TABLE OF CONTENTS

 

		Page
ARTICLE I
DEFINITIONS
Section 1.01.	Definitions	2
Section 1.02.	Rules of Construction	4
ARTICLE II
PURCHASE AND SALE
Section 2.01.	Sale and Delivery of Series 2008-A1 Notes	4
Section 2.02.	Funding of Series 2008-A1 Loans	4
Section 2.03.	Closing	4
ARTICLE III
CONDITIONS PRECEDENT TO OBLIGATIONS OF SERIES 2008-A1 HOLDERS
Section 3.01.	Conditions Precedent to Obligations of Initial Series 2008-A1 Holders to Purchase Series 2008-A1 Notes	5
Section 3.02.	Conditions Precedent to Obligation of WEST to Issue Series 2008-A1 Notes	9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF WEST AND ADMINISTRATIVE AGENT
Section 4.01.	Representations and Warranties of WEST	10
Section 4.02.	Representations and Warranties of Administrative Agent	15
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SERIES 2008-A1 HOLDERS
Section 5.01.	Execution, Delivery, Binding Obligation	16
Section 5.02.	Securities Act	17
ARTICLE VI
CERTAIN COVENANTS OF PARTIES
Section 6.01.	Securities Act	19
Section 6.02.	Legal Conditions to Closing	19

 

 

Section 6.03.	Expenses and Fees	19
Section 6.04.	Further Assurances	20
ARTICLE VII
INDEMNIFICATION
Section 7.01.	Indemnification by WEST	20
Section 7.02.	Indemnification by Administrative Agent	20
Section 7.03.	Procedure	20
Section 7.04.	Defense of Claims	21
ARTICLE VIII
MISCELLANEOUS
Section 8.01.	Amendments	21
Section 8.02.	Notices	21
Section 8.03.	No Waiver; Remedies	22
Section 8.04.	Binding Effect; Assignability; Continuing Obligation	22
Section 8.05.	GOVERNING LAW; JURISDICTION	22
Section 8.06.	Execution in Counterparts	23
Section 8.07.	Survival	23
Section 8.08.	Appointment of Agent for Service of Process	23
Section 8.09.	Table of Contents; Headings	23
Section 8.10.	WAIVER OF JURY TRIAL	23
Section 8.11.	USA PATRIOT Act	23
Section 8.12.	Severability	23
SCHEDULES
SCHEDULE 1	Addresses of Series 2008-A1 Holders
SCHEDULE 2	Commitments of Series 2008-A1 Holders
SCHEDULE 3	2008 Engines
EXHIBITS
EXHIBIT A	Form of Controlling Trustee Closing Date Certificate
EXHIBIT B	Form of Administrative Agent Closing Date Certificate

 

 

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This SERIES 2008-A1 NOTE PURCHASE AND LOAN AGREEMENT (this “ Agreement ”), dated as of March 25, 2008, is made among WILLIS ENGINE SECURITIZATION TRUST, a Delaware statutory trust (“ WEST ”), WILLIS LEASE FINANCE CORPORATION, a Delaware corporation, as Administrative Agent (the “ Administrative Agent” ), and the Persons named on the signature page hereof as initial Series 2008-A1 Holders, together with any Person that becomes a Series 2008-A1 Holder in accordance with the terms hereof (the “ Series 2008-A1 Holders ”).

 

PREAMBLE

 

WHEREAS, WEST and Deutsche Bank Trust Company Americas, a New York banking corporation, as indenture trustee (“ Indenture Trustee ”), entered into the Indenture, dated as of August 9, 2005 (the “Original Indenture” ), as thereafter supplemented by the Series 2005-A1 Supplement, the Series 2005-A2 Supplement, the Series 2005-B1 Supplement and the Series 2005-B2 Supplement and as amended and restated in its entirety by the Amended and Restated Indenture, dated as of December 13, 2007, between WEST and the Indenture Trustee (as supplemented by the Supplements, and as amended, supplemented or otherwise modified from time to time, the “ Indenture ”), as the Indenture was further supplemented by the Series 2007-A2 Supplement and the Series 2007-B2 Supplement;

 

WHEREAS, the Series 2005-A1 Term Notes, Series 2005-A2 Warehouse Notes, Series 2005-B1 Term Notes and Series 2005-B2 Warehouse Notes were issued on August 9, 2005 pursuant to the Series 2005-A1 Supplement, the Series 2005-A2 Supplement, the Series 2005-B1 Supplement and the Series 2005-B2 Supplement, respectively, and the Series 2007-A2 Warehouse Notes and Series 2007-B2 Warehouse Notes were issued on December 13, 2007 pursuant to the Series 2007-A2 Supplement and the Series 2007-B2 Supplement, respectively;

 

WHEREAS, the Controlling Trustees of WEST have authorized the issuance of a Series of Additional Notes, to be issued as Series A Term Notes and designated as “Willis Engine Securitization Trust Series 2008-A1 Floating Rate Secured Notes”, the proceeds of which are to be used in part to refinance the Series 2005-A2 Warehouse Notes and in part to fund the acquisition of the Additional Engines described in Schedule 3 hereto (the “ 2008 Engines ”); and

 

WHEREAS, WEST and the Indenture Trustee will enter into the Series 2008-A1 Supplement to the Indenture, to be dated as of March 28, 2008 (as it may be amended or otherwise modified from time to time, the “ Series 2008-A1 Supplement ”), pursuant to which WEST is to issue the Series 2008-A1 Notes in the initial Outstanding Principal Balance of $212,384,958;

 

WHEREAS, each of the Series 2008-A1 Holders is willing to make a Series 2008-A1 Loan to WEST in the amount of its Commitment on the Closing Date, and the obligation of WEST to repay such Series 2008-A1 Loan to each Series 2008-A1 Holder will be represented by the Series 2008-A1 Note held by such Series 2008-A1 Holder;

 

NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:

 

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ARTICLE I

 

DEFINITIONS

 

Section 1.01.    Definitions .  Capitalized terms used herein and not otherwise defined herein shall have the meaning set forth in the Indenture.  Whenever used in this Agreement, the following words and phrases shall have the following meanings, and the definitions of such terms are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

 

“ Closing Date ” means, subject to Section 2.03(a),  March 28, 2008 or, if later, the date on which the conditions set forth in Section 3.01 hereof shall have been satisfied.

 

“ Commitment ” shall mean (a), for all Series 2008-A1 Holders, $212,384,958 in the aggregate, and (b), for each Series 2008-A1 Holder, the amount set forth opposite the name of such Series 2008-A1 Holder in Schedule 2 attached hereto.

 

“ Marketing Materials ” means the investor presentations made to investors by or on behalf of WEST (whether in person or electronically), dated January, 2008 and distributed to prospective investors on or about January 28, 2008.

 

“ Material Adverse Effect ” has the meaning specified in Section 4.01(a) hereof.

 

“ Notes ” means the Series A Notes and the Series B Notes.

 

“ Preliminary Offering Memorandum ” means the Preliminary Offering Memorandum, dated January 18, 2008, prepared by WEST in connection with the offering of the Series 2008-A1 Notes.

 

“ Private Placement Memorandum ” means the Private Placement Memorandum, dated March 24, 2008, prepared by WEST in connection with the offering of the Series 2008-A1 Notes.

 

“ Series A Notes ” means, collectively, (a) the $200,000,000 in original principal amount of WEST’s Series 2005-A1 Term Notes, (b) the $175,000,000 in maximum principal amount of WEST’s Series 2007-A2 Warehouse Notes, (c) the Series 2008-A1 Notes, and (d) any other note that is designated as a Series A Note under the Indenture.

 

“ Series 2007-A2 Supplement ” means the Series 2007-A2 Supplement to the Indenture, dated as of December 13, 2007, between WEST and the Indenture Trustee.

 

“ Series 2007-A2 Warehouse Notes ” means the Series of Notes designated as the “Willis Engine Securitization Trust Series 2007-A2 Floating Rate Secured Notes” issued on December 13, 2007 pursuant to the Series 2007-A2 Supplement and having the terms and conditions specified therein, and including any and all replacements, extensions, substitutions or renewals of such Notes.

 

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“ Series 2007-B2 Supplement ” means the Series 2007-B2 Supplement to the Indenture, dated as of December 13, 2007, between WEST and the Indenture Trustee.

 

“ Series 2007-B2 Warehouse Notes ” means the Series of Notes designated as the “Willis Engine Securitization Trust Series 2007-B2 Floating Rate Secured Notes” issued on December 13, 2007 pursuant to the Series 2007-B2 Supplement and having the terms and conditions specified therein, and including any and all replacements, extensions, substitutions or renewals of such Notes.

 

“ Series 2008-A1 Holders ” means, initially, the Persons named as initial Series 2008-A1 Holders on the signature page hereof and, at any time of determination for the Series 2008-A1 Notes thereafter, any Person in whose name a Series 2008-A1 Note is registered in the Register for the Series 2008-A1 Notes.

 

“ Series 2008-A1 Loan ” means the loan made by a Series 2008-A1 Holder to WEST pursuant to Article II hereof.

 

“ Series 2008-A1 Notes ” means the Series of Notes designated as the “Willis Engine Securitization Trust Series 2008-A1 Floating Rate Secured Notes” to be issued on the Closing Date pursuant to the Series 2008-A1 Supplement and having the terms and conditions specified therein, and including any and all replacements, extensions, substitutions or renewals of such Notes.

 

“ Series 2008-A1 Related Documents ” means the Series 2008-A1 Transaction Documents, as defined in the Series 2008-A1 Supplement, and the Related Documents, as the same may be amended, supplemented, restated, replaced or otherwise modified from time to time.

 

“ Series B Notes ” means, collectively, (a) the $28,276,878 in original principal amount of WEST’s Series 2005-B1 Term Notes, (b) the $25,000,000 in maximum principal amount of WEST’s Series 2007-B2 Warehouse Notes, (c) the Series 2008-B1 Notes, and (d) any other note that is designated as a Series B Note under the Indenture.

 

“ Series 2008-B1 Holders ” means, on the Closing Date, the Persons named as Series 2008-B1 Holders in the Series 2008-B1 Note Purchase Agreement and, at any time of determination thereafter, any Person in whose name a Series 2008-B1 Note is registered in the Register.

 

“ Series 2008-B1 Loans ” means the loans made to WEST by the Series 2008-B1 Holder pursuant to the Series 2008-B1 Note Purchase Agreement.

 

“ Series 2008-B1 Note Purchase Agreement ” means the Series 2008-B1 Note Purchase and Loan Agreement, to be dated as of March 25, 2008, among WEST, the Administrative Agent and the Series 2008-B1 Holders, as amended, modified or supplemented from time to time in accordance with its terms.

 

“ Series 2008-B1 Notes ” means the notes issued pursuant to the Series 2008-B1 Note Purchase Agreement and the Series 2008-B1 Supplement.

 

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“ Series 2008-B1 Related Documents ” means the Series 2008-B1 Transaction Documents, as defined in the Series 2008-B1 Supplement, and the Related Documents, as the same may be amended, supplemented, restated, replaced or otherwise modified from time to time.

 

“ Series 2008-B1 Supplement ” means the Series 2008-B1 Supplement to the Indenture, to be dated as of March 28, 2008, between WEST and the Indenture Trustee.

 

Section 1.02.          Rules of Construction .  The conventions of construction and usage set forth in Section 1.02 of the Indenture are hereby incorporated by reference in this Agreement.

 

ARTICLE II

 

PURCHASE AND SALE

 

Section 2.01.     Sale and Delivery of Series 2008-A1 Notes .  In reliance on the representations, warranties and agreements and subject to the terms and conditions set forth herein and in the Indenture and the Series 2008-A1 Supplement, WEST agrees to sell, and each of the Series 2008-A1 Holders severally and not jointly agrees to purchase, on the Closing Date, a Series 2008-A1 Note with the initial Outstanding Principal Balance for each Series 2008-A1 Holder set forth in Schedule 2 hereto. The Series 2008-A1 Notes shall be duly executed by WEST, duly authenticated by the Indenture Trustee and registered in the names of the Series 2008-A1 Holders.

 

Section 2.02.     Funding of Series 2008-A1 Loans .  (a)  On the terms and conditions hereinafter set forth, each Series 2008-A1 Holder severally and not jointly agrees that it will make a Series 2008-A1 Loan to WEST in an amount equal to such Series 2008-A1 Holder’s Commitment on the Closing Date, subject to satisfaction of the applicable conditions precedent set forth in Article III hereof and in Article IV of the Series 2008-A1 Supplement.

 

(b)     If any Series 2008-A1 Holder shall default on its obligation to make a Series 2008-A1 Loan on the Closing Date, one or more of the other Series 2008-A1 Holders may elect (but shall not be required to) to make the Series 2008-A1 Loan of the defaulting Series 2008-A1 Holder.  In such event, the initial Outstanding Principal Balance of the Series 2008-A1 Note held by the Series 2008-A1 Holder making such Series 2008-A1 Loan shall be increased by the amount of the initial Outstanding Principal Balance of the Series 2008-A1 Note that would have been issued to the defaulting Series 2008-A1 Holder.

 

Section 2.03.    Closing .  (a) The issuance of the Series 2008-A1 Notes and the making of the Series 2008-A1 Loans shall occur at the offices of Pillsbury Winthrop Shaw Pittman LLP, New York, New York, at 10:00 a.m., New York time, at a closing (the “ Closing ”) on the Closing Date.  At its option, WEST shall have the right to postpone the Closing Date to a later date as set forth in a written notice delivered to each of the Series 2008-A1 Holders and the Senior Liquidity Provider at least two (2) days prior to such Closing Date.  At the Closing, WEST will cause Series 2008-A1 Notes in initial Outstanding Principal Balances equal to the amounts set forth beside the names of the initial Series 2008-A1 Holders in Schedule 2 to be issued and registered in the name of each Series 2008-A1 Holder or its nominee (if so stated) and delivered in definitive physical form to such Series 2008-A1 Holder or its agent at the address for delivery

 

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notified to WEST, subject to such Series 2008-A1 Holder making its Series 2008-A1 Loan in U.S. dollars in the amount of such Series 2008-A1 Holder’s Commitment set forth in Schedule 2 by wire transfer, in immediately available funds, in U.S. dollars, on the Closing Date to an account maintained by the Security Trustee and designated by WEST in accordance with the Indenture and the Security Trust Agreement.

 

(b) In the event of a postponement of the Closing Date (but subject to Section 2.03(a)), WEST shall compensate each of the Series 2008-A1 Holders upon written request for all losses, damages, liabilities and reasonable expenses that such Series 2008-A1 Holder sustains as a result of the failure of WEST to borrow all or any part of the applicable Series 2008-A1 Loan on the Closing Date, including, without limitation, breakage costs and any losses and expenses incurred in connection with the re-employment or reinstatement of such funds.

 

ARTICLE III

 

CONDITIONS PRECEDENT TO OBLIGATIONS OF SERIES 2008-A1 HOLDERS

 

Section 3.01.     Conditions Precedent to Obligations of Initial Series 2008-A1 Holders to Purchase Series 2008-A1 Notes .  The obligations of the initial Series 2008-A1 Holders to purchase the Series 2008-A1 Notes and to make the Series 2008-A1 Loans on the Closing Date is subject to satisfaction of the following conditions precedent:

 

(a)       WEST and the Indenture Trustee shall have executed and delivered the Series 2008-A1 Supplement and the Series 2008-B1 Supplement.

 

(b)      WEST and the Administrative Agent shall have executed and delivered this Agreement.

 

(c)       WEST, the Administrative Agent and the initial Series 2008-B1 Holders shall have executed and delivered the Series 2008-B1 Note Purchase Agreement.

 

(d)      Each of the following shall be true, and the initial Series 2008-A1 Holders shall have received from WEST a certificate substantially in the form of Exhibit A hereto, dated the Closing Date and executed by any Controlling Trustee, stating that:

 

(i)            the representations and warranties of WEST in this Agreement and the Series 2008-A1 Supplement are accurate in all material respects as of the Closing Date, with the same effect as if made on the Closing Date;

 

(ii)           WEST has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or before the Closing Date;

 

(iii)          as of the Closing Date, no Event of Default, Early Amortization Event or Servicer Termination Event has occurred and is continuing, and no fact, condition or event exists or has occurred which would, upon the giving of notice or the passage of time or both, constitute an Event of Default, an Early Amortization Event or a Servicer Termination Event;

 

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(iv)         on the Closing Date, Series 2008-B1 Loans are also being made by the Series 2008-B1 Holders under the Series 2008-B1 Note Purchase Agreement in an amount equal to the “Commitments” of the Series 2008-B1 Holders under the Series 2008-B1 Note Purchase Agreement (as defined therein);

 

(v)          before and after giving effect to the Series 2008-A1 Loans to be made on the Closing Date and the acquisition of the 2008 Engines with the proceeds thereof on the Closing Date and during the Delivery Period, no Senior Borrowing Base Deficiency  or Maximum Borrowing Base Deficiency exists or would exist as of the Closing Date; and

 

(vi)         no proceeding is pending which would prohibit the sale and purchase of the Series 2008-A1 Notes or the making of the Series 2008-A1 Loans on the Closing Date.

 

(e)       Each of the following shall be true, and the initial Series 2008-A1 Holders shall have received from the Administrative Agent a certificate substantially in the form of Exhibit B hereto, dated the Closing Date and executed by an authorized officer of the Administrative Agent, to the effect that:

 

(i)            the representations and warranties of the Administrative Agent in this Agreement and in the Related Documents to which the Administrative Agent is a party are accurate in all material respects as of the Closing Date, with the same effect as if made on the Closing Date; and

 

(ii)           the Administrative Agent has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or before the Closing Date.

 

(f)       The initial Series 2008-A1 Holders shall have received the following:

 

(i)            with respect to the Administrative Agent, a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than ten (10) days before the Closing Date;

 

(ii)           with respect to WEST, a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than ten (10) days before the Closing Date; and

 

(iii)          with respect to WEST Funding, a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than ten (10) days before the Closing Date.

 

(g)      The initial Series 2008-A1 Holders shall have received from the Secretary or other authorized officer of the Administrative Agent, in the officer’s individual capacity, a certificate, dated the Closing Date, to the effect that:

 

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(i)            each individual who, as an officer or representative of the Administrative Agent, signed this Agreement, any Related Document or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated in this Agreement or in the Related Documents was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified, and acting as such officer or representative, and the signature of the individual appearing on the documents and certificates is the officer’s or representative’s genuine signature;

 

(ii)           no event (including any act or omission on the part of the Administrative Agent) has occurred since the date of the good standing certificate referred to in paragraph (f)(i) above that has affected the good standing of the Administrative Agent under the laws of the State of Delaware; and

 

(iii)          attached to such certificate are accurate copies of the organizational documents of the Administrative Agent, as in effect on the Closing Date, and of the resolutions of the Administrative Agent and any required consent relating to the transactions contemplated in this Agreement and the Related Documents.

 

(h)      The initial Series 2008-A1 Holders shall have received a certificate, signed by any Controlling Trustee of WEST and dated the Closing Date, to the effect that:

 

(i)            each individual who, as such Controlling Trustee or other representative of WEST, signed this Agreement, any Related Document, or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated in this Agreement or in the Related Documents, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified, and acting as such Controlling Trustee or representative, and the signature of the individual appearing on the documents and certificates is such Controlling Trustee’s or representative’s genuine signature;

 

(ii)           no event (including any act or omission on the part of WEST) has occurred since the date of the good standing certificate referred to in paragraph (f)(ii) above that has affected the good standing of WEST under the laws of the State of Delaware; and

 

(iii)          attached to such certificate are accurate copies of the trust agreement of WEST, as in effect on the Closing Date, and of the resolutions of WEST, and of any required consent relating to the transactions contemplated in this Agreement and the Related Documents.

 

(i)        The initial Series 2008-A1 Holders shall have received from the Secretary or other authorized officer of WEST Funding, in the officer’s individual capacity, a certificate, dated the Closing Date, to the effect that:

 

(i)            each individual who, as an officer or representative of WEST Funding, signed any Related Document to which it is a party, or any other document or certificate delivered on or before the Closing Date in connection with the transactions

 

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contemplated in the Related Documents, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified, and acting as such officer or representative, and the signature of the individual appearing on the documents and certificates is the officer’s or representative’s genuine signature;

 

(ii)           no event (including any act or omission on the part of WEST Funding) has occurred since the date of the good standing certificate referred to in paragraph (f)(iii) above that has affected the good standing of WEST Funding under the laws of  the State of Delaware; and

 

(iii)          attached to such certificate are accurate copies of the organizational documents of WEST Funding, as in effect on the Closing Date, and of the resolutions of WEST Funding, and of any required consent relating to the transactions contemplated in this Agreement and the Related Documents.

 

(j)        The initial Series 2008-A1 Holders shall have received from Thomas C. Nord, in his capacity as General Counsel of the Administrative Agent, and Pillsbury Winthrop Shaw Pittman LLP, in its capacity as special New York counsel for the Administrative Agent, WEST and WEST Funding, an opinion or opinions, dated the Closing Date and addressed to the Indenture Trustee, the Security Trustee and the Series 2008-A1 Holders, addressing corporate/entity matters, enforceability, security interest, tax and securities law matters, that is or are in form and substance reasonably acceptable to the initial Series 2008-A1 Holders.

 

(k)       The initial Series 2008-A1 Holders shall have received from Pillsbury Winthrop Shaw Pittman LLP, in its capacity as special bankruptcy counsel for the Administrative Agent, WEST and WEST Funding, an opinion, dated the Closing Date and addressed to the Indenture Trustee, the Security Trustee and the Series 2008-A1 Holders, addressing substantive consolidation with respect to WEST and its subsidiaries and Willis and the sale of the 2008 Engines from Willis to WEST, in each case under the U.S. federal bankruptcy law, that is in form and substance acceptable to the initial Series 2008-A1 Holders.

 

(l)        The initial Series 2008-A1 Holders shall have received from Seward & Kissel, LLP, in its capacity as special New York counsel for the Indenture Trustee, an opinion or opinions, dated the Closing Date and addressed to the Series 2008-A1 Holders, addressing corporate/entity and enforceability matters, that is or are in form and substance reasonably acceptable to the initial Series 2008-A1 Holders.

 

(m)      The initial Series 2008-A1 Holders shall have received from Morris, James, Hitchens & Williams LLP, in its capacity as special Delaware counsel for WEST and WEST Funding, an opinion or opinions, dated the Closing Date and addressed to the Indenture Trustee, the Security Trustee and the Series 2008-A1 Holders, addressing Delaware entity and security interest perfection matters, that is or are in form and substance reasonably acceptable to the initial Series 2008-A1 Holders.

 

(n)      The Series 2008-A1 Notes shall have been rated by Moody’s and Fitch not less than “Baa1” and “A”, respectively, and such ratings shall not have been rescinded.

 

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(o)     The Series 2008-A1 Related Documents shall have been duly executed and delivered by the parties thereto.

 

(p)     The Series 2008-A1 Notes shall have been executed by WEST and authenticated by the Indenture Trustee, and the conditions precedent to the issuance of the Series 2008-A1 Notes as set forth in the Indenture shall have been satisfied.

 

(q)     All proceedings in connection with the transactions contemplated by this Agreement and the other Series 2008-A1 Related Documents shall be satisfactory in form and substance to the initial Series 2008-A1 Holders.

 

(r)      WEST shall have paid all costs and expenses incurred in connection with the issuance of the Series 2008-A1 Notes.

 

(s)      The Indenture Trustee shall have received originals (or copies certified to be true copies by a Responsible Officer of the Administrative Agent) of all approvals or consents of Governmental Authorities or other third parties, if any, necessary for WEST to execute, deliver and perform its obligations under the Related Documents and the transactions contemplated thereby.

 

(t)      No Applicable Law or regulations thereunder or interpretations thereof by appropriate regulatory authorities or any court make it illegal for any party to execute, deliver and perform the Series 2008-A1 Related Documents to which it is a party and no action or proceeding shall have been instituted nor shall any action or proceeding be threatened before any court or Governmental Authority, nor shall any order, judgment or decree have been issued by any court or Governmental Authority prior to the Closing Date to set aside, restrain, enjoin or prevent the completion and consummation of this Agreement or any other Series 2008-A1 Related Document or the transactions contemplated hereby or thereby.

 

Section 3.02.    Conditions Precedent to Obligation of WEST to Issue Series 2008-A1 Notes .  The obligations of WEST to issue the Series 2008-A1 Notes to each Series 2008-A1 Holder is subject to satisfaction of the following conditions precedent:

 

(a)      The representations and warranties of such Series 2008-A1 Holder in this Agreement are accurate in all material respects as of the Closing Date.

 

(b)     Such Series 2008-A1 Holder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or before the Closing Date.

 

(c)      Such Series 2008-A1 Holder shall have made its Series 2008-A1 Loan in the amount of its Commitment set forth beside its name in Schedule 2 .

 

(d)     The Series 2008-A1 Holders shall have made Series 2008-A1 Loans in the amount of the total Commitment of all the Series 2008-A1 Holders, and the Series 2008-B1 Holders shall have made Series 2008-B1 Loans in the amount of the total Commitment of all the Series 2008-B1 Holders.

 

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(e)      WEST shall have received from Seward & Kissel, LLP, in its capacity as special New York counsel for the Indenture Trustee, an opinion or opinions, dated the Closing Date and addressed to WEST, addressing corporate/entity and enforceability matters, that is or are in form and substance reasonably acceptable to WEST.

 

(f)      The Series 2008-A1 Notes shall have been rated by Moody’s and Fitch not less than “Baa1” and “A”, respectively, and such ratings shall not have been rescinded.

 

(g)     The Series 2008-A1 Related Documents and the Series 2008-B1 Related Documents shall have been duly executed and delivered by the parties thereto other than WEST and the WEST Subsidiaries.

 

ARTICLE IV

 

REPRESENTATIONS AND WARRANTIES OF WEST AND ADMINISTRATIVE AGENT

 

Section 4.01.    Representations and Warranties of WEST .  WEST represents and warrants to, as of the Closing Date, and agrees with, the Series 2008-A1 Holders that:

 

(a)      WEST has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware with organizational power and authority to own, lease and operate its properties and to conduct its business as described in the Indenture, has been duly qualified as a foreign trust to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualified would not have a material adverse effect on (i) its condition (financial or otherwise), results of operations, assets, affairs of WEST and the WEST Subsidiaries taken as a whole, or (ii) the ability of WEST to perform its obligations under any Related Document to which it is a party, or (iii) the enforceability of any Related Document including the ability of the Indenture Trustee to enforce its rights under any Related Document (a material adverse effect on any of (i), (ii) and (iii) above, a “Material Adverse Effect” ).

 

(b)     WEST Funding has been duly formed and is validly existing as a Delaware limited liability company in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as currently conducted, has been duly qualified as a foreign limited liability company to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualified would not have a Material Adverse Effect.

 

(c)      WEST has all requisite organizational power and authority to execute, deliver and perform its obligations under this Agreement and the other Related Documents and to consummate the transactions contemplated hereby and thereby, including, without limitation, the organizational power and authority to issue, sell and deliver the Series 2008-A1 Notes as provided herein and therein and to borrow Series 2008-A1 Loans as provided herein.

 

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(d)     This Agreement and each of the other Related Documents to which WEST is a party have been, or as of the Closing Date will be, duly authorized, executed and delivered by WEST and constitute or will constitute valid and legally binding agreements enforceable against WEST in accordance with their terms, except as enforceability may be limited by (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, receivership, moratorium or other similar laws affecting the enforcement of the rights of creditors generally, (B) general principles of equity, whether enforcement is sought in a proceeding in equity or at law, and (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of such Related Documents that purport to provide indemnification from securities law liabilities.

 

(e)      The Series 2008-A1 Notes have been duly and validly authorized by WEST for issuance and sale to the Series 2008-A1 Holders pursuant to this Agreement and, when issued and authenticated in accordance with the terms of the Indenture and the Series 2008-A1 Supplement and delivered against payment therefor in accordance with the terms hereof, will constitute valid and legally binding obligations of WEST, enforceable against WEST in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies, and to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (whether considered in a proceeding at law or in equity), and will be entitled to the benefits of the Indenture.

 

(f)      Neither WEST nor any WEST Subsidiary is (A) in violation of its organizational documents, (B) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which WEST or any WEST Subsidiary is a party, or to which any of the property or assets of WEST or of any WEST Subsidiary may be subject, or by which it may be bound, or (C) in violation of any applicable local, state or federal law, statute, ordinance, rule, regulation, requirement, judgment or court decree having jurisdiction over any of them or any of their assets or properties (whether owned or leased) other than, in the ca