Exhibit 10.4 to 2003 10-Q1
ASSIGNMENT AND RECHARACTERIZATION AGREEMENT
ASSIGNMENT AND RECHARACTERIZATION AGREEMENT dated as of June 30, 2003 (as
amended, modified, extended, supplemented, restated and/or replaced from time to
time, this "Agreement") by and among CONVERGYS CORPORATION, an Ohio corporation
(regarding the transactions evidenced by the Existing Operative Agreements, the
"Existing Construction Agent" and the "Existing Lessee"), the various entities
which are party to the Existing Participation Agreement as guarantors (regarding
the transactions evidenced by the Existing Operative Agreements, the "Existing
Guarantors"), WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION (as successor to
First Security Bank, National Association), a national banking association, the
various banks and other lending institutions listed on the signature pages
hereto as existing holders of certificates issued with respect to the CRT Realty
Trust 1998-1 (regarding the transactions evidenced by the Existing Operative
Agreements, individually, an "Existing Holder" and collectively, the "Existing
Holders"), the various banks and other lending institutions listed on the
signature pages hereto as existing lenders with respect to the CRT Realty Trust
1998-1 (regarding the transactions evidenced by the Existing Operative
Agreements, individually, an "Existing Lender" and collectively, the "Existing
Lenders"), BANK OF AMERICA, N.A. (as successor to NationsBank, N.A.,), a
national banking association, as the agent for the Existing Lenders and
respecting the Existing Security Documents (hereinafter defined), as the agent
for the Existing Lenders and the Existing Holders to the extent of their
interests (regarding the transactions evidenced by the Existing Operative
Agreements, the "Existing Agent"), CONVERGYS CORPORATION, an Ohio corporation
(the "Lessee"), the various entities which are party hereto as guarantors
(individually, a "Guarantor" and collectively, the "Guarantors"), WACHOVIA
DEVELOPMENT CORPORATION, a North Carolina corporation (the "Borrower" or the
"Lessor"), the various financial institutions and other institutional investors
which are parties to the Participation Agreement (hereinafter defined from time
to time as purchasers of the Credit Notes (individually, a "Credit Note
Purchaser" and collectively, the "Credit Note Purchasers"), the various banks
and other lending institutions which are parties to the Participation Agreement
(hereinafter defined) from time to time as mortgage lenders (individually, a
"Mortgage Lender" and collectively, the "Mortgage 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").
WITNESSETH:
-----------
WHEREAS, various of the parties to this Agreement are parties to the
Existing Participation Agreement, certain other Existing Operative Agreements,
the Participation Agreement, or certain other Operative Agreements;
WHEREAS, the parties to this Agreement wish to amend or modify certain
agreements, instruments and other documents to which they are a party (or to
which certain of them are a
party) to permit the facility contemplated by the Existing Operative Agreements
to be assigned and replaced by the facility contemplated by the Operative
Agreements;
WHEREAS, the Existing Lenders and Existing Holders have been requested to
assign to the Lessor the Existing Notes and Existing Holder Certificates and,
subject to the terms of this Agreement, their rights and obligations as the
Existing Lenders and the Existing Holders pursuant to the Existing Operative
Agreements and the Lessor desires to accept such assignments;
WHEREAS, the Lessor, as the beneficial owner of one hundred percent of the
Trust pursuant to such assignments referenced in the prior paragraph, desires to
obtain, in connection with a termination of the Trust, the Owner Trustee's
right, title and interest in and to the assets held by the Owner Trustee or in
the Trust and except as otherwise provided, Lessor will assume certain of the
Owner Trustee's obligations under the Existing Operative Agreements;
WHEREAS, the Lessor desires (a) to merge the obligations assumed by the
Lessor from the Owner Trustee and the Lessor's beneficial interest in the
Existing Notes, the Existing Holder Certificates and the Existing Operative
Agreements, (b) to continue to hold the assets of the Trust free and clear of
the Liens created under the Existing Operative Agreements, but subject to the
Liens created under the Operative Agreements and (c) to dissolve the Trust;
WHEREAS, certain parties to this Agreement desire to amend and restate
certain of the Existing Operative Agreements pursuant to the Operative
Agreements; and
WHEREAS, the relevant parties to this Agreement have agreed to
modifications to the Existing Operative Agreements and such other changes that
are necessary to accomplish the transaction as contemplated herein on the terms
and conditions set forth herein and in the Operative Agreements.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
the parties hereto agree as follows:
AGREEMENT:
---------
1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meaning given to such terms in Appendix A to the
Participation Agreement and the rules of usage set forth therein shall apply
herein. The following terms shall have the meaning provided therefor in this
Section 1:
"Assigned Facility" shall have the meaning provided therefor in Section 3
of this Agreement.
"Assigning Parties" shall mean the Existing Lenders and the Existing
Holders.
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"Closing Date" shall mean June 30, 2003.
"Existing Holder Certificates" shall have the meaning provided for the term
"Certificates" in Appendix A to the Existing Participation Agreement.
"Existing Notes" shall have the meaning provided for the term "Notes" in
Appendix A to the Existing Participation Agreement.
"Existing Operative Agreements" shall have the meaning provided for the
term "Operative Agreements" in Appendix A to the Existing Participation
Agreement.
"Existing Participation Agreement" shall mean that certain Participation
Agreement dated as of December 31, 1998 (as amended, modified, extended,
supplemented, restated and/or replaced prior to the date hereof) by and among
Convergys Corporation, an Ohio corporation, as the lessee and as the
construction agent thereunder; the various parties thereto from time to time as
guarantors: Wells Fargo Bank Northwest, National Association (as successor to
First Security Bank, National Association), a national banking association, not
individually, except as expressly stated therein, but solely as the Owner
Trustee under the CRT Realty Trust 1998-1; the various banks and other lending
institutions which are parties thereto from time to time as holders of
certificates issued with respect to the CRT Realty Trust 1998-1; the various
banks and other lending institutions which are parties thereto from time to time
as lenders; and Bank of America, N.A.(as successor to NationsBank, N.A.,), a
national banking association, as the agent thereunder.
"Existing Parties" shall mean collectively the Financing Parties, the
Lessee and the Guarantor, as each term is defined in Appendix A to the Existing
Participation Agreement.
"Existing Security Documents" shall have the meaning provided for the term
"Security Documents" in Appendix A to the Existing Participation Agreement.
"Existing Security Filings" shall mean collectively the "Lender Financing
Statements," the "Lessor Financing Statements" and the "Mortgage Instruments" as
such terms are defined in Appendix A to the Existing Participation Agreement.
"Lessor Liens" shall have the meaning provided for the term "Lessor Liens"
in Appendix A to the Existing Participation Agreement.
"Owner Trustee" shall mean Wells Fargo Bank Northwest, National Association
(as successor to First Security Bank, National Association), not individually,
except as expressly stated in the Existing Operative Agreements, but solely in
its capacity as the owner trustee of the Trust, and any successor, replacement
or additional Owner Trustee expressly permitted under the Existing Operative
Agreement or this Agreement.
"Participation Agreement" shall mean the Participation Agreement dated as
of June 30, 2003 by and among Convergys Corporation, as the lessee thereunder,
the various entities which are parties thereto from time to time as guarantors
thereunder, Wachovia Development
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Corporation, as the borrower or the lessor thereunder, the various financial
institutions and other institutional investors which are parties thereto from
time to time as Credit Note Purchasers thereunder, the various banks and other
lending institutions which are parties thereto from time to time as Mortgage
Lenders thereunder and Wachovia Bank, National Association, as the agent for the
Primary Financing Parties thereunder and respecting the security documents
referenced therein, as the agent for the Secured Parties referenced therein.
"Trust" shall mean the CRT Realty Trust 1998-1.
"Trust Company" shall mean Wells Fargo Bank Northwest, National Association
(as successor to First Security Bank, National Association), in its individual
capacity.
2. Assignment of Existing Notes and Existing Holder Certificates. On the
Closing Date, the Lessor agrees to purchase an assignment of each Existing Note,
each Existing Holder Certificate and, subject to the terms of this Agreement,
the rights and obligations of the Existing Holders and the Existing Lenders
under the Existing Operative Agreements from the Existing Lenders and Existing
Holders, respectively, for a price equal to the amount set forth opposite such
Assigning Party's name in Schedule 1 attached hereto. On the Closing Date,
provided Lessor or a Person on Lessor's behalf has transferred the aggregate of
all amounts set forth in Schedule 1 to the Existing Agent, on behalf of each
Assigning Party, and such amount is received by the Existing Agent no later than
12:00 noon, Charlotte, North Carolina time, then each such Assigning Party shall
convey its Existing Note, Existing Holder Certificate, and such other rights and
obligations under the Existing Operative Agreements, as applicable, pursuant to
the terms and conditions of Section 3 hereof.
3. Terms of Assignment of Existing Notes and Existing Holder Certificates.
(a) Assignment. Each Assigning Party hereby irrevocably sells and
assigns to the Lessor without recourse to such Assigning Party, and the
Lessor hereby irrevocably purchases and assumes from each such Assigning
Party without recourse to such Assigning Party, as of the Closing Date, a
one hundred percent interest in and to each such Assigning Party's rights
and obligations under the Existing Operative Agreements, except indemnity
rights and payments regarding occurrences prior to the Closing Date
(including without limitation obligations pursuant to Section 11 of the
Existing Participation Agreement) due to such Assigning Party which shall
be retained by the applicable Assigning Party (the "Assigned Facility").
(b) Assigning Party Representations and Warranties. Each Assigning
Party represents and warrants that the Assigning Party (i) is legally
authorized to enter into this Agreement; (ii) had (as of the date of
execution) the authority to execute the Existing Operative Agreements to
which it is a party; (iii) has complied with, and not violated the terms of
or failed to perform its obligations under, any of the Existing Operative
Agreements; (iv) has no knowledge of any Default or Event of Default (as
such terms are defined in Appendix A to the Existing Participation
Agreement); (v) is the legal and beneficial owner of its right, title and
interest assigned pursuant to this Agreement; (vi) has an outstanding
principal amount equal to the amount assigned as referenced on
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Schedule 1; and (vii) has not created any adverse claim upon the interest
being assigned by it hereunder and that such interest is free and clear of
any such adverse claim.
Other than as set forth in the prior paragraph of this Section 3(b),
each Assigning Party (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Existing Operative
Agreements or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Existing Operative Agreements or
any other instrument or document furnished pursuant thereto; (ii) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Trust, or any obligor or the performance or
observance by the Trust, or any obligor of any of their respective
obligations under the Existing Operative Agreements or any other instrument
or document furnished pursuant hereto or thereto; and (iii) attaches the
Existing Note or Existing Holder Certificate, as applicable, held by it
evidencing the Assigned Facility. Following the execution of this
Agreement, a copy of it will be delivered to the Existing Agent for
acceptance by it pursuant to the applicable provisions of the Existing
Operative Agreements; such Agreement shall be effective as of the Closing
Date.
(c) Lessor Representations and Warranties. The Lessor (i) represents
and warrants that it is legally authorized to enter into this Agreement;
(ii) confirms that it has received copies of the Existing Operative
Agreements, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Agreement; (iii) agrees that it will, independently and without reliance
upon the applicable Assigning Party, the Existing Agent or any other
Assigning Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Existing Operative Agreements or any
other instrument or document furnished pursuant hereto or thereto; (iv)
subject to Section 7, appoints and authorizes the Existing Agent to take
such action as agent on its behalf and to exercise such powers and
discretion under the Existing Operative Agreements or any other instrument
or document furnished pursuant hereto or thereto as are delegated to the
Existing Agent by the terms thereof, together with such powers as are
incidental thereto; and (v) agrees that it will be bound by the provisions
of the Existing Operative Agreements to which such Assigning Party is a
party and will perform in accordance herewith all the obligations which by
the terms of the Existing Operative Agreements to which such Assigning
Party is a party are required to be performed by it as a "Lender" or
"Holder", as applicable, pursuant to the Existing Operative Agreements,
including without limitation, if it is organized under the laws of a
jurisdiction outside the U.S., its obligation pursuant to Section 11.2(e)
of the Existing Participation Agreement.
(d) Payments to the Lessor. Upon such acceptance and recording of the
assignment of the Existing Notes and the Existing Holder Certificates in
the Existing Agent's register, from and after the Closing Date, the
Existing Agent shall make all payments (except indemnity payments regarding
occurrences prior to the Closing Date which shall be made to the applicable
Assigning Party or other indemnified party
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pursuant to the Existing Operative Agreements) in respect of the Assigned
Facility (including without limitation payments of principal, interest,
fees and other amounts, except as otherwise expressly provided herein) to
the Lessor whether such amounts have accrued prior to the Closing Date or
accrue subsequent to the Closing Date. The Assigning Parties and the Lessor
shall make all appropriate adjustments in payments by the Existing Agent
for periods prior to the Closing Date or with respect to the making of this
assignment directly between themselves.
(e) Lessor as a Party. From and after the Closing Date, (i) the Lessor
shall be a party to the applicable Existing Operative Agreements in place
of each Assigning Party and, to the extent provided in this Agreement, have
the rights and obligations of an Existing Lender and Existing Holder, as
applicable, under the Existing Operative Agreements and shall be bound by
the provisions thereof and (ii) each of the Assigning Parties shall, to the
extent provided in this Agreement, relinquish its rights and be released
from its obligations under the Existing Operative Agreements.
4. Assignment and Assumption of Lease and Other Existing Operative
Agreements. The Owner Trustee hereby irrevocably transfers and assigns to the
Lessor, and the Lessor hereby assumes, all of the Owner Trustee's right, title,
interest and obligations under or with respect to each of the Existing Operative
Agreements, including without limitation the Lease and each Lease Supplement, in
each case as such terms are defined in the Existing Participation Agreement.
5. Transfer of Trust Property. After the assignment of the Existing Notes
and the Existing Holder Certificates to the Lessor, the Lessor directs, in
connection with the termination and dissolution of the Trust, and the Lessee and
each Guarantor consent to such direction, the Owner Trustee to take all
necessary action to convey, assign and transfer to the Lessor all of its right,
title and interest in and to all of the Owner Trustee's and the Trust's assets
and all of the Owner Trustee's obligations and liabilities pursuant to the
Existing Operative Agreements (provided, however, (a) such conveyance shall only
include liabilities of the Owner Trustee incurred pursuant to and in compliance
with the Existing Operative Agreements and not those of the Trust Company
whether related to the Existing Operative Agreements or otherwise and (b) the
Lessor shall not have any obligation to remove or take any other action with
respect to Lessor Liens), in all cases free and clear of Lessor Liens arising
prior to such conveyance, assignment and transfer, including without limitation
the ownership, ground lease interest and all other right, title and interest in
and to the real property, personal property, improvements, fixtures, and
tangible and intangible property of the Owner Trustee or the Trust. The Owner
Trustee shall promptly cause to be taken, executed, notarized, authorized,
acknowledged, consented, and delivered, as applicable, all such further acts,
conveyances, documents, instruments and assurances to complete the conveyance
contemplated herein and to otherwise effectuate the intent and purpose of this
Agreement.
6. Release of Existing Security Filings and Existing Security Documents.
Except as otherwise contemplated under the Operative Agreements, the Lessor and
the Existing Agent hereby (a) release the Lien of the Existing Security Filings
and Existing Security Documents and (b) direct the Owner Trustee to, and the
Existing Agent and the Owner Trustee each agree to,
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promptly cause to be taken, executed, notarized, authorized, acknowledged,
consented, and delivered, as applicable, all such further acts, conveyances,
documents, instruments and assurances to complete the conveyances contemplated
in Section 4 of this Agreement and to otherwise effectuate the intent and
purpose of this Agreement.
7. Merger and Termination of Trust; Amendment and Restatement of
Transactions. Promptly after completion of the transactions contemplated by
Sections 2 through 5 of this Agreement, the Lessor will be (a) the beneficial
owner of the Existing Notes and the Existing Holder Certificates and (b) the
obligor under the Existing Notes and the Existing Holder Certificates. As a
result, the Lessor shall merge the obligations and the liabilities related to
the Existing Notes and the Existing Holder Certificates and terminate the
Existing Notes and the Existing Holder Certificates. After completion of the
foregoing, the Trust shall not have a corpus and the parties hereto agree that
the Lessor, acting both as the Owner Trustee and the beneficial owner of one
hundred percent of the interests in the Trust, shall have the ability to and
shall be automatically deemed to have dissolved the Trust without further
action, provided the terms and conditions of the Existing Operative Agreements
which are expressly stated to continue after the Trust has been dissolved or the
Existing Notes and the Existing Holder Certificates are no longer outstanding
shall continue and the Lessor shall be deemed to have properly replaced the
Owner Trustee in the Existing Operative Agreements and as such the Lessor shall
have the indemnities and other benefits set forth with respect to the Owner
Trustee in the Existing Operative Agreements.
Concurrent with the dissolution of the Trust referenced in the prior
paragraph, certain of the Existing Operative Agreements shall be amended and
restated by certain of the Operative Agreements. Those Existing Operative
Agreements which are not so amended and restated shall automatically, without
further action, be terminated.
8. Resignation of Existing Agent. After the Existing Agent completes its
other obligations under this Agreement, including without limitation its
obligations pursuant to Section 5 hereof, then the Existing Agent shall be
deemed to have resigned its capacity as "Agent" pursuant to the Existing
Operative Agreements, and all parties to this Agreement hereby agree that such
resignation shall be immediately effective notwithstanding any further or
additional requirement in the Existing Operative Agreements to the contrary,
including without limitation, the notice requirement in Section 7.9 of the
Credit Agreement (as defined in Appendix A to the Existing Participation
Agreement).
9. Conditions Precedent and Subsequent. Notwithstanding anything
contained herein to the contrary, this Agreement shall not be effective until
(a) each of the parties shall have received the executed counterpart signature
page from each party set forth below and (b) the Participation Agreement and the
other Operative Agreements specified by the Agent for execution on or prior to
the Closing Date are effective and (c) all proceedings taken in connection with
the transactions contemplated by this Agreement (including receipt of all
amounts required to be paid to the Existing Agent in connection herewith) and
all documentation and other legal matters incident thereto shall be satisfactory
to the Agent and its legal counsel, Moore & Van Allen PLLC.
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10. Continued Effectiveness of Operative Agreements. Except as modified
hereby, all of the terms and conditions of the Operative Agreements are hereby
ratified and affirmed and shall remain in full force and effect.
11. Direction to Owner Trustee. The Owner Trustee is hereby directed to
enter into this Agreement and such other documents necessary to effectuate the
intent of this Agreement.
12. Miscellaneous.
(a) Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(b) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to
be an original and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
Delivery of an executed counterpart by telecopy shall be as effective as
delivery of a manually executed counterpart hereto and shall constitute a
representation that an original executed counterpart will be provided.
(c) Headings. The headings of the various articles and sections of
this Agreement are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof. Unless
otherwise stated, references to Sections made in this Agreement shall be
interpreted as references to the applicable Section herein.
(d) Fees and Expenses. The Lessee agrees to pay or reimburse all
reasonable costs and expenses of the Existing Agent, the Lessor and the
Owner Trustee in connection with the preparation, execution and delivery of
this Agreement and any documents or instruments related hereto, including,
without limitation, the reasonable fees and expenses of Moore & Van Allen
PLLC.
(e) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAWS), EXCEPT TO
THE EXTENT THE LAWS OF A STATE WHERE A PARTICULAR PROPERTY IS LOCATED ARE
REQUIRED TO APPLY.
(f) JURISDICTION, VENUE AND ARBITRATION. THE PROVISIONS OF THE
PARTICIPATION AGREEMENT RELATING TO ACTIONS AND PROCEEDINGS ARE HEREBY
INCORPORATED BY REFERENCE HEREIN, MUTATIS MUTANDIS.
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(g) Further Assurances. The provisions of the Participation Agreement
relating to further assurances are hereby incorporated by reference herein,
mutatis mutandis.
(h) Agreement. This Agreement shall not be terminated, amended,
supplemented, waived, modified or discharged except by an instrument in
writing executed by the party against which enforcement is sought.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
date first above written.
EXISTING OPERATIVE AGREEMENT PARTIES:
WITNESSES: CONVERGYS CORPORATION, as the Existing
Construction Agent and as the Existing
Lessee
By: /s/ Frederick W. Kindel By: /s/ William R. Coleman
------------------------------- -----------------------------------
Name (Printed): Frederick W. Kindel Name: William R. Coleman
------------------- ---------------------------------
Title: V.P. & Treas.
--------------------------------
By: /s/ Mary Shaw Nurre
-------------------------------
Name (Printed): Mary Shaw Nurre
-------------------
(signature pages continue)
WITNESSES: CONVERGYS CUSTOMER MANAGEMENT GROUP
INC., as an Existing Guarantor
By: /s/ Frederick W. Kindel By: /s/ William R. Coleman
------------------------------- -----------------------------------
Name (Printed): Frederick W. Kindel Name: William R. Coleman
------------------- ---------------------------------
Title: V.P. & Treas.
--------------------------------
By: /s/ Mary Shaw Nurre
-------------------------------
Name (Printed): Mary Shaw Nurre
-------------------
(signature pages continue)
WITNESSES: CONVERGYS INFORMATION MANAGEMENT GROUP
INC., as an Existing Guarantor
By: /s/ Frederick W. Kindel By: /s/ William R. Coleman
-------------------------------- -----------------------------------
Name (Printed): Frederick W. Kindel Name: William R. Coleman
-------------------- ---------------------------------
Title: V.P. & Treas.
--------------------------------
By: /s/ Mary Shaw Nurre
--------------------------------
Name (Printed): Mary Shaw Nurre
--------------------
(signature pages continue)
WITNESSES: WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION (as successor to First
By: /s/ Krystal Bagshaw Security Bank, National Association),
------------------------------ not individually, except as expressly
Name (Printed): Krystal Bagshaw stated herein, but solely as the Owner
------------------ Trustee under the CRT Realty Trust
1998-1
By: /s/ Janeen R. Higgs By: /s/ Val T. Orton
------------------------------ -----------------------------------
Name (Printed): Janeen R. Higgs Name: Val T. Orton
------------------ ---------------------------------
Title: Vice President
--------------------------------
(signature pages continue)
WITNESSES: BANK OF AMERICA, N.A. (as successor to
NationsBank, N.A.), as an Existing
Lender, as an Existing Holder and as
the Existing Agent
By: /s/ Edward Wilson By: /s/ John E. Williams
---------------------------- -----------------------------------
Name (Printed): Edward Wilson Name: John E. Williams
---------------- ---------------------------------
Title: Managing Director
--------------------------------
By: /s/ Sarah Mitchell
----------------------------
Name (Printed): Sarah Mitchell
----------------
(signature pages continue)
WITNESSES: BANK ONE NA, as an Existing Lender and
as an Existing Holder
By: By: /s/ Jennifer L. Jones
---------------------------- -----------------------------------
Name (Printed): Name: Jennifer L. Jones
---------------- ---------------------------------
Title: Director
--------------------------------
By:
----------------------------
Name (Printed):
----------------
(signature pages continue)
WITNESSES: SUNTRUST BANK, as an Existing Lender
and as an Existing Holder
By: /s/ Margaret Dempster By: /s/ Brian M. Davis
---------------------------- -----------------------------------
Name (Printed): Margaret Dempster Name: Brian M. Davis
---------------- ---------------------------------
Title: Director
--------------------------------
By: /s/ Andrew S. Lee
----------------------------
Name (Printed): Andrew S. Lee
----------------
(signature pages continue)
OPERATIVE AGREEMENT PARTIES:
WITNESSES: CONVERGYS CORPORATION, as the Lessee
By: /s/ Frederick W. Kindel By: /s/ William R. Coleman
-------------------------------- -----------------------------------
Name (Printed): Frederick W. Kindel Name: William R. Coleman
-------------------- ---------------------------------
Title: V.P. & Treas
--------------------------------
By: /s/ Mary Shaw Nurre
----------------------------
Name (Printed): Mary Shaw Nurre
----------------
(signature pages continue)
WITNESSES: CONVERGYS CUSTOMER MANAGEMENT GROUP
INC., as a Guarantor
By: /s/ Frederick W. Kindel By: /s/ William R. Coleman
---------------------------- -----------------------------------
Name (Printed): Frederick W. Kindel Name: William R. Coleman
--------------------- ---------------------------------
Title: V.P. & Treas
--------------------------------
By: /s/ Mary Shaw Nurre
----------------------------
Name (Printed): Mary Shaw Nurre
----------------
(signature pages continue)
WITNESSES: CONVERGYS INFORMATION MANAGEMENT GROUP
INC., as a Guarantor
By: /s/ Frederick W. Kindel By: /s/ William R. Coleman
---------------------------- -----------------------------------
Name (Printed): Frederick W. Kindel Name: William R. Coleman
-------------------- ---------------------------------
Title: V.P. & Treas
--------------------------------
By: /s/ Mary Shaw Nurre
----------------------------
Name (Printed): Mary Shaw Nurre
----------------
(signature pages continue)
WITNESSES: WACHOVIA DEVELOPMENT CORPORATION, as
the Borrower and as the Lessor
By: /s/ David Yorker By: /s/ Evander S. Jones, Jr.
---------------------------- -----------------------------------
Name (Printed): David Yorker Name: Evander S. Jones, Jr.
---------------- ---------------------------------
Title: Vice President
--------------------------------
By: /s/ Roger Shreero
----------------------------
Name (Printed): Roger Shreero
----------------
(signature pages continue)
WITNESSES: WACHOVIA BANK, NATIONAL ASSOCIATION,
as the Agent
By: /s/ Gabrielle Braverman By: /s/ Weston R. Garrett
---------------------------- -----------------------------------
Name (Printed): Gabrielle Braverman Name: Weston R. Garrett
-------------------- ---------------------------------
Title: Vice President
--------------------------------
By: /s/ John Altymeyer
----------------------------
Name (Printed): John Altymeyer
----------------
(signature pages continue)
WITNESSES: WACHOVIA BANK, NATIONAL ASSOCIATION,
as the Mortgage Lender
By: /s/ Gabrielle Braverman By: /s/ Lynwood Brewer
---------------------------- -----------------------------------
Name (Printed): Gabrielle Braverman Name: Lynwood Brewer
-------------------- ---------------------------------
Title: Vice President
--------------------------------
By: /s/ Doug Hart
----------------------------
Name (Printed): Doug Hart
----------------
(signature pages continue)
WITNESSES: METROPOLITAN LIFE INSURANCE COMPANY,
as a Credit Note Purchaser
By: By: /s/ Judith A. Gulotta
---------------------------- -----------------------------------
Name (Printed): Name: Judith A. Gulotta
---------------- ---------------------------------
Title:
--------------------------------
By:
----------------------------
Name (Printed):
----------------
(signature pages continue)
WITNESSES: GENERAL ELECTRIC ASSURANCE COMPANY,
as a Credit Note Purchaser
By: /s/ Scott Sell By: GE Asset Management Incorporated,
---------------------------- its investment manager
Name (Printed): Scott Sell
----------------
By: /s/ Vanessa Ritter By: /s/ Stephen De Motto
---------------------------- -----------------------------------
Name (Printed): Vanessa Ritter Name: Stephen De Motto
---------------- ---------------------------------
Title: Vice President-Private Investments
-----------------------------------
(signature pages continue)
WITNESSES: EMPLOYERS REINSURANCE CORPORATION, as
a Credit Note Purchaser
By: /s/ Scott Sell By: GE Asset Management Incorporated,
---------------------------- its investment manager
Name (Printed): Scott Sell
----------------
By: /s/ Vanessa Ritter By: /s/ Stephen De Motto
---------------------------- -----------------------------------
Name (Printed): Vanessa Ritter Name: Stephen De Motto
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Title: Vice President-Private Investments
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(signature pages end)
Exhibit 10.4 to 2003 10-Q1
Schedule 1
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Loan Principal Interest / Fees / Breakage
Party / Holder Amount Holder Yield / Other Total
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Bank of America, N.A
(as successor to NationsBank,
N.A.,), as an Existing Tranche
A Lender $ 29,511,768.78 $ 65,934.20 $ 23,211.61 $ 29,600,914.59
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Bank of America, N.A
(as successor to NationsBank,
N.A.,), as an Existing Tranche
B Lender $ 4,146,465.79 $ 9,263.91 $ 3,732.97 $ 4,159,462.67
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Bank of America, N.A
(as successor to NationsBank,
N.A.,), as an Existing Holder $ 1,040,976.35 $ 3,236.56 $ 3,172.04 $ 1,047,384.95
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Bank One NA, as an Existing
Tranche A Lender $ 16,765,081.32 $ 37,455.98 $ 9,562.80 $ 16,812,100.10
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Bank One NA, as an Existing
Tranche B Lender $ 2,355,527.27 $ 5,262.64 $ 1,347.21 $ 2,362,137.12
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Bank One NA, as an Existing
Holder $ 591,359.02 $ 1,838.64 $ 1,577.08 $ 594,774.74
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SunTrust Bank, as an Existing
Tranche A Lender $ 8,384,959.94 $ 18,733.41 $ 3,990.49 $ 8,407,683.84
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SunTrust Bank, as an Existing
Tranche B Lender $ 1,178,105.21 $ 2,632.07 $ 1,683.90 $ 1,182,421.18
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SunTrust Bank, as an Existing
Holder $ 295,764.90 $ 919.58 $ 1,968.27 $ 298,652.75
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Wells Fargo Bank Northwest,
National Association, as Owner
Trustee $ 450.00 $ 450.00
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