Exhibit 10.40
SUPPLEMENTAL INDENTURE
Supplemental Indenture (this “
Supplemental Indenture ”), dated as of
February 20, 2009, among Intrado Information Systems Holdings,
Inc., a Delaware corporation (“ IISH ”), Intrado
Command Systems, Inc., a New Jersey corporation (“ ICS
”), Geo911, Inc., an Arizona corporation (“ GEO
”), Positron Public Safety Systems Corp., a Georgia
corporation (“ PPSS ”), and Masys Corporation, a
Minnesota corporation (together with IISH, ICS, GEO and PPSS, each,
a “ Guaranteeing Subsidiary ” and, together, the
“ Guaranteeing Subsidiaries ”), 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, the Issuer
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 9 1
/
2 % Senior Notes due 2014 (the
“ Notes ”);
WHEREAS, the Indenture provides that
under certain circumstances the Guaranteeing Subsidiaries shall
execute and deliver to the Trustee a supplemental indenture
pursuant to which each 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
”);
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 .
Each 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 each 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 each 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) No Guaranteeing Subsidiary shall
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 each of the
Guaranteeing Subsidiaries, 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 each Guaranteeing Subsidiary
for the purpose of this Guarantee.
(h) Each 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 each 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
