SUPPLEMENTAL INDENTURE
Exhibit 99.3
Supplemental Indenture No. 2 (this “Supplemental Indenture”), dated as of March 30,
2007, among SmartTalk, Inc., a Delaware corporation (the “Guaranteeing Subsidiary”), a
subsidiary of West Corporation, a Delaware corporation (the “Issuer”), and The Bank of New
York, as trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, each of West Corporation and the Guarantors (as defined in the Indenture referred to
below) has heretofore executed and delivered to the Trustee an indenture (the “Indenture”),
dated as of October 24, 2006, providing for the issuance of an unlimited aggregate principal amount
of 91/2% Senior Notes due 2014 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuer’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the
“Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree
for the equal and ratable benefit of the Holders of the Notes as follows:
(1) Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
(2) Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:
(a) Along with all Guarantors named in the Indenture, to jointly and severally
unconditionally guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Notes or the obligations of the Issuer hereunder or
thereunder, that:
(i) the principal of and interest, premium and Additional Interest, if any, on
the Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of and
interest on the Notes, if any, if lawful, and all other obligations of the Issuer to
the Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed
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or any performance so guaranteed for whatever reason, the Guarantors and the
Guaranteeing Subsidiary shall be jointly and severally obligated to pay the same
immediately. This is a guarantee of payment and not a guarantee of collection.
(b) The obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to
enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to
require a proceeding first against the Issuer, protest, notice and all demands whatsoever.
(d) This Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Supplemental Indenture, and the
Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantors (including the Guaranteeing Subsidiary), or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuer or the
Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby.
(g) As between the Guaranteeing Subsidiary, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guaranteeing
Subsidiary for the purpose of this Guarantee.
(h) The Guaranteeing Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under this Guarantee.
(i) Pursuant to Section 10.02 of the Indenture, after giving effect to all other
contingent and fixed liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other Guarantor in respect
of the obligations of such other Guarantor under Article 10 of the Indenture, this new
Guarantee shall be limited to the maximum amount permissible such that the obligations of
such Guaranteeing Subsidiary under this Guarantee will not constitute a fraudulent transfer
or conveyance.
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(j) This Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuer for liquidation or reorganization,
should the Issuer become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant part of the Issuer’s
assets, and shall, to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee on the Notes and Guarantee, whether as a “voidable preference”,
“fraudulent transfer” or otherwise, all as though such payment or performance had not been
made. In the event that any payment or any part thereof, is rescinded, reduced, restored or
returned, the Note shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(k) In case any provision of this Guarantee shall be invalid, illegal or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
(l) This Guarantee shall be a general unsecured senior obligation of such Guaranteeing
Subsidiary, ranking pari passu with any other future Senior Indebtedness of the Guaranteeing
Subsidiary, if any.
(m) Each payment to be made by the Guaranteeing Subsidiary in respect of this Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(3) Execution and Delivery. The Guaranteeing Subsidiary agrees that the Guarantee
shall remain in full force and effect notwithstanding the absence of the endorsement of any
notation of such Guarantee on the Notes.
(4) Merger, Consolidation or Sale of All or Substantially All Assets.
(a) Except as otherwise provided in Section 5.01(c) of the Indenture, the Guaranteeing
Subsidiary may not consolidate or merge with or into or wind up into (whether or not the Issuer or
Guaranteeing Subsidiary is the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets, in one or more related
transactions, to any Person unless:
(i) (A) the Guaranteeing Subsidiary is the surviving corporation or the Person formed
by or surviving any such consolidation or merger (if other than the Guaranteeing Subsidiary)
or to which such sale, assignment, transfer, lease, conveyance or other disposition will
have been made is a corporation organized or existing under the laws of the jurisdiction of
organization of the Guaranteeing Subsidiary, as the case may be, or the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof (the
Guaranteeing Subsidiary or such Person, as the case may be, being herein called the
“Successor Person”);
(B) the Successor Person, if other than the Guaranteeing Subsidiary, expressly assumes
all the obligations of the Guaranteeing Subsidiary under the Indenture and the Guaranteeing
Subsidiary’s related Guarantee pursuant to supplemental indentures or other documents or
instruments in form reasonably satisfactory to the Trustee;
(C) immediately after such transaction, no Default exists; and
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(D) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with the Indenture; or
(ii) the transaction is made in compliance with Sections 4.10(a)(1) and (2) of the
Indenture;
(b) Subject to certain limitations described in the Indenture, the Successor Person will
succeed to, and be substituted for, the Guaranteeing Subsidiary under the Indenture and the
Guaranteeing Subsidiary’s Guarantee. Notwithstanding the foregoing, the Guaranteeing Subsidiary
may (x) consolidated or merge into or transfer all or part of its properties and assets to another
Guarantor or the Issuer or (y) merge with an Affiliate of the Issuer solely for the purpose of
reincorporating such Guaranteeing Subsidiary in a State of the United States as long as the amount
of the Indebtedness, Preferred Stock and Disqualified Stock is not increased thereby.
(5) Releases.
The Guarantee of the Guaranteeing Subsidiary shall be automatically and unconditionally
released and discharged, and no further action by the Guaranteeing Subsidiary, the Issuer or the
Trustee is required for the release of the Guaranteeing Subsidiary’s Guarantee, upon:
(1) (A) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock
of the Guaranteeing Subsidiary (including any sale, exchange or transfer), after which the
Guaranteeing Subsidiary is no longer a Restricted Subsidiary or all or substantially all the
assets of the Guaranteeing Subsidiary which sale, exchange or transfer is made in compliance
with Sections 4.10(a)(1) and (2) of the Indenture;
(B) the release or discharge of the guarantee by the Guaranteeing Subsidiary of the
Senior Credit Facilities (including by reason of the termination of the Senior Credit
Facilities) or the guarantee which resulted in the creation of the Guarantee, except a
discharge or release by or as a result of payment under such guarantee;
(C) the proper designation of the Guaranteeing Subsidiary as an Unrestricted
Subsidiary; or
(D) the Issuer exercising its Legal Defeasance option or Covenant Defeasance option in
accordance with Article 8 of the Indenture or the Issuer’s obligations under the Indenture
being discharged in accordance with the terms of the Indenture; and
(2) the Guaranteeing Subsidiary delivering to the Trustee an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for in the
Indenture relating to such transaction have been complied with.
(6) No Recourse Against Others. No director, officer, employee, incorporator or
stockholder of the Guaranteeing Subsidiary shall have any liability for any obligations of the
Issuer or the Guarantors (including the Guaranteeing Subsidiary) under the Notes, any Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting Notes waives and releases all
such liability. The waiver and release are part of the consideration for issuance of the Notes.
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(7) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(8) Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
(9) Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
(10) The Trustee. The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary.
(11) Subrogation. The Guaranteeing Subsidiary shall be subrogated to all rights of
Holders of Notes against the Issuer in respect of any amounts paid by the Guaranteeing Subsidiary
pursuant to the provisions of Section 2 hereof and Section 10.01 of the Indenture; provided
that, if an Event of Default has occurred and is continuing, the Guaranteeing Subsidiary shall not
be entitled to enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Issuer under the Indenture or the Notes
shall have been paid in full.
(12) Benefits Acknowledged. The Guaranteeing Subsidiary’s Guarantee is subject to the
terms and conditions set forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it
will receive direct and indirect benefits from the financing arrangements contemplated by the
Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to
this Guarantee are knowingly made in contemplation of such benefits.
(13) Successors. All agreements of the Guaranteeing Subsidiary in this Supplemental
Indenture shall bind its Successors, except as otherwise provided in Section 2(k) hereof or
elsewhere in this Supplemental Indenture. All agreements of the Trustee in this Supplemental
Indenture shall bind its successors.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first above written.
| SMARTTALK, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| THE BANK OF NEW YORK, as Trustee |
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| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Senior Supplemental Indenture No. 2]
| Acknowledged and Agreed to by: WEST CORPORATION |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
