Exhibit 10.1
AMENDMENT NO. 4 AND RESIGNATION,
WAIVER, CONSENT AND APPOINTMENT AGREEMENT
This Amendment No. 4 and
Resignation, Waiver, Consent and Appointment Agreement (this
“ Agreement ”) is entered into as of
August 6, 2009, by and among Lehman Commercial Paper Inc.
(“ Lehman ”), a debtor and debtor in possession
under chapter 11 of the Bankruptcy Code (defined below) acting
alone or through one or more of its branches as the Administrative
Agent and Swing Line Lender (in such capacities, the “
Existing Agent ”) under that certain Credit Agreement
(as defined below), the Required Lenders party hereto, Wachovia
Bank, National Association, as Successor Agent (defined below),
West Corporation (the “ Borrower ”) and the
other Loan Parties party hereto. Defined terms in the Credit
Agreement have the same meanings where used herein, unless
otherwise defined.
RECITALS
WHEREAS, the Borrower, the Lenders,
the Existing Agent and other agents and parties party thereto have
entered into the Credit Agreement, dated as of October 24,
2006 (as amended, restated, supplemented or otherwise modified from
time to time, the “ Credit Agreement
”);
WHEREAS, On October 5, 2008,
the Existing Agent commenced a voluntary case under chapter 11 of
title 11 of the United States Code (the “ Bankruptcy
Code ”) and on such date, pursuant to section 362(a) of
the Bankruptcy Code, an automatic stay went into effect that
prohibits actions to interfere with, or obtain possession or
control of, the Existing Agent’s property or to collect or
recover from the Existing Agent any debts or claims that arose
before such date;
WHEREAS, the Existing Agent desires
to resign as Administrative Agent and Swing Line Lender under the
Credit Agreement and the other Loan Documents;
WHEREAS, the Borrower and the
Required Lenders desire to ratify the appointment of Wachovia Bank,
National Association as successor Administrative Agent and
successor Swing Line Lender (in such capacities together, the
“ Successor Agent ”) under the Credit Agreement
and the other Loan Documents, and the Successor Agent wishes to
accept such appointment;
WHEREAS, Omnium Worldwide, Inc., a
Subsidiary of the Borrower, merged with and into West Asset
Management, Inc. (“ WAM ”), a Subsidiary of the
Borrower, effective October 1, 2007; and
WHEREAS, WAM desires to assign and
transfer its Designated Amount to the Borrower, and the Borrower
agrees to such assignment and transfer through the execution and
delivery of this Amendment.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereto hereby agree as
follows:
1. Agency Resignation, Waiver,
Consent and Appointment .
(a) As of the Effective Date (as
defined below), (i) the Existing Agent hereby resigns as the
Administrative Agent and Swing Line Lender as provided under
Section 9.09 (Successor Agents) of the Credit Agreement
and shall have no further obligations under the Loan Documents in
such capacities; (ii) the Required Lenders hereby appoint
Wachovia Bank, National
Association as successor
Administrative Agent and Swing Line Lender under the Credit
Agreement and the other Loan Documents; (iii) the Borrower and
Required Lenders hereby waive any notice requirement provided for
under the Loan Documents in respect of such resignation or
appointment; (iv) the Borrower and Required Lenders hereby
consent to the appointment of the Successor Agent;
(v) Wachovia Bank, National Association hereby accepts its
appointment as Successor Agent; (vi) the Successor Agent shall
bear no responsibility for any actions taken or omitted to be taken
by the Existing Agent while it served as Administrative Agent and
Swing Line Lender under the Credit Agreement and the other Loan
Documents; and (vii) each of the Existing Agent and Borrower
authorizes the Successor Agent to file any Uniform Commercial Code
assignments or amendments with respect to the Uniform Commercial
Code Financing Statements, mortgages, and take any other actions or
make any other filings in respect of the Collateral as the
Successor Agent reasonably deems necessary or desirable to evidence
the Successor Agent’s succession as Administrative Agent
under the Credit Agreement and the other Loan Documents and each
party hereto agrees to execute any and all documentation the
Successor Agent believes reasonably necessary to evidence such
succession; provided that the Existing Agent shall bear no
responsibility for any actions taken or omitted to be taken by the
Successor Agent under this clause (vii).
(b) The parties hereto hereby
confirm that the Successor Agent succeeds to the Credit Agreement
and becomes vested with all of the rights, powers, privileges and
duties of the Administrative Agent and Swing Line Lender under each
of the Loan Documents, and subject to Section 11 hereof, the
Existing Agent is discharged from all of its duties and obligations
as the Administrative Agent and Swing Line Lender under the Credit
Agreement or the other Loan Documents, in each case, as of the
Effective Date.
(c) Subject to Section 11
hereof, the parties hereto hereby confirm that, as of the Effective
Date, all of the provisions of the Credit Agreement, including,
without limitation, Article IX (Administrative Agent and Other
Agents) , Section 10.04 (Attorney Costs, Expenses and
Taxes) and Section 9.06 (Indemnification of Agents)
to the extent they pertain to the Existing Agent, continue in
effect for the benefit of the Existing Agent, its sub-agents and
their respective affiliates in respect of any actions taken or
omitted to be taken by any of them while the Existing Agent was
acting as Administrative Agent and inure to the benefit of the
Existing Agent.
(d) The Existing Agent hereby
assigns to the Successor Agent all of its rights under the Loan
Documents and each of the Liens and security interests held by the
Existing Agent under the Loan Documents and the Successor Agent
hereby assumes all such Liens, for its benefit and for the benefit
of the Secured Parties.
(e) On the Effective Date, or as
soon as reasonably practicable thereafter, the Existing Agent shall
deliver all possessory collateral held by it for the benefit of the
Lenders to the Successor Agent. On and after the Effective Date,
until such time as such possessory collateral has been delivered to
the Successor Agent, all possessory collateral held by the Existing
Agent for the benefit of the Lenders shall be deemed to be held by
the Existing Agent as agent and bailee for the benefit and on
behalf of the Successor Agent for the benefit of the Secured
Parties. Notwithstanding anything herein to the contrary, each Loan
Party agrees that all of such Liens granted by any Loan Party,
shall in all respects be continuing and in effect and are hereby
ratified and reaffirmed by each Loan Party. Without limiting the
generality of the foregoing, any reference to the Existing Agent on
any publicly filed document, to the extent such filing relates to
the liens and security interests in the Collateral assigned hereby
and until such filing is modified to reflect the interests of the
Successor Agent, shall, with respect to such liens and security
interests, constitute a reference to the Existing Agent as
collateral representative of the Successor
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Agent (provided, that the parties
hereto agree that the Existing Agent’s role as such
collateral representative shall impose no duties, obligations, or
liabilities on the Existing Agent, including, without limitation,
any duty to take any type of direction regarding any action to be
taken against such Collateral, whether such direction comes from
the Successor Agent, the Required Lenders, or otherwise and the
Existing Agent shall have the full benefit of the protective
provisions of Article IX (Administrative Agent and Other
Agents), including, without limitation, Section 9.06
(Indemnification of Agents) while serving in such capacity).
The Successor Agent agrees to take possession of any possessory
collateral delivered to the Successor Agent following the Effective
Date upon tender thereof by the Existing Agent.
(f) Each of the Borrower, the other
Loan Parties, the Existing Agent and the Lenders hereby
unconditionally and irrevocably waive all claims, suits, debts,
liens, losses, causes of action, demands, rights, damages or costs,
or expenses of any kind, character or nature whatsoever, known or
unknown, fixed or contingent, which any of them may have or claim
to have against Wachovia Bank, National Association (in its
capacity as Successor Agent) or its agents, employees, officers,
affiliates, directors, representatives, attorneys, successors and
assigns (collectively, the “ Wachovia Released Parties
”) to the extent arising (i) at any time before the
Effective Date out of or in connection with the Loan Documents or
(ii) out of any actions or inaction (x) by the Existing
Agent prior to the Effective Date (including resulting in any
defect, insufficiency or failure to perfect in Collateral) or
(y) by the Successor Agent at any time in reliance on
information furnished to it on or prior to the Effective Date with
respect to the Register, the Collateral or any other matter under
the Loan Documents (collectively, the “ Wachovia
Claims ”). Each of the Borrower, the other Loan Parties,
the Existing Agent and the Lenders further agree forever to refrain
from commencing, instituting or prosecuting any lawsuit, action or
other proceeding against any Wachovia Released Parties with respect
to such Wachovia Claims. Each of the Wachovia Released Parties
shall be a third party beneficiary of this Amendment. The foregoing
waiver is not intended to alter any contractual obligation under
the Loan Documents of the Wachovia Released Parties existing
immediately prior to the existence of this agreement.
(g) The Successor Agent hereby
unconditionally and irrevocably waives all claims, suits, debts,
liens, losses, causes of action, demands, rights, damages or costs,
or expenses of any kind, character or nature whatsoever, known or
unknown, fixed or contingent, which any of them may have or claim
to have against Lehman (in its capacity as Existing Agent) or its
agents, employees, officers, affiliates, directors,
representatives, attorneys, successors and assigns (collectively,
the “ Lehman Released Parties ”) to the extent
arising (i) at any time after the Effective Date out of or in
connection with the Loan Documents or (ii) out of any actions
or inaction by the Successor Agent on and after the Effective Date
(collectively, the “ Lehman Claims ”). The
Successor Agent further agrees forever to refrain from commencing,
instituting or prosecuting any lawsuit, action or other proceeding
against any Lehman Released Parties with respect to such Lehman
Claims. Each of the Lehman Released Parties shall be a third party
beneficiary of this Amendment.
(h) Notwithstanding the provisions
of Section 2.08 (Interest) and Section 2.09
(Fees) of the Credit Agreement (i) on the Effective Date
the Borrower shall pay to the Existing Agent, for the account of
the applicable Lenders all interest and commitment fees accrued
through the date immediately prior to the Effective Date, at the
Existing Agent’s office in Dollars and Same Day Funds, and
the Existing Agent will distribute to each Lender its Pro Rata
Share (or other applicable share as provided in the Credit
Agreement) of such payment in like finds as received by wire
transfer to such Lender’s Lending Office and
(ii) thereafter the Borrower shall pay to the Successor Agent,
for the account of the applicable Lenders all interest and
commitment fees
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accruing on and after the Effective
Date in accordance with the provisions of Section 2.08
(Interest) and Section 2.09 (Fees) of the Credit
Agreement.
2. Amendments . The Credit
Agreement is, effective as of the Effective Date, hereby amended as
follows:
(a) The definition of
“Defaulting Lender” in Section 1.01 (Defined
Terms) is hereby amended by deleting the phrase “or
(c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding” and replacing it with
the following:
“(c) has given notice to
Administrative Agent or Borrower that it will not make, or that it
has disaffirmed or repudiated any obligation to make any Revolving
Credit Loan or fund any participation in L/C Obligations or
participation in Swing Line Loans hereunder (unless such notice is
given by all Lenders) and has not revoked such notice or reaffirmed
its obligations to make any Revolving Credit Loan and fund any
participations in L/C Obligations and participations in Swing Line
Loans hereunder, or (d) has (i) become and continues to
be the subject of a bankruptcy or insolvency proceeding, or has had
a receiver, conservator, trustee or custodian appointed for it, or
has taken any action in furtherance of, or indicating its consent
to, approval of or acquiescence in any such proceeding or
appointment or has a parent company that has become and continues
to be the subject of a bankruptcy or insolvency proceeding, or has
had a receiver, conservator, trustee or custodian appointed for it,
or has taken any action in furtherance of, or indicating its
consent to, approval of or acquiescence in any such proceeding or
appointment, or (ii) been taken over by the FDIC or any other
state or federal regulator or Governmental
Authority.”
(b) The definition of
“Designated Amount” in Section 1.01 (Defined
Terms) is hereby replaced with the following:
“ 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 West Notifications Group, Inc., a Delaware
corporation (“ WNG ”), InterCall, Inc., a
Delaware corporation (“ InterCall ”), West
Direct II, Inc., an Arizona corporation (“ WDII
”), Intrado Inc., a Delaware corporation (“
Intrado ”), TeleVox Software, Incorporated, a Delaware
corporation (“ TeleVox ”), West Direct, LLC, a
Delaware limited liability company (“ WDI ”),
West Interactive Corporation, a Delawa
