EXHIBIT 10.23
FIRST AMENDMENT
TO CERTAIN OPERATIVE AGREEMENTS AND WAIVER
THIS FIRST AMENDMENT TO CERTAIN OPERATIVE AGREEMENTS AND WAIVER, dated
as of October 31, 2003 (this "First 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 First
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.
W I T N E S S E T H
WHEREAS, the parties to this Amendment are parties to that certain
Participation Agreement dated as of May 9, 2003 (as amended, modified,
supplemented or restated from time to time, the "Participation Agreement");
WHEREAS, West Corp. has notified the Financing Parties that it intends
to acquire Xxxxxxx Communications, Inc., a Texas corporation doing business as
XxxxxxxxxxXxxx.xxx ("XxxxxxxxxxXxxx.xxx"), pursuant to a Stock Purchase
Agreement, dated as of October 21, 2003, among West Corp., as the buyer,
XxxxxxxxxxXxxx.xxx, the stockholders of XxxxxxxxxxXxxx.xxx, as the sellers, and
the other parties thereto (the "XxxxxxxxxxXxxx.xxx Acquisition");
WHEREAS, West Corp. has requested that the parties to this Amendment
agree to amend the definition of "Permitted Acquisition" in Appendix A of the
Participation Agreement;
WHEREAS, West Corp. has requested that the parties to this Amendment
waive certain requirements set forth in the definition of "Permitted
Acquisition" in Appendix A of the Participation Agreement on a one-time basis in
order to permit the consummation of the XxxxxxxxxxXxxx.xxx Acquisition;
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WHEREAS, the parties to this Amendment have also agreed to add a form
of joinder agreement as an exhibit to the Participation Agreement which was
inadvertently omitted from the final version of the Participation Agreement
printed at the time of closing; and
WHEREAS, the parties to this Amendment have agreed to the amendments
and waivers referenced above, 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 23
AMENDMENTS
23.1 Definition of Permitted Acquisition. The definition of
"Permitted Acquisition," as set forth in Appendix A of the Participation
Agreement, is hereby amended by deleting the figure "$20,000,000," appearing in
clause (f) of such definition, and inserting the figure "$50,000,000" in
substitution therefor. The definition of "Permitted Acquisition," as amended
hereby, shall read in its entirety as set forth below:
"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
their GCA Subsidiaries or whereby a 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
GCA Credit Parties shall demonstrate to the reasonable satisfaction of
the Agent that the GCA 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 agent under the Guarantor
Credit Agreement, on behalf of the GCA Lenders, shall have received (or
shall receive in connection with the closing of such acquisition) a
first priority perfected security interest in all of the Capital Stock
acquired with respect to the Target and the Target, if a Person, shall
have executed a Joinder Agreement in accordance with the terms of the
applicable section of the Guarantor Credit Agreement; (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; (e) after
giving effect to such acquisition, the sum of (1) the unused
availability under the Aggregate Revolving Committed Amount plus (2)
the Cash and Cash Equivalents held by the GCA Credit Parties is greater
than or equal to $25,000,000; and (f) with respect to any acquisition
where the total consideration shall be greater than $50,000,000, the
Parent shall have delivered to the Agent and each of the Primary
Financing Parties not less than twenty
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(20) Business Days prior to the consummation of such acquisition (i) 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, (ii) audited
financial statements of the Target for its two (2) most recent fiscal
years prepared by independent certified public accountants acceptable
to the Agent and unaudited fiscal year-to-date statements for the most
recent interim periods, (iii) consolidated projected income statements
of the Parent and its consolidated subsidiaries (giving effect to such
Permitted Acquisition and the consolidation with the Parent of each
relevant Target) for the three (3) year period following the
consummation of such Permitted Acquisition, in reasonable detail,
together with any appropriate statement of assumptions, and (iv) a
certificate, in form and substance reasonably satisfactory to the
Agent, executed by a Responsible Officer of the Parent (A) certifying
that such Permitted Acquisition complies with the requirements of this
Participation Agreement and (B) 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 Participation Agreement.
23.2 Definition of GCA Subsidiary. The definition of "GCA
Subsidiary" set forth in Appendix A of the Participation Agreement is hereby
amended and restated in its entirety to read as follows:
"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, excluding West
Interactive Canada, Inc., West International Corporation, West
Telemarketing Insurance Agency, Inc., West Marketing Services
Corporation, Telecommunications Resources, Inc. and two direct or
indirect subsidiaries of Attention, LLC formed or organized for the
purpose of purchasing third party debt obligations.
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23.3 Addition of Form of Credit Party Joinder Agreement as Exhibit
to Participation Agreement. The form of joinder agreement attached hereto as
Schedule A shall be added to the Participation Agreement as Exhibit G thereto.
SECTION 24
WAIVER
24.1 Waiver. The Borrower, the Agent, the Majority Secured Parties
and the Lessee hereby waive, on a one-time basis for the XxxxxxxxxxXxxx.xxx
Acquisition, the failure of the Credit Parties to comply with Section 8B.5 of
the Participation Agreement, and more specifically, the requirements set forth
in the definition of "Permitted Acquisition," which require the Credit Parties
to provide the Agent and each of the Primary Financing Parties with (a) not less
than twenty Business Days' notice prior to the consummation of any acquisition
with total consideration in excess of $20,000,000 and (b) audited financial
statements of XxxxxxxxxxXxxx.xxx for its two most recent fiscal years. The
Borrower, the Agent, the Majority Secured Parties and the Lessee consent to West
Corp. consummating the XxxxxxxxxxXxxx.xxx Acquisition, on terms and conditions
substantially the same as those set forth on the summary of material terms
attached hereto as Schedule B. Except for the specific, one-time waiver set
forth above, nothing set forth herein or contemplated hereby is intended to
constitute a waiver of (i) any rights or remedies available to any of the
Financing Parties under any Operative Agreement or under applicable Law (all of
which rights and remedies are hereby expressly reserved by the Financing
Parties) or (ii) the Credit Parties' obligation to comply fully with any duty,
term, condition, obligation or covenant contained in any Operative Agreement.
SECTION 25
CLOSING CONDITIONS
25.1 Closing Conditions.
This First Amendment shall be effective as of the date hereof upon
satisfaction of the following conditions precedent, in form and substance
reasonably acceptable to the Agent:
(a) First Amendment. The Agent shall have received a copy
of this First Amendment duly executed by the Borrower, the Agent, the
Majority Secured Parties and the Credit Parties.
(b) Officer's Certificate. The Agent shall have received
from the Credit Parties an officer's certificate executed by a
Responsible Officer of West Corp. (i) certifying that the
XxxxxxxxxxXxxx.xxx Acquisition complies with the requirements of the
Operative Agreements (subject to the waiver set forth herein) and (ii)
demonstrating that, after giving effect to the XxxxxxxxxxXxxx.xxx
Acquisition, (A) the Credit Parties will be
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in compliance on a pro forma basis with the financial covenants set
forth in Section 8A.9 of the Participation Agreement and (B) the sum of
(1) the unused availability under the Aggregate Revolving Committed
Amount (as such term is defined in Guarantor Credit Agreement) plus (2)
the Cash and Cash Equivalents held by the Credit Parties shall be
greater than or equal to $25,000,000.
(c) Financial Statements. The Primary Financing Parties
shall have received consolidated projected income statements of West
Corp. and its Consolidated Subsidiaries (giving effect to the
XxxxxxxxxxXxxx.xxx Acquisition and the consolidation with West Corp. of
XxxxxxxxxxXxxx.xxx) for the three (3) year period following the
consummation of the acquisition, in reasonable detail, together with
any appropriate statement of assumptions.
25.2 Post-Closing Requirements.
(a) Joinder Agreement. As soon as possible, and in any
event no later than three (3) Business Days after the closing date of
the XxxxxxxxxxXxxx.xxx Acquisition (or such later date as agreed to by
the Agent in its sole discretion), the Agent shall have received a
Joinder Agreement duly executed by XxxxxxxxxxXxxx.xxx and West Corp.,
in accordance with the terms of Section 8A.10 of the Participation
Agreement.
(b) Authority Documents. As soon as possible, and in any
event no later than three (3) Business Days after the closing date of
the XxxxxxxxxxXxxx.xxx Acquisition (or such later date as agreed to by
the Agent in its sole discretion), the Agent shall have received a
certificate signed by the secretary of XxxxxxxxxxXxxx.xxx attaching the
following authority documents of XxxxxxxxxxXxxx.xxx and certifying that
the same are true and complete as of the closing date of the
XxxxxxxxxxXxxx.xxx Acquisition: (i) a copy of its articles of
incorporation, (ii) a copy of the resolutions of its board of
directors, approving and adopting the Joinder Agreement and the other
Operative Agreements, (iii) a copy of its bylaws and (iv) an incumbency
certificate. Additionally, in conjunction with the delivery of such
certificate, the Agent shall have received copies of a certificate of
good standing, existence or its equivalent certified as of a recent
date by the appropriate Governmental Authority of its state of
incorporation.
(c) Legal Opinion. As soon as possible, and in any event
no later than thirty (30) Business Days after the closing date of the
XxxxxxxxxxXxxx.xxx Acquisition (or such later date as agreed to by the
Agent in its sole discretion), the Agent shall have received a legal
opinion from counsel to the Credit Parties relating to
XxxxxxxxxxXxxx.xxx, in the same form and substance as the opinions
given with respect to the original Guarantors and in form and substance
reasonably satisfactory to the Agent.
(d) Effect of Non-Compliance. Notwithstanding any
provision in any Operative Agreement to the contrary, the failure of
any requirement set forth in this
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Section 3.2 to be satisfied within the time period allotted therefor
shall constitute an immediate Lease Event of Default.
SECTION 26
MISCELLANEOUS
26.1 Amended Terms. The term "Participation Agreement" as used in
each of the Operative Agreements shall hereafter mean the Participation
Agreement as amended by this First Amendment. Except as specifically amended or
modified hereby or otherwise agreed, the Participation Agreement is hereby
ratified and confirmed and shall remain in full force and effect according to
its terms.
26.2 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 First Amendment.
(b) This First 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 First 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 and provided that references to
Subsidiary Information in Schedule 2 to the Participation Agreement
shall be deemed to refer to Schedule C attached to this First
Amendment, true and correct in all material respects as of the date
hereof (except for those which expressly relate to an earlier date).
26.3 Reaffirmation of Credit Party Obligations. Each Credit Party
hereby ratifies the Operative Agreements (as amended by this First Amendment)
and acknowledges and reaffirms (a) that it is bound by all terms of the
Operative Agreements (as amended by this First 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.
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26.4 Operative Agreements. This First Amendment shall constitute an
Operative Agreement under the terms of the Participation
Agreement.
26.5 Expenses. West Corp. agrees to pay, or cause to be paid, all
reasonable costs and expenses of the Agent in connection with the preparation,
execution and delivery of this First Amendment, including, without limitation,
the reasonable fees and expenses of Xxxxx & Xxx Xxxxx, PLLC, and all previously
incurred fees and expenses which remain outstanding on the date hereof.
26.6 Entirety. This First 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.
26.7 Counterparts/Telecopy. This First 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 the First Amendment by telecopy shall be
effective as an original and shall constitute a representation that an original
shall be delivered.
26.8 Governing Law. This First Amendment and the rights and
obligations of the parties under this First Amendment shall be governed by, and
construed and interpreted in accordance with, the law of the State of North
Carolina.
26.9 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.
26.10 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 First Amendment.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this First Amendment to be duly executed under seal and delivered as of the
date and year first above written.
WEST FACILITIES CORPORATION, as the Lessee
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
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WEST CORPORATION, as the Parent and as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
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WEST TELEMARKETING CORPORATION,
as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
WEST TELEMARKETING CORPORATION II,
as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
WEST TELEMARKETING CORPORATION
OUTBOUND, as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
DAKOTAH DIRECT II, L.L.C., as a Guarantor
By: West Telemarketing Corporation Outbound,
as Member
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
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WEST INTERACTIVE CORPORATION,
as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Office
WEST DIRECT, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
ATTENTION, LLC, as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Manager
TEL XXXX SALES, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
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NORTHERN CONTACT, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
INTERCALL HOLDING CORPORATION,
as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
INTERCALL, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
ITC SERVICE COMPANY, as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
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ITC TELECOM VENTURES, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
ITC WIRELESS, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
INVIEW, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
INTERCALL WEB CONFERENCING, INC.,
as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
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WACHOVIA DEVELOPMENT CORPORATION,
as the Borrower and as the Lessor
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
(signature pages continue)
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WACHOVIA BANK, NATIONAL ASSOCIATION, as the Agent
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
(signature pages continue)
15
WACHOVIA CAPITAL INVESTMENTS, INC.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
(signature pages end)
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SCHEDULE A
TO FIRST AMENDMENT
TO CERTAIN OPERATIVE AGREEMENTS AND WAIVER
EXHIBIT G
[FORM OF]
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement"), dated as of _____________,
____, is by and between _____________________, a ______________________ (the
"Subsidiary Guarantor"), and WACHOVIA BANK, NATIONAL ASSOCIATION, in its
capacity as Agent under that certain 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
(the "Lessee"), West Corporation, a Delaware corporation ("West Corp."),
Wachovia Development Corporation, a North Carolina corporation (the "Borrower"
or the "Lessor"); the various banks and other lending institutions which are
parties thereto from time to time as lenders (subject to the definition of
Lenders in Appendix A thereto, 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 herein but not otherwise defined shall have the
meanings provided in Appendix A to the Participation Agreement.
The Subsidiary Guarantor is an additional 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".
Accordingly, the Subsidiary Guarantor hereby agrees as follows with the
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 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
Schedule A - 1
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 Agent, it will
execute and deliver such further documents and do such further acts and things
as the Agent may reasonably request in order to effect the purposes of this
Agreement.
6. 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.
7. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of North Carolina.
Schedule A - 2
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed by its authorized officer, and the Agent, for the
benefit of the Financing Parties, has caused the same to be accepted by its
authorized officer, as of the day and year first above written.
[SUBSIDIARY GUARANTOR]
By:_________________________________________
Name:_______________________________________
Title:______________________________________
WEST CORPORATION,
a Delaware corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
WEST FACILITIES CORPORATION,
a Delaware corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Acknowledged and accepted:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent
By:_________________________________
Name:_______________________________
Title:______________________________
Schedule A - 3
Schedule A
to
Joinder Agreement
Schedules to Credit Agreement/Security Documents
[TO BE ATTACHED]
Schedule A - 4
SCHEDULE B
TO FIRST AMENDMENT
TO CERTAIN OPERATIVE AGREEMENTS AND WAIVER
SUMMARY OF MATERIAL TERMS OF ACQUISITION
[SEE THE FOLLOWING ATTACHED PAGES]
Schedule B - 1
XxxxxxxxxxXxxx.xxx
October 10, 2003
Section V.
Transaction Terms.
- $40 million gross purchase price with $2.5 million working capital
requirement ($2.0 million in cash is expected at closing) represents
the following multiples on a TTM basis:
Multiple of:
XxxxxxxxxxXxxx.xxx InterCall*
------------------ ----------
- Revenue 2.1 1.93
- EBITDA 4.5 5.7
- EBIT 4.8 7.4
- Net Income 7.8 12.1
* Multiples paid for InterCall are shown for comparative purposes.
- Transaction will be a stock purchase
- Expected signing on October 21st with an expected close date of
November 1st.
- Transaction will be financed through existing cash and/or a draw on
existing line of credit with Wachovia.
- At September 30th, $198 million was outstanding under the
credit agreements through Wachovia
- After this acquisition it is expected that borrowings through
Wachovia will total approximately $250 million
Schedule B - 2
XxxxxxxxxxXxxx.xxx
October 10, 2003
- Escrow and Holdback. The total holdedback on the purchase price is $6
million. These funds will be placed in escrow and will be available to
cover any post closing liability that arises. The amounts will be
released as follows:
- $3 million on April 30, 2005
- $1 million on November 1, 2006
- $2 million on November 1, 2007
- Release of escrows are tied to expiration of statue of
limitations for income taxes and FET
- Estimated amount of total "FET" and income tax exposure is as follows:
- $200K income tax exposure for 2000 that expires in 2004
- $700K income tax exposure for 2001 that expires in 2005
- $1.5 million income tax exposure for 2002 that expires in 2006
- $1.2 million income tax exposure for 2003 that expires in 2007
- $1 million FET exposure that expires in 2007
- Representations and Warranties. The representations and warranties were
developed from West's standard agreement.
- Deductible of $300k related to indemnification for breaches of
representations and warranties
- Employee Appreciation Bonus. Xxxxx Xxxxxxx, the founder and 70%
shareholder, will distribute $1 million in bonuses to employees as part
of the sale. These funds will be held as retention incentives and paid
out to employees over a six month period.
Schedule B - 3
SCHEDULE C
TO FIRST AMENDMENT
TO CERTAIN OPERATIVE AGREEMENTS AND WAIVER
SUBSIDIARY INFORMATION
Jurisdiction of No. of Outstanding Owner of No. of Percentage
Incorporation/ Outstanding Warrants, Outstanding Shares of Shares
Subsidiary Organization Shares Options, Etc. Shares Owned Owned
---------- -------------- ----------- ------------- ---------------- ------- ----------
West Telemarketing
Corporation Delaware 10,000 0 West Corporation 10,000 100%
West West
Telemarketing Telemarketing
Corporation II Delaware 10,000 0 Corporation 10,000 100%
West Telemarketing
Corporation
Outbound Delaware 10,000 0 West Corporation 10,000 100%
West Facilities
Corporation Delaware 10,000 0 West Corporation 10,000 100%
West Interactive
Corporation Delaware 10,000 0 West Corporation 10,000 100%
West Direct, Inc. Delaware 10,000 0 West Corporation 10,000 100%
Tel Xxxx Sales, Inc. Delaware 10,000 0 West Corporation 10,000 100%
Attention, LLC Xxxxxxx Xxxx Corporation 100%
Northern Contact, West Telemarketing
Inc. Delaware 10,000 0 Corporation 10,000 100%
West
Telemarketing
Dakotah Direct II, Corporation
L.L.C. Delaware Outbound 100%
West
Telemarketing
Telecommunications Corporation
Resources, Inc. Missouri 10,000 0 Outbound 10,000 100%
West International
Corporation Delaware 1,000 0 West Corporation 1,000 100%
Xxxx Xxxxxxxxxxxxx Xxxx Xxxxxx, Xxxxxxxx
Xxxxxx, ULC Canada 10,000 0 Contact, Inc. 10,000 100%
C-1
Jurisdiction of No. of Outstanding Owner of No. of Percentage
Incorporation/ Outstanding Warrants, Outstanding Shares of Shares
Subsidiary Organization Shares Options, Etc. Shares Owned Owned
---------- --------------- ----------- ------------- ---------------- ------ ----------
West Interactive West Interactive
Canada, Inc. Delaware 10,000 0 Corporation 10,000 100%
Attention Funding,
L.L.C. Delaware Attention, LLC 100%
InterCall Holding
Corporation (f/k/a
ITC Holding
Company, Inc.) Delaware 10,000 0 West Corporation 10,000 100%
InterCall, Inc. Delaware 100 0 InterCall 100 100%
Holding
Corporation
ITC Service Company Georgia 500 0 InterCall, Inc. 500 100%
ITC Telecom
Ventures, Inc. Delaware 1000 0 InterCall, Inc. 1000 100%
ITC Wireless, Inc. Delaware 1000 0 ITC Service Company 1000 100%
InView, Inc. Delaware 100 0 InterCall, Inc. 100 100%
InterCall Web
Conferencing, Inc. Delaware 100 0 InterCall, Inc. 100 100%
InterCall, Inc. New Brunswick 100 0 InterCall, Inc. 100 100%
InterCall Australia
Pty. Ltd. Australia 100 0 InterCall, Inc. 100 100%
InterCall Singapore
Pte. Ltd. Singapore 2 0 InterCall, Inc. 2 100%
InterCall Hong Kong
Pty. Ltd. Hong Kong 10,000 0 InterCall, Inc. 10,000 100%
InterCall Asia
Pacific Holdings
Pty. Ltd. Australia 100 0 InterCall, Inc. 100 100%
InterCall New
Zealand Limited New Zealand 100 0 InterCall, Inc. 100 100%
InterCall
Conferencing
Services Limited United Kingdom 10 0 InterCall, Inc. 10 100%
C-2
Jurisdiction of No. of Outstanding Owner of No. of Percentage
Incorporation/ Outstanding Warrants, Outstanding Shares of Shares
Subsidiary Organization Shares Options, Etc. Shares Owned Owned
---------- --------------- ----------- ------------- -------------- ------ ----------
Legal Connect United Kingdom 2 0 InterCall 2 100%
Limited Conferencing
Services Limited
Jamaican Agent Jamaica 1,000 0 West Corporation 999 99.9%
Services Limited Northern
Contact, Inc. 1 0.1%
West Contact Philippines 10,000 0 West 9.993 99.93%
Services, Inc. Corporation
Xxxx MA. G. 1 .01%
Xxxxxxxx
Xxxxxx M. De 1 .01%
Xxxx
Xxxx Xxxxx 1 .01%
X. Xxxx
Xxxxxx X. 1 .01%
Xxxxxx
Xxxxxx A. 1 .01%
Xxxxxxxx
Xxxxxxx I. 1 .01%
Xxxxxxx-Xxxxxxx
Xxxx X. Xxxxx 1 .01%
C-3
