NOTE PURCHASE AGREEMENT

 

within the meaning of paragraph (1), (2), (3), or (7) of Rule 501 (a) of Regulation D under the Act or (ii) an entity all of whose equity owners fall within those paragraphs.

 

2.   Offers and Sales of Offered Notes; Fees and Expenses.

 

(a)  Subject to the terms and conditions contained herein and on the basis of the representations and warranties herein set forth, WEST hereby agrees to sell the Offered Notes to each Purchaser as provided herein, and HSH and Fortis, hereby, severally and not jointly, agree to purchase such Offered Notes from WEST on the Closing Date (as defined below), in the amount and at the price (the “ Purchase Price ”) set forth on Schedule A hereto.

 

(b)  [Reserved].

 

(c)  [Reserved].

 

(d)  In addition, whether or not the transactions contemplated by this Agreement are consummated, WEST agrees to pay or cause to be paid the following (it being understood that if WEST should fail to pay such amounts, Willis hereby agrees to pay such expenses of Fortis and HSH):

 

(i) the fees of, disbursements by, and expenses of counsel to and accountants of each Purchaser and the reasonable out-of-pocket expenses of each Purchaser, in each case incurred in connection with the purchase of the Offered Notes;

 

(ii) all expenses in connection with the preparation, printing, and distribution of the Series B1 Transaction Documents and any amendments and supplements to them or revisions of them;

 

(iii) the cost of preparing certificates representing the Offered Notes;

 

(iv) the fees charged by Moody’s and Fitch for rating the Offered Notes;

 

(v) the fees and expenses of the Indenture Trustee and Security Trustee and the fees and disbursements of counsel for the Indenture Trustee and Security Trustee in connection with its execution and delivery of the Indenture and the Security Trust Agreement, as applicable; and

 

(vi) the fees and expenses of UT Finance Corporation and the fees and disbursements of counsel for UT Finance Corporation in connection with its execution and delivery of the Backup Servicing Agreement and the Backup Administrative Agency Agreement, if any and as applicable.

 

(e)  WEST agrees to pay, and will save each Purchaser harmless from, all liabilities with respect to nonpayment or delay in payment of, any taxes that may be payable with respect to the execution and delivery of this Agreement or any other agreements entered into in connection with the issuance and sale of the Offered Notes.

 

 

(f)  WEST agrees to pay, or reimburse each Purchaser for, all reasonable expenses (including all reasonable out-of-pocket expenses that a Purchaser may incur) in connection with (i) the enforcement of this Agreement by a Purchaser against Willis or WEST, or (ii) a Purchaser’s waiver, of. or giving of consents to amendments of, any terms of this Agreement (whether or not the amendment or waiver becomes effective).

 

3.   Delivery . The Offered Notes shall be issued in the forms provided in the Indenture and in denominations no less than the minimum denominations specified in the Final Offering Memorandum, and payment for the Offered Notes will be made at the offices of Pillsbury Winthrop Shaw Pittman LLP, New York, New York (or such other place as shall be agreed upon by the Purchasers and WEST), at 10:00 a.m., New York City time, on August 9, 2005 (or at such other time or date, not later than seven full Business Days thereafter, as shall be agreed upon by the Purchasers and WEST) (such date and time of payment and delivery being referred to herein as the “ Closing Date ” ). WEST shall cause the Offered Notes (or beneficial interests therein) to be delivered to each Purchaser against payment to or upon the order of WEST by a Purchaser of the purchase price by wire transfer of immediately available funds.

 

Delivery of the Offered Notes on the Closing Date will be made in book-entry form through the facilities of The Depository Trust Company ( “DTC” ) and, in the case of any Book-Entry Notes to be delivered or resold to non-U.S. Persons, the facilities of Clearstream Banking sociéité anonyme, or the Euroclear System (Notes delivered in book-entry form, “Book-Entry Notes” ). Each Class of Book-Entry Notes will be represented by definitive global certificated Notes to be deposited by or on behalf of WEST with DTC.

 

4.   Representations, Warranties and Agreements.

 

(a)  [Reserved.]

 

(b)  Willis represents and warrants to, and agrees with, each Purchaser that:

 

(i) Willis is a corporation, duly organized, validly existing, and in good standing under the laws of the State of Delaware, with full power and authority to own its properties and to conduct its business, as described in the Series B1 Transaction Documents, and is duly qualified (or, as of the Closing Date, will be so qualified) to do business as a foreign corporation in each jurisdiction in which the nature of its activities, its ownership or lease of property or the conduct of its business requires such qualification. Willis (whether individually or in the capacity of Servicer or Administrative Agent, as applicable) has full power and authority to enter into and perform its obligations under this Agreement, as well as (to the extent that it is a party thereto) the Series B1 Transaction Documents, and Willis is conducting its business so as to comply in all material respects with all applicable statutes, ordinances, rules, and regulations of the jurisdictions in which it is conducting business.

 

 

(ii) This Agreement has been duly authorized, executed, and delivered by Willis. At or before the Closing Date, Willis will have duly authorized, executed, and delivered each Series B1 Transaction Document to which it is a party.

 

(iii) Assuming their due authorization, execution, and delivery by the other parties to them other than Willis or any subsidiary thereof, as applicable, this Agreement and each of the Series B1 Transaction Documents to which Willis or any subsidiary thereof is a party, when delivered by Willis or such subsidiary, will constitute valid and binding agreements of Willis or such subsidiary, enforceable against Willis or such subsidiary, as applicable, in accordance with their respective terms, except as enforceability may be limited by

 

•                   bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization, fraudulent conveyance, or other similar laws affecting the rights of creditors generally,

 

•                   general principles of equity, regardless of whether enforcement is sought in a proceeding in equity or at law, and

 

•                   public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of any of those agreements that provide indemnification or contribution from securities law liabilities.

 

(iv) The execution, delivery, and performance of this Agreement and the Series B1 Transaction Documents to which it is a party, will not result in a breach or violation of any term of the certificate of incorporation or by-laws or trust agreement or limited liability company agreement of, or any statute or regulation applicable to, Willis or any subsidiary thereof, or conflict with, result in a material breach, violation, or acceleration of, or constitute a default under, any indenture or other agreement or instrument to which Willis or any of its subsidiaries is a party or by which any of them is bound, or any order or decree applicable to Willis or any of its subsidiaries of any court, regulatory body, administrative agency, or governmental body having jurisdiction over Willis or any of its subsidiaries. None of Willis or any of its subsidiaries is a party to, bound by, or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, or regulation of any court, regulatory body, administrative agency, or governmental body having jurisdiction over it that materially adversely affects the ability of Willis or such subsidiary, as applicable, to perform its obligations under this Agreement or any Series B1 Transaction Document to which it is a party.

 

(v) There are no actions or proceedings against, or investigations of, Willis or any subsidiary thereof pending or, to the knowledge of Willis, threatened before any court, administrative agency or other tribunal

 

 

•                   asserting the invalidity of this Agreement, any Series B1 Transaction Document, or the Offered Notes,

 

•                   seeking to prevent the issuance of the Offered Notes or the consummation of any of the transactions contemplated by this Agreement or the Series B1 Transaction Documents,

 

•                   that might materially adversely affect the performance by Willis or any subsidiary thereof (taken as a whole) of its respective obligations under, or the validity or enforceability against any of them of, this Agreement or any Series B1 Transaction Document to which any of them is a party, or the Offered Notes, or

 

•                   seeking to affect adversely the federal income tax attributes of the Offered Notes described in the Offering Memorandum.

 

(vi) Since the date of the latest audited financial statements of Willis there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), business, properties or results of operations of Willis or its subsidiaries taken as a whole.

 

(vii) No authorization, approval, or consent of, or filing with, any court or governmental authority or agency is necessary in connection with (A) Willis’ or any subsidiary’s execution and delivery of this Agreement or any Series B1 Transaction Document to which it is a party, or (B) the offering, issuance, or sale of the Offered Notes as contemplated in this Agreement and the Indenture, except such as may be required under state securities laws, such security interest filings as may be contemplated in the Security Trust Agreement or the Indenture or other applicable Series B1 Transaction Document, and any disclosures with respect to the transactions contemplated hereby required of Willis under the federal securities laws.

 

(viii) Willis possesses all material licenses, certificates, authorizations, and permits issued by the appropriate state, federal, or foreign regulatory agencies or bodies necessary to conduct the business now operated by it, except in cases in which failure to obtain all licenses, certificates and permits or other approvals would not singly or in the aggregate have a material adverse effect on Willis and any subsidiary thereof taken as a whole. Willis has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, authorization, or permit that, singly or in the aggregate, if the subject of any unfavorable decision, ruling, or finding, would materially adversely affect the business, operations, financial condition, properties or assets of Willis and any subsidiary thereof taken as a whole.

 

(ix) Any taxes, fees, and other governmental charges payable by Willis or any subsidiary thereof in connection with the execution and delivery of this Agreement, the

 

 

Series B1 Transaction Documents to which any of them is a party and the issuance and sale of the Offered Notes (other than federal, state, and local taxes payable on the income or gain recognized therefrom), have been or will be paid on or before the Closing Date.

 

(x) None of Willis nor any of its affiliates nor any persons acting on its or their behalf (other than UBS Securities LLC and UBS Limited, any affiliate of UBS Securities LLC or UBS Limited or anyone acting on its or their behalf) has engaged or shall engage in any directed selling efforts as defined in Rule 902 of Regulation S under the Act with respect to the Offered Notes, and none of the foregoing persons has offered or sold any of the Offered Notes; and none of the foregoing persons has entered into any other contractual arrangements with any person with respect to the distribution of the Offered Notes.

 

(xi) None of Willis or any of its affiliates has offered or sold the Offered Notes by means of any form of general solicitation or general advertising and none of the foregoing persons shall offer to sell, offer for sale or sell the Offered Notes by means of any advertisement, article, notice or other communication 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.

 

(xii) Prior to the consummation of the offering and resale transactions contemplated herein, none of Willis or any of its affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest, any Offered Notes or attempt to induce any person to purchase any Offered Notes; and none of them will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or raising the price of, the Offered Notes.

 

(xiii) Willis is not required to be registered as an “investment company” under the Investment Company Act of 1940, as amended (the “Investment Company Act” ).

 

(c)                                   WEST represents and warrants to, and agrees with, each Purchaser that:

 

(i) WEST is a statutory trust, duly organized, validly existing, and in good standing under the laws of the State of Delaware, with full power and authority to own its properties and to conduct its business, as described in the Series B1 Transaction Documents and as presently conducted, and is duly qualified to do business as a foreign entity in each jurisdiction in which the nature of its activities, its ownership or lease of property or the conduct of its business requires such qualification. WEST has full power and authority to enter into and perform its obligations under this Agreement and the Series B1 Transaction Documents to which it is a party, and WEST is conducting its

 

 

business so as to comply in all material respects with all applicable statutes, ordinances, rules, and regulations of the jurisdictions in which it is conducting business.

 

(ii) Each subsidiary of WEST that is party to any Series B1 Transaction Document is an entity duly organized, validly existing and (to the extent such concept is relevant) in good standing under the laws of its applicable chartering jurisdiction, with full power and authority to own its properties and to conduct its business, as described in the Series B1 Transaction Documents and as presently conducted, and is duly qualified to do business as a foreign entity in each jurisdiction in which the nature of its activities, its ownership or lease of property or the conduct of its business requires such qualification. Each such subsidiary has full power and authority to enter into and perform its obligations under the Series B1 Transaction Documents to which it is a party, and each such subsidiary is conducting its business so as to comply in all material respects with all applicable statutes, ordinances, rules, and regulations of the jurisdictions in which it is conducting business.

 

(iii) This Agreement has been duly authorized, executed, and delivered by WEST. At or before the Closing Date, WEST and each subsidiary thereof will have duly authorized, executed, and delivered each Series B1 Transaction Document to which it is a party, as applicable.

 

(iv) Assuming their due authorization, execution, and delivery by the other parties to them other than Willis or WEST or a subsidiary thereof, as applicable, this Agreement and each of the Series Bl Transaction Documents, when delivered by any of WEST (or a subsidiary thereof) that is a party thereto, will constitute valid and binding agreements of WEST and/or such subsidiary (in each case to the extent a party thereto), enforceable against WEST and/or such subsidiary in accordance with their respective terms, except as enforceability may be limited by

 

•                   bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization, fraudulent conveyance or other similar laws affecting the rights of creditors generally,

 

•                   general principles of equity, regardless of whether enforcement is sought in a proceeding in equity or at law, and

 

•                   public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of any of those agreements that provide indemnification or contribution from securities law liabilities.

 

(v) The issuance and sale of the Offered Notes has been duly and validly authorized by WEST; and the Offered Notes, when duly and validly executed by WEST and authenticated by the Indenture Trustee in accordance with the Indenture, and paid

 

 

for and delivered as contemplated in this Agreement, will be valid, binding and enforceable obligations of WEST entitled to the benefits of the Indenture and the Security Trust Agreement, except as enforceability may be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization, fraudulent conveyance or other similar laws affecting the rights of creditors generally, and (B) general principles of equity, regardless of whether enforcement is sought in a proceeding in equity or at law.

 

(vi) The execution, delivery, and performance of this Agreement and the Series B1 Transaction Documents to which it is a party, will not result in a breach or violation of any term of the certificate of incorporation or by-laws or trust agreement or limited liability company agreement of, or any statute or regulation applicable to, WEST or any subsidiary thereof, or conflict with, result in a material breach, violation, or acceleration of, or constitute a default under, any indenture or other agreement or instrument to which WEST or any of its subsidiaries is a party or by which any of them is bound, or any order or decree applicable to WEST or any of its subsidiaries of any court, regulatory body, administrative agency, or governmental body having jurisdiction over WEST or any of its subsidiaries. None of WEST or any of its subsidiaries is a party to, bound by, or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, or regulation of any court, regulatory body, administrative agency, or governmental body having jurisdiction over it that materially adversely affects the ability of WEST or such subsidiary, as applicable, to perform its obligations under this Agreement or any Series B1 Transaction Document to which it is a party.

 

(vii) There are no actions or proceedings against, or investigations of, WEST or any subsidiary thereof pending or, to the knowledge of WEST, threatened before any court, administrative agency or other tribunal

 

•                   asserting the invalidity of this Agreement, any Series Bl Transaction Document, or the Offered Notes,

 

•                   seeking to prevent the issuance of the Offered Notes or the consummation of any of the transactions contemplated by this Agreement or the Series B1 Transaction Documents,

 

•                   that might materially adversely affect the performance by WEST or any subsidiary thereof (taken as a whole) of its respective obligations under, or the validity or enforceability against any of them of, this Agreement or any Series B1 Transaction Document to which any of them is a party, or the Offered Notes, or

 

•                   seeking to affect adversely the federal income tax attributes of the Offered Notes described in the Offering Memorandum.

 

 

(viii) There has not been any material adverse change in the business, operations, financial condition, properties, or assets of WEST or any subsidiary thereof (except in respect of the adverse effect that the financial difficulties of Varig and its subsidiary Rio Sul as a lessee, as disclosed in the Offering Memorandum, would have on the affected lessor subsidiaries of WEST Funding) that would have a material adverse effect on the ability of any of them to perform its obligations under this Agreement, or any Series B1 Transaction Document to which it is a party (as applicable).

 

(ix) No authorization, approval, or consent of, or filing with, any court or governmental authority or agency is necessary in connection with (A) WEST’s or any subsidiary’s execution and delivery of this Agreement or any Series B1 Transaction Document to which it is a party, or (B) the offering, issuance, or sale of the Offered Notes as contemplated in this Agreement and the Indenture, except such as may be required under state securities laws, and such security interest filings as may be contemplated in the Security Trust Agreement or the Indenture or other applicable Series B1 Transaction Document.

 

(x) Each of WEST and any subsidiary thereof party to a Series B1 Transaction Document possesses all material licenses, certificates, authorizations, and permits issued by the appropriate state, federal, or foreign regulatory agencies or bodies necessary to conduct the business now operated by it, except in cases in which failure to obtain all licenses, certificates and permits or other approvals would not singly or in the aggregate have a material adverse effect on WEST and any subsidiary thereof taken as a whole. Neither WEST nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such license, certificate, authorization, or permit that, singly or in the aggregate, if the subject of any unfavorable decision, ruling, or finding, would materially adversely affect the business, operations, financial condition, properties or assets of WEST or such subsidiary, as applicable.

 

(xi) Any taxes, fees, and other governmental charges payable by WEST or any subsidiary thereof in connection with the execution and delivery of this Agreement, the Series B1 Transaction Documents to which any of them is a party and the issuance and sale of the Offered Notes (other than federal, state, and local taxes payable on the income or gain recognized therefrom), have been or will be paid on or before the Closing Date.

 

(xii) Immediately following the closing of the transactions contemplated on the Closing Date, there will not exist any default by WEST or any condition, event or act, which, with notice or lapse of time or both, would constitute an Event of Default or Early Amortization Event.

 

 

(xiii) WEST has not, directly or indirectly, solicited any offer to buy or offered to sell, and shall not. directly or indirectly, solicit any offer to buy or offer to sell, in the United States or to any United States citizen or resident, any security which is or would be integrated with the sale of the Offered Notes in a manner that would require the Offered Notes to be registered under the Act, nor has WEST taken any other action that would constitute a distribution of any Offered Note under the Act, would render the disposition of any Offered Note a violation of Section 5 of the Act or any state securities law, or would require registration or qualification pursuant thereto.

 

(xiv) The Offered Notes are eligible for resale pursuant to Rule 144A under the Act and shall not be, on the Closing Date, of the same class as securities listed on a national securities exchange registered under Section 6 of the United States Securities Exchange Act of 1934, as amended (the “Exchange Act” ), or quoted in a United States automated interdealer quotation system.

 

(xv) None of WEST nor any of its affiliates nor any persons acting on its or their behalf (other than UBS Securities LLC and UBS Limited, any affiliate of UBS Securities LLC or UBS Limited or anyone acting on its or their behalf) has engaged or shall engage in any directed selling efforts as defined in Rule 902 of Regulation S under the Act with respect to the Offered Notes, and none of the foregoing persons has offered or sold any of the Offered Notes; and none of the foregoing persons has entered into any other contractual arrangements with any person with respect to the distribution of the Offered Notes.

 

(xvi) None of WEST or any of its affiliates has offered or sold the Offered Notes by means of any form of general solicitation or general advertising and none of the foregoing persons shall offer to sell, offer for sale or sell the Offered Notes by means of any advertisement, article, notice or other communication 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.

 

(xvii) Prior to the consummation of the offering and resale transactions contemplated herein, none of WEST or any of its affiliates has or will, either alone or with one or more other persons, bid for or purchase for any