Exhibit 10.25
FOURTH AMENDMENT
TO CERTAIN OPERATIVE AGREEMENTS
THIS FOURTH AMENDMENT TO CERTAIN OPERATIVE AGREEMENTS, dated as of November
15, 2004 (this "Fourth Amendment"), is entered into by and among WEST FACILITIES
CORPORATION, a Delaware corporation (the "Lessee"), WEST CORPORATION, a Delaware
corporation ("West Corp."), and the various entities which are parties to the
Participation Agreement (hereinafter defined) from time to time as guarantors
(individually, a "Guarantor" and collectively, the "Guarantors"), WACHOVIA
DEVELOPMENT CORPORATION, a North Carolina corporation (the "Borrower" or the
"Lessor"); the various banks and other lending institutions which are parties to
the Participation Agreement from time to time as lenders (subject to the
definition of Lenders in Appendix A to the Participation Agreement,
individually, a "Lender" and collectively, the "Lenders"); and WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association, as the agent for the
Primary Financing Parties and respecting the Security Documents, as the agent
for the Secured Parties (in such capacity, the "Agent"). Capitalized terms used
but not otherwise defined in this Fourth Amendment shall have the meanings set
forth in Appendix A to the Participation Agreement, and the rules of usage set
forth in Appendix A to the Participation Agreement shall apply herein.
WITNESSETH
WHEREAS, the parties to this Amendment are parties to that certain
Participation Agreement dated as of May 9, 2003, as amended by the First
Amendment to Certain Operative Agreements and Waiver dated as of October 31,
2003 and as further amended by the Second Amendment to Certain Operative
Agreements dated as of January 22, 2004 (as amended, modified, supplemented or
restated from time to time, the "Participation Agreement").
WHEREAS, the Lessee and the Lessor are parties to that certain Amended and
Restated Lease Agreement dated as of May 9, 2003, as amended by the Third
Amendment to Certain Operative Agreements dated as of August 9, 2004 (as
amended, modified, supplemented or restated from time to time, the "Lease" or
"Lease Agreement").
WHEREAS, the parties to this Fourth Amendment have agreed to the amendments
set forth herein, subject to the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
AMENDMENTS
1.1 Amendment to Section 5.6 of the Participation Agreement. Section 5.6
of the Participation Agreement is hereby deleted in its entirety and replaced by
the following:
5.6 SPECIAL PROVISION REGARDING CREDIT PARTIES.
It is the express intent of each of the parties hereto that the group
of Credit Parties under the Operative Agreements and the group consisting
of the borrower and guarantors under the Guarantor Credit Agreement contain
the same members in each group while the facilities contemplated by the
Operative Agreements and the GCA Credit Documents are outstanding. As a
result, certain Subsidiaries of the Credit Parties will join the Operative
Agreements from time to time in accordance with Section 8A.10 and pursuant
to this Section 5.6 certain of the Credit Parties (other than the Parent
and the Lessee) may be released from the Operative Agreements pursuant to
the terms and conditions set forth in this Section 5.6. Provided no Lease
Default, Lease Event of Default or Guaranty Event of Default has occurred
and is continuing, if (a) the Guarantor Credit Agreement is terminated and
not replaced by any other facility and so long as none of the Parent, the
Lessee or any other Subsidiary, direct or indirect, of the Parent has
outstanding any Indebtedness or any facility with commitments to provide
Indebtedness in excess of one hundred fifty million dollars ($150,000,000)
(other than the amounts outstanding pursuant to the Operative Agreements
and subordinated Indebtedness, which shall be expressly subordinated, to
the satisfaction of the Primary Financing Parties, to the transactions and
payment of the Credit Party obligations contemplated by the Operative
Agreements) or (b) the GCA Lenders release any GCA Credit Party other than
the Parent or the Lessee from all of the GCA Credit Party Obligations, all
of such GCA Credit Party's obligations owing to the GCA Lenders in the GCA
Credit Documents, all GCA Liens on any property or interest of any GCA
Credit Party in favor or for the benefit of the GCA Lenders and the
Guarantor Credit Agreement have not been terminated, restated or replaced,
then, with respect to (a) above, upon written request of the Parent and the
Lessee or with respect to (b) above, upon the later of (y) the
effectiveness of such release under the Guarantor Credit Agreement and (z)
delivery to the Agent, for the benefit of the Primary Financing Parties, of
the same consideration and benefit including without limitation, amendments
or modifications to the GCA Credit Documents or otherwise (including
without limitation restatement or replacement facilities) which are
favorable to the GCA Lenders, fees, increased pricing or other amounts paid
to the GCA Lenders or collateral pledged to or for the benefit of the GCA
Lenders; then such Credit Parties (in all cases other than the Parent and
the Lessee) shall be deemed released from the Guaranteed Obligations under
the Operative Agreements and the Financing Parties shall upon written
request of the Parent and the Lessee provide written confirmation of such
release in form and substance acceptable to such Financing Parties.
Immediately upon such release, such released Credit Party shall no longer
be a Credit Party to the Operative Agreements and all provisions related to
the Credit Parties shall, from and after the
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effectiveness of such release, no longer include such released party. In
the case of (a), above, in addition to the release of the applicable Credit
Parties, the covenants in Section 8B shall no longer apply (provided, terms
defined therein or sections referenced in other provisions shall continue)
to any Credit Party after such time, provided, the Parent, the Lessee and
their Subsidiaries do not have any Indebtedness in excess of one hundred
fifty million dollars ($150,000,000) (other than the amounts outstanding
pursuant to the Operative Agreements and subordinated Indebtedness, which
shall be expressly subordinated, to the satisfaction of the Primary
Financing Parties, to the transactions and payment of the Credit Party
obligations contemplated by the Operative Agreements) outstanding at any
time during the Term. In the event the Parent, the Lessee or any of their
Subsidiaries has any Indebtedness in excess of one hundred fifty million
dollars ($150,000,000) (other than the amounts outstanding pursuant to the
Operative Agreements and subordinated Indebtedness, which shall be
expressly subordinated, to the satisfaction of the Primary Financing
Parties, to the transactions and payment of the Credit Party obligations
contemplated by the Operative Agreements) outstanding during the Term, then
Section 8B of the Participation Agreement shall automatically be reinstated
and such provisions shall have full force and effect from such date through
the Expiration Date and the Parent and the Lessee shall promptly, but in
any event within thirty (30) days of incurring such Indebtedness, cause
each of the parties which were previously Credit Parties (or their
successors) to join the Operative Agreements as Guarantors and provide an
executed Joinder Agreement from each such party and other documentation as
reasonably requested by any Primary Financing Party (including without
limitation documents executed by each Credit Party satisfactory to the
Primary Financing Parties evidencing the reinstatement of Section 8B of the
Participation Agreement, provided, such Section 8B shall be automatically
reinstated regardless of whether such documents are executed).
Notwithstanding the foregoing, no Property, Collateral, Security Document,
other Operative Agreement or any other Credit Party (except, with respect
to other Credit Parties, as expressly provided herein) shall be released
hereby and such released Credit Parties shall not be released from: (aa)
any obligations which were due and owing prior to the effectiveness of such
release, (bb) any of the indemnity provisions of the Operative Agreements,
including without limitation Section 11 of the Participation Agreement or
(cc) any other provision of any Operative Agreement which by its terms
continues after the release of a Credit Party or after the termination of
the Operative Agreements.
1.2 Amendment to Section 5.7 of the Participation Agreement. Section 5.7
of the Participation Agreement is hereby deleted in its entirety and replaced by
the following:
5.7 SPECIAL PROVISION REGARDING REPLACEMENT OF LENDERS.
In the event a Lender does not consent to (or is deemed to have
rejected) a Renewal Term proposed by Lessee in accordance with Section 2.2
of the Lease, opposes or fails to respond to any amendment, change or
waiver with respect to any Operative Agreements, which is requested by the
Lessee and approved by the Super Majority Financing Parties, or becomes
affected by any changes or events described in Sections 11.3(a) or (b) and
petitions the Lessee for any increased costs or amounts
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thereunder (which increased costs or amounts are paid by the Lessee), the
Lessee shall have the right to replace such a Lender as a party to this
Agreement and the other relevant Operative Agreements, the Lessee may, upon
notice to such Lender and the Agent, replace such Lender by causing such
Lender to assign its Lender Commitment, if any, and its Loan (with the
assignment fee to be paid by the Lessee in such instance) pursuant to
Section 10 hereof and Sections 9.7 and 9.8 of the Credit Agreement and the
other applicable terms and conditions in the Operative Agreements to one or
more other Lenders or eligible assignees procured by the Lessee. To the
extent not paid by the replacement Lender, the Lessee shall (a) pay in full
all principal, interest, fees and other amounts owing to such Lender
through the date of replacement, (b) provide appropriate assurances and
indemnities as each replaced Lender may reasonably require with respect to
the Operative Agreements, and (c) release such Lender from its obligations
under the Operative Agreements, other than pursuant to Section 12.13. Any
Lender being replaced and the replacement Lenders shall execute and deliver
an Assignment and Acceptance in the form of Exhibit B to the Credit
Agreement and take actions to comply with Section 10 hereof and Sections
9.7 and 9.8 of the Credit Agreement and the other applicable terms and
conditions in the Operative Agreements.
1.3 Addition of Section 8.14 to the Participation Agreement. The
Participation Agreement is hereby amended by adding Section 8.14 thereto as
follows:
8.14. COORDINATED VOTING MECHANICS REGARDING GCA CREDIT DOCUMENTS AND
OPERATIVE AGREEMENTS.
To the extent any party to this Agreement (or any Affiliate of any
such party) (a) approves in writing a waiver, amendment or other
modification to a provision set forth in a GCA Credit Document that is
substantively identical to a provision set forth in an Operative Agreement,
then the applicable party to this Agreement shall automatically be deemed
to have voted in favor of the requested waiver, amendment or other
modification regarding such corresponding provision in such Operative
Agreement without the need for the applicable party to this Agreement to
execute a separate written instrument to such effect and (b) disapproves in
writing a waiver, amendment or other modification to a provision set forth
in a GCA Credit Document that is substantively identical to a provision set
forth in an Operative Agreement, then the applicable party to this
Agreement shall automatically be deemed to have voted against the requested
waiver, amendment or other modification regarding such corresponding
provision in such Operative Agreement without the need for the applicable
party to this Agreement to execute a separate written instrument to such
effect.
1.4 Amendment to Sections 8A and 8B to the Participation Agreement.
Sections 8A and 8B of the Participation Agreement are hereby deleted in their
entirety and replaced by the following:
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SECTION 8A. AFFIRMATIVE COVENANTS OF THE CREDIT PARTIES
The Credit Parties hereby covenant and agree that on the Initial
Closing Date, and thereafter for so long as any Operative Agreement is in
effect and until the Commitments have terminated, the Loans and the Lessor
Advances are paid in full, all amounts accrued or due and owing from any
Credit Party pursuant to any Operative Agreement have been paid in full and
the Liens evidenced by the Security Documents have been released, each
Credit Party shall, and shall cause each of the GCA Subsidiaries (other
than in the case of Sections 8A.1, 8A.2 or 8A.7 hereof), to:
8A.1. FINANCIAL STATEMENTS.
Furnish to the Agent and each of the Primary Financing Parties:
(a) As soon as available, but in any event within ninety (90)
days after the end of each fiscal year of the Parent, a copy of the
consolidated balance sheet of the Parent and its Consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated and consolidating statements of income and retained
earnings and of consolidated cash flows of the Parent and its
Consolidated Subsidiaries for such year which, other than in the case
of the consolidating statements, shall be audited by a firm of
independent certified public accountants of nationally recognized
standing reasonably acceptable to the Primary Financing Parties,
setting forth in each case in comparative form the figures for the
previous year, reported on without a "going concern" or like
qualification or exception, or qualification indicating that the scope
of the audit was inadequate to permit such independent certified
public accountants to certify such financial statements without such
qualification;
(b) As soon as available and in any event within forty-five (45)
days after the end of each of the first three fiscal quarters of the
Parent, a copy of the unaudited consolidated balance sheet of the
Parent and its Consolidated Subsidiaries as at the end of such period
and related consolidated and consolidating statements of income and
retained earnings and of consolidated cash flows for the Parent and
its Consolidated Subsidiaries for such quarterly period and for the
portion of the fiscal year ending with such period, in each case
setting forth in comparative form consolidated figures for the
corresponding period or periods of the preceding fiscal year (subject
to normal recurring year-end audit adjustments); and
(c) As soon as available, but in any event within fifteen (15)
days prior to the end of each fiscal year, a copy of the detailed
annual operating budget or plan including cash flow projections of the
Parent and its GCA Subsidiaries for the next four fiscal quarter
period prepared on a quarterly basis, in form and detail reasonably
acceptable to the Agent and the Primary Financing Parties, together
with a summary of the material assumptions made in the preparation of
such annual budget or plan;
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all such financial statements to be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and to be prepared in reasonable detail and, in
the case of the annual and quarterly financial statements provided in
accordance with subsections (a) and (b) above, in accordance with GAAP
applied consistently throughout the periods reflected therein and further
accompanied by a description of, and an estimation of the effect on the
financial statements on account of, a change, if any, in the application of
accounting principles as provided in Section (n) of the rules of usage in
Appendix A hereto.
8A.2. CERTIFICATES; OTHER INFORMATION.
Furnish to the Agent and each of the Primary Financing Parties:
(a) concurrently with the delivery of the financial statements
referred to in Section 8A.1 above, a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified
in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 8A.1(a) and 8A.1(b) above, a certificate of a
Responsible Officer stating that, to the best of such Responsible
Officer's knowledge, each of the GCA Credit Parties during such period
observed or performed in all material respects all of its covenants
and other agreements, and satisfied in all material respects every
condition, contained in the Operative Agreements to be observed,
performed or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate and such certificate shall include the
calculations in reasonable detail required to indicate compliance with
Section 8A.9 as of the last day of such period;
(c) within thirty (30) days after the same are provided, make
available by electronic mail or by posting to the Parent's website
copies of all reports (other than those otherwise provided pursuant to
Section 8A.1 and those which are of a promotional nature) and other
financial information which the Parent sends to its stockholders;
(d) within ninety (90) days after the end of each fiscal year of
the Parent, a certificate containing information regarding the amount
of all (i) Debt Issuances outstanding at the end of the prior fiscal
year and (ii) Equity Issuances that were made during the prior fiscal
year;
(e) promptly upon receipt thereof, a copy of any other report or
"management letter" submitted by independent accountants to the Parent
or any of
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its GCA Subsidiaries in connection with any annual, interim or special
audit of the books of such Person; and
(f) promptly, such other documents or other information as the
Agent, on behalf of any Primary Financing Party, may from time to time
reasonably request.
8A.3. PAYMENT OF OBLIGATIONS.
(a) Perform all of its obligations under each contract to which
it is a party, if a failure to so perform could reasonably be expected
to have a GCA Material Adverse Effect.
(b) Pay and perform all of its obligations under the Operative
Agreements and pay and perform (i) all taxes, assessments and other
governmental charges that may be levied or assessed upon it or any GCA
Property, which if not paid or performed could reasonably be expected
to have a GCA Material Adverse Effect and (ii) all other indebtedness,
obligations and liabilities in accordance with customary trade
practices, which if not paid would have a GCA Material Adverse Effect;
provided that it may contest any tax, assessment or other governmental
charge in good faith so long as adequate reserves are maintained with
respect thereto in accordance with GAAP.
8A.4. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Preserve and maintain its corporate existence and all rights,
franchises, licenses and privileges necessary to the conduct of its
business, and qualify and remain qualified as a foreign corporation (or
partnership, limited liability company or other such similar entity, as the
case may be) and authorized to do business in each jurisdiction in which
the failure to so qualify could reasonably be expected to have a GCA
Material Adverse Effect and shall maintain all licenses, permits and
registrations necessary for the conduct of its operations.
8A.5. MAINTENANCE OF GCA PROPERTY; INSURANCE.
(a) Keep all material property useful and necessary in its
business in good working order and condition (ordinary wear and tear
and obsolescence excepted); and
(b) Maintain with financially sound and reputable insurance
companies insurance on all its material property in at least such
amounts and against at least such risks as are usually insured against
in the same general area by companies engaged in the same or a similar
business; and furnish to the Agent, upon written request, full
information as to the insurance carried; provided, however, that the
Parent and the GCA Subsidiaries may maintain self insurance
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plans (including wholly-owned captive insurance company coverage) to
the extent companies of similar size and in similar businesses do so.
8A.6. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall
be made of all dealings and transactions in relation to its businesses and
activities; and permit, subject to the confidentiality provisions of
Section 12.13, upon at least five (5) Business Days notice from the Agent
(or, if a Default or Event of Default shall have occurred and be
continuing, upon at least one (1) Business Days notice from the Agent),
representatives of the Agent or any Primary Financing Party, from time to
time, to visit and inspect its properties and to inspect, audit and make
extracts from its books, records and files, including without limitation
management letters prepared by independent accountants and to discuss with
its principal officers, and its independent accountants, its business,
assets, liabilities, financial condition, results of operations and
business prospects.
8A.7. NOTICES.
Give notice in writing to the Agent (which shall promptly transmit
such notice to each Primary Financing Party) of:
(a) promptly, but in any event within two (2) Business Days after
the Parent knows or has reason to know thereof, the occurrence of any
Default or Event of Default;
(b) promptly and in any event within five (5) Business Days after
the Parent knows or has reason to know thereof, the commencement of
any (i) Material Proceeding, (ii) loss of or damage to any assets of
the Parent or any GCA Subsidiary that likely will result in a GCA
Material Adverse Effect and (iii) in addition other notice provisions
in the Operative Agreements regarding environmental matters,
litigation, investigation or proceeding involving an environmental
claim or potential liability under Environmental Laws in excess of
$10,000,000;
(c) promptly and in any event within five (5) Business Days after
the Parent knows or has reason to know thereof, default by Parent or
any GCA Subsidiary under any note, indenture, loan agreement, mortgage
or other similar agreement to which the Parent or any GCA Subsidiary
is a party or by which the Parent or any GCA Subsidiary is bound,
which relates to borrowed money, or of any other default under any
other note, indenture, loan agreement, mortgage or other similar
agreement to which the Parent or any GCA Subsidiary is a party or by
which the Parent or any GCA Subsidiary is bound if such other default
may result in a GCA Material Adverse Effect;
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(d) promptly and in any event within thirty (30) days after the
Parent knows or has reason to know thereof: (i) the occurrence or
expected occurrence of any material Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the
creation of any GCA Lien in favor of the PBGC (other than a GCA
Permitted Lien) or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the
PBGC or the Parent or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan; and
(e) promptly and in any event within three (3) Business Days
after the Parent knows or has reason to know thereof, any other
development or event which could reasonably be expected to have a GCA
Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Parent proposes to take with respect
thereto. In the case of any notice of a Default or Event of Default, the
Parent shall specify that such notice is a Default or Event of Default
notice on the face thereof.
8A.8. ENVIRONMENTAL LAWS.
(a) Comply in all material respects with, and ensure compliance
in all material respects by all tenants and subtenants, if any, with,
all applicable Environmental Laws and obtain and comply in all
material respects with and maintain, and ensure that all tenants and
subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws
except to the extent that failure to do so could not reasonably be
expected to have a GCA Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required
under Environmental Laws and promptly comply in all material respects
with all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings and the
pendency of such proceedings could not reasonably be expected to have
a GCA Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Agent and the Primary
Financing Parties, and their respective employees, agents, officers
and directors, from and against any and all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law
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applicable to the operations of the Parent, any of the GCA
Subsidiaries or the GCA Properties, or any orders, requirements or
demands of Governmental Authorities related thereto, including,
without limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of the party
seeking indemnification therefor. The agreements in this paragraph
shall survive repayment of the Notes, Lessor Advances and all other
amounts payable under the Operative Agreements.
8A.9. FINANCIAL COVENANTS.
Commencing on the day immediately following the Closing Date, the
Credit Parties shall comply with the following financial covenants:
(a) The Consolidated Leverage Ratio, as of the last day of each
fiscal quarter of the Consolidated Group shall be less than or equal
to 2.5 to 1.0.
(b) The Consolidated Fixed Charge Coverage Ratio, as of the last
day of each fiscal quarter of the Consolidated Group shall be greater
than or equal to 1.2 to 1.0.
Notwithstanding anything herein to the contrary, the parties hereto
acknowledge and agree that, for purposes of all calculations made in
determining compliance for any applicable period with the financial
covenants set forth in this Section 8A.9, (i) after consummation of any
Permitted Acquisition, (A) income statement items and other balance sheet
items (whether positive or negative) attributable to the Target acquired in
such transaction shall be included in such calculations to the extent
relating to such applicable period, subject to adjustments acceptable to
the Agent in its sole discretion, and (B) Indebtedness of a Target which is
retired in connection with a Permitted Acquisition shall be excluded from
such calculations and deemed to have been retired as of the first day of
such applicable period and (ii) after consummation of any disposition of
GCA Property permitted by Section 8B.4(a)(i), (ii) and (v), (A) income
statement items and other balance sheet items (whether positive or
negative) attributable to the GCA Property disposed of shall be excluded in
such calculations to the extent relating to such applicable period, subject
to adjustments acceptable to the Agent in its sole discretion, and (B)
Indebtedness of the Target which is retired in connection with such Asset
Disposition shall be excluded from such calculations and deemed to have
been retired as of the first day of such applicable period.
8A.10. ADDITIONAL SUBSIDIARY GUARANTORS.
The Credit Parties will cause each Material Domestic GCA Subsidiary
(excluding Worldwide Asset Purchasing, LLC), whether newly formed, after
acquired or otherwise existing, to promptly (but in any event within
fifteen (15) Business Days) become a Guarantor hereunder by way of
execution of a Joinder Agreement.
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8A.11. COMPLIANCE WITH LAW.
To the extent failure to do so would have a GCA Material Adverse
Effect, each Credit Party will, and will cause each of its GCA Subsidiaries
to (a) observe and remain in compliance with all applicable Requirements of
Law and maintain in full force and effect all permits, authorizations,
registrations and consents from any Governmental Authority, in each case
applicable to the conduct of its business, and (b) keep in full force and
effect all licenses, certifications or accreditations necessary for any GCA
Property to carry on its business.
SECTION 8B. NEGATIVE COVENANTS OF THE CREDIT PARTIES
The Credit Parties hereby covenant and agree that on the Closing Date,
and thereafter for so long as any Operative Agreement is in effect and
until the Commitments have terminated, the Loans and the Lessor Advances
are paid in full, all amounts accrued or due and owing from any Credit
Party pursuant to any Operative Agreements have been paid in full and the
Liens evidenced by the Security Documents have been released, that:
SECTION 8B.1 INDEBTEDNESS.
The Parent will not, nor will it permit any GCA Subsidiary to,
contract, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness arising or existing under the Guarantor Credit
Agreement and the other GCA Credit Documents;
(b) Indebtedness of the Parent and the GCA Subsidiaries existing
as of the Closing Date as referenced in the financial statements
referenced in Section 6.3(a) (and set out more specifically in
Schedule 6) hereto and renewals, refinancings or extensions thereof in
a principal amount not in excess of that outstanding as of the date of
such renewal, refinancing or extension;
(c) Indebtedness of the Parent and the GCA Subsidiaries incurred
after the Closing Date consisting of Capital Leases or Indebtedness
incurred to provide all or a portion of the purchase price or cost of
construction of an asset provided that (i) such Indebtedness when
incurred shall not exceed the purchase price or cost of construction
of such asset; (ii) no such Indebtedness shall be refinanced for a
principal amount in excess of the principal balance outstanding
thereon at the time of such refinancing; and (iii) the total principal
amount of all such Indebtedness shall not exceed $25,000,000 at any
time outstanding;
(d) Unsecured intercompany Indebtedness (i) among the GCA Credit
Parties, (ii) among Foreign GCA Subsidiaries, (iii) owing from
Domestic GCA Subsidiaries of the Parent that are not guarantors under
the Guarantor Credit Agreement to Credit Parties, which Indebtedness
is solely for the purpose of
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purchasing third party debt obligations; provided that the aggregate
principal amount of Indebtedness incurred pursuant to this clause
(iii), together with the aggregate amount of Investments and loans
made pursuant to clause (iv) of the definition of Permitted
Investments, shall not exceed $100,000,000 at any time outstanding,
and (iv) owing from GCA Subsidiaries of the Parent that are not
guarantors under the Guarantor Credit Agreement to Credit Parties
(other than Indebtedness incurred pursuant to clause (iii) above);
provided that the aggregate principal amount of Indebtedness incurred
pursuant to this clause (iv), together with the aggregate amount of
Investments and loans made pursuant to clause (v) of the definition of
Permitted Investments, shall not exceed $50,000,000 at any time
outstanding;
(e) Secured intercompany Indebtedness among the Parent and the
GCA Subsidiaries in a principal amount not to exceed $50,000,000 in
the aggregate at any time outstanding; provided that, to the extent a
Credit Party and a Subsidiary that is not a Credit Party are parties
to such intercompany Indebtedness arrangement, such Credit Party shall
be the secured party;
(f) Indebtedness and obligations owing under Hedging Agreements
relating to the loans pursuant to the Guarantor Credit Agreement and
other Hedging Agreements entered into in order to manage existing or
anticipated interest rate, exchange rate or commodity price risks and
not for speculative purposes;
(g) Indebtedness and obligations of GCA Credit Parties owing
under documentary letters of credit for the purchase of goods or other
merchandise (but not under standby, direct pay or other letters of
credit except for the letters of credit under the Guarantor Credit
Agreement) generally in an aggregate principal amount not to exceed
$25,000,000 at any time outstanding;
(h) Guaranty Obligations in respect of Indebtedness of a GCA
Credit Party to the extent such Indebtedness is permitted to exist or
be incurred pursuant to this Section 8B.1;
(i) Indebtedness of the Parent and the GCA Subsidiaries arising
under any Synthetic Leases (other than Indebtedness under the
Operative Agreements set out on Schedule 6) that is pari passu with or
subordinated to the GCA Credit Party Obligations in a principal amount
not to exceed $40,500,000 in the aggregate at any time outstanding;
(j) Indebtedness of the Parent and the GCA Subsidiaries
consisting of unsecured earnout obligations incurred in connection
with Permitted Acquisitions in a principal amount not to exceed
$50,000,000 in the aggregate at any time outstanding;
12
(k) Indebtedness (other than revolving credit facilities
exceeding $50,000,000 in the aggregate and any Synthetic Leases) of
the Parent and the GCA Subsidiaries that is pari passu with or
subordinated to the GCA Credit Party Obligations in an aggregate
principal amount not to exceed $400,000,000 at any time outstanding;
(l) Indebtedness of the Parent and the GCA Subsidiaries relating
to any accounts receivable securitization transaction or transactions;
provided that the principal amount of such Indebtedness does not
exceed $100,000,000 in the aggregate at any time outstanding; and
(m) other Indebtedness of the Parent and the GCA Subsidiaries;
provided that such Indebtedness is non-recourse to the Parent or any
of the GCA Subsidiaries and the principal amount of such Indebtedness
does not exceed $150,000,000 in the aggregate at any time outstanding.
8B.2. GCA LIENS.
The Parent will not, nor will it permit any GCA Subsidiary to,
contract, create, incur, assume or permit to exist any GCA Lien with
respect to any of its property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or hereafter acquired,
except for GCA Permitted Liens.
8B.3. NATURE OF BUSINESS.
The Parent will not, nor will it permit any GCA Subsidiary to, alter
the character of its business in any material respect from that conducted
as of the Closing Date.
8B.4. CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC.
The Parent will not, nor will it permit any GCA Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, sell, transfer,
lease or otherwise dispose of its property or assets or agree to do so
at a future time except the following, without duplication, shall be
expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of
property or assets (A) to an unrelated party not in the ordinary
course of business (other than Specified Sales), where and to the
extent that they are the result of a Recovery Event or (B) the
sale, lease, transfer or other disposition of machinery, parts
and equipment no longer used or useful in the conduct of the
business of the Parent or any of the GCA Subsidiaries, as
appropriate, in its reasonable discretion, so long as and the net
proceeds therefrom are used to repair or replace damaged property
or to purchase or
13
otherwise acquire new assets or property, provided that such
purchase or acquisition is committed to within 180 days of
receipt of the net proceeds and such purchase or acquisition is
consummated within 270 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or assets (at
fair market value) from the Parent to any other GCA Credit Party;
(iv) the sale, lease or transfer of property or assets from
a Credit Party other than the Parent to another Credit Party;
(v) the sale, lease or transfer of property or assets (at
fair market value) not to exceed $50,000,000 in the aggregate in
any fiscal year; and
(vi) the sale, transfer, contribution, conveyance or other
disposition of accounts receivable and associated collateral,
lockbox and other collection accounts, records and/or proceeds in
connection with any accounts receivable securitization,
non-recourse indebtedness or any Purchase Paper Facility; or
(b) (i) purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) the GCA Property or
assets of any Person (other than purchases or other acquisitions of
inventory, leases, materials, GCA Property and equipment in the
ordinary course of business, except as otherwise limited or prohibited
herein) or (ii) enter into any transaction of merger or consolidation,
except for (A) Investments or acquisitions (including Permitted
Acquisitions) permitted pursuant to Section 8B.5, and (B) the merger
or consolidation of a GCA Credit Party or other GCA Subsidiary with
and into another GCA Credit Party, provided that if the Parent is a
party thereto, the Parent will be the surviving corporation.
8B.5. ADVANCES, INVESTMENTS AND LOANS.
The Parent will not, nor will it permit any GCA Subsidiary to, lend
money or extend credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest in,
or make any capital contribution to, any Person except for Permitted
Investments or to the extent permitted by Section 8B.1.
8B.6. TRANSACTIONS WITH GCA AFFILIATES.
The Parent will not, nor will it permit any GCA Subsidiary to, enter
into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, shareholder or GCA
Affiliate other than on terms and conditions substantially as favorable as
would be obtainable in a comparable
14
arm's-length transaction with a Person other than an officer, director,
shareholder or GCA Affiliate.
8B.7. OWNERSHIP OF SUBSIDIARIES; RESTRICTIONS.
The Parent will not sell, transfer, pledge or otherwise dispose of any
Capital Stock or other equity interests in any of the GCA Subsidiaries, nor
will it permit any of the GCA Subsidiaries to issue, sell, transfer, pledge
or otherwise dispose of any of their Capital Stock or other equity
interests, except in connection with any Purchase Paper Facility or any
other transaction or series of transactions permitted by Section 8B.4. The
Parent shall not, and shall not permit any of the GCA Subsidiaries to,
amend, modify or change its shareholders' agreements and other
equity-related documents (excluding amendments to stock option plan
documents and employee stock incentive documents) in any material respect
without the prior written consent of the Primary Financing Parties.
8B.8. FISCAL YEAR; ORGANIZATIONAL DOCUMENTS; MATERIAL AGREEMENTS.
The Parent will not, nor will it permit any of the GCA Subsidiaries
to, change their fiscal year. The Parent will not, nor will it permit any
GCA Subsidiary to, amend, modify or change their articles of incorporation
(or corporate charter or other similar organizational document) or bylaws
(or other similar document) in any material respect or in any respect
adverse to the interests of the Primary Financing Parties without the prior
written consent of the Primary Financing Parties. The Parent will not, nor
will it permit any of the GCA Subsidiaries to, without the prior written
consent of the Agent and the Primary Financing Parties, amend, modify,
cancel or terminate or fail to renew or extend or permit the amendment,
modification, cancellation or termination by the Parent or any of the GCA
Subsidiaries of any of the Material Agreements, except in the event that
such amendments, modifications, cancellations or terminations could not
reasonably be expected to have a GCA Material Adverse Effect.
8B.9. LIMITATION ON RESTRICTED ACTIONS.
The Parent will not, nor will it permit any GCA Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any such
Person to (a) pay dividends or make any other distributions to any Credit
Party on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, (b) pay any Indebtedness or
other obligation owed to any Credit Party, (c) make loans or advances to
any Credit Party, (d) sell, lease or transfer any of its GCA Properties or
assets to any Credit Party, or (e) act as a Parent and pledge its assets
pursuant to the Operative Agreements or any renewals, refinancings,
exchanges, refundings or extension thereof, except (in respect of any of
the matters referred to in clauses (a)-(d) above) for such encumbrances or
restrictions existing under or by reason of (i) this Participation
Agreement and the other Operative Agreements, (ii) applicable law, (iii)
any document or instrument governing Indebtedness incurred pursuant to
Section 8B.1(c), provided that any such restriction contained therein
relates only to the asset or assets constructed or acquired in connection
15
therewith or (iv) any GCA Permitted Lien or any document or instrument
governing any GCA Permitted Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to such GCA
Permitted Lien.
8B.10. RESTRICTED PAYMENTS.
Each of the GCA Credit Parties will not, nor will it permit any GCA
Subsidiary to, directly or indirectly, declare, order, make or set apart
any sum for or pay any Restricted Payment, except (a) to make dividends
payable solely in the common stock or equivalent equity interests of such
Person, (b) to make dividends or other distributions payable to the Parent
or any wholly owned GCA Subsidiary of the Parent that is a Credit Party
(directly or indirectly through GCA Subsidiaries) and (c) to make dividends
or other distributions payable to any minority equity owner of a GCA
Subsidiary in an aggregate amount not to exceed such minority equity
owner's equity interest in earnings for the current fiscal year and
undistributed earnings from prior fiscal years.
8B.11. PREPAYMENTS OF SUBORDINATED INDEBTEDNESS, ETC.
Except in connection with a Purchase Paper Facility, the Parent will
not, nor will it permit any GCA Subsidiary to, after the issuance thereof,
amend or modify (or permit the amendment or modification of) any of the
terms of any Subordinated Debt if such amendment or modification would add
or change any terms in a manner adverse to the interests of the Primary
Financing Parties or the issuer of such Subordinated Debt, or shorten the
final maturity or average life to maturity or require any payment to be
made sooner than originally scheduled or increase the interest rate
applicable thereto or change any subordination provision thereof.
8B.12. SALE LEASEBACKS.
The Parent will not, nor will it permit any GCA Subsidiary to,
directly or indirectly, become or remain liable as lessee or as guarantor
or other surety with respect to any lease, whether an operating lease or a
Capital Lease, of any GCA Property (whether real, personal or mixed),
whether now owned or hereafter acquired in excess of $10,000,000 in the
aggregate on an annual basis, (a) which the Parent or any GCA Subsidiary
has sold or transferred or is to sell or transfer to a Person which is not
the Parent or any GCA Subsidiary or (b) which the Parent or any GCA
Subsidiary intends to use for substantially the same purpose as any other
GCA Property which has been sold or is to be sold or transferred by the
Parent or any GCA Subsidiary to another Person which is not the Parent or
any GCA Subsidiary in connection with such lease.
8B.13. NO FURTHER NEGATIVE PLEDGES.
The Parent will not, nor will it permit any GCA Subsidiary to, enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any GCA Lien upon its GCA
Properties or assets, whether now owned or hereafter acquired, or requiring
the grant of any security for such obligation if security is
16
given for some other obligation, except (a) pursuant to this Participation
Agreement and the other Operative Agreements, (b) pursuant to any document
or instrument governing Indebtedness incurred pursuant to Section 8B.1(c),
provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith and (c) in
connection with any GCA Permitted Lien or any document or instrument
governing any GCA Permitted Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to such GCA
Permitted Lien.
1.5 Amendment to Sections 11.3(a) and (b) of the Participation Agreement.
Sections 11.3(a) and 11.3(b) of the Participation Agreement are hereby deleted
in their entirety and replaced with the following:
(a) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance with any
guideline or request hereafter adopted, promulgated or made by any central
bank or other governmental authority (whether or not having the force of
law), there shall be any increase in the cost to any Financing Party of
agreeing to make or making, funding or maintaining Advances, then the
Lessee shall from time to time, upon demand by such Financing Party (with a
copy of such demand to the Agent but subject to the terms of Section 2.11
of the Credit Agreement), pay to the Agent for the account of such
Financing Party additional amounts sufficient to compensate such Financing
Party for such increased cost; provided, that such Financing Party shall
not be permitted to request such compensation from the Lessee if more than
one hundred twenty (120) days have elapsed after the applicable event
described in (i) or (ii) above. A certificate as to the amount of such
increased cost, submitted to the Lessee and the Agent by such Financing
Party, shall be conclusive and binding for all purposes, absent manifest
error; provided, that upon request, the Lessee shall be entitled to review
and verify non-confidential information of any Financing Party related to
the determination as set forth in the certificate and discuss such
non-confidential information of any Financing Party related to any such
determination with such Financing Party.
(b) If any Financing Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law, but in each
case promulgated or made after the date hereof) affects or would affect the
amount of capital required or expected to be maintained by such Financing
Party or any corporation controlling such Financing Party and that the
amount of such capital is increased by or based upon the existence of such
Financing Party's commitment to make Advances and other commitments of this
type or upon the Advances, then, within fifteen (15) days after demand by
such Financing Party (with a copy of such demand to the Agent but subject
to the terms of Section 2.11 of the Credit Agreement), the Lessee shall pay
to the Agent for the account of such Financing Party, from time to time as
specified by such Financing Party, additional amounts sufficient to
compensate such Financing Party or such corporation in the light of such
circumstances, to the extent that such Financing Party reasonably
determines such increase in capital to be allocable to the existence of
such Financing Party's commitment to make such Advances; provided, that
such Financing Party shall not be permitted to
17
request such compensation from the Lessee if more than one hundred twenty
(120) days have elapsed after such adoption of or change in the law,
regulation or guideline. A certificate as to such amounts submitted to the
Lessee and the Agent by such Financing Party shall be conclusive and
binding for all purposes, absent manifest error; provided, that upon
request, the Lessee shall be entitled to review and verify non-confidential
information of any Financing Party related to the determination as set
forth in the certificate and discuss such non-confidential information of
any Financing Party related to any such determination with such Financing
Party.
1.6 Amendment to Schedules to the Participation Agreement. Schedules 1
through 6 to the Participation Agreement are hereby deleted in their entirety
and replaced with Schedules 1 through 6 attached to this Fourth Amendment.
1.7 Amendment to Exhibit G to the Participation Agreement. Exhibit G to
the Participation Agreement is hereby deleted in its entirety and replaced with
Exhibit 1 attached to this Fourth Amendment.
1.8 Deletions of Items from Section 3 of the Guaranty. Sections 3(i)(I)
and 3(i)(V) are hereby deleted in their entirety from the Guaranty.
1.9 Replacement of Certain Existing Definitions in Appendix A to the
Participation Agreement. The following definitions are hereby deleted in their
entirety from Appendix A to the Participation Agreement and replaced with the
following:
"Aggregate Revolving Committed Amount" shall mean four hundred million
dollars ($400,000,000), as such amount may be increased or reduced from
time to time as provided in Sections 2.2, 2.6 or such other applicable
sections of the Guarantor Credit Agreement.
"Applicable Percentage" shall mean, for any day, the rate per annum
set forth below opposite the applicable level then in effect:
Applicable
Percentage for Applicable Applicable Applicable
Eurodollar Lessor Percentage for Percentage for ABR Percentage for
Advances in excess Eurodollar Lessor Lessor Advances in ABR Lessor
of 12% of the Advances not in excess of 12% of Advances not in
aggregate Property excess of 12% of the aggregate excess of 12% of
Consolidated Cost for all the aggregate Property Cost for the aggregate
Leverage Properties and Property Cost for all Properties and Property Cost for
Level Ratio Eurodollar Loans all Properties ABR Loans all Properties
- ----- ------------ ------------------ ----------------- ------------------ -----------------
I < 0.50x 75 bps 125 bps 0 bps 50 bps
II => 0.50x but 87.5 bps 137.5 bps 0 bps 50 bps
< 1.00x
III => 1.00x but 100 bps 150 bps 0 bps 50 bps
< 1.50x
IV => 1.50x 125 bps 175 bps 25 bps 75 bps
The Applicable Percentage shall be determined and adjusted quarterly
on the date five (5) Business Days after the date on which the Agent has
received from the Parent the
18
quarterly financial information and certifications required to be delivered
to the Agent and the Primary Financing Parties in accordance with the
provisions of Sections 8A.1(b) and 8A.2(b) pursuant to which the Parent
notifies the Agent of a change in the applicable pricing level based on the
financial information contained therein (each an "Interest Determination
Date"). Such Applicable Percentage shall be effective from such Interest
Determination Date until the next such Interest Determination Date. If the
Parent shall fail to provide the quarterly financial information and
certifications in accordance with the provisions of Sections 8A.1(b) and
8A.2(b), the Applicable Percentage from such Interest Determination Date
shall, on the date five (5) Business Days after the date by which the
Parent was so required to provide such financial information and
certifications to the Agent and the Primary Financing Parties, be based on
Level IV until such time as such information and certifications are
provided, whereupon the Level shall be determined by the then current
Consolidated Leverage Ratio.
"Arranger" shall mean Wachovia Capital Markets, LLC.
"Change of Control" shall mean any Person or two or more Persons
acting in concert (other than members of the West Family Group) shall have
acquired "beneficial ownership," directly or indirectly, of, or shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their
acquisition of, or control over, Voting Stock of the Parent (or other
securities convertible into such Voting Stock) representing 50% or more of
the combined voting power of all Voting Stock of the Parent. As used
herein, "beneficial ownership" shall have the meaning provided in Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934.
"Consolidated EBITDA" shall mean, as of any date for the four fiscal
quarter period ending on such date with respect to the Consolidated Group
on a consolidated basis, the sum of (a) Consolidated Net Income, plus (b)
an amount which, in the determination of Consolidated Net Income, has been
deducted for (i) Consolidated Interest Expense, (ii) total federal, state,
local and foreign income, value added and similar taxes, (iii) depreciation
and amortization expense, all as determined in accordance with GAAP, (iv)
non-cash charges relating to equity and other performance-related
compensation, including stock options and (v) minority equity interests in
an amount not to exceed $15,000,000 during any such period. Notwithstanding
the above, Consolidated EBITDA shall be (A) $78,189,000 for the fiscal
quarter ended March 31, 2004, (B) $80,149,000 for the fiscal quarter ended
June 30, 2004 and (C) $77,359,000 for the fiscal quarter ended September
30, 2004.
"Consolidated Fixed Charge Coverage Ratio" shall mean, as of the end
of each fiscal quarter of the Consolidated Group for the four fiscal
quarter period ending on such date with respect to the Consolidated Group
on a consolidated basis, the ratio of (i) Consolidated EBITDA for the
applicable period minus Consolidated Capital Expenditures for the
applicable period to (ii) the sum of Consolidated Interest Expense for the
applicable period plus Scheduled Funded Debt Payments for the applicable
period
19
plus payments made in connection with earnout obligations for the
applicable period to the extent permitted hereunder plus cash taxes paid
during the applicable period.
"Consolidated Interest Expense" shall mean, for any period, all cash
interest expense of the Consolidated Group (including, without limitation,
the interest component under Capital Leases), as determined in accordance
with GAAP.
"Consolidated Subsidiary" shall mean, as to any Person, any GCA
Subsidiary of such Person which under the rules of GAAP consistently
applied should have its financial results consolidated with those of such
Person for purposes of financial accounting statements.
"Equity Issuance" shall mean any issuance by any Credit Party or any
GCA Subsidiary to any Person which is not a Credit Party of (a) shares of
its Capital Stock, (b) any shares of its Capital Stock pursuant to the
exercise of options or warrants or (c) any shares of its Capital Stock
pursuant to the conversion of any debt securities to equity. The term
"Equity Issuance" shall not include any equity issued in connection with
any Asset Disposition, any Debt Issuance or any Purchase Paper Facility.
"Funded Debt" shall mean, with respect to any Person, without
duplication, (i) all obligations of such Person for borrowed money, (ii)
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily made,
(iii) all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person (other
than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (iv) all
obligations of such Person issued or assumed as the deferred purchase price
of property or services purchased by such Person (other than (A) trade debt
incurred in the ordinary course of business and due within twelve months of
the incurrence thereof and (B) obligations under earnout agreements in
existence as of the Closing Date) which would appear as liabilities on a
balance sheet of such Person, (v) the principal portion of all obligations
of such Person under Capital Leases, (vi) all Guaranty Obligations of such
Person with respect to Funded Debt of another Person, (vii) the maximum
available amount of all letters of credit or acceptances issued or created
for the account of such Person, (viii) all Funded Debt of another Person
secured by a GCA Lien on any property of such Person, whether or not such
Funded Debt has been assumed, provided that for purposes hereof the amount
of such Funded Debt shall be limited to the greater of (A) the amount of
such Funded Debt as to which there is recourse to such Person and (B) the
fair market value of the property which is subject to such GCA Lien, (ix)
the outstanding attributed principal amount under any securitization
transaction, (x) the principal balance outstanding under any Synthetic
Lease to which such Person is a party, and (xi) all preferred Capital Stock
issued by such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory sinking
fund payments, redemption or other acceleration prior to the date that is 6
months after the Maturity Date. The Funded Debt of any Person shall include
(i) the Funded Debt of any partnership or joint venture in which such
Person is a general partner or joint venturer, but only to the extent to
20
which there is recourse to such Person for the payment of such Funded Debt
and (ii) exclude non-recourse Indebtedness of such Person.
"GCA Credit Documents" shall mean the Guarantor Credit Agreement, each
of the Notes related thereto, any Joinder Agreement, the Letters of Credit,
LOC Documents and all other agreements, documents, certificates and
instruments delivered to the Agent or any Lender by any Credit Party in
connection therewith (other than any agreement, document, certificate or
instrument related to a Hedging Agreement), as the capitalized terms used
in this definition (other than Guarantor Credit Agreement) are defined in
the Guarantor Credit Agreement.
"GCA Credit Party Obligations" shall mean, without duplication, (a)
all of the obligations of the GCA Credit Parties to the GCA Lenders and the
GCA Agent, whenever arising, under the GCA Credit Documents (including, but
not limited to, any interest accruing after the occurrence of a filing of a
petition of bankruptcy under the Bankruptcy Code with respect to any GCA
Credit Party, regardless of whether such interest is an allowed claim under
the Bankruptcy Code) and (b) all liabilities and obligations, whenever
arising, owing from any GCA Credit Party or any of the GCA Subsidiaries to
any Hedging Agreement Provider, arising under any Hedging Agreement
permitted pursuant to the applicable sections of the Guarantor Credit
Agreement.
"GCA Permitted Liens" shall mean:
(i) GCA Liens created by or otherwise existing, under or in
connection with (A) the Participation Agreement or the other Operative
Agreements in favor of the Primary Financing Parties or (B) the
Guarantor Credit Agreement or the other GCA Credit Documents;
(ii) GCA Liens in favor of a GCA Lender in connection with
Hedging Agreements, but only (A) to the extent such GCA Liens secure
obligations under Hedging Agreements with any GCA Lender, or any GCA
Affiliate of any GCA Lender, (B) to the extent such GCA Liens are on
the same collateral as to which the agent under the Guarantor Credit
Agreement, on behalf of the GCA Lenders, also has a GCA Lien and (C)
if such provider and the GCA Lenders shall share pari passu in the
collateral subject to such GCA Liens;
(iii) purchase money GCA Liens securing purchase money
indebtedness (and refinancings thereof) to the extent permitted under
Section 8B.1(c);
(iv) GCA Liens for taxes, assessments, charges or other
governmental levies not yet due or as to which the period of grace
(not to exceed 60 days), if any, related thereto has not expired or
which are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on
the books of the Parent or the GCA Subsidiaries, as the case may be,
in conformity with GAAP (or, in the case of GCA Subsidiaries with
21
significant operations outside of the United States of America,
generally accepted accounting principles in effect from time to time
in their respective jurisdictions of incorporation);
(v) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like GCA Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(vi) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(vii) deposits to secure the performance of bids, trade
contracts, (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(viii) GCA Liens on the real property and fixtures of the Parent
located at or on Lots 19 and 20, Miracle Hills Park, Douglas County,
Nebraska and all personal property located on or at such real property
that is integral to the operation of such real property and fixtures.
(ix) any extension, renewal or replacement (or successive
extensions, renewals or replacements) , in whole or in part, of any
GCA Lien referred to in the foregoing clauses; provided that such
extension, renewal or replacement GCA Lien shall be limited to all or
a part of the property which secured the GCA Lien so extended, renewed
or replaced (plus improvements on such property);
(x) GCA Liens existing on the Closing Date and set forth on
Schedule 1 to the Participation Agreement; provided that (a) no such
GCA Lien shall at any time be extended to cover GCA Property or assets
other than the property or assets subject thereto on the Closing Date
and (b) the principal amount of the Indebtedness secured by such GCA
Liens shall not be extended, renewed, refunded or refinanced;
(xi) GCA Liens arising in connection with Capital Leases to the
extent permitted under Section 8B.1(c);
(xii) easements, rights-of-way, restrictions, encroachments, and
other minor defects or irregularities in title to real property, in
each case which do not and will not interfere in any material respect
with the operation of such real property or the ordinary conduct of
the business of the Parent or any of the GCA Subsidiaries.
22
(xiii) GCA Liens arising in connection with accounts receivable
securitizations;
(xiv) GCA Liens on accounts receivable and associated collateral,
lockbox and other collection accounts, records and/or proceeds
incurred in connection with any Purchase Paper Facility or other
non-recourse Indebtedness in the GCA Credit Parties' ordinary course
of business and consistent with past practices; and
(xv) other GCA Liens in addition to those permitted by the
foregoing clauses securing Indebtedness not exceeding $1,000,000 on an
individual basis and $10,000,000 in the aggregate outstanding at any
one time.
"GCA Subsidiary" shall mean, as to any Person, a corporation,
partnership, limited liability company or other entity of which shares of
stock or other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by reason of
the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other
entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a "GCA
Subsidiary" or to "GCA Subsidiaries" in this Participation Agreement shall
refer to a GCA Subsidiary or GCA Subsidiaries of the Parent; provided,
however, that references to a "GCA Subsidiary" or to "GCA Subsidiaries" in
this Participation Agreement shall not include Excluded Subsidiaries.
"Guarantor" shall mean West Corporation, a Delaware corporation, and
any of the Subsidiaries identified as a "Guarantor" on the signature pages
to the Participation Agreement and the additional Credit Parties which
execute a Joinder Agreement, together with their successors and permitted
assigns.
"Guarantor Credit Agreement" shall mean that certain Amended and
Restated Credit Agreement dated as of November 15, 2004 among West
Corporation, as the borrower; certain Domestic GCA Subsidiaries party
thereto from time to time as guarantors; the several banks and other
financial institutions party thereto from time to time, as lenders;
Wachovia Bank, National Association, as the administrative agent; Wells
Fargo Bank National Association, as syndication agent; Bank of America,
N.A. and BNP Paribas, as co-documentation agents; and Wachovia Capital
Markets, LLC, as lead arranger and sole book runner.
"Permitted Acquisition" shall mean an acquisition or any series of
related acquisitions by a GCA Credit Party of the assets or all of the
Capital Stock of a Person or any division, line of business or other
business unit of a Person (such Person or such division, line of business
or other business unit of such Person referred to herein as the "Target"),
in each case that is in the same line of business (or assets used in the
same line of business) as the GCA Credit Parties and the GCA Subsidiaries
or whereby a
23
substantial portion of the acquired business relies upon automated
transactions, telephone representatives or telephony technology, so long as
(a) no Default or Event of Default shall then exist or would exist after
giving effect thereto; (b) the Credit Parties shall demonstrate to the
reasonable satisfaction of the Agent that the Credit Parties will be in
compliance on a pro forma basis with all of the terms and provisions of the
financial covenants set forth in Section 8A.9; (c) the Target, if a Person
and if after the acquisition the Target would be a Material Domestic GCA
Subsidiary, shall have executed and delivered to the Agent a Joinder
Agreement in accordance with the terms of Section 8A.10; (d) such
acquisition is not a "hostile" public company acquisition and has been
approved by the Board of Directors and/or shareholders of the applicable
GCA Credit Party and the public company Target; and (e) with respect to any
acquisition where the total consideration shall be (i) greater than
$75,000,000 and less than or equal to $150,000,000, the Parent shall have
delivered to the Agent and each of the Primary Financing Parties not more
than thirty (30) days after the consummation of such acquisition a
reasonably detailed description of the material terms of such acquisition
(including, without limitation, the purchase price and method and structure
of payment) and of each Target and (ii) greater than $150,000,000, the
Parent shall have delivered to the Agent and each of the Primary Financing
Parties not less than five (5) Business Days prior to the consummation of
such acquisition (A) a reasonably detailed description of the material
terms of such acquisition (including, without limitation, the purchase
price and method and structure of payment) and of each Target, (B) audited
financial statements of the Target, or company-prepared financial
statements that have been certified by the Target, for the Target's two (2)
most recent fiscal years and unaudited fiscal year-to-date statements for
the most recent interim periods, which financial statements shall be
consistent with any financial statements filed with the Securities and
Exchange Commission in connection with such acquisition and (C) a
certificate, in form and substance reasonably satisfactory to the Agent,
executed by a Responsible Officer of the Parent (1) certifying that such
Permitted Acquisition complies with the requirements of this Agreement and
(2) demonstrating compliance with subsections (b) and (e) of this
definition; provided, however, that an acquisition of a Target that is not
incorporated, formed or organized in the United States (a "Foreign Target")
shall only qualify as a Permitted Acquisition if each of the other
requirements set forth in this definition shall have been satisfied and the
total consideration for all such Foreign Targets does not exceed
$50,000,000 in the aggregate during the term of this Agreement.
"Permitted Investments" shall mean:
(i) cash and Cash Equivalents;
(ii) receivables owing to the Parent or any of the GCA
Subsidiaries or any receivables and advances to suppliers or
customers, in each case if created, acquired or made in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms;
(iii) Investments in and loans to any GCA Credit Parties;
24
(iv) Investments in and loans to Domestic GCA Subsidiaries of the
Parent that are not guarantors under the Guarantor Credit Agreement
solely for the purpose of purchasing third party debt obligations;
provided that the aggregate amount of Investments and loans made
pursuant to this clause (iv), together with the aggregate amount of
Indebtedness incurred pursuant to Section 8B.1(d)(iii), shall not
exceed $100,000,000 at any time outstanding;
(v) Investments in and loans to Subsidiaries of the Parent that
are not guarantors under the Guarantor Credit Agreement (other than
Investments and loans pursuant to clause (iv) above); provided that
the aggregate amount of such Investments and loans, together with the
aggregate amount of Indebtedness incurred pursuant to Section
8B.1(d)(iv), shall not exceed $50,000,000 at any time outstanding;
(vi) loans and advances to employees (other than any officer or
director) of the Parent or the GCA Subsidiaries in an aggregate amount
not to exceed $1,000,000 at any time outstanding;
(vii) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business;
(viii) Investments, acquisitions or transactions permitted under
Section 8B.4(b);
(ix) the Parent may enter into Hedging Agreements to the extent
permitted pursuant to Section 8B.1;
(x) loans, advances and/or Investments, in a aggregate amount not
to exceed $25,000,000 at any time outstanding, by Asset Direct
Mortgage, LLC or any other GCA Credit Party in connection with a
mortgage loan program consisting of the purchase, origination and/or
pooling of mortgage loans;
(xi) Permitted Acquisitions; and
(xii) additional loans, advances and/or Investments of a nature
not contemplated by the foregoing clauses hereof, provided that such
loans, advances and/or Investments made pursuant to this clause (xii)
shall not exceed an aggregate amount of $25,000,000 at any time
outstanding.
"Restricted Payment" shall mean (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of the Parent or any of its GCA Subsidiaries, now or
hereafter outstanding, (b) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of Capital Stock of the Parent or any
of its GCA Subsidiaries, now or
25
hereafter outstanding, (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of Capital Stock of the Parent or any of its GCA
Subsidiaries, now or hereafter outstanding, or (d) any payment or
prepayment of principal of, premium, if any, or interest on, redemption,
purchase, retirement, defeasance, sinking fund or similar payment with
respect to, any Subordinated Debt.
1.10 Addition of New Definitions in Appendix A to the Participation
Agreement. The following definitions are hereby added in appropriate
alphabetical order to Appendix A to the Participation Agreement:
"Excluded Subsidiaries" shall mean Attention Funding Corporation and
Attention Funding Trust.
"Guaranty Obligations" shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of any
other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or any property constituting security
therefor, (ii) to advance or provide funds or other support for the payment
or purchase of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other Person (including
without limitation keep well agreements, maintenance agreements, comfort
letters or similar agreements or arrangements) for the benefit of any
holder of Indebtedness of such other Person, (iii) to lease or purchase GCA
Property, securities or services primarily for the purpose of assuring the
holder of such Indebtedness, or (iv) to otherwise assure or hold harmless
the holder of such Indebtedness against loss in respect thereof. The amount
of any Guaranty Obligation hereunder shall (subject to any limitations set
forth therein) be deemed to be an amount equal to the outstanding principal
amount (or maximum principal amount, if larger) of the Indebtedness in
respect of which such Guaranty Obligation is made.
"Hedging Agreement Provider" shall mean any Person that enters into a
Hedging Agreement with a GCA Credit Party or any of its GCA Subsidiaries
that is permitted by Section 8B.1 of the Participation Agreement to the
extent such Person is a (a) GCA Lender, (b) a GCA Affiliate of a GCA Lender
or (c) any other Person that was a GCA Lender (or a GCA Affiliate of a GCA
Lender) at the time it entered into the Hedging Agreement but has ceased to
be a GCA Lender (or whose GCA Affiliate has ceased to be a GCA Lender)
under the GCA Credit Agreement.
"Investment" shall mean all investments, in cash or by delivery of
property made, directly or indirectly in, to or from any Person, whether by
acquisition of shares of Capital Stock, property, assets, indebtedness or
other obligations or securities or by loan advance, capital contribution or
otherwise.
"Material Domestic GCA Subsidiary" means any Domestic GCA Subsidiary
of the Parent that, together with its GCA Subsidiaries, (i) owns more than
$15,000,000 in
26
assets on a pro forma basis or (ii) generates more than 5% of Consolidated
EBITDA on a pro forma basis for the four fiscal quarter period most
recently ended; provided, however, that if at any time there are Domestic
GCA Subsidiaries which are not classified as "Material Domestic GCA
Subsidiaries" but which collectively account for greater than $40,000,000
in assets on a pro forma basis or which collectively generate more than 20%
of Consolidated EBITDA on a pro forma basis, then the Parent shall
immediately designate one or more of such Domestic GCA Subsidiaries as
Material Domestic GCA Subsidiaries and cause any such Domestic GCA
Subsidiaries to comply with the provisions of Section 8A.10 of the
Participation Agreement in a number sufficient to comply with such
requirement.
"Purchase Paper Facility" shall mean any financing arrangement
involving the purchase by the GCA Credit Parties of commercial or consumer
debt (including, without limitation, that certain loan agreement dated as
of August 15, 2001 by and between Worldwide Asset Purchasing, LLC and CFSC
Capital Corp. XXXIV and that certain Financing Facility and Security
Agreement, dated as of December 19, 2003, by and among Arrow Funding, LLC,
Attention, LLC, Attention Funding Corporation, Attention Funding Trust, and
Arrow Financial Services, LLC), as amended, modified supplemented or
replaced from time to time.
"Super Majority Financing Parties" shall mean Financing Parties
holding in the aggregate greater than 80% of the outstanding Loans and
Lessor Advances; provided, however, that if any Financing Party shall be a
Defaulting Primary Financing Party at such time, then the outstanding Loans
and Lessor Advances of such Financing Party shall be excluded from the
determination of Super Majority Financing Parties.
"Wachovia" shall mean Wachovia Bank, National Association, together
with its successors and/or assigns.
1.11 Deletion of various terms from Appendix A to the Participation
Agreement. The terms "Acquisition", "Acquisition Documents", "Continuing
Directors", "Net Cash Proceeds" and "Pledge Agreement" are hereby deleted in
their entirety from Appendix A to the Participation Agreement.
1.12 Amendment to Sections 17.1(g), (h) and (i) of the Lease. Sections
17.1(g), (h) and (i) of the Lease are hereby deleted in their entirety and
replaced by the following:
(g) The liquidation or dissolution of the Parent, any GCA Subsidiary
or any Excluded Subsidiary, or the suspension of the business of the
Parent, any GCA Subsidiary or any Excluded Subsidiary, or the filing by the
Parent, any GCA Subsidiary or any Excluded Subsidiary of a voluntary
petition or an answer seeking reorganization, arrangement, readjustment of
its debts or for any other relief under the United States Bankruptcy Code,
as amended, or under any other insolvency act or law, state or federal, now
or hereafter existing, or any other action of the Parent, any GCA
Subsidiary or any Excluded Subsidiary indicating its consent to, approval
of or acquiescence in, any such petition or proceeding; the application by
the Parent, any GCA Subsidiary or any
27
Excluded Subsidiary for, or the appointment by consent or acquiescence of
the Parent, any GCA Subsidiary or any Excluded Subsidiary of a receiver, a
trustee or a custodian of the Parent, any GCA Subsidiary or any Excluded
Subsidiary for all or a substantial part of its property; the making by the
Parent, any GCA Subsidiary or any Excluded Subsidiary of any assignment for
the benefit of creditors; the admission by the Parent, any GCA Subsidiary
or any Excluded Subsidiary in writing of its inability to pay its debts as
they mature or the Parent, any GCA Subsidiary or any Excluded Subsidiary is
generally not paying its debts and other financial obligations as they
become due and payable; or the Parent, any GCA Subsidiary or any Excluded
Subsidiary taking any corporate action to authorize any of the foregoing;
(h) The filing of an involuntary petition against the Parent, any GCA
Subsidiary or any Excluded Subsidiary in bankruptcy or seeking
reorganization, arrangement, readjustment of its debts or for any other
relief under the United States Bankruptcy Code, as amended, or under any
other insolvency act or law, state or federal, now or hereafter existing;
or the involuntary appointment of a receiver, a trustee or a custodian of
the Parent, any GCA Subsidiary or any Excluded Subsidiary for all or a
substantial part of its property; or the issuance of a warrant of
attachment, execution or similar process against any substantial part of
the property of the Parent, any GCA Subsidiary or any Excluded Subsidiary,
and the continuance of any of such events for ninety (90) days undismissed
or undischarged;
(i) The adjudication of the Parent, any GCA Subsidiary or any Excluded
Subsidiary as bankrupt or insolvent;
1.13 Amendment to Schedule 2.1 of the Credit Agreement. Schedule 2.1 of
the Credit Agreement is hereby deleted in its entirety and replaced with Exhibit
2 attached to this Fourth Amendment.
SECTION 2
CLOSING CONDITIONS
2.1 Closing Conditions. This Fourth Amendment shall become effective as of
the date hereof upon satisfaction of the following conditions (in form and
substance reasonably acceptable to the Agent):
(a) Executed Amendment. Receipt by the Agent of a copy of this Fourth
Amendment duly executed by the Borrower, the Agent, the Majority Secured
Parties and the Credit Parties.
(b) Resolutions. Receipt by the Agent of copies of resolutions of the
Board of Directors of each of the Credit Parties approving and adopting
this Fourth Amendment, the transactions contemplated herein and authorizing
execution and delivery hereof, certified by a secretary or assistant
secretary of such Credit Party to be true and correct and in force and
effect as of the date hereof.
28
(c) Incumbency Certificate. Receipt by the Agent of an incumbency
certificate with respect to each of the Credit Parties.
(d) Legal Opinions of Counsel. The Agent shall have received opinions
of legal counsel for the Credit Parties, dated as of the date hereof and
addressed to the Agent and the Primary Financing Parties, which opinions
shall be in form and substance acceptable to the Agent and the Primary
Financing Parties.
(e) Material Adverse Event. Since December 31, 2003, there shall have
been no change or occurrence which could reasonably be expected to have a
Material Adverse Effect.
(f) Litigation. There shall not exist any pending or threatened
litigation or investigation affecting or relating to the Parent or any of
its Subsidiaries, the Participation Agreement or the other Operative
Agreements that in the reasonable judgment of the Agent and Primary
Financing Parties could materially adversely affect the Parent and its
Subsidiaries, taken as a whole, or the Participation Agreement or the other
Operative Agreements, that has not been settled, dismissed, vacated,
discharged or terminated prior to the date hereof.
(g) Officer's Certificate. The Agent shall have received a
certificate executed by a responsible officer of the Parent as of the date
hereof stating that immediately after giving effect to this Fourth
Amendment and all the transactions contemplated to occur on the date
hereof, (A) no Default or Event of Default exists, (B) all representations
and warranties contained in this Fourth Amendment and in the Participation
Agreement and the other Operative Agreements (except those which expressly
relate to an earlier date) are true and correct, and (C) the Credit Parties
are in compliance with each of the financial covenants set forth in Section
8A.9 to the Participation Agreement on a pro forma basis.
(h) Consents. The Agent shall have received evidence that all
governmental, shareholder and material third party consents and approvals
necessary in connection with this Fourth Amendment and other transactions
contemplated hereby have been obtained and all applicable waiting periods
have expired without any action being taken by any authority that could
restrain, prevent or impose any material adverse conditions on such
transactions or that could seek or threaten any of such transactions.
(i) Fees. Subject to the terms of the Fee Letter (as defined in the
Guarantor Credit Agreement), receipt by the Agent of all reasonable fees
and expenses of the Agent in connection with the preparation, execution and
delivery of this Fourth Amendment, including, without limitation, the
reasonable fees and expenses of Moore & Van Allen PLLC.
(j) Closing with regard to the Guarantor Credit Agreement. The
conditions precedent to the Closing Date (as such term is defined in the
Guarantor Credit Agreement)
29
shall all have been satisfied or, if not satisfied, shall have been waived
by the appropriate parties under the Guarantor Credit Agreement.
Additionally, the Guarantor Credit Agreement shall be in full force and
effect.
(k) Joinder Agreements. The Agent shall have received one or more
Joinder Agreements duly executed by West Asset Management, Inc., The Debt
Depot, LLC, West Telemarketing, LP, West Transaction Services, LLC, West
Transaction Services II, LLC, West Business Services, LP and West Asset
Purchasing, LLC, and (respecting each of the foregoing entities) such other
documentation as required pursuant to the Operative Agreements for the
effective joinder of a new Guarantor.
SECTION 3
MISCELLANEOUS
3.1 Amended Terms. The terms "Participation Agreement", "Lease", "Credit
Agreement" and "Guaranty" as used in each of the Operative Agreements shall
hereafter mean the Participation Agreement, Lease, Credit Agreement and
Guaranty, each as amended by this Fourth Amendment. Except as specifically
amended or modified hereby or otherwise agreed, the Participation Agreement,
Lease, Credit Agreement and Guaranty are hereby ratified and confirmed and shall
remain in full force and effect according to their respective terms.
3.2 Representations and Warranties of the Credit Parties. Each of the
Credit Parties represents and warrants to the Financing Parties as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Fourth Amendment.
(b) This Fourth Amendment has been duly executed and delivered by such
Person and constitutes such Person's legal, valid and binding obligations,
enforceable in accordance with its terms, except as such enforceability may
be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors'
rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in
equity).
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or
third party is required in connection with the execution, delivery or
performance by such Person of this Fourth Amendment.
(d) The representations and warranties of such Person set forth in
Sections 6.2 and 6.3 of the Participation Agreement and Section 2 of the
Guaranty, as the case may be, are, subject to the limitations set forth
therein, true and correct in all material respects as of the date hereof
(except for those which expressly relate to an earlier date).
30
3.3 Reaffirmation of Credit Party Obligations. Each Credit Party hereby
ratifies the Operative Agreements (as amended by this Fourth Amendment) and
acknowledges and reaffirms (a) that it is bound by all terms of the Operative
Agreements (as amended by this Fourth Amendment) applicable to it and (b) that
it is responsible for the observance and full performance of its respective
obligations pursuant to the Operative Agreements.
3.4 Operative Agreements. This Fourth Amendment shall constitute an
Operative Agreement under the terms of the Participation Agreement.
3.5 Expenses. Subject to the terms of the Fee Letter (as defined in the
Guarantor Credit Agreement), the Parent agrees to pay all reasonable costs and
expenses of the Agent in connection with the preparation, execution and delivery
of this Fourth Amendment, including, without limitation, the reasonable fees and
expenses of Moore & Van Allen, PLLC, and all previously incurred fees and
expenses which remain outstanding on the date hereof.
3.6 Entirety. This Fourth Amendment and the other Operative Agreements
embody the entire agreement between the parties hereto and supersede all prior
agreements and understandings, oral or written, if any, relating to the subject
matter hereof.
3.7 Counterparts/Telecopy. This Fourth Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts of this Fourth Amendment by telecopy shall be
effective as an original and shall constitute a representation that an original
shall be delivered.
3.8 Governing Law. This Fourth Amendment and the rights and obligations of
the parties under this Fourth Amendment shall be governed by, and construed and
interpreted in accordance with, the law of the State of North Carolina.
3.9 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial;
Venue. The jurisdiction, services of process, waiver of jury trial and venue
provisions set forth in Section 12.7 of the Participation Agreement are hereby
incorporated by reference, mutatis mutandis.
3.10 Further Assurances. The Credit Parties agree to promptly take such
action, upon the request of the Agent, as is reasonably necessary to carry out
the intent of this Fourth Amendment.
3.11 Release of Certain Guarantors. The parties to this Fourth Amendment
hereby agree that the entities referenced on Exhibit 3 attached to this Fourth
Amendment are hereby released, without the need of any additional action, as
Guarantors.
[Signature Pages Follow]
31
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Fourth Amendment to be duly executed under seal and delivered as of the
date and year first above written.
LESSEE: WEST FACILITIES CORPORATION,
a Delaware corporation
By: /s/ Paul M. Mendlik
------------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
(signature pages continue)
PARENT: WEST CORPORATION,
a Delaware corporation
By: /s/ Paul M. Mendlik
------------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
(signature pages continue)
GUARANTORS: WEST CORPORATION,
a Delaware corporation
WEST TELEMARKETING CORPORATION II,
a Delaware corporation
WEST INTERACTIVE CORPORATION,
a Delaware corporation
NORTHERN CONTACT, INC.,
a Delaware corporation
INTERCALL, INC.,
a Delaware corporation
INTERCALL TELECOM VENTURES, LLC,
a Delaware limited liability company
CONFERENCECALL.COM, INC.,
a Delaware corporation
WEST RECEIVABLE SERVICES, INC.,
a Delaware corporation
NATIONAL ASSET MANAGEMENT
ENTERPRISES, INC., a Georgia corporation
WEST ASSET MANAGEMENT, INC.,
a Delaware corporation
By: /s/ Paul M. Mendlik
------------------------------------
Name: Paul M. Mendlik
Title: Chief Financial Officer
(signature pages continue)
ATTENTION, LLC,
a Georgia limited liability company
WORLDWIDE ASSET MANAGEMENT, LLC,
a Georgia limited liability company
WEST INTERNATIONAL ASSET
MANAGEMENT, LLC, a Nevada limited
liability company
BUYDEBTCO, LLC,
a Nevada limited liability company
THE DEBT DEPOT, LLC,
a Delaware limited liability company
ASSET DIRECT MORTGAGE, LLC,
a Delaware limited liability company
WEST TELEMARKETING, LP,
a Delaware limited partnership
By: West Transaction Services, LLC,
its General Partner
WEST TRANSACTION SERVICES, LLC,
a Delaware limited liability company
WEST TRANSACTION SERVICES II, LLC,
a Delaware limited liability company
WEST BUSINESS SERVICES, LP,
a Delaware limited partnership
By: West Transaction Services, LLC,
its General Partner
WEST ASSET PURCHASING, LLC,
a Nevada limited liability company
By: /s/ Paul M. Mendlik
------------------------------------
Name: Paul M. Mendlik
Title: Manager
WEST DIRECT, INC.,
a Delaware corporation
By: /s/ Paul M. Mendlik
------------------------------------
Name: Paul M. Mendlik
Title: Treasurer
(signature pages continue)
WACHOVIA DEVELOPMENT CORPORATION,
as the Borrower and as the Lessor
By: /s/ Evander S. Jones Jr.
------------------------------------
Name: Evander S. Jones Jr.
Title: Vice President
(signature pages continue)
WACHOVIA BANK, NATIONAL
ASSOCIATION, as the Agent
By: /s/ Michael Romanzo
------------------------------------
Name: Michael Romanzo
Title: Vice President
(signature pages continue)
WACHOVIA CAPITAL INVESTMENTS, INC.,
as a Lender
By: /s/ Evander S. Jones, Jr.
------------------------------------
Name: Evander S. Jones Jr.
Title: Vice President
(signature pages continue)
COMMERCEBANK, N.A., as a Lender
By: /s/ Lourdes Jordan
------------------------------------
Name:
----------------------------------
Title: Lourdes Jordan 2-LJ-149
(signature pages end)
Schedule 1
GCA PERMITTED LIENS
Debtor Secured Party Jurisdiction Filing Type Filing Date Description of Collateral
- ----------------- ---------------- ------------- --------------- ----------- ------------------------------------
West Facilities Wachovia Bank, Douglas UCC-1 6/4/2003 Fixture Filing for Douglas County,
Corporation National County, (#2003106373) Nebraska property subject to the
Association, as Nebraska Synthetic Lease transaction
Agent
West Facilities Wachovia Bank, Delaware UCC-1 5/14/2003 All assets located at the Bexar
Corporation National (#31241192) County, Texas and Douglas County,
Association, as Nebraska properties subject to the
Agent Synthetic Lease transaction
West Facilities Wachovia Bank, Douglas UCC-1 6/4/2003 All assets located at the Douglas
Corporation National County, (#2003-106381) County, Nebraska property subject to
Association, as Nebraska the Synthetic Lease transaction
Agent
West Facilities Wachovia Bank, Delaware UCC-1 5/14/2003 Fixture Filing for Douglas County,
Corporation National (#31241267) Nebraska property (filed in
Association, as connection with Synthetic Lease
Agent transaction)
West Facilities Wachovia Bank, Douglas UCC-1 6/4/2003 Lease filing for the Douglas County,
Corporation National County, (#2003-106386) Nebraska property subject to the
Association, as Nebraska Synthetic Lease transaction
Agent (Assignee)
West Facilities Wachovia Bank, Delaware UCC-1 5/14/2003 Lease filing for the Bexar County,
Corporation National (#31241481) Texas and Douglas County, Nebraska
Association, as properties subject to the Synthetic
Agent (Assignee) Lease transaction
West Facilities Wachovia Bank, Bexar UCC-1 5/15/2003 Fixture Filing for Bexar County,
Corporation National County, Texas (#20030121807) Texas property subject to the
Association, as Synthetic Lease transaction
Agent
West Facilities Wachovia Bank, Bexar UCC-1 5/16/04 Lease filing for the Bexar County,
Corporation National County, Texas (#20030121810) Texas property subject to the
Association Synthetic Lease transaction
(Assignee)
West Facilities Wachovia Bank, Bexar UCC-1 5/16/04 All assets located at the Bexar
Corporation National County, Texas (#20030121809) County, Texas property subject to
Association the Synthetic Lease transaction
National Asset Ameritech Credit Superior UCC-1 12/06/2000 Certain Leased Security and Other
Management Corporation Court of (#033200016573) Equipment
Enterprises, Inc. Cobb County,
Georgia
Sechedule 1-1
Debtor Secured Party Jurisdiction Filing Type Filing Date Description of Collateral
- ----------------- ---------------- ------------- ----------------- ----------- ------------------------------------
Worldwide Asset B-Line, L.L.C. Superior UCC-1 5/21/2004 Certain Consumer Loan Accounts
Management, LLC Court of (#060200406600)
Fulton
County,
Georgia
Worldwide Asset B-Line, L.L.C. Superior UCC-1 6/18/2004 Certain Consumer Loan Accounts
Management, LLC Court of (#060200407871)
Fulton
County,
Georgia
Worldwide Asset B-Line, L.L.C. Superior UCC-1 7/22/2004 Certain Consumer Loan Accounts
Management, LLC Court of (#060200409362)
Fulton
County,
Georgia
Worldwide Asset B-Line, L.L.C. Superior UCC-1 8/12/2004 Certain Consumer Loan Accounts
Management, LLC Court of (#060200410417)
Fulton
County,
Georgia
Worldwide Asset B-Line, L.L.C. Superior UCC-1 9/14/2004 Certain Consumer Loan Accounts
Management, LLC Court of (#060200411957)
Fulton
County,
Georgia
Worldwide Asset B-Line, L.L.C. Superior UCC-1 10/13/2004 Certain Consumer Loan Accounts
Management, LLC Court of (#060200413194)
Fulton
County,
Georgia
Attention, LLC Arrow Funding, Superior UCC-1 12/19/2003 All accounts sold to Arrow Funding
LLC Court of (#67-2003-013425) Corporation by Attention, LLC
(Assigned) Gwinnett
County,
Georgia
Attention, LLC Arrow Funding, Superior UCC-1 12/19/2003 Attention Funding Corporation Stock
LLC Court of (#67-2003-013426) and all other interests in Attention
Gwinnett Funding Corporation acquired by
County, Attention, LLC
Georgia
Note: 1. See Schedule 3.18(a) for Liens on real property.
Schedule 1-2
Schedule 2
SUBSIDIARIES
Jurisdiction of No. of Outstanding Owner of No. of Percentage of
Incorporation/ Outstanding Warrants, Outstanding Shares Shares
Subsidiary Organization Shares Options, Etc. Shares Owned Owned
- ---------------------- --------------- ----------- ------------- ------------------- ------ -------------
West Transaction Delaware N/A 0 West Corporation N/A 100%
Services, LLC
West Transaction Delaware N/A 0 West Corporation N/A 100%
Services II, LLC
West Telemarketing, LP Delaware N/A 0 West Transaction N/A 99%
Services II, LLC
West Transaction
Services, LLC 1%
West Telemarketing Delaware 10,000 0 West Telemarketing, 10,000 100%
Corporation II LP
West Business Delaware N/A 0 West Transaction N/A 99%
Services, LP Services II, LLC
West Transaction
Services, LLC 1%
West Facilities Delaware 10,000 0 West Corporation 10,000 100%
Corporation
West Interactive Delaware 10,000 0 West Corporation 10,000 100%
Corporation
West Direct, Inc. Delaware 10,000 0 West Corporation 10,000 100%
Attention, LLC Georgia N/A 0 West Corporation N/A 100%
Northern Contact, Inc. Delaware 10,000 0 West Telemarketing, 10,000 100%
LP
West International Delaware 1,000 0 West Corporation 1,000 100%
Corporation
West Telemarketing Nova Scotia, 20,000 0 Northern Contact, 20,000 100%
Canada, ULC Canada Inc.
Attention III, LLC Georgia N/A 0 Attention, LLC N/A 100%
Attention Funding Delaware 1,000 0 Attention, LLC 1,000 100%
Corporation
Attention Funding Delaware N/A 0 Attention Funding N/A 100%
Trust Corporation
Schedule 2-1
Jurisdiction of No. of Outstanding Owner of No. of Percentage of
Incorporation/ Outstanding Warrants, Outstanding Shares Shares
Subsidiary Organization Shares Options, Etc. Shares Owned Owned
- ---------------------- --------------- ----------- ------------- ------------------- ------ -------------
InterCall, Inc. Delaware 10,000 0 West Corporation 10,000 100%
InterCall Telecom Delaware N/A 0 InterCall, Inc. N/A 100%
Ventures, LLC
InterCall, Inc. New Brunswick 100 0 InterCall, Inc. 100 100%
InterCall Australia Australia 100 0 InterCall, Inc. 100 100%
Pty. Ltd.
InterCall Singapore Singapore 2 0 InterCall, Inc. 2 100%
Pte. Ltd.
InterCall Hong Kong Hong Kong 10,000 0 InterCall, Inc. 10,000 100%
Pty. Ltd.
InterCall Asia Pacific Australia 100 0 InterCall, Inc. 100 100%
Holdings Pty. Ltd.
InterCall New Zealand New Zealand 100 0 InterCall, Inc. 100 100%
Limited
InterCall Conferencing United 10 0 InterCall, Inc. 10 100%
Services Limited Kingdom
Legal Connect Limited United 2 0 InterCall 2 100%
Kingdom Conferencing
Services Limited
Jamaican Agent Jamaica 1,000 0 West Corporation 999 99.9%
Services Limited Northern Contact,
Inc. 1 0.1%
West Contact Services, Philippines 10,000 0 West Corporation 9,995 99.95
Inc. Hector M. De Leon 1 .01%
Thomas B. Barker 1 .01%
Mark V. Lavin 1 .01%
Bethilda Carabuena 1 .01%
Maria Victoria
Vergel-Roldan 1 .01%
ConferenceCall. Delaware 1,000 0 InterCall, Inc. 1,000 100%
com, Inc.
InterCall Japan, K.K. Japan 200 0 InterCall, Inc. 130 65%
Tozai Sogo Law Firm 70 35%
West Receivable Delaware 10,000 0 West Corporation 10,000 100%
Services, Inc.
Schedule 2-2
Jurisdiction of No. of Outstanding Owner of No. of Percentage of
Incorporation/ Outstanding Warrants, Outstanding Shares Shares
Subsidiary Organization Shares Options, Etc. Shares Owned Owned
- ---------------------- --------------- ----------- ------------- ------------------- ------ -------------
Worldwide Asset Georgia N/A 0 West Receivable N/A 100%
Management, LLC Services, Inc.
National Asset Georgia 3,077 0 West Receivable 3,077 100%
Management Services, Inc.
Enterprises, Inc.
West International Nevada N/A 0 West Receivable N/A 100%
Asset Management, LLC Services, Inc.
Worldwide Asset Nevada N/A 0 West Receivable N/A 70%
Purchasing, LLC Services, Inc.
Cargill Financial
Services Corp.
XXXIV 30%
BuyDebtCo, LLC Nevada N/A 0 West Receivable N/A 100%
Services, Inc.
The Debt Depot, LLC Delaware N/A 0 West Receivable N/A 100%
Services, Inc.
Asset Direct Mortgage, Delaware N/A 0 West Corporation N/A 100%
LLC
Portafolios NAM, S. de Mexico N/A 0 Worldwide Asset N/A 99%
R.L. de C.V. Collections, LLC
BuyDebtCo, LLC 1%
Portafolios NAM-1, S. Mexico N/A 0 West International N/A 99%
de R.L. de C.V. Asset Management,
LLC
BuyDebtCo, LLC 1%
GCA Corporacion Mexico N/A 0 Worldwide N/A 99%
Gerencial de Activos, International Asset
S. de R.L. de C.V. Management, LLC
BuyDebtCo, LLC 1%
West Asset Management, Delaware 10,000 0 West Receivable 10,000 100%
Inc. Services, Inc.
West Asset Purchasing, Nevada N/A 0 West Receivable N/A 100%
LLC Services, Inc.
Schedule 2-3
Schedule 3
LOCATION OF REAL PROPERTY
Owned Real Property:
1. Approximately 0.39 acres owned by InterCall, Inc. located at 802 First
Avenue, West Point, Troup County, Georgia 31833.
2. Approximately 2.54 acres owned by InterCall, Inc. located at 1239 O.G.
Skinner Drive, West Point, Troup County, Georgia 31833.
3. 3300 20th Avenue, Valley, Chambers County, Alabama, owned by InterCall,
Inc. Title to this property is subject to the following:
(a) Lease by Powertel, Inc. of 1,800 square feet by lease dated June
3, 2000.
4. Approximately 5.69 acres owned by InterCall, Inc. located at 1211 O.G.
Skinner Drive, West Point, Troup County, Georgia 31833.
5. 401 E. 4th Street, West Point, Troup County, Georgia 31833, owned by
InterCall, Inc.
6. 403 E. 4th Street, West Point, Troup County, Georgia 31833, owned by
InterCall, Inc.
7. 620 Greison Trail, Newnan, Coweta County, Georgia 31833, owned by
InterCall, Inc.
8. Approximately 14 acres of land adjacent to O.G. Skinner Dr. (a.k.a. Pittman
Street), West Point, Troup County, Georgia 31833, owned by InterCall, Inc.
9. Approximately 1.63 acres located adjacent to and south of property
described herein as 1211 O.G. Skinner Drive, West Point, Troup Count,
Georgia 31833, owned by InterCall, Inc.
10. 11808 Miracle Hills Dr., Omaha, Douglas County, Nebraska 68154, owned by
West Corporation and subject to that certain Mortgage Agreement, by and
between West Corporation and First National Bank of Omaha.
11. 5031 Commerce Park Circle, Pensacola, Escambia County, Florida 32507, owned
by West Corporation (f/k/a West TeleServices Corporation).
12. 2311 S. Illinois Ave. US Route 51, Carbondale, Jackson County, Illinois
62901, owned by West Business Services, LP.
13. 1015 Belvidere, El Paso, El Paso County, Texas 79912, owned by West
Business Services, LP.
14. Buildings 1000, 2000, 3000 and 5000, 11330 IH 10 West, San Antonio, Bexar
County, Texas 78249, owned by West Business Services, LP.
15. Building 8000, 10940 Laureate Drive, San Antonio, Bexar County, Texas
78349, owned by West Business Services, LP.
Schedule 3-1
Leased Real Property:
1. Lease to InterCall, Inc., as lessee, for the 5th Floor, Suites 502 and 508,
232 Madison Avenue, New York, New York 10016.
2. Lease to InterCall, Inc., as lessee, for approximately 3,884 rsf, for One
Glenlake Parkway, Atlanta, Georgia 30328.
3. Lease to InterCall, Inc., as lessee, for approximately 1,353 rsf at
Corporate Center, 110 East Broward Boulevard, Ft. Lauderdale, Florida
33301.
4. Lease to InterCall, Inc., as lessee, for approximately 3,715 rsf, known as
3601 West 76th Street, Edina, Minnesota 55435.
5. Lease to InterCall, Inc., as lessee, for approximately 1,440 rsf, known as
Suite 150, Lake Forest Place, 4445 Lake Forest Drive, Cincinnati, Ohio
45242.
6. Lease to InterCall, Inc., as lessee, for approximately 3,323 rsf, known as
Suite 1110, Prentice Point, 5299 DTC Boulevard, Englewood, Colorado 80111.
7. Lease to InterCall, Inc., as lessee, for approximately 2,681 rsf, known as
Suite 1060, 3 Ballston Plaza, 1100 North Glebe Road, Arlington, Virginia
22201.
8. Lease to InterCall, Inc., as lessee, for approximately 2,867 rsf, known as
Suite 414, 3 Bala Plaza, Bala Cynwyd, Pennsylvania 19004.
9. Lease to InterCall, Inc., as lessee, for approximately 4,689 rsf, known as
Suite 210, 990 Washington Street, Dedham, Massachusetts 02026.
10. Lease to InterCall, Inc., as lessee, for approximately 3,214 rsf, known as
99 Cherry Hill Road, Parsippany, New Jersey 07054.
11. Lease to InterCall, Inc., as lessee, for approximately 3,946 rsf, for
office space at 80 Broad Street, New York, New York 10004-2009.
12. Lease to InterCall, Inc., as lessee, for approximately 3,355 rsf, known as
Suite 840, 433 East Las Colinas Boulevard, Irving, Texas 75039.
13. Lease to InterCall, Inc., as lessee, for approximately 2,796 rsf at 2700
Post Oak Boulevard, Houston, Texas 77056.
14. Lease to InterCall, Inc., as lessee, for approximately 418 rsf, for 1001
Southwest 5th Ave., Suite 110, Portland, Oregon 97204.
15. Lease to InterCall, Inc., as lessee, for approximately 3,110 rsf, known as
Suite 220, 18201 Von Karman Ave., Irvine, California 92612.
16. Lease to InterCall, Inc., as lessee, for approximately 2,802 rsf, known as
Suite 320 of the Denny Building, 2121 Fourth Avenue, Seattle, Washington
98121.
Schedule 3-2
17. Lease to InterCall, Inc., as lessee, for approximately 2,675 rsf, known as
Suite 810, 425 California Street, San Francisco, California 94104.
18. Lease to InterCall, Inc., as lessee, for approximately 5,039 rsf, known as
300 South Tower, Peachtree 25th Building, 1718 Peachtree Street, N.W.,
Atlanta, Georgia 30309.
19. Lease to InterCall, Inc., as lessee, for approximately 23,261 rsf, known as
Suites 225, 400, 413, 420, 421, 464 and 520 for premises located at
Citicorp Plaza, 8420 West Bryn Mawr, Chicago, Illinois 60631.
20. Lease to InterCall, Inc., as lessee, for the office space located at 3618
West Market Street, Suite 100, Room 1, Fairlawn, Ohio 44333.
21. Lease to InterCall Australia Pty. Ltd., as lessee, for Level 1, 187 Thomas
Street, Sydney, New South Wales, Australia.
22. Lease to InterCall Australia Pty. Ltd., as lessee, for Suite 1301, 227
Collins Street, Melbourne, Victoria, Australia.
23. Lease to InterCall Singapore Pte. Ltd., as lessee, Operation Center, for 6
Battery Road, #10-01 049909, Singapore.
24. Lease to InterCall, Inc., as lessee, for Suites 212 and 220, Building A,
Trinity Court, Wokingham Road, Bracknell, RG42 1PL (UK).
25. Lease to InterCall Conferencing Services Limited, as lessee, for offices on
the second floor at Topeka House, Luther Challis Business Centre, Barnwood,
Gloucester, UK.
26. License Agreement to InterCall, Inc., as lessee, for office space at
Kilcullen House, 1 Haigh Terrace, Dun Lioghaire, Dublin, Ireland.
27. Lease to InterCall, Inc., as lessee, for 3131 East Camelback, Suites 268,
269 and 270, Phoenix, Arizona 85016.
28. Lease to InterCall, Inc., as lessee, for approximately 4,074 rsf, known as
Suite 210, 3301 Northland Drive, Austin, Texas 78731.
29. Lease to InterCall, Inc., as lessee, for approximately 1,752 rsf, known as
Space 102, 5387 Manhattan Circle, Boulder, Colorado 80303.
30. Lease to InterCall, Inc., as lessee, for approximately 3,395 rsf, known as
Suite 206, 11340 West Olympic Boulevard, Los Angeles, California 90064.
31. Lease to InterCall, Inc., as lessee, for office space at 80 River Street,
Hoboken, New Jersey 07030.
32. Office Lease between HQ Global Workplaces and InterCall, Inc., as lessee,
dated September 2, 1999.
33. Lease to InterCall, Inc., as lessee, for POP Site, Telecom Exchange Airdale
Street, Auckland 1003, New Zealand.
Schedule 3-3
34. Lease to InterCall, Inc., as lessee, for equipment at 2203 64th Boulevard,
Valley, Alabama 30864.
35. Lease to InterCall Web Conferencing Services Limited, as lessee, for office
space at LaGrande Arche Paroi Nord, 92044, Paris La Defense, France.
36. Lease to InterCall, Inc., as lessee, for office space at HQ Boone Boulevard
Center, Vienna, Virginia 22182.
37. Lease to InterCall, Inc., as lessee, for office space at HQ Francisco Bay
Center, San Francisco, California 94111.
38. Lease to West Telemarketing, LP, as lessee, for office space at 9910 Maple
Street, Omaha, Nebraska 68134.
39. Lease to West Telemarketing, LP, as lessee, for office space at 9311 N.
93rd Street and 9218 Bedford Avenue, Omaha, Nebraska 68134.
40. Lease to West Telemarketing, LP, as lessee, for office space at 11626
Nicholas Street, Omaha, Nebraska 68134.
41. Lease to West Interactive Corporation, as lessee, for office space at 9223
Bedford Street and 3231 N. 93rd Street, Omaha, Nebraska 68134.
42. Lease to West Facilities Corporation, as lessee, for Suite 208, 99 Railroad
Station Plaza, Hicksville, New York 11801.
43. Lease to West Telemarketing, LP, as lessee, for office space at 808 N.
108th Ave., Omaha, Nebraska 68154.
44. Lease to West Interactive Corporation, as lessee, for office space at 4015
S. 132nd Street, Omaha, Nebraska 68137.
45. Lease to West Telemarketing, LP, as lessee, for office space at 10606 Burt
Street, Omaha, Nebraska 68114.
46. Lease to West Corporation (f/k/a West TeleServices Corporation), as lessee,
for office space at 11810 Nicholas Street, Omaha, Nebraska 68154.
47. 11650 Miracle Hills Drive, Omaha, Douglas County, Nebraska 68154, leased by
West Corporation, as lessee, and subject to that certain Deed of Trust,
filed at Miscellaneous Book 8070, Page 305 on 5/12/03 with the Register of
Deeds of Douglas County, Nebraska, pursuant to the synthetic lease
transaction (see Schedule 6.1(b)).
48. Lease to West Corporation (f/k/a West TeleServices Corporation), as lessee,
for space at 4645 Concord Road, Beaumont, Texas 77703.
49. Lease to West Interactive Corporation, as lessee, for space at 1425 Champa
Street, Denver, Colorado 80202.
Schedule 3-4
50. Lease to West Interactive Corporation, as lessee, for space at 3003 Cobb
Parkway, Atlanta, Georgia 30339.
51. Lease to West Telemarketing, LP, as lessee, for space at 2323 W. 38th
Street, Unit 1A, Erie, Pennsylvania 16506.
52. Lease to West Telemarketing, LP, as lessee, for space at 227 Fox Hill Rd.,
Unit D-8, Hampton, Virginia 23669.
53. Lease to West Telemarketing, LP, as lessee, for space at 1545 South 77
Sunshine Strip, Harlingen, Texas 78550.
54. Lease to West Telemarketing, LP, as lessee, for space at 5000 Bradford
Drive, Huntsville, Alabama 35805.
55. Lease to West Telemarketing, LP, as lessee, for space at 1331 West Memorial
Road, Oklahoma City, Oklahoma 73114.
56. Lease to West Telemarketing, LP, as lessee, for space at 1315 Financial
Blvd., Reno, Nevada 89510.
57. Lease to West Telemarketing, LP, as lessee, for space at Harlem Alpine
Center, 1975 Harlem Road, Loves Park, Illinois 61111.
58. Lease to West Telemarketing, LP, as lessee, for Suite 100, 3810 S. 103rd
East Ave., Tulsa, Oklahoma 74146.
59. Lease to West Business Services, LP, as lessee, for space at 328 Ross Clark
Circle, Dothan, Alabama 36303.
60. Lease to West Interactive Corporation, as lessee, for space at 3605
Ambassador Caffery Pkwy., Lafayette, Louisiana 70503.
61. Lease to West Business Services, LP, as lessee, for space at 3262 Dauphin,
Mobile, Alabama 36606.
62. Lease to West Business Services, LP, as lessee, for the 5th Floor, 3800 E.
42nd Street, Odessa, Texas 79762.
63. Lease to Attention, LLC, as lessee, for space at 3432 Jefferson Ave.,
Texarkana, Arkansas 78124 pursuant to that Assignment of Lease from West
Telemarketing Corporation Outbound.
64. Lease to West Business Services, LP, as lessee, for space at 2103 Universal
City Blvd., Universal City, Texas 78148.
65. Lease to West Business Services, LP, as lessee, for approximately 49,683
rsf, for space at 100 West College Avenue, Appleton, Wisconsin 54911.
66. Lease to West Business Services, LP, as lessee, for space at 1111 E. South
River Street, Appleton, Wisconsin 54915.
Schedule 3-5
67. Lease to Attention, LLC, as lessee, for space at 1000 N. Travis Street,
Sherman, Texas 75090.
68. Lease to Attention, LLC, as lessee, for Suite 300, 5300 Oakbrook Parkway,
Norcross, Georgia 30093.
69. Lease to Attention, LLC, as lessee, for space at 215 A North Sunset Blvd.,
Sherman, Texas 75092.
70. Lease to West Business Services, LP, as lessee, for space at S. 4300 Geiger
Blvd., Spokane, Washington 99224.
71. Lease to West Business Services, LP, as lessee, for space at 157 South
Howard Street, Spokane, Washington 99201.
72. Lease to West Business Services, LP, as lessee, for space at 5615 Dunbarton
Ave., Pasco, Washington 99301.
73. Lease to West Business Services, LP, as lessee, for space at 9317 E. Sinto,
Spokane, Washington 99206.
74. Lease to West Telemarketing Canada, ULC, as lessee, for space at 2261
Keating X Road, Saanichton, BC V8M 2A5.
75. Lease to West Telemarketing, LP, as lessee, for space at 7850 Anselmo Lane,
Baton Rouge, Louisiana 70810.
76. Lease to West Business Services, LP, as lessee, for space at 1223 Lee
Trevino Dr., El Paso, Texas 79907.
77. Lease to InterCall, Inc., as lessee, for Suite 202, 1804 Embarcadero Road,
Pao Alto, California.
78. Lease to InterCall, Inc., as lessee, for Office #'s 527, 534 and 539
located at 8300 Boone Blvd., Suite 500, Vienna, Virginia 22182.
79. Lease to InterCall, Inc., as lessee, for Office #'s 157, 164, 166, 167 and
171 located at 1750 Montgomery Street, San Francisco, California 94111.
80. Lease to ConferenceCall.com, Inc., as lessee, for Suites 214, 224 and 226
located at 1445 MacArthur Drive, Carrollton, Texas 75007.
81. Lease to ConferenceCall.com, Inc., as lessee, for Suite 212 located at 1445
MacArthur Drive, Carrollton, Texas 75007.
82. Lease to ConferenceCall.com, Inc., as lessee, for Suite 2670 located at the
Univision Center, 2323 Bryn, Dallas, Texas 75201.
83. Lease to Worldwide Asset Management, LLC, as lessee, for 2221 Newmarket
Parkway, Suite 120, Marietta, Georgia 30067.
84. Lease to Worldwide Asset Management, LLC, as lessee, for 2253 Northwest
Parkway, Marietta, Georgia 30067.
Schedule 3-6
85. Lease to Worldwide Asset Management, LLC, as lessee, for 1351 Dividend
Drive, Marietta, Georgia 30067.
86. Lease to Worldwide Asset Management, LLC, as lessee, for 2270 Northwest
Parkway, Marietta, Georgia 30067.
87. Lease to Worldwide Asset Management, LLC, as lessee, for 2150 Northwest
Parkway, Suite L, Marietta, Georgia 30067.
88. Lease to Worldwide Asset Management, LLC, as lessee, for 2275 Northwest
Parkway, Suite 180, Marietta, Georgia 30067.
89. Lease to National Asset Management Enterprises, Inc., as lessee, for 10300
Spotsylvania Avenue, Suite 200, Fredericksburg, Virginia.
90. Lease to National Asset Management Enterprises, Inc., as sub-lessee, for
9911 Covington Cross Drive, Las Vegas, Nevada 89144.
91. Lease to National Asset Management Enterprises, Inc., as sub-lessee, for
2253 Northwest Parkway, Marietta, Georgia 30067.
92. Lease to National Asset Management Enterprises, Inc., as lessee, for 1060
Perimeter Road West, Endicott, New York.
93. Lease to National Asset Management Enterprises, Inc., as lessee, for 3795
Corporate Center Drive, St. Louis, Missouri 63045.
94. Lease to National Asset Management Enterprises, Inc., as lessee, for 2300
Fall Hill Avenue, Suite 511, Fredericksburg, Virginia.
95. Lease to National Asset Management Enterprises, Inc., as lessee, for 226,
228 and 232 Nelson Street, Cartersville, Georgia 30120.
96. Lease to National Asset Management Enterprises, Inc., as sub-lessee, for
2275 Northwest Parkway, Suite 180 Marietta, Georgia 30067.
97. Lease to Asset Direct Mortgage, LLC, as sub-lessee, for 1351 Dividend
Drive, Marietta, Georgia 30067.
98. Lease to InterCall, Inc., as lessee, POP Site, 40 Ross Street, Glebe, New
South Wales, 2000, Australia.
99. Lease to InterCall, Inc., as lessee, Asia/Pacific HQ, Level 6, 154 Sussex
Street, Sydney, New South Wales 2000, Australia.
100. Lease to InterCall, Inc., as lessee, for POP Site, Sigtel, GNCC Centre, 31
Exeter Road, #02-00 Comcenter3, Singapore.
101. Lease to InterCall, Inc., as lessee, for POP Site, Telecom Exchange Mayoral
Drive, Auckland, New Zealand.
Schedule 3-7
102. Lease to InterCall, Inc., as lessee, for Facilities F, G and I, 1318 Two
Pacific Place, 88 Queens Way, Hong Kong.
103. Lease to InterCall, Inc., as lessee, for POP Site, PCCW Telecom House, 3
Gloucester Road, Wanchai, Hong Kong.
104. Lease to InterCall, Inc., as lessee, for Cotswold Office, Barnwood,
Gloucester, UK.
105. Lease to InterCall, Inc., as lessee, Operation Ctr., Regus Shinjuku Park
Tower, N30F 3-7-1 Nishi-Shinjuk, Tokyo, Japan.
106. Lease to InterCall, Inc., as lessee, Sales Office, 195 The West Mall, Suite
#602, Etobicoke, Canada.
107. Lease to InterCall, Inc., as lessee, Operation Ctr/Sales, 520, 10117 Jasper
Avenue, Edmonton, Canada.
108. Lease to InterCall, Inc., as lessee, POP Site, 410 Laurier Avenue West,
Ottawa, Canada.
109. Lease to West Telemarketing Canada, ULC, as lessee, for space at 2261
Keating X Road, Saanichton, BC V8M 2A5.
110. Lease to Jamaica Agent Services Limited, as lessee, for Jamaica-Portmore
Informatics Park Free Zone, Ground and 1st Floor, Portmore, Jamaica.
111. Lease to Jamaica Agent Services Limited, as lessee, for Jamaica-Montego Bay
Export Free Zone, Building #44, Montego Bay, St. James, Jamaica.
112. Lease to West Contact Services, Inc., as lessee, Export Bank Plaza, Chino
Roces Ave. cor Gil Puyat Ave., Floors 27, 28, 29, 34, 35, Makati City,
Philippines.
113. Building 7000, 10931 Laureate Drive, San Antonio, Bexar County, Texas
78349, leased by West Facilities Corporation and subject to (a) that
certain Deed of Trust, Filing No. 20030116781, filed on 5/09/2003 with the
Bexar County, Texas Clerk's Office, and (b) that certain Deed of Trust and
Assignment and Assumption Agreement, filing Nos. 20010040467 and
20030014093, filed on 3/12/2001 and 1/21/2003 with the Bexar County, Texas
Clerk's Office, pursuant to the synthetic lease transaction (see Schedule
6.1(b)).
Schedule 3-8
Schedule 4
CHIEF EXECUTIVE OFFICES
West Corporation
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Transaction Services, LLC
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Transaction Services II, LLC
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Asset Management, Inc.
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Asset Purchasing, LLC
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Telemarketing, LP
11808 Miracle Hills Drive
Omaha, Nebraska 68154
Northern Contact, Inc.
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Telemarketing Corporation II
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Business Services, LP
10931 Laureate Drive Suite 7140
San Antonio, Texas 78249
West Interactive Corporation
11808 Miracle Hills Drive
Omaha, Nebraska 68154
West Facilities Corporation
11808 Miracle Hills Drive
Omaha, Nebraska 68154
Schedule 4-1
West Direct, Inc.
11808 Miracle Hills Drive
Omaha, Nebraska 68154
Attention, LLC
5300 Oakbrook Parkway Suite 300
Norcross, GA 30093
Attention III, LLC
5300 Oakbrook Parkway Suite 300
Norcross, GA 30093
InterCall, Inc.
1239 O.G. Skinner Drive
West Point, Georgia 31833
InterCall Australia Pty. Ltd.
Level 8, 155 George Street
Sydney, New South Wales, Australia
InterCall Singapore Pte. Ltd.
80 Raffles Place
#35-23 OB Plaza 1
Singapore, China
InterCall Conferencing Services Limited
Second Floor
Topeka House
Barnwood, Gloucester, UK
InterCall New Zealand Limited
Level 10 Telecom House
8 Hereford Street
Auckland 1003, New Zealand
InterCall Japan K.K.
3-28, Kioichi, Chiyoda-Ku
Tokyo, Japan 102-0094
InterCall, Inc. (Canada)
10117 Jasper Ave. Suite 520
Edmonton, Alberta
T5J 1 W8
Canada
InterCall Telecom Ventures, LLC
3300 20th Avenue
Valley, Alabama 36854
Schedule 4-2
InterCall Hong Kong Pty. Ltd.
1318 Two Pacific Place
88 Queensway
Hong Kong
InterCall Asia Pacific Holdings Pty. Ltd.
Level 8, 155 George Street
Sydney, New South Wales, Australia
ConferenceCall.com, Inc.
1445 MacArthur Drive, Suite 226
Carrollton, Texas 75007
West Receivable Services, Inc.
11808 Miracle Hills Drive
Omaha, Nebraska 68154
Worldwide Asset Management, LLC
2253 Northwest Parkway, Suite 500
Marietta, GA 30069
National Asset Management Enterprises, Inc.
2253 Northwest Parkway, Suite 500
Marietta, GA 30069
West International Asset Management, LLC
2253 Northwest Parkway, Suite 500
Marietta, GA 30069
Worldwide Asset Purchasing, LLC
2253 Northwest Parkway, Suite 500
Marietta, GA 30069
BuyDebtCo, LLC
2253 Northwest Parkway, Suite 500
Marietta, GA 30069
The Debt Depot, LLC
2253 Northwest Parkway, Suite 500
Marietta, GA 30069
Asset Direct Mortgage, LLC
2253 Northwest Parkway, Suite 500
Marietta, GA 30069
Portafolios NAM, S. de R.L. de C.V.
2253 Northwest Parkway, Suite 500
Marietta, GA 30069
Schedule 4-3
Portafolios NAM-1, S. de R.L. de C.V.
2253 Northwest Parkway, Suite 500
Marietta, GA 30069
Corporacion Gerencial de Activos, S. de R.L. de C.V.
2253 Northwest Parkway, Suite 500
Marietta, GA 30069
West Contact Services, Inc.
Exportabank Plaza
Sen. Gil Puyat & Chino Roces Ave.
Makati City, 1200, PH Philippines
Jamaican Agent Services Limited
6A Holborn Road
Kingston 10, JM Jamaica
West Telemarketing Canada, ULC
2261 Keating Cross Road
Central Saanich, CA V8M 2A5
Canada
Attention Funding Corporation
5300 Oakbrook Parkway Suite 300
Norcross, GA 30093
Attention Funding Trust
5300 Oakbrook Parkway Suite 300
Norcross, GA 30093
Legal Connect Limited
Topeka House
Luther Challis Business Centre
Gloucestershire, EN GL4 3HX
United Kingdom
Schedule 4-4
Schedule 5
LABOR MATTERS
None.
Schedule 5-1
Schedule 6
INDEBTEDNESS
1. Indebtedness of West Corporation not exceeding $12,000,000.00 in the
aggregate pursuant to that certain Mortgage Loan, by and between West
Corporation and First National Bank of Omaha, dated as of January 30, 1998,
as amended as of March 8, 2002.
2. Indebtedness in an aggregate principal amount not to exceed $41,000,000.00
under that certain synthetic lease transaction pursuant to the Operative
Agreements as described in that certain Participation Agreement, dated as
of the Closing Date, by and among West Facilities Corporation, as lessee,
Wachovia Development Corporation, as lessor, the lenders party thereto and
Wachovia Bank, National Association.
3. Earn-out obligations of West Corporation pursuant to that certain Purchase
Agreement, dated as of July 23, 2002, by and among Attention, LLC, the
Sellers (as defined therein), the Sellers' Representative (as defined
therein) and West Corporation. Pursuant to the Attention, LLC acquisition,
additional consideration will be payable over the four year period between
2004 and 2008, which will range from a minimum of $21,500,000.00 to a
maximum of $50,000,000.00 based upon Attention, LLC's satisfaction of
certain earnings objectives during the years ending December 31, 2003
through 2007. At December 31, 2002, the $21,500,000.00 minimum payment was
accrued.
4. Earn-out obligations of West Corporation pursuant to that certain Stock
Purchase Agreement, dated as of December 7, 2001, by and between West
Corporation and John F. Gillen, in connection with West Corporation's
purchase of Tel Mark Sales, Inc. There is a provision for a three-year
contingent earn-out with a maximum earn-out of $5,000,000.00 per year
relating to the acquisition of Tel Mark Sales, Inc. in 2002. The earn-out
obligation is based upon the acquired entity achieving certain revenue
growth objectives. Based on the revenue growth achieved by this entity an
accrual of $2,752,000.00 was recorded during fiscal year 2002.
5. Indebtedness of Worldwide Asset Purchasing, LLC pursuant to an Amended and
Restated Credit Agreement, dated as of September 30, 2004, by and between
Worldwide Asset Purchasing, LLC and CFSC Capital Corp. XXXIV.
6. Lease of security equipment and other related equipment under Lease No.
001-0026055, including Lease No. 0026055-000 GA Cobb 13250, by and between
National Asset Management Enterprises, Inc. and Ameritech Credit
Corporation.
Schedule 6-1
EXHIBIT 1
EXHIBIT G
JOINDER AGREEMENT
(Pursuant to Section 8A.10 of the Participation Agreement and
Section 5.10 of the Credit Facility Credit Agreement)
THIS JOINDER AGREEMENT (as amended, restated or otherwise modified, the
"Agreement"), dated as of _____________, ____, is by and among
_____________________, a ______________________ (the "Subsidiary Guarantor");
WEST CORPORATION, a Delaware corporation ("West Corp."), in its capacities as
the Credit Facility Borrower (hereinafter defined) and as one of the guarantors
pursuant to the Participation Agreement (hereinafter defined) and the Guaranty
(as defined in Appendix A to the Participation Agreement); and the various
guarantors pursuant to the Credit Facility Credit Agreement (hereinafter
defined) referenced on the signature pages hereto and the various additional
guarantors pursuant to the Participation Agreement (hereinafter defined) and the
Guaranty (as defined in Appendix A to the Participation Agreement) referenced on
the signature pages hereto; and acknowledged and accepted by WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association ("Wachovia Bank"), in its
capacities as the Credit Facility Administrative Agent (hereinafter defined) and
as the Lease Facility Agent (hereinafter defined).
RECITALS
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated as of
November 15, 2004 (as amended, restated or otherwise modified, the "Credit
Facility Credit Agreement"), by and among West Corp., as borrower thereunder
(the "Credit Facility Borrower"), certain Domestic Subsidiaries of the Credit
Facility Borrower from time to time party thereto, as guarantors thereunder, the
entities from time to time that are parties thereto, as lenders thereunder (the
"Credit Facility Lenders") and Wachovia Bank, as administrative agent thereunder
for the Credit Facility Lenders (the "Credit Facility Administrative Agent"),
the Credit Facility Lenders have extended credit facilities in favor of the
Credit Facility Borrower and the Credit Facility Borrower has agreed to cause
certain of its Domestic Subsidiaries to join as Guarantors; and
WHEREAS, pursuant to the Participation Agreement, dated as of May 9, 2003
(as amended, restated or otherwise modified, the "Participation Agreement"), by
and among West Facilities Corporation, a Delaware corporation, as lessee
thereunder (the "Lessee"), West Corp. and the other various entities which are
parties to the Participation Agreement from time to time as guarantors
thereunder, Wachovia Development Corporation, a North Carolina corporation, as
the borrower or the lessor thereunder (the "Lease Facility Borrower" or the
"Lessor"), the various banks and other lending institutions which are parties
thereto from time to time as lenders thereunder (subject to the definition of
Lenders in Appendix A thereto, individually, a
Exhibit 1-1
"Lease Facility Lender" and collectively, the "Lease Facility Lenders"), and
Wachovia Bank, National Association, a national banking association, as the
agent for the Primary Financing Parties and respecting the Security Documents,
as the agent for the Secured Parties (in such capacity, the "Lease Facility
Agent"), the Lessor and the Lease Facility Lenders have extended a lease
facility in favor of the Lessee and the Credit Parties have agreed to cause
certain of their Domestic GCA Subsidiaries to join as Guarantors.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agrees as follows:
SECTION 1
Capitalized terms used in the first recital and in Section 2 hereof but not
otherwise defined herein shall have the meanings provided in the Credit Facility
Credit Agreement. Capitalized terms used in the second recital and in Section 3
hereof but not otherwise defined herein shall have the meanings provided in
Appendix A to the Participation Agreement.
SECTION 2
The Subsidiary Guarantor is a Material Domestic Subsidiary, and,
consequently, the Credit Parties are required by Section 5.10 of the Credit
Facility Credit Agreement to cause the Subsidiary Guarantor to become a
"Guarantor" thereunder.
Accordingly, the Subsidiary Guarantor hereby agrees as follows with the
Credit Facility Administrative Agent, for the benefit of the Credit Facility
Lenders:
1. The Subsidiary Guarantor hereby acknowledges, agrees and confirms that,
by its execution of this Agreement, the Subsidiary Guarantor will be deemed to
be a party to the Credit Facility Credit Agreement and a "Guarantor" for all
purposes of the Credit Facility Credit Agreement and the other Credit Documents,
and shall have all of the obligations of a Guarantor thereunder as if it had
executed the Credit Facility Credit Agreement and the other Credit Documents.
The Subsidiary Guarantor hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Credit
Documents, including without limitation (a) all of the representations and
warranties of the Credit Parties set forth in Article III of the Credit Facility
Credit Agreement and (b) all of the affirmative and negative covenants set forth
in Articles V and VI of the Credit Facility Credit Agreement. Without limiting
the generality of the foregoing terms of this paragraph 1, the Subsidiary
Guarantor hereby jointly and severally together with the other Guarantors,
guarantees to each Credit Facility Lender, the Credit Facility Administrative
Agent, the Swingline Lender and the Issuing Lender as provided in the Credit
Facility Credit Agreement the prompt payment and performance of the Credit Party
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof and agrees that if any of such
Credit Party Obligations are not paid or performed in full when due (whether at
stated maturity, as a
Exhibit 1-2
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Subsidiary Guarantor will, jointly and severally together with
the other Guarantors, promptly pay and perform the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Credit Party Obligations, the same will be promptly paid
in full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in accordance
with the terms of such extension or renewal.
2. The Subsidiary Guarantor acknowledges and confirms that it has received
a copy of the Credit Facility Credit Agreement and the schedules and exhibits
thereto. The information on the schedules to the Credit Facility Credit
Agreement is hereby amended to provide the information shown on the attached
Schedule A.
3. The Credit Facility Borrower and the Guarantors confirm that all of
their obligations under the Credit Facility Credit Agreement are, and upon the
Subsidiary Guarantor becoming a Guarantor, shall continue to be, in full force
and effect. The parties hereto confirm and agree that immediately upon the
Subsidiary Guarantor becoming a Guarantor, the term "Credit Party Obligations,"
as used in the Credit Facility Credit Agreement, shall include all obligations
of such Subsidiary Guarantor under the Credit Facility Credit Agreement and
under each other Credit Document.
4. The Subsidiary Guarantor hereby agrees that upon becoming a Guarantor it
will assume all Credit Party Obligations of a Guarantor as set forth in the
Credit Facility Credit Agreement.
5. Each of the Credit Facility Borrower and the Subsidiary Guarantor agrees
that at any time and from time to time, upon the written request of the Credit
Facility Administrative Agent, it will execute and deliver such further
documents and do such further acts and things as the Credit Facility
Administrative Agent may reasonably request in order to effect the purposes of
this Agreement.
SECTION 3
The Subsidiary Guarantor is a Material Domestic GCA Subsidiary, and,
consequently, the Credit Parties are required by Section 8A.10 of the
Participation Agreement to cause the Subsidiary Guarantor to become a
"Guarantor" thereunder and under the Guaranty (as defined in Appendix A to the
Participation Agreement).
Accordingly, the Subsidiary Guarantor hereby agrees as follows with the
Lease Facility Agent, for the benefit of the Financing Parties:
1. The Subsidiary Guarantor hereby acknowledges, agrees and confirms that,
by its execution of this Agreement, the Subsidiary Guarantor will be deemed to
be a party to the Participation Agreement, the Guaranty and the other Operative
Agreements to which any of the Guarantors is a party and a "Guarantor" for all
purposes of the Participation Agreement, the
Exhibit 1-3
Guaranty and the other Operative Agreements, and shall have all of the
obligations of a Guarantor thereunder as if it had executed the Participation
Agreement, the Guaranty and the other Operative Agreements to which any of the
Guarantors is a party. The Subsidiary Guarantor hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
contained in the Operative Agreements, including without limitation (a) all of
the representations and warranties of the Credit Parties set forth in Section
6.3 of the Participation Agreement and Section 2 of the Guaranty and (b) all of
the affirmative and negative covenants set forth in Section 8A and 8B of the
Participation Agreement. Without limiting the generality of the foregoing terms
of this paragraph 1, the Subsidiary Guarantor hereby jointly and severally
together with the other Guarantors, guarantees to each Financing Party, as
provided in the Guaranty the prompt payment and performance of the Guaranteed
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof and agrees that if any of such
Guaranteed Obligations are not paid or performed in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Subsidiary Guarantor will, jointly and
severally together with the other Guarantors, promptly pay and perform the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment, performance or renewal of any of the Guaranteed Obligations,
the same will be promptly paid or performed in full when due (whether at
extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such
extension or renewal.
2. The Subsidiary Guarantor acknowledges and confirms that it has received
a copy of the Participation Agreement, the Guaranty, each other Operative
Agreement requested by the Subsidiary Guarantor and the respective schedules and
exhibits thereto. The information on the schedules to the Participation
Agreement is hereby amended to provide the information shown on the attached
Schedule A.
3. West Corp. and the Guarantors confirm that all of their obligations
under the Operative Agreements are, and upon the Subsidiary Guarantor becoming a
Guarantor, shall continue to be, in full force and effect. The parties hereto
confirm and agree that immediately upon the Subsidiary Guarantor becoming a
Guarantor, the term "Guaranteed Obligations," as used in the Operative
Agreements, shall include all obligations of such Subsidiary Guarantor under the
Participation Agreement, the Guaranty and under each other Operative Agreement.
4. The Subsidiary Guarantor hereby agrees that upon becoming a Guarantor it
will assume all Guaranteed Obligations of a Guarantor.
5. Each of West Corp. and the Subsidiary Guarantor agrees that at any time
and from time to time, upon the written request of the Lease Facility Agent, it
will execute and deliver such further documents and do such further acts and
things as the Lease Facility Agent may reasonably request in order to effect the
purposes of this Agreement.
Exhibit 1-4
SECTION 4
1. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
2. This Agreement shall be governed by and construed and interpreted (a) in
connection with Section 2 and the other provisions of this Agreement which
relate to the Credit Facility Credit Agreement, in accordance with the laws of
the State of New York and (b) in connection with Section 3 and the other
provisions of this Agreement which relate to the Operative Agreements, in
accordance with the laws of the State of North Carolina.
Exhibit 1-5
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed by its authorized officer, the Credit Facility Administrative
Agent, for the benefit of the Credit Facility Lenders, has caused the same to be
accepted by its authorized officer and the Lease Facility Agent, for the benefit
of the Financing Parties (as such term is defined Appendix A to the
Participation Agreement), has caused the same to be accepted by its authorized
officer, in each case, as of the day and year first above written.
SUBSIDIARY GUARANTOR:
[SUBSIDIARY GUARANTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CREDIT FACILITY BORROWER
AND A GUARANTOR PURSUANT TO
THE PARTICIPATION AGREEMENT
AND THE GUARANTY (AS DEFINED IN
APPENDIX A TO THE PARTICIPATION
AGREEMENT):
WEST CORPORATION, a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
GUARANTORS PURSUANT
TO THE CREDIT FACILITY
CREDIT AGREEMENT, THE
PARTICIPATION AGREEMENT
AND THE GUARANTY (AS
DEFINED IN APPENDIX A TO THE
PARTICIPATION AGREEMENT):
[EXISTING GUARANTORS]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Exhibit 1-6
Acknowledged and accepted:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as the Credit Facility
Administrative Agent and as the Lease
Facility Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Exhibit 1-7
SCHEDULE A
Additional Information for Schedules to the
Credit Facility Credit Agreement, Participation Agreement, Etc.
Exhibit 1-8
EXHIBIT 2
Schedule 2.1
Lender Commitment
---------------------------
Amount Percentage
-------------- ----------
Wachovia Capital Investments, Inc. $ 4,250,000.00 40.6012%
c/o Wachovia Securities, Inc.
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
Attention: Gabrielle Braverman
Telephone: (704) 383-1967
Telecopy: (704) 383-8108
CommerceBank N.A. $ 6,000,000.00 59.3988%
c/o Corporate Banking
11 East 51st Street
New York, New York 10022
Attention: Lourdes Jordan
Telephone: (212) 891-7463
Telecopy: (212) 891-7761
TOTAL $10,250,000.00 100.00%
Exhibit 2-1
EXHIBIT 3
ENTITIES RELEASED AS GUARANTORS
Worldwide Asset Purchasing, LLC
Exhibit 3-1