quarterly Payment Date with respect to (i) initially, the period from and including December 3, 2024 to but excluding the Initial Quarterly Payment Date, without giving effect to any Business Day Adjustment and (ii) thereafter, any period commencing on and including the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment) in which the immediately preceding Quarterly Payment Date occurred, and ending on but excluding the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment)that includes the then-current Quarterly Payment Date, in each case without giving effect to any Business Day Adjustment (each, an “Interest Accrual Period”). Interest with respect to the Notes (and interest on any defaulted payments of interest or principal) will be computed on the basis of a 360-day year consisting of twelve 30-day months. In addition, under the circumstances set forth in the Indenture, the Issuer shall also pay additional interest on this Note at the Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest Rate applicable to the Series 2024-1 Class A-2 Notes, and such additional interest shall be computed and shall be payable in the amounts and at the times set forth in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private
debts. All payments made by the Issuer with respect to this Note shall be applied as provided in the Indenture.
This Note is subject to mandatory and optional prepayment as set forth in the Indenture.
Interests in this Note are exchangeable or transferable in whole or in part for interests in a Rule 144A Global Note or a Permanent Regulation S Global Note; provided that such transfer or exchange complies with the applicable provisions of the Indenture relating to the transfer of the Notes. Interests in this Note in certain circumstances may also be exchangeable or transferable in whole but not in part for duly executed and issued registered Definitive Notes; provided that such transfer or exchange complies with Sections 2.8 and 2.13 of the Base Indenture and Section 4.2(c) of the Series 2024-1 Supplement.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Although a summary of certain provisions of the Indenture is set forth below and on the reverse hereof and made a part hereof, this Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Issuer and the Trustee. A copy of the Indenture may be requested from the Trustee by writing to the Trustee at Citibank, N.A., 388 Greenwich Street, New York, NY 10013, Attention: Agency & Trust – Wingstop Funding LLC. To the extent not defined herein, the capitalized terms used herein have the meanings ascribed to them in the Indenture. In the event of any inconsistency between the provisions of this Note and the Indenture, the provisions of the Indenture shall govern.
Subject to the next following paragraph, the Issuer hereby certifies and declares that all acts, conditions and things required to be done and performed and to have happened prior to the creation of this Note and to constitute it as the valid obligation of the Issuer enforceable in accordance with its terms have been done and performed and have happened in due compliance with all applicable laws and in accordance with the terms of the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee whose name appears below by manual, electronic or facsimile signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually, electronically or in facsimile, by its Authorized Officer.
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| Date: | | | | |
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| | | WINGSTOP FUNDING LLC, as Issuer |
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| | | By: | |
| | | Name: |
| | | Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2024-1 Class A-2 Notes issued under the within mentioned Indenture.
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| CITIBANK, N.A., as Trustee |
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| By: | |
| Name: |
| Title: Authorized Signatory |
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Series 2024-1 Class A-2 Notes of the Issuer designated as its Series 2024-1 5.858% Fixed Rate Senior Secured Notes, Class A-2 (herein called the “Series 2024-1 Class A-2 Notes”), all issued under (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (as amended by the First Supplement to the Second Amended and Restated Indenture, dated as of December 3, 2024 and as further amended, amended and restated, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2024-1 Supplement to the Base Indenture, dated as of December 3, 2024 (the “Series 2024-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2024-1 Supplement are referred to herein collectively as the “Indenture”. The Series 2024-1 Class A-2 Notes are subject to all terms of the Indenture. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture
The Series 2024-1 Class A-2 Notes are and will be secured by the Collateral pledged as security therefor as provided in the Indenture.
The Notes will be issued in minimum denominations of $100,000 and in any whole number denomination in excess thereof.
As provided for in the Indenture, the Series 2024-1 Class A-2 Notes may be prepaid, in whole or in part, at the option of the Issuer. In addition, the Series 2024-1 Class A-2 Notes are subject to mandatory prepayment as provided for in the Indenture. In certain circumstances, the Issuer will be obligated to pay the Series 2024-1 Class A-2 Make-Whole Prepayment Consideration or the Series 2024-1 Class A-2 Call Redemption Premium (as applicable) in connection with a mandatory or optional prepayment of the Series 2024-1 Class A-2 Notes as described in the Indenture. As described above, the entire unpaid principal amount of this Note shall be due and payable on the Series 2024-1 Legal Final Maturity Date. All payments of principal of the Series 2024-1 Class A-2 Notes will be made pro rata to the Series 2024-1 Class A-2 Noteholders entitled thereto.
Principal of and interest on this Note which is payable on a Quarterly Payment Date or on any date on which payments are permitted to be made as provided for in the Indenture shall be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the applicable Record Date or Prepayment Record Date, as the case may be.
Interest and additional interest, if any, will each accrue on the Series 2024-1 Class A-2 Notes at the rates set forth in the Indenture. The interest and additional interest, if any, will be computed on the basis set forth in the Indenture. The amount of interest payable on the Series 2024-1 Class A-2 Notes on each Quarterly Payment Date will be calculated as set forth in the Indenture.
Payments of principal and interest on this Note are subordinated to the payment of certain other amounts in accordance with the Priority of Payments.
If an Event of Default shall occur and be continuing, this Note may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Amounts payable in respect of this Note shall be made by wire transfer of immediately available funds to the account designated by DTC or its nominee.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee, the Issuer and the Note Registrar duly executed by, the Series 2024-1 Class A-2 Noteholder hereof or its attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and accompanied by such other documents as the Trustee and the Note Registrar may require and as may be required by the Series 2024-1 Supplement, and thereupon one or more new Series 2024-1 Class A-2 Notes of authorized denominations in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Series 2024-1 Class A-2 Noteholder, by acceptance of a Series 2024-1 Class A-2 Note, covenants and agrees by accepting the benefits of the Indenture that, prior to the date that is one year and one day after the payment in full of the latest maturing note issued under the Indenture, such Series 2024-1 Class A-2 Noteholder will not institute against, or join with any other Person in instituting against, any Securitization Entity any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, however, that nothing herein shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Securitization Entities pursuant to the Indenture or any other Transaction Document.
It is the intent of the Issuer and each Series 2024-1 Class A-2 Noteholder that, for federal, state, local income and franchise tax purposes only, the Series 2024-1 Class A-2 Notes will evidence indebtedness of the Issuer secured by the Collateral. Each Series 2024-1 Class A-2 Noteholder, by the acceptance of this Note, agrees to treat this Note (or beneficial interests herein) for all purposes of federal, state, local income or franchise taxes, and any other tax imposed on or measured by income, as indebtedness of the Issuer or, if the Issuer is treated as a division of another entity, such other entity.
The Indenture permits certain amendments to be made thereto without the consent of the Control Party, the Controlling Class Representative or any Series 2024-1 Class A-2 Noteholders, provided that certain conditions precedent are satisfied. The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Series 2024-1 Class A-2 Noteholders under the Indenture at any time by the Issuer with the consent of the Control Party (acting at the direction of the Controlling Class Representative) and without the consent of any Series 2024-1 Class A-2 Noteholders. The Indenture also contains provisions permitting the Control Party (acting at the direction of the Controlling Class Representative) to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences without the consent of any Series 2024-1 Class A-2 Noteholders. Any such consent or waiver of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Series 2024-1 Class A-2 Noteholder and upon all future Series 2024-1 Class A-2 Noteholders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
Each purchaser or transferee of this Note (or any interest herein) shall be deemed to represent and warrant that either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise), nor a governmental, church, non-U.S. or other plan that is subject to any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of the Series 2024-1 Notes (or any interest therein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
The term “Issuer” as used in this Note includes any successor or assignee to the Issuer under the Indenture.
The Series 2024-1 Class A-2 Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations set forth therein.
This Note and the Indenture shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without regard to conflicts of law principles (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate and in the coin or currency herein prescribed.
ASSIGNMENT
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Social Security or taxpayer I.D. or other identifying number of assignee: | |
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto |
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| (name and address of assignee) |
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints |
attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. |
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| Dated: | | | | |
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| | | By: | 1 |
| | | Signature Guaranteed: |
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1 NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note, without alteration, enlargement or any change whatsoever. |
SCHEDULE OF EXCHANGES IN TEMPORARY REGULATION S
GLOBAL SERIES 2024-1 CLASS A-2 NOTE
The initial principal balance of this Temporary Regulation S Global Series 2024-1 Class A-2 Note is $[ ]. The following exchanges of an interest in this Temporary Regulation S Global Series 2024-1 Class A-2 Note for an interest in a corresponding Rule 144A Global Series 2024-1 Class A-2 Note or a Permanent Regulation S Global Series 2024-1 Class A-2 Note have been made:
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| Date | | Amount of Increase
(or Decrease) in the Principal Amount of this Temporary Regulation S Global Note | | Remaining Principal Amount of this Temporary Regulation S Global Note following the Increase or Decrease | | Signature of Authorized Officer of Trustee or Note Registrar |
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EXHIBIT A-3
THE ISSUANCE AND SALE OF THIS PERMANENT REGULATION S GLOBAL SERIES 2024-1 CLASS A-2 NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION, AND WINGSTOP FUNDING LLC (THE “ISSUER”) HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “1940 ACT”). THIS NOTE OR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO (A) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE QIBS, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A QIB AND NOT A COMPETITOR, (B) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE NOT “U.S. PERSONS” IN OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S UNDER THE 1933 ACT, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR (C) THE ISSUER OR AN AFFILIATE OF THE ISSUER, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION, AND, IN EACH CASE, IN COMPLIANCE WITH THE CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION.
BY ITS ACQUISITION OR ACCEPTANCE HEREOF, THE HOLDER (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) REPRESENTS THAT (A) IT IS NOT A COMPETITOR AND IS (X) A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A OR (Y) NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, AS APPLICABLE, (B) IT IS NOT A COMPETITOR AND IS ACTING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PERSON WHICH IS EITHER (X) A QUALIFIED INSTITUTIONAL BUYER OR (Y) NOT A U.S. PERSON, AND IN EACH CASE WITH RESPECT TO WHICH IT EXERCISES SOLE INVESTMENT DISCRETION AND WHICH IS NOT A COMPETITOR, (C) IT AND EACH ACCOUNT FOR WHICH IT IS PURCHASING WILL HOLD AND TRANSFER AT LEAST THE MINIMUM DENOMINATION OF NOTES, (D) IT UNDERSTANDS THAT THE ISSUER MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN ITS NOTES FROM ONE OR MORE BOOK-ENTRY DEPOSITORIES AND (E) IT WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS TO ANY SUBSEQUENT TRANSFEREES.
EACH PERSON (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE WILL BE DEEMED TO HAVE MADE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE. EACH PERSON TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE IN THE FORM OF AN INTEREST IN A PERMANENT REGULATION S GLOBAL NOTE WILL BE REQUIRED TO DELIVER A TRANSFER CERTIFICATE IN THE FORM REQUIRED BY THE INDENTURE AND WILL BE REQUIRED TO MAKE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE.
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT AND WILL BE VOID AB INITIO AND WILL NOT OPERATE TO
TRANSFER ANY RIGHTS TO ANY PERSON CAUSING SUCH VIOLATION, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE TRUSTEE OR ANY INTERMEDIARY; PROVIDED, HOWEVER, THAT THE PRECEDING PORTION OF THIS SENTENCE SHALL NOT OPERATE TO INVALIDATE ANY OTHERWISE BONA FIDE TRANSFER TO AN ELIGIBLE TRANSFEREE WHERE A PREVIOUS ERRONEOUSLY-REGISTERED TRANSFEROR IN THE CHAIN OF TITLE OF SUCH TRANSFEREE WOULD HAVE BEEN INELIGIBLE SOLELY ON ACCOUNT OF BEING A COMPETITOR.
IF THIS NOTE WAS ACQUIRED IN THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR NOT TO HAVE BEEN A QUALIFIED INSTITUTIONAL BUYER AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS A QUALIFIED INSTITUTIONAL BUYER. THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS NOT A QUALIFIED INSTITUTIONAL BUYER OR WHO IS A COMPETITOR.
IF THIS NOTE WAS ACQUIRED OUTSIDE THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR TO HAVE BEEN A “U.S. PERSON” AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS NOT A “U.S. PERSON.” THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS A “U.S. PERSON” OR WHO IS A COMPETITOR.
BY ACCEPTING THIS NOTE, EACH PURCHASER COVENANTS THAT IT WILL NOT AT ANY TIME PRIOR TO THE DATE WHICH IS ONE (1) YEAR AND ONE (1) DAY AFTER THE PAYMENT IN FULL OF THE LATEST MATURING NOTE, INSTITUTE AGAINST, OR JOIN WITH ANY OTHER PERSON IN INSTITUTING AGAINST, ANY SECURITIZATION ENTITY ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS, UNDER ANY FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, 55 WATER STREET, NEW YORK, NEW YORK 10004, OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR THE NOTE REGISTRAR, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
FORM OF PERMANENT REGULATION S GLOBAL SERIES 2024-1 CLASS A-2 NOTE
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP Number: U97015 AD0
ISIN Number: USU97015AD07
Common Code: 294934391
WINGSTOP FUNDING LLC
SERIES 2024-1 5.858% FIXED RATE SENIOR SECURED NOTES, CLASS A-2
WINGSTOP FUNDING LLC, a limited liability company formed under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, up to the principal sum of [ ] DOLLARS ($[ ]) as provided below and in the Indenture referred to herein. Payments of principal shall be payable in the amounts and at the times set forth in the Indenture described herein; provided, however, that the entire unpaid principal amount of this Note shall be due on December 2054 (the “Series 2024-1 Legal Final Maturity Date”). The Issuer will pay interest on this Permanent Regulation S Global Series 2024-1 Class A-2 Note (this “Note”) at the Series 2024-1 Class A-2 Note Rate applicable to the Series 2024-1 Class A-2 Notes for each Interest Accrual Period in accordance with the terms of the Indenture. Such interest will be payable in arrears on each Quarterly Payment Date, which will be on the fifth day (or, if such fifth day is not a Business Day, the next succeeding Business Day (a “Business Day Adjustment”)) of each of March, June, September and December, commencing March 2025 (each, a “Quarterly Payment Date”). Such interest will accrue for each Quarterly Payment Date with respect to (i) initially, the period from and including December 3, 2024 to but excluding the Initial Quarterly Payment Date, without giving effect to any Business Day Adjustment and (ii) thereafter, any period commencing on and including the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment) in which the immediately preceding Quarterly Payment Date occurred, and ending on but excluding the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment) that includes the then-current Quarterly Payment Date, in each case without giving effect to any Business Day Adjustment (each, an “Interest Accrual Period”). Interest with respect to the Notes (and interest on any defaulted payments of interest or principal) will be computed on the basis of a 360-day year consisting of twelve 30-day months. In addition, under the circumstances set forth in the Indenture, the Issuer shall also pay additional interest on this Note at the Series 2024-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest Rate applicable to the Series 2024-1 Class A-2 Notes, and such additional interest shall be computed and shall be payable in the amounts and at the times set forth in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private
debts. All payments made by the Issuer with respect to this Note shall be applied as provided in the Indenture.
This Note is subject to mandatory and optional prepayment as set forth in the Indenture.
Interests in this Note are exchangeable or transferable in whole or in part for interests in a Rule 144A Global Note; provided that such transfer or exchange complies with the applicable provisions of the Indenture relating to the transfer of the Notes. Interests in this Note in certain circumstances may also be exchangeable or transferable in whole but not in part for duly executed and issued registered Definitive Notes; provided that such transfer or exchange complies with Sections 2.8 and 2.13 of the Base Indenture and Section 4.2(c) of the Series 2024-1 Supplement.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Although a summary of certain provisions of the Indenture is set forth below and on the reverse hereof and made a part hereof, this Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Issuer and the Trustee. A copy of the Indenture may be requested from the Trustee by writing to the Trustee at Citibank, N.A., 388 Greenwich Street, New York, NY 10013, Attention: Agency & Trust – Wingstop Funding LLC. To the extent not defined herein, the capitalized terms used herein have the meanings ascribed to them in the Indenture. In the event of any inconsistency between the provisions of this Note and the Indenture, the provisions of the Indenture shall govern.
Subject to the next following paragraph, the Issuer hereby certifies and declares that all acts, conditions and things required to be done and performed and to have happened prior to the creation of this Note and to constitute it as the valid obligation of the Issuer enforceable in accordance with its terms have been done and performed and have happened in due compliance with all applicable laws and in accordance with the terms of the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee whose name appears below by manual, electronic or facsimile signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually, electronically or in facsimile, by its Authorized Officer.
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| Date: | | | | |
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| | | WINGSTOP FUNDING LLC, as Issuer |
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| | | By: | |
| | | Name: |
| | | Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2024-1 Class A-2 Notes issued under the within mentioned Indenture.
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| CITIBANK, N.A., as Trustee |
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| By: | |
| Name: |
| Title: Authorized Signatory |
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Series 2024-1 Class A-2 Notes of the Issuer designated as its Series 2024-1 5.858% Fixed Rate Senior Secured Notes, Class A-2 (herein called the “Series 2024-1 Class A-2 Notes”), all issued under (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (as amended by the First Supplement to the Second Amended and Restated Indenture, dated as of December 3, 2024 and as further amended, amended and restated supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2024-1 Supplement to the Base Indenture, dated as of December 3, 2024 (the “Series 2024-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2024-1 Supplement are referred to herein collectively as the “Indenture”. The Series 2024-1 Class A-2 Notes are subject to all terms of the Indenture. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture
The Series 2024-1 Class A-2 Notes are and will be secured by the Collateral pledged as security therefor as provided in the Indenture.
The Notes will be issued in minimum denominations of $100,000 and in any whole number denomination in excess thereof.
As provided for in the Indenture, the Series 2024-1 Class A-2 Notes may be prepaid, in whole or in part, at the option of the Issuer. In addition, the Series 2024-1 Class A-2 Notes are subject to mandatory prepayment as provided for in the Indenture. In certain circumstances, the Issuer will be obligated to pay the Series 2024-1 Class A-2 Make-Whole Prepayment Consideration or the Series 2024-1 Class A-2 Call Redemption Premium (as applicable) in connection with a mandatory or optional prepayment of the Series 2024-1 Class A-2 Notes as described in the Indenture. As described above, the entire unpaid principal amount of this Note shall be due and payable on the Series 2024-1 Legal Final Maturity Date. All payments of principal of the Series 2024-1 Class A-2 Notes will be made pro rata to the Series 2024-1 Class A-2 Noteholders entitled thereto.
Principal of and interest on this Note which is payable on a Quarterly Payment Date or on any date on which payments are permitted to be made as provided for in the Indenture shall be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the applicable Record Date or Prepayment Record Date, as the case may be.
Interest and additional interest, if any, will each accrue on the Series 2024-1 Class A-2 Notes at the rates set forth in the Indenture. The interest and additional interest, if any, will be computed on the basis set forth in the Indenture. The amount of interest payable on the Series 2024-1 Class A-2 Notes on each Quarterly Payment Date will be calculated as set forth in the Indenture.
Payments of principal and interest on this Note are subordinated to the payment of certain other amounts in accordance with the Priority of Payments.
If an Event of Default shall occur and be continuing, this Note may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Amounts payable in respect of this Note shall be made by wire transfer of immediately available funds to the account designated by DTC or its nominee.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note (other than any Uncertificated Note) may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee, the Issuer and the Note Registrar duly executed by, the Series 2024-1 Class A-2 Noteholder hereof or its attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and accompanied by such other documents as the Trustee and the Note Registrar may require and as may be required by the Series 2024-1 Supplement, and thereupon one or more new Series 2024-1 Class A-2 Notes of authorized denominations in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Series 2024-1 Class A-2 Noteholder, by acceptance of a Series 2024-1 Class A-2 Note, covenants and agrees by accepting the benefits of the Indenture that, prior to the date that is one year and one day after the payment in full of the latest maturing note issued under the Indenture, such Series 2024-1 Class A-2 Noteholder will not institute against, or join with any other Person in instituting against, any Securitization Entity any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, however, that nothing herein shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Securitization Entities pursuant to the Indenture or any other Transaction Document.
It is the intent of the Issuer and each Series 2024-1 Class A-2 Noteholder that, for federal, state, local income and franchise tax purposes only, the Series 2024-1 Class A-2 Notes will evidence indebtedness of the Issuer secured by the Collateral. Each Series 2024-1 Class A-2 Noteholder, by the acceptance of this Note, agrees to treat this Note (or beneficial interests herein) for all purposes of federal, state, local income or franchise taxes, and any other tax imposed on or measured by income, as indebtedness of the Issuer or, if the Issuer is treated as a division of another entity, such other entity.
The Indenture permits certain amendments to be made thereto without the consent of the Control Party, the Controlling Class Representative or any Series 2024-1 Class A-2 Noteholders, provided that certain conditions precedent are satisfied. The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Series 2024-1 Class A-2 Noteholders under the Indenture at any time by the Issuer with the consent of the Control Party (acting at the direction of the Controlling Class Representative) and without the consent of any Series 2024-1 Class A-2 Noteholders. The Indenture also contains provisions permitting the Control Party (acting at the direction of the Controlling Class Representative) to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences without the consent of any Series 2024-1 Class A-2 Noteholders. Any such consent or waiver of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Series 2024-1 Class A-2 Noteholder and upon all future Series 2024-1 Class A-2 Noteholders of this Note and of any Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
Each purchaser or transferee of this Note (or any interest herein) shall be deemed to represent and warrant that either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise), nor a governmental, church, non-U.S. or other plan that is subject to any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of the Series 2024-1 Notes (or any interest therein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
The term “Issuer” as used in this Note includes any successor and assignee to the Issuer under the Indenture.
The Series 2024-1 Class A-2 Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations set forth therein.
This Note and the Indenture shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without regard to conflicts of law principles (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate and in the coin or currency herein prescribed.
ASSIGNMENT
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Social Security or taxpayer I.D. or other identifying number of assignee: | |
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto |
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| (name and address of assignee) |
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints |
attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. |
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| Dated: | | | | |
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| | | By: | 1 |
| | | Signature Guaranteed: |
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1 NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note, without alteration, enlargement or any change whatsoever. |
SCHEDULE OF EXCHANGES IN PERMANENT REGULATION S
GLOBAL SERIES 2024-1 CLASS A-2 NOTE
The initial principal balance of this Permanent Regulation S Global Series 2024-1 Class A-2 Note is $[ ]. The following exchanges of an interest in this Permanent Regulation S Global Series 2024-1 Class A-2 Note for an interest in a corresponding Rule 144A Global Series 2024-1 Class A-2 Note or a Temporary Regulation S Global Series 2024-1 Class A-2 Note have been made:
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(or Decrease) in the Principal Amount of this Permanent Regulation S Global Note | | Remaining Principal Amount of this Permanent Regulation S Global Note following the Increase or Decrease | | Signature of Authorized Officer of Trustee or Note Registrar |
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EXHIBIT B-1
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL NOTES
TO INTERESTS IN TEMPORARY REGULATION S GLOBAL NOTES
Citibank, N.A., as Trustee
480 Washington Boulevard
16th Floor
Jersey City, NJ 07310
Attention: Securities Window – Wingstop Funding LLC
Re: Wingstop Funding LLC $500,000,000 Series 2024-1 5.858% Fixed Rate Senior Secured Notes, Class A-2 (the “Notes”)
Reference is hereby made to (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (as amended by the First Supplement to the Second Amended and Restated Base Indenture, dated as of December 3, 2024 and as further amended, amended and restated, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2024-1 Supplement to the Base Indenture, dated as of December 3, 2024 (the “Series 2024-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2024-1 Supplement are referred to herein collectively as the “Indenture”. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture.
This certificate relates to U.S.$ [ ] aggregate principal amount of Notes which are held in the form of an interest in a Rule 144A Global Note with DTC (CUSIP (CINS) No. 974153 AE8) in the name of [_____] [name of transferor] (the “Transferor”), who wishes to effect the transfer of such Notes in exchange for an equivalent beneficial interest in a Temporary Regulation S Global Note in the name of [_____] [name of transferee] (the “Transferee”).
In connection with such request, and in respect of such Notes, the Transferee does hereby certify that either (A) the Transferee is the Issuer or an Affiliate of the Issuer or (B) such Notes are being transferred (i) in accordance with the transfer restrictions set forth in the Indenture and the Offering Memorandum dated November 19, 2024 relating to the Notes, (ii) pursuant to an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction and (iii) to a Person who is not a Competitor.
In addition, the Transferee hereby represents, warrants and covenants for the benefit of the Issuer, the Note Registrar and the Trustee that either the Transferee is the Issuer or an Affiliate of the Issuer or:
1.the offer of the Notes was not made to a Person in the United States or a Competitor;
2.at the time the buy order was originated, the Transferee was outside the United States;
3.no directed selling efforts have been made in contravention of the requirements of Rule 903(a) or 904(a) of Regulation S, as applicable;
4.the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act, and the Transferee is aware that the sale to it is being made in reliance on an exemption from the registration requirements of the 1933 Act provided by Regulation S;
5.the Transferee is not a U.S. Person (as defined in Regulation S);
6.if the sale is made during a restricted period and the provisions of Rule 903(b)(2) or (3) or Rule 904(b)(1) of Regulation S are applicable thereto, the Transferee confirms that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2) or (3) or Rule 904(b)(1), as the case may be;
7.the Transferee is not purchasing such Notes with a view to the resale, distribution or other disposition thereof in the United States or to a U.S. Person;
8.the Transferee will, and each account for which it is purchasing will, hold and transfer at least the minimum denomination of Notes;
9.the Transferee understands that the Manager, the Issuer and the Servicer may receive a list of participants holding positions in the Notes from one or more book-entry depositories;
10.the Transferee understands that the Manager, the Issuer and the Servicer may receive (i) a list of Note Owners that have requested access to the Trustee’s password-protected website or that have voluntarily registered as a Note Owner with the Trustee and (ii) copies of Noteholder confirmations of representations and warranties executed to obtain access to the Trustee’s password-protected website;
11.the Transferee will provide to each person to whom it transfers Notes notices of any restrictions on transfer of such Notes;
12.it is not a Competitor;
13.either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise) nor a governmental, church, non-U.S. or other plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of this Note (or any interest herein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code;
14.if it is using assets of a Plan to acquire or hold the Notes or any interest therein, then such purchaser or transferee, as applicable, further represents that (i) none of WRI, the Guarantors, the Issuer, the Initial Purchasers, the Trustee, the Servicer or the Back-Up Manager or any of their respective affiliates or agents (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied upon for any advice, with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and none of the Transaction Parties shall at any time be
relied upon as the Plan’s fiduciary with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and (ii) the decision to invest in the Notes has been made at the recommendation or direction of an independent fiduciary who (a) is independent of the Transaction Parties; (b) is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies; (c) is a fiduciary (under ERISA and/or Section 4975 of the Code) with respect to the Plan’s investment in the Notes and is responsible for exercising independent judgment in evaluating the investment in the Notes; and (d) is aware of and acknowledges that (1) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the Plan’s investment in the Notes, and (2) the Transaction Parties have a financial interest in the Plan’s investment in the Notes; and
15.it is:
_____ (check if applicable) a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”); or
_____ (check if applicable) not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
The representations made pursuant to clause 7 above shall be deemed to be made on each day from the date the Transferee acquires any interest in any Note through and including the date on which such Transferee disposes of its interest in the applicable Note. The Transferee agrees to provide prompt written notice to the Issuer, the Note Registrar and the Trustee of any change of the status of the Transferee that would cause it to breach the representations made in clause 7 above. The Transferee further agrees to indemnify and hold harmless the Issuer, the Trustee, the Note Registrar and the Initial Purchasers and their respective affiliates from any cost, damage or loss incurred by them as a result of the inaccuracy or breach of the foregoing representations, warranties and agreements in this clause and clause 7 above. Any purported transfer of the Notes (or interest therein) that does not comply with the requirements of this clause and clause 7 above shall be null and void ab initio.
The Transferee understands that the Issuer, the Trustee, the Note Registrar and their respective counsel will rely upon the accuracy and truth of the foregoing representations, and are irrevocably authorized to produce this certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby, and the Transferee hereby consents to such reliance and authorization.
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| | | [Name of Transferee] |
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Registered Name (if Nominee): | | |
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| cc: | c/o Wingstop Inc. | | | |
| 15505 Wright Brothers Drive | | |
| Addison, TX 75001 | | | |
| Attention: Gerry McGrath | | | |
EXHIBIT B-2
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL NOTES
TO INTERESTS IN PERMANENT REGULATION S GLOBAL NOTES
Citibank, N.A., as Trustee
480 Washington Boulevard
16th Floor
Jersey City, NJ 07310
Attention: Securities Window – Wingstop Funding LLC
Re: Wingstop Funding LLC $500,000,000 Series 2024-1 5.858% Fixed Rate Senior Secured Notes, Class A-2 (the “Notes”)
Reference is hereby made to (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (as amended by the First Supplement to the Second Amended and Restated Base Indenture, dated as of December 3, 2024 and as further amended, amended and restated, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2024-1 Supplement to the Base Indenture, dated as of December 3, 2024 (the “Series 2024-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2024-1 Supplement are referred to herein collectively as the “Indenture”. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture.
This certificate relates to U.S.$ [ ] aggregate principal amount of Notes which are held in the form of an interest in a Rule 144A Global Note with DTC (CUSIP (CINS) No. 974153 AE8) in the name of [_____] [name of transferor] (the “Transferor”), who wishes to effect the transfer of such Notes in exchange for an equivalent beneficial interest in a Permanent Regulation S Global Note in the name of [_____] [name of transferee] (the “Transferee”).
In connection with such request, and in respect of such Notes, the Transferee does hereby certify that either (A) the Transferee is the Issuer or an Affiliate of the Issuer or (B) such Notes are being transferred (i) in accordance with the transfer restrictions set forth in the Indenture and the Offering Memorandum, dated November 19, 2024, relating to the Notes, (ii) pursuant to an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction and (iii) to a Person who is not a Competitor.
In addition, the Transferee hereby represents, warrants and covenants for the benefit of the Issuer, the Note Registrar and the Trustee that either the Transferee is the Issuer or an Affiliate of the Issuer or:
1.the offer of the Notes was not made to a Person in the United States or a Competitor;
2.at the time the buy order was originated, the Transferee was outside the United States;
3.no directed selling efforts have been made in contravention of the requirements of Rule 903(a) or 904(a) of Regulation S, as applicable;
4.the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act, and the Transferee is aware that the sale to it is being made in reliance on an exemption from the registration requirements of the 1933 Act provided by Regulation S;
5.the Transferee is not a U.S. Person (as defined in Regulation S);
6.the Transferee is not purchasing such Notes with a view to the resale, distribution or other disposition thereof in the United States or to a U.S. Person;
7.the Transferee will, and each account for which it is purchasing will, hold and transfer at least the minimum denomination of Notes;
8.the Transferee understands that the Manager, the Issuer and the Servicer may receive a list of participants holding positions in the Notes from one or more book-entry depositories;
9.the Transferee understands that the Manager, the Issuer and the Servicer may receive (i) a list of Note Owners that have requested access to the Trustee’s password-protected website or that have voluntarily registered as a Note Owner with the Trustee and (ii) copies of Noteholder confirmations of representations and warranties executed to obtain access to the Trustee’s password-protected website;
10.the Transferee will provide to each person to whom it transfers Notes notices of any restrictions on transfer of such Notes;
11.it is not a Competitor;
12.either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise) nor a governmental, church, non-U.S. or other plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of this Note (or any interest herein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code;
13.if it is using assets of a Plan to acquire or hold the Notes or any interest therein, then such purchaser or transferee, as applicable, further represents that (i) none of WRI, the Guarantors, the Issuer, the Initial Purchasers, the Trustee, the Servicer or the Back-Up Manager or any of their respective affiliates or agents (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied upon for any advice, with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and (ii) the decision to invest in the Notes has been made at the recommendation or direction of an independent fiduciary who (a) is independent of the Transaction Parties; (b) is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies; (c) is a fiduciary (under ERISA and/or Section
4975 of the Code) with respect to the Plan’s investment in the Notes and is responsible for exercising independent judgment in evaluating the investment in the Notes; and (d) is aware of and acknowledges that (1) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the Plan’s investment in the Notes, and (2) the Transaction Parties have a financial interest in the Plan’s investment in the Notes; and
14.it is:
_____ (check if applicable) a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”); or
_____ (check if applicable) not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
The representations made pursuant to clause 6 above shall be deemed to be made on each day from the date the Transferee acquires any interest in any Note through and including the date on which such Transferee disposes of its interest in the applicable Note. The Transferee agrees to provide prompt written notice to the Issuer, the Note Registrar and the Trustee of any change of the status of the Transferee that would cause it to breach the representations made in clause 6 above. The Transferee further agrees to indemnify and hold harmless the Issuer, the Trustee, the Note Registrar and the Initial Purchasers and their respective affiliates from any cost, damage or loss incurred by them as a result of the inaccuracy or breach of the foregoing representations, warranties and agreements in this clause and clause 6 above. Any purported transfer of the Notes (or interest therein) that does not comply with the requirements of this clause and clause 6 above shall be null and void ab initio.
The Transferee understands that the Issuer, the Trustee, the Note Registrar and their respective counsel will rely upon the accuracy and truth of the foregoing representations, and are irrevocably authorized to produce this certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby, and the Transferee hereby consents to such reliance and authorization.
| | | | | | | | | | | | | | |
| | | [Name of Transferee] |
| | | | |
| | | By: | |
| | | Name: |
| | | Title: |
| Dated: | | | | |
| | | | |
Registered Name (if Nominee): | | |
|
| | | | |
| | | | |
| cc: | c/o Wingstop Inc. | | | |
| 15505 Wright Brothers Drive | | |
| Addison, TX 75001 | | | |
| Attention: Gerry McGrath | | | |
EXHIBIT B-3
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN TEMPORARY REGULATION S GLOBAL NOTES
OR PERMANENT REGULATION S GLOBAL NOTES
TO INTERESTS IN RULE 144A GLOBAL NOTES
Citibank, N.A., as Trustee
480 Washington Boulevard
16th Floor
Jersey City, NJ 07310
Attention: Securities Window – Wingstop Funding LLC
Re: Wingstop Funding LLC $500,000,000 Series 2024-1 5.858% Fixed Rate Senior Secured Notes, Class A-2 (the “Notes”)
Reference is hereby made to (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (as amended by the First Supplement to the Second Amended and Restated Base Indenture, dated as of December 3, 2024 and as further amended, amended and restated, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2024-1 Supplement to the Base Indenture, dated as of December 3, 2024 (the “Series 2024-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2024-1 Supplement are referred to herein collectively as the “Indenture”. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture.
This certificate relates to U.S.$ [ ] aggregate principal amount of Notes which are held in the form of [an interest in a Temporary Regulation S Global Note with DTC][an interest in an Permanent Regulation S Global Note with DTC] (CUSIP (CINS) No. U97015 AD0) in the name of [_____] [name of transferor] (the “Transferor”), who wishes to effect the transfer of such Notes in exchange for an equivalent beneficial interest in a Rule 144A Global Note in the name of [_____] [name of transferee] (the “Transferee”).
In connection with such request, and in respect of such Notes, the Transferee does hereby certify that either (A) the Transferee is the Issuer or an Affiliate of the Issuer or (B) such Notes are being transferred in accordance with (i) the applicable transfer restrictions set forth in the Indenture and in the Offering Memorandum, date November 19, 2024, relating to the Notes and (ii) Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and any applicable securities laws of any state of the United States or any other jurisdiction, and that the Transferee is purchasing the Notes for its own account or one or more accounts with respect to which the Transferee exercises sole investment discretion, and the Transferee and any such account represent, warrant and agree that either it is the Issuer or an Affiliate of the Issuer or:
1.it is (a) a Qualified Institutional Buyer and not a Competitor, (b) aware that the sale to it is being made in reliance on Rule 144A and (c) acquiring such Notes for its own account or for the account of another person who is a Qualified Institutional Buyer and not a Competitor with respect to which it exercise sole investment discretion;
2.it is not formed for the purpose of investing in the Notes, except where each beneficial owner is a Qualified Institutional Buyer;
3.it will, and each account for which it is purchasing will, hold and transfer at least the minimum denomination of Notes;
4.it understands that the Manager, the Issuer and the Servicer may receive a list of participants holding positions in the Notes from one or more book-entry depositories;
5.it understands that the Manager, the Issuer and the Servicer may receive (i) a list of Note Owners that have requested access to the Trustee’s password-protected website or that have voluntarily registered as a Note Owner with the Trustee and (ii) copies of Noteholder confirmations of representations and warranties executed to obtain access to the Trustee’s password-protected website;
6.it will provide to each person to whom it transfers Notes notices of any restrictions on transfer of such Notes;
7.it is not a Competitor;
8.either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise) nor a governmental, church, non-U.S. or other plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of this Note (or any interest herein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code;
9.if it is using assets of a Plan to acquire or hold the Notes or any interest therein, then such purchaser or transferee, as applicable, further represents that (i) none of WRI, the Guarantors, the Issuer, the Initial Purchasers, the Trustee, the Servicer or the Back-Up Manager or any of their respective affiliates or agents (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied upon for any advice, with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and (ii) the decision to invest in the Notes has been made at the recommendation or direction of an independent fiduciary who (a) is independent of the Transaction Parties; (b) is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies; (c) is a fiduciary (under ERISA and/or Section 4975 of the Code) with respect to the Plan’s investment in the Notes and is responsible for exercising independent judgment in evaluating the investment in the Notes; and (d) is aware of and acknowledges that (1) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the Plan’s investment in the Notes, and (2) the Transaction Parties have a financial interest in the Plan’s investment in the Notes; and
10.it is:
_____ (check if applicable) a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”); or
_____ (check if applicable) not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
The Transferee understands that the Issuer, the Trustee, the Note Registrar and their respective counsel will rely upon the accuracy and truth of the foregoing representations, and are irrevocably authorized to produce this certificate or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to any matter covered hereby, and the Transferee hereby consents and agrees to such reliance and authorization.
| | | | | | | | | | | | | | |
| | | [Name of Transferee] |
| | | | |
| | | By: | |
| | | Name: |
| | | Title: |
| Dated: | | | | |
| | | | |
Registered Name (if Nominee): | | |
|
| | | | |
| | | | |
| cc: | c/o Wingstop Inc. | | | |
| 15505 Wright Brothers Drive | | |
| Addison, TX 75001 | | | |
| Attention: Gerry McGrath | | | |
FIRST SUPPLEMENT TO SERIES 2022-1 SUPPLEMENT
THIS FIRST SUPPLEMENT TO SERIES 2022-1 SUPPLEMENT, dated as of December 3, 2024 (this “Supplement”), by and between WINGSTOP FUNDING LLC, a Delaware limited liability company (the “Issuer”), and CITIBANK, N.A., a national banking association, as trustee (in such capacity, the “Trustee”) and as Series 2022-1 Securities Intermediary, to the Series 2022-1 Supplement, dated as of March 9, 2022 (the “Series Supplement”), by and between the Issuer and Citibank, N.A., as Trustee and as Series 2022-1 Securities Intermediary, which supplements the Second Amended and Restated Base Indenture, dated as of March 9, 2022, by and between the Issuer and Citibank, N.A., as Trustee and as Series 2022-1 Securities Intermediary (as amended, restated, amended and restated, supplement or otherwise modified from time to time, exclusive of Series Supplements, the “Base Indenture”). Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms or incorporated by reference in Annex A to the Series Supplement.
WHEREAS, the Issuer desires to amend the Series Supplement in accordance with Section 5.7 of the Series Supplement and Sections 2.2 and 13.1 of the Base Indenture as set forth herein;
WHEREAS, pursuant to the Series Supplement, the Issuer issued, among other Notes, the Series 2022-1 Variable Funding Senior Notes, Class A-1 (the “Original Series 2022-1 Class A-1 Notes”);
WHEREAS, the Issuer desires to issue Additional Notes that will be designated, upon issuance, as Series 2022-1 Class A-1 Notes (the “Additional Series 2022-1 Class A-1 Notes” and together with the Original Series 2022-1 Class A-1 Notes, as referred to herein, such Class or Notes thereof, as the context requires, the “Series 2022-1 Class A-1 Notes”);
WHEREAS, Section 2.2 of the Base Indenture provides, among other things, that Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued pursuant to a Supplement to the related Series Supplement;
WHEREAS, each of the conditions set forth in Section 2.2 of the Base Indenture have been satisfied or will be satisfied as of the date of this Supplement for the issuance of the Additional Series 2022-1 Class A-1 Notes;
WHEREAS, pursuant to Section 5.7 of the Series Supplement, the Series Supplement may not be modified or amended except in accordance with the terms of the Base Indenture;
WHEREAS, Section 13.1(a)(i) of the Base Indenture provides, among other things, that the Issuer and the Trustee, without the consent of any Noteholder, the Control Party, the Controlling Class Representative or any other Secured Party, may amend the terms of any Series Supplement to issue Additional Notes of an existing Series, Class, Subclass or Tranche of Notes of Notes so long, as evidenced by an Officer’s Certificate delivered to the Trustee and the Servicer, such action could not reasonably be expected to adversely affect in any material respect the interests of any Noteholder, any Note Owner, the Trustee, the Servicer, the Back-Up Manager or any other Secured Party;
WHEREAS, Section 13.1(a)(xx) of the Base Indenture provides, among other things, that the Issuer and the Trustee, without the consent of any Noteholder, the Control Party, the Controlling Class Representative or any other Secured Party, may amend the terms of any Series Supplement to make changes relating to a Series of Class A-1 Notes, so long as (1) the Noteholders required to consent to such amendment or modification pursuant to the Series 2022-1 Class A-1 Note Purchase Agreement consent thereto and (2) as evidenced by an Officer’s Certificate delivered to the Trustee and the Servicer, such
action could not reasonably be expected to adversely affect in any material respect the interests of any Noteholder, any Note Owner, the Trustee, the Servicer, the Back-Up Manager or any other Secured Party;
WHEREAS, the holders of the Original Series 2022-1 Class A-1 Notes are the only Noteholders affected by certain proposed amendments to the Series Supplement (the “Affected Noteholders”);
WHEREAS, (x) each amendment to the Series Supplement to issue Additional Series 2022-1 Class A-1 Notes as set forth in Exhibit A attached hereto is being made pursuant to Section 13.1(a)(i) of the Base Indenture and (y) each of the other amendments to the Series Supplement as set forth in Exhibit A attached hereto is being made pursuant to Section 13.1(a)(xx) of the Base Indenture, as described in the foregoing recitals;
WHEREAS, this Supplement has been duly authorized by all necessary limited liability company actions on the part of the Issuer, and the Issuer has delivered the required notices to the amendments set forth herein;
WHEREAS, the Issuer has delivered to the Trustee and the Servicer, as applicable, an Officer’s Certificate and an Opinion of Counsel that this Supplement is authorized or permitted by the Base Indenture and that the conditions precedent set forth in the Base Indenture with respect thereto have been satisfied pursuant to Sections 13.3, 13.6 and 14.3 of the Base Indenture; and
WHEREAS, each Affected Noteholder has granted its consent to this Supplement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendments to the Series 2022-1 Supplement.
The Series 2022-1 Supplement, and all annexes and exhibits thereto, is hereby amended, with effect from the date hereof, (a) to delete the red or green stricken text (indicated textually in the same manner as the following examples: stricken text and stricken text) and (b) to add the blue or green double-underlined text (indicated textually in the same manner as the following examples: double-underlined text and double-underlined text), in each case, as set forth in the marked copy of the Series 2022-1 Supplement attached as Exhibit A hereto and made a part hereof for all purposes.
Section 2. Consent Recommendation.
Each Affected Noteholder hereby waives any requirement for the Control Party to deliver a Consent Recommendation in connection with this Supplement.
Section 3. Company Request.
The Trustee hereby waives any noncompliance with the five (5) Business Day notice period regarding the Company Request and delivery thereof as set forth in Section 2.2(b) of the Base Indenture in connection with the issuance of the Additional Series 2022-1 Class A-1 Notes.
Section 4. Binding Effect.
This Supplement shall inure to the benefit of and be binding on the respective successors and assigns of the parties hereto, each Noteholder and each other Secured Party.
Section 5. Counterparts.
This Supplement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument.
Section 6. Governing Law.
THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section 7. Amendments.
This Supplement may not be modified or amended except in accordance with the terms of the Base Indenture.
Section 8. Entire Agreement.
This Supplement, together with the exhibits and schedules hereto and the other Indenture Documents, contains a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all previous oral statements and other writings with respect thereto.
Section 9. Matters relating to the Trustee and the Series 2022-1 Securities Intermediary.
Neither the Trustee nor the Series 2022-1 Securities Intermediary makes any representations or warranties as to the correctness of the recitals contained herein, which shall be taken as statements of the Issuer, or the validity or sufficiency of this Supplement and neither the Trustee nor the Series 2022-1 Securities Intermediary shall be accountable or responsible for or with respect to nor shall the Trustee or the Series 2022-1 Securities Intermediary have any responsibility for provisions thereof. In entering into this Supplement, the Trustee and the Series 2022-1 Securities Intermediary shall have all of the rights, powers, duties and obligations of the Trustee and the Series 2022-1 Securities Intermediary under the Base Indenture and any other Transaction Document to which the Trustee or the Series 2022-1 Securities Intermediary is party and, for the avoidance of doubt, shall be entitled to the benefit of every provision thereunder relating to the conduct of or affecting the liability of or affording protection to the Trustee and the Series 2022-1 Securities Intermediary.
Section 10. Representations and Warranties.
The Issuer represents and warrants to each other party hereto that this Supplement has been duly and validly executed and delivered by the Issuer and constitutes its legal, valid and binding obligation, enforceable against the Issuer in accordance with its terms.
Section 11. Electronic Signatures and Transmission.
For purposes of this Supplement, any reference to “written” or “in writing” means any form of written communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by Electronic Transmission. “Electronic Transmission” means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process. The Trustee is authorized to accept written instructions, directions, reports, notices or other communications delivered by Electronic Transmission and shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by Electronic Transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such Electronic Transmission, and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties. Any requirement in the Indenture that a document is to be signed or authenticated by “manual signature” or similar language shall not be deemed to prohibit signature to be by facsimile or electronic signature and shall not be deemed to prohibit delivery thereof by Electronic Transmission. Notwithstanding anything to the contrary in this Supplement, any and all communications (both text and attachments) by or from the Trustee that the Trustee in its sole discretion deems to contain confidential, proprietary and/or sensitive information and sent by Electronic Transmission will be encrypted. The recipient of the Electronic Transmission will be required to complete a one-time registration process.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Issuer, the Trustee and the Series 2022-1 Securities Intermediary have caused this Supplement to be duly executed by its respective duly authorized officer as of the day and year first written above.
| | | | | | | | | | | | | | |
| | | WINGSTOP FUNDING LLC,
as Issuer |
| | |
| | | | |
| | | By: | /s/ Alex Kaleida |
| | | | Name: Alex R. Kaleida |
| | | | Title: Senior Vice President and Chief Financial Officer |
| | | | |
[First Supplement to Series 2022-1 Supplement]
| | | | | | | | | | | | | | |
| | | CITIBANK, N.A., in its capacity as Trustee and as Series 2022-1 Securities Intermediary |
| | |
| | | | |
| | | By: | /s/ Trang Tran-Rojas |
| | | | Name: Trang Tran-Rojas |
| | | | Title: Senior Trust Officer |
| | | | |
| | | | |
| | | | |
| | | | |
[First Supplement to Series 2022-1 Supplement]
| | | | | | | | | | | |
| | CONSENTED TO BY EACH AFFECTED NOTEHOLDER: |
| |
| | | |
| | MORGAN STANLEY BANK, N.A.,
as Note Purchaser |
| |
| | | |
| | By: | /s/ Stephen Marchi |
| | | Name: Stephen Marchi |
| | | Title: Authorized Signatory |
| | | |
| | MORGAN STANLEY BANK, N.A.,
as related Funding Agent |
| |
| | | |
| | By: | /s/ Stephen Marchi |
| | | Name: Stephen Marchi |
| | | Title: Authorized Signatory |
| | | |
| | MORGAN STANLEY BANK, N.A.,
as L/C Provider |
| |
| | | |
| | By: | /s/ Stephen Marchi |
| | | Name: Stephen Marchi |
| | | Title: Authorized Signatory |
[First Supplement to Series 2022-1 Supplement]
| | | | | | | | | | | |
| | BARCLAY BANK PLC,
as Note Purchaser |
| |
| | | |
| | By: | /s/ Kinnary Armstrong |
| | | Name: Kinnary Armstrong |
| | | Title: Director |
| | | |
| | BARCLAY BANK PLC,
as related Funding Agent |
| |
| | | |
| | By: | /s/ Kinnary Armstrong |
| | | Name: Kinnary Armstrong |
| | | Title: Director |
[First Supplement to Series 2022-1 Supplement]
EXHIBIT A
[Attached]
CONFORMED THROUGH FIRST SUPPLEMENT, DATED AS OF DECEMBER 3, 2024
WINGSTOP FUNDING LLC,
as Issuer
and
CITIBANK, N.A.,
as Trustee and Series 2022-1 Securities Intermediary
SERIES 2022-1 SUPPLEMENT
Dated as of March 9, 2022
to
SECOND AMENDED AND RESTATED BASE INDENTURE
Dated as of March 9, 2022
$200,000,000300,000,000 Series 2022-1 Variable Funding Senior Notes, Class A-1
$250,000,000 Series 2022-1 3.734% Fixed Rate Senior Secured Notes, Class A-2
Table of Contents
| | | | | | | | | | | |
| | | Page |
| PRELIMINARY STATEMENT | 1 |
| | | |
| DESIGNATION 1 | 1 |
| | | |
| ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION | 2 |
| | | |
| ARTICLE II INITIAL ISSUANCE, INCREASES AND DECREASES OF SERIES 2022-1 CLASS A-1 OUTSTANDING PRINCIPAL AMOUNT | 2 |
| Section 2.1 | Procedures for Issuing and Increasing the Series 2022-1 Class A 1 Outstanding Principal Amount | 2 |
| Section 2.2 | Procedures for Decreasing the Series 2022-1 Class A-1 Outstanding Principal Amount | 3 |
| | | |
| | | |
| ARTICLE III SERIES 2024-1 ALLOCATIONS; PAYMENTS | 4 |
| Section 3.1 | Allocations with Respect to the Series 2022-1 Notes | 4 |
| Section 3.2 | Application of Collections on Weekly Allocation Dates to the Series 2022-1 Notes | 4 |
| Section 3.3 | Certain Distributions from Series 2022-1 Distribution Accounts | 4 |
| Section 3.4 | Series 2022-1 Class A-1 Interest and Certain Fees | 5 |
| Section 3.5 | Series 2022-1 Class A-2 Interest | 6 |
| Section 3.6 | Payment of Series 2022-1 Note Principal | 7 |
| Section 3.7 | Series 2022-1 Class A-1 Distribution Account | 12 |
| Section 3.8 | Series 2022-1 Class A-2 Distribution Account | 13 |
| Section 3.9 | Trustee as Securities Intermediary | 13 |
| Section 3.10 | Manager | 15 |
| Section 3.11 | Replacement of Ineligible Accounts | 15 |
| | | |
| ARTICLE IV FORM OF SERIES 2024-1 CLASS A-2 NOTES | 15 |
| Section 4.1 | Issuance of Series 2022-1 Class A-1 Notes | 15 |
| Section 4.2 | Issuance of Series 2022-1 Class A-2 Notes | 17 |
| Section 4.3 | Transfer Restrictions of Series 2022-1 Class A-1 Notes | 18 |
| Section 4.4 | Transfer Restrictions of Series 2022-1 Class A-2 Notes | 20 |
| Section 4.5 | Note Owner Representations and Warranties | 25 |
| Section 4.6 | Limitation on Liability | 27 |
| | | |
| ARTICLE V GENERAL | 27 |
| Section 5.1 | Information | 27 |
| Section 5.2 | Exhibits | 28 |
| Section 5.3 | Ratification of Base Indenture | 28 |
| Section 5.4 | Notices to Rating Agency | 28 |
| | | | | | | | | | | |
| Section 5.5 | Counterparts | 28 |
| Section 5.6 | Governing Law | 29 |
| Section 5.7 | Amendments | 29 |
| Section 5.8 | Termination of Series Supplement | 29 |
| Section 5.9 | Entire Agreement | 29 |
| | | | | |
| ANNEXES | |
| |
| Annex A | Series 2022-1 Supplemental Definitions List |
| |
| EXHIBITS | |
| |
| Exhibit A: | Form of Mandatory/Voluntary Decrease Notice for Series 2022-1 Class A-1 Notes |
| Exhibit B-1: | Form of Series 2022-1 Class A-1 Advance Note |
Exhibit B-1-2: | Form of Series 2022-1 Class A-1 L/C Note |
| Exhibit B-2-1: | Form of Rule 144A Global Series 2022-1 Class A-2 Note |
Exhibit B-2-2: | Form of Temporary Regulation S Global Series 2022-1 Class A-2 Note |
Exhibit B-2-3: | Form of Permanent Regulation S Global Series 2022-1 Class A-2 Note |
| Exhibit C-1: | Form of Transferee Certificate - Series 2022-1 Class A-1 Notes |
Exhibit C-2: | Form of Transferee Certificate - Series 2022-1 Class A-2 Notes, Rule 144A to Temporary Regulation S |
| Exhibit C-3: | Form of Transferee Certificate - Series 2022-1 Class A-2 Notes, Rule 144A to Permanent Regulation S |
Exhibit C-4: | Form of Transferee Certificate - Series 2022-1 Class A-2 Notes, Temporary Regulation S or Permanent Regulation S to Rule 144A |
| Exhibit D: | Form of Confirmation of Registration of Uncertificated Notes |
This SERIES 2022-1 SUPPLEMENT, dated as of March 9, 2022 (this “Series Supplement”), is entered into by and between WINGSTOP FUNDING LLC, a Delaware limited liability company, as the issuer (the “Issuer”), and CITIBANK, N.A., a national banking association, as the trustee (in such capacity, the “Trustee”) and as Series 2022-1 Securities Intermediary, and is a Series Supplement to the Second Amended and Restated Base Indenture, dated as of March 9, 2022, by and between the Issuer and Citibank, N.A., as the Trustee and as Securities Intermediary (as amended by the First Supplement to the Second Amended and Restated Base Indenture, dated as of December 3, 2024 and as further amended, modified or supplemented from time to time, exclusive of Series Supplements, the “Base Indenture”).
PRELIMINARY STATEMENT
WHEREAS, Sections 2.2 and 13.1 of the Base Indenture provide, among other things, that the Issuer and the Trustee may at any time and from time to time enter into a Series Supplement to the Base Indenture for the purpose of authorizing the issuance of one or more Series of Notes (as defined in Annex A of the Base Indenture) upon satisfaction of the conditions set forth therein; and
WHEREAS, all such conditions have been met for the issuance of the Series of Notes authorized hereunder.
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
There is hereby created a Series of Notes to be issued pursuant to the Base Indenture and this Series Supplement, and such Series of Notes shall be designated as the Series 2022-1 Notes. On the Series 2022-1 Closing Date, two (2) Classes of Notes of such Series of Notes shall bewere issued: (a) Series 2022-1 Variable Funding Senior Notes, Class A-1 (as referred to herein, the “Original Series 2022-1 Class A-1 Notes”) and (b) Series 2022-1 3.734% Fixed Rate Senior Secured Notes, Class A-2 (as referred to herein, the “Series 2022-1 Class A-2 Notes”). On the Series 2022-1 Upsize Closing Date, the Issuer shall issue additional Series 2022-1 Variable Funding Senior Notes, Class A-1 (as referred to herein, such Class or Notes thereof, as the context requires, the “Additional Series 2022-1 Class A-1 Notes” and, together with the Original Series 2022-1 Class A-1 Notes, as referred to herein, such Class or Notes thereof, as the context requires, the “Series 2022-1 Class A-1 Notes”). The Series 2022-1 Class A-1 Notes shall be issued inare comprised of two (2) Subclasses: (i) Series 2022-1 Class A-1 Advance Notes (as referred to herein, the “Series 2022-1 Class A-1 Advance Notes”) in an aggregate maximum principal amount of $300,000,000, which shall consist of $200,000,000 in aggregate maximum principal amount of Series 2022-1 Class A-1 Advance Notes issued on the Series 2022-1 Closing Date (as referred to herein, the “Original Series 2022-1 Class A-1 Advance Notes”) and an additional $100,000,000 in aggregate maximum principal amount of Series 2022-1 Class A-1 Advance Notes to be issued on the Series 2022-1 Upsize Closing Date (as referred to herein, the “Additional Series 2022-1 Class A-1 Advance Notes”) and (ii) Series 2022-1 Class A-1 L/C Notes (as referred to herein, the “Series 2022-1 Class A-1 L/C Notes”).
For purposes of the Base Indenture and this Series Supplement, the Series 2022-1 Class A-1 Notes and the Series 2022-1 Class A-2 Notes shall be deemed to be separate Classes of “Senior Notes”.
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
All capitalized terms used herein (including in the preamble and the recitals hereto) and not otherwise defined herein shall have the meanings assigned to such terms in the Series 2022-1 Supplemental Definitions List attached hereto as Annex A (the “Series 2022-1 Supplemental Definitions List”) as such Series 2022-1 Supplemental Definitions List may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof. All capitalized terms not otherwise defined herein or therein shall have the meanings assigned thereto in the Base Indenture or the Base Indenture Definitions List attached to the Base Indenture as Annex A thereto, as such Base Indenture or Base Indenture Definitions List may be amended, supplemented or otherwise modified from time to time in accordance with the terms of the Base Indenture. Unless otherwise specified herein, all Article, Exhibit, Section or Subsection references herein shall refer to Articles, Exhibits, Sections or Subsections of this Series Supplement. Unless otherwise stated herein, as the context otherwise requires or if such term is otherwise defined in the Base Indenture, each capitalized term used or defined herein shall relate only to the Series 2022-1 Notes and not to any other Series of Notes issued by the Issuer. The rules of construction set forth in Section 1.4 of the Base Indenture shall apply for all purposes under this Series Supplement.
ARTICLE II
INITIAL ISSUANCE, INCREASES AND DECREASES OF
SERIES 2022-1 CLASS A-1 OUTSTANDING PRINCIPAL AMOUNT
Section 2.1 Procedures for Issuing and Increasing the Series 2022-1 Class A-1 Outstanding Principal Amount.
(a) Subject to satisfaction of the conditions precedent to the making of Series 2022-1 Class A-1 Advances set forth in the Series 2022-1 Class A-1 Note Purchase Agreement, including the consent of the Administrative Agent and the Investor Groups, where applicable (i) from and after the Series 2022-1 Closing Date, the Issuer may cause the Series 2022-1 Class A-1 Initial Advance Principal Amount to become outstanding by drawing ratably, at par, the initial principal amounts of the Series 2022-1 Class A-1 Advance Notes corresponding to the aggregate amount of the initial Series 2022-1 Class A-1 Advances made on or after the Series 2022-1 Closing Date (the “Series 2022-1 Class A-1 Initial Advance”) on any Business Day during the Commitment Term and (ii) on any Business Day after the Series 2022-1 Class A-1 Initial Advance during the Commitment Term (subject to the terms and conditions of the Series 2022-1 Class A-1 Note Purchase Agreement), the Issuer may increase the Series 2022-1 Class A-1 Outstanding Principal Amount (such increase being referred to as an “Increase”), by drawing ratably (or as otherwise set forth in the Series 2022-1 Class A-1 Note Purchase Agreement), at par, additional principal amounts on the Series 2022-1 Class A-1 Advance Notes corresponding to the aggregate amount of the Series 2022-1 Class A-1 Advances made on such Business Day; provided that at no time may the Series 2022-1 Class A-1 Outstanding Principal Amount exceed the applicable Series 2022-1 Class A-1 Notes Maximum Principal Amount. The Series 2022-1 Class A-1 Initial Advance has been and each Increase shall be made in accordance with the provisions of Sections 2.02 and 2.03 of the Series 2022-1 Class A-1 Note Purchase Agreement and shall be ratably (except as otherwise set forth in the Series 2022-1 Class A-1 Note Purchase Agreement) allocated among the Series 2022-1 Class A-1 Noteholders (other than the Series 2022-1 Class A-1 Subfacility Noteholders in their capacity as such) as provided therein. Proceeds from the Series 2022-1 Class A-1 Initial Advance were paid and each Increase shall be paid as directed by the Issuer in the applicable Series 2022-1 Class A-1 Advance Request or as otherwise set forth in the Series 2022-1 Class A-1 Note Purchase Agreement. Upon receipt of written notice from the Issuer or the Series 2022-1 Class A-1 Administrative Agent of the Series 2022-1 Class A-1 Initial Advance and any Increase, the Trustee shall indicate in its books and records the amount of the Series 2022-1 Class A-1 Initial Advance or such Increase, as applicable.
(b) Subject to satisfaction of the applicable conditions precedent set forth in the Series 2022-1 Class A-1 Note Purchase Agreement, onas of the Series 2022-1 Closing Date, the Issuer maywas permitted to cause the Series 2022-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount to become outstanding by drawing, at par, the initial principal amounts of the Series 2022-1 Class A-1 L/C Notes corresponding to the aggregate Undrawn L/C Face Amount of the Letters of Credit issued on the Series 2022-1 Closing Date pursuant to Section 2.07 of the Series 2022-1 Class A-1 Note Purchase Agreement; provided that at no time may the Series 2022-1 Class A-1 Outstanding Principal Amount exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount. The procedures relating to increases in the Series 2022-1 Class A-1 Outstanding Subfacility Amount (each such increase referred to as a “Subfacility Increase”) through issuance or incurrence of Series 2022-1 Class A-1 L/C Obligations are set forth in the Series 2022-1 Class A-1 Note Purchase Agreement. Upon receipt of written notice from the Issuer or the Series 2022-1 Class A-1 Administrative Agent of the issuance of the drawing of the Series 2022-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount or any Subfacility Increase, the Trustee shall indicate in its books and records the amount of each such issuance, draw or Subfacility Increase.
Section 2.2 Procedures for Decreasing the Series 2022-1 Class A-1 Outstanding Principal Amount.
(a) Mandatory Decrease. Whenever a Series 2022-1 Class A-1 Excess Principal Event shall have occurred, funds sufficient to decrease the Series 2022-1 Class A-1 Outstanding Principal Amount by the lesser of (x) the amount necessary, so that after giving effect to such decrease of the Series 2022-1 Class A-1 Outstanding Principal Amount on such date, no such Series 2022-1 Class A-1 Excess Principal Event shall exist and (y) the amount that would decrease the Series 2022-1 Class A-1 Outstanding Principal Amount to zero (each decrease of the Series 2022-1 Class A-1 Outstanding Principal Amount pursuant to this Section 2.2(a), a “Mandatory Decrease”) shall be due and payable on the Weekly Allocation Date immediately following the date on which the Manager or the Issuer obtains knowledge of such Series 2022-1 Class A-1 Excess Principal Event, in accordance with the Priority of Payments. The Trustee shall distribute each Mandatory Decrease pursuant to the written direction of the Issuer in the applicable Weekly Manager’s Certificate, which shall include the calculation of such Mandatory Decrease and the portion thereof payable to each Series 2022-1 Class A-1-VFN Noteholder, any associated Breakage Amounts and the portion thereof payable to each Series 2022-1 Class A-1-VFN Noteholder, and and distribution instructions in accordance with Section 4.02 of the Series 2022-1 Class A-1 Note Purchase Agreement. Any associated Series 2022-1 Class A-1 Breakage Amounts incurred as a result of such decrease (calculated in accordance with the Series 2022-1 Class A-1 Note Purchase Agreement) shall be deposited into the Collection Account for allocation as Series 2022-1 Class A-1 Other Amounts pursuant to the Priority of Payments on the Weekly Allocation Date related to the Weekly Manager’s Certificate indicating such Mandatory Decrease. Upon obtaining Actual Knowledge of such a Series 2022-1 Class A-1 Excess Principal Event, the Issuer promptly, but in any event within two (2) Business Days, shall deliver written notice (substantially in the form set forth in Exhibit A hereto (which may be given by e-mail of a .pdf or similar file) of the need for any such Mandatory Decreases to the Trustee and the Series 2022-1 Class A-1 Administrative Agent.
(b) Voluntary Decrease. Except as provided in Section 2.2(d), on any Business Day, upon at least three (3) Business Days’ prior written notice to the Series 2022-1 Class A-1 Administrative Agent and the Trustee in the applicable Weekly Manager’s Certificate, Quarterly Noteholders’ Report, or otherwise substantially in the form set forth in Exhibit A hereto, the Issuer may decrease the Series 2022-1 Class A-1 Outstanding Principal Amount (each such decrease of the Series 2022-1 Class A-1 Outstanding Principal Amount pursuant to this Section 2.2(b), a “Voluntary Decrease”) by depositing in the Series 2022-1 Class A-1 Distribution Account not later than 10:00 a.m. (New York City time) on the date specified as the decrease date in the prior written notice referred to above and providing a written report to the Trustee directing the Trustee to distribute in accordance with the order of distribution of principal payments set forth in Section 4.02 of the Series 2022-1 Class A-1 Note Purchase Agreement (which report shall include the calculation of such amounts and the portion thereof payable to each Series 2022-1 Class A-1-VFN Noteholder, any associated Breakage Amounts and the portion thereof payable to each Series 2022-1 Class A-1-VFN Noteholder, and instructions for the distributions thereof) an amount (subject to the last sentence of this Section 2.2(b)) up to the Series 2022-1 Class A-1 Outstanding Principal Amount equal to the amount of such Voluntary Decrease;
provided that to the extent the deposit into the Series 2022-1 Class A-1 Distribution Account described above is not made by 10:00 a.m. (New York City time) on a Business Day, the same shall be deemed to be deposited on the following Business Day. Each such Voluntary Decrease shall be in a minimum principal amount as provided in the Series 2022-1 Class A-1 Note Purchase Agreement. Any associated Series 2022-1 Class A-1 Breakage Amounts incurred as a result of such decrease (calculated in accordance with the Series 2022-1 Class A-1 Note Purchase Agreement) shall be deposited into the Collection Account for allocation as Series 2022-1 Class A-1 Other Amounts pursuant to the Priority of Payments on the Weekly Allocation Date related to the Weekly Manager’s Certificate indicating such Voluntary Decrease. It shall be a condition to any Voluntary Decrease that the amount on deposit in the Collection Account is sufficient to pay the Trustee, the Servicer and the Manager, as applicable, for any unreimbursed Advances and Manager Advances (in each case, with interest thereon at the Advance Interest Rate), if any, on the Weekly Allocation Date immediately following such Voluntary Decrease.
(c) Upon distribution to the Series 2022-1 Class A-1 Distribution Account of principal of the Series 2022-1 Class A-1 Advance Notes in connection with each Decrease, the Trustee shall (i) remit such amounts to the Holders of the Series 2022-1 Class A-1 Advance Notes and (ii) indicate in its books and records such Decreasebased on the applicable Weekly Manager’s Certificate, Quarterly Noteholders’ Report, or otherwise substantially in the form set forth in Exhibit A hereto .
(d) The Series 2022-1 Class A-1 Note Purchase Agreement sets forth additional procedures relating to decreases in the Series 2022-1 Class A-1 Outstanding Subfacility Amount (each such decrease, together with any Voluntary Decrease or Mandatory Decrease allocated to the Series 2022-1 Class A-1 Subfacility Noteholders, referred to herein as a “Subfacility Decrease”) through borrowings of Series 2022-1 Class A-1 Advances to repay Series 2022-1 Class A-1 L/C Obligations. Upon receipt of written notice from the Issuer or the Series 2022-1 Class A-1 Administrative Agent of any Subfacility Decrease, the Trustee shall indicate in its books and records the amount of such Subfacility Decrease.
ARTICLE III
SERIES 2022-1 ALLOCATIONS; PAYMENTS
With respect to the Series 2022-1 Notes only, the following shall apply:
Section 3.1 Allocations with Respect to the Series 2022-1 Notes. On the Series 2022-1 Closing Date, (i) the net proceeds from the issuance and sale of the Series 2022-1 Class A-2 Notes to the Initial Purchaser shall bewere paid to, or at the direction of, the Issuer and (ii) the Issuer shall applyapplied such net proceeds to, among other things, make an initial deposit into the Senior Notes Interest Reserve Account and/or arrange for the issuance of an Interest Reserve Letter of Credit in an aggregate then undrawn and unexpired face amount equal to or, at the election of the Manager, greater than the Initial Senior Notes Interest Reserve Deposit.
Section 3.2 Application of Collections on Weekly Allocation Dates to the Series 2022-1 Notes. On each Weekly Allocation Date, the Issuer (or the Manager on its behalf) shall deliver a Weekly Manager’s Certificate to the Trustee, which Weekly Manager’s Certificate or, if applicable, an Omitted Payable Sums Certification, will instruct the Trustee to allocate from the Collection Account to the applicable Indenture Trust Account all amounts relating to the Series 2022-1 Notes pursuant to, and to the extent that funds are available therefor in accordance with the provisions of, the Priority of Payments.
Section 3.3 Certain Distributions from Series 2022-1 Distribution Accounts. On each Quarterly Payment Date, based solely upon the most recent Quarterly Noteholders’ Report and in accordance with the order of priority set forth therein, the Trustee shall, in accordance with Section 6.1 of the Base Indenture, remit (i) to the Series 2022-1 Class A-1 Noteholders from the Series 2022-1 Class A-1 Distribution Account, in accordance with Section
4.02 of the Series 2022-1 Class A-1 Note Purchase Agreement, the amounts withdrawn from the Senior Notes Interest Payment Account, the Class A-1 Notes Commitment Fees Account, the Senior Notes Principal Payment Account, the Senior Notes Post-ARD Contingent Additional Interest Account or otherwise, as applicable, pursuant to Section 5.12(a), (b), (d), (h) or otherwise, as applicable, of the Base Indenture, and deposited in the Series 2022-1 Class A-1 Distribution Account for the payment of interest and fees and, to the extent applicable, principal or other amounts in respect of the Series 2022-1 Class A-1 Notes on such Quarterly Payment Date and (ii) to the Series 2022-1 Class A-2 Noteholders from the Series 2022-1 Class A-2 Distribution Account, the amounts withdrawn from the Senior Notes Interest Payment Account, the Senior Notes Principal Payment Account, the Senior Notes Post-ARD Contingent Additional Interest Account or otherwise, as applicable, pursuant to Section 5.12(a), (d), (h) or otherwise, as applicable, of the Base Indenture, and deposited in the Series 2022-1 Class A-2 Distribution Account for the payment of interest and, to the extent applicable, principal or other amounts in respect of the Series 2022-1 Class A-2 Notes on such Quarterly Payment Date.
Section 3.4 Series 2022-1 Class A-1 Interest and Certain Fees.
(a) Series 2022-1 Class A-1 Note Rate and L/C Fees. From and after the Series 2022-1 Closing Date, the applicable portions of the Series 2022-1 Class A-1 Outstanding Principal Amount will accrue (i) interest at the Series 2022-1 Class A-1 Note Rate and (ii) Series 2022-1 Class A-1 L/C Fees at the applicable rates provided therefor in the Series 2022-1 Class A-1 Note Purchase Agreement. Such accrued interest and fees will be due and payable in arrears on each Quarterly Payment Date from amounts that are made available for payment thereof (i) on any related Weekly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so made available, commencing on the Initial Quarterly Payment Date; provided, that in any event all accrued but unpaid interest and fees shall be paid in full on the Series 2022-1 Legal Final Maturity Date, on any Series 2022-1 Prepayment Date with respect to a prepayment in full of the Series 2022-1 Class A-1 Notes, on any day when the Commitments are terminated in full or on any other day on which all of the Series 2022-1 Class A-1 Outstanding Principal Amount is required to be paid in full, in each case pursuant to, and in accordance with, the provisions of the Priority of Payments. To the extent any such amount is not paid when due, such unpaid amount will accrue interest at the Series 2022-1 Class A-1 Note Rate.
(b) Temporary Commitment Availability Period Fees. From and after the Series 2022-1 Closing Date, Temporary Commitment Availability Period Fees may accrue as provided in the Series 2022-1 Class A-1 Note Purchase Agreement. Certain of such accrued fees will be due and payable in arrears on each Quarterly Payment Date, from amounts that are made available for payment thereof (i) on any related Weekly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so made available, commencing on the Initial Quarterly Payment Date. To the extent any such amount is not paid when due, such unpaid amount will accrue interest at the Series 2022-1 Class A-1 Note Rate.
(c) Series 2022-1 Class A-1 Post-Renewal Date Additional Interest. From and after the Series 2022-1 Class A-1 Notes Renewal Date (after giving effect to any extensions), if the Outstanding Principal Amount of the Series 2022-1 Class A-1 Notes has not been paid in full or otherwise refinanced in full (which refinancing may also include an extension thereof), additional interest will accrue on the Series 2022-1 Class A-1 Outstanding Principal Amount (excluding any Undrawn L/C Face Amounts included therein) at a rate equal to 5.00% per annum (the “Series 2022-1 Class A-1 Post-Renewal Date Additional Interest Rate”) in addition to the regular interest that will continue to accrue at the Series 2022-1 Class A-1 Note Rate. All computations of Series 2022-1 Class A-1 Post-Renewal Date Additional Interest (other than any accruing on any Base Rate Advances) and all computations of fees shall be made on the basis of a year of 360 days and the actual number of days elapsed, in accordance with Section 3.01(f) of the Series 2022-1 Class A-1 Note Purchase Agreement. All computations of Series 2022-1 Class A-1 Post-Renewal Date Additional Interest accruing on any Base Rate Advances shall be made on the basis of a 365 (or 366, as applicable) day year and actual number of days elapsed, in accordance with Section 3.01(f) of the Series 2022-1 Class A-1 Note Purchase Agreement. Any Series 2022-1 Class A-1 Post-Renewal Date Additional Interest will be due and payable on any applicable Quarterly Payment Date, as and when amounts are made available for payment thereof (i) on any related
Weekly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so made available, and failure to pay any Series 2022-1 Class A-1 Post-Renewal Date Additional Interest in excess of available amounts in accordance with the foregoing will not be an Event of Default and interest will not accrue on any unpaid portion thereof; provided that in any event all accrued but unpaid Series 2022-1 Class A-1 Post-Renewal Date Additional Interest shall be paid in full on the Series 2022-1 Legal Final Maturity Date or otherwise as part of any Series 2022-1 Final Payment by indicating the amount thereof on the related Quarterly Noteholders’ Report or otherwise in written instructions from the Manager to the Trustee.
(d) Series 2022-1 Class A-1 Initial Interest Accrual Period. The initial Interest Accrual Period for the Series 2022-1 Class A-1 Notes shall commence on the Series 2022-1 Closing Date and end on (but exclude) the day that is two (2) Business Days prior to the Quarterly Calculation Date preceding the Initial Quarterly Payment Date.
Section 3.5 Series 2022-1 Class A-2 Interest.
(a) Series 2022-1 Class A-2 Notes Interest. From the Series 2022-1 Closing Date until the Series 2022-1 Class A-2 Outstanding Principal Amount has been paid in full, the Series 2022-1 Class A-2 Outstanding Principal Amount will accrue interest for each Interest Accrual Period (after giving effect to all payments of principal (if any) made to Series 2022-1 Noteholders as of the first day of such Interest Accrual Period, and also giving effect to prepayments, repurchases and cancellations of Series 2022-1 Class A-2 Notes during such Interest Accrual Period) at the Series 2022-1 Class A-2 Note Rate. Such accrued interest will be due and payable in arrears on each Quarterly Payment Date, from amounts that are made available for payment thereof (i) on any related Weekly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, commencing on the Initial Quarterly Payment Date; provided that in any event all accrued but unpaid interest shall be due and payable in full on the Series 2022-1 Legal Final Maturity Date, on any Series 2022-1 Prepayment Date with respect to a prepayment in full of the Series 2022-1 Class A-2 Notes or on any other day on which all of the Series 2022-1 Class A-2 Outstanding Principal Amount is required to be paid in full. To the extent any interest accruing at the Series 2022-1 Class A-2 Note Rate is not paid when due, such unpaid interest will accrue interest at the Series 2022-1 Class A-2 Note Rate. All computations of interest at the Series 2022-1 Class A-2 Note Rate shall be made on a 30/360 Day Basis.
(b) Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest.
(i) Post-ARD Contingent Additional Interest. From and after the Series 2022-1 Anticipated Repayment Date, if the Series 2022-1 Final Payment has not been made on the Series 2022-1 Class A-2 Notes, then additional interest (the “Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest”) will accrue on the Series 2022-1 Class A-2 Outstanding Principal Amount at an interest rate equal to the rate determined by the Manager to be the greater of (I) 5.0% per annum and (II) a per annum rate equal to the amount, if any, by which the sum of the following exceeds the Series 2022-1 Class A-2 Note Rate: (A) the yield to maturity (adjusted to a quarterly bond-equivalent basis) on the Series 2022-1 Anticipated Repayment Date of the United States Treasury Security having a term closest to 10 years, plus (B) 5.0%, plus (C) 1.88% (the “Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest Rate”). In addition, regular interest will continue to accrue at the Series 2022-1 Class A-2 Note Rate from and after the Series 2022-1 Anticipated Repayment Date. All computations of Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest shall be made on a 30/360 Day Basis.
(ii) Payment of Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest. Amounts accrued in respect of Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest will be due and payable on any applicable Quarterly Payment Date as and when amounts are made available for payment thereof (I) on any related Weekly Allocation Date in accordance with the Priority of Payments and (II) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so made available. The failure to pay any Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional
Interest in excess of available amounts in accordance with the foregoing (including on the Series 2022-1 Legal Final Maturity Date) will not be an Event of Default and interest will not accrue on any unpaid portion thereof; provided that in any event all accrued but unpaid Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest shall be due and payable in full on the Series 2022-1 Legal Final Maturity Date, on any Series 2022-1 Prepayment Date with respect to a prepayment in full of the Series 2022-1 Class A-2 Notes or otherwise as part of any Series 2022-1 Final Payment.
(c) Series 2022-1 Class A-2 Initial Interest Accrual Period. The initial Interest Accrual Period for the Series 2022-1 Class A-2 Notes shall commence on (and include) the Series 2022-1 Closing Date and end on (but exclude) the Initial Quarterly Payment Date.
Section 3.6 Payment of Series 2022-1 Note Principal.
(a) Series 2022-1 Notes Principal Payment on the Series 2022-1 Legal Final Maturity Date. The Series 2022-1 Outstanding Principal Amount shall be due and payable on the Series 2022-1 Legal Final Maturity Date. The Series 2022-1 Outstanding Principal Amount is not prepayable, in whole or in part, except as set forth in the Base Indenture, this Section 3.6 and, in respect of the Series 2022-1 Class A-1 Outstanding Principal Amount, Section 2.2 and the Series 2022-1 Class A-1 Note Purchase Agreement.
(b) Series 2022-1 Anticipated Repayment Date; Series 2022-1 Class A-1 Notes Renewal Date. The Series 2022-1 Final Payment is anticipated to occur on the Quarterly Payment Date occurring in March 2029 (the “Series 2022-1 Anticipated Repayment Date”). The initial Series 2022-1 Class A-1 Notes Renewal Date will be the Quarterly Payment Date occurring in March 2027, unless extended as provided below in this Section 3.6(b).
(i) First Extension Election. Subject to the conditions set forth in Section 3.6(b)(iii), the Manager (on behalf of the Issuer) shall have the option on or before the Quarterly Payment Date occurring in March 2027 to elect (the “Series 2022-1 First Extension Election”) to extend the Series 2022-1 Class A-1 Notes Renewal Date to the Quarterly Payment Date occurring in March 2028 by delivering written notice to the Series 2022-1 Class A-1 Administrative Agent, the Trustee and the Control Party not later than the Quarterly Payment occurring in March 2027 to the effect that the conditions precedent to such Series 2022-1 First Extension Election have been satisfied. Subject to Section 3.6(b)(iii), upon delivery of such notice certifying that the conditions precedent to such Series 2022-1 First Extension Election have been satisfied, the Quarterly Payment Date occurring in March 2028 shall become the Series 2022-1 Class A-1 Notes Renewal Date.
(ii) Second Extension Election. Subject to the conditions set forth in Section 3.6(b)(iii), if the Series 2022-1 First Extension Election has been made and become effective, the Manager (on behalf of the Issuer) shall have the option on or before the Quarterly Payment Date occurring in March 2028 to elect (the “Series 2022-1 Second Extension Election”) to extend the Series 2022-1 Class A-1 Notes Renewal Date to the Quarterly Payment Date occurring in March 2029 by delivering written notice to the Series 2022-1 Class A-1 Administrative Agent, the Trustee and the Control Party not later than the Quarterly Payment occurring in March 2028 to the effect that the conditions precedent to such Series 2022-1 Second Extension Election have been satisfied. Subject to Section 3.6(b)(iii), upon delivery of such notice certifying that the conditions precedent to such Series 2022-1 Second Extension Election have been satisfied, the Quarterly Payment Date occurring in March 2029 shall become the Series 2022-1 Class A-1 Notes Renewal Date.
(iii) Conditions Precedent to Extension Elections. It shall be a condition to the effectiveness of the Series 2022-1 Extension Elections that, in the case of the Series 2022-1 First Extension Election, on the Quarterly Payment Date occurring in March 2027 or, in the case of the Series 2022-1 Second Extension Election, on the Quarterly Payment Date occurring in March 2028, that (a) the DSCR is greater than or equal to 2.00:1.00 (calculated as of the most recent Quarterly Calculation Date), (b) the rating assigned to the Series 2022-1 Class A-1 Notes
by the Rating Agency has not been downgraded below “BBB” (or the structured finance equivalent) or withdrawn and (c) all Class A-1 Extension Fees shall have been paid on or prior to such Quarterly Payment Date. Any notice given pursuant to Section 3.6(b)(i) or (ii) shall be irrevocable; provided that if the conditions set forth in this Section 3.6(b)(iii) are not met as of the applicable extension date, the election set forth in such notice shall automatically be deemed ineffective; provided that if, notwithstanding the notice certifying the satisfaction of the relevant conditions set forth in this Section 3.6(b)(iii) for any extension, the conditions set forth in this Section 3.6(b)(iii) are not met as of the applicable extension date, the election set forth in such notice shall automatically be deemed ineffective and such extension shall automatically be deemed null and of no force and effect. For the avoidance of doubt, no consent of the Trustee, the Control Party, the Controlling Class Representative, the Series 2022-1 Class A-1 Administrative Agent, any Noteholder or any other Secured Party shall be necessary for the effectiveness of the Series 2022-1 First Extension Election or the Series 2022-1 Second Extension Election.
(c) Payment of Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amounts. Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amounts will be due and payable in accordance with the definition thereof on any applicable Quarterly Payment Date, commencing on the Quarterly Payment Date in December 2022 and prior to the Series 2022-1 Anticipated Repayment Date, as and when amounts are made available for payment thereof (i) on any related Weekly Allocation Date in accordance with the Priority of Payments, subject to the terms set forth in the Base Indenture; and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so made available, and failure to pay any Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amounts in excess of available amounts in accordance with the foregoing will not be an Event of Default; provided that Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amounts shall only be due and payable on a Quarterly Payment Date if the Series 2022-1 Class A-2 Non-Amortization Test is not satisfied for such Quarterly Payment Date (as measured on the related Series 2022-1 Non-Amortization Test Date); provided, further, that if the Series 2022-1 Class A-2 Non-Amortization Test is satisfied as of the related Series 2022-1 Non-Amortization Test Date for a Quarterly Payment Date, the Issuer may, solely at its option, exercised on the Quarterly Calculation Date with respect to such Quarterly Payment Date, prior to the Series 2022-1 Anticipated Repayment Date, pay all or any part of such Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amounts on such Quarterly Payment Date in an amount not to exceed the Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amount that would otherwise be due on such Quarterly Payment Date if the Series 2022-1 Class A-2 Non-Amortization Test was not satisfied. There will be no scheduled payment of principal of the Series 2022-1 Class A-2 Notes (and therefore the Series 2022-1 Class A-2 Non-Amortization Test will not be applicable) on the Initial Quarterly Payment Date.
(d) Certain Series 2022-1 Notes Mandatory Payments of Principal.
(i) During any Rapid Amortization Period, principal payments shall be due and payable on each Quarterly Payment Date on the applicable Classes of Series 2022-1 Notes as and when amounts are made available for payment thereof (i) on any related Weekly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so made available; provided, however, with respect to a Rapid Amortization Event pursuant to Section 9.1(d) of the Base Indenture, if the DSCR is greater than 2.00x as of the Series 2022-1 Anticipated Repayment Date, and the Series 2022-1 Class A-2 Notes are repaid or refinanced within one (1) calendar year from the Series 2022-1 Anticipated Repayment Date, such Rapid Amortization Event will no longer be in effect following such repayment or refinancing. Such payments shall be ratably allocated among the Series 2022-1 Noteholders within each applicable Class based on their respective portion of the Series 2022-1 Outstanding Principal Amount of such Class (or, in the case of the Series 2022-1 Class A-1 Noteholders, in accordance with the order of distribution of principal payments set forth in Section 4.02 of the Series 2022-1 Class A-1 Note Purchase Agreement).
(ii) During any Series 2022-1 Class A-1 Notes Amortization Period, principal payments shall be due and payable on each Quarterly Payment Date on the applicable
Series 2022-1 Class A-1 Notes as and when amounts are made available for payment thereof (i) on any related Weekly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so made available. Such payments shall be allocated among the Series 2022-1 Class A-1 Noteholders, in accordance with the order of distribution of principal payments set forth in Section 4.02 of the Series 2022-1 Class A-1 Note Purchase Agreement and the related Weekly Manager’s Certificate or Quarterly Noteholders’ Report, as applicable, provided to the Trustee for such allocation. For the avoidance of doubt, no Series 2022-1 Class A-2 Make-Whole Prepayment Consideration will be due in connection with any principal payments on the Series 2022-1 Class A-1 Notes.
(e) Series 2022-1 Class A-2 Make-Whole Prepayment Consideration Payments. In connection with (i) any mandatory prepayment of any Series 2022-1 Class A-2 Notes made with any Asset Disposition Proceeds pursuant to Section 3.6(h) or (ii) any optional prepayment of any Series 2022-1 Class A-2 Notes made pursuant to Section 3.6(f), in each case of clause (i) and (ii), made prior to the Quarterly Payment Date in the Target Month (the “Prepayment Consideration End Date”) (each, a “Series 2022-1 Class A-2 Prepayment”), the Issuer shall pay, in the manner described herein, the Series 2022-1 Class A-2 Make-Whole Prepayment Consideration to the Series 2022-1 Class A-2 Noteholders with respect to the principal portion of the Series 2022-1 Prepayment Amount.
For the avoidance of doubt, no Series 2022-1 Class A-2 Make-Whole Prepayment Consideration shall be payable in connection with any prepayment that is not a Series 2022-1 Class A-2 Prepayment, including (i) prepayments funded by Indemnification Amounts or Insurance/Condemnation Proceeds, (ii) any mandatory prepayment of principal of the Series 2022-1 Class A-2 Notes due to a Rapid Amortization Event, (iii) the payments of Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amounts, Series 2022-1 Class A-2 Optional Scheduled Principal Payments and Series 2022-1 Class A-2 Notes Scheduled Principal Payment Deficiency Amounts, (iv) prepayments made with funds in the Cash Trap Reserve Account (other than optional prepayments of Senior Notes made with funds in the Cash Trap Reserve Account at the sole discretion of the Issuer in accordance with the CTOP Payment Priority, for which Series 2022-1 Class A-2 Make-Whole Prepayment Consideration will be payable), (v) prepayments pursuant to the EU/UK Applicable Investor Put Option and (vi) cancellations of Series 2022-1 Class A-2 Notes.
(f) Optional Prepayment of Series 2022-1 Class A-2 Notes. Subject to Sections 3.6(e) and 3.6(g), the Issuer shall have the option to prepay (including, without limitation, optional prepayments from the Cash Trap Reserve Account paid in accordance with the CTOP Payment Priority and prepayments with the proceeds of equity contributions) the Outstanding Principal Amount of the Series 2022-1 Class A-2 Notes in whole or in part on any Business Day that is specified as the Series 2022-1 Prepayment Date in the applicable Prepayment Notice (each, an “Optional Prepayment Date”); provided, that no such optional prepayment may be made unless the following conditions shall be satisfied:
(i) in the case of a prepayment of the Series 2022-1 Class A-2 Notes in part:
(A) the amount on deposit in the Series 2022-1 Class A-2 Distribution Account (including amounts to be transferred from the Cash Trap Reserve Account), together with the amount on deposit in the Senior Notes Principal Payment Account that is allocable to the Series 2022-1 Class A-2 Notes to be prepaid, is sufficient to pay the principal amount of the Series 2022-1 Class A-2 Notes to be prepaid and any Series 2022-1 Class A-2 Make-Whole Prepayment Consideration required pursuant to Section 3.6(e);
(B) the amounts on deposit in, or allocable to, the Series 2022-1 Class A-2 Distribution Account to be distributed on the Quarterly Payment Date which coincides with, or immediately follows, such Optional Prepayment Date, as the case may be, are sufficient to pay (in addition to the
amounts described in clause (i)(A)) the Prepayment Condition Amounts on such Quarterly Payment Date; and
(C) if such prepayment is not made on a Quarterly Payment Date, the amounts on deposit in the Senior Notes Interest Payment Account allocable to the Series 2022-1 Class A-2 Notes, or other available amounts, are sufficient to pay all accrued and unpaid interest on the principal amount to be prepaid on such Optional Prepayment Date; and
(ii) in the case of an optional prepayment of the Series 2022-1 Class A-2 Notes in whole:
(A) the amounts on deposit in the Indenture Trust Accounts, the Series 2022-1 Class A-2 Distribution Account (after giving effect to the applicable allocations set forth therein on such Optional Prepayment Date pursuant to Section 3.6(i)(iii)), or other available amounts, in each case allocable to the Series 2022-1 Class A-2 Notes, are sufficient to pay all outstanding monetary Obligations (including unreimbursed Advances with interest thereon at the Advance Interest Rate) in respect of the Series 2022-1 Class A-2 Notes, including unpaid interest accrued in respect of the period on and prior to such Optional Prepayment Date, and
(B) the amounts on deposit in the Collection Account, the Indenture Trust Accounts or otherwise available are reasonably expected by the Manager to be sufficient to pay the Prepayment Condition Amounts, other than with respect to the Series 2022-1 Class A-2 Notes, on the immediately following Quarterly Payment Date, if any, or are sufficient to pay such amounts on such Optional Prepayment Date, if such date is a Quarterly Payment Date,
or, in each case, any shortfalls in such amounts have been deposited to the applicable accounts.
(g) Notices of Prepayments.
(i) The Issuer shall give prior written notice (each, a “Prepayment Notice”) at least fifteen (15) Business Days but not more than twenty (20) Business Days prior to any Series 2022-1 Prepayment with respect to the Series 2022-1 Class A-2 Notes pursuant to Section 3.6(f) to each Series 2022-1 Noteholder affected by such Series 2022-1 Prepayment, the Rating Agency, the Servicer, the Control Party and the Trustee; provided that at the request of the Issuer, such notice to the affected Series 2022-1 Noteholders shall be given by the Trustee in the name and at the expense of the Issuer.
(ii) With respect to each such Series 2022-1 Prepayment, the related Prepayment Notice shall, in each case, specify (A) the Series 2022-1 Prepayment Date on which such prepayment will be made, which in all cases shall be a Business Day, (B) the Series 2022-1 Prepayment Amount and (C) if such Series 2022-1 Prepayment is subject to Series 2022-1 Class A-2 Make-Whole Prepayment Consideration, the Series 2022-1 Class A-2 Make-Whole Prepayment Consideration Calculation Date selected by the Issuer.
(iii) Any such optional prepayment and Prepayment Notice may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent, including but not limited to the occurrence of a Change of Control. The Issuer shall have the option to provide in any Prepayment Notice that the payment of the amounts set forth in Section 3.6(f) and the performance of the Issuer’s obligations with respect to such optional prepayment may be performed by another Person.
(iv) The Issuer shall have the option, by written notice to the Trustee, the Control Party, the Rating Agency and the affected Noteholders, to revoke, or amend the Series 2022-1 Prepayment Date set forth in, any Prepayment Notice relating to an optional prepayment at any time up to the second Business Day before the Series 2022-1 Prepayment Date set forth in such Prepayment Notice; provided that at the request of the Issuer, such notice to the affected Series 2022-1 Noteholders shall be given by the Trustee in the name and at the expense of the Issuer.
(v) For the avoidance of doubt, a Voluntary Decrease or a Subfacility Decrease in respect of the Series 2022-1 Class A-1 Notes is governed by Section 2.2 and not by this Section 3.6.
(h) Indemnification Amounts; Asset Disposition Proceeds; Insurance/Condemnation Proceeds. Any Indemnification Amounts, Asset Disposition Proceeds or Insurance/Condemnation Proceeds allocated to the Senior Notes Principal Payment Account in accordance with Section 5.11(i) of the Base Indenture shall be withdrawn from the Senior Notes Principal Payment Account in accordance with Section 5.12 (d) of the Base Indenture and deposited in the applicable Series 2022-1 Distribution Accounts and used to prepay first, if a Series 2022-1 Class A-1 Notes Amortization Period is continuing, the Series 2022-1 Class A-1 Notes (in accordance with the order of distribution of principal payments set forth in Section 4.02 of the Series 2022-1 Class A-1 Note Purchase Agreement) and second, the Series 2022-1 Class A-2 Notes (based on their respective portion of the Series 2022-1 Class A-2 Outstanding Principal Amount), on the Quarterly Payment Date indicated in the Weekly Manager’s Certificate. In connection with any prepayment made with Indemnification Amounts or Insurance/Condemnation Proceeds pursuant to this Section 3.6(h), the Issuer shall not be obligated to pay any Series 2022-1 Class A-2 Make-Whole Prepayment Consideration. The Issuer shall, however, be obligated to pay any applicable Series 2022-1 Class A-2 Make-Whole Prepayment Consideration required to be paid pursuant to Section 3.6(e) in connection with any prepayment made with Asset Disposition Proceeds pursuant to this Section 3.6(h); provided, for avoidance of doubt, that it shall not constitute an Event of Default if any such Series 2022-1 Class A-2 Make-Whole Prepayment Consideration is not paid because insufficient funds are available to pay such Series 2022-1 Class A-2 Make-Whole Prepayment Consideration, in accordance with the Priority of Payments.
(i) Distributions of Optional Prepayments of Series 2022-1 Class A-2 Notes.
(i) No later than five (5) Business Days prior to the Series 2022-1 Prepayment Date for each Series 2022-1 Prepayment to be made pursuant to Section 3.6(f) in respect of the Series 2022-1 Class A-2 Notes, the Issuer shall provide the Trustee with a written report (“Optional Prepayment Issuer Order”) instructing the Trustee to deposit the amounts set forth in such report (which shall include such amounts set forth in Section 3.6(f)(i)(C) or Section 3.6(f)(ii)(A) (after giving effect to the deposit set forth in Section 3.6(i)(iii)), as applicable), and in each case due and payable to the Series 2022-1 Class A-2 Noteholders on suchOptional Prepayment Issuer Order. Such Optional Prepayment Issuer Order shall include (A) the Series 2022-1 Prepayment Date.Amount to be transferred from the Collection Account to the Series 2022-1 Class A-2 Distribution Account and thereafter apply the amounts on deposit therein in accordance with this Section 3.6(i). Such written report/or if applicable, the source of other funds to be deposited into the Series 2022-1 Class A-2 Distribution Account for such prepayment and (B) the amount to be distributed to the Series 2022-1 Class A-2 Notes in respect of principal, interest and, if any, Series 2022-1 Class A-2 Make-Whole Prepayment Consideration. Such Optional Prepayment Issuer Order may be consolidated with additional payment instructions as necessary to effect other distributions occurring on, or substantially concurrently with, such Series 2022-1 Prepayment Date.
(ii) On the Series 2022-1 Prepayment Date for each Series 2022-1 Prepayment to be made pursuant to Section 3.6(f) in respect of the Series 2022-1 Class A-2 Notes, the Trustee shall, in accordance with Section 6.1 of the Base Indenture (except that, notwithstanding anything to the contrary therein, references to the distributions being made on a Quarterly Payment Date shall be deemed to be references to distributions made on such Series 2022-1 Prepayment Date and references to the Record Date shall be deemed to be references to
the Prepayment Record Date), distribute to the Noteholders of record on the preceding Prepayment Record Date on a pro rata basis, based on their respective portion of the Series 2022-1 Class A-2 Outstanding Principal Amount, the amount on deposit in the Series 2022-1 Class A-2 Distribution Account in order to pay (without duplication) (A) the applicable portion of the Series 2022-1 Class A-2 Outstanding Principal Amount and any applicable Series 2022-1 Class A-2 Make-Whole Prepayment Consideration with respect thereto, (B) in the case of an optional prepayment on a Series 2022-1 Prepayment Date that is not a Quarterly Payment Date, interest on such portion of the Series 2022-1 Class A-2 Outstanding Principal Amount being prepaid, and (C) in the case of an optional prepayment in whole, the outstanding monetary Obligations described in Section 3.6(f)(ii)(A), in each case due and payable on such Series 2022-1 Prepayment Date.
(iii) If the Series 2022-1 Class A-2 Notes are paid in whole on a Series 2022-1 Prepayment Date that is not an Weekly Allocation Date, the Issuer shall have the option to instruct the Trustee to withdraw amounts on deposit in the Collection Account on such Series 2022-1 Prepayment Date and deposit such amounts in the Series 2022-1 Class A-2 Distribution Account, so long as the Issuer (or the Manager on its behalf) determines that the Residual Amount on the Weekly Allocation Date immediately following such Series 2022-1 Prepayment Date shall be greater than zero. The delivery of any such instruction to the Trustee shall be deemed to be a certification from the Issuer or the Manager, as applicable, as to the satisfaction of such condition, on which the Trustee may conclusively rely.
(j) Series 2022-1 Notices of Final Payment. The Issuer shall notify the Trustee, the Servicer and the Rating Agency on or before the Prepayment Record Date preceding the Series 2022-1 Prepayment Date that will be the Series 2022-1 Final Payment Date; provided, however, that with respect to any Series 2022-1 Final Payment that is made in connection with any mandatory or optional prepayment in full, the Issuer shall not be obligated to provide any additional notice to the Trustee, the Servicer or the Rating Agency of such Series 2022-1 Final Payment beyond the notice required to be given in connection with such prepayment pursuant to Section 3.6(g). The Trustee shall provide any written notice required under this Section 3.6(j) to each Person in whose name a Series 2022-1 Note is registered at the close of business on such Prepayment Record Date of the Series 2022-1 Prepayment Date that will be the Series 2022-1 Final Payment Date. Such written notice to be sent to the Series 2022-1 Noteholders shall be made at the expense of the Issuer and shall be mailed by the Trustee within five (5) Business Days of receipt of notice from the Issuer indicating that the Series 2022-1 Final Payment will be made and shall specify that such Series 2022-1 Final Payment will be payable only upon presentation and surrender (or deregistration, in the case of Uncertificated Notes) of the Series 2022-1 Notes, which such surrender shall also constitute a general release by the applicable Noteholder from any claims against the Securitization Entities, the Manager, the Trustee and their affiliates, and shall specify the place where the Series 2022-1 Notes (other than any Uncertificated Notes) may be presented and surrendered for such Series 2022-1 Final Payment.
Section 3.7 Series 2022-1 Class A-1 Distribution Account.
(a) Establishment of Series 2022-1 Class A-1 Distribution Account. The Trustee has established and shall maintain in the name of the Trustee for the benefit of the Series 2022-1 Class A-1 Noteholders an account (the “Series 2022-1 Class A-1 Distribution Account”) bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2022-1 Class A-1 Noteholders. The Series 2022-1 Class A-1 Distribution Account shall be an Eligible Account. Initially, the Series 2022-1 Class A-1 Distribution Account will be established with the Trustee. Any and all amounts held in the Series 2022-1 Class A-1 Distribution Account shall remain uninvested.
(b) Series 2022-1 Class A-1 Distribution Account Constitutes Additional Collateral for Series 2022-1 Class A-1 Notes. In order to secure and provide for the repayment and payment of the Obligations with respect to the Series 2022-1 Class A-1 Notes, the Issuer hereby grants a security interest in and assigns, pledges, grants, transfers and sets over to the Trustee, for the benefit of the Series 2022-1 Class A-1 Noteholders, all of the Issuer’s right, title and interest, if any, in and to the following (whether now or hereafter existing or acquired): (i) the Series 2022-1 Class A-1 Distribution Account, including any security entitlement with respect thereto; (ii) all funds and other property
(including, without limitation, Financial Assets) on deposit therein from time to time; (iii) all certificates and instruments, if any, representing or evidencing any or all of the Series 2022-1 Class A-1 Distribution Account or the funds on deposit therein from time to time; (iv) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for the Series 2022-1 Class A-1 Distribution Account or the funds on deposit therein from time to time; and (v) all proceeds of any and all of the foregoing, including, without limitation, cash (the items in the foregoing clauses (i) through (v) are referred to, collectively, as the “Series 2022-1 Class A-1 Distribution Account Collateral”).
(c) Termination of Series 2022-1 Class A-1 Distribution Account. On or after the date on which (1) all accrued and unpaid interest on and principal of all Outstanding Series 2022-1 Class A-1 Notes have been paid, (2) all Undrawn L/C Face Amounts have expired or have been cash collateralized in accordance with the terms of the Series 2022-1 Class A-1 Note Purchase Agreement (after giving effect to the provisions of Section 4.04 of the Series 2022-1 Class A-1 Note Purchase Agreement), (3) all fees and expenses and other amounts then due and payable under the Series 2022-1 Class A-1 Note Purchase Agreement have been paid and (4) all Series 2022-1 Class A-1 Commitments have been terminated in full, the Trustee, acting in accordance with the written instructions of the Issuer (or the Manager on its behalf), shall withdraw from the Series 2022-1 Class A-1 Distribution Account all amounts on deposit therein (and the proceeds of any other instruments and other property credited thereto) for distribution pursuant to the Priority of Payments and all Liens, if any, created in favor of the Trustee for the benefit of the Series 2022-1 Class A-1 Noteholders under the Indenture with respect to Series 2022-1 Class A-1 Distribution Account shall be automatically released, and the Trustee, upon written request of the Issuer, at the written direction of the Control Party, shall execute and deliver to the Issuer any and all documentation reasonably requested and prepared by the Issuer at the Issuer’s expense to effect or evidence the release by the Trustee of the Series 2022-1 Class A-1 Noteholders’ security interest in the Series 2022-1 Class A-1 Distribution Account Collateral.
Section 3.8 Series 2022-1 Class A-2 Distribution Account.
(a) Establishment of Series 2022-1 Class A-2 Distribution Account. The Trustee has established and shall maintain in the name of the Trustee for the benefit of the Series 2022-1 Class A-2 Noteholders an account (the “Series 2022-1 Class A-2 Distribution Account”) bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2022-1 Class A-2 Noteholders. The Series 2022-1 Class A-2 Distribution Account shall be an Eligible Account. Initially, the Series 2022-1 Class A-2 Distribution Account will be established with the Trustee. Any and all amounts held in the Series 2022-1 Class A-2 Distribution Account shall remain uninvested.
(b) Series 2022-1 Class A-2 Distribution Account Constitutes Additional Collateral for Series 2022-1 Class A-2 Notes. In order to secure and provide for the repayment and payment of the Obligations with respect to the Series 2022-1 Class A-2 Notes, the Issuer hereby grants a security interest in and assigns, pledges, grants, transfers and sets over to the Trustee, for the benefit of the Series 2022-1 Class A-2 Noteholders, all of the Issuer’s right, title and interest, if any, in and to the following (whether now or hereafter existing or acquired): (i) the Series 2022-1 Class A-2 Distribution Account, including any security entitlement with respect thereto; (ii) all funds and other property (including, without limitation, Financial Assets) on deposit therein from time to time; (iii) all certificates and instruments, if any, representing or evidencing any or all of the Series 2022-1 Class A-2 Distribution Account or the funds on deposit therein from time to time; (iv) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for the Series 2022-1 Class A-2 Distribution Account or the funds on deposit therein from time to time; and (v) all proceeds of any and all of the foregoing, including, without limitation, cash (the items in the foregoing clauses (i) through (v) are referred to, collectively, as the “Series 2022-1 Class A-2 Distribution Account Collateral”).
(c) Termination of Series 2022-1 Class A-2 Distribution Account. On or after the date on which all accrued and unpaid interest on and principal of all Outstanding Series 2022-1 Class A-2 Notes have been paid, the Trustee, acting in accordance with the written instructions of the Issuer (or the Manager on its behalf), shall withdraw from the Series 2022-1 Class A-2 Distribution Account all amounts on deposit therein (and the proceeds of any other instruments and other property credited
thereto) for distribution pursuant to the Priority of Payments and all Liens, if any, created in favor of the Trustee for the benefit of the Series 2022-1 Class A-2 Noteholders under the Indenture with respect to Series 2022-1 Class A-2 Distribution Account shall be automatically released, and the Trustee, upon written request of the Issuer, at the written direction of the Control Party, shall execute and deliver to the Issuer any and all documentation reasonably requested and prepared by the Issuer at the Issuer’s expense to effect or evidence the release by the Trustee of the Series 2022-1 Class A-2 Noteholders’ security interest in the Series 2022-1 Class A-2 Distribution Account Collateral.
Section 3.9 Trustee as Securities Intermediary.
(a) The Trustee or other Person holding the Series 2022-1 Distribution Accounts shall be the “Series 2022-1 Securities Intermediary”. If the Series 2022-1 Securities Intermediary in respect of any Series 2022-1 Distribution Account is not the Trustee, the Issuer shall obtain the express agreement of such other Person to the obligations of the Series 2022-1 Securities Intermediary set forth in this Section 3.9.
(b) The Series 2022-1 Securities Intermediary agrees that:
(i) The Series 2022-1 Distribution Accounts are accounts to which Financial Assets will or may be credited;
(ii) The Series 2022-1 Distribution Accounts are “securities accounts” within the meaning of Section 8-501 of the New York UCC and the Series 2022-1 Securities Intermediary qualifies as a “securities intermediary” under Section 8-102(a) of the New York UCC;
(iii) All securities or other property (other than cash) underlying any Financial Assets credited to any Series 2022-1 Distribution Account shall be registered in the name of the Series 2022-1 Securities Intermediary, indorsed to the Series 2022-1 Securities Intermediary or in blank or credited to another securities account maintained in the name of the Series 2022-1 Securities Intermediary, and in no case will any Financial Asset credited to any Series 2022-1 Distribution Account be registered in the name of the Issuer, payable to the order of the Issuer or specially indorsed to the Issuer;
(iv) All property delivered to the Series 2022-1 Securities Intermediary pursuant to this Series Supplement will be promptly credited to the appropriate Series 2022-1 Distribution Account;
(v) Each item of property (whether investment property, security, instrument or cash) credited to any Series 2022-1 Distribution Account shall be treated as a Financial Asset;
(vi) If at any time the Series 2022-1 Securities Intermediary shall receive any entitlement order from the Trustee (including those directing transfer or redemption of any Financial Asset) relating to the Series 2022-1 Distribution Accounts, the Series 2022-1 Securities Intermediary shall comply with such entitlement order without further consent by the Issuer, any other Securitization Entity or any other Person;
(vii) The Series 2022-1 Distribution Accounts shall be governed by the laws of the State of New York, regardless of any provision of any other agreement. For purposes of all applicable UCCs, the State of New York shall be deemed to the Series 2022-1 Securities Intermediary’s jurisdiction and the Series 2022-1 Distribution Accounts (as well as the “security entitlements” (as defined in Section 8-102(a)(17) of the New York UCC) related thereto) shall be governed by the laws of the State of New York. The parties further agree that with respect to the Series 2022-1 Distribution Accounts the law applicable to all the issues in Article 2(1) of The Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary shall be the law of the State of New York;
(viii) The Series 2022-1 Securities Intermediary has not entered into, and until termination of this Series Supplement will not enter into, any agreement with any other Person relating to the Series 2022-1 Distribution Accounts and/or any Financial Assets credited thereto pursuant to which it has agreed to comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person, and the Series 2022-1 Securities Intermediary has not entered into, and until the termination of this Series Supplement will not enter into, any agreement with the Issuer purporting to limit or condition the obligation of the Series 2022-1 Securities Intermediary to comply with entitlement orders as set forth in Section 3.9(b)(vi); and
(ix) Except for the claims and interest of the Trustee, the Secured Parties and the Securitization Entities in the Series 2022-1 Distribution Accounts, neither the Series 2022-1 Securities Intermediary nor, in the case of the Trustee, any Trust Officer knows of any claim to, or interest in, any Series 2022-1 Distribution Account or any Financial Asset credited thereto. If the Series 2022-1 Securities Intermediary or, in the case of the Trustee, a Trust Officer has Actual Knowledge of the assertion by any other person of any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Series 2022-1 Distribution Account or any Financial Asset carried therein, the Series 2022-1 Securities Intermediary will promptly notify the Series 2022-1 Class A-1 Administrative Agent, the Trustee, the Manager, the Servicer and the Issuer thereof.
(c) At any time after the occurrence and during the continuation of an Event of Default, the Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Series 2022-1 Distribution Accounts and in all proceeds thereof, and shall (acting at the direction of the Control Party (at the direction of the Controlling Class Representative)) be the only Person authorized to originate entitlement orders in respect of the Series 2022-1 Distribution Accounts; provided, however, that at all other times the Issuer shall be authorized to instruct the Trustee to originate entitlement orders in respect of the Series 2022-1 Distribution Accounts.
Section 3.10 Manager. Pursuant to the Management Agreement, the Manager has agreed to provide certain reports, notices, instructions and other services on behalf of the Issuer. The Series 2022-1 Noteholders by their acceptance of the Series 2022-1 Notes consent to the provision of such reports and notices to the Trustee by the Manager in lieu of the Issuer. Any such reports and notices that are required to be delivered to the Series 2022-1 Noteholders hereunder will be made available on the Trustee’s website in the manner set forth in Section 4.4 of the Base Indenture.
Section 3.11 Replacement of Ineligible Accounts. If, at any time, either of the Series 2022-1 Class A-1 Distribution Account or the Series 2022-1 Class A-2 Distribution Account shall cease to be an Eligible Account (each, a “Series 2022-1 Ineligible Account”), the Issuer shall (i) within five (5) Business Days of obtaining Actual Knowledge thereof, notify the Control Party thereof and (ii) within sixty (60) days of obtaining Actual Knowledge thereof, (A) establish, or cause to be established, a new account that is an Eligible Account in substitution for such Series 2022-1 Ineligible Account, (B) following the establishment of such new Eligible Account, transfer or, with respect to the Trustee Accounts maintained at the Trustee, instruct the Trustee in writing to transfer all cash and investments from such Series 2022-1 Ineligible Account into such new Eligible Account and (C) pledge, or cause to be pledged, such new Eligible Account to the Trustee for the benefit of the Secured Parties and, if such new Eligible Account is not established with the Trustee, cause such new Eligible Account to be subject to an Account Control Agreement in form and substance reasonably acceptable to the Control Party and the Trustee.
ARTICLE IV
FORM OF SERIES 2022-1 NOTES
Section 4.1 Issuance of Series 2022-1 Class A-1 Notes.
(a) The Original Series 2022-1 Class A-1 Advance Notes (other than any Uncertificated Notes) were issued on the Series 2022-1 Closing Date and the Additional Series 2022-1 Class A-1 Advance Notes will be issued on the Series 2022-1 Upsize Closing Date in the form of definitive notes in fully registered form without interest coupons, substantially in the form set forth in Exhibit B-1-1 hereto, and the Series 2022-1 Class A-1 Advance Notes have been and will be issued, as applicable, to the Series 2022-1 Class A-1 Noteholders (other than the Series 2022-1 Class A-1 Subfacility Noteholders) pursuant to and in accordance with the Series 2022-1 Class A-1 Note Purchase Agreement and have been and shall be duly executed by the Issuer and authenticated, as applicable, by the Trustee in the manner set forth in Section 2.4 of the Base Indenture. Other than in accordance with this Series Supplement and the Series 2022-1 Class A-1 Note Purchase Agreement, the Series 2022-1 Class A-1 Advance Notes will not be permitted to be transferred, assigned, exchanged or otherwise pledged or conveyed by such Series 2022-1 Class A-1 Noteholders. The Series 2022-1 Class A-1 Advance Notes shall bear a face amount equal in the aggregate to up to the applicable Series 2022-1 Class A-1 Notes Maximum Principal Amount as of the Series 2022-1 Upsize Closing Date, and shall be initially issued in an aggregate outstanding principal amount equal to the Series 2022-1 Class A-1 Initial Advance Principal Amount pursuant to Section 2.1(a). The Series 2022-1 Class A-1 Administrative Agent shall record any Increases or Decreases with respect to the Series 2022-1 Class A-1 Outstanding Principal Amount such that, subject to Section 4.1(d), the principal amount of the Series 2022-1 Class A-1 Advance Notes that are Outstanding accurately reflects all such Increases and Decreases.
(b) [Reserved].
(c) The Series 2022-1 Class A-1 L/C Notes (other than any Uncertificated Notes) will be issued in the form of definitive notes in fully registered form without interest coupons, substantially in the form set forth in Exhibit B-1-3 hereto, and will be issued to the L/C Provider pursuant to and in accordance with the Series 2022-1 Class A-1 Note Purchase Agreement and shall be duly executed by the Issuer and authenticated by the Trustee in the manner set forth in Section 2.4 of the Base Indenture. Other than in accordance with this Series Supplement and the Series 2022-1 Class A-1 Note Purchase Agreement, the Series 2022-1 Class A-1 L/C Notes will not be permitted to be transferred, assigned, exchanged or otherwise pledged or conveyed by the L/C Provider. The Series 2022-1 Class A-1 L/C Notes shall bear a face amount equal in the aggregate to up to the L/C Commitment as of the Series 2022-1 Closing Date, and shall be initially issued in an aggregate amount equal to the Series 2022-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount pursuant to Section 2.1(b)(ii). The Series 2022-1 Class A-1 Administrative Agent shall record any Subfacility Increases or Subfacility Decreases with respect to Undrawn L/C Face Amounts or Unreimbursed L/C Drawings, as applicable, such that, subject to Section 4.1(d), the aggregate amount of the Series 2022-1 Class A-1 L/C Notes that is Outstanding accurately reflects all such Subfacility Increases and Subfacility Decreases. All Undrawn L/C Face Amounts shall be deemed to be “principal” outstanding under the Series 2022-1 Class A-1 L/C Notes for all purposes of the Indenture and the other Transaction Documents other than for purposes of accrual of interest.
(d) For the avoidance of doubt, notwithstanding that the aggregate face amount of the Series 2022-1 Class A-1 Notes will exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount, at no time will the principal amount actually outstanding of the Series 2022-1 Class A-1 Advance Notes and the Series 2022-1 Class A-1 L/C Notes in the aggregate exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount.
(e) The Series 2022-1 Class A-1 Notes may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Authorized Officers executing such Series 2022-1 Class A-1 Notes, as evidenced by their execution of the Series 2022-1 Class A-1 Notes. The Series 2022-1 Class A-1 Notes may be produced in any manner, all as determined by the Authorized Officers executing such Series 2022-1 Class A-1 Notes, as evidenced by
their execution of such Series 2022-1 Class A-1 Notes. The initial sale of the Series 2022-1 Class A-1 Notes is limited to Persons who have executed the Series 2022-1 Class A-1 Note Purchase Agreement. The Series 2022-1 Class A-1 Notes may be resold only to the Issuer, its Affiliates, and Persons that are not VFN Competitors (except that Series 2022-1 Class A-1 Notes may be resold to Persons that are VFN Competitors with the prior written consent of the Issuer or if an Event of Default has occurred and is continuing), in compliance with the terms of the Series 2022-1 Class A-1 Note Purchase Agreement.
(f) Uncertificated Notes. At the request of a Holder or transferee of the Series 2022-1 Class A-1 Notes, the Series 2022-1 Class A-1 Notes may be issued in the form of Uncertificated Notes. With respect to any Uncertificated Note, the Trustee shall provide to the beneficial owner promptly after registration of the Uncertificated Note in the Note Register by the Note Registrar a Confirmation of Registration, the form of which shall be set forth in Exhibit D attached hereto.
(i) Except as otherwise expressly provided herein:
(A) Uncertificated Notes registered in the name of a Person shall be considered “held” by such Person for all purposes of this Series Supplement;
(B) with respect to any Uncertificated Note, (a) references herein to authentication and delivery of a Series 2022-1 Class A-1 Note shall be deemed to refer to creation of an entry for such Series 2022-1 Class A-1 Note in the Note Register and registration of such Series 2022-1 Class A-1 Note in the name of the owner, (b) references herein to cancellation of a Series 2022-1 Class A-1 Note shall be deemed to refer to deregistration of such Series 2022-1 Class A-1 Note and (c) references herein to the date of authentication of a Series 2022-1 Class A-1 Note shall refer to the date of registration of such Series 2022-1 Class A-1 Note in the Note Register in the name of the owner thereof;
(ii) references to execution of Series 2022-1 Class A-1 Notes by the Issuer, to surrender of the Series 2022-1 Class A-1 Notes and to presentment of the Series 2022-1 Class A-1 Notes shall be deemed not to refer to Uncertificated Notes; provided that the provisions of Section 4.3 relating to surrender of the Series 2022-1 Class A-1 Notes shall apply equally to deregistration of Uncertificated Notes; and
(iii) for the avoidance of doubt, no Confirmation of Registration shall be required to be surrendered (x) in connection with a transfer of the related Uncertificated Note or (y) in connection with the final payment of the related Uncertificated Note.
(iv) The Note Register shall be conclusive evidence of the ownership of an Uncertificated Note.
(v) Each of the Series 2022-1 Class A-1 Notes in the form of a definitive note may also be exchanged in its entirety for an Uncertificated Note and, upon complete exchange thereof, such Series 2022-1 Class A-1 Notes shall be cancelled and deregistered by the Note Registrar.
(vi) Each of the Uncertificated Notes may be exchanged in its entirety for a Series 2022-1 Class A-1 Note in the form of a definitive note and, upon complete exchange thereof, such Uncertificated Note shall be deregistered by the Note Registrar.
Section 4.2 Issuance of Series 2022-1 Class A-2 Notes.
(a) The Series 2022-1 Class A-2 Notes may be offered and sold in the Series 2022-1 Class A-2 Initial Principal Amount on the Series 2022-1 Closing Date by the Issuer pursuant to the Series 2022-1 Class A-2 Note Purchase Agreement. The Series 2022-1 Class A-2 Notes will be resold initially only to the Issuer or its Affiliates or (A) in each case, to Persons that are not Competitors, (B) in the United States, to Persons that are QIBs purchasing for their own account or the account of one or more other Persons, each of which is a QIB, in reliance on Rule 144A and (C) outside the United States,
to Persons that are not a U.S. person (as defined in Regulation S) (a “U.S. Person”) in reliance on Regulation S, purchasing for their own account or the account of one or more other Persons, each of which is a non-U.S. Person. The Series 2022-1 Class A-2 Notes may thereafter be transferred in reliance on Rule 144A and/or Regulation S and in accordance with the procedure described herein. The Series 2022-1 Class A-2 Notes will be Book-Entry Notes and DTC will be the Depository for the Series 2022-1 Class A-2 Notes. The Applicable Procedures shall be applicable to transfers of beneficial interests in the Series 2022-1 Class A-2 Notes. The Series 2022-1 Class A-2 Notes shall be issued in an authorized minimum denomination of $100,000 and in any whole number denomination in excess thereof.
(a) Global Notes.
(i) Rule 144A Global Notes. The Series 2022-1 Class A-2 Notes offered and sold in their initial distribution in reliance upon Rule 144A will be issued in the form of one or more global notes in fully registered form, without coupons, substantially in the form set forth in Exhibit B-2-1 hereto, registered in the name of Cede & Co. (“Cede”), as nominee of DTC, and deposited with the Trustee, as custodian for DTC (collectively, for purposes of this Section 4.2 and Section 4.4, the “Rule 144A Global Notes”). The aggregate principal amount of the Rule 144A Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, in connection with a corresponding decrease or increase in the aggregate principal amount of the corresponding class of Temporary Regulation S Global Notes or Permanent Regulation S Global Notes, as hereinafter provided.
(ii) Temporary Regulation S Global Notes and Permanent Regulation S Global Notes. Any Series 2022-1 Class A-2 Notes offered and sold on the Series 2022-1 Closing Date in reliance upon Regulation S will be issued in the form of one or more global notes in fully registered form, without coupons, substantially in the form set forth in Exhibit B-2-2 hereto, registered in the name of Cede, as nominee of DTC, and deposited with the Trustee, as custodian for DTC, for credit to the respective accounts at DTC of the designated agents holding on behalf of Euroclear or Clearstream. Until such time as the Restricted Period shall have terminated with respect to any Series 2022-1 Class A-2 Note, such Series 2022-1 Class A-2 Notes shall be referred to herein collectively, for purposes of this Section 4.2 and Section 4.4, as the “Temporary Regulation S Global Notes.” After such time as the Restricted Period shall have terminated, the Temporary Regulation S Global Notes shall be exchangeable, in whole or in part, for interests in one or more permanent global notes in registered form without interest coupons, substantially in the form set forth in Exhibit B-2-3 hereto, as hereinafter provided (collectively, for purposes of this Section 4.2 and Section 4.4, the “Permanent Regulation S Global Notes”). The aggregate principal amount of the Temporary Regulation S Global Notes or the Permanent Regulation S Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, in connection with a corresponding decrease or increase of aggregate principal amount of the corresponding Rule 144A Global Notes, as hereinafter provided.
(c) Definitive Notes. The Series 2022-1 Global Notes shall be exchangeable in their entirety for one or more definitive notes in registered form, without interest coupons (collectively, for purposes of this Section 4.2 and Section 4.4, the “Definitive Notes”) pursuant to Section 2.13 of the Base Indenture and this Section 4.2(c) in accordance with their terms and, upon complete exchange thereof, such Series 2022-1 Global Notes shall be surrendered for cancellation at the applicable Corporate Trust Office.
Section 4.3 Transfer Restrictions of Series 2022-1 Class A-1 Notes.
(a) Subject to the terms of the Indenture and the Series 2022-1 Class A-1 Note Purchase Agreement, the holder of any Series 2022-1 Class A-1 Advance Note (other than any Uncertificated Note) may transfer the same in whole or in part, in an amount equivalent to an authorized denomination, by surrendering such Series 2022-1 Class A-1 Advance Note at the applicable Corporate Trust Office, with the form of transfer endorsed on it duly completed and executed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Note Registrar by, the holder thereof or their attorney duly authorized in writing, with such signature guaranteed by an “eligible
guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, and accompanied by a certificate substantially in the form of Exhibit C-1 hereto; provided that if the holder of any Series 2022-1 Class A-1 Advance Note transfers, in whole or in part, its interest in any Series 2022-1 Class A-1 Advance Note pursuant to (i) an Assignment and Assumption Agreement substantially in the form of Exhibit B to the Series 2022-1 Class A-1 Note Purchase Agreement or (ii) an Investor Group Supplement substantially in the form of Exhibit C to the Series 2022-1 Class A-1 Note Purchase Agreement, then such Series 2022-1 Class A-1 Noteholder will not be required to submit a certificate substantially in the form of Exhibit C-1 hereto upon transfer of its interest in such Series 2022-1 Class A-1 Advance Note. In exchange for any Series 2022-1 Class A-1 Advance Note properly presented for transfer, the Issuer shall execute and the Trustee shall promptly authenticate and deliver or cause to be authenticated and delivered in compliance with applicable law, to the transferee at such office, or send by mail (at the risk of the transferee) to such address as the transferee may request, Series 2022-1 Class A-1 Advance Notes for the same aggregate principal amount as was transferred. In the case of the transfer of any Series 2022-1 Class A-1 Advance Note in part, the Issuer shall execute and the Trustee shall promptly authenticate and deliver or cause to be authenticated and delivered to the transferor at such office, or send by mail (at the risk of the transferor) to such address as the transferor may request, Series 2022-1 Class A-1 Notes for the aggregate principal amount that was not transferred. No transfer of any Series 2022-1 Class A-1 Advance Note shall be made unless the request for such transfer is made by the Series 2022-1 Class A-1 Noteholder at such office. In the case of a transfer to a Holder electing to take such Note in the form of an Uncertificated Note, the Trustee shall deliver a Confirmation of Registration to the transferee. Neither the Issuer nor the Trustee shall be liable for any delay in delivery of transfer instructions and each may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of transferred Series 2022-1 Class A-1 Advance Notes, the Trustee shall recognize the holders of such Series 2022-1 Class A-1 Advance Note as Series 2022-1 Class A-1 Noteholders.
(b) [Reserved].
(c) Subject to the terms of the Indenture and the Series 2022-1 Class A-1 Note Purchase Agreement, the L/C Provider may transfer any Series 2022-1 Class A-1 L/C Note in whole or in part, in an amount equivalent to an authorized denomination, by surrendering such Series 2022-1 Class A-1 L/C Note (other than any Uncertificated Note) at the applicable Corporate Trust Office, with the form of transfer endorsed on it duly completed and executed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Note Registrar by, the holder thereof or their attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the STAMP or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, and accompanied by an assignment agreement pursuant to Section 9.17(e) of the Series 2022-1 Class A-1 Note Purchase Agreement. In exchange for any Series 2022-1 Class A-1 L/C Note properly presented for transfer, the Issuer shall execute and the Trustee shall promptly authenticate and deliver or cause to be authenticated and delivered in compliance with applicable law, to the transferee at such office, or send by mail (at the risk of the transferee) to such address as the transferee may request, Series 2022-1 Class A-1 L/C Notes for the same aggregate principal amount as was transferred. In the case of the transfer of any Series 2022-1 Class A-1 L/C Note in part, the Issuer shall execute and the Trustee shall promptly authenticate and deliver or cause to be authenticated and delivered to the transferor at such office, or send by mail (at the risk of transferor) to such address as the transferor may request, Series 2022-1 Class A-1 L/C Notes for the aggregate principal amount that was not transferred. No transfer of any Series 2022-1 Class A-1 L/C Note shall be made unless the request for such transfer is made by the L/C Provider at such office. In the case of a transfer to a Holder electing to take such Note in the form of an Uncertificated Note, the Trustee shall deliver a Confirmation of Registration to the transferee. Neither the Issuer nor the Trustee shall be liable for any delay in delivery of transfer instructions and each may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of any transferred Series 2022-1 Class A-1 L/C Note, the Trustee shall recognize the holder of such Series 2022-1 Class A-1 L/C Note as a Series 2022-1 Class A-1 Noteholder.
(d) Each Series 2022-1 Class A-1 Note (other than any Uncertificated Note) shall bear the following legend:
THE ISSUANCE AND SALE OF THIS SERIES 2022-1 CLASS A-1 NOTE (“THIS NOTE”) HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION, AND WINGSTOP FUNDING LLC (THE “ISSUER”) HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS NOTE AND ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO PERSONS THAT ARE NOT VFN COMPETITORS (AS DEFINED IN THE INDENTURE), UNLESS THE ISSUER GIVES WRITTEN CONSENT TO SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER OR IF AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, AND IN ACCORDANCE WITH THE PROVISIONS OF THE CLASS A-1 NOTE PURCHASE AGREEMENT, DATED AS OF MARCH 9, 2022 (AS AMENDED, SUPPLEMENTED OR MODIFIED, THE “CLASS A-1 NOTE PURCHASE AGREEMENT”), BY AND AMONG THE ISSUER, WINGSTOP GUARANTOR LLC AND WINGSTOP FRANCHISING LLC, EACH AS A GUARANTOR, WINGSTOP RESTAURANTS, INC., AS THE MANAGER, MORGAN STANLEY ASSET FUNDING INC., AS THE ADMINISTRATIVE AGENT, AND THE OTHER PARTIES THERETO.
The required legend set forth above shall not be removed from the Series 2022-1 Class A-1 Notes except as provided herein.
Section 4.4 Transfer Restrictions of Series 2022-1 Class A-2 Notes.
(a) A Series 2022-1 Global Note may not be transferred, in whole or in part, to any Person other than DTC or a nominee thereof, or to a successor Depository or to a nominee of a successor Depository, and no such transfer to any such other Person may be registered; provided, however, that this Section 4.4(a) shall not prohibit any transfer of a Series 2022-1 Class A-2 Note that is issued in exchange for a Series 2022-1 Global Note in accordance with Section 2.8 of the Base Indenture and shall not prohibit any transfer of a beneficial interest in a Series 2022-1 Global Note effected in accordance with the other provisions of this Section 4.4.
(b) The transfer by a Series 2022-1 Class A-2 Note Owner holding a beneficial interest in a Class A-2 Note in the form of a Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Rule 144A Global Note shall be made upon the deemed representation of the transferee that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB and is not a Competitor, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as such transferee has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A.
(c) If a Series 2022-1 Class A-2 Note Owner holding a beneficial interest in a Class A-2 Note in the form of a Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in the Temporary Regulation S Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Temporary Regulation S Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.4(c). Upon receipt by the Note Registrar, at the applicable Corporate Trust Office, of (i) written instructions given in accordance
with the Applicable Procedures from a Clearing Agency Participant directing the Note Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Temporary Regulation S Global Note, in a principal amount equal to that of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form set forth in Exhibit C-2 hereto given by the Series 2022-1 Class A-2 Note Owner holding such beneficial interest in such Rule 144A Global Note, the Note Registrar shall instruct the Trustee, as custodian of DTC, to reduce the principal amount of the Rule 144A Global Note, and to increase the principal amount of the Temporary Regulation S Global Note, by the principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Temporary Regulation S Global Note having a principal amount equal to the amount by which the principal amount of such Rule 144A Global Note was reduced upon such exchange or transfer.
(d) If a Series 2022-1 Class A-2 Note Owner holding a beneficial interest in a Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in the Permanent Regulation S Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Permanent Regulation S Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.4(d). Upon receipt by the Note Registrar, at the applicable Corporate Trust Office, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Note Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Permanent Regulation S Global Note in a principal amount equal to that of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form of Exhibit C-3 hereto given by the Series 2022-1 Class A-2 Note Owner holding such beneficial interest in such Rule 144A Global Note, the Note Registrar shall instruct the Trustee, as custodian of DTC, to reduce the principal amount of such Rule 144A Global Note, and to increase the principal amount of the Permanent Regulation S Global Note, by the principal amount of the beneficial interest in such Rule 144A Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Permanent Regulation S Global Note having a principal amount equal to the amount by which the principal amount of such Rule 144A Global Note was reduced upon such exchange or transfer.
(e) If a Series 2022-1 Class A-2 Note Owner holding a beneficial interest in a Temporary Regulation S Global Note or a Permanent Regulation S Global Note wishes at any time to exchange its interest in such Temporary Regulation S Global Note or such Permanent Regulation S Global Note for an interest in the Rule 144A Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Rule 144A Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 4.4(e). Upon receipt by the Note Registrar, at the applicable Corporate Trust Office, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Note Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Rule 144A Global Note in a principal amount equal to that of the beneficial interest in such Temporary Regulation S Global Note or such Permanent Regulation S Global Note, as the case may be, to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) with respect to a transfer of a beneficial interest in such Temporary Regulation S Global Note or Permanent Regulation S Global Note, a certificate in substantially the form set forth in Exhibit C-4 hereto
given by such Series 2022-1 Class A-2 Note Owner holding such beneficial interest in such Temporary Regulation S Global Note, the Note Registrar shall instruct the Trustee, as custodian of DTC, to reduce the principal amount of such Temporary Regulation S Global Note or such Permanent Regulation S Global Note, as the case may be, and to increase the principal amount of the Rule 144A Global Note, by the principal amount of the beneficial interest in such Temporary Regulation S Global Note or such Permanent Regulation S Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for DTC) a beneficial interest in the Rule 144A Global Note having a principal amount equal to the amount by which the principal amount of such Temporary Regulation S Global Note or such Permanent Regulation S Global Note, as the case may be, was reduced upon such exchange or transfer.
(f) In the event that a Series 2022-1 Global Note or any portion thereof is exchanged for Series 2022-1 Class A-2 Notes other than Series 2022-1 Global Notes, such other Series 2022-1 Class A-2 Notes may in turn be exchanged (upon transfer or otherwise) for Series 2022-1 Class A-2 Notes that are not Series 2022-1 Global Notes or for a beneficial interest in a Series 2022-1 Global Note (if any is then outstanding) only in accordance with such procedures as may be adopted from time to time by the Issuer and the Note Registrar, which shall be substantially consistent with the provisions of Sections 4.4(a) through (e) and Section 4.4(g) (including the certification requirement intended to ensure that transfers and exchanges of beneficial interests in a Series 2022-1 Global Note comply with Rule 144A or Regulation S under the Securities Act, as the case may be) and any Applicable Procedures.
(g) Until the termination of the Restricted Period with respect to any Series 2022-1 Class A-2 Note, interests in the Temporary Regulation S Global Notes representing such Series 2022-1 Class A-2 Note may be held only through Clearing Agency Participants acting for and on behalf of Euroclear and Clearstream; provided that this Section 4.4(g) shall not prohibit any transfer in accordance with Section 4.4(d). After the expiration of the applicable Restricted Period, interests in the Permanent Regulation S Global Notes may be transferred without requiring any certifications other than those set forth in this Section 4.4.
(h) The Series 2022-1 Class A-2 Notes Rule 144A Global Notes, the Series 2022-1 Class A-2 Notes Temporary Regulation S Global Notes and the Series 2022-1 Class A-2 Notes Permanent Regulation S Global Notes shall bear the following legend:
THE ISSUANCE AND SALE OF THIS SERIES 2022-1 CLASS A-2 NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION, AND WINGSTOP FUNDING LLC (THE “ISSUER”) HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “1940 ACT”). THIS NOTE OR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO (A) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE QIBS, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A QIB AND NOT A COMPETITOR, (B) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE NOT “U.S. PERSONS” IN OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S UNDER THE 1933 ACT, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR (C) THE ISSUER OR AN AFFILIATE OF THE ISSUER, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION, AND, IN EACH CASE, IN COMPLIANCE WITH THE CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO
HEREIN AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION.
BY ITS ACQUISITION OR ACCEPTANCE HEREOF, THE HOLDER (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) REPRESENTS THAT (A) IT IS NOT A COMPETITOR AND IS (X) A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A OR (Y) NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, AS APPLICABLE, (B) IT IS NOT A COMPETITOR AND IS ACTING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PERSON WHICH IS EITHER (X) A QUALIFIED INSTITUTIONAL BUYER OR (Y) NOT A U.S. PERSON, AND IN EACH CASE WITH RESPECT TO WHICH IT EXERCISES SOLE INVESTMENT DISCRETION WHICH IS NOT A COMPETITOR, (C) IT AND EACH ACCOUNT FOR WHICH IT IS PURCHASING WILL HOLD AND TRANSFER AT LEAST THE MINIMUM DENOMINATION OF NOTES, (D) IT UNDERSTANDS THAT THE ISSUER MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN ITS NOTES FROM ONE OR MORE BOOK-ENTRY DEPOSITORIES AND (E) IT WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS TO ANY SUBSEQUENT TRANSFEREES.
EACH PERSON (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE WILL BE DEEMED TO HAVE MADE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE. EACH PERSON TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE IN THE FORM OF AN INTEREST IN A [TEMPORARY REGULATION S GLOBAL NOTE] [RULE 144A GLOBAL NOTE] OR [PERMANENT REGULATION S GLOBAL NOTE] WILL BE REQUIRED TO DELIVER A TRANSFER CERTIFICATE IN THE FORM REQUIRED BY THE INDENTURE AND WILL BE REQUIRED TO MAKE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE.
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT AND WILL BE VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO ANY PERSON CAUSING SUCH VIOLATION, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE TRUSTEE OR ANY INTERMEDIARY; PROVIDED, HOWEVER, THAT THE PRECEDING PORTION OF THIS SENTENCE SHALL NOT OPERATE TO INVALIDATE ANY OTHERWISE BONA FIDE TRANSFER TO AN ELIGIBLE TRANSFEREE WHERE A PREVIOUS ERRONEOUSLY-REGISTERED TRANSFEROR IN THE CHAIN OF TITLE OF SUCH TRANSFEREE WOULD HAVE BEEN INELIGIBLE SOLELY ON ACCOUNT OF BEING A COMPETITOR.
IF THIS NOTE WAS ACQUIRED IN THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR NOT TO HAVE BEEN A QUALIFIED INSTITUTIONAL BUYER AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS A QUALIFIED INSTITUTIONAL BUYER.
THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS NOT A QUALIFIED INSTITUTIONAL BUYER OR WHO IS A COMPETITOR.
IF THIS NOTE WAS ACQUIRED OUTSIDE THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR TO HAVE BEEN A “U.S. PERSON” AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS NOT A “U.S. PERSON.” THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS A “U.S. PERSON” OR WHO IS A COMPETITOR.
BY ACCEPTING THIS NOTE, EACH PURCHASER COVENANTS THAT IT WILL NOT AT ANY TIME PRIOR TO THE DATE WHICH IS ONE (1) YEAR AND ONE (1) DAY AFTER THE PAYMENT IN FULL OF THE LATEST MATURING NOTE, INSTITUTE AGAINST, OR JOIN WITH ANY OTHER PERSON IN INSTITUTING AGAINST, ANY SECURITIZATION ENTITY ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS, UNDER ANY FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
(i) The Series 2022-1 Class A-2 Notes Temporary Regulation S Global Notes shall also bear the following legend:
UNTIL FORTY (40) DAYS AFTER THE ORIGINAL ISSUE DATE OF THE NOTES (THE “RESTRICTED PERIOD”) IN CONNECTION WITH THE OFFERING OF THE NOTES IN THE UNITED STATES FROM OUTSIDE OF THE UNITED STATES, THE SALE, PLEDGE OR TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS AND RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE ACQUIRING THIS NOTE, ACKNOWLEDGES THAT SUCH HOLDER IS EITHER (I) NOT A “U.S. PERSON” AND NOT A COMPETITOR OR (II) THE ISSUER OR AN AFFILIATE OF THE ISSUER, AND THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER THE 1933 ACT, AND AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS NOTE MAY BE TRANSFERRED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO A HOLDER THAT IS NOT A “U.S. PERSON” AND NOT A COMPETITOR PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR TO THE ISSUER OR AN AFFILIATE OF THE ISSUER AND IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS OF THE STATES, TERRITORIES AND POSSESSIONS OF THE UNITED STATES GOVERNING THE OFFER AND SALE OF SECURITIES, AND PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD, ONLY (I) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE 1933 ACT OR (II) PURSUANT TO AND IN ACCORDANCE WITH RULE 144A UNDER THE 1933 ACT.
(j) The Series 2022-1 Global Notes issued in connection with the Series 2022-1 Class A-2 Notes shall also bear the following legend:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, 55 WATER STREET, NEW YORK, NEW YORK 10004, OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR THE NOTE REGISTRAR, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
(k) The required legends set forth above shall not be removed from the applicable Series 2022-1 Class A-2 Notes except as provided herein. The legend required for a Series 2022-1 Class A-2 Notes Rule 144A Global Note may be removed from such Series 2022-1 Class A-2 Notes Rule 144A Global Note if there is delivered to the Issuer and the Note Registrar such satisfactory evidence, which may include an Opinion of Counsel, as may be reasonably required by the Issuer that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Series 2022-1 Class A-2 Notes Rule 144A Global Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee at the direction of the Issuer (or the Manager, on its behalf), shall authenticate and deliver in exchange for such Series 2022-1 Class A-2 Notes Rule 144A Global Note a Series 2022-1 Class A-2 Note or Series 2022-1 Class A-2 Notes having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Series 2022-1 Class A-2 Notes Rule 144A Global Note has been removed from a Series 2022-1 Class A-2 Note as provided above, no other Series 2022-1 Class A-2 Note issued in exchange for all or any part of such Series 2022-1 Class A-2 Note shall bear such legend, unless the Issuer has reasonable cause to believe that such other Series 2022-1 Class A-2 Note is a “restricted security” within the meaning of Rule 144 under the Securities Act and instructs the Trustee to cause a legend to appear thereon.
Section 4.5 Note Owner Representations and Warranties. Each Person who becomes a Note Owner of a beneficial interest in a Series 2022-1 Note, other than the Issuer or an Affiliate of the Issuer, will be deemed to represent, warrant and agree on the date such Person acquires any interest in any Series 2022-1 Note as follows:
(a) With respect to any sale of Series 2022-1 Notes pursuant to Rule 144A, it is not (i) in the case of the Series 2022-1 Class A-1 Notes, solely to the extent an Event of Default has not occurred and is continuing, a VFN Competitor or (ii) in the case of the Series 2022-1 Class A-2 Notes, a Competitor and is a QIB pursuant to Rule 144A, and is aware that any sale of Series 2022-1 Notes to it will be made in reliance on Rule 144A. Its acquisition of Series 2022-1 Notes in any such sale will be for its own account or for the account of another QIB that is not (i) in the case of the Series 2022-1 Class A-1 Notes, solely to the extent an Event of Default has not occurred and is continuing, a VFN Competitor or (ii) in the case of the Series 2022-1 Class A-2 Notes, a Competitor.
(b) With respect to any sale of Series 2022-1 Notes pursuant to Regulation S, at the time the buy order for such Series 2022-1 Notes was originated, it was outside the United States and the offer was made to a Person who is not a U.S. Person nor, (i) in the case of the Series 2022-1 Class A-1
Notes, solely to the extent an Event of Default has not occurred and is continuing, a VFN Competitor or (ii) in the case of the Series 2022-1 Class A-2 Notes, a Competitor, and was not purchasing for the account or benefit of a U.S. Person or, (i) in the case of the Series 2022-1 Class A-1 Notes, solely to the extent an Event of Default has not occurred and is continuing, a VFN Competitor or (ii) in the case of the Series 2022-1 Class A-2 Notes, a Competitor.
(c) It will, and each account for which it is purchasing will, hold and transfer at least the minimum denomination of Series 2022-1 Notes.
(d) It understands that the Issuer, the Manager and the Servicer may receive a list of participants holding positions in the Series 2022-1 Notes from one or more book-entry depositories.
(e) It understands that the Manager, the Issuer and the Servicer may receive (i) a list of Note Owners that have requested access to the Trustee’s password-protected website or that have voluntarily registered as a Note Owner with the Trustee and (ii) copies of Noteholder confirmations of representations and warranties executed to obtain access to the Trustee’s password-protected website.
(f) It will provide to each person to whom it transfers Series 2022-1 Notes notices of any restrictions on transfer of such Series 2022-1 Notes.
(g) It understands that (i) the Series 2022-1 Notes are being offered in a transaction not involving any public offering in the United States within the meaning of the Securities Act, (ii) the Series 2022-1 Notes have not been registered under the Securities Act, (iii) such Series 2022-1 Notes may be offered, resold, pledged or otherwise transferred only to (a) Persons that are not (i) in the case of the Series 2022-1 Class A-1 Notes, solely to the extent an Event of Default has not occurred and is continuing, VFN Competitors or (ii) in the case of the Series 2022-1 Class A-2 Notes, Competitors and that are QIBs, purchasing for their own account or the account of one or more other Persons, each of which is a QIB and is not (i) in the case of the Series 2022-1 Class A-1 Notes, solely to the extent an Event of Default has not occurred and is continuing, a VFN Competitor or (ii) in the case of the Series 2022-1 Class A-2 Notes, a Competitor, (b) Persons that are not (i) in the case of the Series 2022-1 Class A-1 Notes, solely to the extent an Event of Default has not occurred and is continuing, VFN Competitors or (ii) in the case of the Series 2022-1 Class A-2 Notes, Competitors and that are not “U.S. Persons” in offshore transactions in reliance on Regulation S under the Securities Act, purchasing for their own account or the account of one or more other Persons, each of which is a non-U.S. Person and not (i) in the case of the Series 2022-1 Class A-1 Notes, solely to the extent an Event of Default has not occurred and is continuing, a VFN Competitor or (ii) in the case of the Series 2022-1 Class A-2 Notes, a Competitor, or (c) the Issuer or an Affiliate of the Issuer, in each case, in accordance with any applicable securities laws of any state of the United States and any other relevant jurisdiction, and (iv) it will, and each subsequent holder of a Series 2022-1 Note is required to, notify any subsequent purchaser of a Series 2022-1 Note of the resale restrictions set forth in clause (iii) above.
(h) It understands that the certificates evidencing the Rule 144A Global Notes will bear legends substantially similar to those set forth in Sections 4.4(h) and (j).
(i) It understands that the certificates evidencing the Temporary Regulation S Global Notes will bear legends substantially similar to those set forth in Sections 4.4(h), (i) and (j), as applicable.
(j) It understands that the certificates evidencing the Permanent Regulation S Global Notes will bear legends substantially similar to those set forth in Sections 4.4(h) and (j).
(k) Either (a) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise), nor a governmental, church, non-U.S. or other plan that is subject to any Similar Law or (b) its acquisition, holding and disposition of the Series 2022-1 Notes (or any interest therein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Similar Law).
(l) If it is using assets of a Plan to acquire or hold the Series 2022-1 Notes or any interest therein, then such purchaser or transferee, as applicable, further represents that (i) none of WRI, the Guarantors, the Issuer, the Initial Purchaser, the Trustee, the Servicer or the Back-Up Manager or any of their respective affiliates or agents (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied upon for any advice, with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Series 2022-1 Notes, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Series 2022-1 Notes, and (ii) the decision to invest in the Series 2022-1 Notes has been made at the recommendation or direction of an independent fiduciary who (a) is independent of the Transaction Parties; (b) is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies; (c) is a fiduciary (under ERISA and/or Section 4975 of the Code) with respect to the Plan’s investment in the Series 2022-1 Notes and is responsible for exercising independent judgment in evaluating the investment in the Series 2022-1 Notes; and (d) is aware of and acknowledges that (1) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the Plan’s investment in the Series 2022-1 Notes, and (2) the Transaction Parties have a financial interest in the Plan’s investment in the Series 2022-1 Notes.
(m) It understands that any subsequent transfer of the Series 2022-1 Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and it agrees to be bound by, and not to resell, pledge or otherwise transfer the Series 2022-1 Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act.
(n) It is not (i) in the case of the Series 2022-1 Class A-1 Notes, solely to the extent an Event of Default has not occurred and is continuing, a VFN Competitor or (ii) in the case of the Series 2022-1 Class A-2 Notes, a Competitor.
Section 4.6 Limitation on Liability. None of the Issuer, Parent, WRI, the Trustee, the Servicer, the Initial Purchaser, any Paying Agent or any of their respective Affiliates shall have any responsibility or liability with respect to (i) any aspects of the records maintained by DTC or its nominee or any of the Agent Members relating to or for payments made thereby on account of beneficial interests in a Rule l44A Global Note or a Regulation S Global Note or (ii) any records maintained by the Noteholder with respect to the beneficial holders thereof or payments made thereby on account of beneficial interests held therein.
Article V
GENERAL
Section 5.1 Information. On or before each Quarterly Payment Date, the Issuer shall furnish, or cause to be furnished, a Quarterly Noteholders’ Report, substantially in the form of Exhibit B to the Base Indenture, with respect to the Series 2022-1 Notes to the Trustee, setting forth, inter alia, the following information with respect to such Quarterly Payment Date:
(i) the total amount available to be distributed to Series 2022-1 Noteholders on such Quarterly Payment Date;
(ii) the amount of such distribution allocable to the payment of interest on each Class of the Series 2022-1 Notes;
(iii) the amount of such distribution allocable to the payment of principal of each Class of the Series 2022-1 Notes;
(iv) the amount of such distribution allocable to the payment of any Series 2022-1 Class A-2 Make-Whole Prepayment Consideration, if any;
(v) the amount of such distribution allocable to the payment of any fees or other amounts due to the Series 2022-1 Class A-1 Noteholders;
(vi) whether, to the Actual Knowledge of the Issuer, any Potential Rapid Amortization Event, Rapid Amortization Event, Default, Event of Default, Potential Manager Termination Event or Manager Termination Event has occurred, or any Cash Trapping Period is in effect, in each case, as of the related Quarterly Calculation Date;
(vii) the DSCR and the Interest-Only DSCR for such Quarterly Payment Date and the three Quarterly Payment Dates immediately preceding such Quarterly Payment Date;
(viii) a calculation of the Holdco Leverage Ratio and the Senior Leverage Ratio as of the related Quarterly Calculation Date;
(ix) the number of Franchised Restaurants and Company-Owned Restaurants that are open for business as of the last day of the preceding Quarterly Fiscal Period;
(x) the amount of Wingstop System-Wide Sales during the preceding Quarterly Fiscal Period;
(xi) the amount on deposit in the Senior Notes Interest Reserve Account (and the availability under any Interest Reserve Letter of Credit relating to the Senior Notes), and the amount on deposit, if any, in the Cash Trap Reserve Account, in each case, as of the close of business on the last Business Day of the preceding Quarterly Fiscal Period; and
(xii) the occurrence of any amendment to the definition of “Quarterly Fiscal Period” during the preceding Quarterly Fiscal Period.
Any Series 2022-1 Noteholder may obtain copies of each Quarterly Noteholders’ Report in accordance with the procedures set forth in Section 4.4 of the Base Indenture. To the extent not set forth in the related Quarterly Noteholders’ Report, the Issuer shall cause the Administrative Agent to provide to the Trustee the amounts to be distributed in respect of interest, principal and/or fees to each holder of a Series 2022-1 Class A-1 Note from the aggregate amounts in respect of interest, principal or fees to be distributed to such Class of Notes.
Section 5.2 Exhibits. The annexes, exhibits and schedules attached hereto and listed on the table of contents hereto supplement the annexes, exhibits and schedules included in the Base Indenture.
Section 5.3 Ratification of Base Indenture. As supplemented by this Series Supplement, the Base Indenture is in all respects ratified and confirmed and the Base Indenture as so supplemented by this Series Supplement shall be read, taken and construed as one and the same instrument.
Section 5.4 Notices to Rating Agency. The address for any notice or communication by any party to the Rating Agency shall be the address set forth below:
Kroll Bond Rating Agency, LLC
805 Third Avenue, 29th Floor
New York, NY 10022
Attention: ABS Surveillance
Email: abssurveillance@kbra.com
Section 5.5 Counterparts. This Series Supplement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. For purposes of this Series Supplement, any reference to "written" or "in writing" means any form of written
communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by Electronic Transmission. "Electronic Transmission" means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process. The Trustee is authorized to accept written instructions, directions, reports, notices or other communications delivered by Electronic Transmission and shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by Electronic Transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such Electronic Transmission, and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties (except to the extent such action results from gross negligence, willful misconduct or fraud by the Trustee). Any requirement in this Series Supplement that is to be signed or authenticated by "manual signature" or similar language shall not be deemed to prohibit signature to be by facsimile or electronic signature and shall not be deemed to prohibit delivery thereof by Electronic Transmission. Notwithstanding anything to the contrary in this Series Supplement, any and all communications (both text and attachments) by or from the Trustee that the Trustee in its sole discretion deems to contain confidential, proprietary and/or sensitive information and sent by Electronic Transmission will be encrypted. The recipient of the Electronic Transmission will be required to complete a one-time registration process.
Section 5.6 Governing Law. THIS SERIES SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section 5.7 Amendments. This Series Supplement may not be modified or amended except in accordance with the terms of the Base Indenture.
Section 5.8 Termination of Series Supplement; Series Defeasance. This Series Supplement shall cease to be of further effect when (i) all Outstanding Series 2022-1 Notes theretofore authenticated and issued have been delivered (other than destroyed, lost, or stolen Series 2022-1 Notes that have been replaced or paid) to the Trustee for cancellation (or have been deregistered, in the case of Uncertificated Notes) and all Letters of Credit have expired, have been cash collateralized in full pursuant to the terms of the Series 2022-1 Class A-1 Note Purchase Agreement or are deemed to no longer be outstanding in accordance with Section 4.04 of the Series 2022-1 Class A-1 Note Purchase Agreement, (ii) all fees and expenses and other amounts under the Series 2022-1 Class A-1 Note Purchase Agreement have been paid in full and all Series 2022-1 Class A-1 Commitments have been terminated and (iii) the Issuer has paid all sums payable hereunder; provided that any provisions of this Series Supplement required for the Series 2022-1 Final Payment to be made shall survive until the Series 2022-1 Final Payment is paid to the Series 2022-1 Noteholders. In accordance with Section 6.1(a) of the Base Indenture, the final principal payment due on each Series 2022-1 Note shall only be paid upon due presentment and surrender of such Note for cancellation in accordance with the provisions of such Note at the applicable Corporate Trust Office, which such surrender shall also constitute a general release by the applicable Noteholder from any claims against the Securitization Entities, the Manager, the Trustee and their affiliates.
(b) In addition to (and notwithstanding) the terms of Section 12.1 of the Base Indenture, upon the payment in full (whether optional or mandatory) or a redemption in full of a particular Class of Series 2022-1 Notes as provided hereunder as Defeased Notes, the Obligations
of the Issuer and the Guarantors under the Indenture Documents in respect of such Defeased Notes shall be terminated.
Section 5.9 Entire Agreement. This Series Supplement, together with the exhibits and schedules hereto and the other Indenture Documents, contains a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all previous oral statements and other writings with respect thereto.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Issuer, the Trustee and the Series 2022-1 Securities Intermediary have caused this Series Supplement to be duly executed by its respective duly authorized officer as of the day and year first written above.
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| | | WINGSTOP FUNDING LLC, |
| | | as the Issuer |
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| | | By: ____________________________ |
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Wingstop Supplement to Base Indenture
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| | | CITIBANK, N.A., in its capacity as |
| | | Trustee and as Series 2022-1 Securities |
| | | Intermediary |
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| | | By: _____________________________ |
| | | Name:
Title: |
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Wingstop Supplement to Base Indenture
ANNEX A
SERIES 2022-1 SUPPLEMENTAL DEFINITIONS LIST
“30/360 Day Basis” means the accrual of interest calculated on the basis of a 360-day year consisting of twelve 30-day months.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Additional Series 2022-1 Class A-1 Advance Notes” has the meaning set forth in the “Designation” in the Series 2022-1 Supplement.
“Additional Series 2022-1 Class A-1 Notes” has the meaning set forth in the “Designation” in the Series 2022-1 Supplement.
“Administrative Agent Fees” has the meaning set forth in the Series 2022-1 Class A-1 Notes Fee Letter.
“Advance Request” has the meaning set forth in Section 7.03(d) of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Agent Members” means members of, or participants in, DTC.
“Assignment and Assumption Agreement” has the meaning set forth in Section 9.17(a) of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Base Rate” means, for purposes of the Series 2022-1 Class A-1 Notes, on any day, a rate per annum equal to the sum of (a) 0.880.60% plus (b) the greater of (i) the Series 2022-1 Prime Rate in effect on such day and (ii) the Federal Funds Rate in effect on such day plus 0.50% and (iii) the Adjusted Term SOFR in effect on such day plus 1.00%; provided that any change in the Base Rate due to a change in the Series 2022-1 Prime Rate, Federal Funds Rate or Adjusted Term SOFR shall be effective as of the opening of business on the effective day of such change in the Series 2022-1 Prime Rate, Federal Funds Rate or Adjusted Term SOFR, respectively; provided, further, that changes in any rate of interest calculated by reference to the Base Rate shall take effect simultaneously with each change in the Base Rate and the Base Rate will in no event be higher than the maximum rate permitted by applicable law.
“Base Rate Advance” means a Series 2022-1 Class A-1 Advance that bears interest at the Base Rate during such time as it bears interest at such rate, as provided in the Series 2022-1 Class A-1 Note Purchase Agreement.
“Breakage Amount” has the meaning set forth in Section 3.06 of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Cede” has the meaning set forth in Section 4.2(b)(i) of the Series 2022-1 Supplement.
“Change in Law” means (a) any law, rule or regulation or any change therein or in the interpretation or application thereof (whether or not having the force of law), in each case, adopted, issued or occurring after the Series 2022-1 Closing Date or (b) any request, guideline or directive (whether or not having the force of law) from any government or political subdivision or
agency, authority, bureau, central bank, commission, department or instrumentality thereof, or any court, tribunal, grand jury or arbitrator, or any accounting board or authority (whether or not a Governmental Authority) which is responsible for the establishment or interpretation of national or international accounting principles, in each case, whether foreign or domestic (each, an “Official Body”) charged with the administration, interpretation or application thereof, or the compliance with any request or directive of any Official Body (whether or not having the force of law) made, issued or occurring after the Series 2022-1 Closing Date.
“Change of Control” has the meaning ascribed to such term in the Management Agreement.
“Class A-1 Amendment Expenses” means the amounts payable pursuant to Section 9.05(a)(ii) of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Class A-1 Extension Fees” means the fees payable pursuant to the Series 2022-1 Class A-1 Notes Fee Letter in connection with the extension of a Commitment Termination Date.
“Class A-1 Indemnities” means all amounts payable pursuant to Section 9.05(b) of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Commercial Paper” means, with respect to any Conduit Investor, the promissory notes issued in the commercial paper market by or for the benefit of such Conduit Investor.
“Commitment Fees Adjustment Amount” means, for any Interest Accrual Period, the result (whether a positive or negative number) of (a) the aggregate of the Daily Commitment Fee Amounts for each day in such Interest Accrual Period minus (b) the aggregate of the Estimated Daily Commitment Fees Amounts for each day in the Quarterly Fiscal Period ending in such Interest Accrual Period. For purposes of the Base Indenture, the “Commitment Fees Adjustment Amount” shall be deemed to be a “Class A-1 Notes Commitment Fees Adjustment Amount”.
“Commitments” means, once a Note Purchaser has agreed to fund a Series 2022-1 Class A-1 Advance (whether because of a Temporary Commitment Advance Period or an agreement to fund in accordance with Section 2.03(a) of the Series 2022-1 Class A-1 Note Purchase Agreement), the obligation of such Note Purchaser included in each Investor Group to fund Series 2022-1 Class A-1 Advances pursuant to Section 2.02(a) of the Series 2022-1 Class A-1 Note Purchase Agreement in an aggregate stated amount up to its Commitment Amount.
“Commitment Amount” means, as to each Note Purchaser, an amount equal to (x) the outstanding amount of Advances of such Note Purchaser, plus (y) such Note Purchaser’s Note Purchaser TCAP Amount plus (z) such Note Purchaser’s Note Purchaser Percentage of any Series 2022-1 Class A-1 Outstanding Subfacility Amount, not to exceed the Maximum Commitment Amount of such Note Purchaser or, in the case of a Note Purchaser that becomes a party to the Series 2022-1 Class A-1 Note Purchase Agreement pursuant to an Assignment and Assumption Agreement or Investor Group Supplement, the amount set forth therein as such Note Purchaser’s Maximum Commitment Amount, in each case, as such amount may be (i) reduced pursuant to Section 2.05 of the Series 2022-1 Class A-1 Note Purchase Agreement or (ii) increased or reduced by any Assignment and Assumption Agreement or Investor Group Supplement entered into by such Note Purchaser in accordance with the terms of the Series 2022-1 Class A-1 Note Purchase Agreement. To the extent a Note Purchaser has no Series 2022-1 Class A-1 Advances outstanding and has not consented to make any Series 2022-1 Class A-1 Advances that have not yet been made, the Commitment Amount shall be zero.
“Commitment Percentage” means, on any date of determination, with respect to any Investor Group, the ratio, expressed as a percentage, which such Investor Group’s Maximum Investor Group Principal Amount bears to the maximum dollar amount set forth in the definition of “Series 2022-1 Class A-1 Notes Maximum Principal Amount” on such date.
“Commitment Term” means the period from and including the Series 2022-1 Closing Date to but excluding the earlier of (a) the Commitment Termination Date and (b) the date on which the Commitments are terminated or the Maximum Commitment Amount is reduced to zero in accordance with the Series 2022-1 Class A-1 Note Purchase Agreement.
“Commitment Termination Date” means the Series 2022-1 Class A-1 Notes Renewal Date (as such date may be extended pursuant to Section 3.6(b) of the Series 2022-1 Supplement).
“Conduit Assignee” means, with respect to any Conduit Investor, any commercial paper conduit, whose Commercial Paper is rated by at least one of the Specified Rating Agencies and is rated at least “A-2” from S&P and/or the equivalent rating of another “nationally-recognized statistical rating organization” registered with the SEC, that is administered by the Funding Agent (or for which the related Program Support Provider provides liquidity support) with respect to such Conduit Investor or any Affiliate of such Funding Agent, in each case, designated by such Funding Agent to accept an assignment from such Conduit Investor of the Investor Group Principal Amount or a portion thereof with respect to such Conduit Investor pursuant to Section 9.17(b) of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Conduit Investors” has the meaning set forth in the preamble to the Series 2022-1 Class A-1 Note Purchase Agreement.
“Confirmation of Registration” means, with respect to an Uncertificated Note, a confirmation of registration, substantially in the form of Exhibit D attached hereto, provided to the owner thereof promptly after the registration of the Uncertificated Note in the Note Register by the Note Registrar.
“CP Advance” means a Series 2022-1 Class A-1 Advance that bears interest at the CP Rate during such time as it bears interest at such rate, as provided in the Series 2022-1 Class A-1 Note Purchase Agreement.
“CP Funding Rate” means, with respect to each Conduit Investor, for any day during any Interest Accrual Period, for any portion of the Series 2022-1 Class A-1 Advances funded or maintained through the issuance of Commercial Paper by such Conduit Investor, the per annum rate equivalent to the weighted average cost (as determined by the related Funding Agent, and which shall include (without duplication) the fees and commissions of placement agents and dealers, incremental carrying costs incurred with respect to Commercial Paper maturing on dates other than those on which corresponding funds are received by such Conduit Investor, other borrowings by such Conduit Investor and any other costs associated with the issuance of Commercial Paper) of or related to the issuance of Commercial Paper that are allocated, in whole or in part, by such Conduit Investor or its related Funding Agent to fund or maintain such Series 2022-1 Class A-1 Advances for such Interest Accrual Period (and which may also be allocated in part to the funding of other assets of the Conduit Investor); provided, however, that if any component of any such rate is a discount rate, in calculating the “CP Funding Rate” for such Series 2022-1 Class A-1 Advances for such Interest Accrual Period, the related Funding Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum.
“CP Rate” means, on any day during any Interest Accrual Period, an interest rate per annum equal to the sum of (i) the CP Funding Rate for such Interest Accrual Period plus (ii) 1.881.60%.
“Daily Commitment Fees Amount” means, for any day, the Temporary Commitment Availability Period Fees that accrue for such day.
“Daily Interest Amount” means, for any day during any Interest Accrual Period, the sum of the following amounts:
(i)with respect to any SOFR Advance outstanding on such day, the result of (i) the product of (x) the Term SOFR Rate in effect for the Interest Accrual Period that includes such day and (y) the principal amount of such Series 2022-1 Class A-1 Advance outstanding as of the close of business on such day divided by (ii) 360; plus
(ii)with respect to any Base Rate Advance outstanding on such day, the result of (i) the product of (x) the Base Rate in effect for such day and (y) the principal amount of such Series 2022-1 Class A-1 Advance outstanding as of the close of business on such day divided by (ii) 365 or 366, as applicable; plus
(iii)with respect to any CP Advance outstanding on such day, the result of (i) the product of (x) the CP Rate in effect for such Interest Accrual Period and (y) the principal amount of such Series 2022-1 Class A-1 Advance outstanding as of the close of business on such day divided by (ii) 360; plus
(iv)with respect to any Unreimbursed L/C Drawings outstanding on such day, the result of (i) the product of (x) the Base Rate in effect for such day and (y) the principal amount of such Unreimbursed L/C Drawings outstanding as of the close of business on such day divided by (ii) 365 or 366, as applicable; plus
(v)with respect to any Undrawn L/C Face Amounts outstanding on such day, the L/C Quarterly Fees that accrue thereon for such day.
“Daily Post-Renewal Date Additional Interest Amount” means, for any day during any Interest Accrual Period commencing on or after the Series 2022-1 Class A-1 Notes Renewal Date, the sum of (a) the result of (i) the product of (x) the Series 2022-1 Class A-1 Post-Renewal Date Additional Interest Rate and (y) the Series 2022-1 Class A-1 Outstanding Principal Amount (excluding any Base Rate Advances and Undrawn L/C Fee Amounts included therein) as of the close of business on such day divided by (ii) 360 and (b) the result of (i) the product of (x) the Series 2022-1 Class A-1 Post-Renewal Date Additional Interest Rate and (y) any Base Rate Advances included in the Series 2022-1 Class A-1 Outstanding Principal Amount as of the close of business on such day divided by (ii) 365 or 366, as applicable.
“Decrease” means a Mandatory Decrease or a Voluntary Decrease, as applicable.
“Defaulting Investor” means any Investor that has (a) failed to make a payment required to be made by it under the terms of the Series 2022-1 Class A-1 Note Purchase Agreement within one (1) Business Day of the day such payment is required to be made by such Investor thereunder, (b) notified the Series 2022-1 Class A-1 Administrative Agent in writing that it does not intend to make any payment required to be made by it under the terms of the Series 2022-1 Class A-1 Note Purchase Agreement within one Business Day of the day such payment is required to be made by such Investor thereunder, (c) become the subject of an Event of Bankruptcy or (d) become the subject of a Bail-In Action (as such term is defined in Section 9.22 of the Class A-1 Note Purchase Agreement).
“Definitive Notes” has the meaning set forth in Section 4.2(c) of the Series 2022-1 Supplement.
“Draw Fees” has the meaning set forth in the Series 2022-1 Class A-1 Notes Fee Letter.
“DTC” means The Depository Trust Company, and any successor thereto.
“Eligible Conduit Investor” means, at any time, any Conduit Investor whose Commercial Paper at such time is rated by at least one of the Specified Rating Agencies and is rated at least “A-1” from S&P and/or the equivalent rating of another “nationally-recognized statistical rating organization” registered with the SEC.
“Estimated Daily Commitment Fees Amount” means (a) for any day during the first Quarterly Fiscal Period, $0, and (b) for any day during any other Quarterly Fiscal Period, the average of the Daily Commitment Fees Amounts for each day during the immediately preceding Quarterly Fiscal Period.
“Estimated Daily Interest Amount” means (a) for any day during the first Quarterly Fiscal Period, $0, and (b) for any day during any other Quarterly Fiscal Period, the average of the Daily Interest Amounts for each day during the immediately preceding Quarterly Fiscal Period.
“EU/UK Applicable Investor Put Option” has the meaning set forth in the EU/UK Risk Retention Letter.
“EU/UK Risk Retention Letter” means that certain letter agreement, dated as of the Series 2022-1 Closing Date, entered into by WRI in favor of the Issuer, the Trustee (for itself and for the benefit of the EU/UK Applicable Investors (as defined therein)) and the Initial Purchasers.
“FATCA” means (a) Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations thereunder or official interpretations thereof, (b) any treaty, law, regulation, or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction with the purpose (in either case) of facilitating the implementation of (a) above, or (c) any agreement pursuant to the implementation of paragraphs (a) or (b) above with the U.S. Internal Revenue Service or any other Governmental Authority in the United States.
“Federal Funds Rate” means, for any specified period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the overnight federal funds rates as published in Federal Reserve Board Statistical Release H.15(519) or any successor or substitute publication selected by the Series 2022-1 Class A-1 Administrative Agent (or, if such day is not a Business Day, for the next preceding Business Day), or if, for any reason, such rate is not available on any day, the rate determined, in the reasonable opinion of the Series 2022-1 Class A-1 Administrative Agent, to be the rate at which overnight federal funds are being offered in the national federal funds market at 9:00 a.m. (New York City time).
“Floor” means 0.500.00%.
“F.R.S. Board” means the Board of Governors of the Federal Reserve System.
“Funding Agent” has the meaning set forth in the preamble to the Series 2022-1 Class A-1 Note Purchase Agreement.
“Increase” has the meaning set forth in Section 2.1(a) of the Series 2022-1 Supplement.
“Increased Capital Costs” has the meaning set forth in Section 3.07 of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Increased Costs” has the meaning set forth in Section 3.05 of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Increased Tax Costs” has the meaning set forth in Section 3.08(b) of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Initial Purchaser” means, collectively, Morgan Stanley Bank, N.A.
“Initial Quarterly Payment Date” means the Quarterly Payment Date occurring in September 2022.
“Initial Senior Notes Interest Reserve Deposit” means an aggregate amount equal to or (at the election of the Manager) greater than the Senior Notes Interest Reserve Amount in respect of the initial Quarterly Payment Date occurring in September 2022.
“Interest Adjustment Amount” means, for any Interest Accrual Period, the result (whether a positive or negative number) of (a) the aggregate of the Daily Interest Amounts for each day in such Interest Accrual Period minus (b) the aggregate of the Estimated Daily Interest Amounts for each day in the Quarterly Fiscal Period ending in such Interest Accrual Period. For purposes of the Base Indenture, the “Interest Adjustment Amount” for any Interest Accrual Period shall be deemed to be a “Class A-1 Notes Interest Adjustment Amount” for such Interest Accrual Period.
“Investor” means any one of the Conduit Investors and the Note Purchasers, and “Investors” means the Conduit Investors and the Note Purchasers collectively.
“Investor Group” means (i) for each Conduit Investor, collectively, such Conduit Investor, the related Note Purchaser(s) set forth opposite the name of such Conduit Investor on Schedule I to the Series 2022-1 Class A-1 Note Purchase Agreement (or, if applicable, set forth for such Conduit Investor in the Assignment and Assumption Agreement or Investor Group Supplement pursuant to which such Conduit Investor or Note Purchaser becomes a party thereto), any related Program Support Provider(s) and the related Funding Agent (which shall constitute the Series 2022-1 Class A-1 Noteholder for such Investor Group) and (ii) for each other Note Purchaser that is not related to a Conduit Investor, collectively, such Note Purchaser, any related Program Support Provider(s) and the related Funding Agent (which shall constitute the Series 2022-1 Class A-1 Noteholder for such Investor Group).
“Investor Group Increase Amount” means, with respect to any Investor Group, for any Business Day, the portion of the Increase, if any, actually funded by such Investor Group on such Business Day.
“Investor Group Principal Amount” means, with respect to any Investor Group, (a) when used with respect to the Series 2022-1 Closing Date, an amount equal to (i) such Investor Group’s Commitment Percentage of the Series 2022-1 Class A-1 Initial Advance Principal Amount plus (ii) such Investor Group’s Commitment Percentage of the Series 2022-1
Class A-1 Outstanding Subfacility Amount outstanding on the Series 2022-1 Closing Date, and (b) when used with respect to any other date, an amount equal to (i) the Investor Group Principal Amount with respect to such Investor Group on the immediately preceding Business Day (excluding any Series 2022-1 Class A-1 Outstanding Subfacility Amount included therein) plus (ii) the Investor Group Increase Amount with respect to such Investor Group on such date minus (iii) the amount of principal payments made to such Investor Group on the Series 2022-1 Class A-1 Advance Notes on such date plus (iv) the outstanding portion of the Series 2022-1 Class A-1 Outstanding Subfacility Amount on such date that is held by such Investor Group.
“Investor Group Supplement” has the meaning set forth in Section 9.17(c) of the Series 2022-1 Class A-1 Note Purchase Agreement.
“L/C Commitment” means the obligation of the L/C Provider to provide Letters of Credit pursuant to Section 2.07 of the Series 2022-1 Class A-1 Note Purchase Agreement, in an aggregate Undrawn L/C Face Amount, together with any Unreimbursed L/C Drawings, at any one time outstanding not to exceed $20,000,000, as such amount may be reduced pursuant to Section 2.05(b) or Section 2.07(g) or otherwise modified pursuant to Section 2.07 of the Series 2022-1 Class A-1 Note Purchase Agreement.
“L/C Obligations” means, at any time, an amount equal to the sum of (i) any Undrawn L/C Face Amounts outstanding at such time and (ii) any Unreimbursed L/C Drawings outstanding at such time.
“L/C Other Reimbursement Costs” has the meaning set forth in Section 2.08(a)(ii) of the Series 2022-1 Class A-1 Note Purchase Agreement.
“L/C Provider” means Morgan Stanley Bank, N.A., in its capacity as provider of any Letter of Credit under the Series 2022-1 Class A-1 Note Purchase Agreement, and its permitted successors and assigns in such capacity.
“L/C Quarterly Fees” has the meaning set forth in Section 2.07(d) of the Series 2022-1 Class A-1 Note Purchase Agreement.
“L/C Reimbursement Amount” has the meaning set forth in Section 2.08(a) of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Lender Party” means any Investor or the L/C Provider and “Lender Parties” means the Investors and the L/C Provider, collectively.
“Letter of Credit” has the meaning set forth in Section 2.07(a) of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Mandatory Decrease” has the meaning set forth in Section 2.2(a) of the Series 2022-1 Supplement.
“Maximum Commitment Amount” the dollar amount set forth on Schedule I to the Series 2022-1 Class A-1 Note Purchase Agreement opposite such Note Purchaser.
“Maximum Investor Group Principal Amount” means, as to each Investor Group existing on the Series 2022-1 Closing Date, the dollar amount set forth on Schedule I to the Series 2022-1 Class A-1 Note Purchase Agreement as such Investor Group’s Maximum Investor Group Principal Amount or, in the case of any other Investor Group, the amount set forth as such Investor Group’s Maximum Investor Group Principal Amount in the Assignment and Assumption Agreement or Investor Group Supplement by which the members of such Investor Group become
parties to the Series 2022-1 Class A-1 Note Purchase Agreement, in each case, as such amount may be (i) reduced pursuant to Section 2.05 of the Series 2022-1 Class A-1 Note Purchase Agreement or (ii) increased or reduced by any Assignment and Assumption Agreement or Investor Group Supplement entered into by the members of such Investor Group in accordance with the terms of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Note Purchaser” has the meaning set forth in the preamble to the Series 2022-1 Class A-1 Note Purchase Agreement.
“Note Purchaser Percentage” means, on any date of determination, with respect to any Note Purchaser in any Investor Group, the ratio, expressed as a percentage, which the Maximum Commitment Amount of such Note Purchaser bears to such Investor Group’s Maximum Investor Group Principal Amount on such date.
“Note Purchaser TCAP Amount” means, with respect to any Note Purchaser, the product of (x) its Note Purchaser Percentage times (y) its Investor Group’s Commitment Percentage times (z) the TCAP Amount.
“Offering Memorandum” means the Offering Memorandum for the offering and sale of the Series 2022-1 Class A-2 Notes, dated as of March 2, 2022 prepared by the Issuer.
“Official Body” has the meaning set forth in the definition of Change in Law.
“Original Series 2022-1 Class A-1 Advance Notes” has the meaning set forth in the “Designation” in the Series 2022-1 Supplement.
“Original Series 2022-1 Class A-1 Notes” has the meaning set forth in the “Designation” in the Series 2022-1 Supplement.
“Other Class A-1 Transaction Expenses” means all amounts payable pursuant to Section 9.05(a) of the Series 2022-1 Class A-1 Note Purchase Agreement other than Class A-1 Amendment Expenses.
“Permanent Regulation S Global Notes” has the meaning set forth in Section 4.2(b)(ii) of the Series 2022-1 Supplement.
“Prepayment Condition Amounts” means, with respect to any Quarterly Payment Date, the following amounts with respect to such Quarterly Payment Date: the Senior Notes Quarterly Interest Amount, the Class A-1 Notes Quarterly Commitment Fees Amount, the Senior Subordinated Notes Quarterly Interest Amount, the Senior Notes Aggregate Scheduled Principal Payments, the aggregate amount of Senior Subordinated Notes Accrued Scheduled Principal Payments Amount for the corresponding Quarterly Fiscal Period, the Subordinated Notes Quarterly Interest Amount, and the aggregate amount of Subordinated Notes Accrued Scheduled Principal Payments Amounts for the corresponding Quarterly Fiscal Period.
“Prepayment Consideration End Date” has the meaning set forth in Section 3.6(e) of the Series 2022-1 Supplement.
“Prepayment Notice” has the meaning set forth in Section 3.6(g) of the Series 2022-1 Supplement.
“Prepayment Record Date” means, with respect to the date of any Series 2022-1 Prepayment, the last day of the calendar month immediately preceding the date of such Series 2022-1 Prepayment unless such last day is less than ten (10) Business Days prior to the date of
such Series 2022-1 Prepayment, in which case the “Prepayment Record Date” will be the last day of the second calendar month immediately preceding the date of such Series 2022-1 Prepayment.
“Program Support Agreement” means, with respect to any Conduit Investor, any agreement entered into by any Program Support Provider in respect of any Commercial Paper and/or Series 2022-1 Class A-1 Note of such Conduit Investor providing for the issuance of one or more letters of credit for the account of such Conduit Investor, the issuance of one or more insurance policies for which such Conduit Investor is obligated to reimburse the applicable Program Support Provider for any drawings thereunder, the sale by such Conduit Investor to any Program Support Provider of the Series 2022-1 Class A-1 Notes (or portions thereof or interests therein) and/or the making of loans and/or other extensions of credit to such Conduit Investor in connection with such Conduit Investor’s securitization program, together with any letter of credit, insurance policy or other instrument issued thereunder or guaranty thereof (but excluding any discretionary advance facility provided by a Note Purchaser).
“Program Support Provider” means, with respect to any Conduit Investor, any financial institutions and any other or additional Person now or hereafter extending credit or having a commitment to extend credit to or for the account of, and/or agreeing to make purchases from, such Investor in respect of such Conduit Investor’s Commercial Paper and/or Series 2022-1 Class A-1 Note, and/or agreeing to issue a letter of credit or insurance policy or other instrument to support any obligations arising under or in connection with such Conduit Investor’s securitization program as it relates to any Commercial Paper issued by such Conduit Investor, and/or holding equity interests in such Investor, in each case pursuant to a Program Support Agreement, and any guarantor of any such Person.
“Qualified Institutional Buyer” or “QIB” means a Person who is a “qualified institutional buyer” as defined in Rule 144A.
“Rating Agency” means KBRA, and any successor or successors thereto. In the event that at any time the rating agency rating the Series 2022-1 Notes is not KBRA, references to rating categories of such former Rating Agency in the Series 2022-1 Supplement shall be deemed instead to be references to the equivalent categories of such other rating agency (or rating agencies) as then is rating the Series 2022-1 Notes as of the most recent date on which such other rating agency published ratings for the type of security in respect of which such alternative rating agency is used.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Notes” means, collectively, the Temporary Regulation S Global Notes and the Permanent Regulation S Global Notes.
“Reimbursement Obligation” means the obligation of the Issuer to reimburse the L/C Provider pursuant to Section 2.08 of the Series 2022-1 Class A-1 Note Purchase Agreement for amounts drawn under Letters of Credit.
“Restricted Period” means, with respect to any Series 2022-1 Class A-2 Notes sold pursuant to Regulation S, the period commencing on the Series 2022-1 Closing Date and ending on the 40th day after the Series 2022-1 Closing Date.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 144A Global Notes” has the meaning set forth in Section 4.2(b)(i) of the Series 2022-1 Supplement.
“Series 2022-1 Anticipated Repayment Date” has the meaning set forth in Section 3.6(b) of the Series 2022-1 Supplement. For purposes of the Base Indenture, the “Series 2022-1 Anticipated Repayment Date” shall be deemed to be an “Anticipated Repayment Date”.
“Series 2022-1 Class A-1 Administrative Agent” means Morgan Stanley Asset Funding Inc., in its capacity as administrative agent under the Series 2022-1 Class A-1 Note Purchase Agreement, and its permitted successors and assigns in such capacity. For purposes of the Base Indenture, the “Series 2022-1 Class A-1 Administrative Agent” shall be deemed to be a “Class A-1 Administrative Agent”.
“Series 2022-1 Class A-1 Administrative Expenses” means, for any Weekly Allocation Date, the aggregate amount of any Administrative Agent Fees and Class A-1 Amendment Expenses then due and payable and not previously paid and, if the following Quarterly Payment Date is a Series 2022-1 Class A-1 Notes Renewal Date, the amount of any Class A-1 Extension Fees due and payable on such Quarterly Payment Date. For purposes of the Base Indenture, the “Series 2022-1 Class A-1 Administrative Expenses” shall be deemed to be “Class A-1 Notes Administrative Expenses.”
“Series 2022-1 Class A-1 Advance” has the meaning set forth in the recitals to the Series 2022-1 Class A-1 Note Purchase Agreement.
“Series 2022-1 Class A-1 Advance Notes” has the meaning set forth in “Designation” in the Series 2022-1 Supplement.
“Series 2022-1 Class A-1 Advance Request” has the meaning set forth under “Advance Request” in this Annex A.
“Series 2022-1 Class A-1 Breakage Amount” has the meaning set forth under “Breakage Amount” in this Annex A.
“Series 2022-1 Class A-1 Commitments” has the meaning set forth under “Commitments” in this Annex A.
“Series 2022-1 Class A-1 Distribution Account” has the meaning set forth in Section 3.7(a) of the Series 2022-1 Supplement.
“Series 2022-1 Class A-1 Excess Principal Event” shall be deemed to have occurred if, on any date, the Series 2022-1 Class A-1 Outstanding Principal Amount exceeds the Series 2022-1 Class A-1 Notes Maximum Principal Amount.
“Series 2022-1 Class A-1 Initial Advance” has the meaning set forth in Section 2.1(a) of the Series 2022-1 Supplement.
“Series 2022-1 Class A-1 Initial Advance Principal Amount” means the aggregate initial outstanding principal amount of the Original Series 2022-1 Class A-1 Advance Notes corresponding to the aggregate amount of the Series 2022-1 Class A-1 Initial Advances made on the Series 2022-1 Closing Date pursuant to Section 2.1(a) of the Series 2022-1 Supplement, which iswas $0.
“Series 2022-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount” means the aggregate initial outstanding principal amount of the Series 2022-1 Class A-1 L/C Note of the L/C Provider corresponding to the aggregate Undrawn L/C Face Amounts of the Letters of Credit issued on the Series 2022-1 Closing Date pursuant to Section 2.07 of the Series 2022-1 Class A-1 Note Purchase Agreement, which iswas $0.
“Series 2022-1 Class A-1 L/C Fees” means the L/C Quarterly Fees. For purposes of the Base Indenture, the Series 2022-1 Class A-1 L/C Fees shall be deemed to be a “Senior Notes Quarterly Interest Amount”.
“Series 2022-1 Class A-1 L/C Notes” has the meaning set forth in “Designation” in the Series 2022-1 Supplement.
“Series 2022-1 Class A-1 L/C Obligations” has the meaning set forth under “L/C Obligations” in this Annex A.
“Series 2022-1 Class A-1 Note Purchase Agreement” means the Series 2022-1 Class A-1 Note Purchase Agreement, dated as of the Series 2022-1 Closing Date, as amended and restated as of the Series 2022-1 Upsize Closing Date, by and among WRI, the Securitization Entities, and the initial purchasers of the Series 2022-1 Class A-1 Notes identified therein, pursuant to which the Series 2022-1 Class A-1 Noteholders have agreed to purchase the Series 2022-1 Class A-1 Notes from the Issuer, subject to the terms and conditions set forth therein, as amended, supplemented or otherwise modified from time to time. For purposes of the Base Indenture, the “Series 2022-1 Class A-1 Note Purchase Agreement” shall be deemed to be a “Class A-1 Note Purchase Agreement.”
“Series 2022-1 Class A-1 Note Rate” means, for any day, (a) with respect to that portion of the Series 2022-1 Class A-1 Outstanding Principal Amount resulting from Series 2022-1 Class A-1 Advances that bear interest on such day at the CP Rate in accordance with Section 3.01 of the Series 2022-1 Class A-1 Note Purchase Agreement, the CP Rate in effect for the Interest Accrual Period that includes such day; (b) with respect to that portion of the Series 2022-1 Class A-1 Outstanding Principal Amount resulting from Series 2022-1 Class A-1 Advances that bear interest on such day at the Term SOFR Rate in accordance with Section 3.01 of the Series 2022-1 Class A-1 Note Purchase Agreement, the Term SOFR Rate (or following certain events, a Benchmark Replacement) in effect for the Interest Accrual Period that includes such day; (c) with respect to that portion of the Series 2022-1 Class A-1 Outstanding Principal Amount resulting from Series 2022-1 Class A-1 Advances that bear interest on such day at the Base Rate in accordance with Section 3.01 of the Series 2022-1 Class A-1 Note Purchase Agreement, the Base Rate in effect for such day; (d) with respect to that portion of the Series 2022-1 Class A-1 Outstanding Principal Amount consisting of Unreimbursed L/C Drawings outstanding on such day, the Base Rate in effect for such day; and (e) with respect to any other amounts that any Transaction Document provides is to bear interest by reference to the Series 2022-1 Class A-1 Note Rate, the Base Rate in effect for such day; in each case, computed in accordance with Section 3.01(f) of the Series 2022-1 Class A-1 Note Purchase Agreement; provided, however, that the Series 2022-1 Class A-1 Note Rate will in no event be higher than the maximum rate permitted by applicable law.
“Series 2022-1 Class A-1 Noteholder” means the Person in whose name a Series 2022-1 Class A-1 Note is registered in the Note Register.
“Series 2022-1 Class A-1 Notes” has the meaning set forth in the “Designation” in the Series 2022-1 Supplement.
“Series 2022-1 Class A-1 Notes Amortization Event” means the event in which the Outstanding Principal Amount of the Series 2022-1 Class A-1 Notes is not paid in full or otherwise refinanced in full (which refinancing may also include an extension thereof) on or prior to the Series 2022-1 Class A-1 Notes Renewal Date (as may be extended pursuant to Section 3.6(b)). For purposes of the Base Indenture, a “Series 2022-1 Class A-1 Notes Amortization Event” shall be deemed to be a “Class A-1 Notes Amortization Event.”
“Series 2022-1 Class A-1 Notes Amortization Period” means the period commencing on the date on which a Series 2022-1 Class A-1 Notes Amortization Event occurs and ending on the date on which there are no Series 2022-1 Class A-1 Notes Outstanding. For purposes of the Base Indenture, a “Series 2022-1 Class A-1 Notes Amortization Period” shall be deemed to be a “Class A-1 Notes Amortization Period.”
“Series 2022-1 Class A-1 Notes Estimated Quarterly Commitment Fees” means, with respect to each Quarterly Fiscal Period, an amount equal to the sum of the aggregate of the Estimated Daily Commitment Fees Amounts for each day in such Quarterly Fiscal Period. For purposes of the Base Indenture, “Series 2022-1 Class A-1 Estimated Quarterly Commitment Fees” shall be deemed to be “Class A-1 Notes Estimated Quarterly Commitment Fees.”.
“Series 2022-1 Class A-1 Notes Estimated Quarterly Interest Amount” means, with respect to each Quarterly Fiscal Period, an amount equal to the sum of the aggregate of the Estimated Daily Interest Amounts for each day in such Quarterly Fiscal Period. For purposes of the Base Indenture, the “Series 2022-1 Class A-1 Estimated Quarterly Interest Amount” shall be deemed to be a “Senior Notes Estimated Quarterly Interest Amount.”
“Series 2022-1 Class A-1 Notes Fee Letter” means the Fee Letter, dated as of the Series 2022-1 Closing Date, as amended and restated as of the Series 2022-1 Upsize Closing Date, by and among the Issuer, the Guarantors, the Manager and the Series 2022-1 Class A-1 Administrative Agent, as the same may be amended, supplemented or otherwise modified from time to time pursuant to the terms thereof.
“Series 2022-1 Class A-1 Notes Maximum Principal Amount” means (x) the aggregate amount of all outstanding Advances plus (y) any Series 2022-1 Class A-1 Outstanding Subfacility Amount plus (z) any TCAP Amount, up to (i) prior to the Series 2022-1 Upsize Closing Date, aggregate amount of $200,000,000 and (ii) on and after the Series 2022-1 Upsize Closing Date, an aggregate maximum amount of $200,000,000300,000,000, as such amount may be modified in accordance with the terms of the Series 2022-1 Class A-1 Note Purchase Agreement. To the extent no Series 2022-1 Class A-1 Advances are outstanding and no Investor has agreed to make any Series 2022-1 Class A-1 Advances that have not yet been made, the Series 2022-1 Class A-1 Notes Maximum Principal Amount shall be zero.
“Series 2022-1 Class A-1 Notes Other Amounts” means, for any Weekly Allocation Date, the aggregate amount of any Breakage Amount, Class A-1 Indemnities, Increased Capital Costs, Increased Costs, Increased Tax Costs, L/C Other Reimbursement Costs and Other Class A-1 Transaction Expenses then due and payable and not previously paid. For purposes of the Base Indenture, the “Series 2022-1 Class A-1 Notes Other Amounts” shall be deemed to be “Class A-1 Notes Other Amounts”.
“Series 2022-1 Class A-1 Notes Quarterly Commitment Fees Amount” means, for any Interest Accrual Period, with respect to all Outstanding Series 2022-1 Class A-1 Notes, the aggregate of the Daily Commitment Fee Amounts for each day in such Interest Accrual Period. For purposes of the Base Indenture, the “Series 2022-1 Class A-1 Notes Quarterly Commitment Fees Amount” shall be deemed to be a “Class A-1 Notes Quarterly Commitment Fees Amount”.
“Series 2022-1 Class A-1 Notes Renewal Date” means the Quarterly Payment Date in March 2027, which date may be extended at such time at the election of the Manager (on behalf of the Issuer) until the Quarterly Payment Date in March 2028, and may be further extended at the election of Manager (on behalf of the Issuer) on the Quarterly Payment Date in March 2028 until the Quarterly Payment Date in March 2029, in each case pursuant to Section 3.6(b) of the Series 2022-1 Supplement, but in each case without the consent of the Trustee, the
Control Party, the Controlling Class Representative, the Series 2022-1 Class A-1 Administrative Agent, the Series 2022-1 Class A-1 Noteholders or any other Secured Party. For purposes of the Base Indenture, the “Series 2022-1 Class A-1 Notes Renewal Date” shall be deemed to be a “Class A-1 Notes Renewal Date”.
“Series 2022-1 Class A-1 Outstanding Principal Amount” means, when used with respect to any date, an amount equal to (a) the Series 2022-1 Class A-1 Initial Advance Principal Amount, if any, minus (b) the amount of principal payments (whether pursuant to a Decrease, a prepayment, a redemption or otherwise) made on the Series 2022-1 Class A-1 Advance Notes on or prior to such date plus (c) any Increases pursuant to Section 2.1 of the Series 2022-1 Supplement resulting from Series 2022-1 Class A-1 Advances made on or prior to such date and after the Series 2022-1 Closing Date plus (d) any Series 2022-1 Class A-1 Outstanding Subfacility Amount on such date; provided that, at no time may the Series 2022-1 Class A-1 Outstanding Principal Amount exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount. For purposes of the Base Indenture, the “Series 2022-1 Class A-1 Outstanding Principal Amount” shall be deemed to be an “Outstanding Principal Amount.”
“Series 2022-1 Class A-1 Outstanding Subfacility Amount” means, when used with respect to any date, the aggregate principal amount of any Series 2022-1 Class A-1 L/C Notes outstanding on such date (after giving effect to Subfacility Increases or Subfacility Decreases therein to occur on such date pursuant to the terms of the Series 2022-1 Class A-1 Note Purchase Agreement or the Series 2022-1 Supplement).
“Series 2022-1 Class A-1 Post-Renewal Date Additional Interest” means, for any Interest Accrual Period commencing on or after the Series 2022-1 Class A-1 Notes Renewal Date, an amount equal to the sum of the Daily Post-Renewal Date Additional Interest Amounts for each day in such Interest Accrual Period. For purposes of the Base Indenture, Series 2022-1 Class A-1 Post-Renewal Date Additional Interest shall be deemed to be “Senior Notes Quarterly Post-ARD Contingent Additional Interest”.
“Series 2022-1 Class A-1 Post-Renewal Date Additional Interest Rate” has the meaning set forth in Section 3.4(c) of the Series 2022-1 Supplement.
“Series 2022-1 Class A-1 Prepayment” means any prepayment in respect of the Series 2022-1 Class A-1 Notes under Section 3.6(d)(i) or Section 3.6(h).
“Series 2022-1 Class A-1 Quarterly Interest Amount” means, for any Interest Accrual Period, with respect to all Outstanding Series 2022-1 Class A-1 Notes, the aggregate of the Daily Interest Amounts for each day in such Interest Accrual Period. For purposes of the Base Indenture, the “Series 2022-1 Class A-1 Quarterly Interest Amount” shall be deemed to be a “Senior Notes Quarterly Interest Amount”.
“Series 2022-1 Class A-1 Subfacility Noteholder” means the Person in whose name a Series 2022-1 Class A-1 L/C Note is registered in the Note Register.
“Series 2022-1 Class A-2 Distribution Account” has the meaning set forth in Section 3.8(a) of the Series 2022-1 Supplement.
“Series 2022-1 Class A-2 Initial Principal Amount” means the aggregate initial outstanding principal amount of the Series 2022-1 Class A-2 Notes as of the Series 2022-1 Closing Date, which iswas $150,000,000.
“Series 2022-1 Class A-2 Make-Whole Prepayment Consideration” means the amount (not less than zero) calculated by the Manager on behalf of the Issuer equal to (i) the
discounted present value as of a date not earlier than the fifth (5th) Business Day prior to the date of any relevant prepayment of the Series 2022-1 Class A-2 Notes (each, a “Series 2022-1 Class A-2 Make-Whole Prepayment Consideration Calculation Date”) of all future installments of interest (excluding any interest required to be paid on the applicable prepayment date) on and principal of the Series 2022-1 Class A-2 Notes that the Issuer would otherwise be required to pay on the Series 2022-1 Class A-2 Notes (or such portion thereof to be prepaid) from the date of such prepayment to and including the Prepayment Consideration End Date, assuming principal payments are made pursuant to the then-applicable schedule of payments (assuming for this purpose that the Series 2022-1 Class A-2 Non-Amortization Test on each Series 2022-1 Non-Amortization Test Date for each Quarterly Payment Date on and after the date of such prepayment is not satisfied and giving effect to any ratable reductions in the Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amounts due to optional and mandatory prepayments, including prepayments in connection with a Rapid Amortization Event and cancellations of repurchased Notes prior to the date of such prepayment and assuming no future prepayments are to be made in connection with a Rapid Amortization Event and no future cancellations of repurchased Notes are to be made) and the entire remaining unpaid principal amount of the Series 2022-1 Class A-2 Notes or portion thereof is paid on the Prepayment Consideration End Date minus (ii) the Outstanding Principal Amount of the Series 2022-1 Class A-2 Notes (or portion thereof) being prepaid. For the purposes of the calculation of the discounted present value in clause (i) above, such present value will be determined by the Manager using a discount rate equal to the sum of (x) the yield to maturity (adjusted to a quarterly bond-equivalent basis), on the Series 2022-1 Class A-2 Make-Whole Prepayment Consideration Calculation Date, of the United States Treasury Security having a maturity closest to the Prepayment Consideration End Date plus (y) 0.50%. For purposes of the Base Indenture, “Series 2022-1 Class A-2 Make-Whole Prepayment Consideration” shall be deemed to be a “Prepayment Consideration”.
“Series 2022-1 Class A-2 Make-Whole Prepayment Consideration Calculation Date” has the meaning set forth in the definition of “Series 2022-1 Class A-2 Make-Whole Prepayment Consideration”.
“Series 2022-1 Class A-2 Non-Amortization Test” means a test that will be satisfied for any Quarterly Payment Date only if (x) the Senior Leverage Ratio is less than or equal to 5.00:1.00 as calculated on the related Series 2022-1 Non-Amortization Test Date immediately preceding such Quarterly Payment Date (other than with respect to the Initial Quarterly Payment Date) and (y) no Rapid Amortization Event has occurred and is continuing as of such related Series 2022-1 Non-Amortization Test Date. For purposes of the Base Indenture, the “Series 2022-1 Class A-2 Non-Amortization Test” shall be deemed to be a “Series Non-Amortization Test”. There shall be no scheduled payment of principal of the Series 2022-1 Class A-2 Notes (and therefore the Series 2022-1 Class A-2 Non-Amortization Test will not be applicable) on the Initial Quarterly Payment Date.
“Series 2022-1 Class A-2 Noteholder” means the Person in whose name a Series 2022-1 Class A-2 Note is registered in the Note Register.
“Series 2022-1 Class A-2 Note Owner” means, with respect to a Series 2022-1 Note that is a Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note, as reflected on the books of the Clearing Agency that holds such Book-Entry Note, or on the books of a Person maintaining an account with such Clearing Agency (directly or as an indirect participant, in accordance with the rules of such Clearing Agency).
“Series 2022-1 Class A-2 Note Purchase Agreement” means the Purchase Agreement, dated as of March 9, 2022, by and among the Initial Purchaser, the Issuer, the Guarantors, Parent and WRI, as amended, supplemented or otherwise modified from time to time.
“Series 2022-1 Class A-2 Note Rate” means 3.734% per annum.
“Series 2022-1 Class A-2 Notes” has the meaning specified in the “Designation” of the Series 2022-1 Supplement.
“Series 2022-1 Class A-2 Notes Scheduled Principal Payment Deficiency Amount” means, with respect to any Quarterly Calculation Date, the amount, if positive, equal to the difference between (i) the Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amount due and payable, if any, on the related Quarterly Payment Date plus any Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amounts due but unpaid from any previous Quarterly Payment Dates and (ii) the amount of funds on deposit in the Senior Notes Principal Payment Account with respect to such amounts set forth in clause (i) and allocated to the Series 2022-1 Class A-2 Notes.
“Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amount” means, with respect to the Series 2022-1 Class A-2 Notes and each Quarterly Payment Date prior to the Series 2022-1 Anticipated Repayment Date, $625,000; provided that, following (i) the allocation of any mandatory prepayments, including mandatory prepayments pursuant to priority (i)(D) of the Priority of Payments and mandatory payments in connection with a Rapid Amortization Event, (ii) any optional prepayments pursuant to Section 3.6(f), and (iii) any repurchases or cancellations of Series 2022-1 Class A-2 Notes pursuant to Section 2.14 of the Base Indenture, all remaining Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amounts for each remaining Quarterly Payment Date prior to the Series 2022-1 Anticipated Repayment Date will be reduced by an amount equal to the percentage of each such Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amount representing the ratio between (A) the principal amount of such prepayment, repurchase or cancellation and (B) the Outstanding Principal Amount of the Series 2022-1 Class A-2 Notes immediately prior to such prepayment, repurchase or cancellation; provided, further, that in respect of each Weekly Allocation Date for which the Series 2022-1 Class A-2 Non-Amortization Test was satisfied as of the immediately preceding Series 2022-1 Non-Amortization Test Date, the Issuer may elect to deem (as set forth in the applicable Weekly Manager’s Certificate) the Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amount to equal zero. For purposes of the Base Indenture, the “Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amount” shall be deemed to be “Scheduled Principal Payments”. Notwithstanding the foregoing, the Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amount for the Initial Quarterly Payment date shall be $0.
“Series 2022-1 Class A-2 Optional Scheduled Principal Payment” means any payment of principal made in the event the Series 2022-1 Class A-2 Non-Amortization Test is satisfied for any Quarterly Payment Date (as measured on the related Series 2022-1 Non-Amortization Test Date), solely at the election of the Issuer, in an amount not to exceed the Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amount that would otherwise be due on such Quarterly Payment Date if the Series 2022-1 Class A-2 Non-Amortization Test was not satisfied. For purposes of the Base Indenture, each “Series 2022-1 Class A-2 Optional Scheduled Principal Payment” shall be deemed to be an “Optional Scheduled Principal Payment”.
“Series 2022-1 Class A-2 Outstanding Principal Amount” means, on any date, an amount equal to (a) the Series 2022-1 Class A-2 Initial Principal Amount, minus (b) the aggregate amount of principal payments (whether pursuant to the payment of Series 2022-1 Class A-2 Notes Scheduled Principal Payment Amounts, a prepayment, a purchase and cancellation, a redemption or otherwise) made to Series 2022-1 Class A-2 Noteholders with respect the Series 2022-1 Class A-2 Notes on or prior to such date. For purposes of the Base Indenture, the “Series 2022-1 Class A-2 Outstanding Principal Amount” shall be deemed to be an “Outstanding Principal Amount.”
“Series 2022-1 Class A-2 Prepayment” has the meaning set forth in Section 3.6(e) of the Series 2022-1 Supplement.
“Series 2022-1 Class A-2 Quarterly Interest Amount” means, with respect to each Interest Accrual Period, an amount equal to the accrued interest at the Series 2022-1 Class A-2 Note Rate on the Outstanding Principal Amount of the Series 2022-1 Class A-2 Notes (as of the first day of such Interest Accrual Period after giving effect to all payments of principal (if any) made to such Series 2022-1 Class A-2 Noteholders as of such day and also giving effect to prepayments, repurchases and cancellations of Series 2022-1 Class A-2 Notes during such Interest Accrual Period), calculated on a 30/360 Day Basis. For purposes of the Base Indenture, “Series 2022-1 Class A-2 Quarterly Interest Amount” shall be deemed to be a “Senior Notes Estimated Quarterly Interest Amount” and a “Senior Notes Quarterly Interest Amount.”
“Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest” has the meaning set forth in Section 3.5(b)(i) of the Series 2022-1 Supplement. For purposes of the Base Indenture, Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest shall be deemed to be “Senior Notes Quarterly Post-ARD Contingent Additional Interest”.
“Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest Rate” has the meaning set forth in Section 3.5(b)(i) of the Series 2022-1 Supplement.
“Series 2022-1 Closing Date” means the Closing Date.
“Series 2022-1 Distribution Accounts” means, collectively, the Series 2022-1 Class A-1 Distribution Account and the Series 2022-1 Class A-2 Distribution Account.
“Series 2022-1 Extension Elections” means, collectively, the Series 2022-1 First Extension Election and the Series 2022-1 Second Extension Election.
“Series 2022-1 Final Payment” means the payment of all accrued and unpaid interest on and principal of all Outstanding Series 2022-1 Notes, the expiration or cash collateralization in accordance with the terms of the Series 2022-1 Class A-1 Note Purchase Agreement of all Undrawn L/C Face Amounts (after giving effect to the provisions of Section 4.04 of the Series 2022-1 Class A-1 Note Purchase Agreement), the payment of all fees and expenses and other amounts then due and payable under the Series 2022-1 Class A-1 Note Purchase Agreement and the termination in full of all Series 2022-1 Class A-1 Commitments.
“Series 2022-1 Final Payment Date” means the date on which the Series 2022-1 Final Payment is made.
“Series 2022-1 First Extension Election” has the meaning set forth in Section 3.6(b)(i) of the Series 2022-1 Supplement.
“Series 2022-1 Global Notes” means, collectively, the Regulation S Global Notes and the Rule 144A Global Notes.
“Series 2022-1 Ineligible Account” has the meaning set forth in Section 3.11 of the Series 2022-1 Supplement.
“Series 2022-1 Legal Final Maturity Date” means the Quarterly Payment Date occurring in March 2052. For purposes of the Base Indenture, the “Series 2022-1 Legal Final Maturity Date” shall be deemed to be a “Series Legal Final Maturity Date”.
“Series 2022-1 Non-Amortization Test Date” means, with respect to a Quarterly Payment Date, the Quarterly Payment Date immediately preceding such Quarterly Payment Date. For purposes of the Base Indenture, the “Series 2022-1 Non Amortization Test Date” shall be deemed to be a “Non-Amortization Test Date”
“Series 2022-1 Noteholders” means, collectively, the Series 2022-1 Class A-1 Noteholders and the Series 2022-1 Class A-2 Noteholders.
“Series 2022-1 Notes” means, collectively, the Series 2022-1 Class A-1 Notes and the Series 2022-1 Class A-2 Notes.
“Series 2022-1 Outstanding Principal Amount” means, with respect to any date, the sum of the Series 2022-1 Class A-1 Outstanding Principal Amount plus the Series 2022-1 Class A-2 Outstanding Principal Amount.
“Series 2022-1 Prepayment” means a Series 2022-1 Class A-1 Prepayment or a Series 2022-1 Class A-2 Prepayment, as applicable.
“Series 2022-1 Prepayment Amount” means the aggregate principal amount of the applicable Class of Notes to be prepaid on any Series 2022-1 Prepayment Date, together with all accrued and unpaid interest thereon to such date.
“Series 2022-1 Prepayment Date” means the date on which any Series 2022-1 Class A-1 Prepayment or Series 2022-1 Class A-2 Prepayment is made, which shall be, with respect to any Series 2022-1 Prepayment pursuant to Section 3.6(f), the date specified as such in the applicable Prepayment Notice and, with respect to any Series 2022-1 Prepayment made during a Rapid Amortization Period pursuant to Section 3.6(d)(i) or pursuant to Section 3.6(h), the immediately succeeding Quarterly Payment Date.
“Series 2022-1 Prime Rate” means the rate of interest publicly announced from time to time by a commercial bank mutually agreed upon by the Manager and the Series 2022-1 Class A-1 Administrative Agent as its reference rate, base rate or prime rate.
“Series 2022-1 Second Extension Election” has the meaning set forth in Section 3.6(b)(ii) of the Series 2022-1 Supplement.
“Series 2022-1 Securities Intermediary” has the meaning set forth in Section 3.9(a) of the Series 2022-1 Supplement.
“Series 2022-1 Supplement” means the Series 2022-1 Supplement, dated as of the Series 2022-1 Closing Date, as amended by the First Supplement to the Series 2022-1 Supplement, dated as of the Series 2022-1 Upsize Closing Date, by and among the Issuer, the Trustee and the Series 2022-1 Securities Intermediary, as amended, supplemented or otherwise modified from time to time.
“Series 2022-1 Upsize Closing Date” means December 3, 2024.
“Similar Law” means any federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
“SOFR Advance” means a Series 2022-1 Class A-1 Advance that bears interest at the Adjusted Term SOFR Rate during such time as it bears interest at such rate, as provided herein.
“Specified Rating Agencies” means S&P and KBRA.
“STAMP” has the meaning set forth in Section 4.3(a) of the Series 2022-1 Supplement.
“Subfacility Decrease” has the meaning set forth in Section 2.2(d) of the Series 2022-1 Supplement.
“Subfacility Increase” has the meaning set forth in Section 2.1(b) of the Series 2022-1 Supplement.
“Target Month” means, in respect of the Series 2022-1 Class A-2 Notes, the 24th month prior to the Series 2022-1 Anticipated Repayment Date.
“TCAP Amount” has the meaning set forth in Section 2.06 of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Temporary Regulation S Global Notes” has the meaning set forth in Section 4.2(b) of the Series 2022-1 Supplement.
“Temporary Commitment Availability Period” has the meaning set forth in Section 2.06 of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Temporary Commitment Availability Period Fees” has the meaning set forth in the Series 2022-1 Class A-1 Notes Fee Letter.
“Undrawn L/C Face Amounts” means, at any time, the aggregate then undrawn and unexpired face amount of any Letters of Credit outstanding at such time.
“Unreimbursed L/C Drawings” means, at any time, the aggregate amount of any L/C Reimbursement Amounts that have not then been reimbursed pursuant to Section 2.08 of the Series 2022-1 Class A-1 Note Purchase Agreement.
“U.S. Person” has the meaning set forth in Section 4.2(a) of the Series 2022-1 Supplement.
“VFN Competitor” means any Person that is a direct or indirect franchisor, franchisee, developer, owner, sponsor or operator of any restaurant business that offers the same or similar products and services as offered by the Wingstop System, including, without limitation, generating a substantial proportion of revenue from the sale of chicken and primarily operating using eat-in or to-go services (it being understood that using wait staff to take and deliver orders is not “eat-in service” and that delivery is not “to-go service”); provided, however, that (a) a Person will not be a “VFN Competitor” solely by virtue of its direct or indirect ownership of less than 5.0% of the Equity Interests in a “Competitor”, (b) a Person will not be a “VFN Competitor” if such Person has policies and procedures that prohibit such Person from disclosing or making available any confidential information that such Person may receive as a noteholder or prospective investor in the Notes, to individuals involved in the business of buying, selling, holding or analyzing the Equity Interests of a “VFN Competitor” or in the business of being a franchisor, franchisee, owner or operator of a large regional or national quick service, limited service or fast casual restaurant concept, (c) a franchisee will only be a “VFN Competitor” if it, or its Affiliates, directly or indirectly, owns, franchises or licenses, in the aggregate, ten or more individual locations of a particular concept or (d) a Person will not be a “VFN Competitor” if such Person is a bank, financial institution, insurance company, or any other entity managed by
registered investment advisers who regularly engage in making, purchasing or investing in commercial loans.
“VFN Consent” has the meaning set forth in Section 9.01 of the of the Series 2022-1 Class A-1 Note Purchase Agreement.
“Voluntary Decrease” has the meaning set forth in Section 2.2(b) of the Series 2022-1 Supplement.
EXHIBIT A
FORM OF MANDATORY/VOLUNTARY DECREASE NOTICE
WINGSTOP FUNDING LLC
SERIES 2022-1 VARIABLE FUNDING SENIOR NOTES, CLASS A-1
[_______], 20[__]
Morgan Stanley Asset Funding Inc.
1585 Broadway, 24th Floor
New York, New York 10036
Attention: ABS Syndicate Group
Telephone: 212-761-4000
Citibank, N.A., as Trustee
388 Greenwich Street
New York, NY 10013
Attention: Agency & Trust – Wingstop Funding LLC
E-Mail: anthony.bausa@citi.com and trang.tranrojas@citi.com or call (888) 855-9695 to obtain Citibank, N.A. account manager’s email address
Greetings:
Reference is made to (a) that certain Amended and Restated Series 2022-1 Class A-1 Note Purchase Agreement, dated as of March 9December 3, 20222024 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Series 2022-1 Class A-1 Note Purchase Agreement”), by and among Wingstop Funding LLC, as Issuer, Wingstop Restaurants Inc., as the Manager, the Guarantors, the Conduit Investors, the Committed Note Purchasers, the Funding Agents, Morgan Stanley Bank, N.A., as L/C Provider and Morgan Stanley Asset Funding Inc. as Administrative Agent and (b) that certain Series 2022-1 Supplement, dated as of March 9, 2022 (as amended pursuant to the First Supplement to the Series 2022-1 Supplement, dated as of December 3, 2024 and as further amended, supplemented, amended and restated or otherwise modified from time to time, the “Series 2022-1 Supplement”) to the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (theas amended by the First Supplement to the Second Amended and Restated Indenture, dated as of December 3, 2024 and as further amended, supplemented, amended and restated or otherwise modified from time to time, the “Base Indenture”), by and between Wingstop Funding LLC (the “Issuer”) and the Trustee. Unless otherwise defined herein or as the context otherwise requires, terms used herein have the meaning assigned thereto under or as provided in the Series 2022-1 Class A-1 Note Purchase Agreement or the Series 2022-1 Supplement.
Pursuant to Section 2.2[(a)/(b)] of the Series 2022-1 Supplement and Section 2.05(a) of the Series 2022-1 Class A-1 Note Purchase Agreement, the undersigned hereby gives the Trustee and the Administrative
Agent notice of a [Mandatory]/[Voluntary] Decrease and directs that the following amounts be paid on [ ] (the “[Mandatory/Voluntary] Decrease Date”).
Principal: $
To be allocated among the holders of the Class A-1 Notes as follows:
$______ to _______
$______ to _______
Interest: $
To be allocated among the holders of the Class A-1 Notes as follows:
$______ to _______
$______ to _______
Breakage Amount (if any): $
To be allocated among the holders of the Class A-1 Notes as follows:
$______ to _______
$______ to _______
[In furtherance of the above, the Trustee is hereby directed to transfer such amounts from the Collection Account to the Series 2022-1 Class A-1 Distribution Account not later than 10:00 a.m. (New York City time) on the [Mandatory]/[Voluntary] Decrease Date and to distribute such amounts to [________] at account number [_______the Series 2022-1 Class A-1 Noteholders in accordance with the instructions on file with Citibank, N.A. as Note Registrar and Paying Agent].
For the avoidance of doubt, this repayment is a repayment and not a permanent reduction in the Series 2022-1 Class A-1 Notes Maximum Principal Amount.
The undersigned has executed and delivered this payment direction on the ____ day of _____, _____.
| | | | | |
[ ], as Manager on behalf of the Issuer |
| |
| By: | |
| Name: |
| Title: |
EXHIBIT B-1-1
FORM OF SERIES 2022-1 VARIABLE FUNDING SENIOR NOTE, CLASS A-1
SUBCLASS: SERIES 2022-1 CLASS A-1 ADVANCE NOTE
THE ISSUANCE AND SALE OF THIS SERIES 2022-1 VARIABLE FUNDING SENIOR NOTE, CLASS A-1 (THIS “NOTE”), WHICH IS A SERIES 2022-1 CLASS A-1 ADVANCE NOTE, HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION, AND WINGSTOP FUNDING LLC (THE “ISSUER”) HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS NOTE AND ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO PERSONS WHO ARE NOT VFN COMPETITORS (AS DEFINED IN THE SERIES SUPPLEMENT), UNLESS THE ISSUER GIVES WRITTEN CONSENT TO SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER OR IF AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, AND IN ACCORDANCE WITH THE PROVISIONS OF THE AMENDED AND RESTATED CLASS A-1 NOTE PURCHASE AGREEMENT, DATED AS OF MARCH 9DECEMBER 3, 20222024 (AS AMENDED, SUPPLEMENTED OR MODIFIED, THE “CLASS A-1 NOTE PURCHASE AGREEMENT”), BY AND AMONG THE ISSUER, WINGSTOP GUARANTOR LLC AND WINGSTOP FRANCHISING LLC, EACH AS A GUARANTOR, WINGSTOP RESTAURANTS INC., AS THE MANAGER, MORGAN STANLEY ASSET FUNDING INC., AS THE ADMINISTRATIVE AGENT, AND THE OTHER PARTIES THERETO.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN AND SUBJECT TO INCREASES AND DECREASES AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
REGISTERED
No. R-A-[__] up to $[ ]
SEE REVERSE FOR CERTAIN CONDITIONS
WINGSTOP FUNDING LLC
SERIES 2022-1 VARIABLE FUNDING SENIOR NOTE, CLASS A-1
SUBCLASS: SERIES 2022-1 CLASS A-1 ADVANCE NOTE
WINGSTOP FUNDING LLC, a limited liability company formed under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to [_____], or registered assigns, up to the principal sum of [ ] DOLLARS ($[ ]) or such lesser amount as shall equal the portion of the Series 2022-1 Class A-1 Outstanding Principal Amount evidenced by this Note as provided in the Indenture and the Class A-1 Note Purchase Agreement. Payments of principal shall be payable in the amounts and at the times set forth in the Indenture described herein; provided, however, that the entire unpaid principal amount of this Note shall be due on March 2052 (the “Series 2022-1 Legal Final Maturity Date”). Pursuant to the Class A-1 Note Purchase Agreement and the Series 2022-1 Supplement, the principal amount of this Note may be subject to Increases or Decreases on any Business Day during the Commitment Term, and principal with respect to the Series 2022-1 Class A-1 Notes may be paid earlier than the Series 2022-1 Legal Final Maturity Date as described in the Indenture. The Issuer will pay interest on this Series 2022-1 Class A-1 Advance Note (this “Note”) at the Series 2022-1 Class A-1 Note Rate for each Interest Accrual Period in accordance with the terms of the Indenture. Such amounts due on this Note will be payable in arrears on each Quarterly Payment Date, which will be on the fifth day (or, if such fifth day is not a Business Day, the next succeeding Business Day (a “Business Day Adjustment”)) of each of March, June, September and December, commencing September 2022March 2025 (each, a “Quarterly Payment Date”). Such amounts due on this Note will accrue for each Quarterly Payment Date with respect to (i) initially, the period from and including March 9, 2022December 3, 2024 to but excluding the day that is two (2) Business Days prior to the Initial Quarterly Calculation Date preceding the Initial Quarterly Payment Date and (ii) thereafter, any period commencing on and including the day that is two (2) Business Days prior to a Quarterly Calculation Date to but excluding the day that is two (2) Business Days prior to the next succeeding Quarterly Calculation Date (each, an “Interest Accrual Period”). Such amounts due on this Note (and interest on any defaulted payments of amounts due on this Note at the same rate) will be computed in accordance with the Indenture. In addition, under the circumstances set forth in the Indenture, the Issuer shall also pay additional interest on this Note at the Series 2022-1 Class A-1 Post-Renewal Date Additional Interest Rate, and such additional interest shall be computed and shall be payable in the amounts and at the times set forth in the Indenture. In addition to and not in limitation of the foregoing and the provisions of the Indenture and the Class A-1 Note Purchase Agreement, the Issuer further agrees to pay to the holder of this Note such holder’s portion of the other fees, costs and expense reimbursements, indemnification amounts and other amounts, if any, due and payable in accordance with the Indenture and the Class A-1 Note Purchase Agreement.
The holder of this Note is authorized to endorse on the schedules annexed hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date and amount of each Increase and Decrease with respect thereto and the Series 2022-1 Class A-1 Note Rate applicable thereto. Each such endorsement shall constitute prima facie evidence of the accuracy of the information endorsed. The failure to make any such endorsement or any error in any such endorsement shall not affect the obligations of the Issuer in respect of the Series 2022-1 Class A-1 Outstanding Principal Amount.
The amounts due on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied as provided in the Indenture.
This Note is subject to mandatory and optional prepayment as set forth in the Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Although a summary of certain provisions of the Indenture is set forth below and on the reverse hereof and made a part hereof, this Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Issuer and the Trustee. A copy of the Indenture may be requested from the Trustee by writing to the Trustee at Citibank, N.A., 388 Greenwich Street, New York, NY 10013, Attention: Agency & Trust – Wingstop Funding LLC. To the extent not defined herein, the capitalized terms used herein have the meanings ascribed to them in the Indenture. In the event of any inconsistency between the provisions of this Note and the Indenture, the provisions of the Indenture shall govern.
Subject to the next following paragraph, the Issuer hereby certifies and declares that all acts, conditions and things required to be done and performed and to have happened prior to the creation of this Note and to constitute it as the valid obligation of the Issuer enforceable in accordance with its terms have been done and performed and have happened in due compliance with all applicable laws and in accordance with the terms of the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee whose name appears below by manual, electronic or facsimile signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Date:
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WINGSTOP FUNDING LLC, as Issuer |
| |
| By: | |
| Name: |
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2022-1 Class A-1 Advance Notes issued under the within mentioned Indenture.
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CITIBANK, N.A., as Trustee |
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| By: | |
| Name: |
| Title: Authorized Signatory |
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Series 2022-1 Class A-1 Notes of the Issuer designated as its Series 2022-1 Variable Funding Senior Notes, Class A-1 (herein called the “Series 2022-1 Class A-1 Notes”) and is one of the Subclass thereof designated as the Series 2022-1 Class A-1 Advance Notes (herein called the “Series 2022-1 Class A-1 Advance Notes”), all issued under (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (suchas amended by the First Supplement to the Second Amended and Restated Base Indenture, asdated as of December 3, 2024 and as further amended, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2022-1 Supplement to the Base Indenture, dated as of March 9, 2022 (theas amended by the First Supplement to the Series 2022-1 Supplement, dated as of December 3, 2024 and as further amended, supplemented or modified, the “Series 2022-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2022-1 Supplement are referred to herein collectively as the “Indenture”. The Series 2022-1 Class A-1 Advance Notes are subject to all terms of the Indenture. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture.
The Series 2022-1 Class A-1 Advance Notes are and will be secured by the Collateral pledged as security therefor as provided in the Indenture.
As provided for in the Indenture, the Series 2022-1 Class A-1 Advance Notes may be prepaid, in whole or in part, at the option of the Issuer. In addition, the Series 2022-1 Class A-1 Advance Notes are subject to mandatory prepayment as provided for in the Indenture. As described above, the entire unpaid principal amount of this Note shall be due and payable on the Series 2022-1 Legal Final Maturity Date. Subject to the terms and conditions of the Class A-1 Note Purchase Agreement, all payments of principal of the Series 2022-1 Class A-1 Advance Notes will be made pro rata to the holders of Series 2022-1 Class A-1 Advance Notes entitled thereto based on the amounts due to such holders.
Amounts due on this Note which are payable on a Quarterly Payment Date or on any date on which payments are permitted to be made as provided for in the Indenture shall be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the applicable Record Date or Prepayment Record Date, as the case may be.
Interest and additional interest, if any, will each accrue on the Series 2022-1 Class A-1 Advance Notes at the rates set forth in the Indenture. The interest and additional interest, if any, will be computed on the basis set forth in the Indenture. Amounts payable on the Series 2022-1 Class A-1 Advance Notes on each Quarterly Payment Date will be calculated as set forth in the Indenture.
Payments of amounts due on this Note are subordinated to the payment of certain other amounts in accordance with the Priority of Payments.
If an Event of Default shall occur and be continuing, this Note may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Unless otherwise specified in the Series 2022-1 Supplement, on each Quarterly Payment Date, the Paying Agent shall pay to the Series 2022-1 Class A-1 Noteholders of record on the preceding Record Date the amounts payable thereto (i) by wire transfer in immediately available funds released by the Paying Agent from the Series 2022-1 Class A-1 Distribution Account no later than 12:30 p.m. (New
York City time) if a Series 2022-1 Class A-1 Noteholder has provided to the Paying Agent and the Trustee wiring instructions at least five (5) Business Days prior to the applicable Quarterly Payment Date or (ii) by check mailed first-class postage prepaid to such Series 2022-1 Class A-1 Noteholder at the address for such Series 2022-1 Class A-1 Noteholder appearing in the Note Register if such Series 2022-1 Class A-1 Noteholder has not provided wire instructions pursuant to clause (i) above; provided, however, that the final principal payment due on a Series 2022-1 Class A-1 Note shall only be paid upon due presentment and surrender of such Series 2022-1 Class A-1 Note for cancellation in accordance with the provisions of the Series 2022-1 Class A-1 Note (other than any Uncertificated Note) at the applicable Corporate Trust Office, which such surrender by the Series 2022-1 Class A-1 Noteholders shall also constitute a general release by the Series 2022-1 Class A-1 Noteholders hereof from any claims against the Securitization Entities, the Manager, the Trustee and their affiliates.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note (other than any Uncertificated Note) may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee, the Issuer and the Note Registrar duly executed by, the Series 2022-1 Class A-1 Noteholder hereof or its attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and accompanied by such other documents as the Trustee and the Note Registrar may require and as may be required by the Series 2022-1 Supplement, and thereupon one or more new Series 2022-1 Class A-1 Advance Notes of authorized denominations in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Series 2022-1 Class A-1 Noteholder, by acceptance of a Series 2022-1 Class A-1 Note, covenants and agrees by accepting the benefits of the Indenture that, prior to the date that is one year and one day after the payment in full of the latest maturing note issued under the Indenture, such Series 2022-1 Class A-1 Noteholder will not institute against, or join with any other Person in instituting against, any Securitization Entity any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, however, that nothing herein shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Securitization Entities pursuant to the Indenture or any other Transaction Document.
It is the intent of the Issuer and each Series 2022-1 Class A-1 Noteholder that, for federal, state, local income and franchise tax purposes only, the Series 2022-1 Class A-1 Notes will evidence indebtedness of the Issuer secured by the Collateral. Each Series 2022-1 Class A-1 Noteholder, by the acceptance of this Note, agrees to treat this Note (or beneficial interests herein) for all purposes of federal, state, local income or franchise taxes, and any other tax imposed on or measured by income, as indebtedness of the Issuer or, if the Issuer is treated as a division of another entity, such other entity.
The Indenture permits certain amendments to be made thereto without the consent of the Control Party, the Controlling Class Representative or any Series 2022-1 Class A-1 Noteholders,
provided that certain conditions precedent are satisfied. The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Series 2022-1 Class A-1 Noteholders under the Indenture at any time by the Issuer with the consent of the Control Party (acting at the direction of the Controlling Class Representative) and without the consent of any Series 2022-1 Class A-1 Noteholders. The Indenture also contains provisions permitting the Control Party (acting at the direction of the Controlling Class Representative) to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences without the consent of any Series 2022-1 Class A-1 Noteholders. Any such consent or waiver of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Series 2022-1 Class A-1 Noteholder and upon all future Series 2022-1 Class A-1 Noteholders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
Each purchaser or transferee of this Note (or any interest herein) shall be deemed to represent and warrant that either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise), nor a governmental, church, non-U.S. or other plan that is subject to any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of the Series 2022-1 Notes (or any interest therein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
The term “Issuer” as used in this Note includes any successor and assignee to the Issuer under the Indenture.
The Series 2022-1 Class A-1 Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations set forth therein.
This Note and the Indenture shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without regard to conflicts of law principles (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the amounts due on this Note at the times, place and rate and in the coin or currency herein prescribed.
[Remainder of page intentionally left blank]
ASSIGNMENT
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| Social Security or taxpayer I.D. or other identifying number of assignee: | |
| FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto |
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(name and address of assignee) |
| the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints |
| attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. |
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| Dated: | | | | |
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| | | By: | 1 |
| | | Signature Guaranteed: |
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1 NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note, without alteration, enlargement or any change whatsoever. |
INCREASES AND DECREASES
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EXHIBIT B-1-3
FORM OF SERIES 2022-1 VARIABLE FUNDING SENIOR NOTE, CLASS A-1
SUBCLASS: SERIES 2022-1 CLASS A-1 L/C NOTE
THE ISSUANCE AND SALE OF THIS SERIES 2022-1 VARIABLE FUNDING SENIOR NOTE, CLASS A-1 (THIS “NOTE”), WHICH IS A SERIES 2022-1 CLASS A-1 L/C NOTE, HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION, AND WINGSTOP FUNDING LLC (THE “ISSUER”) HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS NOTE AND ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO PERSONS WHO ARE NOT VFN COMPETITORS (AS DEFINED IN THE SERIES SUPPLEMENT), UNLESS THE ISSUER GIVES WRITTEN CONSENT TO SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER OR IF AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, AND IN ACCORDANCE WITH THE PROVISIONS OF THE AMENDED AND RESTATED CLASS A-1 NOTE PURCHASE AGREEMENT, DATED AS OF MARCH 9DECEMBER 3, 20222024 (AS AMENDED, SUPPLEMENTED OR MODIFIED, THE “CLASS A-1 NOTE PURCHASE AGREEMENT”), BY AND AMONG THE ISSUER, WINGSTOP GUARANTOR LLC AND WINGSTOP FRANCHISING LLC, EACH AS A GUARANTOR, WINGSTOP RESTAURANTS INC., AS THE MANAGER, MORGAN STANLEY ASSET FUNDING INC., AS THE ADMINISTRATIVE AGENT, AND THE OTHER PARTIES THERETO.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN AND SUBJECT TO SUBFACILITY INCREASES AND SUBFACILITY DECREASES AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ALL L/C OBLIGATIONS RELATING TO LETTERS OF CREDIT ISSUED BY THE HOLDER OF THIS NOTE (WHETHER IN RESPECT OF UNDRAWN L/C FACE AMOUNTS OR UNREIMBURSED L/C DRAWINGS) SHALL BE DEEMED TO BE PRINCIPAL OUTSTANDING UNDER THIS NOTE FOR ALL PURPOSES OF THE CLASS A-1 NOTE PURCHASE AGREEMENT, THE INDENTURE AND THE OTHER TRANSACTION DOCUMENTS OTHER THAN, IN THE CASE OF UNDRAWN L/C FACE AMOUNTS, FOR PURPOSES OF ACCRUAL OF INTEREST. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
REGISTERED
No. R-L-[__] up to $[_____]
SEE REVERSE FOR CERTAIN CONDITIONS
WINGSTOP FUNDING LLC
SERIES 2022-1 VARIABLE FUNDING SENIOR NOTE, CLASS A-1
SUBCLASS: SERIES 2022-1 CLASS A-1 L/C NOTE
WINGSTOP FUNDING LLC, a limited liability company formed under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to [_____], or registered assigns, up to the principal sum of [_____] DOLLARS ($[_____]) or such lesser amount as shall equal the portion of the Series 2022-1 Class A-1 Outstanding Principal Amount evidenced by this Note as provided in the Indenture and the Class A-1 Note Purchase Agreement. Payments of principal shall be payable in the amounts and at the times set forth in the Indenture described herein; provided, however, that the entire unpaid principal amount of this Note shall be due on March 2052 (the “Series 2022-1 Legal Final Maturity Date”). The initial outstanding principal amount of this Note shall equal the Series 2022-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount. Pursuant to the Class A-1 Note Purchase Agreement and the Series 2022-1 Supplement, the principal amount of this Note may be subject to Subfacility Increases or Subfacility Decreases on any Business Day during the Commitment Term, and principal with respect to the Series 2022-1 Class A-1 Notes may be paid earlier than the Series 2022-1 Legal Final Maturity Date as described in the Indenture. The Issuer will pay (i) interest on this Series 2022-1 Class A-1 L/C Note (this “Note”) at the Series 2022-1 Class A-1 Note Rate and (ii) the Series 2022-1 Class A-1 L/C Fees, in each case, for each Interest Accrual Period in accordance with the terms of the Indenture. Such amounts due on this Note will be payable in arrears on each Quarterly Payment Date, which will be on the fifth day (or, if such fifth day is not a Business Day, the next succeeding Business Day (a “Business Day Adjustment”)) of each of March, June, September and December, commencing September 2022March 2025 (each, a “Quarterly Payment Date”). Such amounts due on this Note will accrue for each Quarterly Payment Date with respect to (i) initially, the period from and including March 9, 2022December 3, 2024 to but excluding the day that is two (2) Business Days prior to the Initial Quarterly Calculation Date preceding the Initial Quarterly Payment Date and (ii) thereafter, any period commencing on and including the day that is two (2) Business Days prior to a Quarterly Calculation Date to but excluding the day that is two (2) Business Days prior to the next succeeding Quarterly Calculation Date (each, an “Interest Accrual Period”). Such amounts due on this Note (and interest on any defaulted payments of amounts due on this Note at the same rate) will be
computed in accordance with the Indenture. In addition, under the circumstances set forth in the Indenture, the Issuer shall also pay additional interest and fees on this Note at the Series 2022-1 Class A-1 Post-Renewal Date Additional Interest Rate, and such additional interest and fees shall be computed and shall be payable in the amounts and at the times set forth in the Indenture. In addition to and not in limitation of the foregoing and the provisions of the Indenture and the Class A-1 Note Purchase Agreement, the Issuer further agrees to pay to the holder of this Note such holder’s portion of the other fees, costs and expense reimbursements, indemnification amounts and other amounts, if any, due and payable in accordance with the Indenture and the Class A-1 Note Purchase Agreement.
The holder of this Note is authorized to endorse on the schedules annexed hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date and amount of each Subfacility Increase and Subfacility Decrease with respect thereto and the Series 2022-1 Class A-1 Note Rate applicable thereto. Each such endorsement shall constitute prima facie evidence of the accuracy of the information endorsed. The failure to make any such endorsement or any error in any such endorsement shall not affect the obligations of the Issuer in respect of the Series 2022-1 Class A-1 Outstanding Principal Amount.
The amounts due on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied as provided in the Indenture.
This Note is subject to mandatory and optional prepayment as set forth in the Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Although a summary of certain provisions of the Indenture is set forth below and on the reverse hereof and made a part hereof, this Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Issuer and the Trustee. A copy of the Indenture may be requested from the Trustee by writing to the Trustee at Citibank, N.A., 388 Greenwich Street, New York, NY 10013, Attention: Agency & Trust – Wingstop Funding LLC. To the extent not defined herein, the capitalized terms used herein have the meanings ascribed to them in the Indenture. In the event of any inconsistency between the provisions of this Note and the Indenture, the provisions of the Indenture shall govern.
Subject to the next following paragraph, the Issuer hereby certifies and declares that all acts, conditions and things required to be done and performed and to have happened prior to the creation of this Note and to constitute it as the valid obligation of the Issuer enforceable in accordance with its terms have been done and performed and have happened in due compliance with all applicable laws and in accordance with the terms of the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee whose name appears below by manual, electronic or facsimile signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Date:
| | | | | |
WINGSTOP FUNDING LLC, as Issuer |
| |
| By: | |
| Name: |
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2022-1 Class A-1 L/C Notes issued under the within mentioned Indenture.
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CITIBANK, N.A., as Trustee |
| |
| By: | |
| Name: |
| Title: Authorized Signatory |
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Series 2022-1 Class A-1 Notes of the Issuer designated as its Series 2022-1 Variable Funding Senior Notes, Class A-1 (herein called the “Series 2022-1 Class A-1 Notes”) and is one of the Subclass thereof designated as the Series 2022-1 Class A-1 L/C Notes (herein called the “Series 2022-1 Class A-1 L/C Notes”), all issued under (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (suchas amended by the First Supplement to the Second Amended and Restated Base Indenture, asdated as of December 3, 2024 and as further amended, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2022-1 Supplement to the Base Indenture, dated as of March 9, 2022 (theas amended by the First Supplement to the Series 2022-1 Supplement, dated as of December 3, 2024 and as further amended, supplemented or modified, the “Series 2022-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2022-1 Supplement are referred to herein collectively as the “Indenture”. The Series 2022-1 Class A-1 L/C Notes are subject to all terms of the Indenture. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture.
The Series 2022-1 Class A-1 L/C Notes are and will be secured by the Collateral pledged as security therefor as provided in the Indenture.
All L/C Obligations relating to Letters of Credit issued by the holder of this Note (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under this Note for all purposes of the Class A-1 Note Purchase Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for purposes of accrual of interest. As provided for in the Indenture, the Series 2022-1 Class A-1 L/C Notes may be prepaid, in whole or in part, at the option of the Issuer. In addition, the Series 2022-1 Class A-1 L/C Notes are subject to mandatory prepayment as provided for in the Indenture. As described above, the entire unpaid principal amount of this Note shall be due and payable on the Series 2022-1 Legal Final Maturity Date. Subject to the terms and conditions of the Class A-1 Note Purchase Agreement, all payments of principal of the Series 2022-1 Class A-1 L/C Notes will be made pro rata to the holders of Series 2022-1 Class A-1 L/C Notes entitled thereto based on the amounts due to such holders.
Amounts due on this Note which are payable on a Quarterly Payment Date or on any date on which payments are permitted to be made as provided for in the Indenture shall be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the applicable Record Date or Prepayment Record Date, as the case may be.
Interest and fees and additional interest, if any, will each accrue on the Series 2022-1 Class A-1 L/C Notes at the rates set forth in the Indenture. The interest and fees and additional interest, if any, will be computed on the basis set forth in the Indenture. Amounts payable on the Series 2022-1 Class A-1 L/C Notes on each Quarterly Payment Date will be calculated as set forth in the Indenture.
Payments of amounts due on this Note are subordinated to the payment of certain other amounts in accordance with the Priority of Payments.
If an Event of Default shall occur and be continuing, this Note may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Unless otherwise specified in the Series 2022-1 Supplement, on each Quarterly Payment Date, the Paying Agent shall pay to the Series 2022-1 Class A-1 Noteholders of record on the preceding Record Date the amounts payable thereto (i) by wire transfer in immediately available funds released by the Paying Agent from the Series 2022-1 Class A-1 Distribution Account no later than 12:30 p.m. (New York City time) if a Series 2022-1 Class A-1 Noteholder has provided to the Paying Agent and the Trustee wiring instructions at least five (5) Business Days prior to the applicable Quarterly Payment Date or (ii) by check mailed first-class postage prepaid to such Series 2022-1 Class A-1 Noteholder at the address for such Series 2022-1 Class A-1 Noteholder appearing in the Note Register if such Series 2022-1 Class A-1 Noteholder has not provided wire instructions pursuant to clause (i) above; provided, however, that the final principal payment due on a Series 2022-1 Class A-1 Note shall only be paid upon due presentment and surrender of such Series 2022-1 Class A-1 Note for cancellation in accordance with the provisions of the Series 2022-1 Class A-1 Note (other than any Uncertificated Note) at the applicable Corporate Trust Office, which such surrender by the Series 2022-1 Class A-1 Noteholders shall also constitute a general release by the Series 2022-1 Class A-1 Noteholders hereof from any claims against the Securitization Entities, the Manager, the Trustee and their affiliates.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note (other than any Uncertificated Note) may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee, the Issuer and the Note Registrar duly executed by, the Series 2022-1 Class A-1 Noteholder hereof or its attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and accompanied by such other documents as the Trustee and the Note Registrar may require and as may be required by the Series 2022-1 Supplement, and thereupon one or more new Series 2022-1 Class A-1 L/C Notes of authorized denominations in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Series 2022-1 Class A-1 Noteholder, by acceptance of a Series 2022-1 Class A-1 Note, covenants and agrees by accepting the benefits of the Indenture that, prior to the date that is one year and one day after the payment in full of the latest maturing note issued under the Indenture, such Series 2022-1 Class A-1 Noteholder will not institute against, or join with any other Person in instituting against, any Securitization Entity any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, however, that nothing herein shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Securitization Entities pursuant to the Indenture or any other Transaction Document.
It is the intent of the Issuer and each Series 2022-1 Class A-1 Noteholder that, for federal, state, local income and franchise tax purposes only, the Series 2022-1 Class A-1 Notes will evidence
indebtedness of the Issuer secured by the Collateral. Each Series 2022-1 Class A-1 Noteholder, by the acceptance of this Note, agrees to treat this Note (or beneficial interests herein) for all purposes of federal, state, local income or franchise taxes, and any other tax imposed on or measured by income, as indebtedness of the Issuer or, if the Issuer is treated as a division of another entity, such other entity.
The Indenture permits certain amendments to be made thereto without the consent of the Control Party, the Controlling Class Representative or any Series 2022-1 Class A-1 Noteholders, provided that certain conditions precedent are satisfied. The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Series 2022-1 Class A-1 Noteholders under the Indenture at any time by the Issuer with the consent of the Control Party (acting at the direction of the Controlling Class Representative) and without the consent of any Series 2022-1 Class A-1 Noteholders. The Indenture also contains provisions permitting the Control Party (acting at the direction of the Controlling Class Representative) to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences without the consent of any Series 2022-1 Class A-1 Noteholders. Any such consent or waiver of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Series 2022-1 Class A-1 Noteholder and upon all future Series 2022-1 Class A-1 Noteholders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
Each purchaser or transferee of this Note (or any interest herein) shall be deemed to represent and warrant that either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise), nor a governmental, church, non-U.S. or other plan that is subject to any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of the Series 2022-1 Notes (or any interest therein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
The term “Issuer” as used in this Note includes any successor and assignee to the Issuer under the Indenture.
The Series 2022-1 Class A-1 Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations set forth therein.
This Note and the Indenture shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without regard to conflicts of law principles (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the amounts due on this Note at the times, place and rate and in the coin or currency herein prescribed.
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ASSIGNMENT
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| Social Security or taxpayer I.D. or other identifying number of assignee: | |
| FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto |
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(name and address of assignee) |
| the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints |
| attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. |
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| Dated: | | | | |
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| | | By: | 1 |
| | | Signature Guaranteed: |
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1 NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note, without alteration, enlargement or any change whatsoever. |
SUBFACILITY INCREASES AND SUBFACILITY DECREASES
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EXHIBIT B-2-1
THE ISSUANCE AND SALE OF THIS RULE 144A GLOBAL SERIES 2022-1 CLASS A-2 NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION, AND WINGSTOP FUNDING LLC (THE “ISSUER”) HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “1940 ACT”). THIS NOTE OR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO (A) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE QIBS, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A QIB AND NOT A COMPETITOR, (B) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE NOT “U.S. PERSONS” IN OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S UNDER THE 1933 ACT, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR (C) THE ISSUER OR AN AFFILIATE OF THE ISSUER, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION, AND, IN EACH CASE, IN COMPLIANCE WITH THE CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION.
BY ITS ACQUISITION OR ACCEPTANCE HEREOF, THE HOLDER (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) REPRESENTS THAT (A) IT IS NOT A COMPETITOR AND IS (X) A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A OR (Y) NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, AS APPLICABLE, (B) IT IS NOT A COMPETITOR AND IS ACTING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PERSON WHICH IS EITHER (X) A QUALIFIED INSTITUTIONAL BUYER OR (Y) NOT A U.S. PERSON, AND IN EACH CASE WITH RESPECT TO WHICH IT EXERCISES SOLE INVESTMENT DISCRETION AND WHICH IS NOT A COMPETITOR, (C) IT AND EACH ACCOUNT FOR WHICH IT IS PURCHASING WILL HOLD AND TRANSFER AT LEAST THE MINIMUM DENOMINATION OF NOTES, (D) IT UNDERSTANDS THAT THE ISSUER MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN ITS NOTES FROM ONE OR MORE BOOK-ENTRY DEPOSITORIES AND (E) IT WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS TO ANY SUBSEQUENT TRANSFEREES.
EACH PERSON (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE WILL BE DEEMED TO HAVE MADE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE. EACH PERSON TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE IN THE FORM OF AN INTEREST IN A TEMPORARY REGULATION S GLOBAL NOTE OR A PERMANENT REGULATION S GLOBAL NOTE WILL BE REQUIRED TO DELIVER A TRANSFER CERTIFICATE IN THE FORM REQUIRED BY THE INDENTURE AND WILL BE REQUIRED TO MAKE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE.
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT AND WILL BE VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO ANY PERSON CAUSING SUCH VIOLATION, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE TRUSTEE OR ANY INTERMEDIARY; PROVIDED, HOWEVER, THAT THE PRECEDING PORTION OF THIS SENTENCE SHALL NOT OPERATE TO INVALIDATE ANY OTHERWISE BONA FIDE TRANSFER TO AN ELIGIBLE TRANSFEREE WHERE A PREVIOUS ERRONEOUSLY-REGISTERED TRANSFEROR IN THE CHAIN OF TITLE OF SUCH TRANSFEREE WOULD HAVE BEEN INELIGIBLE SOLELY ON ACCOUNT OF BEING A COMPETITOR.
IF THIS NOTE WAS ACQUIRED IN THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR NOT TO HAVE BEEN A QUALIFIED INSTITUTIONAL BUYER AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS A QUALIFIED INSTITUTIONAL BUYER. THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS NOT A QUALIFIED INSTITUTIONAL BUYER OR WHO IS A COMPETITOR.
IF THIS NOTE WAS ACQUIRED OUTSIDE THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR TO HAVE BEEN A “U.S. PERSON” AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS NOT A “U.S. PERSON.” THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS A “U.S. PERSON” OR WHO IS A COMPETITOR.
BY ACCEPTING THIS NOTE, EACH PURCHASER COVENANTS THAT IT WILL NOT AT ANY TIME PRIOR TO THE DATE WHICH IS ONE (1) YEAR AND ONE (1) DAY AFTER THE PAYMENT IN FULL OF THE LATEST MATURING NOTE, INSTITUTE AGAINST, OR JOIN WITH ANY OTHER PERSON IN INSTITUTING AGAINST, ANY SECURITIZATION ENTITY ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS, UNDER ANY FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, 55 WATER STREET, NEW YORK, NEW YORK 10004, OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR THE NOTE REGISTRAR, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
FORM OF RULE 144A GLOBAL SERIES 2022-1 CLASS A-2 NOTE
No. R-[__] up to $[_____]
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP Number: 974153 AD0
ISIN Number: US974153AD06
Common Code: 245702493
WINGSTOP FUNDING LLC
SERIES 2022-1 3.734% FIXED RATE SENIOR SECURED NOTES, CLASS A-2
WINGSTOP FUNDING LLC, a limited liability company formed under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, up to the principal sum of [_____] DOLLARS ($[_____]) as provided below and in the Indenture referred to herein. Payments of principal shall be payable in the amounts and at the times set forth in the Indenture described herein; provided, however, that the entire unpaid principal amount of this Note shall be due on March 2052 (the “Series 2022-1 Legal Final Maturity Date”). The Issuer will pay interest on this Rule 144A Global Series 2022-1 Class A-2 Note (this “Note”) at the Series 2022-1 Class A-2 Note Rate applicable to the Series 2022-1 Class A-2 Notes for each Interest Accrual Period in accordance with the terms of the Indenture. Such interest will be payable in arrears on each Quarterly Payment Date, which will be on the fifth day (or, if such fifth day is not a Business Day, the next succeeding Business Day (a “Business Day Adjustment”)) of each of March, June, September and December, commencing September 2022 (each, a “Quarterly Payment Date”). Such interest will accrue for each Quarterly Payment Date with respect to (i) initially, the period from and including March 9, 2022 to but excluding the Initial Quarterly Payment Date, without giving effect to any Business Day Adjustment and (ii) thereafter, any period commencing on and including the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment) in which the immediately preceding Quarterly Payment Date occurred, and ending on but excluding the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment) that includes the then-current Quarterly Payment Date, in each case without giving effect to any Business Day Adjustment (each, an “Interest Accrual Period”). Interest with respect to the Notes (and interest on any defaulted payments of interest or principal) will be computed on the basis of a 360-day year consisting of twelve 30-day months. In addition, under the circumstances set forth in the Indenture, the Issuer shall also pay additional interest on this Note at the Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest Rate applicable to the Series 2022-1 Class A-2 Notes, and such additional interest shall be computed and shall be payable in the amounts and at the times set forth in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private
debts. All payments made by the Issuer with respect to this Note shall be applied as provided in the Indenture.
This Note is subject to mandatory and optional prepayment as set forth in the Indenture.
Interests in this Note are exchangeable or transferable in whole or in part for interests in a Temporary Regulation S Global Note or a Permanent Regulation S Global Note; provided that such transfer or exchange complies with the applicable provisions of the Indenture relating to the transfer of the Notes. Interests in this Note in certain circumstances may also be exchangeable or transferable in whole but not in part for duly executed and issued registered Definitive Notes; provided that such transfer or exchange complies with Sections 2.8 and 2.13 of the Base Indenture and Section 4.2(c) of the Series 2022-1 Supplement.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Although a summary of certain provisions of the Indenture is set forth below and on the reverse hereof and made a part hereof, this Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Issuer and the Trustee. A copy of the Indenture may be requested from the Trustee by writing to the Trustee at Citibank, N.A., 388 Greenwich Street, New York, NY 10013, Attention: Agency & Trust – Wingstop Funding LLC. To the extent not defined herein, the capitalized terms used herein have the meanings ascribed to them in the Indenture. In the event of any inconsistency between the provisions of this Note and the Indenture, the provisions of the Indenture shall govern.
Subject to the next following paragraph, the Issuer hereby certifies and declares that all acts, conditions and things required to be done and performed and to have happened prior to the creation of this Note and to constitute it as the valid obligation of the Issuer enforceable in accordance with its terms have been done and performed and have happened in due compliance with all applicable laws and in accordance with the terms of the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee whose name appears below by manual, electronic or facsimile signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Date:
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WINGSTOP FUNDING LLC, as Issuer |
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| By: | |
| Name: |
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2022-1 Class A-2 Notes issued under the within mentioned Indenture.
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CITIBANK, N.A., as Trustee |
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| By: | |
| Name: |
| Title: Authorized Signatory |
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Series 2022-1 Class A-2 Notes of the Issuer designated as its Series 2022-1 3.734% Fixed Rate Senior Secured Notes, Class A-2 (herein called the “Series 2022-1 Class A-2 Notes”), all issued under (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (such Second Amended and Restated Base Indenture, as further amended, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2022-1 Supplement to the Base Indenture, dated as of March 9, 2022 (the “Series 2022-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2022-1 Supplement are referred to herein collectively as the “Indenture”. The Series 2022-1 Class A-2 Notes are subject to all terms of the Indenture. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture.
The Series 2022-1 Class A-2 Notes are and will be secured by the Collateral pledged as security therefor as provided in the Indenture.
The Notes will be issued in minimum denominations of $100,000 and in any whole number denomination in excess thereof.
As provided for in the Indenture, the Series 2022-1 Class A-2 Notes may be prepaid, in whole or in part, at the option of the Issuer. In addition, the Series 2022-1 Class A-2 Notes are subject to mandatory prepayment as provided for in the Indenture. In certain circumstances, the Issuer will be obligated to pay the Series 2022-1 Class A-2 Make-Whole Prepayment Consideration in connection with a mandatory or optional prepayment of the Series 2022-1 Class A-2 Notes as described in the Indenture. As described above, the entire unpaid principal amount of this Note shall be due and payable on the Series 2022-1 Legal Final Maturity Date. All payments of principal of the Series 2022-1 Class A-2 Notes will be made pro rata to the Series 2022-1 Class A-2 Noteholders entitled thereto.
Principal of and interest on this Note which is payable on a Quarterly Payment Date or on any date on which payments are permitted to be made as provided for in the Indenture shall be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the applicable Record Date or Prepayment Record Date, as the case may be.
Interest and additional interest, if any, will each accrue on the Series 2022-1 Class A-2 Notes at the rates set forth in the Indenture. The interest and additional interest, if any, will be computed on the basis set forth in the Indenture. The amount of interest payable on the Series 2022-1 Class A-2 Notes on each Quarterly Payment Date will be calculated as set forth in the Indenture.
Payments of principal and interest on this Note are subordinated to the payment of certain other amounts in accordance with the Priority of Payments.
If an Event of Default shall occur and be continuing, this Note may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Amounts payable in respect of this Note shall be made by wire transfer of immediately available funds to the account designated by DTC or its nominee.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note (other than any Uncertificated Note) may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee, the Issuer and the Note Registrar duly executed by, the Series 2022-1 Class A-2 Noteholder hereof or its attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and accompanied by such other documents as the Trustee and the Note Registrar may require and as may be required by the Series 2022-1 Supplement, and thereupon one or more new Series 2022-1 Class A-2 Notes of authorized denominations in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Series 2022-1 Class A-2 Noteholder, by acceptance of a Series 2022-1 Class A-2 Note, covenants and agrees by accepting the benefits of the Indenture that, prior to the date that is one year and one day after the payment in full of the latest maturing note issued under the Indenture, such Series 2022-1 Class A-2 Noteholder will not institute against, or join with any other Person in instituting against, any Securitization Entity any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, however, that nothing herein shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Securitization Entities pursuant to the Indenture or any other Transaction Document.
It is the intent of the Issuer and each Series 2022-1 Class A-2 Noteholder that, for federal, state, local income and franchise tax purposes only, the Series 2022-1 Class A-2 Notes will evidence indebtedness of the Issuer secured by the Collateral. Each Series 2022-1 Class A-2 Noteholder, by the acceptance of this Note, agrees to treat this Note (or beneficial interests herein) for all purposes of federal, state, local income or franchise taxes, and any other tax imposed on or measured by income, as indebtedness of the Issuer or, if the Issuer is treated as a division of another entity, such other entity.
The Indenture permits certain amendments to be made thereto without the consent of the Control Party, the Controlling Class Representative or any Series 2022-1 Class A-2 Noteholders, provided that certain conditions precedent are satisfied. The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Series 2022-1 Class A-2 Noteholders under the Indenture at any time by the Issuer with the consent of the Control Party (acting at the direction of the Controlling Class Representative) and without the consent of any Series 2022-1 Class A-2 Noteholders. The Indenture also contains provisions permitting the Control Party (acting at the direction of the Controlling Class Representative) to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences without the consent of any Series 2022-1 Class A-2 Noteholders. Any such consent or waiver of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Series 2022-1 Class A-2 Noteholder and upon all future Series 2022-1 Class A-2 Noteholders of this Note and of any Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
Each purchaser or transferee of this Note (or any interest herein) shall be deemed to represent and warrant that either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise), nor a governmental, church, non-U.S. or other plan that is subject to any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of the Series 2022-1 Notes (or any interest therein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
The term “Issuer” as used in this Note includes any successor and assignee to the Issuer under the Indenture.
The Series 2022-1 Class A-2 Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations set forth therein.
This Note and the Indenture shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without regard to conflicts of law principles (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate and in the coin or currency herein prescribed.
ASSIGNMENT
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| Social Security or taxpayer I.D. or other identifying number of assignee: | |
| FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto |
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(name and address of assignee) |
| the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints |
| attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. |
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| Dated: | | | | |
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| | | By: | 1 |
| | | Signature Guaranteed: |
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1 NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note, without alteration, enlargement or any change whatsoever. |
SCHEDULE OF EXCHANGES IN RULE 144A
GLOBAL SERIES 2022-1 CLASS A-2 NOTE
The initial principal balance of this Rule 144A Global Series 2022-1 Class A-2 Note is $[_____]. The following exchanges of an interest in this Rule 144A Global Series 2022-1 Class A-2 Note for an interest in a corresponding Temporary Regulation S Global Series 2022-1 Class A-2 Note or a Permanent Regulation S Global Series 2022-1 Class A-2 Note have been made:
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| Date | | Amount of Increase
(or Decrease) in the Principal Amount of this Rule 144A Global Note | | Remaining Principal Amount of this Rule 144A Global Note following the Increase or Decrease | | Signature of Authorized Officer of Trustee or Note Registrar |
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EXHIBIT B-2-2
THE ISSUANCE AND SALE OF THIS TEMPORARY REGULATION S GLOBAL SERIES 2022-1 CLASS A-2 NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION, AND WINGSTOP FUNDING LLC (THE “ISSUER”) HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “1940 ACT”). THIS NOTE OR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO (A) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE QIBS, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A QIB AND NOT A COMPETITOR, (B) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE NOT “U.S. PERSONS” IN OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S UNDER THE 1933 ACT, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR (C) THE ISSUER OR AN AFFILIATE OF THE ISSUER, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION, AND, IN EACH CASE, IN COMPLIANCE WITH THE CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION.
BY ITS ACQUISITION OR ACCEPTANCE HEREOF, THE HOLDER (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) REPRESENTS THAT (A) IT IS NOT A COMPETITOR AND IS (X) A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A OR (Y) NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, AS APPLICABLE, (B) IT IS NOT A COMPETITOR AND IS ACTING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PERSON WHICH IS EITHER (X) A QUALIFIED INSTITUTIONAL BUYER OR (Y) NOT A U.S. PERSON, AND IN EACH CASE WITH RESPECT TO WHICH IT EXERCISES SOLE INVESTMENT DISCRETION AND WHICH IS NOT A COMPETITOR, (C) IT AND EACH ACCOUNT FOR WHICH IT IS PURCHASING WILL HOLD AND TRANSFER AT LEAST THE MINIMUM DENOMINATION OF NOTES, (D) IT UNDERSTANDS THAT THE ISSUER MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN ITS NOTES FROM ONE OR MORE BOOK-ENTRY DEPOSITORIES AND (E) IT WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS TO ANY SUBSEQUENT TRANSFEREES.
EACH PERSON (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE WILL BE DEEMED TO HAVE MADE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE. EACH PERSON TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE IN THE FORM OF AN INTEREST IN A RULE 144A GLOBAL NOTE OR A PERMANENT REGULATION S GLOBAL NOTE WILL BE REQUIRED TO DELIVER A TRANSFER CERTIFICATE IN THE FORM REQUIRED BY THE INDENTURE AND WILL BE REQUIRED TO MAKE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE.
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT AND WILL BE VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO ANY PERSON CAUSING SUCH VIOLATION, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE TRUSTEE OR ANY INTERMEDIARY; PROVIDED, HOWEVER, THAT THE PRECEDING PORTION OF THIS SENTENCE SHALL NOT OPERATE TO INVALIDATE ANY OTHERWISE BONA FIDE TRANSFER TO AN ELIGIBLE TRANSFEREE WHERE A PREVIOUS ERRONEOUSLY-REGISTERED TRANSFEROR IN THE CHAIN OF TITLE OF SUCH TRANSFEREE WOULD HAVE BEEN INELIGIBLE SOLELY ON ACCOUNT OF BEING A COMPETITOR.
IF THIS NOTE WAS ACQUIRED IN THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR NOT TO HAVE BEEN A QUALIFIED INSTITUTIONAL BUYER AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS A QUALIFIED INSTITUTIONAL BUYER. THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS NOT A QUALIFIED INSTITUTIONAL BUYER OR WHO IS A COMPETITOR.
IF THIS NOTE WAS ACQUIRED OUTSIDE THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR TO HAVE BEEN A “U.S. PERSON” AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS NOT A “U.S. PERSON.” THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS A “U.S. PERSON” OR WHO IS A COMPETITOR.
BY ACCEPTING THIS NOTE, EACH PURCHASER COVENANTS THAT IT WILL NOT AT ANY TIME PRIOR TO THE DATE WHICH IS ONE (1) YEAR AND ONE (1) DAY AFTER THE PAYMENT IN FULL OF THE LATEST MATURING NOTE, INSTITUTE AGAINST, OR JOIN WITH ANY OTHER PERSON IN INSTITUTING AGAINST, ANY SECURITIZATION ENTITY ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS, UNDER ANY FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
UNTIL FORTY (40) DAYS AFTER THE ORIGINAL ISSUE DATE OF THE NOTES (THE “RESTRICTED PERIOD”) IN CONNECTION WITH THE OFFERING OF THE NOTES IN THE UNITED STATES FROM OUTSIDE OF THE UNITED STATES, THE SALE, PLEDGE OR TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS AND RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE ACQUIRING THIS NOTE, ACKNOWLEDGES THAT SUCH HOLDER IS EITHER (I) NOT A “U.S. PERSON” AND NOT A COMPETITOR OR (II) THE ISSUER OR AN AFFILIATE OF THE ISSUER, AND THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER THE 1933 ACT, AND AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS NOTE MAY BE TRANSFERRED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO A HOLDER THAT IS NOT A “U.S. PERSON” AND NOT A COMPETITOR PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR TO THE ISSUER OR AN AFFILIATE OF THE ISSUER AND IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS OF THE STATES, TERRITORIES AND POSSESSIONS OF THE UNITED STATES GOVERNING THE OFFER AND SALE OF
SECURITIES, AND PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD, ONLY (I) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE 1933 ACT OR (II) PURSUANT TO AND IN ACCORDANCE WITH RULE 144A UNDER THE 1933 ACT.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, 55 WATER STREET, NEW YORK, NEW YORK 10004, OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR THE NOTE REGISTRAR, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
FORM OF TEMPORARY REGULATION S GLOBAL SERIES 2022-1 CLASS A-2 NOTE
No. S-[__] up to $[_____]
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP Number: U97015 AC2
ISIN Number: USU97015AC24
Common Code: 245702523
WINGSTOP FUNDING LLC
SERIES 2022-1 3.734% FIXED RATE SENIOR SECURED NOTES, CLASS A-2
WINGSTOP FUNDING LLC, a limited liability company formed under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, up to the principal sum of [_____] DOLLARS ($[_____]) as provided below and in the Indenture referred to herein. Payments of principal shall be payable in the amounts and at the times set forth in the Indenture described herein; provided, however, that the entire unpaid principal amount of this Note shall be due on March 2052 (the “Series 2022-1 Legal Final Maturity Date”). The Issuer will pay interest on this Temporary Regulation S Global Series 2022-1 Class A-2 Note (this “Note”) at the Series 2022-1 Class A-2 Note Rate applicable to the Series 2022-1 Class A-2 Notes for each Interest Accrual Period in accordance with the terms of the Indenture. Such interest will be payable in arrears on each Quarterly Payment Date, which will be on the fifth day (or, if such fifth day is not a Business Day, the next succeeding Business Day (a “Business Day Adjustment”)) of each of March, June, September and December, commencing September 2022 (each, a “Quarterly Payment Date”). Such interest will accrue for each Quarterly Payment Date with respect to (i) initially, the period from and including March 9, 2022 to but excluding the Initial Quarterly Payment Date, without giving effect to any Business Day Adjustment and (ii) thereafter, any period commencing on and including the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment) in which the immediately preceding Quarterly Payment Date occurred, and ending on but excluding the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment)that includes the then-current Quarterly Payment Date, in each case without giving effect to any Business Day Adjustment (each, an “Interest Accrual Period”). Interest with respect to the Notes (and interest on any defaulted payments of interest or principal) will be computed on the basis of a 360-day year consisting of twelve 30-day months. In addition, under the circumstances set forth in the Indenture, the Issuer shall also pay additional interest on this Note at the Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest Rate applicable to the Series 2022-1 Class A-2 Notes, and such additional interest shall be computed and shall be payable in the amounts and at the times set forth in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private
debts. All payments made by the Issuer with respect to this Note shall be applied as provided in the Indenture.
This Note is subject to mandatory and optional prepayment as set forth in the Indenture.
Interests in this Note are exchangeable or transferable in whole or in part for interests in a Rule 144A Global Note or a Permanent Regulation S Global Note; provided that such transfer or exchange complies with the applicable provisions of the Indenture relating to the transfer of the Notes. Interests in this Note in certain circumstances may also be exchangeable or transferable in whole but not in part for duly executed and issued registered Definitive Notes; provided that such transfer or exchange complies with Sections 2.8 and 2.13 of the Base Indenture and Section 4.2(c) of the Series 2022-1 Supplement.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Although a summary of certain provisions of the Indenture is set forth below and on the reverse hereof and made a part hereof, this Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Issuer and the Trustee. A copy of the Indenture may be requested from the Trustee by writing to the Trustee at Citibank, N.A., 388 Greenwich Street, New York, NY 10013, Attention: Agency & Trust – Wingstop Funding LLC. To the extent not defined herein, the capitalized terms used herein have the meanings ascribed to them in the Indenture. In the event of any inconsistency between the provisions of this Note and the Indenture, the provisions of the Indenture shall govern.
Subject to the next following paragraph, the Issuer hereby certifies and declares that all acts, conditions and things required to be done and performed and to have happened prior to the creation of this Note and to constitute it as the valid obligation of the Issuer enforceable in accordance with its terms have been done and performed and have happened in due compliance with all applicable laws and in accordance with the terms of the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee whose name appears below by manual, electronic or facsimile signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Date:
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WINGSTOP FUNDING LLC, as Issuer |
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| By: | |
| Name: |
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2022-1 Class A-2 Notes issued under the within mentioned Indenture.
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CITIBANK, N.A., as Trustee |
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| By: | |
| Name: |
| Title: Authorized Signatory |
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Series 2022-1 Class A-2 Notes of the Issuer designated as its Series 2022-1 3.734% Fixed Rate Senior Secured Notes, Class A-2 (herein called the “Series 2022-1 Class A-2 Notes”), all issued under (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (such Second Amended and Restated Base Indenture, as further amended, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2022-1 Supplement to the Base Indenture, dated as of March 9, 2022 (the “Series 2022-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2022-1 Supplement are referred to herein collectively as the “Indenture”. The Series 2022-1 Class A-2 Notes are subject to all terms of the Indenture. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture
The Series 2022-1 Class A-2 Notes are and will be secured by the Collateral pledged as security therefor as provided in the Indenture.
The Notes will be issued in minimum denominations of $100,000 and in any whole number denomination in excess thereof.
As provided for in the Indenture, the Series 2022-1 Class A-2 Notes may be prepaid, in whole or in part, at the option of the Issuer. In addition, the Series 2022-1 Class A-2 Notes are subject to mandatory prepayment as provided for in the Indenture. In certain circumstances, the Issuer will be obligated to pay the Series 2022-1 Class A-2 Make-Whole Prepayment Consideration in connection with a mandatory or optional prepayment of the Series 2022-1 Class A-2 Notes as described in the Indenture. As described above, the entire unpaid principal amount of this Note shall be due and payable on the Series 2022-1 Legal Final Maturity Date. All payments of principal of the Series 2022-1 Class A-2 Notes will be made pro rata to the Series 2022-1 Class A-2 Noteholders entitled thereto.
Principal of and interest on this Note which is payable on a Quarterly Payment Date or on any date on which payments are permitted to be made as provided for in the Indenture shall be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the applicable Record Date or Prepayment Record Date, as the case may be.
Interest and additional interest, if any, will each accrue on the Series 2022-1 Class A-2 Notes at the rates set forth in the Indenture. The interest and additional interest, if any, will be computed on the basis set forth in the Indenture. The amount of interest payable on the Series 2022-1 Class A-2 Notes on each Quarterly Payment Date will be calculated as set forth in the Indenture.
Payments of principal and interest on this Note are subordinated to the payment of certain other amounts in accordance with the Priority of Payments.
If an Event of Default shall occur and be continuing, this Note may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Amounts payable in respect of this Note shall be made by wire transfer of immediately available funds to the account designated by DTC or its nominee.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note (other than any Uncertificated Note) may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee, the Issuer and the Note Registrar duly executed by, the Series 2022-1 Class A-2 Noteholder hereof or its attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and accompanied by such other documents as the Trustee and the Note Registrar may require and as may be required by the Series 2022-1 Supplement, and thereupon one or more new Series 2022-1 Class A-2 Notes of authorized denominations in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Series 2022-1 Class A-2 Noteholder, by acceptance of a Series 2022-1 Class A-2 Note, covenants and agrees by accepting the benefits of the Indenture that, prior to the date that is one year and one day after the payment in full of the latest maturing note issued under the Indenture, such Series 2022-1 Class A-2 Noteholder will not institute against, or join with any other Person in instituting against, any Securitization Entity any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, however, that nothing herein shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Securitization Entities pursuant to the Indenture or any other Transaction Document.
It is the intent of the Issuer and each Series 2022-1 Class A-2 Noteholder that, for federal, state, local income and franchise tax purposes only, the Series 2022-1 Class A-2 Notes will evidence indebtedness of the Issuer secured by the Collateral. Each Series 2022-1 Class A-2 Noteholder, by the acceptance of this Note, agrees to treat this Note (or beneficial interests herein) for all purposes of federal, state, local income or franchise taxes, and any other tax imposed on or measured by income, as indebtedness of the Issuer or, if the Issuer is treated as a division of another entity, such other entity.
The Indenture permits certain amendments to be made thereto without the consent of the Control Party, the Controlling Class Representative or any Series 2022-1 Class A-2 Noteholders, provided that certain conditions precedent are satisfied. The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Series 2022-1 Class A-2 Noteholders under the Indenture at any time by the Issuer with the consent of the Control Party (acting at the direction of the Controlling Class Representative) and without the consent of any Series 2022-1 Class A-2 Noteholders. The Indenture also contains provisions permitting the Control Party (acting at the direction of the Controlling Class Representative) to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences without the consent of any Series 2022-1 Class A-2 Noteholders. Any such consent or waiver of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Series 2022-1 Class A-2 Noteholder and upon all future Series 2022-1 Class A-2 Noteholders of this Note and of any Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
Each purchaser or transferee of this Note (or any interest herein) shall be deemed to represent and warrant that either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise), nor a governmental, church, non-U.S. or other plan that is subject to any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of the Series 2022-1 Notes (or any interest therein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
The term “Issuer” as used in this Note includes any successor and assignee to the Issuer under the Indenture.
The Series 2022-1 Class A-2 Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations set forth therein.
This Note and the Indenture shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without regard to conflicts of law principles (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate and in the coin or currency herein prescribed.
ASSIGNMENT
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| Social Security or taxpayer I.D. or other identifying number of assignee: | |
| FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto |
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(name and address of assignee) |
| the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints |
| attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. |
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| Dated: | | | | |
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| | | By: | 1 |
| | | Signature Guaranteed: |
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1 NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note, without alteration, enlargement or any change whatsoever. |
SCHEDULE OF EXCHANGES IN TEMPORARY REGULATION S
GLOBAL SERIES 2022-1 CLASS A-2 NOTE
The initial principal balance of this Temporary Regulation S Global Series 2022-1 Class A-2 Note is $[_____]. The following exchanges of an interest in this Temporary Regulation S Global Series 2022-1 Class A-2 Note for an interest in a corresponding Rule 144A Global Series 2022-1 Class A-2 Note or a Permanent Regulation S Global Series 2022-1 Class A-2 Note have been made:
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| Date | | Amount of Increase
(or Decrease) in the Principal Amount of this Temporary Regulation S Global Note | | Remaining Principal Amount of this Temporary Regulation S Global Note following the Increase or Decrease | | Signature of Authorized Officer of Trustee or Note Registrar |
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EXHIBIT B-2-3
THE ISSUANCE AND SALE OF THIS PERMANENT REGULATION S GLOBAL SERIES 2022-1 CLASS A-2 NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION, AND WINGSTOP FUNDING LLC (THE “ISSUER”) HAS NOT BEEN REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “1940 ACT”). THIS NOTE OR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY TO (A) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE QIBS, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A QIB AND NOT A COMPETITOR, (B) PERSONS THAT ARE NOT COMPETITORS AND THAT ARE NOT “U.S. PERSONS” IN OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S UNDER THE 1933 ACT, PURCHASING FOR THEIR OWN ACCOUNT OR THE ACCOUNT OF ONE OR MORE OTHER PERSONS, EACH OF WHICH IS A NON-U.S. PERSON AND NOT A COMPETITOR, OR (C) THE ISSUER OR AN AFFILIATE OF THE ISSUER, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION, AND, IN EACH CASE, IN COMPLIANCE WITH THE CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION.
BY ITS ACQUISITION OR ACCEPTANCE HEREOF, THE HOLDER (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) REPRESENTS THAT (A) IT IS NOT A COMPETITOR AND IS (X) A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A OR (Y) NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, AS APPLICABLE, (B) IT IS NOT A COMPETITOR AND IS ACTING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PERSON WHICH IS EITHER (X) A QUALIFIED INSTITUTIONAL BUYER OR (Y) NOT A U.S. PERSON, AND IN EACH CASE WITH RESPECT TO WHICH IT EXERCISES SOLE INVESTMENT DISCRETION AND WHICH IS NOT A COMPETITOR, (C) IT AND EACH ACCOUNT FOR WHICH IT IS PURCHASING WILL HOLD AND TRANSFER AT LEAST THE MINIMUM DENOMINATION OF NOTES, (D) IT UNDERSTANDS THAT THE ISSUER MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN ITS NOTES FROM ONE OR MORE BOOK-ENTRY DEPOSITORIES AND (E) IT WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS TO ANY SUBSEQUENT TRANSFEREES.
EACH PERSON (IF NOT THE ISSUER OR AN AFFILIATE OF THE ISSUER) TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE WILL BE DEEMED TO HAVE MADE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE. EACH PERSON TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE IN THE FORM OF AN INTEREST IN A PERMANENT REGULATION S GLOBAL NOTE WILL BE REQUIRED TO DELIVER A TRANSFER CERTIFICATE IN THE FORM REQUIRED BY THE INDENTURE AND WILL BE REQUIRED TO MAKE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE.
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT AND WILL BE VOID AB INITIO AND WILL NOT OPERATE TO
TRANSFER ANY RIGHTS TO ANY PERSON CAUSING SUCH VIOLATION, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE TRUSTEE OR ANY INTERMEDIARY; PROVIDED, HOWEVER, THAT THE PRECEDING PORTION OF THIS SENTENCE SHALL NOT OPERATE TO INVALIDATE ANY OTHERWISE BONA FIDE TRANSFER TO AN ELIGIBLE TRANSFEREE WHERE A PREVIOUS ERRONEOUSLY-REGISTERED TRANSFEROR IN THE CHAIN OF TITLE OF SUCH TRANSFEREE WOULD HAVE BEEN INELIGIBLE SOLELY ON ACCOUNT OF BEING A COMPETITOR.
IF THIS NOTE WAS ACQUIRED IN THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR NOT TO HAVE BEEN A QUALIFIED INSTITUTIONAL BUYER AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS A QUALIFIED INSTITUTIONAL BUYER. THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS NOT A QUALIFIED INSTITUTIONAL BUYER OR WHO IS A COMPETITOR.
IF THIS NOTE WAS ACQUIRED OUTSIDE THE UNITED STATES, AND THE HOLDER IS DETERMINED TO BE A COMPETITOR OR TO HAVE BEEN A “U.S. PERSON” AT THE TIME OF ACQUISITION OF THIS NOTE, THE ISSUER HAS THE RIGHT TO REQUIRE SUCH HOLDER TO SELL THIS NOTE TO A PURCHASER WHO IS NOT A COMPETITOR AND IS NOT A “U.S. PERSON.” THE ISSUER ALSO HAS THE RIGHT TO REFUSE TO HONOR A TRANSFER TO A PERSON WHO IS A “U.S. PERSON” OR WHO IS A COMPETITOR.
BY ACCEPTING THIS NOTE, EACH PURCHASER COVENANTS THAT IT WILL NOT AT ANY TIME PRIOR TO THE DATE WHICH IS ONE (1) YEAR AND ONE (1) DAY AFTER THE PAYMENT IN FULL OF THE LATEST MATURING NOTE, INSTITUTE AGAINST, OR JOIN WITH ANY OTHER PERSON IN INSTITUTING AGAINST, ANY SECURITIZATION ENTITY ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS, UNDER ANY FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, 55 WATER STREET, NEW YORK, NEW YORK 10004, OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR THE NOTE REGISTRAR, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
FORM OF PERMANENT REGULATION S GLOBAL SERIES 2022-1 CLASS A-2 NOTE
No. S-[__] up to $[_____]
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP Number: U97015 AC2
ISIN Number: USU97015AC24
Common Code: 245702523
WINGSTOP FUNDING LLC
SERIES 2022-1 3.734% FIXED RATE SENIOR SECURED NOTES, CLASS A-2
WINGSTOP FUNDING LLC, a limited liability company formed under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, up to the principal sum of [_____] DOLLARS ($[_____]) as provided below and in the Indenture referred to herein. Payments of principal shall be payable in the amounts and at the times set forth in the Indenture described herein; provided, however, that the entire unpaid principal amount of this Note shall be due on March 2052 (the “Series 2022-1 Legal Final Maturity Date”). The Issuer will pay interest on this Permanent Regulation S Global Series 2022-1 Class A-2 Note (this “Note”) at the Series 2022-1 Class A-2 Note Rate applicable to the Series 2022-1 Class A-2 Notes for each Interest Accrual Period in accordance with the terms of the Indenture. Such interest will be payable in arrears on each Quarterly Payment Date, which will be on the fifth day (or, if such fifth day is not a Business Day, the next succeeding Business Day (a “Business Day Adjustment”)) of each of March, June, September and December, commencing September 2022 (each, a “Quarterly Payment Date”). Such interest will accrue for each Quarterly Payment Date with respect to (i) initially, the period from and including March 9, 2022 to but excluding the Initial Quarterly Payment Date, without giving effect to any Business Day Adjustment and (ii) thereafter, any period commencing on and including the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment) in which the immediately preceding Quarterly Payment Date occurred, and ending on but excluding the fifth (5th) day of the calendar month (without giving any effect to any Business Day Adjustment) that includes the then-current Quarterly Payment Date, in each case without giving effect to any Business Day Adjustment (each, an “Interest Accrual Period”). Interest with respect to the Notes (and interest on any defaulted payments of interest or principal) will be computed on the basis of a 360-day year consisting of twelve 30-day months. In addition, under the circumstances set forth in the Indenture, the Issuer shall also pay additional interest on this Note at the Series 2022-1 Class A-2 Quarterly Post-ARD Contingent Additional Interest Rate applicable to the Series 2022-1 Class A-2 Notes, and such additional interest shall be computed and shall be payable in the amounts and at the times set forth in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied as provided in the Indenture.
This Note is subject to mandatory and optional prepayment as set forth in the Indenture.
Interests in this Note are exchangeable or transferable in whole or in part for interests in a Rule 144A Global Note; provided that such transfer or exchange complies with the applicable provisions of the Indenture relating to the transfer of the Notes. Interests in this Note in certain circumstances may also be exchangeable or transferable in whole but not in part for duly executed and issued registered Definitive Notes; provided that such transfer or exchange complies with Sections 2.8 and 2.13 of the Base Indenture and Section 4.2(c) of the Series 2022-1 Supplement.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Although a summary of certain provisions of the Indenture is set forth below and on the reverse hereof and made a part hereof, this Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Issuer and the Trustee. A copy of the Indenture may be requested from the Trustee by writing to the Trustee at Citibank, N.A., 388 Greenwich Street, New York, NY 10013, Attention: Agency & Trust – Wingstop Funding LLC. To the extent not defined herein, the capitalized terms used herein have the meanings ascribed to them in the Indenture. In the event of any inconsistency between the provisions of this Note and the Indenture, the provisions of the Indenture shall govern.
Subject to the next following paragraph, the Issuer hereby certifies and declares that all acts, conditions and things required to be done and performed and to have happened prior to the creation of this Note and to constitute it as the valid obligation of the Issuer enforceable in accordance with its terms have been done and performed and have happened in due compliance with all applicable laws and in accordance with the terms of the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee whose name appears below by manual, electronic or facsimile signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Date:
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WINGSTOP FUNDING LLC, as Issuer |
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| By: | |
| Name: |
| Title: Authorized Signatory |
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2022-1 Class A-2 Notes issued under the within mentioned Indenture.
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CITIBANK, N.A., as Trustee |
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| By: | |
| Name: |
| Title: Authorized Signatory |
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Series 2022-1 Class A-2 Notes of the Issuer designated as its Series 2022-1 3.734% Fixed Rate Senior Secured Notes, Class A-2 (herein called the “Series 2022-1 Class A-2 Notes”), all issued under (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (such Second Amended and Restated Base Indenture, as further amended, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2022-1 Supplement to the Base Indenture, dated as of March 9, 2022 (the “Series 2022-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2022-1 Supplement are referred to herein collectively as the “Indenture”. The Series 2022-1 Class A-2 Notes are subject to all terms of the Indenture. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture
The Series 2022-1 Class A-2 Notes are and will be secured by the Collateral pledged as security therefor as provided in the Indenture.
The Notes will be issued in minimum denominations of $100,000 and in any whole number denomination in excess thereof.
As provided for in the Indenture, the Series 2022-1 Class A-2 Notes may be prepaid, in whole or in part, at the option of the Issuer. In addition, the Series 2022-1 Class A-2 Notes are subject to mandatory prepayment as provided for in the Indenture. In certain circumstances, the Issuer will be obligated to pay the Series 2022-1 Class A-2 Make-Whole Prepayment Consideration in connection with a mandatory or optional prepayment of the Series 2022-1 Class A-2 Notes as described in the Indenture. As described above, the entire unpaid principal amount of this Note shall be due and payable on the Series 2022-1 Legal Final Maturity Date. All payments of principal of the Series 2022-1 Class A-2 Notes will be made pro rata to the Series 2022-1 Class A-2 Noteholders entitled thereto.
Principal of and interest on this Note which is payable on a Quarterly Payment Date or on any date on which payments are permitted to be made as provided for in the Indenture shall be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the applicable Record Date or Prepayment Record Date, as the case may be.
Interest and additional interest, if any, will each accrue on the Series 2022-1 Class A-2 Notes at the rates set forth in the Indenture. The interest and additional interest, if any, will be computed on the basis set forth in the Indenture. The amount of interest payable on the Series 2022-1 Class A-2 Notes on each Quarterly Payment Date will be calculated as set forth in the Indenture.
Payments of principal and interest on this Note are subordinated to the payment of certain other amounts in accordance with the Priority of Payments.
If an Event of Default shall occur and be continuing, this Note may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Amounts payable in respect of this Note shall be made by wire transfer of immediately available funds to the account designated by DTC or its nominee.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note (other than any Uncertificated Note) may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee, the Issuer and the Note Registrar duly executed by, the Series 2022-1 Class A-2 Noteholder hereof or its attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended, and accompanied by such other documents as the Trustee and the Note Registrar may require and as may be required by the Series 2022-1 Supplement, and thereupon one or more new Series 2022-1 Class A-2 Notes of authorized denominations in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Series 2022-1 Class A-2 Noteholder, by acceptance of a Series 2022-1 Class A-2 Note, covenants and agrees by accepting the benefits of the Indenture that, prior to the date that is one year and one day after the payment in full of the latest maturing note issued under the Indenture, such Series 2022-1 Class A-2 Noteholder will not institute against, or join with any other Person in instituting against, any Securitization Entity any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, however, that nothing herein shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Securitization Entities pursuant to the Indenture or any other Transaction Document.
It is the intent of the Issuer and each Series 2022-1 Class A-2 Noteholder that, for federal, state, local income and franchise tax purposes only, the Series 2022-1 Class A-2 Notes will evidence indebtedness of the Issuer secured by the Collateral. Each Series 2022-1 Class A-2 Noteholder, by the acceptance of this Note, agrees to treat this Note (or beneficial interests herein) for all purposes of federal, state, local income or franchise taxes, and any other tax imposed on or measured by income, as indebtedness of the Issuer or, if the Issuer is treated as a division of another entity, such other entity.
The Indenture permits certain amendments to be made thereto without the consent of the Control Party, the Controlling Class Representative or any Series 2022-1 Class A-2 Noteholders, provided that certain conditions precedent are satisfied. The Indenture also permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Series 2022-1 Class A-2 Noteholders under the Indenture at any time by the Issuer with the consent of the Control Party (acting at the direction of the Controlling Class Representative) and without the consent of any Series 2022-1 Class A-2 Noteholders. The Indenture also contains provisions permitting the Control Party (acting at the direction of the Controlling Class Representative) to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences without the consent of any Series 2022-1 Class A-2 Noteholders. Any such consent or waiver of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Series 2022-1 Class A-2 Noteholder and upon all future Series 2022-1 Class A-2 Noteholders of this Note and of any Note issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
Each purchaser or transferee of this Note (or any interest herein) shall be deemed to represent and warrant that either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise), nor a governmental, church, non-U.S. or other plan that is subject to any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of the Series 2022-1 Notes (or any interest therein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
The term “Issuer” as used in this Note includes any successor and assignee to the Issuer under the Indenture.
The Series 2022-1 Class A-2 Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations set forth therein.
This Note and the Indenture shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York without regard to conflicts of law principles (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate and in the coin or currency herein prescribed.
ASSIGNMENT
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| Social Security or taxpayer I.D. or other identifying number of assignee: | |
| FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto |
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(name and address of assignee) |
| the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints |
| attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. |
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| Dated: | | | | |
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| | | By: | 1 |
| | | Signature Guaranteed: |
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1 NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note, without alteration, enlargement or any change whatsoever. |
SCHEDULE OF EXCHANGES IN PERMANENT REGULATION S
GLOBAL SERIES 2022-1 CLASS A-2 NOTE
The initial principal balance of this Permanent Regulation S Global Series 2022-1 Class A-2 Note is $[_____]. The following exchanges of an interest in this Permanent Regulation S Global Series 2022-1 Class A-2 Note for an interest in a corresponding Rule 144A Global Series 2022-1 Class A-2 Note or a Temporary Regulation S Global Series 2022-1 Class A-2 Note have been made:
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| Date | | Amount of Increase
(or Decrease) in the Principal Amount of this Permanent Regulation S Global Note | | Remaining Principal Amount of this Permanent Regulation S Global Note following the Increase or Decrease | | Signature of Authorized Officer of Trustee or Note Registrar |
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EXHIBIT C-1
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF SERIES 2022-1 CLASS A-1 NOTES
Citibank, N.A., as Trustee
480 Washington Boulevard
30th16th Floor
Jersey City, NJ 07310
Attention: Securities Window – Wingstop Funding LLC
Re: Wingstop Funding LLC Series 2022-1 Variable Funding Senior Notes, Class A-1 Subclass: Series 2022-1 Class A-1 [Advance][L/C] Notes (the “Notes”)
Reference is hereby made to (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (such Second Amended and Restated Base Indenture, as further amended, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2022-1 Supplement to the Base Indenture, dated as of March 9, 2022 (the “Series 2022-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2022-1 Supplement are referred to herein collectively as the “Indenture”. The Series 2022-1 Class A-2 Notes are subject to all terms of the Indenture. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture
This certificate relates to U.S.$[_____] aggregate principal amount of Notes registered in the name of [_____] [name of transferor] (the “Transferor”) and held in the form of [a Definitive Note][an Uncertificated Note], who wishes to effect the transfer of such Notes in exchange for an equivalent principal amount of Notes of the same Subclass in the name of [_____] [name of transferee] (the “Transferee”) to be held in the form of [a Definitive Note][an Uncertificated Note].
In connection with such request, and in respect of such Notes, the Transferee does hereby certify that either (A) it is the Issuer or an Affiliate of the Issuer or (B) such Notes are being transferred (i) in accordance with the transfer restrictions set forth in the Indenture and the Class A-1 Note Purchase Agreement, (ii) pursuant to an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction and (iii) other than upon the occurrence or during the continuance of an Event of Default, to a Person who is not a VFN Competitor.
In addition, the Transferee hereby represents, warrants and covenants for the benefit of the Issuer and the Trustee that either it is the Issuer or an Affiliate of the Issuer or:
1.it has had an opportunity to discuss the Issuer’s and the Manager’s business, management and financial affairs, and the terms and conditions of the proposed purchase, with the Issuer and the Manager and their respective representatives;
2.it is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and has sufficient knowledge and experience in financial and
business matters to be capable of evaluating the merits and risks of investing in, and is able and prepared to bear the economic risk of investing in, the Series 2022-1 Class A-1 Notes;
3.it is purchasing the Series 2022-1 Class A-1 Notes for its own account, or for the account of one or more “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that meet the criteria described in paragraph (2) above and for which it is acting with complete investment discretion, for investment purposes only and not with a view to distribution, subject, nevertheless, to the understanding that the disposition of its property shall at all times be and remain within its control, and neither it nor its Affiliates has engaged in any general solicitation or general advertising within the meaning of the Securities Act with respect to the Series 2022-1 Class A-1 Notes;
4.it understands that (i) the Series 2022-1 Class A-1 Notes have not been and will not be registered or qualified under the Securities Act or any applicable state securities laws or the securities laws of any other jurisdiction and are being offered only in a transaction not involving any public offering within the meaning of the Securities Act and may not be resold or otherwise transferred unless so registered or qualified or unless an exemption from registration or qualification is available, (ii) the Issuer is not required to register the Series 2022-1 Class A-1 Notes and (iii) any transfer must comply with the provisions of Sections 2.8 and 2.13 of the Base Indenture, Section 4.3 of the Series 2022-1 Supplement and Section 9.03 or 9.17, as applicable, of the Class A-1 Note Purchase Agreement;
5.in the case of a Transferee taking their interest in the applicable Series 2022-1 Class A-1 Note in the form of an Uncertificated Note, following the transfer of such Transferee, the Trustee shall send to the Transferee a Confirmation of Registration pursuant to Section 4.1(f) of the Series 2022-1 Supplement;
6.it will comply with the requirements of paragraph (4) above in connection with any transfer by it of the Series 2022-1 Class A-1 Notes;
7.it understands that the Series 2022-1 Class A-1 Notes issued in the form of a Definitive Note will bear the legend set out in the applicable form of Series 2022-1 Class A-1 Notes attached to the Series 2022-1 Supplement and be subject to the restrictions on transfer described in such legend;
8.it will obtain for the benefit of the Issuer from any purchaser of the Series 2022-1 Class A-1 Notes substantially the same representations and warranties contained in the foregoing paragraphs;
9.other than upon the occurrence or during the continuance of an Event of Default, it is not a VFN Competitor;
10.either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise) nor a governmental, church, non-U.S. or other plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of this Note (or any interest herein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code;
11.in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Similar Law; and
12.it is:
_____ (check if applicable) a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”), and a properly completed and signed Internal Revenue Service (“IRS”) Form W-9 (or applicable successor form) is attached hereto; or
_____ (check if applicable) not a “United States person” within the meaning of Section 7701(a)(30) of the Code and a properly completed and signed IRS Form W-8 (or applicable successor form) is attached hereto.
The Transferee understands that the Issuer, the Trustee and their respective counsel will rely upon the accuracy and truth of the foregoing representations, and are irrevocably authorized to produce this certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby, and the Transferee hereby consents to such reliance and authorization.
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cc: c/o Wingstop Inc.
15505 Wright Brothers Drive
2801 N Central Expy, Ste 1600
Addison, TX 75001Dallas, Texas 75204
Attention: Gerry McGrath
EXHIBIT C-2
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL NOTES
TO INTERESTS IN TEMPORARY REGULATION S GLOBAL NOTES
Citibank, N.A., as Trustee
480 Washington Boulevard
30th16th Floor
Jersey City, NJ 07310
Attention: Securities Window – Wingstop Funding LLC
Re: Wingstop Funding LLC $250,000,000 Series 2022-1 3.734% Fixed Rate Senior Secured Notes, Class A-2 (the “Notes”)
Reference is hereby made to (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (such Second Amended and Restated Base Indenture, as further amended, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2022-1 Supplement to the Base Indenture, dated as of March 9, 2022 (the “Series 2022-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2022-1 Supplement are referred to herein collectively as the “Indenture”. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture.
This certificate relates to U.S.$ [_____] aggregate principal amount of Notes which are held in the form of an interest in a Rule 144A Global Note with DTC (CUSIP (CINS) No. [___]) in the name of [_____] [name of transferor] (the “Transferor”), who wishes to effect the transfer of such Notes in exchange for an equivalent beneficial interest in a Temporary Regulation S Global Note in the name of [_____] [name of transferee] (the “Transferee”).
In connection with such request, and in respect of such Notes, the Transferee does hereby certify that either (A) the Transferee is the Issuer or an Affiliate of the Issuer or (B) such Notes are being transferred (i) in accordance with the transfer restrictions set forth in the Indenture and the Offering Memorandum dated March 2, 2022 relating to the Notes, (ii) pursuant to an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction and (iii) to a Person who is not a Competitor.
In addition, the Transferee hereby represents, warrants and covenants for the benefit of the Issuer, the Note Registrar and the Trustee that either the Transferee is the Issuer or an Affiliate of the Issuer or:
1.the offer of the Notes was not made to a Person in the United States or a Competitor;
2.at the time the buy order was originated, the Transferee was outside the United States;
3.no directed selling efforts have been made in contravention of the requirements of Rule 903(a) or 904(a) of Regulation S, as applicable;
4.the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act, and the Transferee is aware that the sale to it is being made in reliance on an exemption from the registration requirements of the 1933 Act provided by Regulation S;
5.the Transferee is not a U.S. Person (as defined in Regulation S);
6.if the sale is made during a restricted period and the provisions of Rule 903(b)(2) or (3) or Rule 904(b)(1) of Regulation S are applicable thereto, the Transferee confirms that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2) or (3) or Rule 904(b)(1), as the case may be;
7.the Transferee is not purchasing such Notes with a view to the resale, distribution or other disposition thereof in the United States or to a U.S. Person;
8.the Transferee will, and each account for which it is purchasing will, hold and transfer at least the minimum denomination of Notes;
9.the Transferee understands that the Manager, the Issuer and the Servicer may receive a list of participants holding positions in the Notes from one or more book-entry depositories;
10.the Transferee understands that the Manager, the Issuer and the Servicer may receive (i) a list of Note Owners that have requested access to the Trustee’s password-protected website or that have voluntarily registered as a Note Owner with the Trustee and (ii) copies of Noteholder confirmations of representations and warranties executed to obtain access to the Trustee’s password-protected website;
11.the Transferee will provide to each person to whom it transfers Notes notices of any restrictions on transfer of such Notes;
12.it is not a Competitor;
13.either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise) nor a governmental, church, non-U.S. or other plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of this Note (or any interest herein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code;
14.if it is using assets of a Plan to acquire or hold the Notes or any interest therein, then such purchaser or transferee, as applicable, further represents that (i) none of WRI, the Guarantors, the Issuer, the Initial Purchaser, the Trustee, the Servicer or the Back-Up Manager or any of their respective affiliates or agents (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied upon for any advice, with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and none of the Transaction Parties shall at any time be
relied upon as the Plan’s fiduciary with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and (ii) the decision to invest in the Notes has been made at the recommendation or direction of an independent fiduciary who (a) is independent of the Transaction Parties; (b) is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies; (c) is a fiduciary (under ERISA and/or Section 4975 of the Code) with respect to the Plan’s investment in the Notes and is responsible for exercising independent judgment in evaluating the investment in the Notes; and (d) is aware of and acknowledges that (1) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the Plan’s investment in the Notes, and (2) the Transaction Parties have a financial interest in the Plan’s investment in the Notes; and
15.it is:
_____ (check if applicable) a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”); or
_____ (check if applicable) not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
The representations made pursuant to clause 7 above shall be deemed to be made on each day from the date the Transferee acquires any interest in any Note through and including the date on which such Transferee disposes of its interest in the applicable Note. The Transferee agrees to provide prompt written notice to the Issuer, the Note Registrar and the Trustee of any change of the status of the Transferee that would cause it to breach the representations made in clause 7 above. The Transferee further agrees to indemnify and hold harmless the Issuer, the Trustee, the Note Registrar and the Initial Purchaser and their respective affiliates from any cost, damage or loss incurred by them as a result of the inaccuracy or breach of the foregoing representations, warranties and agreements in this clause and clause 7 above. Any purported transfer of the Notes (or interest therein) that does not comply with the requirements of this clause and clause 7 above shall be null and void ab initio.
The Transferee understands that the Issuer, the Trustee, the Note Registrar and their respective counsel will rely upon the accuracy and truth of the foregoing representations, and are irrevocably authorized to produce this certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby, and the Transferee hereby consents to such reliance and authorization.
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| [Name of Transferee] |
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| By: | |
| Name: |
| Title: |
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| Dated: | |
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| Registered Name (if Nominee): |
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cc: c/o Wingstop Inc.
15505 Wright Brothers Drive
2801 N Central Expy, Ste 1600
Addison, TX 75001Dallas, Texas 75204
Attention: Gerry McGrath
EXHIBIT C-3
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL NOTES
TO INTERESTS IN PERMANENT REGULATION S GLOBAL NOTES
Citibank, N.A., as Trustee
480 Washington Boulevard
30th16th Floor
Jersey City, NJ 07310
Attention: Securities Window – Wingstop Funding LLC
Re: Wingstop Funding LLC $250,000,000 Series 2022-1 3.734% Fixed Rate Senior Secured Notes, Class A-2 (the “Notes”)
Reference is hereby made to (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (such Second Amended and Restated Base Indenture, as further amended, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2022-1 Supplement to the Base Indenture, dated as of March 9, 2022 (the “Series 2022-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2022-1 Supplement are referred to herein collectively as the “Indenture”. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture.
This certificate relates to U.S.$ [_____] aggregate principal amount of Notes which are held in the form of an interest in a Rule 144A Global Note with DTC (CUSIP (CINS) No. [___]) in the name of [_____] [name of transferor] (the “Transferor”), who wishes to effect the transfer of such Notes in exchange for an equivalent beneficial interest in a Permanent Regulation S Global Note in the name of [_____] [name of transferee] (the “Transferee”).
In connection with such request, and in respect of such Notes, the Transferee does hereby certify that either (A) the Transferee is the Issuer or an Affiliate of the Issuer or (B) such Notes are being transferred (i) in accordance with the transfer restrictions set forth in the Indenture and the Offering Memorandum, dated March 2, 2022, relating to the Notes, (ii) pursuant to an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction and (iii) to a Person who is not a Competitor.
In addition, the Transferee hereby represents, warrants and covenants for the benefit of the Issuer, the Note Registrar and the Trustee that either the Transferee is the Issuer or an Affiliate of the Issuer or:
1.the offer of the Notes was not made to a Person in the United States or a Competitor;
2.at the time the buy order was originated, the Transferee was outside the United States;
3.no directed selling efforts have been made in contravention of the requirements of Rule 903(a) or 904(a) of Regulation S, as applicable;
4.the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act, and the Transferee is aware that the sale to it is being made in reliance on an exemption from the registration requirements of the 1933 Act provided by Regulation S;
5.the Transferee is not a U.S. Person (as defined in Regulation S);
6.the Transferee is not purchasing such Notes with a view to the resale, distribution or other disposition thereof in the United States or to a U.S. Person;
7.the Transferee will, and each account for which it is purchasing will, hold and transfer at least the minimum denomination of Notes;
8.the Transferee understands that the Manager, the Issuer and the Servicer may receive a list of participants holding positions in the Notes from one or more book-entry depositories;
9.the Transferee understands that the Manager, the Issuer and the Servicer may receive (i) a list of Note Owners that have requested access to the Trustee’s password-protected website or that have voluntarily registered as a Note Owner with the Trustee and (ii) copies of Noteholder confirmations of representations and warranties executed to obtain access to the Trustee’s password-protected website;
10.the Transferee will provide to each person to whom it transfers Notes notices of any restrictions on transfer of such Notes;
11.it is not a Competitor;
12.either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise) nor a governmental, church, non-U.S. or other plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of this Note (or any interest herein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code;
13.if it is using assets of a Plan to acquire or hold the Notes or any interest therein, then such purchaser or transferee, as applicable, further represents that (i) none of WRI, the Guarantors, the Issuer, the Initial Purchaser, the Trustee, the Servicer or the Back-Up Manager or any of their respective affiliates or agents (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied upon for any advice, with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and (ii) the decision to invest in the Notes has been made at the recommendation or direction of an independent fiduciary who (a) is independent of the Transaction Parties; (b) is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies; (c) is a fiduciary (under ERISA and/or Section
4975 of the Code) with respect to the Plan’s investment in the Notes and is responsible for exercising independent judgment in evaluating the investment in the Notes; and (d) is aware of and acknowledges that (1) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the Plan’s investment in the Notes, and (2) the Transaction Parties have a financial interest in the Plan’s investment in the Notes; and
14.it is:
_____ (check if applicable) a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”); or
_____ (check if applicable) not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
The Transferee understands that the Issuer, the Trustee, the Note Registrar and their respective counsel will rely upon the accuracy and truth of the foregoing representations, and are irrevocably authorized to produce this certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby, and the Transferee hereby consents to such reliance and authorization.
| | | | | |
| [Name of Transferee] |
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| By: | |
| Name: |
| Title: |
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| Dated: | |
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| Registered Name (if Nominee): |
| | |
cc: c/o Wingstop Inc.
15505 Wright Brothers Drive
2801 N Central Expy, Ste 1600
Addison, TX 75001Dallas, Texas 75204
Attention: Gerry McGrath
EXHIBIT C-4
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN TEMPORARY REGULATION S GLOBAL NOTES
OR PERMANENT REGULATION S GLOBAL NOTES
TO INTERESTS IN RULE 144A GLOBAL NOTES
Citibank, N.A., as Trustee
480 Washington Boulevard
30th16th Floor
Jersey City, NJ 07310
Attention: Securities Window – Wingstop Funding LLC
Re: Wingstop Funding LLC $250,000,000 Series 2022-1 3.734% Fixed Rate Senior Secured Notes, Class A-2 (the “Notes”)
Reference is hereby made to (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (such Second Amended and Restated Base Indenture, as further amended, supplemented or modified, is herein called the “Base Indenture”), between the Issuer and Citibank, N.A., as the trustee (in such capacity, the “Trustee”, which term includes any successor Trustee under the Base Indenture) and as the securities intermediary thereunder, and (ii) the Series 2022-1 Supplement to the Base Indenture, dated as of March 9, 2022 (the “Series 2022-1 Supplement”), between the Issuer and Citibank, N.A., as the Trustee and as the securities intermediary thereunder. The Base Indenture and the Series 2022-1 Supplement are referred to herein collectively as the “Indenture”. Capitalized terms used and not otherwise defined herein shall have the meanings set forth or incorporated by reference in the Indenture.
This certificate relates to U.S.$ [_____] aggregate principal amount of Notes which are held in the form of [an interest in a Temporary Regulation S Global Note with DTC][an interest in an Permanent Regulation S Global Note with DTC] (CUSIP (CINS) No. [___]) in the name of [_____] [name of transferor] (the “Transferor”), who wishes to effect the transfer of such Notes in exchange for an equivalent beneficial interest in a Rule 144A Global Note in the name of [_____] [name of transferee] (the “Transferee”).
In connection with such request, and in respect of such Notes, the Transferee does hereby certify that either (A) the Transferee is the Issuer or an Affiliate of the Issuer or (B) such Notes are being transferred in accordance with (i) the applicable transfer restrictions set forth in the Indenture and in the Offering Memorandum, date March 2, 2022, relating to the Notes and (ii) Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and any applicable securities laws of any state of the United States or any other jurisdiction, and that the Transferee is purchasing the Notes for its own account or one or more accounts with respect to which the Transferee exercises sole investment discretion, and the Transferee and any such account represent, warrant and agree that either it is the Issuer or an Affiliate of the Issuer or:
1.it is (a) a Qualified Institutional Buyer and not a Competitor, (b) aware that the sale to it is being made in reliance on Rule 144A and (c) acquiring such Notes for its own account or for the account of another person who is a Qualified Institutional Buyer and not a Competitor with respect to which it exercise sole investment discretion;
2.it is not formed for the purpose of investing in the Notes, except where each beneficial owner is a Qualified Institutional Buyer;
3.it will, and each account for which it is purchasing will, hold and transfer at least the minimum denomination of Notes;
4.it understands that the Manager, the Issuer and the Servicer may receive a list of participants holding positions in the Notes from one or more book-entry depositories;
5.it understands that the Manager, the Issuer and the Servicer may receive (i) a list of Note Owners that have requested access to the Trustee’s password-protected website or that have voluntarily registered as a Note Owner with the Trustee and (ii) copies of Noteholder confirmations of representations and warranties executed to obtain access to the Trustee’s password-protected website;
6.it will provide to each person to whom it transfers Notes notices of any restrictions on transfer of such Notes;
7.it is not a Competitor;
8.either (i) it is neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise) nor a governmental, church, non-U.S. or other plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) its acquisition, holding and disposition of this Note (or any interest herein) will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code;
9.if it is using assets of a Plan to acquire or hold the Notes or any interest therein, then such purchaser or transferee, as applicable, further represents that (i) none of WRI, the Guarantors, the Issuer, the Initial Purchaser, the Trustee, the Servicer or the Back-Up Manager or any of their respective affiliates or agents (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied upon for any advice, with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to the Plan’s decision to acquire, hold, sell, exchange, vote or provide any consent with respect to the Notes, and (ii) the decision to invest in the Notes has been made at the recommendation or direction of an independent fiduciary who (a) is independent of the Transaction Parties; (b) is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies; (c) is a fiduciary (under ERISA and/or Section 4975 of the Code) with respect to the Plan’s investment in the Notes and is responsible for exercising independent judgment in evaluating the investment in the Notes; and (d) is aware of and acknowledges that (1) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the Plan’s investment in the Notes, and (2) the Transaction Parties have a financial interest in the Plan’s investment in the Notes; and
10.it is:
_____ (check if applicable) a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”); or
_____ (check if applicable) not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
The Transferee understands that the Issuer, the Trustee, the Note Registrar and their respective counsel will rely upon the accuracy and truth of the foregoing representations, and are irrevocably authorized to produce this certificate or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to any matter covered hereby, and the Transferee hereby consents and agrees to such reliance and authorization.
| | | | | |
| [Name of Transferee] |
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| By: | |
| Name: |
| Title: |
| | | | | | | | |
| Dated: | |
| | |
| Registered Name (if Nominee): |
| | |
cc: c/o Wingstop Inc.
15505 Wright Brothers Drive
2801 N Central Expy, Ste 1600
Addison, TX 75001Dallas, Texas 75204
Attention: Gerry McGrath
EXHIBIT D
FORM OF CONFIRMATION OF REGISTRATION OF UNCERTIFICATED NOTES
Date: [_____]
[Name of Holder]
[Address of Holder]
Re: Wingstop Funding LLC $200,000,000300,000,000 Variable Funding Senior Secured Notes Series 2022-1, Class A-1 (the “Notes”)
Reference is hereby made to (i) the Second Amended and Restated Base Indenture, dated as of March 9, 2022 (as the same may be further amended, amended and restated, supplemented or otherwise modified from time to time, is herein called the “Base Indenture”), between Wingstop Funding LLC, as issuer (the “Issuer”) and Citibank, N.A., as trustee (the “Trustee”) and as securities intermediary and (ii) the Series 2022-1 Supplement to the Base Indenture, dated as of March 9, 2022, by and among the Issuer, the Trustee and Citibank, N.A., as Series 2022-1 securities intermediary (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Supplement” and, together with the Base Indenture, the “Indenture”). Capitalized terms used but not defined herein shall have the meanings assigned to them pursuant to the Indenture.
Pursuant to Section 4.1(f) of the Supplement, the undersigned hereby confirms that the Note Registrar has registered the aggregate principal amount of the Subclass of the Series 2022-1 Class A-1 Notes specified below, in the name specified below, in the Note Register. This Confirmation of Registration is provided for informational purposes only; ownership of each Uncertificated Series 2022-1 Class A-1 Note shall be determined conclusively by the Note Register. To the extent of any conflict between this Confirmation of Registration and the Note Register, the Note Register shall control. This is not a security certificate or evidence of ownership.
Uncertificated Series 2022-1 Class A-1 Note
Note: [Advance Note][L/C Note]
Maximum Principal Amount: U.S. $[_____]
Registered Name: [_____]
CITIBANK, N.A.,
as Trustee and Note Registrar
By:___________________________________
Authorized Signatory
AMENDED AND RESTATED CLASS A-1 NOTE PURCHASE AGREEMENT
(SERIES 2022-1 CLASS A-1 NOTES)
dated as of December 3, 2024
among
WINGSTOP FUNDING LLC,
as Issuer,
WINGSTOP GUARANTOR LLC and
WINGSTOP FRANCHISING LLC,
each as a Guarantor,
WINGSTOP RESTAURANTS INC.,
as Manager,
CERTAIN CONDUIT INVESTORS,
each as a Conduit Investor,
CERTAIN FINANCIAL INSTITUTIONS,
each as a Note Purchaser,
CERTAIN FUNDING AGENTS,
MORGAN STANLEY BANK, N.A.
as L/C Provider
and
MORGAN STANLEY ASSET FUNDING INC.
as Administrative Agent
TABLE OF CONTENTS
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| ARTICLE I DEFINITIONS | 2 |
| SECTION 1.01 | Definitions | 2 |
| ARTICLE II PURCHASE AND SALE OF SERIES 2022-1 CLASS A-1 NOTES | |
| SECTION 2.01 | The Advance Notes | 2 |
| SECTION 2.02 | Advances | 2 |
| SECTION 2.03 | Borrowing Procedures | 4 |
| SECTION 2.04 | The Series 2022-1 Class A-1 Notes | 6 |
| SECTION 2.05 | Reduction in Commitments and Termination of Agreement | 7 |
| SECTION 2.06 | Temporary Commitment Availability Period. | 9 |
| SECTION 2.07 | L/C Commitment | 10 |
| SECTION 2.08 | L/C Reimbursement Obligations | 13 |
| SECTION 2.09 | L/C Participations | 14 |
| ARTICLE III INTEREST AND FEES | 15 |
| SECTION 3.01 | Interest | 15 |
| SECTION 3.02 | Fees | 17 |
| SECTION 3.03 | SOFR Lending Unlawful | 17 |
| SECTION 3.04 | Alternate Rate of Interest | 17 |
| SECTION 3.05 | Increased Costs, etc | 22 |
| SECTION 3.06 | Funding Losses | 23 |
| SECTION 3.07 | Increased Capital or Liquidity Costs | 23 |
| SECTION 3.08 | Taxes | 24 |
| SECTION 3.09 | Change of Lending Office | 26 |
| ARTICLE IV OTHER PAYMENT TERMS | 27 |
| SECTION 4.01 | Time and Method of Payment | 27 |
| SECTION 4.02 | Order of Distributions | 27 |
| SECTION 4.03 | L/C Cash Collateral | 28 |
| SECTION 4.04 | Alternative Arrangements with Respect to Letters of Credit | 28 |
| SECTION 4.05 | Erroneous Payments | 28 |
| ARTICLE V THE ADMINISTRATIVE AGENT AND THE FUNDING AGENTS | 29 |
| SECTION 5.01 | Authorization and Action of the Administrative Agent | 29 |
| SECTION 5.02 | Delegation of Duties | 30 |
| SECTION 5.03 | Exculpatory Provisions | 30 |
| SECTION 5.04 | Reliance | 30 |
| SECTION 5.05 | Non-Reliance on the Administrative Agent and Other Purchasers | 31 |
| SECTION 5.06 | The Administrative Agent in its Individual Capacity | 31 |
| SECTION 5.07 | Successor Administrative Agent; Defaulting Administrative Agent | 31 |
| SECTION 5.08 | Authorization and Action of Funding Agents | 32 |
| SECTION 5.09 | Delegation of Duties | 32 |
| SECTION 5.10 | Exculpatory Provisions | 33 |
| | | | | | | | |
| SECTION 5.11 | Reliance | 33 |
| SECTION 5.12 | Non-Reliance on the Funding Agent and Other Purchasers | 33 |
| SECTION 5.13 | The Funding Agent in its Individual Capacity | 33 |
| SECTION 5.14 | Successor Funding Agent | 33 |
| ARTICLE VI REPRESENTATIONS AND WARRANTIES | 34 |
| SECTION 6.01 | The Issuer and Guarantors | 34 |
| SECTION 6.02 | The Manager | 35 |
| SECTION 6.03 | Lender Parties | 36 |
| ARTICLE VII CONDITIONS | 36 |
| SECTION 7.01 | Conditions to Issuance and Effectiveness | 36 |
| SECTION 7.02 | Conditions to Initial Extensions of Credit | 37 |
| SECTION 7.03 | Conditions to Each Extension of Credit and Temporary Commitment Availability Period | 37 |
| ARTICLE VIII COVENANTS | 39 |
| SECTION 8.01 | Covenants | 39 |
| ARTICLE IX MISCELLANEOUS PROVISIONS | 40 |
| SECTION 9.01 | Amendments | 40 |
| SECTION 9.02 | No Waiver; Remedies | 42 |
| SECTION 9.03 | Binding on Successors and Assigns | 42 |
| SECTION 9.04 | Termination; Survival of Agreement | 43 |
| SECTION 9.05 | Payment of Costs and Expenses; Indemnification | 43 |
| SECTION 9.06 | Characterization as Transaction Document; Entire Agreement | 45 |
| SECTION 9.07 | Notices | 45 |
| SECTION 9.08 | Severability of Provisions | 45 |
| SECTION 9.09 | Tax Characterization | 45 |
| SECTION 9.10 | No Proceedings; Limited Recourse | 46 |
| SECTION 9.11 | Confidentiality | 47 |
| SECTION 9.12 | GOVERNING LAW; CONFLICTS WITH INDENTURE | 48 |
| SECTION 9.13 | JURISDICTION; WAIVERS | 48 |
| SECTION 9.14 | WAIVER OF JURY TRIAL | 48 |
| SECTION 9.15 | Counterparts | 48 |
| SECTION 9.16 | Third Party Beneficiary | 49 |
| SECTION 9.17 | Assignment | 49 |
| SECTION 9.18 | Defaulting Investors | 51 |
| SECTION 9.19 | No Fiduciary Duties | 53 |
| SECTION 9.20 | No Guarantee by Manager | 53 |
| SECTION 9.21 | [Reserved] | 53 |
| SECTION 9.22 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 53 |
| SECTION 9.23 | Patriot Act | 55 |
| SECTION 9.24 | Recognition of the U.S. Special Resolution Regimes | 55 |
| SECTION 9.25 | Amendment and Restatement | 55 |
SCHEDULES AND EXHIBITS
SCHEDULE I Investor Groups and Commitments
SCHEDULE II Notice Addresses for Lender Parties and Agents
SCHEDULE III Additional Closing Conditions
EXHIBIT A Form of Advance Request
EXHIBIT B Form of Assignment and Assumption Agreement
EXHIBIT C Form of Investor Group Supplement
EXHIBIT D Form of Purchaser’s Letter
EXHIBIT E Form of TCAP Notice
AMENDED AND RESTATED CLASS A-1 NOTE PURCHASE AGREEMENT
THIS AMENDED AND RESTATED CLASS A-1 NOTE PURCHASE AGREEMENT, dated as of December 3, 2024 (the “Series 2022-1 Upsize Closing Date”) (as amended, supplemented, amended and restated or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), is made by and among:
(a) WINGSTOP FUNDING LLC, a Delaware limited liability company (the “Issuer”),
(b) WINGSTOP GUARANTOR LLC and WINGSTOP FRANCHISING LLC, each a Delaware limited liability company (each, a “Guarantor” and, collectively, the “Guarantors”),
(c) WINGSTOP RESTAURANTS INC., a Texas corporation, as the manager (the “Manager”),
(d) the several commercial paper conduits listed on Schedule I as Conduit Investors and their respective permitted successors and assigns (each, a “Conduit Investor” and, collectively, the “Conduit Investors”),
(e) the several financial institutions listed on Schedule I as Note Purchasers and their respective permitted successors and assigns (each, a “Note Purchaser” and, collectively, the “Note Purchasers”),
(f) for each Investor Group, the financial institution entitled to act on behalf of the Investor Group set forth opposite the name of such Investor Group on Schedule I as Funding Agent and its permitted successors and assigns (each, the “Funding Agent” with respect to such Investor Group and, collectively, the “Funding Agents”),
(g) MORGAN STANLEY BANK, N.A., as L/C Provider, and
(h) MORGAN STANLEY ASSET FUNDING INC., as administrative agent for the Conduit Investors, the Note Purchasers, the Funding Agents and the L/C Provider (together with its permitted successors and assigns in such capacity, the “Administrative Agent” or the “Series 2022-1 Class A-1 Administrative Agent”).
(h) the other L/C Providers from time to time party hereto.
BACKGROUND
1.On March 9, 2022, certain parties hereto entered into that certain Class A-1 Note Purchase Agreement, by and among the Issuer, the Guarantors, the Manager, certain Conduit Investors, certain Note Purchasers, certain Funding Agents, Morgan Stanley Bank, N.A., as an L/C Provider, and Morgan Stanley Asset Funding Inc., as the Administrative Agent thereunder (the “Original Agreement”).
2.Contemporaneously with the execution and delivery of the Original Agreement, the Issuer and Citibank, N.A., as Trustee and the Series 2022-1 Securities Intermediary, entered into the Series 2022-1 Supplement, of even date therewith (the “Original Series 2022-1 Supplement”), to the
Second Amended and Restated Base Indenture, dated as of March 9, 2022 (as amended by the First Supplement to the Second Amended and Restated Base Indenture, dated as of the date hereof and as may be further amended, supplemented, amended and restated or otherwise modified from time to time in accordance with the terms thereof, the “Base Indenture” and, together with the Original Series 2022-1 Supplement, as such supplement may be amended, supplemented, amended and restated or otherwise modified from time to time and any additional Supplements to the Base Indenture, the “Indenture”), by and among the Issuer, the Trustee and the Securities Intermediary, pursuant to which the Issuer issued the Series 2022-1 Class A-1 Notes (as defined in the Original Series 2022-1 Supplement), which may be issued in the form of Uncertificated Notes (as defined in the Base Indenture), in accordance with the Indenture.
3.Contemporaneously with the execution and delivery of this Agreement, the Issuer and Citibank, N.A., as Trustee and the Series 2022-1 Securities Intermediary, are entering into the First Supplement to the Original 2022-1 Supplement, of even date herewith (the “Series 2022-1 Supplement Amendment” and the Original Series 2022-1 Supplement, as amended by the Series 2022-1 Supplement Amendment, and as the same may be further amended, supplemented, amended and restated or otherwise modified from time to time in accordance with the terms thereof, the “Series 2022-1 Supplement”), pursuant to which the Issuer will issue additional Class A-1 Notes (the “Additional Series 2022-1 Class A-1 Notes” and, together with the Original Series 2022-1 Class A-1 Notes, the “Series 2022-1 Class A-1 Notes”) in accordance with the Indenture.
4.Section 9.01 of the Original Class A-1 Note Purchase Agreement permits the Issuer to amend the Original Class A-1 Note Purchase Agreement subject to (a) the written consent of the Administrative Agent and the Required Investor Groups; provided, however, that in addition, the prior written consent of each affected Investor shall be required in connection with, inter alia, any amendment that increases the Commitment or reduces the amount of payment of any interest payable to such Investor of such Investor and (b) the written consent of the L/C Provider or the Funding Agents if the amendment affects the rights or obligations of such party.
5.Section 13.1 of the Base Indenture permits certain amendments to the Class A-1 Note Purchase Agreement, including such amendments and modifications set forth in this Agreement, without the consent of any Noteholder, the Control Party, the Controlling Class Representative or any other Secured Party.
6.The Issuer, the Guarantors, the Manager, the Conduit Investors, the Note Purchasers, the Funding Agents, the L/C Provider and the Administrative Agent wish to amend and restate the Original Agreement to reflect the issuance of the Additional Series 2022-1 Class A-1 Notes and to make certain other changes to the Original Agreement.
7.The Issuer wishes to (a) issue additional Series 2022-1 Class A-1 Advance Notes to each Funding Agent on behalf of the Investors in the related Investor Group, and obtain the agreement of the applicable Investors to make loans from time to time (together with loans made from time to time pursuant to the Original Agreement with respect to the Original Series 2022-1 Class A-1 Note, each, an “Advance” or a “Series 2022-1 Class A-1 Advance” and, collectively, the “Advances” or the “Series 2022-1 Class A-1 Advances”) that will constitute the purchase of Series 2022-1 Class A-1 Outstanding Principal Amounts on the terms and conditions set forth in this Agreement; (b) continue the Series 2022-1 Class A-1 L/C Note to the L/C Provider and the agreement of the L/C Provider to provide Letters of Credit on the terms and conditions set forth in this Agreement. The Series 2022-1 Class A-1 Advance Notes and the Series 2022-1 Class A-1 L/C Note constitute Series 2022-1 Class A-1 Notes. The Manager
has joined in this Agreement to confirm certain representations, warranties and covenants made by it in favor of the Trustee and the Noteholders in the Transaction Documents for the benefit of each Lender Party.
ARTICLE I
DEFINITIONS
SECTION 1.01Definitions. As used in this Agreement and unless the context requires a different meaning, capitalized terms used but not defined herein (including the preamble and the recitals hereto) shall have the meanings assigned to such terms or incorporated by reference in the Series 2022-1 Supplemental Definitions List attached to the Series 2022-1 Supplement as Annex A or set forth or incorporated by reference in the Base Indenture Definitions List attached to the Base Indenture as Annex A, as applicable. Unless otherwise specified herein, all Article, Exhibit, Section or Subsection references herein shall refer to Articles, Exhibits, Sections or Subsections of this Agreement.
ARTICLE II
PURCHASE AND SALE OF SERIES 2022-1 CLASS A-1 NOTES
SECTION 2.01The Advance Notes. On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, (i) on the Series 2022-1 Closing Date, the Issuer issued and requested the Trustee to authenticate (in the case of Series 2020-1 Class A-1 Advance Notes in the form of definitive notes) or register as described in Section 4.1(f) of the Series 2022-1 Supplement (in the case of Uncertificated Notes) an aggregate of $200,000,000 in Series 2022-1 Class A-1 Advance Notes (the “Original Series 2022-1 Class A-1 Advance Notes”), which (in the case of Series 2022-1 Class A-1 Advance Notes in the form of definitive notes) the Issuer delivered to each Funding Agent on behalf of the Investors in the related Investor Group on the Series 2022-1 Closing Date, and (ii) on the Series 2022-1 Upsize Closing Date, the Issuer shall issue and shall request the Trustee to authenticate (in the case of Series 2022-1 Class A-1 Advance Notes in the form of definitive notes) or register as described in Section 4.1(f) of the Series 2022-1 Supplement (in the case of Uncertificated Notes) an aggregate of $100,000,000 in additional Series 2020-1 Class A-1 Advance Notes (the “Additional Series 2022-1 Class A-1 Advance Notes” and, together with the Original Series 2022-1 Class A-1 Advance Notes, the “Series 2022-1 Class A-1 Advance Notes”, which (in the case of Additional Series 2022-1 Class A-1 Advance Notes in the form of definitive notes) the Issuer shall deliver to each Funding Agent on behalf of the Investors in the related Investor Group on the Series 2022-1 Upsize Closing Date. Such Original Series 2022-1 Class A-1 Advance Note for each Investor Group was dated the Series 2022-1 Closing Date, and such Additional Series 2020-1 Class A-1 Advance Notes for each Investor Group shall be dated the Series 2022-1 Upsize Closing Date. Each such Series 2022-1 Class A-1 Advance Note has been or shall be registered in the name of the related Funding Agent or its nominee, as agent for the related Investors, or in such other name or nominee as such Funding Agent may request, and has been or shall be duly authenticated (in the case of Series 2022-1 Class A-1 Advance Notes in the form of definitive notes) in accordance with the provisions of the Indenture or has been or shall be registered as described in Section 4.1(f) of the Series 2022-1 Supplement (in the case of Uncertificated Notes). The Series 2022-1 Class A-1 Advance Notes for each Investor Group shall have a maximum principal amount equal to the Maximum Investor Group Principal Amount for such Investor Group.’
SECTION 2.02Advances.
(a) Subject to the terms and conditions of this Agreement and the Indenture, each Eligible Conduit Investor, if any, may, in its sole discretion, and if such Eligible Conduit Investor determines that it will not make (or it does not in fact make) an Advance or any portion of an Advance, its related Note Purchaser(s) may, in its sole discretion, and during a Temporary Commitment Availability Period, shall, or, if there is no Eligible Conduit Investor with respect to any Investor Group, the Note Purchaser(s) with respect to such Investor Group may, in its sole discretion, and during a Temporary Commitment Availability Period, shall, upon the Issuer’s request delivered in accordance with the provisions of Section 2.03, the satisfaction of all conditions precedent thereto (or under the circumstances set forth in Section 2.05) and, other than during a Temporary Commitment Availability Period with
respect to its Note Purchaser TCAP Amount, the consent of the Administrative Agent and the agreement of all Investor Groups, to make a pro rata Advance of the amount requested by the Issuer, make Advances from time to time during the Commitment Term; provided that such Advances shall be made ratably by each Investor Group based on their respective Commitment Percentages and the portion of any such Advance made by any Note Purchaser in such Investor Group shall be its Note Purchaser Percentage of the Advances to be made by such Investor Group (or the portion thereof not being made by any Conduit Investor in such Investor Group); provided, further, that if, as a result of (i) any Note Purchaser (a “Non-Funding Note Purchaser”) failing to make any previous Advance that such Non-Funding Note Purchaser had agreed to make, or during a Temporary Commitment Availability Period, was required to make, or (ii) the Non-Delaying Funding Agents funding the Delayed Amount on behalf of the applicable Investors pursuant to Section 2.03(c), outstanding Advances are not held ratably by each Investor Group based on their respective Commitment Percentages and among the Note Purchasers within each Investor Group based on their respective Note Purchaser Percentages at the time a request for Advances is made, (x) such Non-Funding Note Purchaser or the Delayed Funding Agent (on behalf of the applicable Investors), as applicable, shall make all of such Advances until outstanding Advances are held ratably by each Investor Group based on their respective Commitment Percentages and among the Note Purchasers within each Investor Group based on their respective Note Purchaser Percentages and (y) further Advances shall be made ratably by each Investor Group based on their respective Commitment Percentages and the portion of any such Advance made by any Note Purchaser in such Investor Group shall be its Note Purchaser Percentage of the Advances to be made by such Investor Group (or the portion thereof not being made by any Conduit Investor in such Investor Group); provided, further, that the failure of a Non-Funding Note Purchaser to make Advances pursuant to the immediately preceding proviso shall not, subject to the immediately following proviso, relieve any other Note Purchaser of its obligation hereunder, if any, to make Advances in accordance with Section 2.03(b)(i); provided, further, that, subject, in the case of clause (i) below, to Section 2.03(b)(ii), no Advance shall be required or permitted to be made by any Investor on any date to the extent that, after giving effect to such Advance, (i) the related Investor Group Principal Amount would exceed the related Maximum Investor Group Principal Amount or (ii) the Series 2022-1 Class A-1 Outstanding Principal Amount would exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount.
(b) Notwithstanding anything herein or in any other Transaction Document to the contrary, at no time will an Investor be obligated to make Advances hereunder, other than, with respect to a Note Purchaser either (x) during a Temporary Commitment Availability Period or (y) unless it has already agreed to do so in accordance with Section 2.02(a). If at any time any Conduit Investor is not an Eligible Conduit Investor, such Conduit Investor shall promptly notify the Administrative Agent (who shall promptly notify the related Funding Agent and the Issuer) thereof.
(c) Each of the Advances to be made on any date shall be made as part of a single borrowing (each such single borrowing being a “Borrowing”). The Advances made as part of the initial Borrowing on or after the Series 2022-1 Closing Date, if any, were evidenced by the Original Series 2022-1 Class A-1 Advance Notes issued in connection herewith and constituted purchases of Series 2022-1 Class A-1 Initial Advance Principal Amounts corresponding to the amount of such Advances. All of the other Advances that have been or will be made since the Series 2022-1 Closing Date have constituted or will constitute Increases evidenced by the Series 2022-1 Class A-1 Advance Notes issued in connection herewith and have constituted or will constitute purchases of Series 2022-1 Class A-1 Outstanding Principal Amounts corresponding to the amount of such Advances.
(d) Section 2.2(b) of the Series 2022-1 Supplement specifies the procedures to be followed in connection with any Voluntary Decrease of the Series 2022-1 Class A-1 Outstanding Principal Amount. Each such Voluntary Decrease in respect of any Advances shall be either (i) in an aggregate minimum principal amount of $200,000 and integral multiples of $100,000 in excess thereof or (ii) in such other amount necessary to reduce the Series 2022-1 Class A-1 Outstanding Principal Amount to zero.
(e) Subject to the terms of this Agreement and the Series 2022-1 Supplement, the aggregate principal amount of the Advances evidenced by the Series 2022-1 Class A-1 Advance Notes may be increased by Borrowings or decreased by Voluntary Decreases from time to time.
(f) At any time that the aggregate Series 2022-1 Class A-1 Outstanding Principal Amount attributable to each Investor Group is not held pro rata based on its respective Commitment Percentage (as a result of the issuance of any Letter of Credit or otherwise), the Investor Groups (and the Investors within each such Investor Group) shall at the direction of the Administrative Agent, reallocate any outstanding Advances to ensure that the aggregate Series 2022-1 Class A-1 Outstanding Principal Amount attributable to each Investor Group is pro rata based on its respective Commitment Percentage; provided that the Issuer shall not be liable for any Series 2022-1 Class A-1 Breakage Amounts resulting solely from any such reallocations.
(g) The Administrative Agent shall provide the Issuer, the Manager and the Trustee timely notice of non-ratable allocations pursuant to Section 2.02(a) and of any reallocations of Advances pursuant to Section 2.02(f) (which notice requirements may be satisfied through the delivery of the monthly invoice and Letter of Credit report delivered by the Administrative Agent from time to time); provided, that the failure to provide such notice shall not limit or otherwise affect the obligations of the Issuer under this Agreement or the Indenture with respect thereto. The Issuer and the Manager shall not be responsible for any failure to reflect such allocations or reallocations in any Weekly Manager’s Certificate or Quarterly Noteholders’ Report, or for any payments inconsistent with such allocations or reallocations, until such notice is provided as set forth in this clause (g), including in connection with any Mandatory Decrease, Voluntary Decrease or prepayment of any other Tranche, Class or Series of Notes under the Indenture.
(h) It is agreed that any Series 2022-1 Class A-1 Breakage Amounts shall occur with respect to the applicable Advance closest to maturity.
SECTION 2.03 Borrowing Procedures.
(a) Whenever the Issuer wishes to make a Borrowing, the Issuer shall (or shall cause the Manager on its behalf to) notify the Administrative Agent (who shall promptly, and in any event by 4:00 p.m. (New York City time) on the same Business Day as its receipt of the same, notify each Funding Agent of its proposed pro rata share thereof (or other share pursuant to Section 2.02(a)) and notify the Trustee, the Control Party and the L/C Provider in writing of such Borrowing)) by written notice in the form of an Advance Request delivered to the Administrative Agent no later than 12:00 p.m. (New York City time) up to ten (10) Business Days, but not fewer than two (2) Business Days (or, in the case of any SOFR Advances for purposes of Section 3.01(b), up to ten (10) Business Days, but not fewer two (2) U.S. Government Securities Business Days), prior to the date of such Borrowing (unless a shorter period is agreed upon by the Administrative Agent and the L/C Provider, the L/C Issuing Bank, or the Funding Agents, as applicable), which date of Borrowing shall be a Business Day during the Commitment Term. Each such notice by Issuer shall be irrevocable and shall in each case refer to this Agreement and specify (i) the Borrowing date, (ii) the aggregate amount of the requested Borrowing to be made on such date, (iii) the amount of outstanding Unreimbursed L/C Drawings (if applicable) to be repaid with the proceeds of such Borrowing on the Borrowing date, which amount shall constitute all outstanding Unreimbursed L/C Drawings outstanding on the date of such notice that are not prepaid with other funds of the Issuer available for such purpose, and (iv) sufficient instructions for application of the balance, if any, of the proceeds of such Borrowing on the Borrowing date (which proceeds shall be made available to the Issuer). Requests for any Borrowing may not be made in an aggregate principal amount of less than $100,000 or in an aggregate principal amount that is not an integral multiple of $50,000 in excess thereof (or in each case such other amount as agreed to by the Administrative Agent), except as otherwise provided herein with respect to Borrowings for the purpose of repaying then-outstanding Unreimbursed L/C Drawings. Subject to the provisos to Section 2.02(a), each Borrowing shall be ratably allocated among the Investor Groups’ respective Maximum Investor Group Principal Amounts. Each Funding Agent shall promptly advise its related Investors, of any notice given pursuant to this Section 2.03(a) and shall promptly thereafter (but in no event later than 10:00 a.m. (New York City time) on the proposed date of Borrowing) notify the Administrative Agent, the Issuer and the related Note Purchaser(s) whether such Investor has determined to make all or any portion of the Advances in such Borrowing that are to be made by its Investor Group. On the date of such Borrowing and subject to the other conditions set forth herein and in the Series 2022-1 Supplement (and, if requested by the Administrative Agent, confirmation from the L/C Provider as to (x) the amount of outstanding Unreimbursed L/C Drawings to be repaid with the proceeds of such Borrowing on the Borrowing date, (y) the Undrawn L/C Face Amount of all Letters
of Credit then outstanding and (z) the principal amount of any other Unreimbursed L/C Drawings then outstanding), and other than during a Temporary Commitment Availability Period, solely to the extent the Administrative Agent and all Investor Groups have agreed, each in its sole discretion, to the requested Borrowing, then, the applicable Investors in each Investor Group shall make available to the Administrative Agent the amount of the Advances in such Borrowing that are to be made by such Investor Group by wire transfer in U.S. Dollars of such amount in same day funds no later than 11:00 a.m. (New York City time) (or such later time as the Administrative Agent may agree to in its sole discretion on the date of any Borrowing) on the date of such Borrowing, and upon receipt thereof the Administrative Agent shall make such proceeds available by 3:00 p.m. (New York City time), first, if applicable, and to the L/C Provider for application to repayment of the amount of outstanding Unreimbursed L/C Drawings as set forth in the applicable Advance Request, ratably in proportion to such respective amounts, and/or, second, to the Issuer, as instructed in the applicable Advance Request.
(b) (i) The failure of any Note Purchaser to make the Advance to be made by it as part of any Borrowing that it had agreed to make, or during a Temporary Commitment Availability Period, was required to make, shall not relieve any other Note Purchaser (whether or not in the same Investor Group) of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Note Purchaser shall be responsible for the failure of any other Note Purchaser to make the Advance to be made by such other Note Purchaser on the date of any Borrowing and (ii) in the event that one or more Note Purchasers fails to make its Advance by 11:00 a.m. (New York City time) (or such later time as the Administrative Agent may agree to in its sole discretion on the date of any Borrowing) that it had agreed to make, or during a Temporary Commitment Availability Period, was required to make, on the date of such Borrowing, the Administrative Agent shall notify each of the other Note Purchasers not later than 1:00 p.m. (New York City time) on such date, and each of the other Note Purchasers may, in its sole discretion, make available to the Administrative Agent a supplemental Advance in a principal amount (such amount, the “reference amount”) equal to the lesser of (a) the aggregate principal Advance that was unfunded multiplied by a fraction, the numerator of which is the Maximum Commitment Amount of such Note Purchaser and the denominator of which is the aggregate Maximum Commitment Amounts of all Note Purchasers (less the aggregate Maximum Commitment Amount of the Note Purchasers failing to make Advances on such date) and (b) the excess of (i) such Note Purchaser’s Maximum Commitment Amount over (ii) the product of such Note Purchaser’s related Investor Group Principal Amount multiplied by such Note Purchaser’s Note Purchaser Percentage (after giving effect to all prior Advances on such date of Borrowing) (provided that a Note Purchaser may (but shall not be obligated to), on terms and conditions to be agreed upon by such Note Purchaser and the Issuer, make available to the Administrative Agent a supplemental Advance in a principal amount in excess of the reference amount; provided, however, that no such supplemental Advance shall be permitted to be made to the extent that, after giving effect to such Advance, the Series 2022-1 Class A-1 Outstanding Principal Amount would exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount). Such supplemental Advances shall be made by wire transfer in U.S. Dollars in same day funds no later than 3:00 p.m. (New York City time) one (1) Business Day following the date of such Borrowing, and upon receipt thereof the Administrative Agent shall immediately make such proceeds available, first, if applicable and to the L/C Provider for application to repayment of the amount of outstanding Unreimbursed L/C Drawings as set forth in the applicable Advance Request, ratably in proportion to such respective amounts, and, second to the Issuer, as instructed in the applicable Advance Request. If any Note Purchaser which shall have so failed to fund its Advance shall subsequently pay such amount, the Administrative Agent shall apply such amount pro rata to repay any supplemental Advances made by the other Note Purchasers pursuant to this Section 2.03(b).
(c) After the Issuer delivers an Advance Request for a Borrowing pursuant to Section 2.03 hereof, Barclays Bank PLC, as a Funding Agent (in such capacity, the “Delayed Funding Agent”), on behalf of the applicable Investors, may, not later than 12:00 p.m. New York City time on the date that is two (2) Business Days prior to the proposed Borrowing date, deliver a written notice (a “Delayed Funding Notice”) to the Issuer of its intention to fund the pro rata portion of the Borrowing attributable to it (such amount, the “Delayed Amount”) on a date (the date of such funding, the “Delayed Funding Date”) that is on or before the thirty-fifth (35th) day following the date of such request for a Borrowing (or if such day is not a Business Day, then on the next succeeding Business Day) rather than on the requested Borrowing date; provided that, if the Delayed Funding Agent delivers a Delayed Funding Notice to the Issuer, the Issuer shall have the right, but not the obligation, to deliver written
notice to the other Funding Agents (the “Non-Delayed Funding Agents”) to request that other applicable Investors fund the Delayed Amount on the Borrowing date proposed by the Issuer in the Advance Request by delivering a written request to the Administrative Agent not later than 4:00 p.m. New York City time on the date that is two (2) Business Day prior to the proposed Borrowing date (such request, the “Alternative Funding Notice”); provided, further, that if the Issuer delivers an Alternative Funding Notice to the Non-Delayed Funding Agents, the other applicable Investors shall have no obligation to fund the relevant Delayed Amount but each such applicable Investor may, in its sole discretion, make available supplemental Advances to fund the Delayed Amount in accordance with Section 2.03(b). By delivery of a Delayed Funding Notice, the Delayed Funding Agent shall be deemed to represent and warrant that (x) charges relating to the “liquidity coverage ratio” under Basel III have been incurred on the related Note Purchaser’s interests or obligations hereunder and (y) it is seeking or has obtained a delayed funding option in transactions similar to the transactions contemplated hereby as of the date of such Delayed Funding Notice. If (i) the conditions to any Borrowing described in Section 7.03 are satisfied on the requested Borrowing date and (ii) the Delayed Amount was not entirely funded by the Non-Delayed Funding Agents pursuant to this Section 2.03(c), there shall be no conditions whatsoever (including, without limitation, the occurrence of a Rapid Amortization Period, notwithstanding any statement to the contrary in Section 7.03) to the obligation of the applicable Note Purchasers to fund the Delayed Amount (or the portion of the Delayed Amount not funded by the Non-Delayed Funding Agents on behalf of the applicable Investors, as applicable) on the related Delayed Funding Date.
(d) Unless the Administrative Agent shall have received notice from a Funding Agent prior to the date of any Borrowing that an applicable Investor in the related Investor Group that has agreed to or is required to make an Advance will not make available to the Administrative Agent such Investor’s share of the Advances to be made by such Investor Group as part of such Borrowing, the Administrative Agent may (but shall not be obligated to) assume that such Investor has made such share available to the Administrative Agent on the date of such Borrowing in accordance with Section 2.02(a) and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the L/C Provider and/or the Issuer, as applicable, on such date a corresponding amount, and shall, if such corresponding amount has not been made available by the Administrative Agent, make available to the L/C Provider and/or the Issuer, as applicable, on such date a corresponding amount once such Investor has made such portion available to the Administrative Agent. If and to the extent that any Investor shall not have so made such amount available to the Administrative Agent, such Investor and the Issuer jointly and severally agree to repay (without duplication) to the Administrative Agent on the next Weekly Allocation Date such corresponding amount (in the case of the Issuer, in accordance with the Priority of Payments), together with interest thereon, for each day from the date such amount is made available to the Issuer until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Issuer, the interest rate applicable at the time to the Advances comprising such Borrowing and (ii) in the case of such Investor, the Federal Funds Rate and without deduction by such Investor for any withholding taxes. If such Investor shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Investor’s Advance as part of such Borrowing for purposes of this Agreement.
SECTION 2.04 The Series 2022-1 Class A-1 Notes. On each date an Advance is made or a Letter of Credit is issued hereunder, and on each date the outstanding amount thereof is reduced, a duly authorized officer, employee or agent of the related Series 2022-1 Class A-1 Noteholder shall make appropriate notations in its books and records of the amount, evidenced by the related Series 2022-1 Class A-1 Advance Note or Series 2022-1 Class A-1 L/C Note of such Advance or Letter of Credit, as applicable, and the amount of such reduction, as applicable. The Issuer hereby authorizes each duly authorized officer, employee and agent of such Series 2022-1 Class A-1 Noteholder to make such notations on the books and records as aforesaid and every such notation made in accordance with the foregoing authority shall be prima facie evidence of the accuracy of the information so recorded; provided, however, that in the event of a discrepancy between the books and records of such Series 2022-1 Class A-1 Noteholder and the records maintained by the Trustee pursuant to the Indenture, (x) such discrepancy shall be resolved by such Series 2022-1 Class A-1 Noteholder, the Control Party and the Trustee, in consultation with the Issuer (provided that such consultation with the Issuer will not in any way limit or delay such Series 2022-1 Class A-1 Noteholder’s, the Control Party’s and the Trustee’s ability to resolve such discrepancy), and such resolution shall control in the absence of manifest error and the Series 2022-1 Class A-1
Notes Register shall be corrected as appropriate and (y) until any such discrepancy is resolved pursuant to clause (x), the Series 2022-1 Class A-1 Notes Register shall control; provided, further, that the failure of any such notation to be made, or any finding that a notation is incorrect, in any such records shall not limit or otherwise affect the obligations of the Issuer under this Agreement or the Indenture.
SECTION 2.05 Reduction in Commitments and Termination of Agreement.
(a) The Issuer may, upon at least three (3) Business Days’ notice to the Administrative Agent (who shall promptly notify the Trustee, the Control Party, each Funding Agent and each Investor), effect a permanent reduction in the Series 2022-1 Class A-1 Notes Maximum Principal Amount and a corresponding reduction in each Commitment Amount, Maximum Commitment Amount and Maximum Investor Group Principal Amount on a pro rata basis; provided that (i) any such reduction will be limited to the undrawn portion of the Maximum Commitment Amount, although any such reduction may be combined with a Voluntary Decrease effected pursuant to and in accordance with Section 2.2(b) of the Series 2022-1 Supplement, (ii) any such reduction must be in a minimum amount of $10,000,000 unless reduced to zero, (iii) after giving effect to such reduction, the Series 2022-1 Class A-1 Notes Maximum Principal Amount equals or exceeds $10,000,000, unless reduced to zero, and (iv) no such reduction shall be permitted if, after giving effect thereto, the aggregate Commitment Amounts would be less than the sum of the L/C Commitment. Any reduction made pursuant to this Section 2.05(a) shall be made ratably among the Investor Groups on the basis of their respective Maximum Investor Group Principal Amounts. Upon the permanent reduction in the Maximum Commitment Amount in accordance with this section to zero and related Voluntary Decrease effected pursuant to and in accordance with Section 2.2(b) of the Series 2022-1 Supplement to zero, the Issuer may make all payments in respect of the Aggregate Unpaids and terminate its rights and obligations under this Agreement.
(b) If any of the following events shall occur, then the Commitment Amounts and Maximum Commitment Amounts, as applicable, shall be automatically and, to the extent applicable, permanently reduced on the dates and in the amounts set forth below with respect to the applicable event and the other consequences set forth below with respect to the applicable event shall ensue (and the Issuer shall give the Trustee, the Control Party, each Funding Agent and the Administrative Agent prompt written notice thereof):
(i) each payment of principal on the Series 2022-1 Class A-1 Outstanding Principal Amount shall result automatically in a dollar-for-dollar reduction of the Series 2022-1 Class A-1 Notes Maximum Principal Amount and a corresponding reduction in each Maximum Investor Group Principal Amount and each Note Purchaser’s Commitment Amount on a pro rata basis based on the amount of such Investor Group’s and such Note Purchaser’s outstanding Advances. For the avoidance of doubt, such reductions shall not be permanent unless otherwise permanently reduced in accordance with the terms of this Agreement, and the Series 2022-1 Class A-1 Notes Maximum Principal Amount (and the corresponding Commitment Amount, Maximum Commitment Amount and Maximum Investor Group Principal Amount, each on a pro rata basis) may be increased in connection with a Temporary Commitment Availability Period, Advance or Subfacility Increase, in each case in accordance with the terms of this Agreement and as applicable;
(ii) if the Outstanding Principal Amount of the Series 2022-1 Class A-1 Notes has not been paid in full or otherwise refinanced in full (which refinancing may also include an extension thereof) by the Business Day immediately preceding the Series 2022-1 Class A-1 Notes Renewal Date, (A) each payment of principal on the Series 2022-1 Class A-1 Outstanding Principal Amount occurring on or following such Business Day, (x) the principal amount of all then-outstanding Unreimbursed L/C Drawings shall be repaid in full with proceeds of Advances made on such date (and the Issuer shall be deemed to have delivered such Advance Requests under Section 2.03 as may be necessary to cause such Advances to be made, and (y) the L/C Commitment shall be both automatically and permanently reduced to zero and (B)(x) all undrawn portions of the Commitments shall result automatically and permanently in a dollar-for-dollar reduction of the maximum dollar amount of the Series 2022-1 Class A-1 Notes Maximum
Principal Amount and a corresponding reduction in each Maximum Investor Group Principal Amount on a pro rata basis;
(iii) if a Rapid Amortization Event (other than a Rapid Amortization Event triggered by an Event of Default) occurs and is continuing (and shall not have been waived or, in the case of clause (d) of the definition thereof, cured, as provided in the Base Indenture) prior to the Series 2022-1 Class A-1 Notes Renewal Date, then (A) on the date such Rapid Amortization Event occurs, each payment of principal (which, for the avoidance of doubt, shall include cash collateralization of Undrawn L/C Face Amounts pursuant to Sections 4.02, 4.03(a), 4.03(b) and 9.18(c)(ii)) shall result automatically and permanently in a dollar-for-dollar reduction of the maximum dollar amount of the Series 2022-1 Class A-1 Notes Maximum Principal Amount and a corresponding reduction in each Maximum Investor Group Principal Amount on a pro rata basis and (B) no later than the second Business Day after the occurrence of such Rapid Amortization Event, the principal amount of all then outstanding Unreimbursed L/C Drawings shall be repaid in full with proceeds of Advances (and the Issuer shall be deemed to have delivered such Advance Requests under Section 2.03 as may be necessary to cause such Advances to be made) and the L/C Commitment shall be automatically reduced by the unused portion thereof and such amount of Unreimbursed L/C Drawings repaid by such Advances; provided that, in each case, if any Rapid Amortization Event occurring solely under (1) clause (a) of the definition thereof shall cease to be in effect as a result of being waived in accordance with the Base Indenture or (2) clause (d) of the definition thereof shall cease to be in effect as a result of being cured in accordance with the terms of such clause (d) set forth in the Base Indenture, then in either such case the Commitments, L/C Commitment, the maximum amount of (i) Series 2022-1 Class A-1 Notes Maximum Principal Amount and (ii) the Maximum Investor Group Principal Amounts shall be restored to the amounts in effect immediately prior to the occurrence of such Rapid Amortization Event;
(iv) [Intentionally omitted];
(v) if payments in connection with Indemnification Amounts, Insurance/Condemnation Proceeds or Asset Disposition Proceeds are allocated to and deposited in the Series 2022-1 Class A-1 Distribution Account in accordance with Section 3.6(h) of the Series 2022-1 Supplement at a time when either (i) no Senior Notes other than Series 2022-1 Class A-1 Notes are Outstanding or (ii) if the Outstanding Principal Amount of the Series 2022-1 Class A-1 Notes has not been paid in full or otherwise refinanced in full (which refinancing may also include an extension thereof) by the Series 2022-1 Class A-1 Notes Renewal Date and such event is continuing, then (x) the aggregate Maximum Commitment Amount shall be automatically and permanently reduced on the date of such deposit by an amount (the “Series 2022-1 Class A-1 Allocated Payment Reduction Amount”) equal to the amount of such deposit, and each Note Purchaser’s Maximum Commitment Amount shall be reduced on a pro rata basis of such Series 2022-1 Class A-1 Allocated Payment Reduction Amount based on each Note Purchaser’s Maximum Commitment Amount, (y) the corresponding portions of the Series 2022-1 Class A-1 Notes Maximum Principal Amount and the Maximum Investor Group Principal Amounts shall be automatically and permanently reduced on a pro rata basis based on each Investor Group’s Maximum Investor Group Principal Amount by a corresponding amount on such date (and, if after giving effect to such reduction the aggregate Commitment Amounts would be less than the L/C Commitment, then the aggregate amount of the L/C Commitment shall be reduced by the amount of such difference, with such reduction to be allocated between them in accordance with the written instructions of the Issuer delivered prior to such date; provided that after giving effect thereto the aggregate amount of the L/C Obligations do not exceed the L/C Commitment, respectively, as so reduced; provided further that in the absence of such instructions, such reduction shall be allocated to the L/C Commitment) and (z) the Series 2022-1 Class A-1 Outstanding Principal Amount shall be repaid or prepaid (which for the avoidance of doubt, shall include cash collateralization of Undrawn L/C Face Amounts pursuant to Sections 4.02, 4.03(a), 4.03(b) and 9.18(c)(ii))) in an aggregate amount equal to such Series 2022-1 Class A-1 Allocated Payment Reduction Amount on the date and in the order required by Section 3.6(h) of the Series 2022-1 Supplement; and
(vi) if any Event of Default shall occur and be continuing (and shall not have been waived in accordance with the Base Indenture) and as a result the payment of the Series 2022-1 Class A-1 Notes is accelerated pursuant to the terms of the Base Indenture (and such acceleration shall not have been rescinded in accordance with the Base Indenture), the Series 2022-1 Class A-1 Notes Maximum Principal Amount, the Commitment Amounts, the L/C Commitment and the Maximum Investor Group Principal Amounts shall all be automatically and permanently reduced to zero upon such acceleration and the Issuer shall (in accordance with the Series 2022-1 Supplement) cause the Series 2022-1 Class A-1 Outstanding Principal Amount to be paid in full (which, for the avoidance of doubt, shall include cash collateralization of Undrawn L/C Face Amounts pursuant to Sections 4.02, 4.03(a) and 9.18(c)(ii) together with accrued interest, Series 2022-1 Class A-1 Notes Other Amounts and all other amounts then due and payable to the Lender Parties, the Administrative Agent and the Funding Agents under this Agreement and the other Transaction Documents and any unreimbursed Debt Service Advance, Collateral Protection Advance and Manager Advance (in each case, with interest thereon at the Advance Interest Rate), in each case subject to and in accordance with the provisions of the Base Indenture, including the Priority of Payments.
SECTION 2.06 Temporary Commitment Availability Period.
(a) The Issuer may request, no more than twice per calendar year, upon at least ten (10) Business Days’ notice to the Administrative Agent (who shall promptly notify the Trustee, the Control Party, each Funding Agent and each Investor), by delivering a notice substantially in the form of Exhibit E hereto (a “TCAP Notice”), and the Administrative Agent and each Note Purchaser may, in its sole discretion, agree by delivering to the Issuer such TCAP Notice countersigned by the Administrative Agent, that the Series 2022-1 Class A-1 Notes Maximum Principal Amount be increased (the amount of such increase, as reduced by each Advance made and each Subfacility Increase made during such Temporary Commitment Availability Period (other than any Advance made in connection Subfacility Decrease) on a dollar-for-dollar basis, the “TCAP Amount”) for a period of ninety (90) days during which such period (solely to the extent approved in accordance with this Section 2.06, such period, a “Temporary Commitment Availability Period”) each Note Purchaser’s Commitment Amount and each Investor Group’s Maximum Investor Group Principal Amount will be increased on a pro rata basis based on the TCAP Amount such that the TCAP Amount shall become available to the Issuer in accordance with Section 2.03; provided that (i) the requested amount of the TCAP Amount must be a minimum of $10,00,000 and integral multiples of $500,000 in excess thereof and (ii) no such increase shall be permitted if, after giving effect thereto, the Series 2022-1 Class A-1 Notes Maximum Principal Amount would exceed the maximum dollar amount specified in the definition thereof. Any TCAP Amount shall be allocated ratably among the Investor Groups on the basis of their respective Commitment Percentage. Each TCAP Notice by Issuer shall be irrevocable and shall in each case refer to this Agreement and specify (i) the proposed commencement date of the Temporary Commitment Availability Period and (ii) the requested TCAP Amount.
(b) Each Funding Agent shall promptly advise its related Investors, of any notice given pursuant to this Section 2.06 and shall promptly thereafter (but in no event later than 10:00 a.m. (New York City time) on or prior to the proposed commencement date of the Temporary Commitment Availability Period) notify the Administrative Agent, the Issuer and the related Note Purchaser(s) whether such Investor Group has agreed to increase its Commitment Amount by its Commitment Percentage of the TCAP Amount during such Temporary Commitment Availability Period. The Administrative Agent shall as soon as practicable inform the Issuer of any additional requests needed for approval of the Temporary Commitment Availability Period prior to the commencement thereof. If the Administrative Agent and all Investor Groups have agreed to the request specified in such notice, then on the proposed commencement date of such Temporary Commitment Availability Period and subject to the other conditions set forth herein and in the Series 2022-1 Supplement, the Administrative Agent shall notify the Issuer of the commencement of the Temporary Commitment Availability Period by delivering a countersigned copy of the TCAP Notice executed by the Administrative Agent and the applicable Investors in each Investor Group shall make available to the Administrative Agent the amount of the Advances for each Borrowing in accordance with Section 2.03 or Subfacility Increases in accordance with Section 2.07(b).
(c) Each such Temporary Commitment Availability Period shall, subject to the other conditions set forth herein and in the Series 2022-1 Supplement, automatically renew for another 90 day period unless, at any time prior to the expiration of the then current Temporary Commitment Availability Period, the Issuer shall have notified the Administrative Agent and each Funding Agent in writing of the non-renewal of the Temporary Commitment Availability Period. The Issuer may voluntarily reduce the TCAP Amount in accordance with Section 2.05(a) and voluntarily terminate if the when the TCAP Amount is zero is reduced to zero in accordance therewith. Each Temporary Commitment Availability Period shall automatically terminate when the TCAP Amount is zero. The Administrative Agent shall promptly notify the Trustee and the Control Party of the non-renewal or termination of the Temporary Commitment Availability Period, as applicable.
SECTION 2.07 L/C Commitment.
(a) Subject to the terms and conditions hereof, the L/C Provider (or its permitted assigns pursuant to Section 9.17), in reliance on the agreements of the Note Purchasers set forth in Sections 2.08 and 2.09, may, in its sole discretion and subject to the consent of each Investor Group, and during a Temporary Commitment Availability Period, shall (in an amount not to exceed up to the lesser of the (x) L/C Commitment or (y) undrawn portion of the Series 2022-1 Class A-1 Notes Maximum Principal Amount), provide standby letters of credit, including Interest Reserve Letters of Credit (each, a “Letter of Credit” and, collectively, the “Letters of Credit”) for the account of the Issuer or its designee on any Business Day during the period commencing on the Series 2022-1 Closing Date and ending on the date that is thirty (30) Business Days prior to the Commitment Termination Date to be issued in accordance with Section 2.07(h) in such form as may be approved from time to time by the L/C Provider; provided that the L/C Provider shall have no obligation or right to provide any Letter of Credit on a requested issuance date if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the Series 2022-1 Class A-1 Outstanding Principal Amount would exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount.
Each Letter of Credit shall (x) be denominated in Dollars, (y) have a face amount of at least $1 million or, if less than $1 million, shall bear a reasonable administrative fee to be agreed upon by the Issuer and the L/C Provider and (z) expire no later than the earlier of (A) the first anniversary of its date of issuance and (B) the date that is ten (10) Business Days prior to the Commitment Termination Date (the “Required Expiration Date”); provided that any Letter of Credit may provide for the automatic renewal thereof for additional periods, each individually not to exceed one year (which shall in no event extend beyond the Required Expiration Date) unless the L/C Provider notifies each beneficiary of such Letter of Credit at least thirty (30) calendar days prior to the then-applicable expiration date (or no later than the applicable notice date, if earlier, as specified in such Letter of Credit) that such Letter of Credit shall not be renewed; provided further that any Letter of Credit may have an expiration date that is later than the Required Expiration Date so long as either (x) the Undrawn L/C Face Amount with respect to such Letter of Credit has been fully cash collateralized by the Issuer in accordance with Section 4.02 or 4.03 as of the Required Expiration Date and there are no other outstanding L/C Obligations with respect to such Letter of Credit as of the Required Expiration Date or (y) other than with respect to Interest Reserve Letters of Credit, arrangements satisfactory to the L/C Provider in its sole and absolute discretion have been made with the L/C Provider (and, if the L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that such Letter of Credit shall cease to be deemed outstanding or to be deemed a “Letter of Credit” for purposes of this Agreement as of the Commitment Termination Date.
The L/C Provider shall not at any time be obligated to (I) provide any Letter of Credit hereunder if such issuance would violate, or cause any L/C Issuing Bank to exceed any limits imposed by, any applicable Requirement of Law or (II) amend any Letter of Credit hereunder if (1) the L/C Provider would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (2) each beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(b) On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, the Issuer issued and caused the Trustee to authenticate the Series 2022-1 Class A-1 L/C Note, which the Issuer delivered
to the L/C Provider on the Series 2022-1 Closing Date; provided that, if such Series 2022-1 Class A-1 L/C Note is an Uncertificated Note, the Trustee instead registered it as described in Section 4.1(f) of the Series 2022-1 Supplement. Such Series 2022-1 Class A-1 L/C Note is dated the Series 2022-1 Closing Date, is registered in the name of the L/C Provider or in such other name or nominee as the L/C Provider requested, has a maximum principal amount equal to the L/C Commitment, had an initial outstanding principal amount equal to the Series 2022-1 Class A-1 Initial Aggregate Undrawn L/C Face Amount, and (unless it is an Uncertificated Note) was duly authenticated in accordance with the provisions of the Indenture. Each issuance of a Letter of Credit after the Series 2022-1 Closing Date will constitute an Increase in the outstanding principal amount evidenced by the Series 2022-1 Class A-1 L/C Note in an amount corresponding to the Undrawn L/C Face Amount of such Letter of Credit. All L/C Obligations (whether in respect of Undrawn L/C Face Amounts or Unreimbursed L/C Drawings) shall be deemed to be principal outstanding under the Series 2022-1 Class A-1 L/C Note and shall be deemed to be Series 2022-1 Class A-1 Outstanding Principal Amounts for all purposes of this Agreement, the Indenture and the other Transaction Documents other than, in the case of Undrawn L/C Face Amounts, for purposes of accrual of interest. Subject to the terms of this Agreement and the Series 2022-1 Supplement, each issuance of a Letter of Credit will constitute a Subfacility Increase in the outstanding principal amount evidenced by the Series 2022-1 Class A-1 L/C Note and the expiration of any Letter of Credit or reimbursements of any Unreimbursed L/C Drawings thereunder or other circumstances resulting in the permanent reduction in any Undrawn L/C Face Amounts from time to time will constitute a Subfacility Decrease in the outstanding principal amount evidenced by the Series 2022-1 Class A-1 L/C Note. The L/C Provider and the Issuer agree to promptly notify the Administrative Agent and the Trustee of any such decreases for which notice to the Administrative Agent is not otherwise provided hereunder.
(c) The Issuer may (or shall cause the Manager on its behalf to) from time to time request that the L/C Provider provide a new Letter of Credit by delivering to the L/C Provider at its address for notices specified herein an application therefor (in the form required by the applicable L/C Issuing Bank as notified to the Issuer by the L/C Provider) (an “Application”), completed to the satisfaction of the L/C Provider, and such other certificates, documents and other papers and information as the L/C Provider may reasonably request on behalf of the L/C Issuing Bank. Upon receipt of any completed Application, the L/C Provider will notify the Administrative Agent and the Trustee in writing of the amount, the beneficiary or beneficiaries and the requested expiration date of the requested Letter of Credit (which shall comply with Section 2.07(a) and (i)) and, subject to the other conditions set forth herein and in the Series 2022-1 Supplement and upon receipt of written confirmation from the Administrative Agent (based, with respect to any portion of the Series 2022-1 Class A-1 Outstanding Subfacility Amount held by any Person other than the Administrative Agent, solely on written notices received by the Administrative Agent under this Agreement) that after giving effect to the requested issuance, the Series 2022-1 Class A-1 Outstanding Principal Amount would not exceed the Series 2022-1 Class A-1 Notes Maximum Principal Amount (provided that the L/C Provider shall be entitled to rely upon any written statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons of the Administrative Agent for purposes of determining whether the L/C Provider received such prior written confirmation from the Administrative Agent with respect to any Letter of Credit), the L/C Provider will cause such Application and the certificates, documents and other papers and information delivered in connection therewith to be processed in accordance with the L/C Issuing Bank’s customary procedures and shall promptly provide the Letter of Credit requested thereby (but in no event shall the L/C Provider be required to provide any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto, as provided in Section 2.07(a)) by issuing the original of such Letter of Credit to the beneficiary or beneficiaries thereof or as otherwise may be agreed to by the L/C Provider and the Issuer. The L/C Provider shall furnish a copy of such Letter of Credit to the Manager (with a copy to the Administrative Agent) promptly following the issuance thereof. The L/C Provider shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Funding Agents, the Investors, the Control Party and the Trustee, written notice of the issuance of each Letter of Credit (including the amount thereof).
(d) The Issuer shall pay to the L/C Provider the L/C Quarterly Fees (as defined in the Series 2022-1 Class A-1 Notes Fee Letter, the “L/C Quarterly Fees”) in accordance with the terms of the Series 2022-1 Class A-1 Notes Fee Letter and subject to the Priority of Payments.
(e) [Reserved].
(f) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article II, the provisions of this Article II shall apply.
(g) The Issuer may, upon at least three (3) Business Days’ notice to the Administrative Agent and the L/C Provider, effect a permanent reduction in the L/C Commitment; provided that any such reduction will be limited to the undrawn portion of the L/C Commitment. If requested by the Issuer in writing and with the prior written consent of the L/C Provider and the Administrative Agent, the L/C Provider may (but shall not be obligated to) increase the amount of the L/C Commitment; provided that, after giving effect thereto, the aggregate amount of each of the Outstanding Series 2022-1 Class A-1 Note Advances and the L/C Commitment does not exceed the aggregate amount of the Commitments.
(h) The L/C Provider shall satisfy its obligations under this Section 2.07 with respect to providing any Letter of Credit hereunder by issuing such Letter of Credit itself or through an Affiliate if the L/C Issuing Bank Rating Test is satisfied with respect to such Affiliate, and the issuance of such Letter of Credit. If the L/C Issuing Bank Rating Test is not satisfied with respect to such Affiliate, and the issuance of such Letter of Credit, a Person selected by the Issuer (at the expense of the L/C Provider) shall issue such Letter of Credit; provided that such Person and issuance of such Letter of Credit satisfies the L/C Issuing Bank Rating Test (the L/C Provider (or such Affiliate of the L/C Provider) or such other Person selected by the Issuer (at the expense of the L/C Provider), in each case in its capacity as the issuer of such Letter of Credit being referred to as the “L/C Issuing Bank” with respect to such Letter of Credit). The “L/C Issuing Bank Rating Test” is a test that is satisfied with respect to a Person issuing a Letter of Credit if the Person is a U.S. commercial bank that has, at the time of the issuance of such Letter of Credit, (i) a short-term certificate of deposit rating of not less than “A-2” (or then equivalent grade) from S&P and (ii) a long-term unsecured debt rating of not less than “BBB” (or then equivalent grade) from S&P or such other minimum long-term unsecured debt rating as may be reasonably required by the beneficiary or beneficiaries of such proposed Letter of Credit.
Each of the parties hereto shall execute any amendments to this Agreement reasonably requested by the Issuer in order to have any letter of credit issued by a Person selected by the Issuer pursuant to this Section 2.07(h) or Section 5.17 of the Base Indenture be a “Letter of Credit” that has been issued hereunder and such Person selected by the Issuer be an “L/C Issuing Bank”.
If any Letter of Credit issued by an L/C Provider hereunder in favor of an insurance or other similar provider to any Wingstop Entity no longer satisfies such provider’s criteria for an eligible or otherwise conforming letter of credit for its particular purpose, the Issuer may select an alternative Person to issue a replacement for such Letter of Credit; provided that such Person and issuance of such replacement Letter of Credit satisfies the L/C Issuing Bank Rating Test, and such L/C Provider shall reasonably cooperate with the Issuer in connection with the termination and replacement of such Letter of Credit.
(i) The L/C Provider and, if the L/C Provider is not the L/C Issuing Bank for any Letter of Credit, the L/C Issuing Bank shall be under no obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Provider or the L/C Issuing Bank, as applicable, from issuing the Letter of Credit, or (ii) any law applicable to the L/C Provider or the L/C Issuing Bank, as applicable, or any request or directive (which request or directive, in the reasonable judgment of the L/C Provider or the L/C Issuing Bank, as applicable, has the force of law) from any Governmental Authority with jurisdiction over the L/C Provider or the L/C Issuing Bank, as applicable, shall prohibit the L/C Provider or the L/C Issuing Bank, as applicable, from issuing of letters of credit generally or the Letter of Credit in particular.
(j) Unless otherwise expressly agreed by the L/C Provider or the L/C Issuing Bank, as applicable, and the Issuer when a Letter of Credit is issued, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit issued hereunder.
(k) For the avoidance of doubt, the L/C Commitment shall be a sub-facility limit of the Commitment Amounts and aggregate outstanding L/C Obligations as of any date of determination shall be a component of the Series 2022-1 Class A-1 Outstanding Principal Amount on such date of determination, pursuant to the definition thereof.
(l) The Interest Reserve Letter of Credit (including all drawings thereunder) shall be subject to Section 5.17 of the Base Indenture in all respects.
SECTION 2.08 L/C Reimbursement Obligations.
(a) For the purpose of reimbursing the payment of any draft presented under any Letter of Credit, the Issuer agrees to immediately pay the L/C Provider, for its own account or for the account of the L/C Issuing Bank, as applicable, in same day funds on the day on which the L/C Provider notifies the Issuer and the Administrative Agent (and in each case the Administrative Agent shall promptly, on the same Business Day as its receipt of the same, notify the Funding Agents) of the date and the amount of such draft, an amount in Dollars equal to the sum of (i) the amount of such draft so paid (such amount at any time, as reduced by repayments with respect thereto as described below and amounts repaid with respect thereto pursuant to Section 4.03(b) at or prior to such time, the “L/C Reimbursement Amount”) and (ii) any taxes, fees, charges or other costs or expenses, including amounts payable pursuant to Section 3.02(c) (such amounts at any time, as reduced by repayments with respect thereto as described below and amounts repaid with respect thereto pursuant to Section 4.03(b) at or prior to such time, the “L/C Other Reimbursement Costs”) incurred by the L/C Issuing Bank in connection with such payment. Outstanding L/C Reimbursement Amounts and outstanding L/C Other Reimbursement Costs may be repaid in accordance with the Priority of Payments, with the proceeds of any Advance or otherwise. Unless the entire outstanding L/C Reimbursement Amount and all L/C Other Reimbursement Costs with respect thereto has been repaid as set forth above, each drawing under any Letter of Credit shall (unless an Event of Bankruptcy shall have occurred and be continuing with respect to the Issuer or any Guarantor, in which cases the procedures specified in Section 2.09 for funding by Note Purchasers shall apply) constitute a request by the Issuer to the Administrative Agent and each Funding Agent for a Base Rate Borrowing pursuant to Section 2.03 in the amount of the outstanding L/C Reimbursement Amount and outstanding L/C Other Reimbursement Costs at such time, and the Issuer shall be deemed to have made such request pursuant to the procedures set forth in Section 2.03. The applicable L/C Other Reimbursement Amounts minus, without duplication, any such amounts repaid pursuant to Section 4.03(b), shall be paid as Class A-1 Notes Other Amounts subject to and in accordance with the Priority of Payments. In the event such request for a Base Rate Borrowing is deemed to have been given, the applicable Investors in each Investor Group hereby agree to make Advances in an aggregate amount for each Investor Group equal to such Investor Group’s Commitment Percentage of the outstanding L/C Reimbursement Amount at such time and outstanding L/C Other Reimbursement Costs at such time to pay the L/C Provider. The Borrowing date with respect to such Borrowing shall be the date on which the Funding Agents receive notice from the L/C Provider of such drawing under such Letter of Credit. Such Investors shall make the amount of such Advances available to the Administrative Agent in immediately available funds not later than 3:00 p.m. (New York City time) on such Borrowing date and the proceeds of such Advances shall be immediately made available by the Administrative Agent to the L/C Provider for application to the reimbursement of such drawing.
(b) The Issuer’s obligations under Section 2.08(a) shall be absolute and unconditional, and shall be performed strictly in accordance with the terms of this Agreement, under any and all circumstances and irrespective of (i) any setoff, counterclaim or defense to payment that the Issuer may have or has had against the L/C Provider, the L/C Issuing Bank, any beneficiary of a Letter of Credit or any other Person, (ii) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (iii) payment by the L/C Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, (iv) payment by the L/C Issuing Bank under a Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under the Bankruptcy Code or any other liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of any jurisdictions or (v) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.08(b), constitute a legal or equitable discharge of, or provide a right of setoff against, the Issuer’s obligations hereunder. The Issuer also agrees that the L/C Provider and the L/C Issuing Bank shall not be responsible for, and the Issuer’s Reimbursement Obligations under Section 2.08(a) shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Issuer and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the Issuer against any beneficiary of such Letter of Credit or any such transferee. Neither the L/C Provider nor the L/C Issuing Bank shall be liable for any error, omission, interruption, loss or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Issuer to the extent permitted by applicable law) caused by errors or omissions found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of the L/C Provider or the L/C Issuing Bank, as the case may be. The Issuer agrees that any action taken or omitted by the L/C Provider or the L/C Issuing Bank, as the case may be, under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence, bad faith or willful misconduct and in accordance with the standards of care specified in the UCC of the State of New York, shall be binding on the Issuer and shall not result in any liability of the L/C Provider or the L/C Issuing Bank to the Issuer. As between the Issuer and the L/C Issuing Bank, the Issuer hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to such beneficiary’s or transferee’s use of any Letter of Credit. In furtherance of the foregoing and without limiting the generality thereof, the Issuer agrees with the L/C Issuing Bank that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, the L/C Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit. In connection with each Interest Reserve Letter of Credit, the Trustee as beneficiary shall be entitled to the benefit of every provision of the Base Indenture limiting the liability of or affording rights, benefits, protections, immunities or indemnities to the Trustee as if they were expressly set forth herein mutatis mutandis.
(c) If any draft shall be presented for payment under any Letter of Credit for which the L/C Provider has Actual Knowledge, the L/C Provider shall promptly notify the Manager, the Control Party, the Issuer and the Administrative Agent of the date and amount thereof. The responsibility of the applicable L/C Issuing Bank to the Issuer in connection with any draft presented for payment under any Letter of Credit shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit and, in paying such draft, such L/C Issuing Bank shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of any Person(s) executing or delivering any such document.
SECTION 2.09 L/C Participations.
(a) The L/C Provider (on its behalf and on behalf of each L/C Issuing Bank) irrevocably agrees to grant and hereby grants to each Note Purchaser, and, to induce the L/C Provider to provide (or cause each L/C Issuing Bank to provide) Letters of Credit hereunder, each Note Purchaser irrevocably and unconditionally agrees to accept and purchase and hereby accepts and purchases from the L/C Provider (on its behalf and on behalf of each L/C Issuing Bank), on the terms and conditions set forth below, for such Note Purchaser’s own account and risk an undivided interest equal to its Note Purchaser Percentage of the related Investor Group’s Commitment Percentage of the L/C Provider’s (or such Issuing Bank) obligations and rights under and in respect of each Letter of Credit provided hereunder and the L/C Reimbursement Amount with respect to each draft paid or reimbursed by the L/C Provider (or such Issuing Bank) in connection therewith. Subject to Section 2.07(c), each Note Purchaser unconditionally and irrevocably agrees with the L/C Provider (on its behalf and on behalf of each L/C Issuing Bank) that, if a draft is paid under any Letter of Credit for which the L/C Provider (on its behalf and on behalf of each
L/C Issuing Bank) is not paid in full by the Issuer in accordance with the terms of this Agreement, such Note Purchaser shall pay to the Administrative Agent upon demand of the L/C Provider an amount equal to its Note Purchaser Percentage of the related Investor Group’s Commitment Percentage of the L/C Reimbursement Amount with respect to such draft, or any part thereof, that is not so paid.
(b) If any amount required to be paid by any Note Purchaser to the Administrative Agent for forwarding to the L/C Provider pursuant to Section 2.09(a) in respect of any unreimbursed portion of any payment made or reimbursed by the L/C Provider under any Letter of Credit is paid to the Administrative Agent for forwarding to the L/C Provider after the date such payment is due, such Note Purchaser shall pay to the Administrative Agent for forwarding to the L/C Provider on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to the L/C Provider, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any Note Purchaser pursuant to Section 2.09(a) is not made available to the Administrative Agent for forwarding to the L/C Provider by such Note Purchaser within three (3) Business Days after the date such payment is due, the L/C Provider shall be entitled to recover from such Note Purchaser, on demand, such amount with interest thereon calculated from such due date at the Base Rate. A certificate of the L/C Provider submitted to any Note Purchaser with respect to any amounts owing under this Section 2.09(b), in the absence of manifest error, shall be conclusive and binding on such Note Purchaser. Such amounts payable under this Section 2.09(b) shall be paid without any deduction for any withholding taxes.
(c) Whenever, at any time after payment has been made under any Letter of Credit and the L/C Provider has received from any Note Purchaser its pro rata share of such payment in accordance with Section 2.09(a), the Administrative Agent or the L/C Provider receives any payment related to such Letter of Credit (whether directly from the Issuer or otherwise, including proceeds of collateral applied thereto), or any payment of interest on account thereof, the Administrative Agent or the L/C Provider, as the case may be, will distribute to such Note Purchaser its pro rata share thereof; provided, however, that in the event that any such payment received by the Administrative Agent or the L/C Provider, as the case may be, shall be required to be returned by the Administrative Agent or the L/C Provider, such Note Purchaser shall return to the Administrative Agent for the account of the L/C Provider the portion thereof previously distributed by the Administrative Agent or the L/C Provider, as the case may be, to it.
(d) Each Note Purchaser’s obligation to make the Advances referred to in Section 2.08(a) and to pay its pro rata share of any unreimbursed draft pursuant to Section 2.09(a) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Note Purchaser or the Issuer may have against the L/C Provider, any L/C Issuing Bank, the Issuer or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Article VII other than at the time the related Letter of Credit was issued; (iii) an adverse change in the condition (financial or otherwise) of the Issuer; (iv) any breach of this Agreement or any other Indenture Document by the Issuer or any other Person; (v) any amendment, renewal or extension of any Letter of Credit in compliance with this Agreement or with the terms of such Letter of Credit, as applicable; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
ARTICLE III
INTEREST AND FEES
SECTION 3.01 Interest.
(a) To the extent that an Advance is funded or maintained by a Conduit Investor through the issuance of Commercial Paper, such Advance shall bear interest at the CP Rate applicable to such Conduit Investor. To the extent that, and only for so long as, an Advance is funded or maintained by a Conduit Investor through means other than the issuance of Commercial Paper (based on its determination in good faith that it is unable to raise or is precluded or prohibited from raising, or that it is not advisable to raise, funds through the issuance of Commercial Paper in the commercial paper market of
the United States to finance its purchase or maintenance of such Advance or any portion thereof (which determination may be based on any allocation method employed in good faith by such Conduit Investor), including by reason of market conditions or by reason of insufficient availability under any of its Program Support Agreement or the downgrading of any of its Program Support Providers), such Advance shall bear interest at (i) the Base Rate or (ii) if the required notice has been given pursuant to Section 3.01(b) with respect to such Advance, the Term SOFR Rate, in each case except as otherwise provided in Section 3.03 or 3.04. Each Advance funded or maintained by a Note Purchaser or a Program Support Provider shall bear interest at (i) the Base Rate or (ii) if the required notice has been given pursuant to Section 3.01(b) with respect to such Advance, the Term SOFR Rate, in each case except as otherwise provided in Section 3.03 or 3.04. By (x) 11:00 a.m. (New York City time) on the second Business Day preceding each Quarterly Calculation Date, each Funding Agent shall notify the Administrative Agent of the applicable CP Rate for each Advance made by its Investor Group that was funded or maintained through the issuance of Commercial Paper and was outstanding during all or any portion of the Interest Accrual Period ending immediately prior to such Quarterly Calculation Date and (y) 3:00 p.m. (New York City time) on the second Business Day preceding each Quarterly Calculation Date, the Administrative Agent shall notify the Issuer, the Manager, the Trustee, the Servicer and the Funding Agents of such applicable CP Rate and of the applicable interest rate for each other Advance for such Interest Accrual Period and of the amount of interest accrued on Advances during such Interest Accrual Period.
(b) With respect to any Advance (other than one funded or maintained by a Conduit Investor through the issuance of Commercial Paper), so long as no Potential Rapid Amortization Event, Rapid Amortization Period or Event of Default has commenced and is continuing, the Issuer may elect that such Advance bear interest at the Term SOFR Rate to the extent provided in Section 3.01(a) by giving notice thereof to the Funding Agents prior to 12:00 p.m. (New York City time) on the date which is two (2) U.S. Government Securities Business Days prior to date of the applicable Borrowing. If such notice is not given in a timely manner, such Advance shall bear interest at the Base Rate.
(c) Any outstanding Unreimbursed L/C Drawings shall bear interest at the Base Rate. By (x) 11:00 a.m. (New York City time) on the second Business Day preceding each Quarterly Calculation Date, the L/C Provider shall notify the Administrative Agent in reasonable detail of the amount of interest accrued on any Unreimbursed L/C Drawings during such Interest Accrual Period and the amount of fees accrued on any Undrawn L/C Face Amounts during such Interest Accrual Period and (y) 3:00 p.m. on such date, the Administrative Agent shall notify the Servicer, the Trustee, the Issuer and the Manager of the amount of such accrued interest and fees as set forth in such notices.
(d) All accrued interest pursuant to Section 3.01(a) or (c) shall be due and payable in arrears on each Quarterly Payment Date in accordance with the applicable provisions of the Indenture.
(e) In addition, under the circumstances set forth in Section 3.4 of the Series 2022-1 Supplement, the Issuer shall pay quarterly interest in respect of the Series 2022-1 Class A-1 Outstanding Principal Amount in an amount equal to the Series 2022-1 Class A-1 Post-Renewal Date Additional Interest payable pursuant to such Section 3.4 subject to and in accordance with the Priority of Payments.
(f) All computations of interest at the CP Rate and the Term SOFR Rate, all computations of Series 2022-1 Class A-1 Post-Renewal Date Additional Interest (other than any accruing on any Base Rate Advances) and all computations of fees shall be made on the basis of a year of 360 days and the actual number of days elapsed. All computations of interest at the Base Rate and all computations of Series 2022-1 Class A-1 Post-Renewal Date Additional Interest accruing on any Base Rate Advances shall be made on the basis of a 365 (or 366, as applicable) day year and actual number of days elapsed. Whenever any payment of interest, principal or fees hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day unless specified otherwise in the Indenture and such extension of time shall be included in the computation of the amount of interest owed. Interest shall accrue on each Advance and Unreimbursed L/C Drawing from and including the day on which it is made to but excluding the date of repayment thereof.
(g) For purposes of the Series 2022-1 Class A-1 Notes, “Interest Accrual Period” means a period commencing on and including the day that is two (2) Business Days prior to a Quarterly
Calculation Date and ending on but excluding the day that is two (2) Business Days prior to the next succeeding Quarterly Calculation Date.
SECTION 3.02 Fees.
(a) The Issuer shall pay to the Administrative Agent for its own account the Administrative Agent Fees (as defined in the Series 2022-1 Class A-1 Notes Fee Letter, collectively, the “Administrative Agent Fees”) in accordance with the terms of the Series 2022-1 Class A-1 Notes Fee Letter and subject to and in accordance with the Priority of Payments.
(b) [Reserved].
(c) The Issuer shall pay (i) the fees required to Section 2.07 in respect of Letters of Credit and (ii) any other fees set forth in the Series 2022-1 Class A-1 Notes Fee Letter (including, without limitation, the Class A-1 Notes Upfront Fee and any Extension Fees (in each case as defined in the Series 2022-1 Class A-1 Notes Fee Letter)) subject to and in accordance with the Priority of Payments.
(d) All fees payable pursuant to this Section 3.02 shall be calculated in accordance with Section 3.01(f) and paid on the date due in accordance with the applicable provisions of the Indenture. Once paid, all fees shall be nonrefundable under all circumstances other than manifest error.
SECTION 3.03 SOFR Lending Unlawful. If any Investor or Program Support Provider shall determine that any Change in Law makes it unlawful, or any Official Body asserts that it is unlawful, for any such Person to fund or maintain any Advance as a SOFR Advance, the obligation of such Person to fund or maintain any such Advance as a SOFR Advance shall, upon such determination, forthwith be suspended until such Person shall notify the Administrative Agent, the related Funding Agent, the Manager and the Issuer that the circumstances causing such suspension no longer exist, and all then-outstanding SOFR Advances of such Person shall be automatically converted into Base Rate Advances at the end of the then-current Interest Accrual Period with respect thereto or sooner, if required by such law or assertion.
SECTION 3.04 Alternate Rate of Interest.
(a) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Transaction Document, upon the occurrence of a Benchmark Transition Event and a Benchmark Replacement Date with respect thereto have occurred prior to the Reference Time in connection with any setting of the then-current Benchmark, then such Benchmark Replacement will replace the then-current Benchmark for all purposes under this Agreement and under any other Transaction Document (other than a Transaction Document which relates solely to a Series of Notes other than the Series 2021-1 Notes) in respect of such Benchmark setting and subsequent Benchmark settings without requiring any amendment to, or requiring any further action by or consent of any other party to, this Agreement or any other Transaction Document.
(b) Benchmark Replacement Conforming Changes. In connection with the implementation or administration of Term SOFR or a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without requiring any further action by or consent of any other party to this Agreement or any other Transaction Document.
(c) Notices. The Administrative Agent will promptly notify the Issuer and the Investor Groups of (i) any occurrence of (A) a Benchmark Transition Event and (B) the Benchmark Replacement Date with respect thereto, (ii) the implementation of any Benchmark Replacement, and (iii) the effectiveness of any Benchmark Replacement Conforming Changes.
(d) Standards for Decisions and Determinations. Any determination, decision or election that may be made by the Administrative Agent pursuant to this Section 3.04, including any
determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in the Administrative Agent’s sole discretion and without consent from any other party to this Agreement or any other Transaction Document.
(e) For purposes of this Section 3:
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, the tenor for such Benchmark pursuant to this Agreement as of such date.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that, if a Benchmark Transition Event and the Benchmark Replacement Date with respect thereto have occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.04.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent on the applicable Benchmark Replacement Date:
(1) the sum of: (a) either of (i) Compounded SOFR or (ii) Daily Simple SOFR, as selected by the Administrative Agent and the Issuer, giving due consideration to the then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for the applicable loan market and (b) the applicable Benchmark Replacement Adjustment;
(2) the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment;
(3) the sum of: (a) the alternate rate of interest that has been selected by the Administrative Agent and the Issuer as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar denominated secured financings or securitizations relating to the relevant asset class, as applicable at such time and (b) the Benchmark Replacement Adjustment.
If at any time the Benchmark Replacement as determined pursuant to this definition would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Documents.
“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by the Administrative Agent as of the Benchmark Replacement Date:
(1) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected, endorsed or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement; or
(2) the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Issuer giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable
Unadjusted Benchmark Replacement for U.S. dollar denominated secured financing or securitization transactions relating to the relevant asset class, as applicable at such time.
“Benchmark Replacement Conforming Changes” means, with respect to either the use or administration of Term SOFR or any Benchmark Replacement, any technical, administrative or operational changes (including but not limited to changes to the definition of “Base Rate,” the definition of “Business Day,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark, or if the then-current Benchmark is Term SOFR, with respect to the Term SOFR Reference Rate:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide the applicable Available Tenor of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to the applicable Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(1)a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide the applicable Available Tenor of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Available Tenor of such Benchmark (or such component thereof);
(2)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation
thereof), the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide the applicable Available Tenor of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Available Tenor of such Benchmark (or such component thereof); or
(3)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that the applicable Available Tenor of such Benchmark (or such component thereof) is no longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each the applicable Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Compounded SOFR” means the compounded average of SOFRs for one (1) month, with the rate, or methodology for this rate, and conventions for this rate (which, for example, may be compounded in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Interest Period or compounded in advance) being established by the Administrative Agent in accordance with the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; provided that if, and to the extent that, the Administrative Agent determines that Compounded SOFR cannot be determined as described above, then the rate, or methodology for this rate, and conventions for this rate that have been selected by the Administrative Agent giving due consideration to any industry-accepted market practice for similar U.S. dollar denominated secured financing or securitization transactions relating to the relevant asset class, as applicable at such time.
“Corresponding Tenor” with respect to any Available Tenor means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans at such times; provided that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is Term SOFR, the time set forth in the definition of Term SOFR, and (2) if such Benchmark is not Term SOFR, the time determined by the Administrative Agent in accordance with the Benchmark Replacement Conforming Changes.
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of such benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s website.
“SOFR Interest Accrual Period” means, as to any Advance, the period commencing on the date of such Advance and ending on the numerically corresponding day in the calendar month that is one (1) or three (3) months thereafter (subject to the availability thereof), as specified by the Issuer; provided, that if not specified by the Issuer, such period shall be the period commencing on the date of such Advance and ending on the numerically corresponding day in the calendar month that is three (3) months thereafter (subject to the availability thereof); provided further, that (i) if any SOFR Interest Accrual Period would end on a day other than a Business Day, such SOFR Interest Accrual Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such SOFR Interest Accrual Period shall end on the next preceding Business Day, (ii) any SOFR Interest Accrual Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such SOFR Interest Accrual Period) shall end on the last Business Day of the last calendar month of such SOFR Interest Accrual Period, (iii) no SOFR Interest Accrual Period shall extend beyond the Series 2022-1 Legal Final Maturity Date. For purposes hereof, the date of an Advance initially shall be the date on which such Advance is made and thereafter shall be the effective date of the most recent conversion or continuation of such Advance.
“Term SOFR” means, with respect to any Advance for any day (a “SOFR Rate Day”), the Term SOFR Reference Rate for a tenor comparable to the applicable SOFR Interest Accrual Period on the day (such day, the “Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such rate is published by the Term SOFR Administrator for such Term SOFR Determination Day at 6:00 a.m. (New York City time); provided, however, that if as of 5:00 p.m. (New York City time) on any Term SOFR Determination Day the Term SOFR Reference Rate for three (3) months has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for three (3) months as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for three (3) month was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Term SOFR Determination Day; provided, that if Term SOFR as provided above shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Rate” means, for purposes of any calculation, the rate per annum equal to the sum of (a) Term SOFR and (b) 1.60%.
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
SECTION 3.05 Increased Costs, etc. The Issuer agrees to reimburse each Investor and any Program Support Provider (each, an “Affected Person”, which term, for purposes of Sections 3.07 and 3.08, shall also include the L/C Issuing Bank) for any increase in the cost of, or any reduction in the amount of any sum receivable by any such Affected Person, including reductions in the rate of return on such Affected Person’s capital, in respect of funding or maintaining (or of its obligation to fund or maintain) any Advances that arise in connection with any Change in Law which shall:
(i)impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Affected Person (except any such reserve requirement reflected in the Eurodollar Rate); or
(ii)impose on any Affected Person or the London interbank market any other condition affecting this Agreement or Eurodollar Advances made by such Affected Person or any Letter of Credit or participation therein;
except for such Changes in Law with respect to increased capital costs and Class A-1 Taxes which shall be governed by Sections 3.07 and 3.08, respectively (whether or not amounts are payable thereunder in respect thereof). For purposes of this Agreement, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all regulations, requests, guidelines or directives issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case, pursuant to Basel III, are deemed to have gone into effect and been adopted subsequent to the date hereof. Each such demand shall be provided to the related Funding Agent and the Issuer in writing and shall state, in reasonable detail, the reasons therefor and the additional amount required fully to compensate such Affected Person for such increased cost or reduced amount of return; provided that any such demand claiming reimbursement for increased costs resulting from a Change in Law described in clause (x) or (y) above shall, in addition, state the basis upon which such amount has been calculated and certify that such Affected Person’s method of allocating such costs is fair and reasonable and that such Affected Person’s demand for payment of such costs hereunder, and such method of allocation, is consistent with, or more favorable than, its treatment of other borrowers which, as a credit matter, are substantially similar to the Issuer and which are subject to similar provisions. Such additional amounts (“Increased Costs”) shall be deposited into the Collection Account by the Issuer within ten (10) Business Days of receipt of such notice to be payable as Series 2022-1 Class A-1 Notes Other Amounts, subject to and in accordance with the Priority of Payments, to the Administrative Agent and by the Administrative Agent to such Funding Agent and by such Funding Agent directly to such Affected Person, and such notice shall, in the absence of manifest error, be conclusive and binding on the Issuer; provided that with respect to any notice given to the Issuer under this Section 3.05 the Issuer shall
not be under any obligation to pay any amount with respect to any period prior to the date that is nine (9) months prior to such demand; provided further that if the Change in Law giving rise to such Increased Costs is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof.
SECTION 3.06 Funding Losses. In the event any Affected Person shall incur any loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Affected Person to fund or maintain any portion of the principal amount of any Advance as a Eurodollar Advance) as a result of:
(a) any conversion, repayment, prepayment or redemption (for any reason, including, without limitation, as a result of any Decrease or the acceleration of the maturity of such Eurodollar Advance) of the principal amount of any Eurodollar Advance on a date other than the scheduled last day of the Eurodollar Interest Accrual Period applicable thereto;
(b) any Advance not being funded or maintained as a Eurodollar Advance after a request therefor has been made in accordance with the terms contained herein (for a reason other than the failure of such Affected Person to make an Advance after all conditions thereto have been met); or
(c) any failure of the Issuer to make a Decrease, prepayment or redemption with respect to any Eurodollar Advance after giving notice thereof pursuant to the applicable provisions of the Series 2022-1 Supplement;
then, upon the written notice of any Affected Person to the related Funding Agent and the Issuer, the Issuer shall pay, within ten (10) Business Days of receipt of such notice, in the form of Series 2022-1 Class A-1 Notes Other Amounts, subject to and in accordance with the Priority of Payments, to the Administrative Agent and by the Administrative Agent to such Funding Agent and such Funding Agent shall pay directly to such Affected Person such amount (“Breakage Amount” or “Series 2022-1 Class A-1 Breakage Amount”) as will (in the reasonable determination of such Affected Person) reimburse such Affected Person for such loss or expense. With respect to any notice given to the Issuer under this Section 3.06, the Issuer shall not be under any obligation to pay any amount with respect to any period prior to the date that is nine (9) months prior to such notice. Such written notice (which shall include calculations in reasonable detail) shall, in the absence of manifest error, be conclusive and binding on the Issuer.
SECTION 3.07 Increased Capital or Liquidity Costs. If any Change in Law affects or would affect the amount of capital or liquidity required or reasonably expected to be maintained by any Affected Person or any Person controlling such Affected Person and such Affected Person determines in its sole and absolute discretion that the rate of return on its or such controlling Person’s capital as a consequence of its commitment hereunder or under a Program Support Agreement or the Advances or Letters of Credit made or issued by such Affected Person is reduced to a level below that which such Affected Person or such controlling Person would have achieved but for the occurrence of any such circumstance, then, in any such case after notice from time to time by such Affected Person (or in the case of an L/C Issuing Bank, by the L/C Provider) to the related Funding Agent and the Issuer (or, in the case of the L/C Provider, to the Issuer), the Issuer shall deposit into the Collection Account within ten (10) Business Days of the Issuer’s receipt of such notice, to be payable as Series 2022-1 Class A-1 Notes Other Amounts, subject to and in accordance with the Priority of Payments, to the Administrative Agent and by the Administrative Agent to such Funding Agent (or, in the case of the L/C Provider, directly to such Person) and such Funding Agent shall pay to such Affected Person, such amounts (“Increased Capital Costs”) as will be sufficient to compensate such Affected Person or such controlling Person for such reduction in rate of return; provided that with respect to any notice given to the Issuer under this Section 3.07 the Issuer shall not be under any obligation to pay any amount with respect to any period prior to the date that is nine (9) months prior to such notice; provided, further, if the Change in Law giving rise to such Increased Capital Costs is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof). A statement of such Affected Person as to any such additional amount or amounts
(including calculations thereof in reasonable detail), in the absence of manifest error, shall be conclusive and binding on the Issuer. In determining such additional amount, such Affected Person may use any method of averaging and attribution that it (in its reasonable discretion) shall deem applicable so long as it applies such method to other similar transactions. For purposes of this Agreement, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all regulations, requests, guidelines or directives issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case, pursuant to Basel III, are deemed to have gone into effect and been adopted subsequent to the date hereof.
SECTION 3.08 Taxes.
(a) Except as otherwise required by law, all payments by the Issuer of principal of, and interest on, the Advances and the L/C Obligations and all other amounts payable hereunder (including fees) shall be made free and clear of and without deduction or withholding for or on account of any present or future income, excise, documentary, property, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges in the nature of a tax imposed by any Governmental Authority including all interest, penalties or additions to tax and other liabilities with respect thereto (all such taxes, fees, duties, withholdings and other charges, and including all interest, penalties or additions to tax and other liabilities with respect thereto, being called “Class A-1 Taxes”), but excluding in the case of any Affected Person (i) net income, franchise (imposed in lieu of net income) or similar Class A-1 Taxes (and including branch profits or alternative minimum Class A-1 Taxes) and any other Class A-1 Taxes imposed or levied on the Affected Person as a result of a present or former connection between the Affected Person and the jurisdiction of the Governmental Authority imposing such Class A-1 Taxes (or any political subdivision or taxing authority thereof or therein) (other than any such connection arising solely from such Affected Person having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Transaction Document), (ii) with respect to any Affected Person organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in a jurisdiction other than the United States or any state of the United States (a “Foreign Affected Person”), any withholding tax that is imposed on amounts payable to the Foreign Affected Person at the time the Foreign Affected Person becomes a party to this Agreement (or designates a new lending office), except to the extent that such Foreign Affected Person (or its assignor, if any) was already entitled, at the time of the designation of the new lending office (or assignment), to receive additional amounts from the Issuer with respect to withholding tax, (iii) any taxes imposed under FATCA, (iv) any backup withholding tax, (v) any Class A-1 Taxes imposed as a result of such Affected Person’s failure to comply with Section 3.08(d) and (vi) Taxes resulting from the gross negligence or willful misconduct of the Administrative Agent or the Affected Person as determined by a court of competent jurisdiction by final and non-appealable judgment (such Class A-1 Taxes not excluded by (i), (ii), (iii), (iv), (v) and (vi) above being called “Non-Excluded Taxes”). If any Class A-1 Taxes are imposed and required by law to be withheld or deducted from any amount payable by the Issuer hereunder to an Affected Person, then, (x) the Issuer shall withhold the amount of such Class A-1 Taxes from such payment (as increased, if applicable, pursuant to the following clause (y)) and shall pay such amount, subject to and in accordance with the Priority of Payments, to the taxing authority imposing such Class A-1 Taxes in accordance with applicable law and (y) if such Class A-1 Taxes are Non-Excluded Taxes, the amount of the payment shall be increased so that such payment is made, after withholding or deduction for or on account of such Non-Excluded Taxes, in an amount that is not less than the amount equal to the sum that would have been received by the Affected Person had no such deduction or withholding been required.
(b) Moreover, if any Non-Excluded Taxes are directly asserted against any Affected Person or its agent with respect to any payment received by such Affected Person or its agent from the Issuer or otherwise in respect of any Transaction Document or the transactions contemplated therein, such Affected Person or its agent may pay such Non-Excluded Taxes and the Issuer will, within fifteen (15) Business Days of the related Funding Agent’s and Issuer’s receipt of written notice stating the amount of such Non-Excluded Taxes (including the calculation thereof in reasonable detail), deposit into the Collection Account, to be distributed as Series 2022-1 Class A-1 Notes Other Amounts, subject to and in accordance with the Priority of Payments, such additional amounts (collectively, “Increased Tax Costs,”
which term shall include all amounts payable by or on behalf of the Issuer pursuant to this Section 3.08) as is necessary in order that the net amount received by such Affected Person or agent after the payment of such Non-Excluded Taxes (including any Non-Excluded Taxes on such Increased Tax Costs) shall equal the amount such Person would have retained had no such Non-Excluded Taxes been asserted. Any amount payable to an Affected Person under this Section 3.08 shall be reduced by, and Increased Tax Costs shall not include, the amount of incremental damages (including Class A-1 Taxes) due or payable by the Issuer as a direct result of such Affected Person’s failure to demand from the Issuer additional amounts pursuant to this Section 3.08 within 180 days from the date on which the related Non-Excluded Taxes were incurred.
(c) As promptly as practicable after the payment of any Class A-1 Taxes by the Issuer, and in any event within thirty (30) days of any such payment being due, the Issuer shall furnish to each applicable Affected Person or its agents a certified copy of an official receipt (or other documentary evidence satisfactory to such Affected Person and agents) evidencing the payment of such Class A-1 Taxes. If the Issuer fails to pay any Class A-1 Taxes when due to the appropriate taxing authority or fail to remit to the Affected Persons or their agents the required receipts (or such other documentary evidence), the Issuer shall indemnify (by depositing such amounts into the Collection Account, to be distributed subject to and in accordance with the Priority of Payments) each Affected Person and its agents for any Non-Excluded Taxes that may become payable by any such Affected Person or its agents as a result of any such failure.
(d) Each Affected Person on or prior to the date it becomes a party to this Agreement (and from time to time thereafter as soon as practicable after the obsolescence, expiration or invalidity of any form or document previously delivered) or within a reasonable period of time following a written request by the Administrative Agent or the Issuer, shall timely deliver to the Issuer and the Administrative Agent a United States Internal Revenue Service Form W-8BEN, Form W-8BEN-E, Form W-8ECI, Form W-8IMY or Form W-9, as applicable, or applicable successor form, or such other forms or documents (or successor forms or documents), appropriately completed and executed, as may be applicable and as will permit the Issuer or the Administrative Agent, in their reasonable determination, to establish the extent to which a payment to such Affected Person is exempt from or eligible for a reduced rate of withholding or deduction of United States federal withholding taxes and to determine whether or not such Affected Person is subject to backup withholding or information reporting requirements. Promptly following the receipt of a written request by the Issuer or the Administrative Agent, each Affected Person shall deliver to the Issuer and the Administrative Agent any other forms or documents (or successor forms or documents) appropriately completed and executed, as may be applicable to establish the extent to which a payment to such Affected Person is exempt from withholding or deduction of Non-Excluded Taxes other than United States federal withholding taxes, including but not limited to, such information necessary to claim the benefits of the exemption for portfolio interest under Section 881(c) of the Code. The Issuer shall not be required to pay any increased amount under Section 3.08(a) or Section 3.08(b) to an Affected Person in respect of the withholding or deduction of United States federal withholding taxes or other Non-Excluded Taxes imposed as the result of the failure or inability (other than as a result of a Change in Law) of such Affected Person to comply with the requirements set forth in this Section 3.08(d). The Issuer may rely on any form or document provided pursuant to this Section 3.08(d) until notified otherwise by the Affected Person that delivered such form or document. Notwithstanding anything to the contrary, no Affected Person shall be required to deliver any documentation that it is not legally eligible to deliver as a result of a change in applicable law after the time the Affected Person becomes a party to this Agreement (or designates a new lending office).
(e) If a payment made to an Affected Person pursuant to this Agreement would be subject to United States federal withholding tax imposed by FATCA if such Affected Person were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Affected Person shall deliver to the Issuer and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Issuer or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Issuer or the Administrative Agent as may be necessary for the Issuer and the Administrative Agent to comply with their obligations under FATCA and to determine that such Affected Person has complied with such Affected Person’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment. Solely for purposes of this clause (e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(f) Prior to the Closing Date, the Administrative Agent will provide the Issuer with a properly executed and completed U.S. Internal Revenue Service Form W-8IMY or W-9, as appropriate. At any time thereafter, the Administrative Agent shall provide updated documentation previously provided (or a successor form thereto) when any documentation previously delivered has expired or become obsolete or invalid or otherwise upon the reasonable request of the Issuer.
(g) If an Affected Person determines, in its sole reasonable discretion, that it has received a refund of any Non-Excluded Taxes as to which it has been indemnified pursuant to this Section 3.08 or as to which it has been paid additional amounts pursuant to this Section 3.08, it shall promptly notify the Issuer and the Manager in writing of such refund and shall, within thirty (30) days after receipt of a written request from the Issuer, pay over such refund to the Issuer (but only to the extent of indemnity payments made or additional amounts paid to such Affected Person under this Section 3.08 with respect to the Non-Excluded Taxes giving rise to such refund), net of all out-of-pocket expenses (including the net amount of Class A-1 Taxes, if any, imposed on or with respect to such refund or payment) of the Affected Person and without interest (other than any interest paid by the relevant taxing authority that is directly attributable to such refund of such Non-Excluded Taxes); provided that the Issuer, immediately upon the request of the Affected Person (which request shall include a calculation in reasonable detail of the amount to be repaid), agrees to repay the amount of the refund (and any applicable interest) (plus any penalties, interest or other charges imposed by the relevant taxing authority with respect to such amount) to the Affected Person in the event the Affected Person or any other Person is required to repay such refund to such taxing authority. This Section 3.08 shall not be construed to require the Affected Person to make available its tax returns (or any other information relating to its Class A-1 Taxes that it deems confidential) to the Issuer or any other Person.
(h) If any Governmental Authority asserts that the Issuer or the Administrative Agent or other withholding agent did not properly withhold or backup withhold, as the case may be, any Class A-1 Taxes from payments made to or for the account of any Affected Person, then to the extent such improper withholding or backup withholding was directly caused by such Affected Person’s actions or inactions, such Affected Person shall indemnify the Issuer, Trustee and the Administrative Agent for any Class A-1 Taxes imposed by any jurisdiction on the amounts payable to the Issuer and the Administrative Agent under this Section 3.08, and costs and expenses (including attorney costs) of the Issuer, Trustee and the Administrative Agent. The obligation of the Affected Persons, severally, under this Section 3.08 shall survive any assignment of rights by, or the replacement of, an Affected Person or the termination of the aggregate Commitments, repayment of all other Obligations hereunder and the resignation of the Administrative Agent.
(i) The Administrative Agent, Trustee or any other withholding agent may deduct and withhold any Class A-1 Taxes required by any laws to be deducted and withheld from any payments.
SECTION 3.09 Change of Lending Office. Each Note Purchaser agrees that, upon the occurrence of any event giving rise to the operation of Section 3.05 or 3.07 or the payment of additional amounts to it under Section 3.08(a) or (b), in each case with respect to an Affected Person in such Note Purchaser’s Investor Group, it will, if requested by the Issuer, use reasonable efforts (subject to overall policy considerations of such Note Purchaser) to designate, or cause the designation of, another lending office for any Advances affected by such event with the object of avoiding the consequences of such event; provided that such designation is made on terms that, in the sole judgment of such Note Purchaser, cause such Note Purchaser and its lending office(s) or the related Affected Person to suffer no economic, legal or regulatory disadvantage; and provided, further, that nothing in this Section 3.09 shall affect or postpone any of the obligations of the Issuer or the rights of any Note Purchaser pursuant to Section 3.05, 3.07 and 3.08. If a Note Purchaser notifies the Issuer in writing that such Note Purchaser will be unable to designate, or cause the designation of, another lending office, the Issuer may replace every member (but not any subset thereof) of such Note Purchaser’s entire Investor Group by giving written notice to each member of such Investor Group and the Administrative Agent designating one or more Persons that are willing and able to purchase each member of such Investor Group’s rights and obligations under this Agreement for a purchase
price that with respect to each such member of such Investor Group will equal the amount owed to each such member of such Investor Group with respect to the Series 2022-1 Class A-1 Advance Notes (whether arising under the Indenture, this Agreement, the Series 2022-1 Class A-1 Advance Notes or otherwise). Upon receipt of such written notice, each member of such Investor Group shall assign its rights and obligations under this Agreement pursuant to and in accordance with Sections 9.17(a), (b) and (c), as applicable, in consideration for such purchase price and at the reasonable expense of the Issuer (including, without limitation, the reasonable documented fees and out-of-pocket expenses of counsel to each such member); provided, however, that no member of such Investor Group shall be obligated to assign any of its rights and obligations under this Agreement if the purchase price to be paid to such member is not at least equal to the amount owed to such member with respect to the Series 2022-1 Class A-1 Advance Notes (whether arising under the Indenture, this Agreement, the Series 2022-1 Class A-1 Advance Notes or otherwise).
ARTICLE IV
OTHER PAYMENT TERMS
SECTION 4.01 Time and Method of Payment. Except as otherwise provided in Section 4.02, all amounts payable to any Funding Agent or Investor hereunder or with respect to the Series 2022-1 Class A-1 Advance Notes shall be made to the Administrative Agent for the benefit of the applicable Person, by wire transfer of immediately available funds in Dollars not later than 1:00 p.m. (New York City time) on the date due. The Administrative Agent will promptly, and in any event by 5:00 p.m. (New York City time) on the same Business Day as its receipt or deemed receipt of the same, distribute to the applicable Funding Agent for the benefit of the applicable Person, or upon the order of the applicable Funding Agent for the benefit of the applicable Person, its pro rata share (or other applicable share as provided herein) of such payment by wire transfer in like funds as received. Except as otherwise provided in Section 2.07 and Section 4.02, all amounts payable to the L/C Provider hereunder or with respect to the L/C Obligations shall be made to or upon the order of the L/C Provider, respectively, by wire transfer of immediately available funds in Dollars not later than 1:00 p.m. (New York City time) on the date due. Any funds received after that time will be deemed to have been received on the next Business Day. The Issuer’s obligations hereunder in respect of any amounts payable to any Investor shall be discharged to the extent funds are disbursed by the Issuer to the Administrative Agent as provided herein or by the Trustee or Paying Agent in accordance with Section 4.02 whether or not such funds are properly applied by the Administrative Agent or by the Trustee or Paying Agent. The Administrative Agent’s obligations hereunder in respect of any amounts payable to any Investor shall be discharged to the extent funds are disbursed by the Administrative Agent to the applicable Funding Agent as provided herein whether or not such funds are properly applied by such Funding Agent.
SECTION 4.02 Order of Distributions. Subject to Section 9.18(c)(ii), any amounts deposited into the Series 2022-1 Class A-1 Distribution Account in respect of accrued interest or letter of credit fees, but excluding amounts allocated for the purpose of reducing the Series 2022-1 Class A-1 Outstanding Principal Amount, shall be distributed by the Trustee or the Paying Agent, as applicable, on the date due and payable under the Indenture and in the manner provided therein, to the Series 2022-1 Class A-1 Noteholders of record on the applicable Record Date, ratably in proportion to the respective amounts due to such payees at each applicable level of the Priority of Payments in accordance with the applicable Quarterly Noteholders’ Report or Weekly Manager’s Certificate, as applicable.
Subject to Section 9.18(c)(ii), any amounts deposited into the Series 2022-1 Class A-1 Distribution Account for the purpose of reducing the Series 2022-1 Class A-1 Outstanding Principal Amount shall be distributed by the Trustee or the Paying Agent, as applicable, on the date due and payable under the Indenture and in the manner provided therein, to the Series 2022-1 Class A-1 Noteholders of record on the applicable Record Date, in the following order of priority (which the Issuer shall cause to be set forth in the applicable Quarterly Noteholders’ Report or Weekly Manager’s Certificate, as applicable): first, to the L/C Provider in respect of outstanding Unreimbursed L/C Drawings, to the extent Unreimbursed L/C Drawings cannot be reimbursed pursuant to Section 2.08, ratably in proportion to the respective amounts due to such payees; second, to the other Series 2022-1 Class A-1 Noteholders in respect of their outstanding Advances, ratably in proportion thereto; and, third,
any balance remaining of such amounts (up to an aggregate amount not to exceed the amount of Undrawn L/C Face Amounts at such time) shall be paid to the L/C Provider, to be deposited by the L/C Provider into a cash collateral account in the name of the L/C Provider in accordance with Section 4.03(b).
Any amounts distributed to the Administrative Agent pursuant to the Priority of Payments in respect of any other amounts related to the Class A-1 Notes shall be distributed by the Administrative Agent in accordance with Section 4.01 on the date such amounts are due and payable hereunder to the applicable Series 2022-1 Class A-1 Noteholders and/or the Administrative Agent for its own account, as applicable, ratably in proportion to the respective aggregate of such amounts due to such payees.
SECTION 4.03 L/C Cash Collateral. (a) If as of thirty (30) Business Days prior to the Commitment Termination Date, any Undrawn L/C Face Amounts remain in effect, the Issuer shall either (i) provide cash collateral (in an aggregate amount equal to the amount of Undrawn L/C Face Amounts at such time, to the extent that such amount of cash collateral has not been provided pursuant to Section 4.02 or 9.18(c)(ii)) to the L/C Provider, to be deposited by the L/C Provider into a cash collateral account in the name of the L/C Provider in accordance with Section 4.03(b) or (ii) other than with respect to Interest Reserve Letters of Credit, make arrangements satisfactory to the L/C Provider in its sole and absolute discretion with the L/C Provider (and, if the L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) pursuant to Section 4.04 such that any Letters of Credit that remain outstanding as of the date that is ten (10) Business Days prior to the Commitment Termination Date shall cease to be deemed outstanding or to be deemed “Letters of Credit” for purposes of this Agreement as of the Commitment Termination Date.
(b) All amounts to be deposited in a cash collateral account pursuant to Section 4.02, Section 4.03(a) or Section 9.18(c)(ii) shall be held by the L/C Provider as collateral to secure the Issuer’s Reimbursement Obligations with respect to any outstanding Letters of Credit. The L/C Provider shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposit in Eligible Investments, which investments shall be made at the written direction, and at the risk and expense, of the Issuer (provided that if an Event of Default has occurred and is continuing, such investments shall be made solely at the option and sole discretion of the L/C Provider), such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account and all Class A-1 Taxes on such amounts shall be payable by the Issuer. Moneys in such account shall automatically be applied by such L/C Provider to reimburse it for any Unreimbursed L/C Drawings. Upon expiration of all then-outstanding Letters of Credit and payment in full of all Unreimbursed L/C Drawings, any balance remaining in such account shall promptly be paid over (i) if the Base Indenture and any Series Supplement remain in effect, to the Trustee to be deposited into the Collection Account and distributed in accordance with the terms of the Base Indenture and (ii) otherwise to the Issuer; provided that, upon an Investor ceasing to be a Defaulting Investor in accordance with Section 9.18(d), any amounts of cash collateral provided pursuant to Section 9.18(c)(ii) upon such Investor becoming a Defaulting Investor shall be released and applied as such amounts would have been applied had such Investor not become a Defaulting Investor.
SECTION 4.04 Alternative Arrangements with Respect to Letters of Credit. Notwithstanding any other provision of this Agreement or any Transaction Document, a Letter of Credit (other than an Interest Reserve Letter of Credit) shall cease to be deemed outstanding for all purposes of this Agreement and each other Transaction Document if and to the extent that provisions, in form and substance satisfactory to the L/C Provider (and, if the L/C Provider is not the L/C Issuing Bank with respect to such Letter of Credit, the L/C Issuing Bank) in its sole and absolute discretion, have been made with respect to such Letter of Credit such that the L/C Provider (and, if applicable, the L/C Issuing Bank) has agreed in writing, with a copy of such agreement delivered to the Administrative Agent, the Control Party, the Trustee and the Issuer, that such Letter of Credit shall be deemed to be no longer outstanding hereunder, in which event such Letter of Credit shall cease to be a “Letter of Credit” as such term is used herein and in the Transaction Documents.
SECTION 4.05 Erroneous Payments. (a) Each Investor hereby agrees that (x) if the Administrative Agent notifies such Investor that the Administrative Agent has determined in its sole discretion that any funds received by such Investor from the Administrative Agent or any of its Affiliates
(whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Investor (whether or not known to such Investor), and demands the return of such Payment (or a portion thereof), such Investor shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Investor to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Investor shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Investor under this Section 4.05(a) shall be conclusive, absent manifest error.
(b) Each Investor hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Investor agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Investor shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Investor to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Issuer and each Guarantor hereby agree that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Investor that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Investor with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Issuer or any Guarantor, provided that this Section 4.05(c) shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Issuer and each Guarantor relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such erroneous Payment not been made by the Administrative Agent.
(d) Each party’s obligations under this Section 4.05 shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, an Investor, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Transaction Document.
ARTICLE V
THE ADMINISTRATIVE AGENT AND THE FUNDING AGENTS
SECTION 5.01 Authorization and Action of the Administrative Agent. Each of the Lender Parties and the Funding Agents hereby designates and appoints Morgan Stanley Asset Funding Inc. as Administrative Agent hereunder, and hereby authorizes the Administrative Agent to take such actions as agent on their behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of this Agreement together with such powers as are reasonably incidental thereto. The Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender Party or any
Funding Agent, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of the Administrative Agent shall be read into this Agreement or otherwise exist for the Administrative Agent. In performing its functions and duties hereunder, the Administrative Agent shall act solely as agent for the Lender Parties and the Funding Agents and does not assume nor shall it be deemed to have assumed any obligation or relationship of trust or agency with or for the Issuer or any of its successors or assigns. The provisions of this Article (other than the rights of the Issuer set forth in Section 5.07) are solely for the benefit of the Administrative Agent, the Lender Parties and the Funding Agents, and the Issuer shall not have any rights as a third party beneficiary of any such provisions. The Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, exposes the Administrative Agent to personal liability or that is contrary to this Agreement or any Requirement of Law. The appointment and authority of the Administrative Agent hereunder shall terminate upon the indefeasible payment in full of the Series 2022-1 Class A-1 Notes and all other amounts owed by the Issuer hereunder to the Administrative Agent, all members of the Investor Groups and the L/C Provider (the “Aggregate Unpaids”) and termination in full of all Commitments and the L/C Commitment.
SECTION 5.02 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The exculpatory provisions of this Article shall apply to any such agents or attorneys-in-fact and shall apply to each of their respective activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it in good faith.
SECTION 5.03 Exculpatory Provisions. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be (a) liable for any action lawfully taken or omitted to be taken by it or them under or in connection with this Agreement (except for its, their or such Person’s own gross negligence, bad faith or willful misconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment), or (b) responsible in any manner to any Lender Party or any Funding Agent for any recitals, statements, representations or warranties made by the Issuer or any Guarantor contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received under or in connection with, this Agreement for the due execution, legality, value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document furnished in connection herewith, or for any failure of the Issuer or any Guarantor to perform its obligations hereunder, or for the satisfaction of any condition specified in Article VII. The Administrative Agent shall not be under any obligation to any Investor or any Funding Agent to ascertain or to inquire as to the observance or performance of any of the agreements or covenants contained in, or conditions of, this Agreement, or to inspect the properties, books or records of the Issuer. The Administrative Agent shall not be deemed to have knowledge of any Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default unless the Administrative Agent has received notice in writing of such event from the Issuer, any Lender Party or any Funding Agent.
SECTION 5.04 Reliance. The Administrative Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of any Lender Party or any Funding Agent as it deems appropriate or it shall first be indemnified to its satisfaction by any Lender Party or any Funding Agent; provided that unless and until the Administrative Agent shall have received such advice, the Administrative Agent may take or refrain from taking any action, as the Administrative Agent shall deem advisable and in the best interests of the Lender Parties and the Funding Agents. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, in
accordance with a request of the Required Investor Groups and such request and any action taken or failure to act pursuant thereto shall be binding upon the Lender Parties and the Funding Agents.
SECTION 5.05 Non-Reliance on the Administrative Agent and Other Purchasers. Each of the Lender Parties and the Funding Agents expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent hereafter taken, including, without limitation, any review of the affairs of the Issuer, shall be deemed to constitute any representation or warranty by the Administrative Agent. Each of the Lender Parties and the Funding Agents represents and warrants to the Administrative Agent that it has and will, independently and without reliance upon the Administrative Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, prospects, financial and other conditions and creditworthiness of the Issuer and made its own decision to enter into this Agreement.
SECTION 5.06 The Administrative Agent in its Individual Capacity. The Administrative Agent and any of its Affiliates may make loans to, accept deposits from, and generally engage in any kind of business with the Issuer or any Affiliate of the Issuer as though the Administrative Agent were not the Administrative Agent hereunder.
SECTION 5.07 Successor Administrative Agent; Defaulting Administrative Agent.
(a) The Administrative Agent may, upon thirty (30) days’ notice to the Issuer and each of the Lender Parties and the Funding Agents, and the Administrative Agent will, upon the direction of Investor Groups holding 100% of the Commitments (excluding any Commitments held by Defaulting Investors), resign as Administrative Agent. If the Administrative Agent shall resign, then the Investor Groups holding more than (i) if no single Investor Group holds more than 50% of the Commitments, 50% of the Commitments or (ii) if a single Investor Group holds more than 50% of the Commitments, two thirds of the Commitments (excluding any Commitments held by the resigning Administrative Agent or its Affiliates, and if all Commitments are held by the resigning Administrative Agent or its Affiliates, then the Issuer), during such 30-day period, shall appoint an Affiliate of a member of the Investor Groups as a successor administrative agent, subject to the consent of (i) the Issuer at all times other than while an Event of Default has occurred and is continuing (which consent of the Issuer shall not be unreasonably withheld or delayed) and (ii) the Control Party (which consent of the Control Party shall not be unreasonably withheld or delayed); provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met under this Section 5.07(a). If for any reason no successor Administrative Agent is appointed by the Investor Groups during such 30-day period, then effective upon the expiration of such 30-day period, the Issuer shall make (or cause to be made) all payments in respect of the Aggregate Unpaids or under any fee letter delivered in connection herewith (including, without limitation, the Series 2022-1 Class A-1 Notes Fee Letter) directly to the Funding Agents or the L/C Provider, as applicable, and the Issuer for all purposes shall deal directly with the Funding Agents or the L/C Provider, as applicable, until such time, if any, as a successor administrative agent is appointed as provided above, and the Issuer shall instruct the Trustee in writing accordingly. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of Section 9.05 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement.
(b) The Issuer may, upon the occurrence of any of the following events (any such event, a “Defaulting Administrative Agent Event”) and with the consent of Investor Groups holding more than (i) if no single Investor Group holds more than 50% of the Commitments, 50% of the Commitments or (ii) if a single Investor Group holds more than 50% of the Commitments, two thirds of the Commitments, remove the Administrative Agent and, upon such removal, the Investor Groups holding more than 50% of the Commitments in the case of clause (i) above or two thirds of the Commitments in the case of clause (ii) above (provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met under this Section 5.07(b)) shall appoint an Affiliate of a member of the Investor Groups as a successor administrative agent, subject to the consent of (x) the Issuer at all times other than while an Event of
Default has occurred and is continuing (which consent of the Issuer shall not be unreasonably withheld or delayed) and (y) the Control Party (which consent of the Control Party shall not be unreasonably withheld or delayed): (i) an Event of Bankruptcy with respect to the Administrative Agent; (ii) if the Person acting as Administrative Agent or an Affiliate thereof is also an Investor, any other event pursuant to which such Person becomes a Defaulting Investor; (iii) the failure by the Administrative Agent to pay or remit any funds required to be remitted when due (in each case, if amounts are available for payment or remittance in accordance with the terms of this Agreement for application to the payment or remittance thereof) which continues for two (2) Business Days after such funds were required to be paid or remitted; (iv) any representation, warranty, certification or statement made by the Administrative Agent under this Agreement or in any agreement, certificate, report or other document furnished by the Administrative Agent proves to have been false or misleading in any material respect as of the time made or deemed made, and if such representation, warranty, certification or statement is susceptible of remedy in all material respects, is not remedied within thirty (30) calendar days after knowledge thereof or notice by the Issuer to the Administrative Agent, and if not susceptible of remedy in all material respects, upon notice by the Issuer to the Administrative Agent or (v) any act constituting the gross negligence, bad faith or willful misconduct of the Administrative Agent. If for any reason no successor Administrative Agent is appointed by the Investor Groups within thirty (30) days of the Administrative Agent’s removal pursuant to this clause (b), then effective upon the expiration of such 30-day period, the Issuer shall make all payments in respect of the Aggregate Unpaids or under any fee letter delivered in connection herewith (including, without limitation, the Series 2022-1 Class A-1 Notes Fee Letter) directly to the Funding Agents or the L/C Provider, as applicable, and the Issuer for all purposes shall deal directly with the Funding Agents or the L/C Provider, as applicable, until such time, if any, as a successor administrative agent is appointed as provided above, and the Issuer shall instruct the Trustee in writing accordingly. After the Administrative Agent’s removal hereunder as Administrative Agent, the provisions of Section 9.05 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement.
(c) If a Defaulting Administrative Agent Event has occurred and is continuing, the Issuer may make (or cause to be made) all payments in respect of the Aggregate Unpaids or under any fee letter delivered in connection herewith (including, without limitation, the Series 2022-1 Class A-1 Notes Fee Letter) directly to the Funding Agents or the L/C Provider, as applicable, and the Issuer for all purposes may deal directly with the Funding Agents or the L/C Provider, as applicable,.
SECTION 5.08 Authorization and Action of Funding Agents. Each Investor is hereby deemed to have designated and appointed its related Funding Agent set forth next to such Investor’s name on Schedule I (or identified as such Investor’s Funding Agent pursuant to any applicable Assignment and Assumption Agreement or Investor Group Supplement) as the agent of such Person hereunder, and hereby authorizes such Funding Agent to take such actions as agent on its behalf and to exercise such powers as are delegated to such Funding Agent by the terms of this Agreement together with such powers as are reasonably incidental thereto. Each Funding Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with the related Investor Group, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of such Funding Agent shall be read into this Agreement or otherwise exist for such Funding Agent. In performing its functions and duties hereunder, each Funding Agent shall act solely as agent for the related Investor Group and does not assume nor shall it be deemed to have assumed any obligation or relationship of trust or agency with or for the Issuer, any of its successors or assigns or any other Person. Each Funding Agent shall not be required to take any action that exposes such Funding Agent to personal liability or that is contrary to this Agreement or any Requirement of Law. The appointment and authority of the Funding Agents hereunder shall terminate upon the indefeasible payment in full of the Aggregate Unpaids of the Investor Groups and the termination in full of all the Commitments.
SECTION 5.09 Delegation of Duties. Each Funding Agent may execute any of its duties under this Agreement by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Each Funding Agent shall not be responsible for the actions or any gross negligence, bad faith or willful misconduct of any agents or attorneys-in-fact selected by it in good faith.
SECTION 5.10 Exculpatory Provisions. Each Funding Agent and its Affiliates, and each of their directors, officers, agents or employees shall not be (a) liable for any action lawfully taken or omitted to be taken by it or them under or in connection with this Agreement (except for its, their or such Person’s own gross negligence, bad faith or willful misconduct), or (b) responsible in any manner to the related Investor Group for any recitals, statements, representations or warranties made by the Issuer contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received under or in connection with, this Agreement, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document furnished in connection herewith, or for any failure of the Issuer to perform its obligations hereunder, or for the satisfaction of any condition specified in Article VII. Each Funding Agent shall not be under any obligation to the related Investor Group to ascertain or to inquire as to the observance or performance of any of the agreements or covenants contained in, or conditions of, this Agreement, or to inspect the properties, books or records of the Issuer. Each Funding Agent shall not be deemed to have knowledge of any Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default unless such Funding Agent has received notice of such event from the Issuer or any member of the related Investor Group.
SECTION 5.11 Reliance. Each Funding Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of the Administrative Agent and legal counsel (including, without limitation, counsel to the Issuer), independent accountants and other experts selected by such Funding Agent. Each Funding Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of the related Investor Group as it deems appropriate or it shall first be indemnified to its satisfaction by the related Investor Group; provided that unless and until such Funding Agent shall have received such advice, such Funding Agent may take or refrain from taking any action, as such Funding Agent shall deem advisable and in the best interests of the related Investor Group. Each Funding Agent shall in all cases be fully protected in acting, or in refraining from acting, in accordance with a request of the related Investor Group and such request and any action taken or failure to act pursuant thereto shall be binding upon the related Investor Group.
SECTION 5.12 Non-Reliance on the Funding Agent and Other Purchasers. The related Investor Group expressly acknowledges that its Funding Agent and any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has not made any representations or warranties to it and that no act by such Funding Agent hereafter taken, including, without limitation, any review of the affairs of the Issuer, shall be deemed to constitute any representation or warranty by such Funding Agent. The related Investor Group represents and warrants to such Funding Agent that it has and will, independently and without reliance upon such Funding Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, prospects, financial and other conditions and creditworthiness of the Issuer and made its own decision to enter into this Agreement.
SECTION 5.13 The Funding Agent in its Individual Capacity. Each Funding Agent and any of its Affiliates may make loans to, accept deposits from, and generally engage in any kind of business with the Issuer or any Affiliate of the Issuer as though such Funding Agent were not a Funding Agent hereunder.
SECTION 5.14 Successor Funding Agent. Each Funding Agent will, upon the direction of the related Investor Group, resign as such Funding Agent. If such Funding Agent shall resign, then the related Investor Group shall appoint an Affiliate of a member of the related Investor Group as a successor funding agent (it being understood that such resignation shall not be effective until such successor is appointed). After any retiring Funding Agent’s resignation hereunder as Funding Agent, subject to the limitations set forth herein, the provisions of Section 9.05 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Funding Agent under this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 The Issuer and Guarantors. The Issuer and the Guarantors jointly and severally represent and warrant to the Administrative Agent and each Lender Party, as of the date of this Agreement and as of the date of each Advance made hereunder, that:
(a) each of their representations and warranties made in favor of the Trustee or the Noteholders in the Indenture and the other Transaction Documents (other than a Transaction Document relating solely to a Series of Notes other than the Series 2022-1 Notes) is true and correct (a) if not qualified as to materiality or Material Adverse Effect, in all material respects and (b) if qualified as to materiality or Material Adverse Effect, in all respects (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(b) no (i) Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default has occurred and is continuing and (ii) Cash Trapping Period is in effect;
(c) assuming the representations and warranties of each Lender Party set forth in Section 6.03 of this Agreement are true and correct, neither they nor or any of their Affiliates, have, directly or through an agent, engaged in any form of general solicitation or general advertising in connection with the offering of the Series 2022-1 Class A-1 Notes under the Securities Act or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act including, but not limited to, articles, notices or other communications published in any newspaper, magazine, or similar medium or broadcast over television or radio or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising; provided that no representation or warranty is made with respect to the Lender Parties and their Affiliates; and none of the Issuer nor any of its Affiliates has entered into any contractual arrangement with respect to the distribution of the Series 2022-1 Class A-1 Notes, except for this Agreement and the other Transaction Documents, and the Issuer will not enter into any such arrangement;
(d) neither they nor any of their Affiliates have, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the Series 2022-1 Class A-1 Notes in a manner that would require the registration of the Series 2022-1 Class A-1 Notes under the Securities Act;
(e) assuming the representations and warranties of each Lender Party set forth in Section 6.03 of this Agreement are true and correct, the offer and sale of the Series 2022-1 Class A-1 Notes in the manner contemplated by this Agreement is a transaction exempt from the registration requirements of the Securities Act, and the Base Indenture is not required to be qualified under the United States Trust Indenture Act of 1939, as amended;
(f) no Securitization Entity is required, or will be required as a result of the making of Advances and the issuance of Letters of Credit hereunder and the use of proceeds therefrom, to register as an “investment company” under the 1940 Act; in connection with the foregoing, the Issuer is relying on an exclusion from the definition of “investment company” under Section 3(a)(1) of the Investment Company Act, although additional exemptions or exclusions may be available to the Issuer; the Issuer does not constitute a “covered fund” for purposes of Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, otherwise known as the “Volcker Rule.”
(g) the Issuer has furnished to the Administrative Agent and each Funding Agent true, accurate and complete copies of all other Transaction Documents (excluding Series Supplements and other Transaction Documents relating solely to a Series of Notes other than the Series 2022-1 Notes) to which they are a party as of the Series 2022-1 Upsize Closing Date, all of which Transaction Documents are in full force and effect as of the Series 2022-1 Upsize Closing Date and no terms of any such agreements or documents have been amended, modified or otherwise waived as of such date, other than such amendments, modifications or waivers about which the Issuer has informed each Funding Agent and the L/C Provider;
(h) to the knowledge of the Issuer and the Guarantors, the operations of the Issuer and the Guarantors and their respective subsidiaries are and have been conducted at all times in the past five years in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any of the Issuer, the Guarantors or their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer or the Guarantors, threatened;
(i) (A) none of the Issuer or the Guarantors or any of their respective subsidiaries nor, to the knowledge of any of the Issuer or the Guarantors, any director, manager, member, officer, employee, agent or Affiliate of the Issuer or the Guarantors or any of their respective subsidiaries is currently subject to U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or sanctions administered by the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is such relevant individual or entity located, organized or resident in a country or territory that is the target of or subject to comprehensive U.S. sanctions administered by OFAC (as of the date hereof, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any covered region of Ukraine identified pursuant to Executive Order 14065); (B) the Issuer and the Guarantors will not directly or indirectly use the proceeds of the Advances, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of making payments or funding activity in violation of Sanctions; (C) the Issuer and Guarantors (or the Manager on their behalf) maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, compliance with the Sanctions; and (D) the proceeds of the Advances will not be used by the Issuer or the Guarantors or any of their respective subsidiaries for new business in Russia or Belarus for so long as the applicable Sanctions targeting Russia and/or Belarus are in effect;
(j) none of the Issuer or the Guarantors or any of their respective subsidiaries nor, to the knowledge of the Issuer or the Guarantors, any Affiliate, director, officer, manager, member, agent, employee or other person acting on behalf of the Issuer, the Guarantors or any of their respective subsidiaries, has: (i) made any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any domestic governmental official or “foreign official” (as defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”)); (iii) violated or is in violation of any provision of the FCPA, the Bribery Act of 2010 of the United Kingdom or any applicable anti-bribery statute or regulation of any other jurisdiction in which it operates its business, including, in each case, the rules and regulations thereunder; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment and the Issuer and Guarantors (or the Manager on their behalf) have conducted their respective businesses in material compliance with the FCPA and have instituted and maintain (or a parent entity has instituted and maintains) policies and procedures reasonably designed to ensure, and which are reasonably expected to continue to ensure, compliance therewith;
(k) the representations and warranties contained in Section 4.6 of the Guarantee and Collateral Agreement and Section 7.13 of the Indenture are true and correct in all material respects; and
(l) the Series 2022-1 Class A-1 Advance Notes and each Advance hereunder is an “eligible asset” as defined in Rule 3a-7 under the Investment Company Act.
SECTION 6.02 The Manager. The Manager represents and warrants to the Administrative Agent and each Lender Party that no Manager Termination Event has occurred and is continuing as a result of any representation and warranty made by it in any Transaction Document (other than a Transaction Document relating solely to a Series of Notes other than the Series 2022-1 Notes) to which it is a party (including any representations and warranties made by it as Manager) being inaccurate.
SECTION 6.03 Lender Parties. Each of the Lender Parties represents and warrants to the Issuer and the Manager as of the date hereof (or, in the case of a successor or assign of an Investor, as of the subsequent date on which such successor or assign shall become or be deemed to become a party hereto) that:
(a) it has had an opportunity to discuss the Issuer’s and the Manager’s business, management and financial affairs, and the terms and conditions of the proposed purchase of the Series 2022-1 Class A-1 Notes, with the Issuer and the Manager and their respective representatives;
(b) it is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of investing in, and is able and prepared to bear the economic risk of investing in, the Series 2022-1 Class A-1 Notes;
(c) it is purchasing the Series 2022-1 Class A-1 Notes for its own account, or for the account of one or more “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that meet the criteria described in clause (b) above and for which it is acting with complete investment discretion, for investment purposes only and not with a view to a distribution in violation of the Securities Act, subject, nevertheless, to the understanding that the disposition of its property shall at all times be and remain within its control, and neither it nor its Affiliates has engaged in any general solicitation or general advertising within the meaning of the Securities Act, or the rules and regulations promulgated thereunder, with respect to the Series 2022-1 Class A-1 Notes;
(d) it understands that (i) the Series 2022-1 Class A-1 Notes have not been and will not be registered or qualified under the Securities Act or any applicable state securities laws or the securities laws of any other jurisdiction and are being offered only in a transaction not involving any public offering within the meaning of the Securities Act and may not be resold or otherwise transferred unless so registered or qualified or unless an exemption from registration or qualification is available and an opinion of counsel shall have been delivered in advance to the Issuer, (ii) the Issuer is not required to register the Series 2022-1 Class A-1 Notes under the Securities Act or any applicable state securities laws or the securities laws of any other jurisdiction, (iii) any permitted transferee hereunder must meet the criteria in clause (b) above and (iv) any transfer must comply with the provisions of Section 2.8 of the Base Indenture, Section 4.3 of the Series 2022-1 Supplement and Section 9.03 or 9.17, as applicable, of this Agreement;
(e) it will comply with the requirements of Section 6.03(d), above, in connection with any transfer by it of the Series 2022-1 Class A-1 Notes;
(f) it understands that the Series 2022-1 Class A-1 Notes will bear the legend set out in the form of Series 2022-1 Class A-1 Notes attached to the Series 2022-1 Supplement and be subject to the restrictions on transfer described in such legend;
(g) it will obtain for the benefit of the Issuer from any purchaser of the Series 2022-1 Class A-1 Notes substantially the same representations and warranties contained in the foregoing paragraphs; and
(h) it has executed a Purchaser’s Letter substantially in the form of Exhibit D hereto.
ARTICLE VII
CONDITIONS
SECTION 7.01 Conditions to Issuance and Effectiveness. Each Lender Party will have no obligation to purchase the Additional Series 2022-1 Class A-1 Notes hereunder on the Series 2022-1 Upsize Closing Date, unless:
(a) the Base Indenture, the Series 2022-1 Supplement, the Guarantee and Collateral Agreement and the other Transaction Documents shall be in full force and effect;
(b) on the Series 2022-1 Upsize Closing Date, the Administrative Agent shall have received a letter (including, without limitation, a Rating Agency Confirmation), in form and substance reasonably satisfactory to it, from KBRA stating that the Additional Series 2022-1 Class A-1 Notes have received a rating of not less than BBB;
(c) the EU/UK Risk Retention Letter shall have been duly executed and delivered by the parties thereto in form and substance satisfactory to the Administrative Agent; and
(d) at the time of such issuance, the additional conditions set forth in Schedule III and all other conditions to the issuance of the Additional Series 2022-1 Class A-1 Notes under the Indenture shall have been satisfied or waived.
SECTION 7.02 Conditions to Initial Extensions of Credit. The election of each Conduit Investor to fund, and the obligation of each Note Purchaser to fund, the initial Borrowing hereunder and the obligations of the L/C Provider to provide the initial Letter of Credit hereunder, respectively, shall be subject to the satisfaction of the conditions precedent that (a) each Funding Agent shall have received a duly executed and authenticated Series 2022-1 Class A-1 Advance Note registered in its name or in such other name as shall have been directed by such Funding Agent and stating that the principal amount thereof shall not exceed the Maximum Investor Group Principal Amount of the related Investor Group (or, in the case of a Series 2022-1 Class A-1 Advance Note that is an Uncertificated Note, a Confirmation of Registration with respect thereto), (b) the L/C Provider shall have received a duly executed and authenticated Series 2022-1 Class A-1 L/C Note registered in its name or in such other name as shall have been directed by it and stating that the principal amount thereof shall not exceed the L/C Commitment (or, if the initial Series 2022-1 Class A-1 L/C Note is an Uncertificated Note, a Confirmation of Registration with respect thereto), and, and (c) the Issuer shall have paid all fees required to be paid by it under the Transaction Documents on the Series 2022-1 Upsize Closing Date, including all fees required hereunder.
SECTION 7.03 Conditions to Each Extension of Credit and Temporary Commitment Availability Period. The election of each Conduit Investor to fund and the obligation of each Note Purchaser to fund, any Borrowing on any day (including the initial Borrowing but excluding any Borrowings to repay L/C Obligations pursuant to Section 2.05 or 2.08, as applicable) and the obligations of the L/C Provider to provide any Letter of Credit (including the initial one), respectively) and the election of the Investors to enter into a Temporary Commitment Availability Period and any renewals thereof shall be subject to the conditions precedent that on the date of such funding or provision or Temporary Commitment Availability Period or renewal thereof, before and after giving effect thereto and to the application of any proceeds therefrom, the following statements shall be true (without regard to any waiver, amendment or other modification of this Section 7.03 or any definitions used herein consented to by the Control Party unless Investors holding more than (i) if no single Investor Group holds more than 50% of the Commitments, 50% of the Commitments or (ii) if a single Investor Group holds more than 50% of the Commitments, two thirds of the Commitments (provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met under this Section 7.03) have consented to such waiver, amendment or other modification for purposes of this Section 7.03; provided, however, that if a Rapid Amortization Event has occurred and been declared by the Control Party pursuant to Section 9.1(a), (b), (c) or (e) of the Base Indenture, or has occurred pursuant to Section 9.1(d) of the Base Indenture, then consent to such waiver, amendment or other modification from all Investors (provided that it shall not be the obligation of the Control Party to obtain such consent from the Investors) as well as the Control Party shall be required for purposes of this Section 7.03 (provided that if a Rapid Amortization Event under clause Section 9.1(d) of the Base Indenture has ceased to be in effect in accordance with the proviso thereto, then no consent of any Person shall be required for such Rapid Amortization Event to cease to be in effect for purposes of this Agreement); and provided further that if the second proviso to Section 9.01 is applicable to such waiver, amendment or other modification, then consent to such waiver, amendment or other
modification from the Persons required by such proviso shall also be required for purposes of this Section 7.03):
(a) (i) the representations and warranties of the Issuer set out in this Agreement and (ii) the representations and warranties of the Manager set out in this Agreement, in each such case, shall be true and correct (A) if qualified as to materiality or Material Adverse Effect, in all respects and (B) if not qualified as to materiality or Material Adverse Effect, in all material respects, as of the date of such funding or issuance, with the same effect as though made on that date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct (x) if qualified as to materiality or Material Adverse Effect, in all respects, and (y) if not so qualified, in all material respects, as of such earlier date);
(b) no Default, Event of Default, Potential Rapid Amortization Event, Cash Trapping Period or Rapid Amortization Event will be in existence at the time of, or after giving effect to, such funding or issuance;
(c) the DSCR as calculated as of the immediately preceding Quarterly Calculation Date shall not be less than 1.80x; provided that for the purpose of confirming the satisfaction of the DSCR required by this Section 7.03(c), the Issuer may elect in its sole discretion to calculate the DSCR measured with respect to the most recently ended Weekly Collection Period for which the Weekly Managers Certificate has been delivered and the immediately preceding 51 Weekly Collection Periods from such date; provided further that the Manager shall report the results of the DSCR metrics and the supporting materials related to those calculations to the Administrative Agent in connection with such Weekly Managers Certificate and provide a certificate of the Chief Financial Officer or other financial officer of the Manager as to such report and calculations;
(d) in the case of any Borrowing, except to the extent an advance request is expressly deemed to have been delivered hereunder, the Issuer shall have delivered or have been deemed to have delivered to the Administrative Agent an executed advance request in the form of Exhibit A hereto with respect to such Borrowing (each such request, an “Advance Request” or a “Series 2022-1 Class A-1 Advance Request”);
(e) the Senior Leverage Ratio, pro-rated to include such Borrowing, shall not exceed 6.25x; provided that for the purpose of confirming the satisfaction of the Senior Leverage Ratio required by this Section 7.03(e), the Issuer may elect in its sole discretion to calculate the Senior Leverage Ratio measured with respect to the most recently ended Weekly Collection Period for which the Weekly Managers Certificate has been delivered and the immediately preceding 51 Weekly Collection Periods from such date; provided further that the Manager shall report the results of the Senior Leverage Ratio metrics and the supporting materials related to those calculations to the Administrative Agent in connection with such Weekly Managers Certificate and provide a certificate of the Chief Financial Officer or other financial officer of the Manager as to such report and calculations;
(f) each representation and warranty made by the Manager (in its capacity as the Manager) in the Management Agreement is true and correct (a) if not qualified as to materiality or Material Adverse Effect, in all material respects and (b) if qualified as to materiality or Material Adverse Effect, in all respects as of the date originally made, as of the date hereof and as of the Closing Date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct (x) if qualified as to materiality or Material Adverse Effect, in all respects, and (y) if not so qualified, in all material respects, as of such earlier date);
(g) the Senior Notes Interest Reserve Amount (including any Senior Notes Interest Reserve Account Deficit Amount) will be funded and/or an Interest Reserve Letter of Credit will be maintained for such amount as of the date of such draw in the amounts required pursuant to the Indenture after giving effect to such draw; provided that a portion of the proceeds of such draw may be used to fund and/or maintain such Senior Notes Interest Reserve Amount;
(h) all Administrative Agent Fees, L/C Quarterly Fees and Draw Fees due and payable on or prior to the date of such funding or issuance shall have been paid in full, and, with respect
to each Temporary Commitment Availability Period, Temporary Commitment Availability Period Fees due and payable shall have been paid in full in accordance with the Administrative Agent Fee Letter; and
(i) all conditions to such extension of credit or provision specified in Section 2.02, 2.03, 2.06 or 2.07 of this Agreement, as applicable, shall have been satisfied.
The giving of any notice pursuant to Section 2.03, 2.06 or 2.07, as applicable, shall constitute a representation and warranty by the Issuer and the Manager that all conditions precedent to such funding or provision have been satisfied or will be satisfied concurrently therewith.
ARTICLE VIII
COVENANTS
SECTION 8.01 Covenants. Each of the Issuer and the Manager, severally, covenants and agrees that, until all Aggregate Unpaids have been paid in full and all Commitments and the L/C Commitment have been terminated, it will:
(a) unless waived in writing by the Control Party in accordance with Section 9.7 of the Base Indenture, duly and timely perform all of its covenants (both affirmative and negative) and obligations under each Transaction Document to which it is a party;
(b) not amend, modify, waive or give any approval, consent or permission under any provision of the Base Indenture or any other Transaction Document to which it is a party unless any such amendment, modification, waiver or other action is in writing and made in accordance with the terms of the Base Indenture or such other Transaction Document, as applicable;
(c) reasonably concurrently with the time any report, notice or other document is provided to the Rating Agency and/or the Trustee, or caused to be provided, by the Issuer or the Manager under the Base Indenture (including, without limitation, under Sections 8.8, 8.9 and/or 8.11 thereof) or under the Series 2022-1 Supplement, provide the Administrative Agent (and the Administrative Agent shall promptly provide a copy thereof to the Lender Parties) with a copy of such report, notice or other document; provided, however, that neither the Manager nor the Issuer shall have any obligation under this Section 8.01(c) to deliver to the Administrative Agent copies of any Quarterly Noteholders' Reports that relate solely to a Series of Notes other than the Series 2022-1 Class A-1 Notes;
(d) once per calendar year, following reasonable prior written notice from the Administrative Agent (the “Annual Inspection Notice”), and during regular business hours and without unreasonable interference with the business and operation of the Manager, permit any one or more of the Administrative Agent, any Funding Agent or the L/C Provider, or any of their respective agents, representatives or permitted assigns, at the Issuer’s expense, access (as a group, and not individually unless only one such Person desires such access) to the offices of the Manager, the Issuer and the Guarantors, (i) to examine and make copies of and abstracts from all documentation relating to the Collateral on the same terms as are provided to the Trustee under Section 8.6 of the Base Indenture, and (ii) to visit the offices and properties of the Manager, the Issuer and the Guarantors for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to the Collateral, or the administration and performance of the Base Indenture, the Series 2022-1 Supplement and the other Transaction Documents with one or more officers or managers of the Manager, the Issuer and/or the Guarantors, as applicable, having knowledge of such matters; provided, however, that upon the occurrence and continuation of a Potential Rapid Amortization Event, Rapid Amortization Event, Cash Trapping Period, Default or Event of Default, the Administrative Agent, any Funding Agent or the L/C Provider, or any of their respective agents, representatives or permitted assigns, at the Issuer’s expense may do any of the foregoing at any time during normal business hours and without advance notice; and provided, further, that the Funding Agents and the L/C Provider will be permitted to provide input to the Administrative Agent with respect to the timing of delivery, and content, of the Annual Inspection Notice;
(e) not take, or cause to be taken, any action, including, without limitation, acquiring any margin stock (as such term is defined under the regulations of the Board of Governors of the Federal
Reserve System, “Margin Stock”), that could cause the transactions contemplated by the Transaction Documents to fail to comply with the regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X thereof;
(f) not permit any amounts owed with respect to the Series 2022-1 Class A-1 Notes to be secured, directly or indirectly, by any Margin Stock in a manner that would violate the regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X thereof;
(g) promptly provide such additional financial and other information with respect to the Transaction Documents (other than Series Supplements and Transaction Documents relating solely to a Series of Notes other than the Series 2022-1 Notes), the Issuer, the Manager or the Guarantors as the Administrative Agent may from time to time reasonably request; provided, however, that neither the Issuer nor the Manager shall be required to produce reports or other information that they do not currently produce and which, in the reasonable judgment of the Manager, would be unreasonably expensive or burdensome to prepare or produce or for which the disclosure thereof would violate any applicable law, statute, rule, regulation, confidentiality provision or court order;
(h) deliver to the Administrative Agent (and the Administrative Agent shall promptly provide a copy thereof to the Lender Parties), the financial statements prepared pursuant to Section 4.1 of the Base Indenture reasonably contemporaneously with the delivery of such statements under the Base Indenture;
(i) in addition to the conditions set forth in Section 2.2(b) of the Base Indenture, for so long as the Series 2022-1 Class A-1 Notes are Outstanding, obtain the consent of the Administrative Agent to the issuance of any additional Series of Class A-1 Notes (which consent shall be deemed to have been given unless an objection is delivered to the Issuer within ten (10) Business Days after written notice of such proposed issuance is delivered to the Administrative Agent); provided that if the Series 2022-1 Class A-1 Outstanding Principal Amount is zero then, unless an Event of Default has occurred and is continuing, then the consent of the Administrative Agent shall not be required; provided further that the Administrative Agent may choose to terminate this Agreement if any additional Series of Class A-1 Notes to which it did not consent are issued, in its sole discretion; and
(j) use the proceeds of the Series 2022-1 Class A-1 Notes for general corporate purposes of the Securitization Entities and the Non-Securitization Entities, including, without limitation, the making of distributions or dividends on, or the repurchase of, the Equity Interests issued by Parent or any of its direct or indirect subsidiaries (including for funding of acquisitions by any Securitization Entities or Non-Securitization Entity), in each case, to the extent permitted under, and in accordance with the terms of, the Base Indenture and the other Transaction Documents, including Sections 5.16 and 8.18 of the Base Indenture.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01 Amendments. No amendment to or waiver or other modification of any provision of this Agreement, nor consent to any departure therefrom by the Manager or the Issuer, shall in any event be effective unless the same shall be in writing and signed by the Issuer with the written consent of (A) the Administrative Agent and (B) other than in respect of amendments pursuant to Section 3.04, Investor Groups holding more than (i) if no single Investor Group holds more than 50% of the Commitments, 50% of the Commitments or (ii) if a single Investor Group holds more than 50% of the Commitments, two thirds of the Commitments (“Required Investor Groups”); provided that the Commitment of any Defaulting Investor shall be disregarded in the determination of whether such threshold percentage of Commitments has been met; provided, however, that, in addition, (i) the prior written consent of each affected Investor shall be required in connection with any amendment, modification or waiver that (x) increases the amount of the Commitment of such Investor, extends the Commitment Termination Date or the Series 2022-1 Class A-1 Notes Renewal Date for such Investor, modifies the conditions to funding the Commitment or otherwise subjects such Investor to any increased or additional duties or obligations hereunder or in connection herewith (it being understood and agreed that waivers or modifications of conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender Party), (y) reduces the amount or delays the timing of payment of any principal, interest, fees or other amounts payable to such Investor hereunder or (z) would have an effect comparable to any of those set forth in Section 13.2(a) of the Base Indenture that require the consent of each Noteholder or each affected Noteholder; (ii) any amendment, modification or waiver that affects the rights or duties of any of the L/C Provider, the Administrative Agent or the Funding Agents shall require the prior written consent of such affected Person; and (iii) the prior written consent of each Investor, the L/C Provider, the Administrative Agent and each Funding Agent shall be required in connection with any amendment, modification or waiver of this Section 9.01. For purposes of any provision of any other Indenture Document relating to any Consent Right, amendment to the Transaction Documents or consent to the issuance of additional Series of Class A-1 Notes (each, a “VFN Consent”) by the Series 2022-1 Class A-1 Noteholders, such VFN Consent shall be given by the Holders of the Series 2022-1 Class A-1 Advance Notes only and not by the Holders of any Series 2022-1 Class A-1 L/C Notes except to the extent that such VFN Consent is to be given by each affected Noteholder and the Holders of any Series 2022-1 Class A-1 L/C Notes would be affected thereby; provided that if all of the Series 2022-1 Class A-1 Outstanding Principal Amount and the TCAP Amount is zero then, unless an Event of Default has occurred and is continuing, then such VFN Consent shall be deemed given so long as (x) notice of the request for such VFN Consent is given to the Administrative Agent in the same manner as if such VFN Consent would be required, (y) the outcome of such request does not materially and adversely affect the interests of the Holders of the Series 2022-1 Class A-1 Advance Notes or the Administrative Agent and (z) if the Holders of the Series 2022-1 Class A-1 Advance Notes or the Administrative Agent would not have consented to such VFN Consent then they may terminate this Agreement in accordance with Section 9.04. In addition, the provisions of Section 6.01(k) may not be amended or waived without confirmation from S&P that the rating of the commercial paper notes of each Conduit Investor then rated by it will not be reduced or withdrawn as a result thereof. Each Series 2022-1 Class A-1 Noteholder hereby authorizes the Administrative Agent to consent to any amendment pursuant to Section 3.04 or pursuant to the last paragraph of Section 13.1(a) of the Base Indenture.
Each Note Purchaser will notify the Issuer in writing whether or not it will consent to a proposed amendment, waiver or other modification of this Agreement and, if applicable, any condition to such consent, waiver or other modification. If a Note Purchaser notifies the Issuer in writing that such Note Purchaser either (I) will not consent to an amendment to or waiver or other modification of any provision of this Agreement or (II) conditions its consent to such an amendment, waiver or other modification of any provision of this Agreement upon the payment of an amendment fee, the Issuer may replace every member (but not any subset thereof) of such Note Purchaser’s entire Investor Group by giving written notice to each member of such Investor Group and the Administrative Agent designating one or more Persons that are willing and able to purchase each member of such Investor Group’s rights and obligations under this Agreement for a purchase price that with respect to each such member of such Investor Group will equal the amount owed to each such member of such Investor Group with respect to the Series 2022-1 Class A-1 Advance Notes (whether arising under the Indenture, this Agreement, the Series 2022-1 Class A-1 Advance Notes or otherwise). Upon receipt of such written notice, each member of such Investor Group shall assign its rights and obligations under this Agreement pursuant to and in accordance with Sections 9.17(a), (b) and (c), as applicable, in consideration for such purchase price and at the reasonable expense of the Issuer (including, without limitation, the reasonable documented fees and out-of-pocket expenses of counsel to each such member); provided, however, that no member of such Investor Group shall be obligated to assign any of its rights and obligations under this Agreement if the purchase price to be paid to such member is not at least equal to the amount owed to such member with respect to the Series 2022-1 Class A-1 Advance Notes (whether arising under the Indenture, this Agreement, the Series 2022-1 Class A-1 Advance Notes or otherwise).
The Issuer and the Lender Parties shall negotiate any amendments, waivers, consents, supplements or other modifications to this Agreement or the other Transaction Documents that require the consent of the Lender Parties in good faith and any consent required to be given by the Lender Parties shall not be unreasonably denied, conditioned or delayed. Pursuant to Section 9.05(a), the Lender Parties shall be entitled to reimbursement by the Issuer for the reasonable expenses incurred by the Lender Parties in reviewing and approving any such amendment, waiver, consent, supplement or other
modification to this Agreement or any Transaction Document. The Administrative Agent agrees to provide notice to each Investor Group of any amendment to this Agreement, regardless of whether the consent of such Investor is required for such amendment to become effective.
SECTION 9.02 No Waiver; Remedies. Any waiver, consent or approval given by any party hereto shall be effective only in the specific instance and for the specific purpose for which given, and no waiver by a party of any breach or default under this Agreement shall be deemed a waiver of any other breach or default. No failure on the part of any party hereto to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder, or any abandonment or discontinuation of steps to enforce the right, power or privilege, preclude any other or further exercise thereof or the exercise of any other right. No notice to or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in the same, similar or other circumstances. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.03 Binding on Successors and Assigns.
(a) This Agreement shall be binding upon, and inure to the benefit of, the Issuer, the Manager, the Lender Parties, the Funding Agents, the Administrative Agent and their respective successors and assigns; provided, however, that none of the Issuer nor the Manager may assign its rights or obligations hereunder or in connection herewith or any interest herein (voluntarily, by operation of law or otherwise) without the prior written consent of each Lender Party (other than any Defaulting Investor); provided further that nothing herein shall prevent the Issuer from assigning its rights (but none of its duties or liabilities) to the Trustee under the Base Indenture and the Series 2022-1 Supplement; and provided, further that none of the Lender Parties may transfer, pledge, assign, sell participations in or otherwise encumber its rights or obligations hereunder or in connection herewith or any interest herein except as permitted under Section 6.03, Section 9.17 and this Section 9.03. Nothing expressed herein is intended or shall be construed to give any Person other than the Persons referred to in the preceding sentence any legal or equitable right, remedy or claim under or in respect of this Agreement except as provided in Section 9.16.
(b) Notwithstanding any other provision set forth in this Agreement, any Investor may at any time sell participations to any Person (including, for the avoidance of doubt, any Program Support Provider) in all or a portion of such Investor’s rights and/or obligations under this Agreement, the Series 2022-1 Class A-1 Notes and the Advances made thereunder and, in connection therewith, any other Transaction Document to which it is a party, and such participant, with respect to its participating interest, shall be entitled to the benefits granted to such Investor under this Agreement; provided that (i) such Investor’s obligations under this Agreement shall remain unchanged, (ii) such Investor shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Issuer, the Administrative Agent, the L/C Provider and each other Investor shall continue to deal solely and directly with such Investor in connection with such Investor’s rights and obligations under this Agreement; provided, however, unless an Event of Default has occurred and is continuing, no participation pursuant to this Section 9.03 shall be made to a VFN Competitor.
Each Investor that grants to one or more Persons including, without limitation, a Program Support Provider, a participating interest in such Investor’s interests in the Advances shall, acting solely for this purpose as a non-fiduciary agent of the Issuer, maintain a register on which it enters the name and address of such Person and the principal amounts (and stated interest) of each Person’s interest in the Advances (each, a “Participant Register”); provided that no Investor shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Person, or any information relating to a Person’s interest in the Advances) to any Person except to the extent that such disclosure is necessary to establish that such interest is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations (and any such finalized United States Treasury Regulations). The entries in the Participant Register shall be conclusive absent manifest error, and such Investor shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(c) In addition to its rights under Section 9.17, each Conduit Investor may at any time assign its rights in the Series 2022-1 Class A-1 Advance Notes (and its rights hereunder and under the Transaction Documents) to its related Note Purchaser or, subject to Section 6.03 and Section 9.17(b) and (c), its related Program Support Provider or any Affiliate of any of the foregoing, in each case in accordance with the applicable provisions of the Indenture. Furthermore, each Conduit Investor may at any time grant a security interest in and lien on, all or any portion of its interests under this Agreement, its Series 2022-1 Class A-1 Advance Note and all Transaction Documents to (i) its related Note Purchaser, (ii) its Funding Agent, (iii) any Program Support Provider who, at any time now or in the future, provides program liquidity or credit enhancement, including, without limitation, an insurance policy for such Conduit Investor relating to the Commercial Paper or the Series 2022-1 Class A-1 Advance Notes, (iv) any other Person who, at any time now or in the future, provides liquidity or credit enhancement for the Conduit Investors, including, without limitation, an insurance policy relating to the Commercial Paper or the Series 2022-1 Class A-1 Advance Notes, (v) any collateral trustee or collateral agent for any of the foregoing or (vi) a trustee or collateral agent for the benefit of the holders of the commercial paper notes or other senior indebtedness of such Conduit Investor appointed pursuant to such Conduit Investor’s program documents; provided, however, that any such security interest or lien shall be released upon assignment of its Series 2022-1 Class A-1 Advance Note to its related Note Purchaser. Each Note Purchaser may assign its Commitment, or all or any portion of its interest under its Series 2022-1 Class A-1 Advance Note, this Agreement and the Transaction Documents to any Person to the extent permitted by Section 9.17. Notwithstanding any other provisions set forth in this Agreement, each Note Purchaser may at any time create a security interest in all or any portion of its rights under this Agreement, its Series 2022-1 Class A-1 Advance Note and the Transaction Documents in favor of any Federal Reserve Bank in accordance with Regulation A of the F.R.S. Board or any similar foreign entity.
SECTION 9.04 Termination; Survival of Agreement. This Agreement shall terminate upon the payment in full of all interest on and principal of the Series 2022-1 Class A-1 Notes, and all other amounts owed to the Lender Parties, the Funding Agents and the Administrative Agent hereunder and under the Series 2022-1 Supplement, the expiration of all Letters of Credit hereunder (or the cash collateralization or rollover thereof in accordance with the terms of this Agreement) and the termination or permanent reduction to zero of the Commitments and the L/C Commitment. In addition, prior to the making of any Advances or Subfacility Increases and the start of any TCAP Period, to the extent that any VFN Consent has been obtained or Amendment has been made to the Transaction Documents to which the Administrative Agent did not consent, the Administrative Agent may, in its sole discretion, elect to terminate this agreement upon written notice to the Issuer in its sole discretion. All covenants, agreements, representations and warranties made herein and in the Series 2022-1 Class A-1 Notes delivered pursuant hereto shall survive the making and the repayment of the Advances and the Letters of Credit and the execution and delivery of this Agreement and the Series 2022-1 Class A-1 Notes and shall continue in full force and effect until this Agreement so terminates. In addition, the obligations of the Issuer and the Lender Parties under Sections 3.05, 3.06, 3.07, 3.08, 9.05, 9.10 and 9.11 shall survive the termination of this Agreement. The Administrative Agent, on the reasonable request of the Issuer, shall execute proper instruments acknowledging confirmation of and termination of this Agreement in form and substance reasonably satisfactory to the Administrative Agent.
SECTION 9.05 Payment of Costs and Expenses; Indemnification.
(a) Payment of Costs and Expenses. The Issuer and the Guarantors jointly and severally agree to pay (by depositing such amounts into the Collection Account to be distributed subject to and in accordance with the Priority of Payments), (A) on the Series 2022-1 Upsize Closing Date (if invoiced at least one (1) Business Day prior to such date) and (B) on or before five (5) Business Days after written demand (in all other cases), all reasonable documented out-of-pocket expenses of the Administrative Agent, each initial Funding Agent and each initial Lender Party (including the reasonable fees and out-of-pocket expenses of one external counsel to each of the foregoing), if any (but excluding, for the avoidance of doubt, fees and expenses, whether allocated or otherwise, in respect of in-house counsel), as well as the fees and expenses of the Rating Agency in connection with (i) the negotiation, preparation, execution and delivery of this Agreement and of each other Transaction Document, including schedules and exhibits, whether or not the transactions contemplated hereby or thereby are consummated (including, without limitation, such reasonable and documented out-of-pocket expenses for the Note
Purchasers’ due diligence investigation, consultants’ fees and travel expenses and such fees incurred on or before the Series 2022-1 Closing Date to the extent invoiced at least one (1) Business Day prior to such date), the administration and syndication of this Agreement and of each other Transaction Document and the taking of any other action (whether through negotiations, through any work-out, bankruptcy, restructuring or other legal or other proceeding (including, without limitation, preparation for and/or response to any subpoena or request for document production relating thereto) or otherwise) in respect of, or legal advice with respect to its rights or responsibilities under, this Agreement and of each other Transaction Document; and (ii) any amendments, waivers, consents, supplements or other modifications to this Agreement or any other Transaction Document as may from time to time hereafter be proposed by the Manager or the Securitization Entities. The Issuer and the Guarantors further jointly and severally agree to pay, subject to and in accordance with the Priority of Payments, and to hold the Administrative Agent, each Funding Agent and each Lender Party harmless from all liability for (x) any breach by the Issuer of its obligations under this Agreement, (y) all reasonable documented out-of-pocket costs incurred by the Administrative Agent, such Funding Agent or such Lender Party including the reasonable and documented fees and out-of-pocket expenses of counsel to each of the foregoing (excluding fees and expenses of in-house counsel), if any, in enforcing this Agreement or in connection with the negotiation of any restructuring or “work-out”, whether or not consummated, of the Transaction Documents and (z) any Non-Excluded Taxes that may be payable in connection with (1) the execution or delivery of this Agreement, (2) any Borrowing, (3) the issuance of the Series 2022-1 Class A-1 Notes, (4) any Letter of Credit hereunder or (5) any other Transaction Documents. Notwithstanding the foregoing, other than in connection with a sale or assignment pursuant to Section 9.18(a), the Issuer and/or the Guarantors shall have no obligation to reimburse any Lender Party for any of the fees and/or expenses incurred by such Lender Party with respect to its sale or assignment of all or any part of its respective rights and obligations under this Agreement and the Series 2022-1 Class A-1 Notes pursuant to Section 9.03 or Section 9.17.
(b) Indemnification of the Lender Parties. In consideration of the execution and delivery of this Agreement by the Lender Parties, the Securitization Entities hereby agree to jointly and severally indemnify and hold each Lender Party, each Funding Agent and the Administrative Agent (each in its capacity as such) and each of their officers, directors, employees and agents (collectively, the “Indemnified Parties”) harmless (by depositing such amounts into the Collection Account to be distributed subject to and in accordance with the Priority of Payments) from and against any and all actions, causes of action, suits, losses, liabilities and damages, and reasonable and documented out-of-pocket costs and expenses incurred in connection therewith (irrespective of whether any such Indemnified Party is a party to the action for which indemnification hereunder is sought and including, without limitation, any liability in connection with the offering and sale of the Series 2022-1 Class A-1 Notes), including reasonable and documented out-of-pocket attorneys’ fees and disbursements (collectively, the “Indemnified Liabilities”), incurred by the Indemnified Parties or any of them (whether in prosecuting or defending against such actions, suits or claims) to the extent resulting from, or arising out of, or relating to:
(i) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of any Advance or Letter of Credit; or
(ii) the entering into and performance of this Agreement and any other Transaction Document by any of the Indemnified Parties;
except for any such Indemnified Liabilities arising for the account of a particular Indemnified Party by reason of the relevant Indemnified Party’s gross negligence, bad faith or willful misconduct or breach of representations set forth herein as determined by a final, non-appealable judgment of a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Securitization Entities hereby jointly and severally agree to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law. The indemnity set forth in this Section 9.05(b) shall in no event include indemnification for special, punitive, consequential or indirect damages of any kind or for any Class A-1 Taxes which shall be covered by (or expressly excluded from) the indemnification provided in Section 3.08 or for any transfer Class A-1 Taxes with respect to its sale or assignment of all or any part of its respective rights and obligations
under this Agreement and the Series 2022-1 Class A-1 Notes pursuant to Section 9.17. The Issuer shall give notice to the Rating Agency of any claim for Indemnified Liabilities made under this Section 9.05(b).
(c) Indemnification of the Administrative Agent and each Funding Agent. In consideration of the execution and delivery of this Agreement by the Administrative Agent and the related Funding Agent, each Note Purchaser, ratably according to its respective Commitment, hereby agrees to indemnify and hold the Administrative Agent and each of its officers, directors, employees, affiliates and agents (collectively, the “Administrative Agent Indemnified Parties”) and such Funding Agent and each of its officers, directors, employees and agents (collectively, the “Funding Agent Indemnified Parties,” and together with the Administrative Agent Indemnified Parties, the “Applicable Agent Indemnified Parties”) harmless from and against any and all actions, causes of action, suits, losses, liabilities and damages, and reasonable costs and expenses incurred in connection therewith (solely to the extent not reimbursed by or on behalf of the Issuer or the Guarantors) (irrespective of whether any such Applicable Agent Indemnified Party is a party to the action for which indemnification hereunder is sought and including, without limitation, any liability in connection with the offering and sale of the Series 2022-1 Class A-1 Notes), including reasonable attorneys’ fees and disbursements (collectively, the “Applicable Agent Indemnified Liabilities”), incurred by the Applicable Agent Indemnified Parties or any of them (whether in prosecuting or defending against such actions, suits or claims) to the extent resulting from, or arising out of, or relating to the entering into and performance of this Agreement and any other Transaction Document by any of the Applicable Agent Indemnified Parties, except for any such Applicable Agent Indemnified Liabilities arising for the account of a particular Applicable Agent Indemnified Party by reason of the relevant Applicable Agent Indemnified Party’s gross negligence, bad faith or willful misconduct. If and to the extent that the foregoing undertaking may be unenforceable for any reason, each Note Purchaser, ratably according to its respective Commitment, hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Applicable Agent Indemnified Liabilities that is permissible under applicable law. The indemnity set forth in this Section 9.05(c) shall in no event include indemnification for consequential or indirect damages of any kind or for any Class A-1 Taxes which shall be covered by (or expressly excluded from) the indemnification provided in Section 3.08.
SECTION 9.06 Characterization as Transaction Document; Entire Agreement. This Agreement shall be deemed to be a Transaction Document for all purposes of the Base Indenture and the other Transaction Documents. This Agreement, together with the Base Indenture, the Series 2022-1 Supplement, the documents delivered pursuant to Article VII and the other Transaction Documents, including the exhibits and schedules thereto, contains a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all previous oral statements and other writings with respect thereto.
SECTION 9.07 Notices. All notices, amendments, waivers, consents and other communications provided to any party hereto under this Agreement shall be in writing and addressed, delivered or transmitted to such party at its address, or e-mail address set forth below its signature hereto, in the case of the Issuer or the Manager, or on Schedule II, in the case of the Lender Parties, the Administrative Agent and the Funding Agents, or in each case at such other address or e-mail address as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by e-mail, shall be deemed given when received.
SECTION 9.08 Severability of Provisions. Any covenant, provision, agreement or term of this Agreement that is prohibited or is held to be void or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceability without invalidating the remaining provisions of this Agreement.
SECTION 9.09 Tax Characterization. (a) Each party to this Agreement (i) acknowledges that it is the intent of the parties to this Agreement that, for accounting purposes and for all federal, state and local income and franchise tax purposes, the Series 2022-1 Class A-1 Notes will be treated
as evidence of indebtedness, (ii) agrees to treat the Series 2022-1 Class A-1 Notes for all such purposes as indebtedness and (iii) agrees that the provisions of the Transaction Documents shall be construed to further these intentions.
(b) Each Series 2022-1 Class A-1 Noteholder shall, acting solely for this purpose as an agent of the Issuer, maintain a register on which it enters the name and address of each related Lender Party (and, if applicable, Program Support Provider) and the applicable portions of the Series 2022-1 Class A-1 Outstanding Principal Amount (and stated interest) with respect to such Series 2022-1 Class A-1 Noteholder of each Lender Party (and, if applicable, Program Support Provider) that has an interest in such Series 2022-1 Class A-1 Noteholder’s Series 2022-1 Class A-1 Notes (the “Series 2022-1 Class A-1 Notes Register”), provided that no Series 2022-1 Class A-1 Noteholder shall have any obligation to disclose all or any portion of the Series 2022-1 Class A-1 Notes Register to any Person except to the extent that such disclosure is necessary to establish that such Series 2022-1 Class A-1 Notes are in registered form under Section 5f.103-1(c) of the U.S. Treasury regulations.
SECTION 9.10 No Proceedings; Limited Recourse.
(a) The Securitization Entities. Each of the parties hereto (other than the Issuer) hereby covenants and agrees that, prior to the date that is one year and one day after the payment in full of the last maturing Note issued by the Issuer pursuant to the Base Indenture, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law, all as more particularly set forth in Section 14.13 of the Base Indenture and subject to any retained rights set forth therein; provided, however, that nothing in this Section 9.10(a) shall constitute a waiver of any right to indemnification, reimbursement or other payment from the Securitization Entities pursuant to this Agreement, the Series 2022-1 Supplement, the Base Indenture or any other Transaction Document. In the event that a Lender Party (solely in its capacity as such) takes action in violation of this Section 9.10(a), each affected Securitization Entity shall file or cause to be filed an answer with the bankruptcy court or otherwise properly contest or cause to be contested the filing of such a petition by any such Person against such Securitization Entity or the commencement of such action and raise or cause to be raised the defense that such Person has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as its counsel advises that it may assert. Nothing contained herein shall preclude participation by a Lender Party in the assertion or defense of its claims in any such proceeding involving any Securitization Entity. The obligations of the Issuer under this Agreement are solely the limited liability company or corporate, as the case may be, obligations of the Issuer.
(b) The Conduit Investors. Each of the parties hereto hereby covenants and agrees that it will not, prior to the date that is one year and one day after the payment in full of all Commercial Paper or other debt securities or instruments issued by a Conduit Investor, institute against, or join with any other Person in instituting against, such Conduit Investor, any bankruptcy, reorganization, arrangement, insolvency, examination or liquidation proceedings, or other proceedings under any federal or state (or any other jurisdiction with authority over such Conduit Investor) bankruptcy or similar law; provided, however, that, subject to Section 9.10(d), nothing in this Section 9.10(b) shall constitute a waiver of any right to indemnification, reimbursement or other payment from such Conduit Investor pursuant to this Agreement. In the event that any such party takes action in violation of this Section 9.10(b), such related Conduit Investor may file an answer with the bankruptcy court or otherwise properly contest or cause to be contested the filing of such a petition by any such party against such Conduit Investor or the commencement of such action and raise or cause to be raised the defense that such party has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as its counsel advises that it may assert. Nothing contained herein shall preclude participation by any of the Securitization Entities, the Manager or a Lender Party in assertion or defense of its claims in any such proceeding involving a Conduit Investor. Subject to Section 9.10(d), the obligations of the Conduit Investors under this Agreement are solely the corporate obligations of the Conduit Investors. No recourse shall be had for the payment of any amount owing in respect of this Agreement, including any obligation or claim arising out of or based upon this Agreement, against any stockholder, employee, officer, agent, director, member, affiliate or incorporator (or Person similar to an incorporator under state business organization laws) of any Conduit Investor; provided, however, nothing
in this Section 9.10(b) shall relieve any of the foregoing Persons from any liability that any such Person may otherwise have for its gross negligence, bad faith or willful misconduct.
(c) [Reserved].
(d) Notwithstanding any provisions contained in this Agreement to the contrary, no Conduit Investor shall be obligated to pay any fees, costs, indemnified amounts or expenses due pursuant to this Agreement (“Conduit Investor Amounts”) other than in accordance with the order of priorities set out in such Conduit Investor’s commercial paper program documents and all payment obligations of each Conduit Investor hereunder are contingent on the availability of funds received pursuant to this Agreement or the Notes and in excess of the amounts necessary to pay its commercial paper notes; provided, however, that each Note Purchaser shall pay any Conduit Investor Amounts, on behalf of any Conduit Investor in such Note Purchaser’s Investment Group, as and when due hereunder, to the extent that such Conduit Investor is precluded by its commercial paper program documents from paying such Conduit Investor Amounts in accordance with this Agreement. Any such amount which any Conduit Investor does not pay pursuant to the operation of the preceding sentence shall not constitute a claim against or corporate obligation of such Conduit Investor for any such insufficiency unless and until funds received pursuant to this Agreement or the Notes and are available for the payment of such amounts as aforesaid.
(e) The provisions of this Section 9.10 shall survive the termination of this Agreement.
SECTION 9.11 Confidentiality. Each Lender Party, Funding Agent and the Administrative Agent agrees that it shall not disclose any Confidential Information to any Person without the prior written consent of the Manager and the Issuer, other than (a) to their Affiliates, and their Affiliates’ officers, directors, employees, managers, administrators, trustees, agents and advisors, including, without limitation, legal counsel and accountants (it being understood that the Person to whom such disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep it confidential), (b) to actual or prospective assignees and participants, and then only on a confidential basis (after obtaining such actual or prospective assignee’s or participant’s agreement to keep such Confidential Information confidential in a manner substantially similar to this Section 9.11), (c) as requested by a Governmental Authority or self-regulatory organization or required by any law, rule or regulation or judicial process of which the Issuer or the Manager, as the case may be, has knowledge; provided that each Lender Party, Funding Agent and the Administrative Agent may disclose Confidential Information as requested by a Governmental Authority or self-regulatory organization or required by any law, rule or regulation or judicial process of which the Issuer or the Manager, as the case may be, does not have knowledge if such Lender Party, Funding Agent or Administrative Agent is prohibited by law, rule or regulation from disclosing such requirement to the Issuer or the Manager, as the case may be, (d) to (x) Program Support Providers and (y) any trustee or collateral agent for the benefit of the holders of the commercial paper notes or other senior indebtedness of a Conduit Investor appointed pursuant to such Conduit Investor’s program documents (after obtaining such Person’s agreement to keep such Confidential Information confidential in a manner substantially similar to this Section 9.11), (e) to any rating agency providing a rating for any Series or Class of Notes or any Conduit Investor’s debt, (f) to any Person acting as a placement agent, dealer or investor with respect to any Conduit Investor’s commercial paper (provided that any Confidential Information provided to any such placement agent, dealer or investor does not reveal the identity of the Issuer or any of its Affiliates and is confined to information of the type that is typically provided to such entities by asset-backed commercial paper conduits), or (g) in the course of litigation with the Issuer or the Manager; provided that (in the case of any disclosure under foregoing clause (c) the disclosing party will, to the extent permitted by applicable law, give reasonable notice of such disclosure requirement to the Issuer and the Manager prior to disclosure of the Confidential Information, and will disclose only that portion of the Confidential Information that is necessary to comply with such requirement in a manner reasonably designed to maintain the confidentiality thereof; and provided, further, that no such notice shall be required for any disclosure by the Administrative Agent and/or its affiliates to regulatory authorities asserting jurisdiction in connection with an examination of any such party in the normal course.
“Confidential Information” means information that the Issuer, any Guarantor or the Manager furnishes to a Lender Party, but does not include (i) any such information that is or becomes generally available to the public other than as a result of a disclosure in violation of this Section 9.11 or a disclosure by a Person to which a Lender Party, a Funding Agent or the Administrative Agent delivered such information, (ii) any such information that was in the possession of a Lender Party prior to its being furnished to such Lender Party by the Issuer or the Manager, or (iii) any such information that is or becomes available to a Lender Party from a source other than the Issuer or the Manager; provided that with respect to clauses (ii) and (iii) herein, such source is not (x) known to a Lender Party to be bound by a confidentiality agreement with the Issuer or the Manager, as the case may be, with respect to the information or (y) known to a Lender Party to be otherwise prohibited from transmitting the information by a contractual, legal or fiduciary obligation.
SECTION 9.12 GOVERNING LAW; CONFLICTS WITH INDENTURE. THIS AGREEMENT AND ALL MATTERS ARISING UNDER OR IN ANY MANNER RELATING TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAW. IN THE EVENT OF ANY CONFLICTS BETWEEN THIS AGREEMENT AND THE INDENTURE, THE INDENTURE SHALL GOVERN.
SECTION 9.13 JURISDICTION; WAIVERS. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY OF THE PARTIES HEREUNDER WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR (TO THE EXTENT PERMITTED BY LAW) FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HEREUNDER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH OF THE PARTIES HEREUNDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS SECTION 9.13 ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
SECTION 9.14 WAIVER OF JURY TRIAL. ALL PARTIES HEREUNDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE PARTIES IN CONNECTION HEREWITH OR THEREWITH. ALL PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SIGNIFICANT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS AGREEMENT.
SECTION 9.15 Counterparts. This Agreement may be executed in any number of counterparts (which may include electronic transmission of counterparts) and by the different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original, and all of which together shall constitute one and the same instrument. For purposes of this Agreement, any reference to "written" or "in writing" means any form of written communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by Electronic Transmission. "Electronic Transmission" means any form of
communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process. The Administrative Agent is authorized to accept written instructions, directions, reports, notices or other communications delivered by Electronic Transmission and shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by Electronic Transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such Electronic Transmission, and the Administrative Agent shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information to the Administrative Agent, including, without limitation, the risk of the Administrative Agent acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties (except to the extent such action results from gross negligence, willful misconduct or fraud by the Administrative Agent). Any requirement in this Agreement that is to be signed or authenticated by "manual signature" or similar language shall not be deemed to prohibit signature to be by facsimile or electronic signature and shall not be deemed to prohibit delivery thereof by Electronic Transmission. Notwithstanding anything to the contrary in this Agreement, any and all communications (both text and attachments) by or from the Administrative Agent that the Administrative Agent in its sole discretion deems to contain confidential, proprietary and/or sensitive information and sent by Electronic Transmission will be encrypted. The recipient of the Electronic Transmission will be required to complete a one-time registration process.
SECTION 9.16 Third Party Beneficiary. The Trustee, on behalf of the Secured Parties, and the Control Party are express third party beneficiaries of this Agreement.
SECTION 9.17 Assignment.
(a) Subject to Sections 6.03 and 9.17(f), any Note Purchaser may at any time sell or assign all or any part of its rights and obligations under this Agreement, the Series 2022-1 Class A-1 Advance Notes and, in connection therewith, any other Transaction Documents to which it is a party, with the prior written consent (not to be unreasonably withheld or delayed) of the Issuer and the L/C Provider, to one or more financial institutions (an “Acquiring Note Purchaser”) pursuant to an assignment and assumption agreement, substantially in the form of Exhibit B (the “Assignment and Assumption Agreement”), executed by such Acquiring Note Purchaser, such assigning Note Purchaser, the Funding Agent with respect to such Note Purchaser, the Issuer and the L/C Provider and delivered to the Administrative Agent; provided that no consent of the Issuer shall be required for an assignment to another Note Purchaser or any Affiliate of a Note Purchaser or if a Rapid Amortization Event or an Event of Default has occurred and is continuing; provided, further, that, unless an Event of Default has occurred and is continuing, no assignment pursuant to this Section 9.17 shall be made to a VFN Competitor. In connection with any assignment pursuant to this Section 9.17(a), unless an Event of Default has occurred and is continuing, the Issuer, prior to consenting to any assignment, may require that this Agreement, the Fee Letter and the Series 2022-1 Supplement be amended on terms to be mutually agreed upon between the Administrative Agent and Issuer to provide that Advances and Subfacility Increases shall be made by the Note Purchasers on a committed basis.
(b) Without limiting the foregoing, subject to Sections 6.03 and 9.17(f), each Conduit Investor may assign all or a portion of the Investor Group Principal Amount with respect to such Conduit Investor and its rights and obligations under this Agreement, the Series 2022-1 Class A-1 Advance Notes and, in connection therewith, any other Transaction Documents to which it is a party to a Conduit Assignee with respect to such Conduit Investor, without the prior written consent of the Issuer. Upon such assignment by a Conduit Investor to a Conduit Assignee, (i) such Conduit Assignee shall be the owner of the Investor Group Principal Amount or such portion thereof with respect to such Conduit Investor, (ii) the related administrative or managing agent for such Conduit Assignee will act as the Funding Agent for such Conduit Assignee hereunder, with all corresponding rights and powers, express or implied, granted to the Funding Agent hereunder or under the other Transaction Documents, (iii) such
Conduit Assignee and its liquidity support provider(s) and credit support provider(s) and other related parties, in each case relating to the Commercial Paper and/or the Series 2022-1 Class A-1 Advance Notes, shall have the benefit of all the rights and protections provided to such Conduit Investor herein and in the other Transaction Documents (including, without limitation, any limitation on recourse against such Conduit Assignee as provided in this paragraph), (iv) such Conduit Assignee shall assume all of such Conduit Investor’s obligations, if any, hereunder or under the Base Indenture or under any other Transaction Document with respect to such portion of the Investor Group Principal Amount and such Conduit Investor shall be released from such obligations, (v) all distributions in respect of the Investor Group Principal Amount or such portion thereof with respect to such Conduit Investor shall be made to the applicable Funding Agent on behalf of such Conduit Assignee, (vi) the definition of the term “CP Funding Rate” with respect to the portion of the Investor Group Principal Amount with respect to such Conduit Investor, as applicable, funded or maintained with commercial paper issued by such Conduit Assignee from time to time shall be determined in the manner set forth in the definition of “CP Funding Rate” applicable to such Conduit Assignee on the basis of the interest rate or discount applicable to Commercial Paper issued by or for the benefit of such Conduit Assignee (rather than any other Conduit Investor), (vii) the defined terms and other terms and provisions of this Agreement and the other Transaction Documents shall be interpreted in accordance with the foregoing, and (viii) if requested by the Funding Agent with respect to such Conduit Assignee, the parties will execute and deliver such further agreements and documents and take such other actions as the Funding Agent may reasonably request to evidence and give effect to the foregoing. No assignment by any Conduit Investor to a Conduit Assignee of all or any portion of the Investor Group Principal Amount with respect to such Conduit Investor shall in any way diminish the obligation of the Note Purchasers in the same Investor Group as such Conduit Investor under Section 2.03 to fund any Increase not funded by such Conduit Investor or such Conduit Assignee.
(c) Subject to Sections 6.03 and 9.17(f), any Conduit Investor and the related Note Purchaser(s) may at any time sell all or any part of their respective rights and obligations under this Agreement, the Series 2022-1 Class A-1 Advance Notes and, in connection therewith, any other Transaction Documents to which it is a party, with the prior written consent (not to be unreasonably withheld or delayed) of the Issuer and the L/C Provider, to a multi-seller commercial paper conduit, whose commercial paper is rated at least “A-1” (or then equivalent grade) from S&P, and one or more financial institutions providing support to such multi-seller commercial paper conduit (an “Acquiring Investor Group”) pursuant to a transfer supplement, substantially in the form of Exhibit C (the “Investor Group Supplement” or “Series 2022-1 Class A-1 Investor Group Supplement”), executed by such Acquiring Investor Group, the Funding Agent with respect to such Acquiring Investor Group (including the Conduit Investor and the Note Purchasers with respect to such Investor Group), such assigning Conduit Investor and the Note Purchasers with respect to such Conduit Investor, the Funding Agent with respect to such assigning Conduit Investor and Note Purchasers, the Issuer and the L/C Provider and delivered to the Administrative Agent; provided that no consent of the Issuer shall be required for an assignment to another Note Purchaser or any Affiliate of a Note Purchaser and its related Conduit Investor or if a Rapid Amortization Event or an Event of Default has occurred and is continuing. For the avoidance of doubt, this Section 9.17(c) is intended to permit and provide for (i) assignments from a Note Purchaser to a Conduit Investor in a different Investor Group and (ii) assignments from a Conduit Investor to a Note Purchaser in a different Investor group, and, in each of (i) and (ii), Exhibit C shall be revised to reflect such assignments.
(d) [Reserved].
(e) Subject to Sections 6.03 and 9.17(f), the L/C Provider may at any time assign all or any portion of its rights and obligations hereunder and under the Series 2022-1 Class A-1 L/C Note with the prior written consent of the Issuer and the Administrative Agent, which consent shall not be unreasonably withheld or delayed, to a financial institution pursuant to an agreement with, and in form and substance reasonably satisfactory to, the Administrative Agent and the Issuer, whereupon the assignor shall be released from its obligations hereunder to the extent so assigned; provided that no consent of the Issuer shall be required if a Rapid Amortization Event or an Event of Default has occurred and is continuing..
(f) Any assignment of the Series 2022-1 Class A-1 Notes shall be made in accordance with the applicable provisions of the Indenture.
SECTION 9.18 Defaulting Investors.
(a) The Issuer may, at its sole expense and effort, upon notice to such Defaulting Investor and the Administrative Agent, (i) require any Defaulting Investor to sell all of its rights, obligations and commitments under this Agreement, the Series 2022-1 Class A-1 Notes and, in connection therewith, any other Transaction Documents to which it is a party, to an assignee; provided that (x) such assignment is made in compliance with Section 9.17 and (y) such Defaulting Investor shall have received from such assignee an amount equal to such Defaulting Investor’s Note Purchaser Percentage of the related Investor Group Principal Amount of such Defaulting Investor and all accrued interest thereon, accrued fees and all other amounts payable to such Defaulting Investor hereunder or (ii) remove any Defaulting Investor as an Investor by paying to such Defaulting Investor an amount equal to such Defaulting Investor’s Note Purchaser Percentage of the related Investor Group Principal Amount of such Defaulting Investor and all accrued interest thereon, accrued fees and all other amounts payable to such Defaulting Investor hereunder.
(b) In the event that a Defaulting Investor desires to sell all or any portion of it rights, obligations and commitments under this Agreement, the Series 2022-1 Class A-1 Notes and, in connection therewith, any other Transaction Documents to which it is a party, to an unaffiliated third party assignee for an amount less than 100% (or, if only a portion of such rights, obligations and commitments are proposed to be sold, such portion) of such Defaulting Investor’s Note Purchaser Percentage of the related Investor Group Principal Amount of such Defaulting Investor and all accrued interest thereon, accrued fees and all other amounts payable to such Defaulting Investor hereunder, such Defaulting Investor shall promptly notify the Issuer of the proposed sale (the “Sale Notice”). Each Sale Notice shall certify that such Defaulting Investor has received a firm offer from the prospective unaffiliated third party and shall contain the material terms of the proposed sale, including, without limitation, the purchase price of the proposed sale and the portion of such Defaulting Investor’s rights, obligations and commitments proposed to be sold. The Issuer and its Affiliates shall have an option for a period of three (3) Business Days from the date the Sale Notice is given to elect to purchase such rights, obligations and commitments at the same price and subject to the same material terms as described in the Sale Notice. The Issuer or any of its Affiliates may exercise such purchase option by notifying such Defaulting Investor before expiration of such three (3) Business Days period that it wishes to purchase all (but not a portion) of the rights, obligations and commitments of such Defaulting Investor proposed to be sold to such unaffiliated third party. If the Issuer or any of its Affiliates gives notice to such Defaulting Investor that it desires to purchase such, rights, obligations and commitments, the Issuer or such Affiliate shall promptly pay the purchase price to such Defaulting Investor. If the Issuer or any of its Affiliates does not respond to any Sale Notice within such three (3) Business Days period, the Issuer and its Affiliates shall be deemed not to have exercised such purchase option.
(c) Notwithstanding anything to the contrary contained in this Agreement, if any Investor becomes a Defaulting Investor, then, until such time as such Investor is no longer a Defaulting Investor, to the extent permitted by applicable law:
(i) Such Defaulting Investor’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 9.01.
(ii) Any payment of principal, interest, fees or other amounts payable to the account of such Defaulting Investor (whether voluntary or mandatory, at maturity or otherwise) shall be applied (and the Issuer shall instruct the Trustee to apply such amounts) as follows: first, to the payment on a pro rata basis of any amounts owing by such Defaulting Investor to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Investor to the L/C Provider hereunder; third, to provide cash collateral to the L/C Provider in accordance with Section 4.03(b) in an amount equal to the amount of Undrawn L/C Face Amounts at such time multiplied by the Commitment Percentage of such Defaulting Investor’s Investor Group multiplied by the Note Purchaser Percentage of such Defaulting Investor; fourth, as
the Issuer may request (so long as no Default or Event of Default exists), to the funding of any Advance in respect of which such Defaulting Investor has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Issuer, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Investor’s potential future funding obligations with respect to Advances under this Agreement and (y) to provide cash collateral to the L/C Provider in accordance with Section 4.03(b) in an amount equal to the amount of any future Undrawn L/C Face Amounts multiplied by the Commitment Percentage of such Defaulting Investor’s Investor Group multiplied by the Note Purchaser Percentage of such Defaulting Investor; sixth, to the payment of any amounts owing to the Investors or the L/C Provider as a result of any judgment of a court of competent jurisdiction obtained by any Investor against such Defaulting Investor as a result of such Defaulting Investor’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Issuer as a result of any judgment of a court of competent jurisdiction obtained by the Issuer or the L/C Provider against such Defaulting Investor as a result of such Defaulting Investor’s breach of its obligations under this Agreement; and eighth, to such Defaulting Investor or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advances or any extensions of credit resulting from a drawing under any Letter of Credit that has not been reimbursed as an Advance pursuant to Section 2.08(a) in respect of which such Defaulting Investor has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7.03 were satisfied or waived, such payment shall be applied solely to pay the Advances of, and extensions of credit resulting from a drawing under any Letter of Credit that has not been reimbursed as an Advance pursuant to Section 2.08(a) owed to, all non-Defaulting Investors on a pro rata basis prior to being applied to the payment of any Advances of, participations required to be purchased pursuant to Section 2.09(a) owed to, such Defaulting Investor until such time as all Advances and funded and unfunded participations in L/C Obligations are held by the Investors pro rata in accordance with the Commitments without giving effect to Section 9.18(c)(iii). Any payments, prepayments or other amounts paid or payable to a Defaulting Investor that are applied (or held) to pay amounts owed by a Defaulting Investor or to post cash collateral pursuant to this Section 9.18(c)(ii) shall be deemed paid to and redirected by such Defaulting Investor, and each Investor irrevocably consents hereto.
(iii) All or any part of such Defaulting Investor’s participation in L/C Obligations shall be reallocated among the non-Defaulting Investors pro rata based on their Commitments (calculated without regard to such Defaulting Investor’s Commitment) but only to the extent that (x) the conditions set forth in Section 7.03 are satisfied at the time of such reallocation (and, unless the Issuer shall have otherwise notified the Administrative Agent at such time, the Issuer shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the product of any non-Defaulting Investor’s related Investor Group Principal Amount multiplied by such non-Defaulting Investor’s Note Purchaser Percentage to exceed such non-Defaulting Investor’s Commitment Amount. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Investor arising from that Investor having become a Defaulting Investor, including any claim of a non-Defaulting Investor as a result of such non-Defaulting Investor’s increased exposure following such reallocation.
(d) If the Issuer, the Administrative Agent and the L/C Provider agree in writing that an Investor is no longer a Defaulting Investor, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Investor will, to the extent applicable, purchase that portion of outstanding Advances of the other Investors or take such other actions as the Administrative Agent may determine to be necessary to cause the Advances and funded and unfunded participations in Letters of Credit to be held pro rata by the Investors in accordance with their respective Commitments (without giving effect to Section 9.18(c)(iii)), whereupon such Investor will cease to be a Defaulting Investor; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Issuer while that Investor was a Defaulting Investor; and provided, further, that except to the extent otherwise expressly agreed by the affected
parties, no change hereunder from Defaulting Investor to Investor will constitute a waiver or release of any claim of any party hereunder arising from that Investor’s having been a Defaulting Investor.
SECTION 9.19 No Fiduciary Duties. Each of the Manager and the Securitization Entities acknowledge and agree that in connection with the transaction contemplated in this Agreement, or any other services the Lender Parties may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Lender Parties: (a) no fiduciary or agency relationship between any of the Manager, the Securitization Entities or any other person, on the one hand, and the Lender Parties, on the other, exists; (b) the Lender Parties are not acting as advisor, expert or otherwise, to the Manager or the Securitization Entities, and such relationship between any of the Manager or the Securitization Entities, on the one hand, and the Lender Parties, on the other, is entirely and solely commercial, based on arms-length negotiations; (c) any duties and obligations that the Lender Parties may have to the Manager and any of the Securitization Entities shall be limited to those duties and obligations specifically stated herein; (d) the Lender Parties and their respective affiliates may have interests that differ from those of the Manager or any of the Securitization Entities; and (e) the Manager and the Securitization Entities have consulted their own legal and financial advisors to the extent they deemed appropriate. Each of the Manager and the Securitization Entities hereby waive any claims that Manager or the Securitization Entities may have against the Lender Parties with respect to any breach of fiduciary duty in connection with the Series 2022-1 Class A-1 Notes.
SECTION 9.20 No Guarantee by Manager. The execution and delivery of this Agreement by Manager shall not be construed as a guarantee or other credit support by Manager of the obligations of the Securitization Entities hereunder. The Manager shall not be liable in any respect for any obligation of the Securitization Entities hereunder or any violation by any Securitization Entity of its covenants, representations and warranties or other agreements and obligations hereunder.
SECTION 9.21 [Reserved].
SECTION 9.22 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Indenture Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Indenture Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Indenture Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
For purposes of this Section 9.22:
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in
respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
SECTION 9.23 Patriot Act. In accordance with the USA PATRIOT Act, to help fight the funding of terrorism and money laundering activities, any Lender Party may obtain, verify and record information that identifies individuals or entities that establish a relationship with such Lender Party. Such Lender Party may ask for the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account. Such Lender Party may also ask for formation documents such as articles of incorporation, an offering memorandum, or other identifying documents to be provided.
SECTION 9.24 Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Lender Party that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Lender Party of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Lender Party that is a Covered Entity or a BHC Act Affiliate of such Lender Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Lender Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 9.24:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
SECTION 9.25 Amendment and Restatement. The parties hereto agree that this Agreement amends and restates in its entirety the Original Agreement and supersedes all prior agreements, arrangements and understandings between the parties, including as documented in the Original Agreement. This Agreement is not intended to constitute, and does not constitute, a novation of the obligations and liabilities under the Original Agreement, and all accrued and unpaid amounts thereunder shall continue as accrued and unpaid amounts due hereunder in accordance with the terms thereof and hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized officers and delivered as of the day and year first above written.
| | | | | | | | | | | | | | |
| | | WINGSTOP FUNDING LLC, |
| | | as the Issuer |
| | | | |
| | | By: | /s/ Alex Kaleida |
| | | | Name: Alex R. Kaleida |
| | | | Title: Senior Vice President and Chief Financial Officer |
| | | | |
| | | Address: |
| | | Wingstop Inc. |
| | | 15505 Wright Brother Drive |
| | | Addison, Texas 75001 |
| | | Attention: Albert McGrath |
| | | Email: gmcgrath@wingstop.com |
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Signature Page to the Amended and Restated Class A-1 Note Purchase Agreement (Series 2022-1 Class A-1)
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| | | WINGSTOP RESTAURANTS INC., |
| | | as Manager |
| | | | |
| | | By: | /s/ Alex Kaleida |
| | | | Name: Alex R. Kaleida |
| | | | Title: Senior Vice President and Chief Financial Officer |
| | | | |
| | | Address: |
| | | Wingstop Inc. |
| | | 15505 Wright Brother Drive |
| | | Addison, Texas 75001 |
| | | Attention: Albert McGrath |
| | | Email: gmcgrath@wingstop.com |
| | | | |
| | | | |
| | | | |
Signature Page to the Amended and Restated Class A-1 Note Purchase Agreement (Series 2022-1 Class A-1)
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| | | |
| | WINGSTOP GUARANTOR LLC, |
| | as a Guarantor |
| | | |
| | By: | /s/ Alex Kaleida |
| | | Name: Alex R. Kaleida |
| | | Title: Senior Vice President and Chief Financial Officer |
| | | |
| | WINGSTOP FRANCHISING LLC, |
| | as a Guarantor |
| | | |
| | By: | /s/ Alex Kaleida |
| | | Name: Alex R. Kaleida |
| | | Title: Senior Vice President and Chief Financial Officer |
| | | |
| | Each Guarantor at the following address: |
| | Wingstop Inc. |
| | 15505 Wright Brother Drive |
| | Addison, Texas 75001 |
| | Attention: Albert McGrath |
| | Email: gmcgrath@wingstop.com |
Signature Page to the Amended and Restated Class A-1 Note Purchase Agreement (Series 2022-1 Class A-1)
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| | MORGAN STANLEY ASSET FUNDING INC., |
| | as Administrative Agent |
| | | | |
| | By: | /s/ Keenan McBride |
| | | Name: Stephen McBride |
| | | Title: Authorized Signatory |
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Signature Page to the Amended and Restated Class A-1 Note Purchase Agreement (Series 2022-1 Class A-1)
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| | | MORGAN STANLEY BANK, N.A., |
| | | as Note Purchaser |
| | | |
| | By: | /s/ Stephen Marchi |
| | | Name: Stephen Marchi |
| | | Title: Authorized Signatory |
| | | | |
| | | | |
| | | MORGAN STANLEY BANK, N.A., |
| | | as related Funding Agent |
| | | |
| | By: | /s/ Stephen Marchi |
| | | Name: Stephen Marchi |
| | | Title: Authorized Signatory |
Signature Page to the Amended and Restated Class A-1 Note Purchase Agreement (Series 2022-1 Class A-1)
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| | | MORGAN STANLEY BANK, N.A.,
as L/C Provider |
| | | |
| | By: | /s/ Stephen Marchi |
| | | Name: Stephen Marchi |
| | | Title: Authorized Signatory |
| | | | |
| | | | |
| | | | |
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Signature Page to the Amended and Restated Class A-1 Note Purchase Agreement (Series 2022-1 Class A-1)
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| | BARCLAYS BANK PLC, |
| | as Note Purchaser |
| | | | |
| | By: ___________________________________ | /s/ Kinnary Armstrong |
| | | Name: Kinnary Armstrong |
| | | Title: Director |
| | | | |
| | | | |
| | BARCLAYS BANK PLC, |
| | as related Funding Agent |
| | | | |
| | By: ___________________________________ | /s/ Kinnary Armstrong |
| | | Name: Kinnary Armstrong |
| | | Title: Director |
| | | | |
| | | | |
Signature Page to the Amended and Restated Class A-1 Note Purchase Agreement (Series 2022-1 Class A-1)
SCHEDULE I TO CLASS A-1
NOTE PURCHASE AGREEMENT
INVESTOR GROUPS AND COMMITMENTS
| | | | | | | | | | | | | | | | | |
| Investor Group/Funding Agent | Maximum Investor Group Principal Amount | Conduit Lender (if any) | Note Purchaser(s) | Commitment Amount | Maximum Commitment Amount |
| Morgan Stanley Bank, N.A. | The sum of (x) The outstanding amount of Advances of such Investor Group, plus (y) during a Temporary Commitment Availability Period, such Investor Group’s Commitment Percentage of the TCAP Amount, not to exceed $280,000,000.1 | N/A | Morgan Stanley Bank, N.A. | The sum of (x) The outstanding amount of Advances of such Note Purchaser, plus (y) during a Temporary Commitment Availability Period, such Note Purchaser’s Note Purchaser TCAP Amount.2 | $280,000,000 |
| Barclays Bank PLC | The sum of (x) The outstanding amount of Advances of such Investor Group, plus (y) during a Temporary Commitment Availability Period, such Investor Group’s Commitment Percentage of the TCAP Amount, not to exceed $20,000,000.3 | N/A | Barclays Bank PLC | The sum of (x) The outstanding amount of Advances of such Note Purchaser, plus (y) during a Temporary Commitment Availability Period, such Note Purchaser’s Note Purchaser TCAP Amount.4 | $20,000,000 |
1 On the Series 2022-1 Upsize Closing Date the Maximum Investor Group Principal Amount is zero.
2 On the Series 2022-1 Upsize Closing Date the Commitment Amount is zero.
3 On the Series 2022-1 Upsize Closing Date the Maximum Investor Group Principal Amount is zero.
4 On the Series 2022-1 Upsize Closing Date the Commitment Amount is zero.
SCHEDULE II TO CLASS A-1
NOTE PURCHASE AGREEMENT
NOTICE ADDRESSES FOR LENDER PARTIES AND AGENTS
Note Purchasers
Morgan Stanley Bank, N.A.
Morgan Stanley Bank, N.A.
1585 Broadway, 24th Floor
New York, New York 10036
Attention: SPG Warehouse Lending
Telephone: 212-761-1402
Email: Victoria.elduff@morganstanley.com; spglending-abs@ms.com; fsl_vfn@ms.com and
Barclays Bank PLC
Barclays Bank PLC
1301 Sixth Avenue
New York, New York 10019
Attention: Roger Billotto
Telephone: 201-499-8482
Email: mirrorbarclaysconduitteam@barclays.com
and
Barclays Bank PLC
745 Seventh Avenue, 2nd Floor
New York, New York 10019
Attention: Daniel Stawiarski and Kinnary Armstrong
Telephone: 212-412-1027
Email: daniel.stawiarski@barclays.com and kinnary.armstrong@barclays.com
Funding Agents
Morgan Stanley Bank, N.A.
Morgan Stanley Bank, N.A.
1585 Broadway, 24th Floor
New York, New York 10036
Attention: SPG Warehouse Lending
Telephone: 212-761-1402
Email: Victoria.elduff@morganstanley.com; spglending-abs@ms.com; fsl_vfn@ms.com
Barclays Bank PLC
Barclays Bank PLC
1301 Sixth Avenue
New York, New York 10019
Attention: Roger Billotto
Telephone: 201-499-8482
Email: mirrorbarclaysconduitteam@barclays.com
and
Barclays Bank PLC
745 Seventh Avenue, 2nd Floor
New York, New York 10019
Attention: Daniel Stawiarski and Kinnary Armstrong
Telephone: 212-412-1027
Email: daniel.stawiarski@barclays.com and kinnary.armstrong@barclays.com
Administrative Agent
Morgan Stanley Asset Funding Inc.
Morgan Stanley Asset Funding Inc.
1585 Broadway, 24th Floor
New York, New York 10036
Attention: SPG Warehouse Lending
Telephone: 212-761-1402
Email: Victoria.elduff@morganstanley.com; spglending-abs@ms.com; fsl_vfn@ms.com
L/C Provider
Morgan Stanley Bank, N.A.
Morgan Stanley Bank, N.A.
1585 Broadway, 24th Floor
New York, New York 10036
Attention: SPG Warehouse Lending
Telephone: 212-761-1402
Email: Victoria.elduff@morganstanley.com; spglending-abs@ms.com; fsl_vfn@ms.com
SCHEDULE III TO CLASS A-1
NOTE PURCHASE AGREEMENT
ADDITIONAL CLOSING CONDITIONS
The following are the additional conditions to initial issuance and effectiveness referred to in Section 7.01(d):
(a) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Series 2022-1 Supplement Amendment, the Additional Series 2022-1 Class A-1 Notes and the Transaction Documents, and all other legal matters relating thereto and the transactions contemplated thereby, shall be reasonably satisfactory in all material respects to the Administrative Agent, and the Issuer, the Manager and the Guarantors shall have furnished to the Administrative Agent all documents and information that the Administrative Agent or its counsel may reasonably request to enable them to pass upon such matters.
(b) Richards, Layton & Finger, PA, as Delaware counsel to the Manager, the Issuer and the Guarantors, shall have furnished to the Administrative Agent and the Lender Parties written opinions that are customary for transactions of this type and reasonably satisfactory in form and substance to counsel to the Administrative Agent, addressed to the Administrative Agent and Lender Parties and dated the Series 2022-1 Upsize Closing Date.
(c) Paul, Weiss, Rifkind, Wharton & Garrison LLP, as counsel to the Issuer, the Manager and the Guarantors, shall have furnished to the Administrative Agent and the Lender Parties written opinions that are customary for transactions of this type, including in respect of corporate, securities and investment company act matters, security interest matters, “true contribution” and “non-consolidation” matters (including in the form of a reliance letter) and tax matters, in each case reasonably satisfactory in form and substance to counsel to the Administrative Agent, addressed to the Administrative Agent and Lender Parties and dated the Series 2022-1 Upsize Closing Date.
(d) DLA Piper LLP (US), as franchise counsel to the Issuer, the Manager and the Guarantors, shall have furnished to the Administrative Agent and the Lender Parties written opinions that are customary for transactions of this type, reasonably satisfactory in form and substance to counsel to the Administrative Agent, addressed to the Administrative Agent and Lender Parties and dated the Series 2022-1 Upsize Closing Date.
(e) Dentons US LLP, as counsel to the Trustee, shall have furnished to the Administrative Agent and the Lender Parties written opinions that are customary for transactions of this type, reasonably satisfactory in form and substance to counsel to the Administrative Agent, addressed to the Administrative Agent and Lender Parties and dated the Series 2022-1 Upsize Closing Date.
(f) Eversheds Sutherland (US) LLP, as counsel to the Servicer, shall have furnished to the Administrative Agent and the Lender Parties written opinions that are customary for transactions of this type, reasonably satisfactory in form and substance to counsel to the Administrative Agent, addressed to the Administrative Agent and Lender Parties and dated the Series 2022-1 Upsize Closing Date.
(g) Each of the Issuer, the Manager and the Guarantors, as applicable, shall have furnished or caused to be furnished to the Administrative Agent a certificate of the Chief Financial Officer or other financial officer of the Issuer, the Manager and the Guarantors, as applicable, or other officers reasonably satisfactory to the Administrative Agent, dated as of the Series 2022-1 Upsize Closing Date, as to such matters as the Administrative Agent may reasonably request, including, without limitation, a statement that:
(i) the representations, warranties and agreements of the Issuer, the Manager and the Guarantors, as applicable, in any other Transaction Document to which any of the Issuer, the Manager and the Guarantors, as applicable, is a party are true and correct (A) if qualified as to materiality or Material Adverse Effect, in all respects, and (B) if not so qualified, in all material respects, on and as of the Closing Date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct (x) if qualified as to materiality or Material Adverse Effect, in all respects, and (y) if not so qualified, in all material respects, as of such earlier date), and the Issuer, the Manager, and each Guarantor, as applicable, has complied in all material respects with all its agreements contained herein and in any other Transaction Document to which it is a party and satisfied all the conditions on its part to be performed or satisfied hereunder or thereunder at or prior to the Series 2022-1 Upsize Closing Date;
(ii) there shall exist at and as of the Series 2022-1 Upsize Closing Date no condition that would constitute an “Event of Default” (or an event that with notice or the lapse of time, or both, would constitute an “Event of Default”) under, and as defined in, the Indenture or a material breach under any of the Transaction Documents as in effect at the Series 2022-1 Upsize Closing Date (or an event that with notice or lapse of time, or both, would constitute such a material breach); and
(iii) subsequent to the date as of which information is given in the Pricing Disclosure Package (as defined in the Series 2024-1 Class A-2 Note Purchase Agreement), there has not been any development in the general affairs, business, properties, capitalization, condition (financial or otherwise) or results of operation of any of the Issuer, the Manager or the Guarantors, as applicable, that could reasonably be expected to result in a Material Adverse Effect, except as set forth or contemplated in the Pricing Disclosure Package or the Offering Memorandum.
(h) The Manager, the Back-Up Manager, the Securitization Entities and the Trustee shall have executed and delivered the Back-Up Management Agreement, as amended and restated on the Series 2022-1 Upsize Closing Date, and the Administrative Agent shall have received a duly executed copy thereof.
(i) [Reserved].
(j) The Series 2022-1 Supplement Amendment shall have been duly executed and delivered by the Issuer, the 2022-1 Securities Intermediary and the Trustee, the Additional Series 2022-1 Class A-1 Notes shall have been duly executed and delivered by the Issuer and duly authenticated by the Trustee, and the Administrative Agent shall have received duly executed copies thereof.
(k) The Guarantee and Collateral Agreement, as amended and restated on the Series 2020-1 Closing Date, shall be in full force and effect and the Administrative Agent shall have received a duly executed copy thereof.
(l) Each other Transaction Document (excluding any Series Supplements and other Transaction Documents relating solely to a Series of Notes other than the Series 2022-1 Notes and the Series 2024-1 Class A-2 Notes) shall have been duly executed and delivered by the respective parties thereto, and the Administrative Agent shall have received duly executed copies thereof.
(m) On the Series 2022-1 Upsize Closing Date, each of the Transaction Documents shall be in full force and effect.
(n) The Manager, each Guarantor and the Issuer shall have furnished to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent and dated as of the Closing Date, of the Chief Financial Officer or other financial officer of such entity (or other officers reasonably satisfactory to the Administrative Agent) that such entity will be Solvent (as defined in the Series 2024-1 Class A-2 Note Purchase Agreement) immediately after the consummation of the transactions contemplated by this Agreement; provided that in the case of each Securitization Entity, the liabilities of the other Securitization Entities with respect to debts, liabilities and obligations for which such Securitization Entity is jointly and severally liable shall be taken into account.
(o) None of the transactions contemplated by this Agreement shall be subject to an injunction (temporary or permanent) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or (to the knowledge of the Issuer or the Manager) overtly threatened against the Issuer, the Manager, any Guarantor, any Lender Party or the Administrative Agent that would reasonably be expected to adversely impact the issuance of the Series 2022-1 Notes and the Guarantee or any Lender Party’s or the Administrative Agent’s activities in connection therewith or any other transactions contemplated by the Transaction Documents.
(p) [Reserved].
(q) The Issuer shall have delivered $500,000,000 of the Series 2024-1 Class A-2 Notes to the Initial Purchasers on the Series 2022-1 Upsize Closing Date.
(r) On or prior to the Series 2022-1 Upsize Closing Date, the Manager, the Guarantors and the Issuer shall have furnished to the Administrative Agent and the Lender Parties such further certificates and documents as the Administrative Agent or any Lender Party may reasonably request.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Administrative Agent.
EXHIBIT A TO CLASS A-1
NOTE PURCHASE AGREEMENT
ADVANCE REQUEST
WINGSTOP FUNDING LLC
SERIES 2022-1 SENIOR NOTES, CLASS A-1
TO:
Morgan Stanley Asset Funding Inc.
1585 Broadway, 24th Floor
New York, New York 10036
Attention: SPG Warehouse Lending
Telephone: 212-761-1402
Email: Victoria.elduff@morganstanley.com; spglending-abs@ms.com; fsl_vfn@ms.com
Ladies and Gentlemen:
This Advance Request is delivered to you pursuant to Section 2.03 of that certain Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement, dated as of December 3, 2024 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement”; terms defined therein being used herein as therein defined) among Wingstop Funding LLC, as Issuer, the Guarantors party thereto, Wingstop Restaurants Inc., as the Manager, the Conduit Investors, the Note Purchasers for each Investor Group, the Funding Agents and Morgan Stanley Asset Funding Inc., as L/C Provider and Administrative Agent.
Unless otherwise defined herein or as the context otherwise requires, terms used herein have the meaning assigned thereto under or as provided in the Recitals and Section 1.01 of the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement.
The undersigned hereby requests that Advances be made in the aggregate principal amount of $ on , 20___.
[IF THE ISSUER IS ELECTING THE TERM SOFR RATE FOR THESE ADVANCES ON THE DATE MADE IN ACCORDANCE WITH SECTION 3.01(b) OF THE CLASS A-1 NOTE PURCHASE AGREEMENT, ADD THE FOLLOWING SENTENCE:] The undersigned hereby elects that the Advances that are not funded at the CP Rate by an Eligible Conduit Investor shall be SOFR Advances.]
The undersigned hereby acknowledges that the delivery of this Advance Request and the acceptance by the undersigned of the proceeds of the Advances requested hereby constitute a representation and warranty by the undersigned that, on the date of such Advances, and before and after giving effect thereto and to the application of the proceeds therefrom, all conditions set forth in Section 7.03 of the Series 2022-1 Class A-1 Note Purchase Agreement have been satisfied and all statements set forth in Section 6.01 of the Series 2022-1 Class A-1 Note Purchase Agreement are true and correct.
The undersigned agrees that if prior to the time of the Advances requested hereby any matter certified to herein by it will not be true and correct at such time as if then made, it will immediately so notify both you and each Investor. Except to the extent, if any, that prior to the time of the Advances requested hereby you and each Investor shall receive written notice to the contrary from the undersigned, each matter certified to herein shall be deemed once again to be certified as true and correct at the date of such Advances as if then made.
Please wire transfer the proceeds of the Advances, [first, $[__] to the L/C Provider for application to repayment of outstanding Unreimbursed L/C Drawings, and, second] to the Issuer pursuant to the following instructions:
[insert payment instruction for payment to Issuer]
The undersigned has caused this Advance Request to be executed and delivered, and the certification and warranties contained herein to be made, by its duly Authorized Officer this ____ day of __________, 20___.
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| | WINGSTOP RESTAURANTS INC., as Manager on behalf of the Issuer |
| | | | |
| | By: _________________________________________ |
| | Name: | | |
| | Title: | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
EXHIBIT B TO CLASS A-1
NOTE PURCHASE AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of [ ], among [ ] (the “Transferor”), each purchaser listed as an Acquiring Note Purchaser on the signature pages hereof (each, an “Acquiring Note Purchaser”), the Funding Agent with respect to such Acquiring Note Purchaser listed on the signature pages hereof (each, a “Funding Agent”), and the Issuer and L/C Provider listed on the signature pages hereof.
W I T N E S S E T H:
WHEREAS, this Assignment and Assumption Agreement is being executed and delivered in accordance with Section 9.17(a) of that certain Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement, dated as of December 3, 2024 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement”; terms defined therein being used herein as therein defined) among Wingstop Funding LLC, as Issuer, the Guarantors party thereto, Wingstop Restaurants Inc., as the Manager, the Conduit Investors, the Note Purchasers for each Investor Group, the Funding Agents, Morgan Stanley Bank, N.A., as L/C Provider, and Morgan Stanley Asset Funding Inc., as Administrative Agent;
WHEREAS, each Acquiring Note Purchaser (if it is not already an existing Note Purchaser) wishes to become a Note Purchaser party to the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement; and
WHEREAS, the Transferor is selling and assigning to each Acquiring Note Purchaser, [all] [a portion of] its rights, obligations and commitments under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement, the Series 2022-1 Class A-1 Advance Notes and each other Transaction Document to which it is a party with respect to the percentage of its Maximum Commitment Amount specified on Schedule I attached hereto;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Upon the execution and delivery of this Assignment and Assumption Agreement by each Acquiring Note Purchaser, each related Funding Agent, the Transferor, the L/C Provider and, to the extent required by Section 9.17(a) of the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement, the Issuer (the date of such execution and delivery, the “Transfer Issuance Date”), each Acquiring Note Purchaser shall be a Note Purchaser party to the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement for all purposes thereof.
The Transferor acknowledges receipt from each Acquiring Note Purchaser of an amount equal to the purchase price, as agreed between the Transferor and such Acquiring Note Purchaser (the “Purchase Price”), of the portion being purchased by such Acquiring Note Purchaser (such Acquiring Note Purchaser’s “Purchased Percentage”) of (i) the Transferor’s Commitment under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement and (ii) the Transferor’s Note Purchaser Percentage of the related Investor Group Principal Amount. The Transferor hereby irrevocably sells, assigns and transfers to each Acquiring Note Purchaser, without recourse, representation or warranty, and each Acquiring Note Purchaser hereby irrevocably purchases, takes and assumes from the Transferor, such Acquiring Note Purchaser’s Purchased Percentage of (x) the Transferor’s Commitment under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement and (y) the Transferor’s Note Purchaser Percentage of the related Investor Group Principal Amount.
The Transferor has made arrangements with each Acquiring Note Purchaser with respect to [(i)] the portion, if any, to be paid, and the date or dates for payment, by the Transferor to such Acquiring Note Purchaser of any program fees, undrawn facility fee, structuring fees or other fees (collectively, the “Fees”) [heretofore received] by the Transferor pursuant to Section 3.02 of the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement prior to the Transfer Issuance Date [and (ii) the portion, if any, to be paid, and the date or dates for payment, by such Acquiring Note Purchaser to the Transferor of Fees or [ ] received by such Acquiring Note Purchaser pursuant to the Series 2022-1 Supplement from and after the Transfer Issuance Date].
From and after the Transfer Issuance Date, amounts that would otherwise be payable to or for the account of the Transferor pursuant to the Series 2022-1 Supplement or the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement shall, instead, be payable to or for the account of the Transferor and the Acquiring Note Purchasers, as the case may be, in accordance with their respective interests as reflected in this Assignment and Assumption Agreement, whether such amounts have accrued prior to the Transfer Issuance Date or accrue subsequent to the Transfer Issuance Date.
Each of the parties to this Assignment and Assumption Agreement agrees that at any time and from time to time upon the written request of any other party, it will execute and deliver such further documents and do such further acts and things as such other party may reasonably request in order to effect the purposes of this Assignment and Assumption Agreement.
By executing and delivering this Assignment and Assumption Agreement, the Transferor and each Acquiring Note Purchaser confirm to and agree with each other and the other parties to the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement as follows: (i) other than the representation and warranty that it is the legal and beneficial owner of the interest being assigned hereby free and clear of any adverse claim, the Transferor makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Series 2022-1 Supplement, the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Indenture, the Series 2022-1 Class A-1 Notes, the Transaction Documents or any instrument or document furnished pursuant thereto; (ii) the Transferor makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Issuer or the performance or observance by the Issuer of any of the Issuer’s obligations under the Indenture, the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement, the Transaction Documents or any other instrument or document furnished pursuant thereto; (iii) each Acquiring Note Purchaser confirms that it has received a copy of the Indenture, the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement and such other Transaction Documents and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption Agreement; (iv) each Acquiring Note Purchaser will, independently and without reliance upon the Administrative Agent, the Transferor, the Funding Agent or any other Investor Group and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement; (v) each Acquiring Note Purchaser appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with Article V of the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement; (vi) each Acquiring Note Purchaser appoints and authorizes its related Funding Agent to take such action as agent on its behalf and to exercise such powers under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement as are
delegated to such Funding Agent by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with Article V of the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement; (vii) each Acquiring Note Purchaser agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement are required to be performed by it as an Acquiring Note Purchaser; and (viii) each Acquiring Note Purchaser hereby represents and warrants to the Issuer and the Manager that: (A) it has had an opportunity to discuss the Issuer’s and the Manager’s business, management and financial affairs, and the terms and conditions of the proposed purchase, with the Issuer, and the Manager and their respective representatives; (B) it is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of investing in, and is able and prepared to bear the economic risk of investing in, the Series 2022-1 Class A-1 Notes; (C) it is purchasing the Series 2022-1 Class A-1 Notes for its own account, or for the account of one or more “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that meet the criteria described in clause (viii)(B) above and for which it is acting with complete investment discretion, for investment purposes only and not with a view to distribution, subject, nevertheless, to the understanding that the disposition of its property shall at all times be and remain within its control, and neither it nor its Affiliates has engaged in any general solicitation or general advertising within the meaning of the Securities Act with respect to the Series 2022-1 Class A-1 Notes; (D) it understands that (I) the Series 2022-1 Class A-1 Notes have not been and will not be registered or qualified under the Securities Act or any applicable state securities laws or the securities laws of any other jurisdiction and are being offered only in a transaction not involving any public offering within the meaning of the Securities Act and may not be resold or otherwise transferred unless so registered or qualified or unless an exemption from registration or qualification is available and an opinion of counsel shall have been delivered in advance to the Issuer, (II) the Issuer is not required to register the Series 2022-1 Class A-1 Notes, (III) any permitted transferee hereunder must meet the criteria described under clause (viii)(B) above and (IV) any transfer must comply with the provisions of Section 2.8 of the Base Indenture, Section 4.3 of the Series 2022-1 Supplement and Section 9.03 or 9.17, as applicable, of the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement; (E) it will comply with the requirements of clause (viii)(D) above in connection with any transfer by it of the Series 2022-1 Class A-1 Notes; (F) it understands that the Series 2022-1 Class A-1 Notes will bear the legend set out in the form of Series 2022-1 Class A-1 Notes attached to the Series 2022-1 Supplement and be subject to the restrictions on transfer described in such legend; (G) it will obtain for the benefit of the Issuer from any purchaser of the Series 2022-1 Class A-1 Notes substantially the same representations and warranties contained in the foregoing paragraphs; and (H) it has executed a Purchaser’s Letter substantially in the form of Exhibit D to the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement.
Schedule I hereto sets forth (i) the Purchased Percentage for each Acquiring Note Purchaser, (ii) the revised Maximum Commitment Amounts of the Transferor and each Acquiring Note Purchaser, (iii) the revised Maximum Investor Group Principal Amounts for the Investor Groups of the Transferor and each Acquiring Note Purchaser (it being understood that if the Transferor was part of a Conduit Investor’s Investor Group and the Acquiring Note Purchaser is intended to be part of the same Investor Group, there will not be any change to the Maximum Investor Group Principal Amount for that Investor Group) and (iv) administrative information with respect to each Acquiring Note Purchaser and its related Funding Agent.
This Assignment and Assumption Agreement and all matters arising under or in any manner relating to this Assignment and Assumption Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to any choice of law or conflict
provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York, and the obligations, rights and remedies of the parties hereto shall be determined in accordance with such law.
ALL PARTIES HEREUNDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ON THE SERIES 2022-1 CLASS A-1 NOTE PURCHASE AGREEMENT, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS ASSIGNMENT AND ASSUMPTION AGREEMENT OR THE SERIES 2022-1 AMENDED AND RESTATED CLASS A-1 NOTE PURCHASE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE PARTIES IN CONNECTION HEREWITH OR THEREWITH. ALL PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SIGNIFICANT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS ASSIGNMENT AND ASSUMPTION AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to be executed by their respective duly authorized officers as of the date first set forth above.
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| | [ ], as Transferor | |
| | | | | | |
| | By: _______________________________ | |
| | | Name: | | | |
| | | Title: | | | |
| | | | | | |
| | By: _______________________________ | |
| | | Name: | | | |
| | | Title: | | | |
| | | | | | |
| | [ ], as Acquiring Note Purchaser | |
| | | | | | |
| | By: _______________________________ | |
| | | Name: | | | |
| | | Title: | | | |
| | | | | | |
| | [ ], as Funding Agent | |
| | | | | | |
| | By: _______________________________ | |
| | | Name: | | | |
| | | Title: | | | |
| | | | | | | | | | | | | | |
| | CONSENTED AND ACKNOWLEDGED BY THE ISSUER: |
| | | | |
| | WINGSTOP FUNDING LLC, |
| | as the Issuer | | |
| | | | |
| | By: _____________________________ |
| | Name: | | |
| | Title: | | |
| | | | |
| | | | |
| | | | | | | | | | | | | | |
| | CONSENTED BY: |
| | | | |
| | MORGAN STANLEY BANK, N.A., |
| | AS L/C Provider | |
| | | | |
| | By: _____________________________ |
| | Name: | | |
| | Title: | | |
| | | | |
| | | | |
SCHEDULE I TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
LIST OF ADDRESSES FOR NOTICES
AND OF MAXIMUM COMMITMENT AMOUNTS
| | | | | | | | |
[____________________], as Transferor
Prior Maximum Commitment Amount: $[ | ] | |
| Revised Maximum Commitment Amount: | $[ | ] |
| Prior Maximum Investor Group | | |
Principal Amount: $[ | ] | |
| Revised Maximum Investor | | |
Group Principal Amount: $[ | ] | |
Related Conduit Investor (if applicable) [ | ] | |
| [ | ], as | |
Acquiring Note Purchaser Address:
Attention:
Telephone:
Email:
Purchased Percentage of Transferor’s Commitment: [ ]%
Prior Maximum Commitment Amount: $[ ]
Revised Maximum Commitment Amount: $[ ]
Prior Maximum Investor Group
Principal Amount: $[ ]
Revised Maximum Investor Group Principal Amount: $[ ]
Related Conduit Investor (if applicable) [ ]
[_____________________], as related Funding Agent
Address:
Attention:
Telephone:
Email:
EXHIBIT C TO CLASS A-1
NOTE PURCHASE AGREEMENT
INVESTOR GROUP SUPPLEMENT, dated as of [ ], among (i) [ ] (the “Transferor Investor Group”), (ii) [ ] (the “Acquiring Investor Group”), (iii) the Funding Agent with respect to the Acquiring Investor Group listed on the signature pages hereof (each, a “Funding Agent”), and (iv) the Issuer and the L/C Provider listed on the signature pages hereof.
W I T N E S S E T H:
WHEREAS, this Investor Group Supplement is being executed and delivered in accordance with Section 9.17(c) of that certain Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement, dated as of December 3, 2024 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement”; terms defined therein being used herein as therein defined) among Wingstop Funding LLC, as Issuer, the Guarantors party thereto, Wingstop Restaurants Inc., as the Manager, the Conduit Investors, the Note Purchasers for each Investor Group, the Funding Agents, Morgan Stanley Bank, N.A., as L/C Provider and Morgan Stanley Asset Funding Inc. and Administrative Agent;
WHEREAS, the Acquiring Investor Group wishes to become a Conduit Investor and [a] Note Purchaser[s] with respect to such Conduit Investor under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement; and
WHEREAS, the Transferor Investor Group is selling and assigning to the Acquiring Investor Group [all] [a portion of] its respective rights, obligations and commitments under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement, the Series 2022-1 Class A-1 Advance Notes and each other Transaction Document to which it is a party with respect to the percentage of its Maximum Commitment Amount specified on Schedule I attached hereto;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Upon the execution and delivery of this Investor Group Supplement by the Acquiring Investor Group, each related Funding Agent with respect thereto, the Transferor Investor Group, the L/C Provider and, to the extent required by Section 9.17(c) of the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement (the date of such execution and delivery, the “Transfer Issuance Date”) the Issuer, the Conduit Investor and the Note Purchaser[s] with respect to the Acquiring Investor Group shall be parties to the Series 2022-1 Class A-1 Amended and Restated Note Purchase Agreement for all purposes thereof.
The Transferor Investor Group acknowledges receipt from the Acquiring Investor Group of an amount equal to the purchase price, as agreed between the Transferor Investor Group and the Acquiring Investor Group (the “Purchase Price”), of the portion being purchased by the Acquiring Investor Group (the Acquiring Investor Group’s “Purchased Percentage”) of (i) the aggregate Commitment[s] of the Note Purchaser[s] included in the Transferor Investor Group under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement and (ii) the aggregate related Note Purchaser Percentage[s] of the related Investor Group Principal Amount. The Transferor Investor Group hereby irrevocably sells, assigns and transfers to the Acquiring Investor Group, without recourse, representation or warranty, and the Acquiring Investor Group hereby irrevocably purchases, takes and assumes from the Transferor Investor Group, such Acquiring Investor Group’s Purchased Percentage of (x) the aggregate Commitment[s] of the Note Purchaser[s] included in the Transferor Investor Group
under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement and (y) the aggregate related Note Purchaser Percentage[s] of the related Investor Group Principal Amount.
The Transferor Investor Group has made arrangements with the Acquiring Investor Group with respect to (i) the portion, if any, to be paid, and the date or dates for payment, by the Transferor Investor Group to such Acquiring Investor Group of any program fees, undrawn facility fee, structuring fees or other fees (collectively, the “Fees”) [heretofore received] by the Transferor Investor Group pursuant to Section 3.02 of the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement prior to the Transfer Issuance Date [and (ii) the portion, if any, to be paid, and the date or dates for payment, by such Acquiring Investor Group to the Transferor Investor Group of Fees or [ ] received by such Acquiring Investor Group pursuant to the Series 2022-1 Supplement from and after the Transfer Issuance Date].
From and after the Transfer Issuance Date, amounts that would otherwise be payable to or for the account of the Transferor Investor Group pursuant to the Series 2022-1 Supplement or the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement shall, instead, be payable to or for the account of the Transferor Investor Group and the Acquiring Investor Group, as the case may be, in accordance with their respective interests as reflected in this Investor Group Supplement, whether such amounts have accrued prior to the Transfer Issuance Date or accrue subsequent to the Transfer Issuance Date.
Each of the parties to this Investor Group Supplement agrees that at any time and from time to time upon the written request of any other party, it will execute and deliver such further documents and do such further acts and things as such other party may reasonably request in order to effect the purposes of this Investor Group Supplement.
The Acquiring Investor Group has executed and delivered to the Administrative Agent a Purchaser’s Letter substantially in the form of Exhibit D to the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement.
By executing and delivering this Investor Group Supplement, the Transferor Investor Group and the Acquiring Investor Group confirm to and agree with each other and the other parties to the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement as follows: (i) other than the representation and warranty that it is the legal and beneficial owner of the interest being assigned hereby free and clear of any adverse claim, the Transferor Investor Group makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Series 2022-1 Supplement, the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Indenture, the Series 2022-1 Class A-1 Notes, the Transaction Documents or any instrument or document furnished pursuant thereto; (ii) the Transferor Investor Group makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Issuer or the performance or observance by the Issuer of any of the Issuer’s obligations under the Indenture, the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement, the Transaction Documents or any other instrument or document furnished pursuant thereto; (iii) the Acquiring Investor Group confirms that it has received a copy of the Indenture, the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement and such other Transaction Documents and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Investor Group Supplement; (iv) the Acquiring Investor Group will, independently and without reliance upon the Administrative Agent, the Transferor Investor Group, the Funding Agents or any other Person and based
on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement; (v) the Acquiring Investor Group appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with Article V of the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement; (vi) each member of the Acquiring Investor Group appoints and authorizes its related Funding Agent, listed on Schedule I hereto, to take such action as agent on its behalf and to exercise such powers under the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement as are delegated to such Funding Agent by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with Article V of the Series 2022-1 Class A-1 Note Purchase Agreement; (vii) each member of the Acquiring Investor Group agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement are required to be performed by it as a member of the Acquiring Investor Group; and (viii) each member of the Acquiring Investor Group hereby represents and warrants to the Issuer and the Manager that: (A) it has had an opportunity to discuss the Issuer’s and the Manager’s business, management and financial affairs, and the terms and conditions of the proposed purchase, with the Issuer and the Manager and their respective representatives; (B) it is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of investing in, and is able and prepared to bear the economic risk of investing in, the Series 2022-1 Class A-1 Notes; (C) it is purchasing the Series 2022-1 Class A-1 Notes for its own account, or for the account of one or more “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that meet the criteria described in clause (viii)(B) above and for which it is acting with complete investment discretion, for investment purposes only and not with a view to distribution, subject, nevertheless, to the understanding that the disposition of its property shall at all times be and remain within its control, and neither it nor its Affiliates has engaged in any general solicitation or general advertising within the meaning of the Securities Act with respect to the Series 2022-1 Class A-1 Notes; (D) it understands that (I) the Series 2022-1 Class A-1 Notes have not been and will not be registered or qualified under the Securities Act or any applicable state securities laws or the securities laws of any other jurisdiction and are being offered only in a transaction not involving any public offering within the meaning of the Securities Act and may not be resold or otherwise transferred unless so registered or qualified or unless an exemption from registration or qualification is available and an opinion of counsel shall have been delivered in advance to the Issuer, (II) the Issuer is not required to register the Series 2022-1 Class A-1 Notes, (III) any permitted transferee hereunder must meet the criteria described under clause (viii)(B) above and (IV) any transfer must comply with the provisions of Section 2.8 of the Base Indenture, Section 4.3 of the Series 2022-1 Supplement and Section 9.03 or 9.17, as applicable, of the Series 2022-1 Class A-1 Note Purchase Agreement; (E) it will comply with the requirements of clause (viii)(D) above in connection with any transfer by it of the Series 2022-1 Class A-1 Notes; (F) it understands that the Series 2022-1 Class A-1 Notes will bear the legend set out in the form of Series 2022-1 Class A-1 Notes attached to the Series 2022-1 Supplement and be subject to the restrictions on transfer described in such legend; (G) it will obtain for the benefit of the Issuer from any purchaser of the Series 2022-1 Class A-1 Notes substantially the same representations and warranties contained in the foregoing paragraphs; and (H) it has executed a Purchaser’s Letter substantially in the form of Exhibit D to the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement.
Schedule I hereto sets forth (i) the Purchased Percentage for the Acquiring Investor Group, (ii) the revised Maximum Commitment Amounts of the Transferor Investor Group and the
Acquiring Investor Group, (iii) the revised Maximum Investor Group Principal Amounts for the Transferor Investor Group and the Acquiring Investor Group and (iv) administrative information with respect to the Acquiring Investor Group and its related Funding Agent.
This Investor Group Supplement and all matters arising under or in any manner relating to this Investor Group Supplement shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to any choice of law or conflict provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York, and the obligations, rights and remedies of the parties hereto shall be determined in accordance with such law.
ALL PARTIES HEREUNDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ON THE SERIES 2022-1 CLASS A-1 NOTE PURCHASE AGREEMENT, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS INVESTOR GROUP SUPPLEMENT OR THE SERIES 2022-1 AMENDED AND RESTATED CLASS A-1 NOTE PURCHASE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE PARTIES IN CONNECTION HEREWITH OR THEREWITH. ALL PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SIGNIFICANT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS INVESTOR GROUP SUPPLEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Investor Group Supplement to be executed by their respective duly authorized officers as of the date first set forth above.
| | | | | | | | | | | | | | |
| | [ ], as Transferor Investor Group |
| | | | |
| | By: _________________________________________ |
| | Name: | | |
| | Title: | | |
| | | | |
| | [ ], as Acquiring Investor Group |
| | By: _________________________________________ |
| | Name: | | |
| | Title: | | |
| | | | |
| | [ ], as Funding Agent |
| | By: _________________________________________ |
| | Name: | | |
| | Title: | | |
| | | | | | | | | | | | | | |
| | | CONSENTED AND ACKNOWLEDGED |
| | | BY THE ISSUER: |
| | | | |
| | | WINGSTOP FUNDING LLC, |
| | | as the Issuer | |
| | | | |
| | | By: __________________________________ |
| | | Name: | |
| | | Title: | |
| | | | |
| | | | | | | | | | | | | | |
| | | CONSENTED BY: | |
| | | | |
| | | MORGAN STANLEY BANK, N.A., |
| | | as L/C Provider | |
| | | | |
| | | By: ___________________________________ |
| | | Name: | |
| | | Title: | |
| | | | |
| | | | |
SCHEDULE I TO
INVESTOR GROUP SUPPLEMENT
LIST OF ADDRESSES FOR NOTICES
AND OF MAXIMUM COMMITMENT AMOUNTS
[____________________], as Transferor Investor Group
Prior Maximum Commitment Amount: $[ ]
Revised Maximum Commitment Amount: $[ ]
Prior Maximum Investor Group
Principal Amount: $[ ]
Revised Maximum Investor
Group Principal Amount: $[ ]
[_______________________], as Acquiring Investor Group
Address:
Attention:
Telephone:
Email:
Purchased Percentage of
Transferor Investor Group’s Commitment: [_______]%
Prior Maximum Commitment Amount: $[________]
Revised Maximum Commitment Amount: $[______]
Prior Maximum Investor Group
Principal Amount: $[________]
Revised Maximum Investor
Group Principal Amount: $[_______]
[_________________________________], as related Funding Agent
Address:
Attention:
Telephone:
Email:
EXHIBIT D TO CLASS A-1
NOTE PURCHASE AGREEMENT
[FORM OF PURCHASER’S LETTER]
[PURCHASER]
[PURCHASER ADDRESS]
Attention: [PURCHASER CONTACT] [Date]
Ladies and Gentlemen:
Reference is hereby made to the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement dated as of December 3, 2024 (the “NPA”) relating to the purchase and sale (the “Transaction”) of up to $300,000,000 of Series 2022-1 Variable Funding Senior Notes, Class A-1 (the “VFN Notes”) of Wingstop Funding LLC (the “Issuer”). The Transaction will not be required to be registered with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”). Morgan Stanley Asset Funding Inc. is acting as administrative agent (the “Administrative Agent”) in connection with the Transaction. Unless otherwise defined herein, capitalized terms have the definitions ascribed to them in the NPA. Please confirm with us your acknowledgement and agreement with the following:
a.You are an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act (an “Accredited Investor”) and have sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of purchasing, and are able and prepared to bear the economic risk of purchasing, the VFN Notes.
b.Neither the Administrative Agent nor its Affiliates (i) has provided you with any information with respect to the Issuer, the VFN Notes or the Transaction other than the information contained in the NPA, which was prepared by the Issuer, or (ii) makes any representation as to the credit quality of the Issuer or the merits of a purchase of the VFN Notes. The Administrative Agent has not provided you with any legal, business, tax or other advice in connection with the Transaction or your possible purchase of the VFN Notes.
c.You acknowledge that you have completed your own diligence investigation of the Issuer and the VFN Notes and have had sufficient access to the agreements, documents, records, officers and directors of the Issuer to make your investment decision related to the VFN Notes. You further acknowledge that you have had an opportunity to discuss the Issuer’s and the Manager’s business, management and financial affairs, and the terms and conditions of the proposed purchase, with the Issuer and the Manager and their respective representatives.
d.The Administrative Agent may currently or in the future own securities issued by, or have business relationships (including, among others, lending, depository, risk management, advisory and banking relationships) with, the Issuer and its affiliates, and the Administrative Agent will manage such security positions and business relationships as it determines to be in its best interests, without regard to the interests of the holders of the VFN Notes.
e.You are purchasing the VFN Notes for your own account, or for the account of one or more Persons who are Accredited Investors and who meet the criteria described in paragraph (a) above and for whom you are acting with complete investment discretion, for investment purposes only and not with a view to a distribution (but without prejudice to our right at all times to sell or otherwise dispose of the VFN Notes in accordance with clause (f) below), subject, nevertheless, to the understanding that the disposition of your property shall at all times be and remain within your control, and neither you nor your Affiliates has engaged in any general solicitation or general advertising within the meaning of the Securities Act, or the rules and regulations promulgated thereunder with respect to the VFN Notes. You confirm that, to the extent you are purchasing the VFN Notes for the account of one or more other Persons, (i) you have been duly authorized to make the representations, warranties, acknowledgements and agreements set forth herein on their behalf and (ii) the provisions of this letter constitute legal, valid and binding obligations of you and any other Person for whose account you are acting;
f.You understand that (i) the VFN Notes have not been and will not be registered or qualified under the Securities Act or any applicable state securities laws or the securities laws of any other jurisdiction and are being offered only in a transaction not involving any public offering within the meaning of the Securities Act and may not be resold or otherwise transferred unless so registered or qualified or unless an exemption from registration or qualification is available and an opinion of counsel shall have been delivered in advance to the Issuer, (ii) the Issuer is not required to register the VFN Notes, (iii) any permitted transferee under the NPA must be an Accredited Investor and (iv) any transfer must comply with the provisions of Section 2.8 of the Base Indenture, Section 4.3 of the Series 2022-1 Supplement and Section 9.03 or 9.17 of the NPA, as applicable;
g.You will comply with the requirements of paragraph (f) above in connection with any transfer by you of the VFN Notes;
h.You understand that the VFN Notes will bear the legend set out in the form of VFN Notes attached to the Series 2022-1 Supplement and be subject to the restrictions on transfer described in such legend;
i.Either (i) you are neither a Plan (including, without limitation, an entity whose underlying assets include “plan assets” by reason of a Plan’s investment in the entity or otherwise), nor a governmental, church, non-U.S. or other plan that is subject to any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or (ii) your acquisition, holding and disposition of the VFN Notes will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or, in the case of a governmental, church, non-U.S. or other plan, a non-exempt violation under any Federal, state, local, or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code; and
j.You will obtain for the benefit of the Issuer from any purchaser of the VFN Notes substantially the same representations and warranties contained in the foregoing paragraphs.
This letter agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice of law or conflict provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
You understand that the Administrative Agent will rely upon this letter agreement in acting as an Administrative Agent in connection with the Transaction. You agree to notify the Administrative Agent promptly in writing if any of your representations, acknowledgements or agreements herein cease to be accurate and complete. You irrevocably authorize the Administrative Agent to produce this letter to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters set forth herein.
| | | | | | | | | | | | | | |
| | MORGAN STANLEY ASSET FUNDING |
| | INC., as Administrative Agent |
| | | | |
| | By: _________________ |
| | Name: |
| | Title: |
| | | | |
| | Agreed and Acknowledged: |
| | | | |
| | [PURCHASER] |
| | | | |
| | By: _________________ |
| | Name: |
| | Title: |
EXHIBIT E TO CLASS A-1
NOTE PURCHASE AGREEMENT
[FORM OF TCAP NOTICE]
MORGAN STANLEY ASSET FUNDING INC. TCAP Notice No. [_]
1585 Broadway, 24th Floor
New York, New York 10036
Attention: Victoria Elduff
Ladies and Gentlemen:
The undersigned (“Issuer”) executes and delivers this TCAP Notice (“TCAP Notice”) as of [___] [_] 20[_], in connection with the Series 2022-1 Amended and Restated Class A-1 Note Purchase Agreement, dated as of December 3, 2024 (as amended, restated, supplemented or otherwise modified from time to time, the “NPA”), by and among Wingstop Funding LLC, as Issuer, the Guarantors party thereto, Wingstop Restaurants Inc., as the Manager, the Conduit Investors, the Note Purchasers for each Investor Group, the Funding Agents, Morgan Stanley Bank, N.A. as L/C Provider and Morgan Stanley Asset Funding Inc.as Administrative Agent. All capitalized terms used in this TCAP Notice without definition shall have the same meanings herein as they have in the NPA.
The undersigned hereby acknowledges that the delivery of this TCAP Notice and the acceptance by the undersigned of the TCAP Amount requested hereby constitute a representation and warranty by the undersigned that, on the date of such TCAP Amount, and before and after giving effect thereto and to the application of any proceeds therefrom, all conditions set forth in Section 7.03 of the NPA have been satisfied and all statements set forth in Section 6.01 of the NPA are true and correct.
Pursuant to Section 2.06(a) of the NPA, Issuer hereby requests:
A TCAP Amount of $[________]5;
after giving effect to such TCAP Amount, the amount of the Series 2022-1 Class A-1 Notes Maximum Principal Amount shall be $[_____]6;
the proposed commencement date of the Temporary Commitment Availability Period is [____] [__], 20[_] (the “Effective Date”)7;and
this is the [first/second] TCAP notice to be delivered this calendar year8.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGE FOLLOWS]
5 Minimum of $10,00,000 and integral multiples of $500,000 in excess thereof
6 Not to exceed $300,000,000
7 At least 10 Business Days form the date of the notice
8 No more than two per year
| | | | | | | | | | | | | | |
| | WINGSTOP FUNDING LLC, |
| | as the Issuer |
| | |
| | By: ________________________ |
| | Name:______________________ |
| | Title: _______________________ |
| | | | |
| ACKNOWLEDGED AND AGREED: | | | |
| | |
| MORGAN STANLEY ASSET FUNDING INC., | | |
| as Administrative Agent | | | |
| | | |
| By: _________________________ | | | |
| Name: _______________________ | | | |
| Title: ____________________ | | | |
| | | | |
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