Exhibit 10.17
EXECUTION VERSION
WILLIS ENGINE SECURITIZATION TRUST,
as issuer of Series 2008-B1
Notes,
and
WILLIS LEASE FINANCE CORPORATION,
as Administrative Agent,
and
CALYON SECURITIES (USA) INC.,
as the Initial Series 2008-B1
Holder
SERIES 2008-B1 NOTE PURCHASE AND
LOAN AGREEMENT
Dated as of March 25, 2008
SERIES 2008-B1 NOTES
TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS
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Section 1.01.
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Definitions
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2
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Section 1.02.
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Rules of Construction
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3
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ARTICLE II
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PURCHASE AND SALE
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Section 2.01.
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Sale and Delivery of Series 2008-B1
Notes
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4
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Section 2.02.
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Funding of Series 2008-B1 Loan
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4
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Section 2.03.
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Closing
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4
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ARTICLE III
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CONDITIONS PRECEDENT TO OBLIGATIONS OF INITIAL
SERIES 2008-B1 HOLDER
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Section 3.01.
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Conditions Precedent to Obligations of Initial
Series 2008-B1 Holder to Purchase Series 2008-B1
Notes
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5
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Section 3.02.
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Conditions Precedent to Obligation of WEST to
Issue Series 2008-B1 Notes
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9
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ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF WEST AND
ADMINISTRATIVE AGENT
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Section 4.01.
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Representations and Warranties of
WEST
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10
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Section 4.02.
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Representations and Warranties of Administrative
Agent
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14
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ARTICLE V
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REPRESENTATIONS AND WARRANTIES OF INITIAL SERIES
2008-B1 HOLDER
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Section 5.01.
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Execution, Delivery, Binding
Obligation
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15
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Section 5.02.
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Securities Act
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16
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ARTICLE VI
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CERTAIN COVENANTS OF PARTIES
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Section 6.01.
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Securities Act
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18
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Section 6.02.
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Legal Conditions to Closing
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18
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Section 6.03.
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Expenses and Fees
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18
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Section 6.04.
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Further Assurances
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18
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ARTICLE VII
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INDEMNIFICATION
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Section 7.01.
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Indemnification by WEST
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18
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Section 7.02.
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Indemnification by Administrative
Agent
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19
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Section 7.03.
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Procedure
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19
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Section 7.04.
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Defense of Claims
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19
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ARTICLE VIII
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MISCELLANEOUS
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Section 8.01.
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Amendments
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20
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Section 8.02.
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Notices
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20
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Section 8.03.
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No Waiver; Remedies
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21
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Section 8.04.
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Binding Effect; Assignability; Continuing
Obligation
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21
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Section 8.05.
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GOVERNING LAW; JURISDICTION
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21
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Section 8.06.
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Execution in Counterparts
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21
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Section 8.07.
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Survival
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21
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Section 8.08.
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Appointment of Agent for Service of
Process
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22
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Section 8.09.
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Table of Contents; Headings
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22
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Section 8.10.
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WAIVER OF JURY TRIAL
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22
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Section 8.11.
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USA PATRIOT Act
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22
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Section 8.12.
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Severability
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22
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SCHEDULES
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SCHEDULE 1
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Address of Initial Series 2008-B1
Holder
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SCHEDULE 2
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Commitment of Initial Series 2008-B1
Holder
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EXHIBITS
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EXHIBIT A
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Form of Controlling Trustee Closing Date
Certificate
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EXHIBIT B
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Form of Administrative Agent Closing Date
Certificate
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ii
This SERIES 2008-B1 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 CALYON SECURITIES (USA) INC., as the
initial Series 2008-B1 Holder (the “ Initial
Series 2008-B1 Holder ”).
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 B Term Notes and designated as
“Willis Engine Securitization Trust Series 2008-B1
Floating Rate Secured Notes”, the proceeds of which are to be
used to refinance the Series 2005-B2 Warehouse Notes;
and
WHEREAS, WEST and the Indenture
Trustee will enter into the Series 2008-B1 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-B1 Supplement ”), pursuant to which
WEST is to issue the Series 2008-B1 Notes in the initial
Outstanding Principal Balance of $20,282,212;
WHEREAS, the Initial
Series 2008-B1 Holder is willing to make the
Series 2008-B1 Loan to WEST in the amount of its Commitment on
the Closing Date, and the obligation of WEST to repay such
Series 2008-B1 Loan to such Series 2008-B1 Holder will be
represented by a Series 2008-B1 Note held by such
Series 2008-B1 Holder;
NOW THEREFORE, for good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1
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, for the Initial Series 2008-B1 Holder, the amount
set forth opposite the name of such Series 2008-B1 Holder in
Schedule 2 attached hereto.
“ Material Adverse
Effect ” has the meaning specified in
Section 4.01(a) hereof.
“ Notes ” means
the Series A Notes and the Series B 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.
“ 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 pages to the
Series 2008-A1 Note Purchase Agreement 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.
2
“ Series 2008-A1
Loan ” means the loan made by the Series 2008-A1
Holders to WEST pursuant to the Series 2008-A1 Supplement and
the Series 2008-A1 Note Purchase Agreement.
“ Series 2008-A1 Note
Purchase Agreement ” means the Series 2008-A1 Note
Purchase and Loan Agreement, dated as of March 25, 2008, among
WEST, the Administrative Agent and the Series 2008-A1 Holders,
as amended, modified or supplemented from time to time in
accordance with its terms.
“ 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 2008-A1
Supplement ” means the Series 2008-A1 Supplement to
the Indenture, to be dated as of March 28, 2008, between WEST
and the Indenture Trustee.
“ 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 Initial
Series 2008-B1 Holder 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
Loan ” means the loan made to WEST by the Initial
Series 2008-B1 Holder pursuant to Article II
hereof.
“ Series 2008-B1
Notes ” means the notes issued pursuant hereto and the
Series 2008-B1 Supplement.
“ 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.
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.
3
ARTICLE
II
PURCHASE AND
SALE
Section 2.01.
Sale and Delivery of
Series 2008-B1 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-B1
Supplement, WEST agrees to sell, and the Initial
Series 2008-B1 Holder, agrees to purchase, on the Closing
Date, a Series 2008-B1 Note with the initial Outstanding
Principal Balance for such Series 2008-B1 Holder set forth in
Schedule 2 hereto. Such Series 2008-B1 Note shall be
duly executed by WEST, duly authenticated by the Indenture Trustee
and registered in the name of the Initial Series 2008-B1
Holder.
Section 2.02.
Funding of
Series 2008-B1 Loan . On the terms and
conditions hereinafter set forth, Calyon Securities (USA) Inc., as
the Initial Series 2008-B1 Holder, agrees that it will make
the Series 2008-B1 Loan to WEST in an amount equal to such
Series 2008-B1 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-B1 Supplement.
Section 2.03.
Closing . (a) The issuance of the
Series 2008-B1 Notes and the making of the Series 2008-B1
Loan 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 the Initial Series 2008-B1 Holder and the Senior
Liquidity Provider at least two (2) days prior to such Closing
Date. At the Closing, WEST will cause a Series 2008-B1 Note in
an initial Outstanding Principal Balance equal to the amount set
forth beside the name of the Initial Series 2008-B1 Holder in
Schedule 2 to be issued and registered in the name of such
Series 2008-B1 Holder or its nominee (if so stated) and
delivered in definitive physical form to such Series 2008-B1
Holder or its agent at the address for delivery notified to WEST,
subject to such Series 2008-B1 Holder making the
Series 2008-B1 Loan in U.S. dollars in the amount of such
Series 2008-B1 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 the Initial
Series 2008-B1 Holder upon written request for all losses,
damages, liabilities and reasonable expenses that such
Series 2008-B1 Holder sustains as a result of the failure of
WEST to borrow all or any part of the Series 2008-B1 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.
4
ARTICLE III
CONDITIONS
PRECEDENT TO OBLIGATIONS OF INITIAL SERIES 2008-B1
HOLDER
Section 3.01.
Conditions Precedent to
Obligations of Initial Series 2008-B1 Holder to Purchase
Series 2008-B1 Notes . The obligations of the Initial
Series 2008-B1 Holder to purchase the Series 2008-B1
Notes and to make the Series 2008-B1 Loan 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-B1 Supplement and the Series 2008-A1
Supplement.
(b)
WEST and the
Administrative Agent shall have executed and delivered this
Agreement.
(c)
WEST, the
Administrative Agent and the initial Series 2008-A1 Holders
shall have executed and delivered the Series 2008-A1 Note
Purchase Agreement.
(d)
Each of the
following shall be true, and the Initial Series 2008-B1 Holder
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-B1 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;
(iv)
on the Closing
Date, the Series 2008-A1 Loan is also being made by the
Series 2008-A1 Holders under the Series 2008-A1 Note
Purchase Agreement in an amount equal to the
“Commitments” of the Series 2008-A1 Holders under
the Series 2008-A1 Note Purchase Agreement (as defined
therein);
(v)
before and after
giving effect to the Series 2008-B1 Loan to be made on the
Closing Date, no Junior 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-B1 Note or the making of the Series 2008-B1
Loan on the Closing Date.
5
(e)
Each of the
following shall be true, and the Initial Series 2008-B1 Holder
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-B1 Holder 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-B1 Holder 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:
(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
6
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-B1 Holder 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-B1 Holder 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 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.
7
(j)
The Initial
Series 2008-B1 Holder 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 Initial
Series 2008-B1 Holder, 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-B1 Holder.
(k)
The Initial
Series 2008-B1 Holder 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 Initial Series 2008-B1
Holder, addressing substantive consolidation with respect to WEST
and its subsidiaries and Willis and the sale of the 2008 Engines
(as defined in the Series 2008-A1 Note Purchase Agreement)
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-B1 Holder.
(l)
The Initial
Series 2008-B1 Holder 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 Initial Series 2008-B1
Holder, addressing corporate/entity and enforceability matters,
that is or are in form and substance reasonably acceptable to the
Initial Series 2008-B1 Holder.
(m)
The Initial
Series 2008-B1 Holder 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 Initial Series 2008-B1 Holder,
addressing Delaware entity and security interest perfection
matters, that is or are in form and substance reasonably acceptable
to the Initial Series 2008-B1 Holder.
(n)
The
Series 2008-B1 Notes shall have been rated by Moody’s
and Fitch not less than “Baa3” and “BBB”,
respectively, and such ratings shall not have been
rescinded.
(o)
The
Series 2008-B1 Related Documents shall have been duly executed
and delivered by the parties thereto.
(p)
The
Series 2008-B1 Notes shall have been executed by WEST and
authenticated by the Indenture Trustee, and the conditions
precedent to the issuance of the Series 2008-B1 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-B1 Related Documents shall be
satisfactory in form and substance to the Initial
Series 2008-B1 Holder.
(r)
WEST shall have
paid all costs and expenses incurred in connection with the
issuance of the Series 2008-B1 Notes.
8
(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-B1 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-B1 Related Document or the
transactions contemplated hereby or thereby.
Section 3.02.
Conditions
Precedent to Obligation of WEST to Issue Series 2008-B1
Notes (a)
. The
obligations of WEST to issue the Series 2008-B1 Notes to the
Initial Series 2008-B1 Holder is subject to satisfaction of
the following conditions precedent:
(a)
The
representations and warranties of such Series 2008-B1 Holder
in this Agreement are accurate in all material respects as of the
Closing Date.
(b)
Such
Series 2008-B1 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-B1 Holder shall have made the Series 2008-B1
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.
(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-B1 Notes shall have been rated by Moody’s
and Fitch not less than “BaB1” and “A”,
respectively, and such ratings shall not have been
rescinded.
(g)
The
Series 2008-B1 Related Documents and the Series 2008-A1
Related Documents shall have been duly executed and delivered by
the parties thereto other than WEST and the WEST
Subsidiaries.
9
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 Initial Series 2008-B1 Holder 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-B1 Notes as provided herein and therein and to
borrow Series 2008-B1 Loan as provided herein.
(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-B1 Notes have been duly and validly authorized by
WEST for issuance and sale to the Initial Series 2008-B1
Holder pursuant to this Agreement and, when
10
issued and authenticated in
accordance with the terms of the Indentur
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