EXHIBIT 10.24
SECOND AMENDMENT
TO CERTAIN OPERATIVE AGREEMENTS
THIS SECOND AMENDMENT TO CERTAIN OPERATIVE AGREEMENTS, dated as of
January 22, 2004 (this "Second 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 Second 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 by the First
Amendment to Certain Operative Agreements and Waiver (as amended, modified,
supplemented or restated from time to time, the "Participation Agreement");
WHEREAS, the parties to this Second 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 27
AMENDMENTS
27.1 New Definition. Appendix A to the Participation Agreement is
hereby amended by the addition of the following definition thereto in the
appropriate alphabetical order:
"Second Amendment Effective Date" shall mean January 22, 2004.
1
27.2 Consolidated EBITDA. The definition of "Consolidated EBITDA"
set forth in Appendix A to the Participation Agreement is hereby amended and
restated in its entirety to read as follows:
"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 and (iv) non-cash
charges relating to equity and other performance-related compensation,
including stock options; provided that Consolidated EBITDA shall
include add-backs relating to the Acquisition made prior to the Second
Amendment Effective Date, as calculated by the Agent. Notwithstanding
the above, Consolidated EBITDA shall be (A) $70,952,000 for the fiscal
quarter ending Xxxxx 00, 0000, (X) $65,803,000 for the fiscal quarter
ending June 30, 2003 and (C) $67,108,000 for the fiscal quarter ending
September 30, 2003.
27.3 Permitted Acquisition. The definition of "Permitted
Acquisition" set forth in Appendix A to the Participation Agreement is hereby
amended and restated in its entirety to read as follows:
"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 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 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
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; (e) after giving effect to such acquisition, the sum of (i) the
unused availability under the Aggregate Revolving Committed Amount plus
(ii) the cash and Cash Equivalents held by the GCA Credit Parties plus
(iii) the unused borrowing availability under any securitization
facility of the GCA Credit Parties is greater than or equal to
$10,000,000; and (f) with respect to any acquisition where the total
consideration shall be (i) greater than $50,000,000 and less than or
equal to $100,000,000, the Parent
2
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 $100,000,000, the Parent shall have delivered to the Agent and
each of the Primary Financing Parties not less than ten (10) 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.
27.4 Permitted Investments. The definition of "Permitted
Investments" set forth in Appendix A to the Participation Agreement is hereby
amended and restated in its entirety to read as follows:
"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, 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;
(iv) investments in and loans to domestic 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 $50,000,000 at any time outstanding;
3
(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 $25,000,000 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; and
(x) Permitted Acquisitions.
As used herein, "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.
27.5 GCA Permitted Liens. The definition of "GCA Permitted Liens"
set forth in Appendix A of the Participation Agreement is hereby amended by the
addition of the following clause (xiii) and the redesignation of the existing
clause (xiii) as clause "(xiv)":
(xiii) Liens arising in connection with accounts receivable
securitizations; and
27.6 [Reserved].
27.7 [Reserved].
27.8 Indebtedness. Section 8B.1 of the Participation Agreement is
hereby amended and restated in its entirety to read as follows:
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:
4
(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 subsidiaries of the
Parent that are not guarantors under the Guarantor Credit
Agreement to Credit Parties, which Indebtedness is solely for
the purpose of 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 $50,000,000 at any time outstanding, and (iv) owing
from 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 $25,000,000 at any time outstanding;
(e) Secured intercompany Indebtedness among the
Parent and the GCA Subsidiaries in a principal amount not to
exceed $25,000,000 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;
5
(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
$25,000,000 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;
(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
$300,000,000 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 $100,000,000 in
the aggregate at any time outstanding.
27.9 Accounts Receivable Asset Sales. Section 8B.4(a) to the
Participation Agreement is hereby amended by the addition of the word "and" at
the end of subsection (a)(v) and the addition of the following new subsection
(a)(vi):
(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;
6
27.10 Advances, Investments and Loans. Section 8B.5 of the
Participation Agreement is hereby amended by the insertion of the phrase "or to
the extent permitted by Section 8B.1" at the end of such Section.
27.11 Amendments to Schedules for Participation Agreement. Schedules
1 through 6 to the Participation Agreement are hereby amended and restated in
their entirety and replaced by Schedule A attached hereto.
27.12 Agreement of Wachovia regarding Coordination of Voting under
Lease and Guarantor Credit Agreement. The Participation Agreement is amended to
add a new Section 12.15 as follows:
12.15 LESSOR/LENDER VOTING MATTERS.
Wachovia Development Corporation (and any Affiliate thereof
which is a direct or indirect assignee of Wachovia Development
Corporation), as the Lessor, and Wachovia Capital Investments, Inc.
(and any Affiliate thereof which is a direct or indirect assignee of
Wachovia Capital Investments, Inc.), as a Lender, hereby agree to vote
on matters concerning covenant amendments, modifications and waivers in
a manner consistent with the vote of Wachovia Bank, National
Association regarding such same matter under the Guarantor Credit
Agreement.
SECTION 28
CLOSING CONDITIONS
28.1 Closing Conditions.
This Second 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 Second 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 Second 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.
(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
7
and the Primary Financing Parties, which opinions shall provide, among
other things, that the execution and delivery of this Second Amendment
by the Credit Parties and the consummation of the transactions
contemplated hereby will not violate the corporate instruments and
material agreements of the Credit Parties, and shall otherwise be in
form and substance acceptable to the Agent and the Primary Financing
Parties.
(e) Material Adverse Event. Since the Closing Date, 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 Second
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 the Second 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 Second 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. Receipt by the Agent of all reasonable fees and
expenses of the Agent in connection with the preparation, execution and
delivery of this Second Amendment, including, without limitation, the
reasonable fees and expenses of Xxxxx & Xxx Xxxxx PLLC.
SECTION 29
MISCELLANEOUS
29.1 Amended Terms. The term "Participation Agreement" as used in
each of the Operative Agreements shall hereafter mean the Participation
Agreement as amended by this
8
Second 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.
29.2 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 Second Amendment.
(b) This Second 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 Second 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).
29.3 Reaffirmation of Credit Party Obligations. Each Credit Party
hereby ratifies the Operative Agreements (as amended by this Second Amendment)
and acknowledges and reaffirms (a) that it is bound by all terms of the
Operative Agreements (as amended by this Second 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.
29.4 Operative Agreements. This Second Amendment shall constitute
an Operative Agreement under the terms of the Participation Agreement.
29.5 Expenses. The Parent agrees to pay all reasonable costs and
expenses of the Agent in connection with the preparation, execution and delivery
of this Second 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.
29.6 Entirety. This Second 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.
9
29.7 Counterparts/Telecopy. This Second 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 Second Amendment by
telecopy shall be effective as an original and shall constitute a representation
that an original shall be delivered.
29.8 Governing Law. This Second Amendment and the rights and
obligations of the parties under this Second Amendment shall be governed by, and
construed and interpreted in accordance with, the law of the State of North
Carolina.
29.9 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.
29.10 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 Second Amendment.
[Signature Pages Follow]
10
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Second 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)
West Facilities Corporation
Lease Facility
Second Amendment
11
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)
West Facilities Corporation
Lease Facility
Second Amendment
12
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)
West Facilities Corporation
Lease Facility
Second Amendment
13
WEST INTERACTIVE CORPORATION,
as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
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
NORTHERN CONTACT, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
West Facilities Corporation
Lease Facility
Second Amendment
14
INTERCALL, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
INTERCALL TELECOM VENTURES, LLC, as a
Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
XXXXXXXXXXXXXX.XXX., INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
West Facilities Corporation
Lease Facility
Second Amendment
15
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)
West Facilities Corporation
Lease Facility
Second Amendment
16
WACHOVIA BANK, NATIONAL ASSOCIATION, as the Agent
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
(signature pages continue)
West Facilities Corporation
Lease Facility
Second Amendment
17
WACHOVIA CAPITAL INVESTMENTS, INC., as a
Lender
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
(signature pages continue)
West Facilities Corporation
Lease Facility
Second Amendment
18
COMMERCEBANK, N.A., as a Lender
By: ________________________________________
Name: ______________________________________
Title:______________________________________
(signature pages end)
West Facilities Corporation
Lease Facility
Second Amendment
19
SCHEDULE A
Schedule 1
GCA Permitted Liens
Debtor Secured Party Jurisdiction Filing Type Filing Date Description of Collateral
------------------ ------------- ------------ ------------- ----------- -------------------------------
West Lombard US Delaware UCC-1 8/1/02; Certain equipment under the
Corporation Equipment (#21910276) amended Equipment Loan Agreement,
Finance 8/28/02 dated July 22, 2002 among
Corporation West Corporation, West
Interactive Corporation,
Dakotah Direct II, L.L.C.,
West Telemarketing Corporation,
West Telemarketing Corporation
Outbound and Lombard US
West Lombard US Delaware UCC-1 8/1/02; Certain equipment under the
Telemarketing Equipment (#21910615) amended Equipment Loan Agreement
Corporation Finance 8/28/02 dated July 22, 2002 among
Corporation West Corporation, West
Interactive Corporation,
Dakotah Direct II, L.L.C.,
West Telemarketing Corporation,
West Telemarketing Corporation
Outbound and Lombard US
Equipment Finance Corporation
West Banc of Delaware UCC-1 11/26/01 Certain equipment specified
Telemarketing America (#11792659) therein
Corporation Leasing &
Outbound Capital, LLC
West Lombard US Delaware UCC-1 8/1/02; Certain equipment under the
Telemarketing Equipment (#21910680) amended Equipment Loan Agreement
Corporation Finance 8/28/02 dated July 22, 2002 among
Outbound Corporation West Corporation,
West Interactive Corporation,
Dakotah Direct II, L.L.C.,
West Telemarketing Corporation,
West Telemarketing Corporation
Outbound and Lombard US
Equipment Finance Corporation
West Dell Financial Delaware UCC-1 4/18/03 Certain equipment specified
Telemarketing Services (#31015273) therein
Corporation
Outbound
West Banc of Delaware UCC-1 1/22/02 Certain equipment specified
Interactive America (#20367825) therein
Corporation Leasing &
Capital
West Banc of Delaware UCC-1 2/22/02 Certain equipment specified
West Facilities Corporation
Lease Facility
Second Amendment
A-1
Debtor Secured Party Jurisdiction Filing Type Filing Date Description of Collateral
------------------ ------------- ------------ ----------- ----------- --------------------------------
America (#20470405) therein
Interactive Leasing &
Corporation Capital
West Banc of Delaware UCC-1 4/4/02 Certain equipment specified
Interactive America (#20842843) therein
Corporation Leasing &
Capital
West Banc of Delaware UCC-1 4/23/02 Certain equipment specified
Interactive America (#20999775) therein
Corporation Leasing &
Capital
West Banc of Delaware UCC-1 7/8/02 Certain equipment specified
Interactive America (#21646987) therein
Corporation Leasing &
Capital
West Lombard US Delaware UCC-1 8/1/02; Certain equipment under the
Interactive Equipment (#21910599) amended Equipment Loan Agreement
Corporation Finance 8/28/02 dated July 22, 2002 among
Corporation West Corporation,
West Interactive Corporation,
Dakotah Direct II, L.L.C.,
West Telemarketing Corporation,
West Telemarketing Corporation
Outbound and Lombard US
Equipment Finance Corporation
West Nortel Delaware UCC-1 2/3/03 Certain equipment specified
Interactive Networks (#30295330) therein. This lien is pursuant to a
Corporation Maintenance Agreement.
****Xxxxxxx XXX Illinois UCC-1 5/27/99 Certain equipment specified
Direct II, LLC International, (#004042454) therein
Inc.
Xxxxxxx Xxxxxxx US Delaware UCC-1 8/28/02 Certain equipment under the
Direct II, LLC Equipment (#22175549) Equipment Loan Agreement
Finance dated July 22, 2002 among
Corporation West Corporation,
West Interactive Corporation,
Dakotah Direct II, L.L.C.,
West Telemarketing Corporation,
West Telemarketing Corporation
Outbound and Lombard US
Equipment Finance Corporation
InterCall New Telecom New N/A No filing Security Telecommunications Equipment
Zealand, Ltd. Zealand, Ltd. interest purchased from Telecom by
granted to InterCall N.Z.
Telecom on
8/9/02
InterCall, Inc. Sun N/A No filing Security Specified office equipment
Microsystems interest
Finance granted on
11/7/02
West Facilities Corporation
Lease Facility
Second Amendment
A-2
Note: 1. See Schedule 3 for GCA Liens on real property.
2. **** denotes those GCA Liens that are in the process of being
terminated and released as no Indebtedness is outstanding under the
original obligation that such GCA Lien secured.
West Facilities Corporation
Lease Facility
Second Amendment
A-3
Schedule 2
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 Delaware 10,000 0 West 10,000 100%
Telemarketing Corporation
Corporation
West Delaware 10,000 0 West 10,000 100%
Telemarketing Telemarketing
Corporation II Corporation
West Delaware 10,000 0 West 10,000 100%
Telemarketing Corporation
Corporation
Outbound
West Facilities Delaware 10,000 0 West 10,000 100%
Corporation Corporation
West Delaware 10,000 0 West 10,000 100%
Interactive Corporation
Corporation
West Direct, Delaware 10,000 0 West 10,000 100%
Inc. Corporation
Tel Xxxx Sales, Delaware 10,000 0 West 10,000 100%
Inc. Corporation
Attention, LLC Xxxxxxx Xxxx 100%
Corporation
Northern Delaware 10,000 0 West 10,000 100%
Contact, Inc. Telemarketing
Corporation
Dakotah Direct Delaware West 100%
II, L.L.C. Telemarketing
Corporation
Outbound
West Delaware 1,000 0 West 1,000 100%
International Corporation
Corporation
West Nova Scotia, 10,000 0 Northern 10,000 100%
Telemarketing Canada Contact, Inc.
Canada, ULC
Attention Delaware Attention, LLC 100%
Funding, L.L.C.
InterCall, Inc. Delaware 10,000 0 West 10,000 100%
Corporation
InterCall Delaware 0 InterCall, Inc. 100%
Telecom
Ventures, LLC
InterCall, Inc. New
Brunswick 100 0 InterCall, Inc. 100 100%
West Facilities Corporation
Lease Facility
Second Amendment
A-4
InterCall Australia 100 0 InterCall, Inc. 100 100%
Australia Pty.
Ltd.
InterCall Singapore 2 0 InterCall, Inc. 2 100%
Singapore Pte.
Ltd.
InterCall Hong Hong Kong 10,000 0 InterCall, Inc. 10,000 100%
Kong Pty. Ltd.
InterCall Asia Australia 100 0 InterCall, Inc. 100 100%
Pacific Holdings
Pty. Ltd.
InterCall New New Zealand 100 0 InterCall, Inc. 100 100%
Zealand Limited
InterCall
Conferencing United 10 0 InterCall, Inc. 10 100%
Services Limited Kingdom
Legal Connect United 2 0 InterCall 2 100%
Limited 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 Philippines 10,000 0 West 9.993 99.93%
Services, Corporation
Inc. 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%
XxxxxxxxxxXxxx.xxx, Delaware 1,000 0 InterCall, Inc. 1,000 100%
Inc.
InterCall Japan, K.K. Japan 130 0 InterCall, Inc. 130 100%
West Facilities Corporation
Lease Facility
Second Amendment
A-5
Schedule 3
Location of Real Property
Owned Real Property:
1. Approximately 0.39 acres owned by InterCall, Inc. located at 000 Xxxxx
Xxxxxx, Xxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000.
2. Approximately 2.54 acres owned by InterCall, Inc. located at 0000 X.X.
Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000.
3. 0000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx, 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 0000 X.X.
Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000.
5. 000 X. 0xx Xxxxxx, Xxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000, owned by
InterCall, Inc.
6. 000 X. 0xx Xxxxxx, Xxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000, owned by
InterCall, Inc.
7. 000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx 00000, owned by
InterCall, Inc.
8. Approximately 14 acres of land adjacent to X.X. Xxxxxxx Dr. (a.k.a.
Xxxxxxx Xxxxxx), Xxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000, owned by
InterCall, Inc.
9. Approximately 1.63 acres located adjacent to and south of property
described herein as 1211 X.X. Xxxxxxx Drive, West Point, Xxxxx Count,
Georgia 31833, owned by InterCall, Inc.
10. 00000 Xxxxxxx Xxxxx Xx., Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx 00000, owned
by West Corporation and subject to that certain Mortgage Agreement, by
and between West Corporation and First National Bank of Omaha.
11. 0000 Xxxxxxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx 00000,
owned by West Corporation (f/k/a West TeleServices Corporation).
12. 0000 X. Xxxxxxxx Xxx. XX Xxxxx 00, Xxxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx
00000, owned by West Telemarketing Corporation Outbound.
13. 0000 Xxxxxxxxx, Xx Xxxx, Xx Xxxx Xxxxxx, Xxxxx 00000, owned by West
Telemarketing Corporation Outbound.
14. Buildings 1000, 2000, 3000 and 5000, 00000 XX 00 Xxxx, Xxx Xxxxxxx,
Xxxxx Xxxxxx, Xxxxx 00000, owned by West Telemarketing Corporation
Outbound.
15. Building 7000, 00000 Xxxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxx
00000, leased by West Facilities Corporation and subject to that
certain synthetic lease transaction (see Schedule 61.(b)).
16. Building 8000, 00000 Xxxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxx
00000, owned by West Telemarketing Corporation Outbound.
West Facilities Corporation
Lease Facility
Second Amendment
A-6
Leased Real Property:
1. Lease to InterCall, Inc., as lessee, for the 5th Floor, Suite 508, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
2. Lease to InterCall, Inc., as lessee, for approximately 2,489 rsf, known
as Suite 495, Glenridge Highlands I, 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxx,
Xxxxxxx 00000.
3. Lease to InterCall, Inc., as lessee, for approximately 2,222 rsf at
Corporate Center, 000 Xxxx Xxxxxxx Xxxxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx
00000.
4. Lease to InterCall, Inc., as lessee, for approximately 3,715 rsf, known
as 0000 Xxxx 00xx Xxxxxx, Xxxxx, Xxxxxxxxx 00000.
5. Lease to InterCall, Inc., as lessee, for approximately 1,440 rsf, known
as Xxxxx 000, Xxxx Xxxxxx Xxxxx, 0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxx 00000.
6. Lease to InterCall, Inc., as lessee, for approximately 3,323 rsf, known
as Xxxxx 0000, Xxxxxxxx Xxxxx, 0000 XXX Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx
00000.
7. Lease to InterCall, Inc., as lessee, for approximately 2,681 rsf, known
as Xxxxx 0000, 0 Xxxxxxxx Xxxxx, 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxx 00000.
8. Lease to InterCall, Inc., as lessee, for approximately 2,867 rsf, known
as Xxxxx 000, 0 Xxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000.
9. Lease to InterCall, Inc., as lessee, for approximately 4,689 rsf, known
as Xxxxx 000, 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
10. Lease to InterCall, Inc., as lessee, for approximately 3,214 rsf, known
as 00 Xxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
11. Lease to InterCall, Inc., as lessee, for office space at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
12. Lease to InterCall, Inc., as lessee, for approximately 3,355 rsf, known
as Suite 840, 000 Xxxx Xxx Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000.
13. Lease to InterCall, Inc., as lessee, for approximately 2,796 rsf at
0000 Xxxx Xxx Xxxxxxxxx, Xxxxxxx, Xxxxx 00000.
14. Lease to InterCall, Inc., as lessee, for 0000 Xxxxxxxxx 0xx Xxx., Xxxxx
000, Xxxxxxxx, Xxxxxx 00000.
15. Lease to InterCall, Inc., as lessee, for approximately 3,110 rsf, known
as Suite 220, 00000 Xxx Xxxxxx Xxx., Xxxxxx, Xxxxxxxxxx 00000.
16. Lease to InterCall, Inc., as lessee, for approximately 2,261 rsf at 000
Xxxxx Xxx, Xxx Xxxxx, Xxxxxxxxxx 00000.
17. Lease to InterCall, Inc., as lessee, for approximately 2,224 rsf, known
as Xxxxx 000 xx xxx Xxxxx Xxxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
West Facilities Corporation
Lease Facility
Second Amendment
A-7
18. Lease to InterCall, Inc., as lessee, for approximately 2,675 rsf, known
as Xxxxx 000, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
19. Lease to InterCall, Inc., as lessee, for approximately 5,039 rsf, known
as 000 Xxxxx Xxxxx, Xxxxxxxxx 00xx Xxxxxxxx, Xxxxxxx, Xxxxxxx 00000.
20. 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, 0000 Xxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx
00000.
21. Lease to InterCall, Inc., as lessee, for the office space located at
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx 0, Xxxxxxxx, Xxxx 00000.
22. Lease to InterCall Australia Pty. Ltd., as lessee, for Xxxxx 0, 000
Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, Xxxxxxxxx.
23. Lease to InterCall Australia Pty. Ltd., as lessee, for Xxxxx 0000, 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx.
24. Lease to InterCall Singapore Pte. Ltd., as lessee, for 00 Xxxxxxx
Xxxxx, #00-00 XX Xxxxx 0, Xxxxxxxxx.
25. Lease to InterCall, Inc., as lessee, for office space at 0000 Xxxx
000xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000.
26. Lease to InterCall, Inc., as lessee, for Xxxxxx 000 xxx 000, Xxxxxxxx
X, Xxxxxxx Xxxxx, Xxxxxxxxx Road, Bracknell, RG42 1PL (UK).
27. Lease to InterCall Conferencing Services Limited, as lessee, for
offices on the second floor at Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx, XX.
28. License Agreement to InterCall, Inc., as lessee, for office space at
Xxxxxxxxx Xxxxx, 0 Xxxxx Xxxxxxx, Xxx Xxxxxxxxx, Xxxxxx, Xxxxxxx.
29. Lease to InterCall, Inc., as lessee, for 0000 Xxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000.
30. Lease to InterCall, Inc., as lessee, for approximately 4,074 rsf, known
as Xxxxx 000, 0000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000.
31. Lease to InterCall, Inc., as lessee, for approximately 1,752 rsf, known
as Space 102, 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
32. Lease to InterCall, Inc., as lessee, for approximately 3,395 rsf, known
as Suite 206, 11340 Xxxx Xxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000.
33. Lease to InterCall, Inc., as lessee, for office space at 00 Xxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000.
34. Office Lease between HQ Global Workplaces and InterCall, Inc., as
lessee, dated September 2, 1999.
35. Lease to InterCall, Inc., as lessee, for office space at Xxxxx 00
Xxxxxxx Xxxxx, 0 Xxxxxxxx Xxxxxx, Xxxxxxxx 0000, Xxx Xxxxxxx.
36. Lease to InterCall, Inc., as lessee, for equipment at 0000 00xx
Xxxxxxxxx, Xxxxxx, Xxxxxxx 00000.
West Facilities Corporation
Lease Facility
Second Amendment
A-8
37. Lease to InterCall Web Conferencing Services Limited, as lessee, for
office space at LaGrande Arche Paroi Nord, 92044, Paris La Defense,
France.
38. Lease to InterCall, Inc., as lessee, for office space at XX Xxxxx
Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
39. Lease to InterCall, Inc., as lessee, for office space at XX Xxxxxxxxx
Xxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
40. Lease to West Telemarketing Corporation, as lessee, for office space at
0000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
41. Lease to West Telemarketing Corporation, as lessee, for office space at
0000 X. 00xx Xxxxxx and 0000 Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
42. Lease to West Telemarketing Corporation, as lessee, for office space at
00000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
43. Lease to West Telemarketing Corporation, as lessee, for office space at
00000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
44. Lease to West Interactive Corporation, as lessee, for office space at
0000 Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
45. Lease to West Interactive Corporation, as lessee, for office space at
0000 Xxxxxxx Xxxxxx and 0000 X. 00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
46. Lease to West Facilities Corporation, as lessee, for Xxxxx 000, 00
Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxx 00000.
47. Lease to West Telemarketing Corporation, as lessee, for office space at
000 X. 000xx Xxx., Xxxxx, Xxxxxxxx 00000.
48. Lease to West Telemarketing Corporation, as lessee, for office space at
00000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
49. Lease to West Interactive Corporation, as lessee, for office space at
0000 X. 000xx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
50. Lease to West Telemarketing Corporation, as lessee, for office space at
00000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
51. Lease to West Telemarketing Corporation, as lessee, for office space at
00000 Xxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
52. Lease to West Corporation (f/k/a West TeleServices Corporation), as
lessee, for office space at 00000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx
00000.
53. Lease to West Corporation (f/k/a West TeleServices Corporation), as
lessee, for office space at 3141 and 0000 Xxxxx 00xx Xxxxxx, Xxxxx,
Xxxxxxxx 00000.
54. 00000 Xxxxxxx Xxxxx Xxxxx, Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx 00000,
leased by West Corporation, as lessee, and subject to that certain
synthetic lease transaction (see Schedule 6.1(b)).
West Facilities Corporation
Lease Facility
Second Amendment
A-9
55. Lease to West Corporation (f/k/a West TeleServices Corporation), as
lessee, for space at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxx 00000.
56. Lease to West Interactive Corporation, as lessee, for space at 0000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
57. Lease to West Interactive Corporation, as lessee, for space at 0000
Xxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000.
58. Lease to West Telemarketing Corporation, as lessee, for space at 0000
X. 00xx Xxxxxx, Xxxx 0X, Xxxx, Xxxxxxxxxxxx 00000.
59. Lease to West Telemarketing Corporation, as lessee, for space at 000
Xxx Xxxx Xx., Xxxx X-0, Xxxxxxx, Xxxxxxxx 00000.
60. Lease to West Telemarketing Corporation, as lessee, for space at 0000
Xxxxx 00 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx 00000.
61. Lease to West Telemarketing Corporation, as lessee, for space at 0000
Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
62. Lease to West Telemarketing Corporation, as lessee, for space at 0000
Xxxx Xxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000.
63. Lease to West Telemarketing Corporation, as lessee, for space at 0000
Xxxxxxxxx Xxxx., Xxxx, Xxxxxx 00000.
64. Lease to West Telemarketing Corporation, as lessee, for space at Harlem
Alpine Center, 0000 Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxx 00000.
65. Lease to West Telemarketing Corporation, as lessee, for Xxxxx 000, 0000
X. 000xx Xxxx Xxx., Xxxxx, Xxxxxxxx 00000.
66. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 000 Xxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000.
67. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000.
68. Lease to West Telemarketing Corporation Outbound, as lessee, for Xxxxx
000, 0000 Xxxxxx Xxx., Xxxx Xxxxx, Xxxxxxxx 00000.
69. Lease to West Telemarketing Corporation Outbound, as lessee, for Xxxxx
000, 000 Xxxxxxx Xxxxxxx Xxx, Xxxxxxxxxx, Xxxxxxx 00000.
70. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000.
71. Lease to West Interactive Corporation, as lessee, for space at 0000
Xxxxxxxxxx Xxxxxxx Xxxx., Xxxxxxxxx, Xxxxxxxxx 00000.
72. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 0000 Xxxx Xxxx 000, Xxxxxxx, Xxxxx 00000.
West Facilities Corporation
Lease Facility
Second Amendment
A-10
72. Lease to West Telemarketing Corporation Outbound, as lessee, for Xxxxx
000, 0000 Xxxxx Xxxx Xxxxxx, XxXxxxx, Xxxxx 00000.
74. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 0000 Xxxxxxx, Xxxxxx, Xxxxxxx 00000.
75. Lease to West Telemarketing Corporation Outbound, as lessee, for the
5th Floor, 0000 X. 00xx Xxxxxx, Xxxxxx, Xxxxx 00000.
76. Lease to West Telemarketing Corporation Outbound, as lessee, for Xxxxx
0, 000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxx 00000.
77. Lease to Attention, LLC, as lessee, for space at 0000 Xxxxxxxxx Xxx.,
Xxxxxxxxx, Xxxxxxxx 00000 pursuant to that Assignment of Lease from
West Telemarketing Corporation Outbound.
78. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 0000 Xxxxxxxxx Xxxx Xxxx., Xxxxxxxxx Xxxx, Xxxxx 00000.
79. Lease to West Telemarketing Corporation Outbound, as lessee, for Suite
L, 0000 Xxxxxx Xxxx., Xxxx, Xxxxx 00000.
80. Lease to Tel Xxxx Sales, Inc., as lessee, for space at 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000.
81. Lease to Tel Xxxx Sales, Inc., as lessee, for space at 0000 X. Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000.
82. Lease to Attention, LLC, as lessee, for space at 0000 X. Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000.
83. Lease to Attention, LLC, as lessee, for Xxxxx 000, 0000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000.
84. Lease to Attention, LLC, as lessee, for space at 000 X Xxxxx Xxxxxx
Xxxx., Xxxxxxx, Xxxxx 00000.
85. Lease to Dakotah Direct II, LLC, as lessee, for space at S. 0000 Xxxxxx
Xxxx., Xxxxxxx, Xxxxxxxxxx 00000.
86. Lease to Dakotah Direct II, LLC, as lessee, for space at 000 Xxxxxxx
Xxxxxx, Xxxxx x' Xxxxx, Xxxxx 00000.
87. Lease to Dakotah Direct II, LLC, as lessee, for space at 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
88. Lease to Dakotah Direct II, LLC, as lessee, for space at 0000 Xxxxxxxxx
Xxx., Xxxxx, Xxxxxxxxxx 00000.
89. Lease to Dakotah Direct II, LLC, as lessee, for space at 0000 X. Xxxxx,
Xxxxxxx, Xxxxxxxxxx 00000.
90. Lease to West Telemarketing Canada, ULC, as lessee, for space at 0000
Xxxxxxx X Xxxx, Xxxxxxxxxx, XX X0X 0X0.
91. Lease to West Telemarketing Corporation, as lessee, for space at 0000
Xxxxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000.
92. Lease to West Telemarketing Corporation Outbound, as lessee, for space
at 0000 Xxx Xxxxxxx Xx., Xx Xxxx, Xxxxx 00000.
93. Lease to InterCall, Inc., as lessee, for Xxxxx 000, 0000 Xxxxxxxxxxx
Xxxx, Xxxx Xxxx, California.
West Facilities Corporation
Lease Facility
Second Amendment
A-11
94. Lease to InterCall, Inc., as lessee, for Office #'s 527, 534 and 539
located at 0000 Xxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
95. Lease to InterCall, Inc., as lessee, for Office #'s 164, 165, 167 and
171 located at 0000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
96. Lease to Xxxxxxx Communications, Inc. (assumed by XxxxxxxxxxXxxx.xxx,
Inc. through 12/31/03 merger), as lessee, for Suites 214, 224 and 226
located at 0000 XxxXxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx 00000.
97. Lease to Xxxxxxx Communications, Inc. (assumed by XxxxxxxxxxXxxx.xxx,
Inc. through 12/31/03 merger), as lessee, for Xxxxx 000 located at 0000
XxxXxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx 00000.
98. Lease to Xxxxxxx Communications, Inc. (assumed by XxxxxxxxxxXxxx.xxx,
Inc. through 12/31/03 merger), as lessee, for Suite 2670 located at the
Univision Center, Xxxxxx, Xxxxx 00000.
West Facilities Corporation
Lease Facility
Second Amendment
X-00
Xxxxxxxx 0
Xxxxx Xxxxxxxxx Offices
West Corporation
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
West Telemarketing Corporation
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Northern Contact, Inc.
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
West Telemarketing Corporation II
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
West Telemarketing Corporation Outbound
00000 Xxxxxxxx Xxxxx Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Dakotah Direct II, L.L.C.
0000 Xxxx Xxxx Xxxx, 0xx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
West Interactive Corporation
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
West Facilities Corporation
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
West Direct, Inc.
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention, LLC
0000 Xxxxxxxx Xxxxxxx Xxxxx 000
Xxxxxxxx, XX 00000
Tel Xxxx Sales, Inc.
0000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
InterCall, Inc.
West Facilities Corporation
Lease Facility
Second Amendment
A-13
0000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
InterCall Australia Pty. Ltd.
Xxxxx 0, 000 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx Xxxxx, Xxxxxxxxx
InterCall Singapore Pte. Ltd.
00 Xxxxxxx Xxxxx
#00-00 XX Xxxxx 0
Xxxxxxxxx, Xxxxx
InterCall Conferencing Services Limited
Xxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx, XX
InterCall New Zealand Limited
Xxxxx 00 Xxxxxxx Xxxxx
0 Xxxxxxxx Xxxxxx
Xxxxxxxx 0000, Xxx Xxxxxxx
InterCall, Inc. (Canada)
00000 Xxxxxx Xxx. Xxxxx 000
Xxxxxxxx, Xxxxxxx
X0X 1 W8
Canada
InterCall Telecom Ventures, LLC
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxx 00000
InterCall Hong Kong Pty. Ltd.
1318 Two Xxxxxxx Xxxxx
00 Xxxxxxxxx
Xxxx Xxxx
InterCall Asia Pacific Holdings Pty. Ltd.
Xxxxx 0, 000 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx Xxxxx, Xxxxxxxxx
XxxxxxxxxxXxxx.xxx, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
West Facilities Corporation
Lease Facility
Second Amendment
A-14
Schedule 5
Labor Matters
None.
West Facilities Corporation
Lease Facility
Second Amendment
A-15
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
$325,000,000.00 (increased, pursuant to a subsequent amendment, to
$450,000,000.00) under that certain Credit Agreement, dated as of the
Closing Date, by and among West Corporation, as borrower, the domestic
subsidiaries of West Corporation party thereto, as guarantors, Wachovia
Bank, National Association, as administrative agent and syndication
agent, Bank of America, N.A. and BNP Paribas, as co-document agents,
and the lenders party thereto, as lenders, as the same may be amended,
modified, extended, supplemented, restated and/or replaced from time to
time
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 Xxxx X. Xxxxxx, in connection with West Corporation's
purchase of Tel Xxxx 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 Xxxx 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. As of April 30, 2003, indebtedness in the approximate aggregate amount
of $12,000,000.00 outstanding pursuant to those Equipment Leases by and
between Banc of America Leasing and Capital, LLC and West Interactive
Corporation covering certain equipment as delineated in the collateral
descriptions for the following UCC filings: #20367825 (1/22/02
Delaware), #20470405 (2/22/02 Delaware), #20842751 (4/4/02 Delaware),
#20999775 (4/23/02 Delaware) and #21646987 (7/8/02 Delaware).
6. As of April 30, 2003 indebtedness in the approximate amount of
$1,900,000.00 outstanding pursuant to that certain Equipment Lease
dated as of July 22, 2002, by and among Lombard US Equipment Finance
Corporation, West Corporation, West Interactive Corporation, West
Telemarketing Corporation, West Telemarketing Corporation Outbound and
Dakotah Direct II, LLC covering certain equipment as delineated in the
collateral descriptions for the following UCC filings: #21910276
(8/1/02 Delaware), #21910615 (8/1/02 Delaware), #21910680 (8/1/02
Delaware), #21910599 (8/1/02 Delaware) and #22175549 (8/28/02
Delaware). Please note that the only entities with outstanding
indebtedness under the Lombard Equipment Lease are West Interactive
Corporation and West Telemarketing Corporation Outbound.
7. As of April 30, 2003, indebtedness in the approximate amount of
$1,300,000.00 pursuant to that certain Equipment Lease by and between
West Telemarketing Corporation Outbound and Banc of America Leasing &
Capital, LLC covering certain equipment as delineated in the collateral
description in the following UCC filing: #11792659 (11/26/01 Delaware).
West Facilities Corporation
Lease Facility
Second Amendment
A-16
8. As of April 30, 2003, indebtedness in the approximate amount of
$300,000.00 pursuant to that certain Equipment Lease by and between
West Telemarketing Corporation Outbound and Dell Financial Services
covering certain equipment as delineated in the collateral description
in the following UCC filing: #31015273 (4/18/03 Delaware).
9. On August 9, 2002, InterCall New Zealand, Ltd. purchased certain
telecommunications equipment valued at approximately $598,000 from
Telecom New Zealand, Ltd. Payments to Telecom are due in installments,
and Telecom took a security interest in the telecommunications
equipment to secure payment.
10. Equipment Lease, dated as of November 7, 2002, by and between Sun
Microsystems Finance and InterCall, Inc. for certain office equipment.
West Facilities Corporation
Lease Facility
Second Amendment
A-17
