AMENDMENT NO. 3 TO CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 3 TO CREDIT AGREEMENT
AMENDMENT
NO. 3 TO CREDIT AGREEMENT, dated as of May 16, 2008 (this “Amendment”), among WEST
CORPORATION, a Delaware corporation (the “Borrower”), INTERCALL, INC., a Delaware corporation,
WACHOVIA CAPITAL MARKETS, LLC, as lead arranger for purposes of this Amendment (the “Lead
Arranger”), and XXXXXX COMMERCIAL PAPER INC., as Administrative Agent (in such capacity, the
“Administrative Agent”).
PRELIMINARY STATEMENTS
A. The Borrower, each lender from time to time party thereto (the “Lenders”) and the
Administrative Agent have entered into a Credit Agreement, dated as of October 24, 2006 (as
amended, supplemented or otherwise modified from time to time, the “Credit Agreement”).
B. The Borrower intends to acquire, directly or indirectly through one or more subsidiaries,
up to 100%, and at least 66.66% of the issued and outstanding common stock (the “Georgia
Acquisition”) of Genesys, S.A., a French société anonyme (“Georgia” and together with its
subsidiaries, the “Acquired Business”), as contemplated by the Tender Offer Agreement dated as of
February 19, 2008 between the Borrower and Georgia (as amended, modified and supplemented as
permitted herein, the “Acquisition Agreement”).
C. In order to finance the Georgia Acquisition and to pay related fees and expenses , the
Borrower and the applicable Subsidiary Borrowers desire to, among other things, borrow $134,000,000
of incremental term loans (the “Incremental Term B-3 Loans”) as a new tranche of terms loans under
the Credit Agreement on the terms and conditions set forth herein. The borrowing of the
Incremental Term B-3 Loans, the Georgia Acquisition and payment of fees and expenses related to the
Georgia Acquisition and the Incremental Term B-3 Loans are defined herein as “Georgia
Transactions”.
D. The Borrower and the applicable Subsidiary Borrowers have requested that the Incremental
Term B-3 Loan Lenders (as defined below) make commitments to provide the Incremental Term B-3 Loans
on the terms and conditions set forth herein.
E. The Administrative Agent has agreed, subject to the terms and conditions hereinafter set
forth, to amend the Credit Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the sufficiency and receipt of all of which is hereby acknowledged, the parties
hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms not otherwise defined in this Amendment
have the same meanings as specified in the Credit Agreement.
SECTION 2. Amendments to Credit Agreement. Effective as of the Amendment No. 3
Effective Date, and subject to the terms and conditions set forth herein, the Credit Agreement is
hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is amended by adding in the appropriate alphabetical
order the following new definitions:
“Amendment
No. 3” means Amendment No. 3 to this Agreement,
dated as of May 16, 2008,
among the Borrower, InterCall, Wachovia Capital Markets, LLC and the Administrative Agent.
“Amendment No. 3 Effective Date” has the meaning specified in Amendment No. 3.
“Georgia Acquisition” has the meaning specified in the preliminary statements of
Amendment No. 3.
“Incremental Term B-3 Loan Borrowing” means a borrowing consisting of simultaneous
Incremental Term B-3 Loans of the same Type and, in the case of Eurocurrency Rate Loans,
having the same Interest Period made by each of the Incremental Term B-3 Lenders pursuant to
Section 2.01(a)(v).
“Incremental Term B-3 Loan Commitments” means, as to each Incremental Term B-3 Loan
Lender, its obligation to make Incremental Term B-3 Loans on the Amendment No. 3 Effective
Date to the Borrower and the applicable Subsidiary Borrowers pursuant to Section 2.01(a)(v)
in an aggregate amount not to exceed the amount set forth in such Incremental Term B-3 Loan
Lender’s Lender Addendum delivered by such Incremental Term B-3 Loan Lender on the Amendment
No. 3 Effective Date as provided in Amendment No. 3, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement. The aggregate Incremental
Term B-3 Loan Commitments of all Incremental Term B-3 Loan Lenders on the Amendment No. 3
Effective Date is $134,000,000.
“Incremental Term B-3 Loan Lender” means, at any time, any Lender that has an
Incremental Term B-3 Loan Commitment or an Incremental Term B-3 Loan at such time.
“Incremental Term B-3 Loan” has the meaning specified in the preliminary statements of
Amendment No. 3.
“Incremental Term B-3 Note” means a promissory note of the Borrower and the applicable
Subsidiary Borrowers payable to any Incremental Term B-3 Lender or its registered assigns,
in substantially the form of Annex B to Amendment No. 3, evidencing the aggregate
Indebtedness of the Borrower and the applicable Subsidiary Borrowers (which shall be
allocated among them ratably in accordance with the Designated Amounts) to such Incremental
Term B-3 Lender resulting from the Incremental Term B-3 Loans made or held by such
Incremental Term B-3 Lender.
(b) Section 1.01(a) of the Credit Agreement is hereby amended by (i) renumbering the existing
clause (b) of the definition of “Applicable Rate” as clause (c) and (ii) adding the following as a
new clause (b) thereof:
“(a) with respect to Incremental Term B-3 Loans, (i) for Eurocurrency Rate Loans, 5.00%
and (ii) for Base Rate Loans, 4.00%.
(c) Section 1.01 of the Credit Agreement is hereby amended by amending and restating in their
entirety the definitions of “Designated Amount”, “Lender Addendum”, “Responsible Officer”, “Term
Borrowing”, “Term Commitment”, “Term Lender”, ‘Term Loan” and “Term Note” to read, respectively, as
follows:
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“Designated Amount” means: (a) with respect to the Term B-2 Loans, (i) with respect to
the Borrower and each of the Subsidiary Borrowers (other than CenterPost Communications,
Inc., a Delaware corporation (“CenterPost”), InterCall, Inc., a Delaware corporation
(“InterCall”), InPulse Response Group, Inc., an Arizona corporation (“InPulse”), Intrado
Inc., a Delaware corporation (“Intrado”), Ringer Acquisition Corp., a Delaware corporation
(“RAC”), West Asset Management, Inc., a Delaware corporation (“WAM”), West Direct, Inc., a
Delaware corporation (“WDI”), West Interactive Corporation, a Delaware corporation (“West
Interactive”), West Business Services, LP, a Delaware limited partnership (“WBS”), West
Telemarketing, LP, a Delaware limited partnership (“West Telemarketing”) and Omnium),
$430,500,000, (ii) with respect to CenterPost, $21,000,000, (iii) with respect to InPulse,
$45,500,000, (iv) with respect to InterCall, $684,000,000, (v) with respect to Intrado,
$439,000,000, (vi) with respect to RAC, $133,600,000, (vii) with respect to WAM,
$107,000,000, (viii) with respect to WDI, $25,600,000, (ix) with respect to West
Interactive, $118,700,000, (x) with respect to WBS, $134,900,000, (xi) with respect to West
Telemarketing, $125,200,000 and (xii) with respect to Omnium, $135,000,000 and (b) with
respect to the Incremental Term B-3 Loans, (i) with respect to the Borrower and each of the
Subsidiary Borrowers (other than InterCall), $84,000,000 and (ii) with respect to InterCall,
$50,000,000.
“Lender Addendum” means, with respect to any applicable Lender, (i) a Lender Addendum,
substantially in the form of Exhibit K, executed and delivered by such Lender on the Closing
Date as provided in Section 10.23, (ii) a Lender Addendum, substantially in the form of
Annex D to Amendment No. 1, executed and delivered by such Lender on the Amendment No. 1
Effective Date as provided in Amendment No. 1, (iii) a Lender Addendum, substantially in the
form of Annex B to Amendment No. 2, executed and delivered by such Lender on the Amendment
No. 2 Effective Date as provided in Amendment No. 2 or (iv) a Lender Addendum, substantially
in the form of Annex C to Amendment No. 3, executed and delivered by such Lender on the
Amendment No. 3 Effective Date as provided in Amendment No. 3.
“Responsible Officer” means the chief executive officer, president, vice president,
chief financial officer, treasurer or assistant treasurer or other similar officer of a Loan
Party and, as to any document delivered on the Closing Date, the Amendment No. 1 Effective
Date, the Amendment No. 2 Effective Date or the Amendment No. 3 Effective Date, any
secretary or assistant secretary of a Loan Party. Any document delivered hereunder that is
signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such
Loan Party and such Responsible Officer shall be conclusively presumed to have acted on
behalf of such Loan Party.
“Term Borrowing” means any Existing Term Borrowing, any Term B-2 Borrowing or any
Incremental Term B-3 Loan Borrowing, as applicable.
“Term Commitment” means any Term B-2 Commitment, Incremental Term Loan Commitment or
Incremental Term B-3 Loan Commitment.
“Term Lender” means any Existing Term Lender, any Term B-2 Lender or any Incremental
Term B-3 Lender, as applicable.
“Term Loan” means any Existing Term Loan, any Term B-2 Loan or any Incremental Term B-3
Loan, as applicable.
“Term Note” means any Existing Term Note, any Term B-2 Note or any Incremental Term B-3
Note, as applicable.
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(d) Section 2.01(a) of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“(a)(i) Existing Term Loan. On the Closing Date, the Existing Term Lenders made
Existing Term Loans to the Borrower pursuant to Section 2.01(a) of this Agreement as in
effect on the Closing Date.
(ii) Term B-2 Exchange. On the Amendment No. 1 Effective Date, each Term B-2 Lender
that had Existing Term Loans and a corresponding Term B-2 Commitment exchanged and converted
an aggregate principal amount of the Existing Term Loans (“Exchanged Term Loans”) held by it
immediately prior to the Amendment No. 1 Effective Date for and into a like principal amount
in Dollars of Term B-2 Loans of the Borrower and the Subsidiary Borrowers (which were
allocated among them ratably in accordance with the Designated Amounts) pursuant to Section
2.01(a)(ii) of this Agreement as in effect on the Amendment No. 1 Effective Date.
(iii) Term B-2 Borrowings. On the Amendment No. 1 Effective Date, each Term B-2 Lender
made to the Borrower and the Subsidiary Borrowers (which were allocated among them ratably
in accordance with the Designated Amounts) Term B-2 Loans denominated in Dollars in an
amount equal to the excess of (A) its Term B-2 Commitment over (B) the aggregate
principal amount of its Exchanged Term Loans, if any, pursuant to Section 2.01(a)(iii) of
this Agreement as in effect on the Amendment No. 1 Effective Date. All Existing Term Loans
that were not Exchanged Term Loans were refinanced with the proceeds of such Term B-2 Loans.
(iv) Incremental Term Loan Borrowings. On the Amendment No. 2 Effective Date, each
Incremental Term Loan Lender made to the Borrower and the applicable Subsidiary Borrowers
(which were allocated among them ratably in accordance with the Designated Amounts)
Incremental Term Loans denominated in Dollars in an aggregate amount equal to the amount set
forth in such Incremental Term Loan Lender’s Lender Addendum delivered by such Incremental
Term Loan Lender on the Amendment No. 2 Effective Date pursuant to Section 2.01(a)(iv) of
this Agreement as in effect on the Amendment No. 2 Effective Date.
(v) Incremental Term B-3 Loan Borrowings. Each Incremental Term B-3 Loan Lender
severally agrees to make to the Borrower and the applicable Subsidiary Borrowers (which
shall be allocated among them ratably in accordance with the Designated Amounts) Incremental
Term B-3 Loans denominated in Dollars on the Amendment No. 3 Effective Date in an aggregate
amount not to exceed the amount set forth in such Incremental Term B-3 Loan Lender’s Lender
Addendum delivered by such Incremental Term B-3 Loan Lender on the Amendment No. 3 Effective
Date as provided in Amendment No. 3, as applicable.
(vi) Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be
reborrowed. Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further
provided herein.
(vii) On and after the Amendment No. 1 Effective Date, all Term Loans shall continue to
have the same terms, rights and benefits as the Term Loans immediately prior to the
Amendment No. 1 Effective Date under the Loan Documents, except as expressly modified by
Amendment No. 1.
(viii) On and after the Amendment No. 2 Effective Date, all Incremental Term Loans
shall have the same terms, rights and benefits as the Term B-2 Loans outstanding immediately
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prior to the Amendment No. 2 Effective Date under the Loan Documents, except as
expressly modified by Amendment No. 2.
(ix) On and after the Amendment No. 3 Effective Date, all Incremental Term B-3 Loans
shall have the same terms, rights and benefits as the Term B-2 Loans outstanding immediately
prior to the Amendment No. 3 Effective Date under the Loan Documents, except as expressly
modified by Amendment No. 3.”
(e) Section 2.05(a)(i) is hereby amended by replacing the phrase “(except as otherwise
provided below)” immediately before the first proviso therein with the phrase “(except as otherwise
provided below and, in the case of the Incremental Term B-3 Loans, subject to Section 2.16)”.
(f) Section 2.05(b)(i) is hereby amended by replacing the reference to “all voluntary
prepayments of Term B-2 Loans” in clause (B)(i) thereof with “all voluntary prepayments of Term B-2
Loans and Incremental Term B-3 Loans”.
(g) Section 2.05(b)(v) is hereby amended by adding the following new sentence at the end
thereof: “Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be subject to
Section 2.16)”.
(h) Section 2.07(a) of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“(a) Term Loans. Each of the Borrower and the Subsidiary Borrowers shall, jointly and
severally, repay to the Administrative Agent for the ratable account of the Term Lenders (i)
on the last Business Day of each March, June, September and December, commencing with the
first such date to occur after the Amendment No. 2 Effective Date, an aggregate amount equal
to 0.25% of the aggregate amount of all Term B-2 Loans (which shall be allocated among them
ratably in accordance with the Designated Amounts) outstanding on the Amendment No. 2
Effective Date (which payments shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.05) and (ii) on
the Maturity Date for the Term Loans, the aggregate principal amount of all Term B-2 Loans
outstanding on such date. Each of the Borrower and the Subsidiary Borrowers shall, jointly
and severally, repay to the Administrative Agent for the ratable account of the Incremental
Term B-3 Lenders (i) on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Amendment No. 3 Effective Date, an
aggregate amount equal to 0.25% of the aggregate amount of all Incremental Term B-3 Loans
(which shall be allocated among them ratably in accordance with the Designated Amounts)
outstanding on the Amendment No. 3 Effective Date (which payments shall be reduced as a
result of the application of prepayments in accordance with the order of priority set forth
in Section 2.05) and (ii) on the Maturity Date for the Term Loans, the aggregate principal
amount of all Incremental Term B-3 Loans outstanding on such date. The portion of the
repayment amount attributable to the Incremental Term B-3 Loans shall be subject to Section
2.16.”
(i) Section 2.08(a)(i) is hereby amended by adding the following proviso at the end thereof
"provided that, in the event that the actual Eurocurrency Rate for the applicable Interest Period
shall be less than 3.5%, the Eurocurrency Rate applicable to the Incremental Term B-3 Loans that
are Eurocurrency Rate Loans shall be deemed to be 3.5%,”.
(j) Article II of the Credit Agreement is hereby amended by adding at the end thereof the
following new Section 2.16:
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“Section 2.16. Incremental Term B-3 Loan Call Protection. In the event that on
or prior to the second anniversary of the Amendment No. 3 Effective Date, all or any portion
of the Incremental Term B-3 Loans are prepaid or repaid, as applicable, including, without
limitation, (i) voluntary prepayment (including, without limitation, in connection with any
refinancing of all of the Facilities) pursuant to Section 2.05(a)(i), (ii) mandatory
prepayment pursuant to Section 2.05(b)(i), (ii) or (iii), or (iii) repayment pursuant to
Section 2.07(a), such prepayment or repayment, as applicable, will be made at (i) 105.0% of
the amount prepaid or repaid, as applicable, if such prepayment or repayment occurs on or
prior to the first anniversary of the Amendment No. 3 Effective Date and (ii) 102.0% of the
amount prepaid or repaid, as applicable, if such prepayment or repayment occurs after the
first anniversary of the Amendment No. 3 Effective Date, but on or prior to the second
anniversary of the Amendment No. 3 Effective Date.”
(k) Section 7.10 of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“SECTION 7.10. Use of Proceeds. Use the proceeds of (a) (i) any Revolving
Credit Borrowing, Swing Line Borrowing, Existing Term Borrowing or L/C Credit Extension,
whether directly or indirectly, in a manner inconsistent with the uses set forth in the
preliminary statements to this Agreement, or (ii) any Term B-2 Borrowing, whether directly
or indirectly, in a manner other than (A) to refinance Existing Term Loans and (B) for
general corporate purposes, including Permitted Acquisitions and (b) any Incremental Term
B-3 Borrowing, whether directly or indirectly, in a manner other than to finance the Georgia
Acquisition and to pay fees and expenses related to the Georgia Acquisition and the
Incremental Term B-3 Loans and for general corporate purposes, including Permitted
Acquisitions.”
(l) Section 8.02(b) of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder, including pursuant to
Section 2.16, or under any other Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower;”
(m) Section 8.02 of the Credit Agreement is hereby amended by amending and restating the
proviso at the end thereof in its entirety to read as follows:
“provided that upon the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States, the obligation
of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid, including the amounts payable
pursuant to Section 2.16, shall automatically become due and payable, and the obligation of
the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically
become effective, in each case without further act of the Administrative Agent or any
Lender.”
(n) Section 10.01 of the Credit Agreement is hereby amended by adding at the end thereof the
following new paragraph:
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“In addition, notwithstanding the foregoing, any amendment, waiver or consent that by
its terms adversely affects the rights of the Incremental Term B-3 Lenders in a manner
different than such amendment, waiver or consent affects the other Lenders hereunder as a
group shall be subject to the approval by the Incremental Term B-3 Lenders holding more than
50% of the aggregate Outstanding Amount of the Incremental Term B-3 Loans.”
SECTION 3. Conditions of Effectiveness of this Amendment. This Amendment shall become
effective on the date (the “Amendment No. 3 Effective Date”) when each of the conditions set forth
in this Section 3 shall have been satisfied:
(a) Execution of Documents. The Administrative Agent shall have received (i) this Amendment,
duly executed and delivered by the Borrower, the Lead Arranger and the Administrative Agent in
accordance with the requirements of Section 2.14 of the Credit Agreement, and (ii) a Guarantor
Consent and Reaffirmation, in the form attached hereto as Annex A, duly executed and delivered by
each Guarantor.
(b) Syndication. Since February 19, 2008 and prior to the Amendment No. 3. Effective Date,
there shall have been no competing offering, placement or arrangement of any debt securities or
syndicated commercial bank financing or other credit facilities of the Borrower, any of its
subsidiaries or the Acquired Business without the prior written consent of the Lead Arranger, other
than, so long as such indebtedness is issued in compliance with the terms of the Credit Agreement,
(w) under the Credit Agreement, (x) the Georgia Transactions, (y) up to the amount previously
agreed by the Lead Arranger and the Borrower of foreign indebtedness (including the indebtedness of
the Acquired Business) and (z) Borrower’s accounts receivable facility in the aggregate amount of
up to the amount previously agreed by the Lead Arranger and the Borrower.
(c) Consummation of Georgia Acquisition. The Georgia Acquisition shall have been consummated
(or substantially concurrently will be consummated) with the funding of the Incremental Term B-3
Loans (i) in accordance with the Acquisition Agreement without waiver or amendment of any material
provisions thereof (other than any such waiver or amendment as is not materially adverse to the
Incremental Term B-3 Lenders) unless consented to by the Lead Arranger, which consent shall not be
unreasonably withheld, conditioned or delayed and (ii) in compliance with the Credit Agreement.
(d) Cash Availability. After giving effect to the Georgia Transactions, the aggregate
unrestricted cash and cash equivalents of the Borrower and its Subsidiaries as of the end of the
calendar month preceding the most recently ended calendar month (or, if the Amendment No. 3
Effective Date occurs after the 11th Business Day from the end of the most recently ended calendar
month, as of the end of such most recently ended calendar month) together with the amount available
for borrowing under the Revolving Credit Facility shall be at least $50,000,000.
(e) Financial Statements. The Lead Arranger and the Administrative Agent shall have received
(a) a consolidated pro forma balance sheet and statement of operations of the Borrower for the most
recent fiscal quarter ended at least 45 days prior to the Amendment No. 3 Effective Date, adjusted
to give pro forma effect to the Georgia Transactions, and (b) a related pro forma consolidating
(for the Acquired Business and for the Borrower and its consolidated subsidiaries) balance sheet
and statement of operations for the Borrower, adjusted to give pro forma effect to the Georgia
Transactions, for the twelve-month period ending on the last day of such quarter, in each case,
prepared in a format consistent with the format of the unaudited pro forma condensed consolidated
financial statements presented in the offering memorandum for the New Notes; provided, that, to the
extent the financial statements of the Acquired Business are not available for the periods referred
to in clauses (a) and (b) above, or were not provided to the Borrower at least seven days prior to
the Amendment No. 3 Effective
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Date, then such financial statements referred to in clauses (a) and (b) above shall be
provided for the most recently ended prior period; provided further, that it is understood and
agreed that the financial information relating to the Acquired Business that is part of the
financial statements referred to in clauses (a) and (b) above is prepared based on International
Financial Reporting Standards and is not reconciled to U.S. GAAP.
(f) Payment of Debt Issuance Fee. The Borrower shall have paid to the Administrative Agent
for the account of each Incremental Term B-3 Lender party to the Credit Agreement as of the
Amendment No. 3 Effective Date, as compensation for the funding of the Incremental Term B-3 Loans,
a debt issuance fee in an amount equal to 3.00% of the stated principal amount set forth in such
Incremental Term B-3 Loan Lender’s Lender Addendum.
(g) Payment of Other Fees and Expenses. The Borrower shall have paid all fees and expenses
(including the reasonable fees and expenses of Weil, Gotshal & Xxxxxx LLP) incurred by the Lead
Arranger and the Administrative Agent in connection with the preparation, negotiation and execution
of this Amendment or otherwise required to be paid in connection with this Amendment (including,
without limitation, all fees and expenses described in the Commitment Letter, dated as of February
19, 2008, among the Borrower, Wachovia Bank, National Association and the Lead Arranger and Fee
Letter, dated as of February 19, 2008, among the Borrower, Wachovia Bank, National Association and
the Lead Arranger) to the extent invoiced at least one Business Day prior to the date hereof.
(h) Secretary’s Certificates; Good Standing Certificates. The Administrative Agent shall have
received (i) such certificates of resolutions or other action, incumbency certificates and/or other
certificates of Responsible Officers of the Borrower as the Lead Arranger may reasonably request
evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to
act as a Responsible Officer in connection with this Amendment and the transactions contemplated
hereby and (ii) good standing certificates (or equivalent documents) from the applicable
Governmental Authority of the respective jurisdiction of organization of each Loan Party dated as
of a recent date prior to the Amendment No. 3 Effective Date.
(i) Compliance with Covenants, No Default, Etc. (i) The conditions precedent set forth in
Sections 4.02(a) and (b) of the Credit Agreement shall have been satisfied on and as of the
Amendment No. 3 Effective Date, (ii) the Borrower shall be in compliance with each of the covenants
set forth in Section 7.11 of the Credit Amendment determined on a Pro Forma Basis as of the
Amendment No. 3 Effective Date and the last day of the most recent Test Period, as if the
Incremental Term B-3 Loans had been outstanding on the last day of such fiscal quarter of the
Borrower for testing compliance therewith and (iii) the Total Leverage Ratio as of the last day of
the four consecutive fiscal quarters of the Borrower for which financial statements are required to
be delivered to the Administrative Agent under the Credit Agreement, calculated on a Pro Forma
Basis giving effect to the Georgia Transactions, shall be no greater than 6.75:1 and the
Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower,
certifying the foregoing.
(j) Solvency Certificate. The Administrative Agent shall have received a certificate
attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Georgia
Transactions, from the Chief Financial Officer of the Borrower.
(k) Legal Opinions. The Administrative Agent shall have received an opinion of Ropes & Xxxx
LLP, counsel for the Loan Parties, addressed to the Administrative Agent and each Lender, in form
and substance reasonably satisfactory to the Lead Arranger and the Administrative Agent.
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(l) Collateral Requirement. All actions reasonably necessary to establish that the
Administrative Agent will have a perfected security interest in the Collateral consisting of 65% of
the equity of the “first-tier” foreign Subsidiary owning equity interests in the Acquired Business
shall have been taken or waived by the Lead Arranger and the Administrative Agent.
SECTION 4. Post-Closing Requirements Relating to the Mortgaged Properties. Within 90
days after the Amendment No. 3 Effective Date (or such later date acceptable to the Administrative
Agent in its sole discretion), the Borrower shall deliver to the Administrative Agent:
(a) Evidence that mortgage amendments (the “Mortgage Amendments”) with respect to the
Mortgaged Properties have been duly executed, acknowledged and delivered by a duly authorized
officer of each party thereto on or before such date and are in form suitable for filing and
recording in all filing or recording offices that the Administrative Agent may deem necessary or
desirable;
(b) Date-down endorsements to the title insurance policies with respect to the Mortgaged
Properties; and
(c) Evidence that all fees, costs and expenses have been paid in connection with the
preparation, execution, filing and recordation of the Mortgage Amendments, including, without
limitation, reasonable attorneys’ fees, filing and recording fees, title insurance company
coordination fees, documentary stamp, mortgage and intangible taxes and title search charges and
other charges incurred in connection with the recordation of the Mortgage Amendments and the other
matters described in this Section 4 and as, and to the extent, otherwise required to be paid in
connection therewith under Section 10.04 of the Credit Agreement.
SECTION 5. Representations and Warranties. The Borrower represents and warrants as
follows:
(a) The execution, delivery and performance by the Borrower of this Amendment are within the
Borrower’s corporate or other powers, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (i) contravene the terms of any of the Borrower’s
Organization Documents; (ii) conflict with or result in any breach or contravention of, or the
creation of any Lien under (other than as permitted by Section 7.01 of the Credit Agreement), or
require any payment to be made under (A) any Contractual Obligation to which the Borrower is a
party or affecting the Borrower or the properties of the Borrower or any of the Borrower’s
Restricted Subsidiaries or (B) any material order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which the Borrower or its property is subject; or (iii) violate
any material Law; except with respect to any conflict, breach or contravention or payment (but not
creation of Liens) referred to in clause (ii)(A), to the extent that such conflict, breach,
contravention or payment could not reasonably be expected to have a Material Adverse Effect.
(b) This Amendment has been duly executed and delivered by the Borrower. This Amendment and
each Loan Document after giving effect to the amendments pursuant to this Amendment, constitutes a
legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance
with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general
principles of equity.
(c) No Default has occurred and is continuing or will occur as a result of the transactions
contemplated by this Amendment.
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(d) Each of the representations and warranties of the Borrower contained in Article V of the
Credit Agreement and each other Loan Document, immediately before and after giving effect to this
Amendment and the matters and transactions contemplated hereby, is true and correct in all material
respects on and as of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be true and correct in
all material respects as of such earlier date; provided, that any representation and warranty made
on or as of the Closing Date that is qualified as to “Material Adverse Effect” shall be deemed to
be qualified by a “Company Material Adverse Effect.”
SECTION 6. Reference to and Effect on the Credit Agreement and the Loan Documents.
(a) On and after the effectiveness of this Amendment, each reference in the Credit Agreement
to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement, as amended by this Amendment. The
Incremental Term B-3 Loans are the “Incremental Term Loans” as defined in the Credit Agreement.
(b) The Credit Agreement and each of the other Loan Documents, as specifically amended by this
Amendment, are and shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents
and all of the Collateral described therein do and shall continue to secure the payment of all
Obligations of the Loan Parties under the Loan Documents, in each case, as amended by this
Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of any Lender or the
Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of
any of the Loan Documents. On and after the effectiveness of this Amendment, this Amendment shall
for all purposes constitute a Loan Document.
SECTION 7. Costs and Expenses. The Borrower agrees to pay or reimburse the Lead
Arranger and the Administrative Agent for all costs and expenses of the Lead Arranger and the
Administrative Agent, respectively in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment.
SECTION 8. Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute but one
and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment
by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 9. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
SECTION 10. Lender Addenda. Each initial Incremental Term B-3 Loan Lender shall
become a party to this Amendment and the Credit Agreement by delivering to the Administrative Agent
a Lender Addendum in the form attached hereto as Annex C duly executed by such Incremental Term B-3
Loan Lender, the Borrower and the Administrative Agent. Such initial Incremental Term B-3 Loan
Lender shall also provide other customary information to the Administrative Agent, as the
Administrative Agent may reasonably request.
SECTION 11. “Know Your Customer” Information. The Borrower shall provide the
documentation and other information to the Administrative Agent that is required by regulatory
10
authorities under applicable “know your customer” and anti-money-laundering rules and
regulations, including, without limitation, the Patriot Act, and that is reasonably requested by
the Administrative Agent.
[The remainder of this page is intentionally left blank]
11
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
| WEST CORPORATION |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Executive Vice President, General Counsel and Secretary | |||
| INTERCALL, INC. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Secretary | |||
[SIGNATURE PAGE TO AMENDMENT NO. 3]
| WACHOVIA CAPITAL MARKETS, LLC, as Lead Arranger |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Managing Director | |||
[SIGNATURE PAGE TO AMENDMENT NO. 3]
| XXXXXX COMMERCIAL PAPER INC., as Administrative Agent |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
[SIGNATURE PAGE TO AMENDMENT NO. 3]
ANNEX A
GUARANTOR CONSENT AND REAFFIRMATION
Reference
is made to Amendment No. 3 (“Amendment
No. 3”), dated as of May 16, 2008 to the
Credit Agreement dated as of October 24, 2006 (as amended, supplemented or otherwise modified prior
to the date hereof, the “Credit Agreement”), among West Corporation (the “Borrower”), each Lender
from time to time party thereto, Xxxxxx Commercial Paper Inc., as Administrative Agent and Swing
Line Lender, Deutsche Bank Securities Inc. and Bank of America, N.A., as Syndication Agents, and
Wachovia Bank, National Association and General Electric Capital Corporation, as Co-Documentation
Agents. Capitalized terms used but not otherwise defined in this Guarantor Consent and
Reaffirmation (this “Consent”) are used with the meanings attributed thereto in Amendment No. 3.
Each Guarantor hereby consents to the execution, delivery and performance of Amendment No. 3
and agrees that each reference to the Credit Agreement in the Loan Documents shall, on and after
the Amendment No. 3 Effective Date, be deemed to be a reference to the Credit Agreement as amended
by Amendment No. 3.
Each Guarantor hereby acknowledges and agrees that, after giving effect to Amendment No. 3,
all of its respective obligations and liabilities under the Loan Documents to which it is a party
are reaffirmed, and remain in full force and effect.
After giving effect to Amendment No. 3, each Guarantor reaffirms each Lien granted by it to
the Administrative Agent for the benefit of the Secured Parties under each of the Loan Documents to
which it is a party, which Liens shall continue in full force and effect during the term of the
Credit Agreement as amended by Amendment No. 3, and shall continue to secure the Secured
Obligations, in each case, on and subject to the terms and conditions set forth in the Credit
Agreement as amended by Amendment Xx. 0, Xxxxxxxxx Xx. 0 and Amendment No. 3, and the other Loan
Documents.
This Consent shall be governed by, and construed and interpreted in accordance with, the laws
of the state of New York.
IN WITNESS WHEREOF, the parties hereto have duly executed this Consent as of this
day of
May 2008.
| WEST CORPORATION COSMOSIS CORPORATION INTERCALL, INC. INTRADO COMMUNICATIONS INC. INTRADO COMMUNICATIONS OF VIRGINIA INC. INTRADO INC. NORTHERN CONTACT, INC. TELEVOX SOFTWARE, INCORPORATED WEST ASSET MANAGEMENT, INC. WEST BUSINESS SERVICES CORPORATION WEST DIRECT, INC. WEST DIRECT II, INC. WEST FACILITIES CORPORATION WEST INTERACTIVE CORPORATION WEST INTERNATIONAL CORPORATION WEST NOTIFICATIONS GROUP, INC. WEST RECEIVABLE SERVICES, INC. WEST TELEMARKETING CORPORATION WEST TELEMARKETING CORPORATION II |
||||
| By: | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer and Treasurer | |||
| ASSET DIRECT MORTGAGE, LLC |
||||
| By: | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Manager | |||
| INTERCALL TELECOM VENTURES, LLC] By: InterCall, Inc., its sole member |
||||
| By: | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer and Treasurer | |||
| BUYDEBTCO, LLC THE DEBT DEPOT, LLC WEST ASSET PURCHASING, LLC By: West Receivable Services, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INTRADO INTERNATIONAL, LLC By: Intrado Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| STARGATE MANAGEMENT LLC By: Cosmosis Corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| WEST AT HOME, LLC By: West Telemarketing Corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
ANNEX B
FORM OF INCREMENTAL TERM B-3 NOTE
LENDER: [•]
PRINCIPAL AMOUNT: $[•]
PRINCIPAL AMOUNT: $[•]
FOR VALUE RECEIVED, each of the undersigned, WEST CORPORATION, a Delaware corporation (the
“Borrower”), and the Subsidiary Borrowers listed on the signature pages hereto (the
“Subsidiary Borrowers”), hereby promises, jointly and severally, to pay to the Lender set
forth above (the “Lender”) or its registered assigns, in lawful money of the United States
of America in immediately available funds at the Administrative Agent’s Office (such term, and each
other capitalized term used but not defined herein, having the meaning assigned to it in the Credit
Agreement dated as of October 24, 2006 (as the same may be amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among the Borrower, each Lender from
time to time party thereto, Xxxxxx Commercial Paper Inc., as Administrative Agent and Swing Line
Lender, Deutsche Bank Securities Inc. and Bank of America, N.A., as Syndication Agents, and
Wachovia Bank, National Association and General Electric Capital Corporation, as Co-Documentation
Agents) (i) on the dates set forth in the Credit Agreement, the principal amounts set forth in the
Credit Agreement with respect to Incremental Term B-3 Loans made by the Lender to the Borrower and
the Subsidiary Borrowers pursuant to the Credit Agreement (which shall be allocated among them
ratably in accordance with the Designated Amounts (as defined in the Credit Agreement)) and (ii) on
each Interest Payment Date, interest at the rate or rates per annum as provided in the Credit
Agreement on the unpaid principal amount of all Incremental Term B-3 Loans made by the Lender to
the Borrower and the Subsidiary Borrowers pursuant to the Credit Agreement.
Each of the Borrower and the Subsidiary Borrowers promises, jointly and severally, to pay
interest, on demand, on any overdue principal and, to the extent permitted by law, overdue interest
from their due dates at the rate or rates provided in the Credit Agreement.
Each of the Borrower and the Subsidiary Borrowers hereby waives diligence, presentment,
demand, protest and notice of any kind whatsoever. The nonexercise by the holder hereof of any of
its rights hereunder in any particular instance shall not constitute a waiver thereof in that or
any subsequent instance.
All borrowings evidenced by this note and all payments and prepayments of the principal hereof
and interest hereon and the respective dates thereof shall be endorsed by the holder hereof on the
schedule attached hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof, or otherwise recorded by such holder in its internal
records; provided, however, that the failure of the holder hereof to make such a
notation or any error in such notation shall not affect the obligations of the Borrower and the
Subsidiary Borrowers under this note.
This note is one of the Incremental Term B-3 Notes referred to in the Credit Agreement that,
among other things, contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for optional and mandatory prepayment of the principal hereof prior to
the maturity hereof and for the amendment or waiver of certain provisions of the Credit Agreement,
all upon the terms and conditions therein specified.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
| WEST CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INTERCALL, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
LOANS AND PAYMENTS
| Name of | ||||||||||||||||||||
| Payments of | Principal | Person Making | ||||||||||||||||||
| Date | Amount of Loan | Maturity Date | Principal/Interest | Balance of Note | the Notation | |||||||||||||||
ANNEX C
LENDER ADDENDUM
Reference is made to the Credit Agreement dated as of October 24, 2006 (as amended,
supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), among West
Corporation (the “Borrower”), each Lender from time to time party thereto, Xxxxxx Commercial Paper
Inc., as Administrative Agent (in such capacity, the “Administrative Agent”) and Swing Line Lender,
Deutsche Bank Securities Inc. and Bank of America, N.A., as Syndication Agents, and Wachovia Bank,
National Association and General Electric Capital Corporation, as Co-Documentation Agents. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
Upon execution and delivery of this Lender Addendum by the parties hereto and effective as of
the Amendment No. 3 Effective Date, the undersigned hereby becomes an Incremental Term B-3 Lender
thereunder having Incremental Term B-3 Loan Commitments of $ .
THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
This Lender Addendum may be executed by one or more of the parties hereto on any number of
separate counterparts, and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.
The undersigned’s address for notices pursuant to the Credit Agreement is as follows:
| Name of Incremental | ||||||
| Term B-3 Lender: | ||||||
| Notice Address: | ||||||
| Attention: | ||||||
| Telephone: | ||||||
| Facsimile: | ||||||
IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum to be duly executed
and delivered by their proper and duly authorized officers as of this day of , 2008.
| [NAME OF LENDER] |
|||||
| By: | |||||
| Name: | |||||
| Title: | |||||
Accepted and agreed:
WEST CORPORATION, as Borrower
By:
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and Treasurer
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and Treasurer
XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent
Administrative Agent
By:
Name:
Title:
Name:
Title:
