Exhibit 10.24
THIRD AMENDMENT
TO CERTAIN OPERATIVE AGREEMENTS
THIS THIRD AMENDMENT TO CERTAIN OPERATIVE AGREEMENTS, dated as of August 9,
2004 (this "Third 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 Third Amendment shall have the meanings set
forth in Appendix A to the Participation Agreement, and the rules of usage set
forth in Appendix A to the Participation Agreement shall apply herein.
WITNESSETH
WHEREAS, the parties to this Amendment are parties to that certain
Participation Agreement dated as of May 9, 2003, as amended by the First
Amendment to Certain Operative Agreements and Waiver dated as of October 31,
2003 and as further amended by the Second Amendment to Certain Operative
Agreements dated as of January 22, 2004 (as amended, modified, supplemented or
restated from time to time, the "Participation Agreement");
WHEREAS, the parties to this Third Amendment have agreed to the amendments
set forth herein, subject to the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
AMENDMENTS
1.1 Amendments to the Lease. Sections 20.1 and 20.2 of the Lease are
hereby deleted in their entirety and replaced by the following:
20.1 PURCHASE OPTION OR SALE OPTION-GENERAL PROVISIONS.
Not less than three hundred sixty (360) days and no more
than seven hundred twenty (720) days prior to the Expiration Date
or,
respecting the Purchase Option only, not less than sixty (60)
days and no more than three hundred sixty (360) days prior to any
Payment Date (such Expiration Date or, respecting the Purchase
Option only, any such Payment Date being hereinafter referred to
as the "Election Date"), Lessee may give Lessor irrevocable
written notice (the "Election Notice") that Lessee is electing to
exercise either (a) (i) with respect to an Election Notice given
in connection with any Payment Date prior to the Expiration Date,
the option to purchase one or more Properties on the applicable
Payment Date or (ii) with respect to an Election Notice given in
connection with the Expiration Date only, the option to purchase
all, but not less than all, the Properties on the Expiration Date
(the options described in the foregoing subsections (a)(i) and
(a)(ii) may be referred to herein as the "Purchase Option") or
(b) with respect to an Election Notice given in connection with
the Expiration Date only, the option to remarket all, but not
less than all, the Properties to a Person other than Lessee or
any Affiliate of Lessee and cause a sale of such Properties to
occur on the Expiration Date pursuant to the terms of Section
22.1 (the "Sale Option"). If Lessee does not give an Election
Notice indicating the Purchase Option or the Sale Option at least
three hundred sixty (360) days and not more than seven hundred
twenty (720) days prior to the Expiration Date, then Lessee shall
be deemed to have elected for the Purchase Option to apply on the
Expiration Date. If Lessee shall elect (or be deemed to have
elected) to exercise the Purchase Option, then Lessee shall pay
to Lessor on the date on which such purchase is scheduled to
occur an amount equal to the Termination Value for (x) each
applicable Property in connection with the election of the
Purchase Option for any Payment Date prior to the Expiration Date
and (y) all, but not less than all, the Properties in connection
with the election of the Purchase Option for the Expiration Date
(which the parties do not intend to be a "bargain" purchase
price, in the case of the foregoing subsections (x) or (y)) and,
upon receipt of such amounts and satisfaction of such
obligations, Lessor shall transfer to Lessee all of Lessor's
right, title and interest in and to all, but not less than all,
the Properties in accordance with Section 20.2.
20.2 LESSEE PURCHASE OPTION.
Provided, that the Election Notice has been appropriately
given specifying the Purchase Option, Lessee shall purchase each
applicable Property on the applicable Election Date at a price
equal to the Termination Value for each such Property (which the
parties do not intend to be a "bargain" purchase price).
Subject to Section 19.2, in connection with any termination
of this Lease with respect to any Property pursuant to the terms
of Section 16.2, or in connection with Lessee's exercise of its
Purchase Option, upon the date on which this Lease is to
terminate with respect to a Property or all of
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the Properties, and upon tender by Lessee of the amounts set
forth in Section 16.2(b) or this Section 20.2, as applicable,
Lessor shall execute, acknowledge (where required) and deliver to
Lessee, at Lessee's cost and expense, each of the following: (a)
a termination or assignment (as requested by the Lessee) of each
applicable Ground Lease or special or limited warranty Deeds
conveying each applicable Property (to the extent it is real
property not subject to a Ground Lease) to Lessee free and clear
of the Lien of this Lease, the Lien of the Credit Documents and
any Lessor Liens; (b) a Xxxx of Sale conveying each applicable
Property (to the extent it is personal property) to Lessee free
and clear of the Lien of this Lease, the Lien of the Credit
Documents and any Lessor Liens; (c) any real estate tax affidavit
or other document required by law to be executed and filed in
order to record the applicable Deed and/or the applicable Ground
Lease termination or assignment, as applicable; and (d) FIRPTA
affidavits. All of the foregoing documentation must be in form
and substance reasonably satisfactory to Lessor. Each applicable
Property shall be conveyed to Lessee "AS-IS, WHERE-IS" and in
then present physical condition.
If any Property is the subject of remediation efforts
respecting Hazardous Substances at the applicable Election Date
which could materially and adversely impact the Fair Market Sales
Value of such Property (with materiality determined in Lessor's
discretion), then Lessee shall be obligated to purchase each such
Property pursuant to Section 20.2.
On the applicable Election Date on which Lessee has elected
to exercise its Purchase Option, Lessee shall pay (or cause to be
paid) to Lessor, the Agent and all other parties, as appropriate,
the sum of all costs and expenses incurred by any such party in
connection with the election by Lessee to exercise its Purchase
Option and all Rent and all other amounts then due and payable or
accrued under this Lease and/or any other Operative Agreement.
SECTION 2
CLOSING CONDITIONS
2.1 Closing Conditions.
This Third 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 Third
Amendment duly executed by the Borrower, the Agent, the Majority Secured
Parties and the Credit Parties.
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(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 Third 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 and the Primary Financing Parties, which opinions
shall provide, among other things, that the execution and delivery of this
Third 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 Third Amendment
and all the transactions contemplated to occur on the date hereof, (A) no
Default or Event of Default exists, (B) all representations and warranties
contained in this Third 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 Third 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.
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(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 Third Amendment, including, without limitation, the reasonable fees
and expenses of Xxxxx & Xxx Xxxxx PLLC.
SECTION 3
MISCELLANEOUS
3.1 Amended Terms. The terms "Lease" and "Lease Agreement" as used in each
of the Operative Agreements shall hereafter mean the Lease Agreement as amended
by this Third Amendment. Except as specifically amended or modified hereby or
otherwise agreed, the Lease Agreement is hereby ratified and confirmed and shall
remain in full force and effect according to its terms.
3.2 Representations and Warranties of the Credit Parties. Each of the
Credit Parties represents and warrants to the Financing Parties as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Third Amendment.
(b) This Third 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 Third 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).
3.3 Reaffirmation of Credit Party Obligations. Each Credit Party hereby
ratifies the Operative Agreements (as amended by this Third Amendment) and
acknowledges and reaffirms (a) that it is bound by all terms of the Operative
Agreements (as amended by this Third Amendment) applicable to it and (b) that it
is responsible for the observance and full performance of its respective
obligations pursuant to the Operative Agreements.
3.4 Operative Agreements. This Third Amendment shall constitute an
Operative Agreement under the terms of the Participation Agreement.
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3.5 Expenses. The Parent agrees to pay all reasonable costs and expenses
of the Agent in connection with the preparation, execution and delivery of this
Third 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.
3.6 Entirety. This Third Amendment and the other Operative Agreements
embody the entire agreement between the parties hereto and supersede all prior
agreements and understandings, oral or written, if any, relating to the subject
matter hereof.
3.7 Counterparts/Telecopy. This Third Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts of this Third Amendment by telecopy shall be
effective as an original and shall constitute a representation that an original
shall be delivered.
3.8 Governing Law. This Third Amendment and the rights and obligations of
the parties under this Third Amendment shall be governed by, and construed and
interpreted in accordance with, the law of the State of North Carolina.
3.9 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial;
Venue. The jurisdiction, services of process, waiver of jury trial and venue
provisions set forth in Section 12.7 of the Participation Agreement are hereby
incorporated by reference, mutatis mutandis.
3.10 Further Assurances. The Credit Parties agree to promptly take such
action, upon the request of the Agent, as is reasonably necessary to carry out
the intent of this Third Amendment.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Third 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 Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
WEST CORPORATION, as the Parent and as a
Guarantor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
WEST TELEMARKETING CORPORATION,
as a Guarantor
By: /s/ Xxxx 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 INTERACTIVE CORPORATION,
as a Guarantor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
WEST DIRECT, INC., as a Guarantor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
ATTENTION, LLC, as a Guarantor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Manager
TEL XXXX SALES, INC., as a Guarantor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
NORTHERN CONTACT, INC., as a Guarantor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
INTERCALL, INC., as a Guarantor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
INTERCALL TELECOM VENTURES, LLC,
as a Guarantor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
XXXXXXXXXXXXXX.XXX., INC.,
as a Guarantor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
(signature pages continue)
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)
WACHOVIA BANK, NATIONAL ASSOCIATION,
as the Agent
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
(signature pages continue)
WACHOVIA CAPITAL INVESTMENTS, INC.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------------
Name: XXXXXXX X. XXXXX, XX.
Title: VICE PRESIDENT
(signature pages continue)
COMMERCEBANK, N.A., as a Lender
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx 2-LJ-149
Title: VP
(signature pages end)
