smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 1 of 20

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1 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 1 of 20 WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Gary T. Holtzer Robert J. Lemons Kelly DiBlasi Matthew P. Goren Attorneys for Debtors and Debtors in Possession Hearing Date and Time: February 12, 2019 at 10:00 a.m. (Eastern Time) Objection Deadline: February 5, 2019 at 4:00 p.m. (Eastern Time) UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x : In re : Chapter 11 : WAYPOINT LEASING : Case No (SMB) HOLDINGS LTD., et al., : : (Jointly Administered) Debtors. : x NOTICE OF HEARING AND APPLICATION OF DEBTORS PURSUANT TO 11 U.S.C. 327 AND 328 AND FED. R. BANKR. P AND 2016 AUTHORIZING DEBTORS TO RETAIN ACCENTURE LLP AS CORPORATE ADVISOR NUNC PRO TUNC TO THE PETITION DATE PLEASE TAKE NOTICE that on November 25, 2018, Waypoint Leasing Holdings Ltd. and certain of its subsidiaries and affiliates, as debtors and debtors in possession (collectively, the Debtors ) each filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code with the United States Bankruptcy Court for the Southern District of New York (the Court ). PLEASE TAKE FURTHER NOTICE that on January 24, 2019, the Debtors filed with the Court the annexed Application of Debtors Pursuant to 11 U.S.C. 327 and 328 and Fed.

2 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 2 of 20 R. Bankr. P and 2016 Authorizing Debtors to Retain Accenture LLP as Corporate Advisor Nunc Pro Tunc to the Petition Date (the Application ). PLEASE TAKE FURTHER NOTICE that a hearing to consider approval of the Application is scheduled for February 12, 2019, at 10:00 a.m. (Eastern Time) or as soon thereafter as counsel may be heard before the Honorable Stuart M. Bernstein, United States Bankruptcy Judge, United States Bankruptcy Court for the Southern District of New York, One Bowling Green, New York, New York PLEASE TAKE FURTHER NOTICE that any responses or objections (collectively, the Objections ) to the Application must be in writing, shall conform to the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules for the Southern District of New York, and shall be filed with the Bankruptcy Court (a) by attorneys practicing in the Court, including attorneys admitted pro hac vice, electronically in accordance with General Order M-399 (which can be found at files/m399.pdf), and (b) by all other parties in interest, on a CD-ROM, in text-searchable portable document format (PDF) (with a hard copy delivered directly to the chambers of the Court), in accordance with the customary practices of the Court and General Order M-399, to the extent applicable, and served in accordance with General Order M-399 and the Final Order Pursuant to 11 U.S.C. 105(a) and Fed. R. Bankr. P. 1015(c), 2002(m), and 9007 Implementing Certain Notice and Case Management Procedures [ECF No. 155] (the Case Management Order ) so as to be received no later than February 5, 2019 at 4:00 p.m. (Eastern Time) (the Objection Deadline ). PLEASE TAKE FURTHER NOTICE that notice of this Application will be provided in accordance with the procedures set forth in the Case Management Order. 2

3 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 3 of 20 PLEASE TAKE FURTHER NOTICE that if no Objections are timely filed and served with respect to the Application, the Debtors may, on or after the Objection Deadline, submit to the Court an order substantially in the form of the proposed order annexed to the Application, which order may then be entered by the Court with no further notice or opportunity to be heard. Dated: January 24, 2019 New York, New York _/s/ Robert J. Lemons WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Gary T. Holtzer Robert J. Lemons Kelly DiBlasi Matthew P. Goren Attorneys for Debtors and Debtors in Possession 3

4 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 4 of 20 WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Gary T. Holtzer Robert J. Lemons Kelly DiBlasi Matthew P. Goren Attorneys for Debtors and Debtors in Possession Hearing Date and Time: February 12, 2019 at 10:00 a.m. (Eastern Time) Objection Deadline: February 5, 2019 at 4:00 p.m. (Eastern Time) UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x : In re : Chapter 11 : WAYPOINT LEASING : Case No (SMB) HOLDINGS LTD., et al., : : (Jointly Administered) Debtors. 1 : x APPLICATION OF DEBTORS PURSUANT TO 11 U.S.C. 327 AND 328 AND FED. R. BANKR. P AND 2016 AUTHORIZING DEBTORS TO RETAIN ACCENTURE LLP AS CORPORATE ADVISOR NUNC PRO TUNC TO THE PETITION DATE TO THE HONORABLE STUART M. BERNSTEIN, UNITED STATES BANKRUPTCY JUDGE: Waypoint Leasing Holdings Ltd. and certain of its subsidiaries and affiliates, as debtors and debtors in possession (collectively, the Debtors or the Company ) in the abovecaptioned chapter 11 cases (collectively, the Chapter 11 Cases ), respectfully represent as follows in support of this application (the Application ): 1 The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor s federal tax identification number, as applicable, are set forth on Exhibit A annexed hereto.

5 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 5 of 20 Relief Requested 1. By this application (the Application ), pursuant to sections 327(a) and 328(a) of title 11 of the United States Code (the Bankruptcy Code ), Rules 2014(a) and 2016 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), and Rules and of the Local Bankruptcy Rules for the Southern District of New York (the Local Rules ), the Debtors seek entry of an order, substantially in the form attached hereto as Exhibit B (the Proposed Order ), authorizing and approving the employment and retention of Accenture LLP, successor in interest to Seabury Corporate Advisors LLC and/or one or more of its affiliates (hereinafter, Accenture ), to serve as corporate advisor to the Debtors, effective nunc pro tunc to the Petition Date (as herein defined), in accordance with the terms and conditions set forth in that certain engagement letter dated as of June 22, 2018 (the Engagement Letter ), attached hereto as Exhibit C, and granting related relief. 2. In support of this Application, the Debtors submit the declaration of Michael B. Cox, attached hereto as Exhibit D and incorporated herein by reference. Jurisdiction 3. The Court has jurisdiction to consider this matter pursuant to 28 U.S.C. 157 and 1334, and the Amended Standing Order of Reference M-431, dated January 31, 2012 (Preska, C.J.). This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before the Court pursuant to 28 U.S.C and Background 4. On November 25, 2018 (the Petition Date ), the Debtors each commenced with this Court a voluntary case under chapter 11 of the Bankruptcy Code. The Debtors continue to operate their business and manage their properties as debtors in possession pursuant to sections 5

6 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 6 of (a) and 1108 of the Bankruptcy Code. No trustee, examiner, or statutory committee of creditors has been appointed in these Chapter 11 Cases. 5. The Debtors Chapter 11 Cases have been jointly administered for procedural purposes only pursuant to Bankruptcy Rule 1015(b). 6. Additional information regarding the Debtors business, capital structure, and the circumstances leading to the commencement of these Chapter 11 Cases is set forth in the Declaration of Todd K. Wolynski Pursuant to L. Bankr. R (the Wolynski Declaration ) and the Declaration of Robert A. Del Genio in Support of First Day Motions and Applications (the Del Genio Declaration and, together with the Wolynski Declaration, the First Day Declarations ), which are incorporated herein by reference. 2 Accenture s Qualifications 7. The Debtors have determined, in the exercise of their business judgment, that the size and complexity of their business requires the services of a capable and experienced advisory firm to focus primarily on aircraft-related issues. Accenture, successor in interest to Seabury Corporate Advisors LLC, is well-qualified to provide such corporate advice and related services to the Debtors. 8. As detailed in the Cox Declaration, Accenture restructuring and reorganization advisory line of business is one of the leading advisory services providers to companies and creditors in restructurings and bankruptcies. In particular, Accenture s professionals have extensive experience working with financially troubled airlines, aviation, and aerospace companies in complex financial restructurings, providing such clients with fleet 2 Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the First Day Declarations. 6

7 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 7 of 20 optimization advice, new and used aircraft advisory services, OEM strategies, 3 and cost reduction and operations optimization work. Experienced advisors and consultants such as the professionals at Accenture fulfill a critical service that complements (and does not duplicate) the services provided by the Debtors other restructuring professionals. 9. Accenture has one the largest restructuring and management consulting practices in the world dedicated to the transportation and aerospace sectors as well as the aviation industry specifically. Accenture has extensive experience working with financially troubled companies in this sector in complex financial restructurings, both out of court and in chapter 11 cases. Accenture has served as advisor with respect to financial restructurings, new capital raising, aircraft advisory services, and other advisory assignments to some of the world s largest and most sophisticated aviation companies, including CHC Group Ltd., Republic Airways, American Airlines, Air Canada, America West Airlines, Frontier Airlines, Avianca, Continental Airlines, Northwest Airlines, Pinnacle Airlines, and US Airways Group, among others. 10. The Debtors have selected Accenture as its corporate advisor based upon, among other things, (a) the Debtors need to retain a corporate advisory firm to focus primarily on aircraft-related issues and to provide advice with respect to the restructuring and (b) Accenture s extensive experience and excellent reputation in providing aircraft-related advisory services in complex chapter 11 cases. The Debtors further believe that Accenture is well-qualified to provide its services to the Debtors in a cost-effective, efficient and timely manner. 3 The term OEM stands for original equipment manufacturers and herein generally refers to aircraft manufacturers. 7

8 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 8 of 20 Accenture s Prepetition Services 11. Beginning in June 2018, the Weil, Gotshal & Manges LLP, on behalf of the Debtors, engaged Accenture as its corporate advisor to assist the Debtors in evaluating alternatives with respect to their fleet and capital structure. In this regard, Accenture engaged in extensive due diligence of the Debtors businesses, including their operations, fleet composition, contractual arrangements, and lease agreements. Accenture performed diligence on the Debtors business plan and utilized the business plan to analyze the Debtors cash flows and liquidity as part of its fleet optimization analysis. The business plan and underlying financial models enabled Accenture and the Debtors to formulate fleet optimization alternatives and negotiating strategies with lenders and lessors. Accenture participated in numerous meetings of the Debtors Board of Directors throughout its retention and, along with the Debtors other advisors, assisted management in presenting the business plan and a restructuring framework to certain creditor groups. Additionally, Accenture assisted the Debtors with the development of various programs designed to properly incentivize and retain certain of the Debtors employees during these Chapter 11 Cases. 12. In rendering prepetition services to the Debtors in connection with these matters, Accenture has worked closely with the Debtors management and other retained professionals and has become well-acquainted with the Debtors business operations, capital structure, and key creditors and other stakeholders. Accordingly, Accenture has developed significant expertise regarding the Debtors that will assist it in providing effective and efficient services during these Chapter 11 Cases. Should the Court approve the Debtors retention of Accenture as corporate advisor, Accenture will continue, without interruption, to perform the services for the Debtors as described herein. 8

9 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 9 of 20 Scope of Services 13. Subject to further order of the Court, and as set forth in the Cox Declaration and the Engagement Letter, and in consideration for the compensation contemplated therein, Accenture will provide certain corporate advisory services (collectively, the Services ) with respect to the Chapter 11 Cases. Specifically, Accenture has been and will continue to render the following Services, among others, to the Debtors: 4 a. General Advisory Services i. Performing analysis of the Debtors debt financing agreements and OEM obligations, including mark-to-market under multiple scenarios including a valuation of the underlying collateral for each agreement and/or obligation; ii. iii. iv. Performing analysis and valuation of each of the Debtors lease arrangements with customers including net present value of existing rental streams and expected future residual values; Creating a claims analysis of each of the Debtors debt transactions and any under-collateralization or over-collateralization valuation for use in negotiation and potential alternative restructuring scenarios; Developing lender negotiation strategies for multiple scenarios including counterparty motivations and interdependency of fleet negotiation strategies to the Debtors overall business plan; v. Assisting the Debtors and the Debtors advisors in negotiating with lender and OEM counterparties; vi. vii. Assisting the Debtors and the Debtors advisors in developing appropriate presentations in conjunction with counterparty negotiations; and Assisting the Debtors and the Debtors advisors in negotiation and closing agreements related to aircraft. b. Restructuring Services i. Providing strategic advice with regard to restructuring, reorganizing, or refinancing of the Debtors obligations; 4 The following summary is provided for convenience only and is qualified in its entirety by reference to the Engagement Letter. To the extent there exists any inconsistency between this summary and the terms of the Engagement Letter, the Engagement Letter shall control. Unless otherwise defined in this section and the section titled Professional Compensation, capitalized terms shall have the meanings ascribed to them in the Engagement Letter. 9

10 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 10 of 20 ii. iii. Participating in commercial negotiations with the Debtors advisors and parties in interest; and Providing testimony as may be requested by the Debtors or required by the Bankruptcy Court in connection with an in-court restructuring process in support of any plan for reorganization, approval of financing, and/or in support of aircraft refinancing. c. Other Consulting Services i. Talent Management ii. iii. iv. Assisting the management team in reviewing the organizational structure to identify potential changes to support the go-forward business plan; Identifying future talent needs and gaps created by the business plan; and Undertaking specific recruitment planning and talent sourcing activities to identify potential external sources for talent gaps; Compensation Market Review Conducting an external market review of the level and mix of total compensation, including variable compensation; and Advising the Debtors regarding changes to base salary and/or target incentives to be competitive within the market; Key Employee Incentive Plan ( KEIP ) Designing and implementing a KEIP for certain employees during the chapter 11 process; Identifying KEIP parameters, including eligibility, target payouts, performance metrics, and payout timing; Benchmarking the KEIP to external market practices, including the leasing industry and other chapter 11 cases; Modelling project KEIP costs; and Assisting in the preparation of KEIP documentation for Court approval; Short-Term Incentive Plan ( STIP ) Designing and implementing a STIP for the 2019 fiscal year; Identifying STIP parameters, including objectives, eligibility, target payouts, performance metrics, and payout timing; and Benchmarking the STIP to external market practices and modelling projected costs; 10

11 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 11 of 20 v. Long-Term Incentives Designing and implementing long-term incentives for senior executives and managers; Advising the Debtors on the design and allocation of long-term incentives for key employees, including plan size, eligibility, equity considerations, vesting terms and timing, and termination provisions; Modelling individual and total allocation of the available share pool; and Reviewing existing severance provisions and agreements and providing recommendations regarding potential changes. 14. Should the Debtors request Accenture to perform additional services not contemplated by the Engagement Letter, the Debtors and Accenture shall mutually agree upon such services and fees for those services in writing, in advance. In the event the additional services require an amendment to the Engagement Letter, the amendment will be subject to the Court s review upon proper application by the Debtors. 15. The Debtors respectfully request that Accenture s retention be made effective nunc pro tunc to the Petition Date so that Accenture may be compensated for the services it has provided before this Application is heard by the Court. Accenture has provided services to the Debtors in advance of approval of this Application in anticipation that its retention would be approved nunc pro tunc to the Petition Date. As further described below, the Debtors submit that these circumstances are of a nature warranting retroactive approval. Professional Compensation 16. As set forth in the Cox Declaration, the Debtors understand and have agreed that Accenture will apply to the Court for allowances of compensation and reimbursement of expenses in accordance with General Order M-412 (Order Establishing Procedures for Monthly Compensation and Reimbursement of Expenses of Professionals, dated December 21, 2010 (Gonzalez, C.J.)), Administrative Order M-447 (Amended Guidelines for Fees and Disbursements 11

12 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 12 of 20 for Professionals in Southern District of New York Bankruptcy Cases, dated January 29, 2013 (Morris, C.J.)), and the U.S. Trustee Guidelines for Reviewing Applications for Compensation and Reimbursement of Expenses Filed Under 11 U.S.C. 330 (Appendix A to 28 C.F.R. 58) (collectively, the Fee Guidelines ), the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any applicable orders of the Court, both in connection with this Application and any fee applications to be filed by Accenture in these Chapter 11 Cases, in accordance with the terms and conditions of the Engagement Letter. Moreover, the Debtors are advised that Accenture intends to make a reasonable effort to comply with the U.S. Trustee s requests for information and additional disclosures as set forth in the Fee Guidelines. 17. As of the Petition Date, Accenture did not hold a prepetition claim against the Debtors. As more fully described in the Engagement Letter, in consideration of the services provided by Accenture, the Debtors have agreed to pay Accenture during these Chapter 11 Cases the following fees (the Fees ): a. Consulting Retainer Fees: The Debtors agree to pay Accenture a monthly retainer fee (the Retainer Fee ) of one hundred and fifty thousand dollars ($150,000.00) and each month thereafter during the term of the Engagement Letter for Services provided. Fifty percent (50%) of all Retainer Fees paid in respect of any months following the sixth month of Accenture s engagement under the Engagement Letter shall be credited (without duplication) against any Restructuring Success Fee (as defined herein). For the avoidance of doubt, if the Restructuring Success Fee is not payable, there shall be no crediting of Retainer Fees. b. Restructuring Success Fee: The Debtors shall pay Accenture a success fee of $2,000,000 (the Restructuring Success Fee ) upon the closing of any Amendment Transaction or Recapitalization Transaction (each as defined in the Engagement Letter). d. Other Consulting Services Fee: The Debtors shall compensate Accenture, pursuant to the hourly rates set forth in the Engagement Letter, for services provided in connection with the development and/or implementation of any KEIP, KERP, or equity based incentive program for senior management, pursuant to the terms of the Engagement Letter. 12

13 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 13 of The Debtors shall, upon Accenture s request and in accordance with applicable orders of the Court, reimburse Accenture for its reasonable out-of-pocket expenses incurred from time to time in connection with its services hereunder (the Expenses ). Accenture bills its clients for its reasonable out-of-pocket Expenses including, but not limited to travel and accommodations, meals and incidentals, duplicating charges, printing costs, computer and research charges, messenger services, long-distance and cellular telephone calls, and facsimile charges. 19. The terms of the Engagement Letter were negotiated between the Debtors and Accenture and reflect the Debtors evaluation of the extensive work that has and will be performed by Accenture on behalf of the Debtors and its expertise in such matters. The Debtors likewise believe that the compensation structure is consistent with, and typical of, compensation arrangements entered into by Accenture and other comparable firms in connection with the rendering of similar services under similar circumstances. As a consequence of the discussions and arm s length negotiations, the Debtors believe that the compensation structure is reasonable, market-based, and designed to compensate Accenture fairly for its work and to cover customary overhead expenses. 20. The compensation arrangements contained in the Engagement Letter are highly beneficial to the Debtors estates as they provide certainty and proper inducement for Accenture to act expeditiously and prudently with respect to the matters for which it will be employed. Given the firm s expertise, the Debtors believe that Accenture is uniquely capable of providing the services that the Debtors require within the time requirements extant in the case. The Debtors are seeking to retain Accenture under section 328(a) of the Bankruptcy Code and, accordingly, the Debtors believe that Accenture s compensation should not be subject to any 13

14 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 14 of 20 additional standard of review under section 330 of the Bankruptcy Code and does not constitute a bonus or fee enhancement under applicable law; however, as is the practice for cases within this District, under the Proposed Order, the United States Trustee for Region 2 (the U.S. Trustee ) shall retain rights to respond or object to Accenture s application for compensation based on the reasonableness standard provided for in section 330 of the Bankruptcy Code; provided, that, with respect to the U.S. Trustee s retention of rights under section 330, it is understood and agreed that reasonableness for this purpose shall be evaluated by comparing the fees payable in these cases to fees paid to other consulting or investment banking firms offering comparable services in other chapter 11 cases and shall not be evaluated primarily on the basis of time committed or the length of these cases. 21. Subject to the Court s approval, and pursuant to the terms and conditions of the Engagement Letter, the Debtors understand that Accenture intends to apply to the Court for allowance of compensation and reimbursement of expenses for the Services in compliance with applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the Fee Guidelines, and any other applicable procedures and orders of the Court. The Debtors understand that Accenture intends to file fee applications for the allowance of compensation in accordance with applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any applicable orders of the Court, including any order granting this Application (to the extent compliance is not waived). 22. Accenture has advised the Debtors that it is not Accenture s general practice to keep detailed time records similar to those customarily maintained by attorneys or restructuring professionals, or to keep time records on a project category basis. Despite this general practice, Accenture intends to present to the Court reasonably detailed time records (in summary format) in 14

15 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 15 of 20 one half (.5) hour increments containing reasonably detailed descriptions of those services provided on behalf of the Debtors, the approximate time expended in providing those services, and the identity of the individuals providing those services. To the extent that Accenture would otherwise be required to submit more detailed time records for its professionals under the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the Fee Guidelines, or other applicable procedures and orders of the Court, the Debtors respectfully request that the Court waive such requirements. The Debtors submit that, given the nature of the services to be provided by Accenture, such billing format and associated time details will be sufficient for the Debtors and other parties-in-interest to make informed judgments regarding the nature and appropriateness of Accenture s fees and expenses. No Duplication of Services 23. It is necessary for the Debtors efforts to maximize the value of their assets that the Debtors employ Accenture to provide the foregoing professional services. The Debtors believe that the services performed by Accenture will not duplicate or overlap with the other services performed by the Debtors other retained consultants and advisors. Accenture understands that the Debtors have submitted, or intend to submit, separate applications to retain, among others Weil, Gotshal & Manges LLP, as counsel to the Debtors, FTI Consulting, Inc., as financial advisor, Kurtzman Carson Consultants, as claims, noticing, and administrative agent, Houlihan Lokey Capital Inc., as Investment Banker to the Debtors, A&L Goodbody, as counsel to the Debtors, and may retain additional professionals during the term of the Engagement Letter and, as set forth in the Cox Declaration, Accenture will use reasonable efforts to work cooperatively with the Debtors to avoid duplication of services. 15

16 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 16 of 20 Indemnification Provisions 24. The Engagement Letter also contains certain standard indemnification language with respect to Accenture s services. The Debtors believe the indemnification provisions are customary and reasonable terms of consideration for professionals such as Accenture for proceedings both out of court and in chapter 11. The terms and conditions of the Engagement Letter, including the indemnification provisions, were negotiated by the Debtors and Accenture at arm s length and in good faith. The Debtors respectfully submit that the indemnification provisions contained in the Engagement Letter are reasonable and in the best interest of the Debtors and its estate. Accordingly, as part of this Application, the Debtors request that the Court approve the indemnification provisions as set forth in the Engagement Letter and as modified pursuant to the Proposed Order. Accenture s Disinterestedness 25. To the best of the Debtors knowledge, and except as disclosed herein and in the Cox Declaration or schedules thereto: (a) Accenture has no connection to the Debtors, their significant creditors, or other significant related parties except as may be disclosed in the Cox Declaration; (b) Accenture does not hold any interest adverse to the Debtors estate for the matters for which Accenture is to be employed; and (c) Accenture is a disinterested person within the meaning of section 101(14) of the Bankruptcy Code, as required by section 327(a) of the Bankruptcy Code. Accordingly, the Debtors believe that Accenture is disinterested as such term is defined in section 101(14) of the Bankruptcy Code. 26. As described in more detail in the Cox Declaration, Accenture, among other things, searched its client databases to determine whether it represents, or has represented, certain of the Debtors creditors or other parties-in-interest in these proceedings, and/or matters wholly unrelated to these proceedings. Due to the size of Accenture and the number of creditors and other 16

17 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 17 of 20 parties involved in this case, however, Accenture may have represented certain of the Debtors creditors or other parties-in-interest in matters wholly unrelated to these Chapter 11 Cases and which it did not disclose in the Cox Declaration. 27. The Debtors have been informed that Accenture will conduct an ongoing review of its files to ensure that no disqualifying circumstances arise. If any new relevant facts or relationships are discovered, Accenture will file a supplemental disclosure with the Court. Accenture has not provided, and will not provide, any professional services to any of the creditors or other parties-in-interest with respect to any matter adverse to the Debtors in these Chapter 11 cases. Basis for Relief I. The Debtors Should Be Permitted to Retain and Employ Accenture Pursuant to Section 327(a) and 328(a) of Bankruptcy Code. 28. Section 327(a) of the Bankruptcy Code, which provides that a debtor is authorized to employ professional persons that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the [debtor] in carrying out the [debtor s] duties under this title. 11 U.S.C. 327(a). As discussed above and as further detailed in the Cox Declaration, to the best of the Debtors knowledge, Accenture is a disinterested person within the meaning of section 101(14) of the Bankruptcy Code, and does not hold or represent an interest adverse to the Debtors estates. 29. Further, the Debtors seek approval of the Engagement Letter, including the compensation set forth therein, pursuant to section 328(a) of the Bankruptcy Code, and submit that the retention of Accenture under the terms described in this Application are appropriate under section 328(a) of the Bankruptcy Code. 17

18 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 18 of Section 328(a) of the Bankruptcy Code authorizes the employment of a professional person on any reasonable terms and conditions of employment, including on a retainer U.S.C. 328(a). Section 328 permits the compensation of professionals on more flexible terms that reflect the nature of their services and market conditions. As the United States Court of Appeals for the Fifth Circuit has recognized: Prior to 1978 the most able professionals were often unwilling to work for bankruptcy estates where their compensation would be subject to the uncertainties of what a judge thought the work was worth after it had been done. That uncertainty continues under the present 330 of the Bankruptcy Code, which provides that the court award to professional consultants reasonable compensation based on relevant factors of time and comparable costs, etc. Under present 328 the professional may avoid that uncertainty by obtaining court approval of compensation agreed to with the trustee (or debtor or committee). In re National Gypsum Co., 123 F.3d 861, 862 (5th Cir. 1997) (internal citations omitted). 31. Furthermore, under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, certain modifications were made to section 328(a) of the Bankruptcy Code, which now provides as follows: The trustee, or a committee appointed under section 1102 of this title, with the court s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly bases, on a fixed percentage fee basis, or on a contingent fee basis. 11 U.S.C. 328(a). Section 328(a) of the Bankruptcy Code, as amended, makes clear that debtors may retain, subject to bankruptcy court approval, professionals on a fixed-fee basis such as in the Engagement Letter. 32. As indicated above, notwithstanding its retention pursuant to section 328(a) of the Bankruptcy Code, Accenture intends to submit applications for payment of compensation in these Chapter 11 Cases. Accenture intends to apply for compensation for professional services rendered and reimbursement of expenses incurred in connection with these Chapter 11 Cases, 18

19 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 19 of 20 pursuant to the procedures set forth in sections 330 and 331 of the Bankruptcy Code and applicable Bankruptcy Rules, Local Rules, the Fee Guidelines, and any other applicable procedures and orders of the Court, with certain limited modifications as set forth in the Proposed Order. 33. Furthermore, the fee structure is consistent with and typical of compensation arrangements entered into by Accenture and other comparable firms in connection with the rendering of similar services under similar circumstances. Accenture s strategic and financial expertise as well as its capital markets knowledge, financing skills, restructuring capabilities, and mergers and acquisitions expertise, some or all of which may be required by the Debtors during the term of Accenture s engagement, were all important factors in determining the fee structure. The Debtors believe that the ultimate benefit of Accenture s services cannot be measured by reference to the number of hours to be expended by Accenture s professionals in the performance of such services. Accordingly, the Debtors submit that the fee structure is both fair and reasonable under the standards set forth in section 328(a) of the Bankruptcy Code. 34. As mentioned above, the Debtors propose that, notwithstanding Accenture s retention under section 328(a) of the Bankruptcy Code, the U.S. Trustee will retain the right to object to the compensation to be paid to Accenture pursuant to the Engagement Agreement based on the reasonableness standard provided for in section 330 of the Bankruptcy Code, provided that reasonableness will take into account Accenture s prepetition services. II. Nunc Pro Tunc Relief is Warranted 35. The Debtors believe that employment of Accenture effective nunc pro tunc to the Petition Date is warranted under the circumstances of these Chapter 11 Cases so that Accenture may be compensated for its services prior to entry of an order approving Accenture s retention. Further, the Debtors believe that no party in interest will be prejudiced by the granting 19

20 smb Doc 298 Filed 01/24/19 Entered 01/24/19 15:23:10 Main Document Pg 20 of 20 of the nunc pro tunc employment because Accenture provided, and will continue to provide, valuable investment banking services to the Debtors estate, and has been doing so since the Petition Date. Notice 36. Notice of this Motion will be provided in accordance with the procedures set forth in the Interim Order Pursuant to 11 U.S.C. 105(A) and Fed. R. Bankr. P. 1015(C), 2002(M), And 9007 Implementing Certain Notice and Case Management Procedures, entered on December 12, 2018 [ECF No. 86] (the Case Management Order ). The Debtors respectfully submit that no further notice is required. 37. No previous request for the relief sought herein has been made by the Debtors to this or any other court. WHEREFORE the Debtors respectfully request entry of Proposed Order granting the relief requested herein and such other and further relief as the Court may deem just and appropriate. Dated: January 24, 2019 New York, New York Waypoint Leasing Holdings Ltd. (for itself and on behalf of its affiliates as Debtors and Debtors in Possession) /s/ Todd K. Wolynski Todd K. Wolynski General Counsel and Chief Administrative Officer 20

21 smb Doc Filed 01/24/19 Entered 01/24/19 15:23:10 Exhibit A - List of Debtors Pg 1 of 4 Exhibit A Debtor Last 4 Digits of Tax ID Number Debtor Last 4 Digits of Tax ID Number Waypoint Leasing Holdings Ltd AE Helicopter (5) Limited N/A Waypoint Leasing (Luxembourg) 7041 AE Helicopter (6) Limited N/A S.à r.l. Waypoint Leasing (Ireland) 6600 MSN Trust N/A Limited Waypoint Asset Co 10 Limited 2503 MSN Trust N/A MSN 2826 Trust N/A MSN Trust N/A MSN 2879 Trust N/A MSN Trust N/A Waypoint Asset Co 11 Limited 3073 MSN Trust N/A MSN 2905 Trust N/A MSN Trust N/A Waypoint Asset Co 12 Limited 0541 MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A Waypoint Asset Co 1E Limited 6089 MSN Trust N/A Waypoint Asset Euro 1F Limited 7099 MSN Trust N/A MSN Trust N/A MSN 9229 AS N/A Waypoint Asset Malta 1A Limited 2966 Waypoint Asset Co 3A Limited 6687 Waypoint Leasing Singapore MSN Trust N/A Pte. Limited Waypoint Leasing UK 1A Limited 2226 Waypoint Asset Euro 1A Limited 9804 Waypoint Asset Co 14 Limited 1585 MSN 4466 Trust N/A Waypoint Asset Co 15 Limited 1776 MSN 4469 Trust N/A

22 smb Doc Filed 01/24/19 Entered 01/24/19 15:23:10 Exhibit A - List of Debtors Pg 2 of 4 Debtor Last 4 Digits of Tax ID Number Debtor Last 4 Digits of Tax ID Number Waypoint Asset Co 3 Limited 3471 MSN 6655 Trust N/A MSN 6658 Trust N/A Waypoint Asset Funding 6 LLC 4964 Waypoint Business Trust N/A Waypoint Asset Co 7 Limited 9689 MSN 7152 Trust N/A Waypoint Asset Euro 7A Limited 2406 MSN 7172 Trust N/A Waypoint Asset Co 8 Limited 2532 Waypoint Asset Funding 3 LLC 4960 MSN Trust N/A Waypoint Asset Malta Ltd 5348 MSN Trust N/A Waypoint Leasing Labuan 3A 8120 MSN Trust N/A Limited Waypoint Leasing UK 3A Limited 0702 MSN Trust N/A Waypoint Asset Co 4 Limited 0301 MSN Trust N/A Waypoint Asset Co 5 Limited 7128 MSN Trust N/A MSN 1251 Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN 2047 Trust N/A MSN Trust N/A MSN 2057 Trust N/A Waypoint 206 Trust N/A Waypoint Asset Co 5B Limited 2242 Waypoint 407 Trust N/A Waypoint Leasing UK 5A Limited 1970 Waypoint Asset Euro 1B Limited 3512 Waypoint Asset Co 6 Limited 8790 Waypoint Asset Euro 1C Limited 1060 MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A 2

23 smb Doc Filed 01/24/19 Entered 01/24/19 15:23:10 Exhibit A - List of Debtors Pg 3 of 4 Debtor Last 4 Digits of Tax ID Number Debtor Last 4 Digits of Tax ID Number MSN Trust N/A MSN Trust N/A Waypoint Asset Funding 8 LLC 4776 MSN 2916 Trust N/A Waypoint Leasing UK 8A Limited 2906 MSN Trust N/A Waypoint Leasing US 8A LLC 8080 MSN Trust N/A Waypoint Asset Co 9 Limited 6340 MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN Trust N/A MSN 9205 Trust N/A Waypoint Asset Co 1B Limited 5795 MSN 9229 Trust N/A MSN Trust N/A Waypoint Asset Co 1A Limited 1208 Waypoint Asset Co 5A Limited 4148 Waypoint Leasing Labuan 1A 2299 Limited MSN Trust N/A Waypoint Asset Co 1C Limited 0827 Waypoint Asset Euro 9A Limited 2276 Waypoint Asset Co 1D Limited 7018 Waypoint Asset Euro 1E Limited 6050 Waypoint Asset Co 1F Limited 6345 Waypoint Leasing UK 9A Limited 5686 Waypoint Asset Co 1G Limited 6494 Waypoint Asset Sterling 9A Limited Waypoint Asset Company Number 1 (Ireland) Limited 1161 Waypoint Asset Co 1H Limited Waypoint Asset Co 1J Limited

24 smb Doc Filed 01/24/19 Entered 01/24/19 15:23:10 Exhibit A - List of Debtors Pg 4 of 4 Debtor Last 4 Digits of Tax ID Number Debtor Last 4 Digits of Tax ID Number Waypoint Asset Euro 1D Limited 1360 MSN Trust N/A Waypoint Asset Co 1L Limited 2360 MSN Trust N/A Waypoint Asset Co 1M Limited 5855 MSN Trust N/A Waypoint Asset Co 1N Limited 3701 MSN Trust N/A Waypoint Asset Euro 1G Limited 4786 MSN Trust N/A Waypoint Asset Funding 1 LLC 7392 Waypoint Asset Funding 2 LLC 7783 Waypoint Leasing UK 1B Limited 0592 Waypoint Asset Co 1K Limited 2087 Waypoint Leasing UK 1C Limited 0840 Waypoint Leasing Services LLC 8965 Waypoint Asset Company Number 2 (Ireland) Limited Waypoint 2916 Business Trust 7847 Waypoint Leasing (Luxembourg) Euro S.à r.l. N/A

25 smb Doc Filed 01/24/19 Entered 01/24/19 15:23:10 Exhibit B - Proposed Order Pg 1 of 7 Exhibit B Proposed Order 5

26 smb Doc Filed 01/24/19 Entered 01/24/19 15:23:10 Exhibit B - Proposed Order Pg 2 of 7 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x : In re : Chapter 11 : WAYPOINT LEASING : Case No (SMB) HOLDINGS LTD., et al., : : (Jointly Administered) Debtors. 1 : x ORDER PURSUANT TO 11 U.S.C. 327 AND 328 AND FED. R. BANKR. P AND 2016 AUTHORIZING DEBTORS TO RETAIN ACCENTURE LLP AS CORPORATE ADVISOR NUNC PRO TUNC TO PETITION DATE Upon the application (the Application ), 2 of Waypoint Leasing Holdings Ltd. and certain of its subsidiaries and affiliates, as debtors and debtors in possession (collectively, the Debtors ), pursuant to sections 327(a) and 328 of title 11 of the United States Code (the Bankruptcy Code ), Rules 2014 and 2016 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), and Rules and of the Local Bankruptcy Rules of the Southern District of New York (the Local Rules ), for entry of an order (this Order ) authorizing and approving the employment and retention of Accenture LLP, successor in interest to Seabury Corporate Advisors LLC and/or one or more of its affiliates (collectively, Accenture ), to serve as corporate advisor to the Debtors, effective nunc pro tunc to the Petition Date, in accordance with the terms and conditions set forth in that certain engagement letter dated as of June 22, 2018 attached to the Application as Exhibit C (the Engagement Letter ), all as more fully set forth in the Application and the Cox Declaration; and this Court having jurisdiction 1 The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor s federal tax identification number, as applicable, are set forth on Exhibit A to the Application. 2 Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Application.

27 smb Doc Filed 01/24/19 Entered 01/24/19 15:23:10 Exhibit B - Proposed Order Pg 3 of 7 to consider the Application and the relief requested therein pursuant to 28 U.S.C. 157 and 1334, and the Amended Standing Order of Reference M-431, dated January 31, 2012 (Preska, C.J.); and consideration of the Application and the requested relief being a core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before the Court pursuant to 28 U.S.C and 1409; and due and proper notice of the Application having been provided to the Notice Parties; and such notice having been adequate and appropriate under the circumstances, and it appearing that no other or further notice need be provided; and the Court having reviewed the Application; and the Court having held a hearing to consider the relief requested in the Application (the Hearing ); and upon the Cox Declaration, filed contemporaneously with the Application, and the record of the Hearing; and the Court having determined that the legal and factual bases set forth in the Application establish just cause for the relief granted herein; and it appearing that the relief requested in the Application is in the best interests of the Debtors, its estate, creditors, and all parties in interest, and that the legal and factual bases set forth in the Application establish just cause for the relief granted herein; and after due deliberation and sufficient cause appearing therefor, IT IS HEREBY ORDERED THAT 1. The Application is granted to the extent set forth herein; 2. The Debtors are authorized, pursuant to sections 327(a) and 328(a) of the Bankruptcy Code, Bankruptcy Rules 2014(a) and 2016, and Local Rules and , to employ and retain Accenture as corporate advisor in accordance with the terms and conditions set forth in the Application and the Engagement Letter (as modified by this Order), incorporated herein by reference, effective nunc pro tunc to the Petition Date; 2

28 smb Doc Filed 01/24/19 Entered 01/24/19 15:23:10 Exhibit B - Proposed Order Pg 4 of 7 3. Accenture does not hold or represent any interest adverse to the Debtors estate with respect to the matters upon which it is to be employed and is a disinterested person as that term is defined in section 101(14) of the Bankruptcy Code; 4. The terms of the Engagement Letter are approved in all respects except as limited or modified herein; 5. The compensation provisions of the Engagement Letter, including with respect to the Consulting Retainer Fees, the Restructuring Success Fee, and the other Fees and Expenses are reasonable terms and conditions of employment as required under Section 328(a) of the Bankruptcy Code, and are hereby approved pursuant to section 328(a) of the Bankruptcy Code and that Accenture s Fees shall be compensated and reimbursed pursuant to section 328(a) of the Bankruptcy Code in accordance with the terms of, and at the times specified by, the Engagement Letter; 6. Notwithstanding anything to the contrary in the Engagement Letter, the Application, or the Cox Declaration, to the extent that the Debtors request Accenture to perform any services other than those detailed in the Engagement Letter, the Debtors shall seek further application for an order of approval by the Court for a supplement to the retention and any related modifications to the Engagement Letter and such application shall set forth, in addition to the additional services to be performed, the additional fees sought to be paid; 7. Accenture shall file fee applications for final allowance of compensation and reimbursement of expenses pursuant to the procedures set forth in sections 330 and 331 of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any other applicable procedures and orders of this Court; provided, however, that Accenture s Fees and Expenses shall not be subject to review under the standard set forth in section 330 of the Bankruptcy Code. 3

29 smb Doc Filed 01/24/19 Entered 01/24/19 15:23:10 Exhibit B - Proposed Order Pg 5 of 7 Notwithstanding anything to the contrary in the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, orders of this Court, the Fee Guidelines promulgated by the Office of the United States Trustee for Region 2 (the U.S. Trustee ), or any other guidelines regarding submission and approval of fee applications, in light of services to be provided by Accenture and the structure of Accenture s compensation pursuant to the Engagement Letter, Accenture and its professionals shall be excused from maintaining time records as set forth in the Bankruptcy Rules and Fee Guidelines in connection with the services to be rendered pursuant to the Engagement Letter; that Accenture shall instead present to this Court reasonably detailed time records in one half (.5) hour increments containing descriptions of those services provided on behalf of the Debtors, the approximate time expended in providing those services, and the identity of the individuals providing those services; 8. The indemnification provisions in the Engagement Letter are approved; provided, however, that all requests by Accenture for the payment of indemnification as set forth in the Engagement Letter shall be made by means of an application to this Court and shall be subject to review by this Court to ensure that payment of such indemnity conforms to the terms of the Engagement Letter and is reasonable under the circumstances of the litigation or settlement in respect of which indemnity is sought; provided, further, however, that in no event shall Accenture be indemnified, entitled to any contribution from the Debtors, exonerated, or have contractual limitations on its liability in the case of its own bad faith, self-dealing, breach of fiduciary duty (if any), gross negligence, or willful misconduct. In the event that Accenture seeks reimbursement from the Debtors for attorneys fees and expenses in connection with the payment of an indemnity claim pursuant to the Engagement Letter, the invoices and supporting time records for the attorneys fees and expenses shall be included in Accenture s own applications but determined by 4

30 smb Doc Filed 01/24/19 Entered 01/24/19 15:23:10 Exhibit B - Proposed Order Pg 6 of 7 this Court after notice and a hearing, and such invoices and time records shall be subject to the Fee Guidelines and the approval of the Bankruptcy Court pursuant to sections 330 and 331 of the Bankruptcy Code without regard to whether such attorneys have been retained under section 327 of the Bankruptcy Code and without regard to whether such attorneys services satisfy section 330(a)(3)(C) of the Bankruptcy Code; 9. Notwithstanding anything in this Order to the contrary, the U.S. Trustee shall retain all rights to respond or object to Accenture s application for compensation based on the reasonableness standard provided for in section 330 of the Bankruptcy Code; provided, that, reasonableness for this purpose will take into account Accenture s prepetition services; 10. Notwithstanding anything in the Application or the Engagement Letter to the contrary, for the avoidance of doubt, the Bankruptcy Court shall have jurisdiction over any and all matters arising under or in connection with Accenture s engagement by the Debtors on behalf of the Debtors and the Engagement Letter, including the indemnification provisions outlined in the Engagement Letter; 11. Accenture shall use reasonable efforts to avoid any duplication of services provided by any of the Debtors other retained professionals in these Chapter 11 Cases; 12. To the extent that there is any inconsistency between the terms of the Application, the Engagement Letter, or this Order, the terms of this Order shall govern; 13. The Debtors are authorized and empowered to take all actions necessary to implement the relief granted in this Order in accordance with the Application; 14. Notice of the Application as provided therein shall be deemed good and sufficient notice of such Application and the requirements of the Local Rules are satisfied by such notice; 5

31 smb Doc Filed 01/24/19 Entered 01/24/19 15:23:10 Exhibit B - Proposed Order Pg 7 of The terms and conditions of this Order shall be immediately effective and enforceable upon its entry; 16. The relief granted herein shall be binding upon any chapter 11 trustee appointed in these Chapter 11 Cases, or upon any chapter 7 trustee appointed in the event of a subsequent conversion of these Chapter 11 Cases to a case under chapter 7; and 17. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation, interpretation and/or enforcement of this Order. Dated:, 2019 New York, New York UNITED STATES BANKRUPTCY JUDGE 6

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