SECURITY AGREEMENT dated as of October 24, 2006 among WEST CORPORATION, THE OTHER GRANTORS IDENTIFIED HEREIN and LEHMAN COMMERCIAL PAPER INC., as Administrative Agent
EXHIBIT 10.3
dated as of
October 24, 2006
among
WEST CORPORATION,
THE OTHER GRANTORS IDENTIFIED HEREIN
and
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Administrative Agent
as Administrative Agent
TABLE OF CONTENTS
ARTICLE I |
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Definitions |
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Section 1.01. Credit Agreement |
1 | |||
Section 1.02. Other Defined Terms |
1 | |||
ARTICLE II |
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Pledge of Securities |
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Section 2.01. Pledge |
3 | |||
Section 2.02. Delivery of the Pledged Collateral |
4 | |||
Section 2.03. Representations, Warranties and Covenants |
5 | |||
Section 2.04. Certification of Limited Liability Company and Limited Partnership Interests |
6 | |||
Section 2.05. Registration in Nominee Name; Denominations |
6 | |||
Section 2.06. Voting Rights; Dividends and Interest |
7 | |||
ARTICLE III |
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Security Interests in Personal Property |
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Section 3.01. Security Interest |
9 | |||
Section 3.02. Representations and Warranties |
11 | |||
Section 3.03. Covenants |
12 | |||
Section 3.04. Other Actions |
14 | |||
ARTICLE IV |
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Remedies |
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Section 4.01. Remedies Upon Default |
14 | |||
Section 4.02. Application of Proceeds |
16 | |||
ARTICLE V |
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Indemnity, Subrogation and Subordination |
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Section 5.01. Indemnity |
17 | |||
Section 5.02. Contribution and Subrogation |
17 | |||
Section 5.03. Subordination |
17 | |||
ARTICLE VI |
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Miscellaneous |
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Section 6.01. Notices |
18 | |||
Section 6.02. Waivers, Amendment |
18 | |||
Section 6.03. Administrative Agent’s Fees and Expenses; Indemnification |
18 | |||
Section 6.04. Successors and Assigns |
19 |
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Section 6.05. Survival of Agreement |
19 | |||
Section 6.06. Counterparts; Effectiveness; Several Agreement |
20 | |||
Section 6.07. Severability |
20 | |||
Section 6.08. Right of Set-Off |
20 | |||
Section 6.09. Governing Law; Jurisdiction; Consent to Service of Process |
20 | |||
Section 6.10. WAIVER OF JURY TRIAL |
21 | |||
Section 6.11. Headings |
22 | |||
Section 6.12. Security Interest Absolute |
22 | |||
Section 6.13. Termination or Release |
22 | |||
Section 6.14. Additional Grantors |
23 | |||
Section 6.15. Administrative Agent Appointed Attorney-in-Fact |
23 | |||
Section 6.16. General Authority of the Administrative Agent |
24 | |||
Section 6.17. FCC Licenses |
24 |
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Schedules |
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Schedule I
|
Subsidiary Parties | |
Schedule II
|
Pledged Equity, Pledged Debt | |
Schedule III
|
Commercial Tort Claims | |
Exhibits |
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Exhibit I
|
Form of Security Agreement Supplement | |
Exhibit II
|
Form of Perfection Certificate |
iii
SECURITY AGREEMENT dated as of October 24, 2006 among WEST CORPORATION (the
“Borrower”), the other Grantors identified herein and ▇▇▇▇▇▇ COMMERCIAL PAPER INC., as
Administrative Agent for the Secured Parties (as defined below) (in such capacity, the
“Administrative Agent”).
Reference is made to the Credit Agreement dated as of October 24, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower,
each Lender from time to time party thereto, ▇▇▇▇▇▇ 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. The Lenders have agreed to extend credit to the Borrower subject to the
terms and conditions set forth in the Credit Agreement. The obligations of the Lenders to extend
such credit are conditioned upon, among other things, the execution and delivery of this Agreement.
The Subsidiary Parties are affiliates of the Borrower, will derive substantial benefits from the
extension of credit to the Borrower pursuant to the Credit Agreement and are willing to execute and
deliver this Agreement in order to induce the Lenders to extend such credit. Accordingly, the
parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Credit Agreement. (a) Capitalized terms used in this Agreement and not
otherwise defined herein have the meanings specified in the Credit Agreement. All terms defined in
the New York UCC (as defined herein) and not defined in this Agreement have the meanings specified
therein; the term “instrument” shall have the meaning specified in Article 9 of the New York UCC;
provided that, if perfection or the effect of perfection or non-perfection or the priority
of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code
as in effect from time to time in such other jurisdiction for purposes of the provisions hereof
relating to such perfection, effect of perfection or non-perfection or priority.
(b) The rules of construction specified in Article I of the Credit Agreement also
apply to this Agreement.
SECTION 1.02. Other Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
“Account Debtor” means any Person who is or who may become obligated to any Grantor under,
with respect to or on account of an Account.
“Accounts” has the meaning specified in Article 9 of the New York UCC.
“Agreement” means this Security Agreement.
“Article 9 Collateral” has the meaning assigned to such term in Section 3.01(a).
“Claiming Party” has the meaning assigned to such term in Section 5.02.
“Collateral” means the Article 9 Collateral and the Pledged Collateral.
“Contributing Party” has the meaning assigned to such term in Section 5.02.
“Credit Agreement” has the meaning assigned to such term in the preliminary statement of this
Agreement.
“Federal Securities Laws” has the meaning assigned to such term in Section 4.03.
“General Intangibles” has the meaning specified in Article 9 of the New York UCC.
“Grantor” means the Borrower, each Subsidiary Party and, upon the occurrence of a Holdings
Election Event, Holdings.
“New York UCC” means the Uniform Commercial Code as from time to time in effect in the State
of New York.
“Perfection Certificate” means a certificate substantially in the form of Exhibit II,
completed and supplemented with the schedules and attachments contemplated thereby, and duly
executed by the chief financial officer and the chief legal officer of the Borrower.
“Pledged Collateral” has the meaning assigned to such term in Section 2.01.
“Pledged Debt” has the meaning assigned to such term in Section 2.01.
“Pledged Equity” has the meaning assigned to such term in Section 2.01.
“Pledged Securities” means any promissory notes, stock certificates or other securities now or
hereafter included in the Pledged Collateral, including all certificates, instruments or other
documents representing or evidencing any Pledged Collateral.
“Secured Obligations” means the “Obligations” as defined in the Credit Agreement.
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“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the Hedge Banks,
the Supplemental Administrative Agent and each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section 9.01(c) of the Credit Agreement.
“Security Agreement Supplement” means an instrument in the form of Exhibit I hereto.
“Security Interest” has the meaning assigned to such term in Section 3.01(a).
“Subsidiary Parties” means (a) the Restricted Subsidiaries identified on Schedule I and (b)
each other Restricted Subsidiary that becomes a party to this Agreement as a Subsidiary Party after
the Closing Date.
ARTICLE II
Pledge of Securities
SECTION 2.01. Pledge. As security for the payment or performance, as the case may be,
in full of the Secured Obligations, including the Senior Guarantees, each Grantor hereby assigns
and pledges to the Administrative Agent, its successors and assigns, for the benefit of the Secured
Parties, and hereby grants to the Administrative Agent, its successors and assigns, for the benefit
of the Secured Parties, a security interest in, all of such Grantor’s right, title and interest in,
to and under (i) all Equity Interests held by it and listed on Schedule II and any other Equity
Interests obtained in the future by such Grantor and the certificates representing all such Equity
Interests (the “Pledged Equity”); provided that the Pledged Equity shall not include (A) more than
65% of the issued and outstanding Equity Interests of any Foreign Subsidiary, (B) Equity Interests
of Immaterial Subsidiaries, (C) Equity Interests of Unrestricted Subsidiaries, (D) Equity Interests
of Excluded Receivables Management Subsidiaries pledged to secure Indebtedness permitted under
Section 7.03(t)(i) or (ii) of the Credit Agreement or if the creation of a Lien on the Equity
Interests of such Excluded Receivables Management Subsidiary is not permitted or would (including
upon foreclosure thereof) result in a change of control (or similar event), default, termination,
payment, purchase or repurchase obligation pursuant to the terms of any Receivables Management
Financing, any service agreement (or similar arrangement) required by or entered into in connection
with such Receivables Management Financing or any credit support provided by it in favor of any
financier of such Receivables Management Financing, (E) Equity Interests of any Restricted
Subsidiary pledged to secure Indebtedness permitted under Section 7.03(g) of the Credit Agreement,
(F) Equity Interests of any Person that is not a direct or indirect wholly owned Subsidiary of the
Borrower, (G) with respect to Holdings, the Equity Interests of any Subsidiary of Holdings other
than the Borrower, (H) Equity Interests of any Subsidiary with respect to which the Administrative
Agent has confirmed in writing to the Borrower its determination that the costs or other
consequences (including adverse tax consequences) of providing a pledge of its Equity Interests is
3
excessive in view of the benefits to be obtained by the Lenders (the assets described in
clauses (A) through (H) of this proviso being the “Excluded Equity”); (ii)(A) the debt securities
owned by it and listed opposite the name of such Grantor on Schedule II, (B) any debt securities
obtained in the future by such Grantor and (C) the promissory notes and any other instruments
evidencing such debt securities (the “Pledged Debt”); (iii) all other property that may be
delivered to and held by the Administrative Agent pursuant to the terms of this Section 2.01; (iv)
subject to Section 2.06, all payments of principal or interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed in respect of, in
exchange for or upon the conversion of, and all other Proceeds received in respect of, the
securities referred to in clauses (i) and (ii) above; (v) subject to Section 2.06, all rights and
privileges of such Grantor with respect to the securities and other property referred to in clauses
(i), (ii), (iii) and (iv) above; and (vi) all Proceeds of any of the foregoing (the items referred
to in clauses (i) through (vi) above being collectively referred to as the “Pledged Collateral”).
TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title, interest, powers,
privileges and preferences pertaining or incidental thereto, unto the Administrative Agent, its
successors and assigns, for the benefit of the Secured Parties, forever; subject, however, to the
terms, covenants and conditions hereinafter set forth.
SECTION 2.02. Delivery of the Pledged Collateral. (a) Each Grantor agrees promptly
to deliver or cause to be delivered to the Administrative Agent, for the benefit of the Secured
Parties, any and all Pledged Securities (other than any uncertificated securities, but only for so
long as such securities remain uncertificated) to the extent such Pledged Securities, in the case
of promissory notes or other instruments evidencing Indebtedness, are required to be delivered
pursuant to paragraph (b) of this Section 2.02.
(b) Each Grantor will cause any Indebtedness for borrowed money having an aggregate
principal amount in excess of $5,000,000 owed to such Grantor by any Person that is
evidenced by a duly executed promissory note to be pledged and delivered to the
Administrative Agent, for the benefit of the Secured Parties, pursuant to the terms hereof.
(c) Upon delivery to the Administrative Agent, (i) any Pledged Securities shall be
accompanied by stock powers duly executed in blank or other instruments of transfer
reasonably satisfactory to the Administrative Agent and by such other instruments and
documents as the Administrative Agent may reasonably request and (ii) all other property
comprising part of the Pledged Collateral shall be accompanied by proper instruments of
assignment duly executed by the applicable Grantor and such other instruments or documents
as the Administrative Agent may reasonably request. Each delivery of Pledged Securities
shall be accompanied by a schedule describing the securities, which schedule shall be
attached hereto as Schedule II and made a part hereof; provided that failure to attach any
such schedule hereto shall not affect the validity of such pledge of such
4
Pledged Securities. Each schedule so delivered shall supplement any prior schedules
so delivered.
SECTION 2.03. Representations, Warranties and Covenants. Each Grantor jointly and
severally represents, warrants and covenants, as to itself and the other Grantors, to and with the
Administrative Agent, for the benefit of the Secured Parties, that:
(a) As of the date hereof, Schedule II correctly sets forth the percentage of the
issued and outstanding units of each class of the Equity Interests of the issuer thereof
represented by the Pledged Equity and includes all Equity Interests, debt securities and
promissory notes required to be pledged hereunder in order to satisfy the Collateral and
Guarantee Requirement;
(b) the Pledged Equity and Pledged Debt (solely with respect to Pledged Debt issued by
a Person other than the Borrower or a Subsidiary of the Borrower, to the best of such
Grantor’s knowledge) have been duly and validly authorized and issued by the issuers
thereof and (i) in the case of Pledged Equity, are fully paid and nonassessable and (ii) in
the case of Pledged Debt (solely with respect to Pledged Debt issued by a Person other than
the Borrower or a Subsidiary of the Borrower, to the best of the such Grantor’s knowledge),
are legal, valid and binding obligations of the issuers thereof,
(c) except for the security interests granted hereunder, each of the Grantors (i) is
and, subject to any transfers made in compliance with the Credit Agreement, will continue
to be the direct owner, beneficially and of record, of the Pledged Securities indicated on
Schedule II as owned by such Grantors, (ii) holds the same free and clear of all Liens,
other than (A) Liens created by the Collateral Documents and (B) Liens expressly permitted
pursuant to Section 7.01 of the Credit Agreement, (iii) will make no assignment, pledge,
hypothecation or transfer of, or create or permit to exist any security interest in or
other Lien on, the Pledged Collateral, other than (A) Liens created by the Collateral
Documents and (B) Liens expressly permitted pursuant to Section 7.01 of the Credit
Agreement and (C) transfers made in compliance with the Credit Agreement, (iv) will defend
its title or interest thereto or therein against any and all Liens (other than the Liens
permitted pursuant to this Section 2.03(c)), however arising, of all Persons whomsoever;
(d) except for restrictions and limitations imposed by (i) the Loan Documents, (ii)
securities laws generally, (iii) customary provisions in joint venture agreements relating
to purchase options, rights of first refusal, tag, drag, call or similar rights of a third
party that owns Equity Interests in such joint venture or (iv) rules and regulations
promulgated by the Federal Communications Commission and other similar federal and state
laws, rules and regulations relating to the telecommunications industry and except (A) as
described in the Perfection Certificate, (B) as described in clauses (iv) through (xi) of
Section 7.09
5
of the Credit Agreement and (C) transactions otherwise permitted by Article VII of the
Credit Agreement, the Pledged Collateral is and will continue to be freely transferable and
assignable, and none of the Pledged Collateral is or will be subject to any option, right
of first refusal, shareholders agreement, charter or by-law provisions or contractual
restriction of any nature that might prohibit, impair, delay or otherwise affect in any
manner material and adverse to the Secured Parties the pledge of such Pledged Collateral
hereunder, the sale or disposition thereof pursuant hereto or the exercise by the
Administrative Agent of rights and remedies hereunder;
(e) each of the Grantors has the power and authority to pledge the Pledged Collateral
pledged by it hereunder in the manner hereby done or contemplated;
(f) by virtue of the execution and delivery by the Grantors of this Agreement, when
any Pledged Securities are delivered to the Administrative Agent in accordance with this
Agreement, the Administrative Agent will obtain a legal, valid and perfected lien upon and
security interest in such Pledged Securities as security for the payment and performance of
the Secured Obligations; and
(g) the pledge effected hereby is effective to vest in the Administrative Agent, for
the benefit of the Secured Parties, the rights of the Administrative Agent in the Pledged
Collateral as set forth herein.
SECTION 2.04. Certification of Limited Liability Company and Limited Partnership
Interests. No interest in any limited liability company or limited partnership controlled by
any Grantor that constitutes Pledged Equity shall be represented by a certificate unless (i) the
limited liability company agreement or partnership agreement expressly provides that such interests
shall be a “security” within the meaning of Article 8 of the UCC of the applicable jurisdiction,
and (ii) such certificate shall be delivered to the Administrative Agent in accordance with Section
2.02.
SECTION 2.05. Registration in Nominee Name; Denominations. If an Event of Default
shall occur and be continuing and the Administrative Agent shall give the Borrower notice of its
intent to exercise such rights, (a) the Administrative Agent, on behalf of the Secured Parties,
shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in its
own name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the
applicable Grantor, endorsed or assigned in blank or in favor of the Administrative Agent and each
Grantor will promptly give to the Administrative Agent copies of any notices or other
communications received by it with respect to Pledged Securities registered in the name of such
Grantor and (b) the Administrative Agent shall have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger denominations for any purpose
consistent with this Agreement.
6
SECTION 2.06. Voting Rights; Dividends and Interest. (a) Unless and until an Event
of Default shall have occurred and be continuing and the Administrative Agent shall have notified
the Borrower that the rights of the Grantors under this Section 2.06 are being suspended:
(i) Each Grantor shall be entitled to exercise any and all voting and/or other
consensual rights and powers inuring to an owner of Pledged Securities or any part
thereof for any purpose consistent with the terms of this Agreement, the Credit
Agreement and the other Loan Documents.
(ii) The Administrative Agent shall execute and deliver to each Grantor, or
cause to be executed and delivered to such Grantor, all such proxies, powers of
attorney and other instruments as such Grantor may reasonably request for the
purpose of enabling such Grantor to exercise the voting and/or consensual rights
and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Grantor shall be entitled to receive and retain any and all
dividends, interest, principal and other distributions paid on or distributed in
respect of the Pledged Securities to the extent and only to the extent that such
dividends, interest, principal and other distributions are permitted by, and
otherwise paid or distributed in accordance with, the terms and conditions of the
Credit Agreement, the other Loan Documents and applicable Laws; provided that any
noncash dividends, interest, principal or other distributions that would constitute
Pledged Equity or Pledged Debt, whether resulting from a subdivision, combination
or reclassification of the outstanding Equity Interests of the issuer of any
Pledged Securities or received in exchange for Pledged Securities or any part
thereof, or in redemption thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a party or
otherwise, shall be and become part of the Pledged Collateral, and, if received by
any Grantor, shall not be commingled by such Grantor with any of its other funds or
property but shall be held separate and apart therefrom, shall be held in trust for
the benefit of the Administrative Agent and the Secured Parties and shall be
forthwith delivered to the Administrative Agent in the same form as so received
(with any necessary endorsement reasonably requested by the Administrative Agent).
(b) Upon the occurrence and during the continuance of an Event of Default, after the
Administrative Agent shall have notified the Borrower of the suspension of the rights of
the Grantors under paragraph (a)(iii) of this Section 2.06, then all rights of any Grantor
to dividends, interest, principal or other distributions that such Grantor is authorized to
receive pursuant to paragraph (a)(iii) of this Section 2.06 shall cease, and all such
rights shall thereupon become vested in the Administrative Agent, which shall have the sole
and exclusive right
7
and authority to receive and retain such dividends, interest, principal or other
distributions. All dividends, interest, principal or other distributions received by any
Grantor contrary to the provisions of this Section 2.06 shall be held in trust for the
benefit of the Administrative Agent, shall be segregated from other property or funds of
such Grantor and shall be forthwith delivered to the Administrative Agent upon demand in
the same form as so received (with any necessary endorsement reasonably requested by the
Administrative Agent). Any and all money and other property paid over to or received by
the Administrative Agent pursuant to the provisions of this paragraph (b) shall be retained
by the Administrative Agent in an account to be established by the Administrative Agent
upon receipt of such money or other property and shall be applied in accordance with the
provisions of Section 4.02. After all Events of Default have been cured or waived, the
Administrative Agent shall promptly repay to each Grantor (without interest) all dividends,
interest, principal or other distributions that such Grantor would otherwise be permitted
to retain pursuant to the terms of paragraph (a)(iii) of this Section 2.06 and that remain
in such account.
(c) Upon the occurrence and during the continuance of an Event of Default, after the
Administrative Agent shall have notified the Borrower of the suspension of the rights of
the Grantors under paragraph (a)(i) of this Section 2.06, then all rights of any Grantor to
exercise the voting and consensual rights and powers it is entitled to exercise pursuant to
paragraph (a)(i) of this Section 2.06, and the obligations of the Administrative Agent
under paragraph (a)(ii) of this Section 2.06, shall cease, and all such rights shall
thereupon become vested in the Administrative Agent, which shall have the sole and
exclusive right and authority to exercise such voting and consensual rights and powers;
provided that, unless otherwise directed by the Required Lenders, the Administrative Agent
shall have the right from time to time following and during the continuance of an Event of
Default to permit the Grantors to exercise such rights. After all Events of Default have
been cured or waived, each Grantor shall have the exclusive right to exercise the voting
and/or consensual rights and powers that such Grantor would otherwise be entitled to
exercise pursuant to the terms of paragraph (a)(i) above.
(d) Any notice given by the Administrative Agent to the Borrower suspending the rights
of the Grantors under paragraph (a) of this Section 2.06 (i) shall be given in writing,
(ii) may be given with respect to one or more of the Grantors at the same or different
times and (iii) may suspend the rights of the Grantors under paragraph (a)(i) or paragraph
(a)(iii) in part without suspending all such rights (as specified by the Administrative
Agent in its sole and absolute discretion) and without waiving or otherwise affecting the
Administrative Agent’s rights to give additional notices from time to time suspending other
rights so long as an Event of Default has occurred and is continuing.
8
ARTICLE III
Security Interests in Personal Property
SECTION 3.01. Security Interest. (a) As security for the payment or performance, as
the case may be, in full of the Secured Obligations, including the Senior Guarantees, each Grantor
hereby assigns and pledges to the Administrative Agent, its successors and assigns, for the benefit
of the Secured Parties, and hereby grants to the Administrative Agent, its successors and assigns,
for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, all
right, title or interest in or to any and all of the following assets and properties now owned or
at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in
the future may acquire any right, title or interest (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all Equipment;
(v) all General Intangibles;
(vi) all Instruments;
(vii) all Inventory;
(viii) all Investment Property;
(ix) all Letter-of-Credit Rights;
(x) the Commercial Tort Claims described on Schedule III and on any supplement
thereto received by the Administrative Agent pursuant to Section 3.04(c);
(xi) all books and records pertaining to the Article 9 Collateral; and
(xii) to the extent not otherwise included, all Proceeds and products of any
and all of the foregoing and all collateral security and guarantees given by any
Person with respect to any of the foregoing;
provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not
constitute a grant of a security interest in (A) motor vehicles or other assets subject to
certificates of title, (B) deposit accounts or securities accounts, (C) Receivables Management
Assets owned by, or owing to, any Person (other than the Borrower or a
9
Restricted Subsidiary) or held in trust for the benefit of any such Person, and the Equity
Interests of Excluded Receivables Management Subsidiaries (D) any Excluded Equity, (E) any asset
with respect to which the Administrative Agent has confirmed in writing to the Borrower its
determination that the costs or other consequences (including adverse tax consequences) of
providing a security interest in is excessive in view of the benefits to be obtained by the
Lenders, (F) any General Intangible, Investment Property or other property or rights of a Grantor
arising under or evidenced by any contract, lease, instrument, license or other document if (but
only to the extent that) the grant of a security interest therein would (x) constitute a violation
of a valid and enforceable restriction in respect of such General Intangible, Investment Property
or other property or rights in favor of a third party or under any law, regulation, permit, order
or decree of any Governmental Authority, unless and until all required consents shall have been
obtained (for the avoidance of doubt, the restrictions described herein are not negative pledges or
similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give
any other party in respect of any such contract, lease, instrument, license or other document, the
right to terminate its obligations thereunder, provided, however, that the limitation set forth in
clause (F) above shall not affect, limit, restrict or impair the grant by a Grantor of a security
interest pursuant to this Agreement in any such Collateral to the extent that an otherwise
applicable prohibition or restriction on such grant is rendered ineffective by any applicable law,
including the UCC, (G) any license, permit, franchise, authorization, consent, registration or
other approval issued by the Federal Communications Commission (or any equivalent state agency)
(collectively, the “FCC Licenses”) held by any Grantor to the extent that any requirement of law
applicable thereto prohibits the creation of a Lien thereon, but only to the extent, and for so
long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed
ineffective by any applicable law, including the UCC or (H) Margin Stock unless the applicable
requirements of Regulations T, U and X of the Board of Governors of the Federal Reserve have been
satisfied.
(b) Each Grantor hereby irrevocably authorizes the Administrative Agent for the
benefit of the Secured Parties at any time and from time to time to file in any relevant
jurisdiction any initial financing statements (including fixture filings) with respect to
the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the
Collateral as all assets of such Grantor or words of similar effect as being of an equal or
lesser scope or with greater detail and (ii) contain the information required by Article 9
of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction
for the filing of any financing statement or amendment, including (A) whether such Grantor
is an organization, the type of organization and any organizational identification number
issued to such Grantor and (B) in the case of a financing statement filed as a fixture
filing, a sufficient description of the real property to which such Article 9 Collateral
relates. Each Grantor agrees to provide such information to the Administrative Agent
promptly upon request.
10
(c) The Security Interest is granted as security only and shall not subject the
Administrative Agent or any other Secured Party to, or in any way alter or modify, any
obligation or liability of any Grantor with respect to or arising out of the Article 9
Collateral.
SECTION 3.02. Representations and Warranties. Each Grantor jointly and severally
represents and warrants, as to itself and the other Grantors, to the Administrative Agent and the
Secured Parties that:
(a) Each Grantor has good and valid rights in and title to the Article 9 Collateral
with respect to which it has purported to grant a Security Interest hereunder and has full
power and authority to grant to the Administrative Agent the Security Interest in such
Article 9 Collateral pursuant hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement.
(b) The Perfection Certificate has been duly prepared, completed and executed and the
information set forth therein is correct and complete in all material respects (except the
information therein with respect to the exact legal name of each Grantor shall be correct
and complete in all respects) as of the Closing Date. The Uniform Commercial Code
financing statements (including fixture filings, as applicable) or other appropriate
filings, recordings or registrations prepared by the Administrative Agent based upon the
information provided to the Administrative Agent in the Perfection Certificate for filing
in each governmental, municipal or other office specified in Schedule 2 to the Perfection
Certificate (or specified by notice from the Borrower to the Administrative Agent after the
Closing Date in the case of filings, recordings or registrations required by Section 6.11
of the Credit Agreement), are all the filings, recordings and registrations that are
necessary to establish a legal, valid and perfected security interest in favor of the
Administrative Agent (for the benefit of the Secured Parties) in respect of all Article 9
Collateral in which the Security Interest may be perfected by filing, recording or
registration in the United States (or any political subdivision thereof) and its
territories and possessions, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary in any such jurisdiction, except
as provided under applicable law with respect to the filing of continuation statements.
(c) The Security Interest constitutes (i) a legal and valid security interest in all
the Article 9 Collateral securing the payment and performance of the Secured Obligations
and (ii) subject to the filings described in Section 3.02(b), a perfected security interest
in all Article 9 Collateral in which a security interest may be perfected by filing,
recording or registering a financing statement or analogous document in the United States
(or any political subdivision thereof) and its territories and possessions pursuant to the
Uniform Commercial Code. The Security Interest is and shall be prior to any other Lien on
any of the Article 9 Collateral, other than (i) any Lien that is expressly permitted
pursuant to Section
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7.01 of the Credit Agreement and has priority as a matter of law and (ii) Liens
expressly permitted pursuant to Section 7.01 of the Credit Agreement.
(d) The Article 9 Collateral is owned by the Grantors free and clear of any Lien,
except for Liens expressly permitted pursuant to Section 7.01 of the Credit Agreement.
None of the Grantors has filed or consented to the filing of (i) any financing statement or
analogous document under the Uniform Commercial Code or any other applicable laws covering
any Article 9 Collateral or (ii) any assignment in which any Grantor assigns any Article 9
Collateral or any security agreement or similar instrument covering any Article 9
Collateral with any foreign governmental, municipal or other office, which financing
statement or analogous document, assignment, security agreement or similar instrument is
still in effect, except, in each case, for Liens expressly permitted pursuant to Section
7.01 of the Credit Agreement.
(e) The only Commercial Tort Claims of any Grantor existing on the Closing Date in
excess of $5,000,000 are those listed on Schedule III which sets forth such information
separately for each Grantor.
SECTION 3.03. Covenants. (a) The Borrower agrees to notify the Administrative Agent
in writing promptly, but in any event within 10 Business Days, after any change (i) in the legal
name of any Grantor, (ii) in the identity or type of organization or corporate structure of any
Grantor or (iii) in the jurisdiction of organization of any Grantor.
(b) Each Grantor shall, at its own expense, take any and all commercially reasonable
actions necessary to defend title to the Article 9 Collateral against all Persons and to
defend the Security Interest of the Administrative Agent in the Article 9 Collateral and
the priority thereof against any Lien not expressly permitted pursuant to Section 7.01 of
the Credit Agreement; provided that, nothing in this Agreement shall prevent any Grantor
from discontinuing the operation or maintenance of any of its assets or properties if such
discontinuance is (x) determined by such Grantor to be desirable in the conduct of its
business and (y) permitted by the Credit Agreement.
(c) Each year, at the time of delivery of annual financial statements with respect to
the preceding fiscal year pursuant to Section 6.01 of the Credit Agreement, the Borrower
shall deliver to the Administrative Agent a certificate executed by the chief financial
officer and the chief legal officer of the Borrower setting forth the information required
pursuant to Schedules 1(a), 1(c), 1(e), 1(f) and 2(b) of the Perfection Certificate or
confirming that there has been no change in such information since the date of such
certificate or the date of the most recent certificate delivered pursuant to this Section
3.03(c).
(d) Each Grantor agrees, on its own behalf and on behalf of each other Grantor, at its
own expense, to execute, acknowledge, deliver and cause to be
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duly filed all such further instruments and documents and take all such actions as the
Administrative Agent may from time to time reasonably request to better assure, preserve,
protect and perfect the Security Interest and the rights and remedies created hereby,
including the payment of any fees and taxes required in connection with the execution and
delivery of this Agreement, the granting of the Security Interest and the filing of any
financing statements (including fixture filings) or other documents in connection herewith
or therewith. If any amount payable under or in connection with any of the Article 9
Collateral that is in excess of $5,000,000 shall be or become evidenced by any promissory
note or other instrument, such note or instrument shall be promptly pledged and delivered
to the Administrative Agent, for the benefit of the Secured Parties, duly endorsed in a
manner reasonably satisfactory to the Administrative Agent.
(e) At its option, the Administrative Agent may discharge past due taxes, assessments,
charges, fees, Liens, security interests or other encumbrances at any time levied or placed
on the Article 9 Collateral and not permitted pursuant to Section 7.01 of the Credit
Agreement, and may pay for the maintenance and preservation of the Article 9 Collateral to
the extent any Grantor fails to do so as required by the Credit Agreement or this Agreement
and within a reasonable period of time after the Administrative Agent has requested that it
do so, and each Grantor jointly and severally agrees to reimburse the Administrative Agent
within 10 days after demand for any payment made or any reasonable expense incurred by the
Administrative Agent pursuant to the foregoing authorization. Nothing in this paragraph
shall be interpreted as excusing any Grantor from the performance of, or imposing any
obligation on the Administrative Agent or any Secured Party to cure or perform, any
covenants or other promises of any Grantor with respect to taxes, assessments, charges,
fees, Liens, security interests or other encumbrances and maintenance as set forth herein
or in the other Loan Documents.
(f) If at any time any Grantor shall take a security interest in any property of an
Account Debtor or any other Person the value of which is in excess of $5,000,000 to secure
payment and performance of an Account, such Grantor shall promptly assign such security
interest to the Administrative Agent for the benefit of the Secured Parties. Such
assignment need not be filed of public record unless necessary to continue the perfected
status of the security interest against creditors of and transferees from the Account
Debtor or other Person granting the security interest.
(g) Each Grantor (rather than the Administrative Agent or any Secured Party) shall
remain liable (as between itself and any relevant counterparty) to observe and perform all
the conditions and obligations to be observed and performed by it under each contract,
agreement or instrument relating to the Article 9 Collateral, all in accordance with the
terms and conditions thereof, and each Grantor jointly and severally agrees to indemnify
and hold harmless the
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Administrative Agent and the Secured Parties from and against any and all liability
for such performance.
SECTION 3.04. Other Actions. In order to further insure the attachment, perfection
and priority of, and the ability of the Administrative Agent to enforce, the Security Interest,
each Grantor agrees, in each case at such Grantor’s own expense, to take the following actions with
respect to the following Article 9 Collateral:
(a) Instruments. If any Grantor shall at any time hold or acquire any Instruments
constituting Collateral and evidencing an amount in excess of $5,000,000, such Grantor
shall forthwith endorse, assign and deliver the same to the Administrative Agent for the
benefit of the Secured Parties, accompanied by such instruments of transfer or assignment
duly executed in blank as the Administrative Agent may from time to time reasonably
request.
(b) Investment Property. Except to the extent otherwise provided in Article II, if
any Grantor shall at any time hold or acquire any certificated securities that constitute
Collateral, such Grantor shall forthwith endorse, assign and deliver the same to the
Administrative Agent for the benefit of the Secured Parties, accompanied by such
instruments of transfer or assignment duly executed in blank as the Administrative Agent
may from time to time reasonably request.
(c) Commercial Tort Claims. If any Grantor shall at any time commence a suit, action
or proceeding with respect to any Commercial Tort Claim held by it with a value which such
Grantor reasonably believes to be of $5,000,000 or more, such Grantor shall notify the
Administrative Agent thereof concurrently with the delivery of the Compliance Certificate
by the Company in a writing signed by such Grantor and describing the details thereof and
shall grant to the Administrative Agent for the benefit of the Secured Parties in such
writing a security interest therein and in the proceeds thereof, all upon the terms of this
Agreement, with such writing to be in form and substance reasonably satisfactory to the
Administrative Agent.
ARTICLE IV
Remedies
SECTION 4.01. Remedies Upon Default. Upon the occurrence and during the continuance
of an Event of Default, it is agreed that the Administrative Agent shall have the right to exercise
any and all rights afforded to a secured party with respect to the Secured Obligations under the
Uniform Commercial Code or other applicable law and also may (i) require each Grantor to, and each
Grantor agrees that it will at its expense and upon request of the Administrative Agent forthwith,
assemble all or part of the Collateral as directed by the Administrative Agent and make it
available to the Administrative Agent at a place and time to be designated by the Administrative
Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the
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extent lawful and permitted, leased by any of the Grantors where the Collateral or any part
thereof is assembled or located for a reasonable period in order to effectuate its rights and
remedies hereunder or under law, without obligation to such Grantor in respect of such occupation;
provided that the Administrative Agent shall provide the applicable Grantor with notice thereof
prior to or promptly after such occupancy; (iii) exercise any and all rights and remedies of any of
the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral;
provided that the Administrative Agent shall provide the applicable Grantor with notice thereof
prior to or promptly after such exercise; and (iv) subject to the mandatory requirements of
applicable law and the notice requirements described below, sell or otherwise dispose of all or any
part of the Collateral securing the Secured Obligations at a public or private sale or at any
broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the
Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized at any
such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or
purchasers to Persons who will represent and agree that they are purchasing the Collateral for
their own account for investment and not with a view to the distribution or sale thereof, and upon
consummation of any such sale the Administrative Agent shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any
sale of Collateral shall hold the property sold absolutely, free from any claim or right on the
part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of
redemption, stay and appraisal which such Grantor now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted.
The Administrative Agent shall give the applicable Grantors 10 days’ written notice (which
each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or
its equivalent in other jurisdictions) of the Administrative Agent’s intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and place for such
sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the
board or exchange at which such sale is to be made and the day on which the Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such public sale shall be
held at such time or times within ordinary business hours and at such place or places as the
Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the
Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Administrative Agent may (in its sole and absolute discretion) determine. The
Administrative Agent shall not be obligated to make any sale of any Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of such Collateral shall have
been given. The Administrative Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement at the time and
place fixed for sale, and such sale may, without further notice, be made at the time and place to
which the same was so adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent
until the sale price is paid by the purchaser or purchasers thereof, but the Administrative Agent
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shall not incur any liability in case any such purchaser or purchasers shall fail to take up
and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold
again upon like notice. At any public (or, to the extent permitted by law, private) sale made
pursuant to this Agreement, any Secured Party may bid for or purchase, free (to the extent
permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any
Grantor (all said rights being also hereby waived and released to the extent permitted by law), the
Collateral or any part thereof offered for sale and may make payment on account thereof by using
any claim then due and payable to such Secured Party from any Grantor as a credit against the
purchase price, and such Secured Party may, upon compliance with the terms of sale, hold, retain
and dispose of such property without further accountability to any Grantor therefor. For purposes
hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a
sale thereof; the Administrative Agent shall be free to carry out such sale pursuant to such
agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof
subject thereto, notwithstanding the fact that after the Administrative Agent shall have entered
into such an agreement all Events of Default shall have been remedied and the Secured Obligations
paid in full. As an alternative to exercising the power of sale herein conferred upon it, the
Administrative Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement
and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
Any sale pursuant to the provisions of this Section 4.01 shall be deemed to conform to the
commercially reasonable standards as provided in Section 9-610(b) of the New York UCC or its
equivalent in other jurisdictions.
Each Grantor irrevocably makes, constitutes and appoints the Administrative Agent (and all
officers, employees or agents designated by the Administrative Agent) as such Grantor’s true and
lawful agent (and attorney-in-fact) during the continuance of an Event of Default and after notice
to the Borrower of its intent to exercise such rights, for the purpose of (i) making, settling and
adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name
of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such
policies if insurance, (ii) making all determinations and decisions with respect thereto and (iii)
obtaining or maintaining the policies of insurance required by Section 6.07 of the Credit Agreement
or to pay any premium in whole or in part relating thereto. All sums disbursed by the
Administrative Agent in connection with this paragraph, including reasonable attorneys’ fees, court
costs, expenses and other charges relating thereto, shall be payable, within 10 days of demand, by
the Grantors to the Administrative Agent and shall be additional Secured Obligations secured
hereby.
SECTION 4.02. Application of Proceeds. The Administrative Agent shall apply the
proceeds of any collection or sale of Collateral, including any Collateral consisting of cash in
accordance with Section 8.04 of the Credit Agreement.
The Administrative Agent shall have absolute discretion as to the time of application of any
such proceeds, moneys or balances in accordance with this Agreement.
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Upon any sale of Collateral by the Administrative Agent (including pursuant to a power of sale
granted by statute or under a judicial proceeding), the receipt of the Administrative Agent or of
the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Administrative Agent or such officer
or be answerable in any way for the misapplication thereof.
ARTICLE V
Indemnity, Subrogation and Subordination
SECTION 5.01. Indemnity. In addition to all rights of indemnity and subrogation as
the Grantors may have under applicable law (but subject to Section 5.03), the Borrower agrees that,
in the event any assets of any Grantor (other than the Borrower) shall be sold pursuant to this
Agreement or any other Collateral Document to satisfy in whole or in part an Obligation owed to any
Secured Party, the Borrower shall indemnify such Grantor in an amount equal to the greater of the
book value or the fair market value of the assets so sold.
SECTION 5.02. Contribution and Subrogation. Each Subsidiary Party (a “Contributing
Party”) agrees (subject to Section 5.03) that, in the event assets of any other Subsidiary Party
shall be sold pursuant to any Collateral Document to satisfy any Secured Obligation owed to any
Secured Party and such other Subsidiary Party (the “Claiming Party”) shall not have been fully
indemnified by the Borrower as provided in Section 5.01, the Contributing Party shall indemnify the
Claiming Party in an amount equal to the greater of the book value or the fair market value of such
assets, in each case multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Party on the date hereof and the denominator shall be the aggregate net worth of all
the Contributing Parties together with the net worth of the Claiming Party on the date hereof (or,
in the case of any Grantor becoming a party hereto pursuant to Section 6.14, the date of the
Security Agreement Supplement hereto executed and delivered by such Grantor). Any Contributing
Party making any payment to a Claiming Party pursuant to this Section 5.02 shall be subrogated to
the rights of such Claiming Party to the extent of such payment.
SECTION 5.03. Subordination. (a) Notwithstanding any provision of this Agreement to
the contrary, all rights of the Grantors under Sections 5.01 and 5.02 and all other rights of
indemnity, contribution or subrogation under applicable law or otherwise shall be fully
subordinated to the indefeasible payment in full in cash of the Secured Obligations. No failure on
the part of the Borrower or any Grantor to make the payments required by Sections 5.01 and 5.02 (or
any other payments required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of any Grantor with respect to its obligations hereunder, and each
Grantor shall remain liable for the full amount of the obligations of such Grantor hereunder.
17
(b) Each Grantor hereby agrees that upon the occurrence and during the continuance of
an Event of Default and after notice from the Administrative Agent (which notice states
that it is delivered pursuant to this Section 5.03(b)), all Indebtedness owed by it to any
Subsidiary that is not a Loan Party shall be fully subordinated to the indefeasible payment
in full in cash of the Secured Obligations.
ARTICLE VI
Miscellaneous
SECTION 6.01. Notices. All communications and notices hereunder shall (except as
otherwise expressly permitted herein) be in writing and given as provided in Section 10.02 of the
Credit Agreement. All communications and notices hereunder to any Grantor shall be given to it in
care of the Borrower as provided in Section 10.02 of the Credit Agreement.
SECTION 6.02. Waivers, Amendment. (a) No failure or delay by the Administrative
Agent, any L/C Issuer or any Lender in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent, the L/C Issuers and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Grantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 6.02, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. Without limiting the generality
of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any L/C
Issuer may have had notice or knowledge of such Default at the time. No notice or demand on any
Grantor in any case shall entitle any Grantor to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the Administrative
Agent and the Grantor or Grantors with respect to which such waiver, amendment or
modification is to apply, subject to any consent required in accordance with Section 10.01
of the Credit Agreement.
SECTION 6.03. Administrative Agent’s Fees and Expenses; Indemnification. (a) The
parties hereto agree that the Administrative Agent shall be entitled to reimbursement of its
reasonable out-of-pocket expenses incurred hereunder as provided in Section 10.04 of the Credit
Agreement.
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(b) Without limitation of its indemnification obligations under the other Loan
Documents, each Grantor agrees to indemnify and hold harmless the Administrative Agent and
the other Indemnitees (as defined in Section 10.05 of the Credit Agreement) from and
against any and all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of
any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted
against any such Indemnitee in any way relating to or arising out of or in connection with
the execution, delivery or performance of this Agreement or any claim, litigation,
investigation or proceeding relating to any of the foregoing agreements or instruments
contemplated hereby, or to the Collateral, whether or not any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses or disbursements resulted from the gross
negligence, bad faith or willful misconduct of, or the breach of this Agreement by, such
Indemnitee or of any affiliate, director, officer, employee, counsel, agent or
attorney-in-fact of such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be additional Secured
Obligations secured hereby and by the other Collateral Documents. The provisions of this
Section 6.03 shall remain operative and in full force and effect regardless of the
termination of this Agreement or any other Loan Document, the consummation of the
transactions contemplated hereby, the repayment of any of the Secured Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent or any
other Secured Party. All amounts due under this Section 6.03 shall be payable within 10
days of written demand therefor.
SECTION 6.04. Successors and Assigns. Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and
assigns of such party; and all covenants, promises and agreements by or on behalf of any Grantor or
the Administrative Agent that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns.
SECTION 6.05. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Grantors hereunder and in the other Loan Documents and in the certificates
or other instruments prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders and shall survive
the execution and delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any Lender or on its behalf and
notwithstanding that the Administrative Agent, any L/C Issuer or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any credit is extended
under the Credit Agreement, and shall continue in full force
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and effect as long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under any Loan Document (other than (x) obligations under Secured Hedge
Agreements not yet due and payable, (y) Cash Management Obligations and (z) contingent
indemnification obligations) is outstanding and unpaid or any Letter of Credit is outstanding
(unless cash collateral or other credit support satisfactory to the L/C Issuer thereof in its sole
discretion has been provided) and so long as the Commitments have not expired or terminated.
SECTION 6.06. Counterparts; Effectiveness; Several Agreement. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery by telecopier of an executed
counterpart of a signature page to this Agreement shall be effective as delivery of an original
executed counterpart of this Agreement. This Agreement shall become effective as to any Grantor
when a counterpart hereof executed on behalf of such Grantor shall have been delivered to the
Administrative Agent and a counterpart hereof shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon such Grantor and the Administrative
Agent and their respective permitted successors and assigns, and shall inure to the benefit of such
Grantor, the Administrative Agent and the other Secured Parties and their respective successors and
assigns, except that no Grantor shall have the right to assign or transfer its rights or
obligations hereunder or any interest herein or in the Collateral (and any such assignment or
transfer shall be void) except as expressly contemplated by this Agreement or the Credit Agreement.
This Agreement shall be construed as a separate agreement with respect to each Grantor and may be
amended, modified, supplemented, waived or released with respect to any Grantor without the
approval of any other Grantor and without affecting the obligations of any other Grantor hereunder.
SECTION 6.07. Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of
this Agreement shall not be affected or impaired thereby. The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 6.08. Right of Set-Off. In addition to any rights and remedies of the Lenders
provided by Law, upon the occurrence and during the continuance of any Event of Default, each
Lender and its Affiliates is authorized at any time and from time to time, without prior notice to
any Grantor, any such notice being waived by each Grantor to the fullest extent permitted by
applicable Law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other Indebtedness at any time owing by, such Lender
and its Affiliates to or for the credit or the account of the respective Grantors against any and
all obligations owing to such Lender and its Affiliates hereunder, now or hereafter existing,
irrespective of whether or not such Lender or Affiliate shall have made demand under this Agreement
20
and although such obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to
notify the applicable Grantor and the Administrative Agent after any such set off and application
made by such Lender; provided, that the failure to give such notice shall not affect the validity
of such setoff and application. The rights of each Lender under this Section 6.08 are in addition
to other rights and remedies (including other rights of setoff) that such Lender may have.
SECTION 6.09. GOVERNING LAW. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇ SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH
STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH GRANTOR CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
GRANTOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT
OR OTHER DOCUMENT RELATED THERETO.
SECTION 6.10. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 6.10 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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SECTION 6.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and are not to affect
the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 6.12. Security Interest Absolute. All rights of the Administrative Agent
hereunder, the Security Interest, the grant of a security interest in the Pledged Collateral and
all obligations of each Grantor hereunder shall be absolute and unconditional irrespective of (a)
any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any
agreement with respect to any of the Secured Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or
any consent to any departure from the Credit Agreement, any other Loan Document or any other
agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other
collateral, or any release or amendment or waiver of or consent under or departure from any
guarantee, securing or guaranteeing all or any of the Secured Obligations or (d) any other
circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor
in respect of the Secured Obligations or this Agreement.
SECTION 6.13. Termination or Release. (a) This Agreement, the Security Interest and
all other security interests granted hereby shall terminate with respect to all Secured Obligations
when all the outstanding Secured Obligations under the Loan Documents (other than (x) obligations
under Secured Hedge Agreements not yet due and payable, (y) Cash Management Obligations and (z)
contingent indemnification obligations) have been paid in full and the Lenders have no further
commitment to lend under the Credit Agreement, the L/C Obligations have been reduced to zero
(unless cash collateral or other credit support satisfactory to the L/C Issuer thereof in its sole
discretion has been provided) and the L/C Issuers have no further obligations to issue Letters of
Credit under the Credit Agreement.
(b) A Subsidiary Party shall automatically be released from its obligations hereunder
and the Security Interest in the Collateral of such Subsidiary Party shall be automatically
released upon the consummation of any transaction permitted by the Credit Agreement as a
result of which such Subsidiary Party ceases to be a Subsidiary of the Borrower or becomes
an Excluded Subsidiary; provided that the Required Lenders shall have consented to such
transaction (to the extent required by the Credit Agreement) and the terms of such consent
did not provide otherwise.
(c) Upon any sale or other transfer by any Grantor of any Collateral that is permitted
under the Credit Agreement, or upon the effectiveness of any written consent to the release
of the security interest granted hereby in any Collateral pursuant to Section 10.01 of the
Credit Agreement, the security interest in such Collateral shall be automatically released.
22
(d) In connection with any termination or release pursuant to paragraph (a), (b) or
(c), the Administrative Agent shall execute and deliver to any Grantor, at such Grantor’s
expense, all documents that such Grantor shall reasonably request to evidence such
termination or release and shall perform such other actions reasonably requested by such
Grantor to effect such release, including delivery of certificates, securities and
instruments. Any execution and delivery of documents pursuant to this Section 6.13 shall
be without recourse to or warranty by the Administrative Agent.
SECTION 6.14. Additional Grantors. Pursuant to Section 6.11 of the Credit Agreement,
Holdings and certain Restricted Subsidiaries that (i) are not Excluded Subsidiaries and (ii) were
not in existence or not Restricted Subsidiaries on the date of the Credit Agreement are required to
enter in this Agreement as Grantors upon the occurrence of a Holdings Election Event or becoming a
Restricted Subsidiary that is not an Excluded Subsidiary, as applicable. Upon execution and
delivery by the Administrative Agent and Holdings or a Restricted Subsidiary, as applicable, of a
Security Agreement Supplement, Holdings or such Restricted Subsidiary shall become a Grantor
hereunder with the same force and effect as if originally named as a Grantor herein. The execution
and delivery of any such instrument shall not require the consent of any other Grantor hereunder.
The rights and obligations of each Grantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Grantor as a party to this Agreement.
SECTION 6.15. Administrative Agent Appointed Attorney-in-Fact. Each Grantor hereby
appoints the Administrative Agent the attorney-in-fact of such Grantor for the purpose of carrying
out the provisions of this Agreement and taking any action and executing any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes hereof at any time
after and during the continuance of an Event of Default, which appointment is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing, the Administrative
Agent shall have the right, upon the occurrence and during the continuance of an Event of Default
and notice by the Administrative Agent to the Borrower of its intent to exercise such rights, with
full power of substitution either in the Administrative Agent’s name or in the name of such Grantor
(a) to receive, endorse, assign and/or deliver any and all notes, acceptances, checks, drafts,
money orders or other evidences of payment relating to the Collateral or any part thereof; (b) to
demand, collect, receive payment of, give receipt for and give discharges and releases of all or
any of the Collateral; (c) to sign the name of any Grantor on any invoice or ▇▇▇▇ of lading
relating to any of the Collateral; (d) to send verifications of Accounts Receivable to any Account
Debtor; (e) to commence and prosecute any and all suits, actions or proceedings at law or in equity
in any court of competent jurisdiction to collect or otherwise realize on all or any of the
Collateral or to enforce any rights in respect of any Collateral; (f) to settle, compromise,
compound, adjust or defend any actions, suits or proceedings relating to all or any of the
Collateral; (g) to notify, or to require any Grantor to notify, Account Debtors to make payment
directly to the Administrative Agent; and (h) to use, sell, assign, transfer, pledge, make any
agreement
23
with respect to or otherwise deal with all or any of the Collateral, and to do all other acts
and things necessary to carry out the purposes of this Agreement, as fully and completely as though
the Administrative Agent were the absolute owner of the Collateral for all purposes; provided that
nothing herein contained shall be construed as requiring or obligating the Administrative Agent to
make any commitment or to make any inquiry as to the nature or sufficiency of any payment received
by the Administrative Agent, or to present or file any claim or notice, or to take any action with
respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof
or any property covered thereby. The Administrative Agent and the other Secured Parties shall be
accountable only for amounts actually received as a result of the exercise of the powers granted to
them herein, and neither they nor their officers, directors, employees or agents shall be
responsible to any Grantor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct or that of any of their Affiliates, directors, officers,
employees, counsel, agents or attorneys-in-fact.
SECTION 6.16. General Authority of the Administrative Agent. By acceptance of the
benefits of this Agreement and any other Collateral Documents, each Secured Party (whether or not a
signatory hereto) shall be deemed irrevocably (a) to consent to the appointment of the
Administrative Agent as its agent hereunder and under such other Collateral Documents, (b) to
confirm that the Administrative Agent shall have the authority to act as the exclusive agent of
such Secured Party for the enforcement of any provisions of this Agreement and such other
Collateral Documents against any Grantor, the exercise of remedies hereunder or thereunder and the
giving or withholding of any consent or approval hereunder or thereunder relating to any Collateral
or any Grantor’s obligations with respect thereto, (c) to agree that it shall not take any action
to enforce any provisions of this Agreement or any other Collateral Document against any Grantor,
to exercise any remedy hereunder or thereunder or to give any consents or approvals hereunder or
thereunder except as expressly provided in this Agreement or any other Collateral Document and (d)
to agree to be bound by the terms of this Agreement and any other Collateral Documents.
SECTION 6.17. FCC Licenses. Each Grantor agrees that, upon the occurrence and during
the continuance of an Event of Default and at the Administrative Agent request, such Grantor will
promptly file, or cause to be filed, such applications for approval with the Federal Communications
Commission (or any equivalent state agency) and shall take such other actions reasonably requested
by the Administrative Agent to obtain such approvals and consents as are necessary for the
assignment or transfer of control of the FCC Licenses.
24
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.
| WEST CORPORATION | ||||||
| COSMOSIS CORPORATION | ||||||
| INPULSE RESPONSE GROUP, INC. | ||||||
| INTERCALL, INC. | ||||||
| INTRADO COMMUNICATIONS INC. | ||||||
| INTRADO COMMUNICATIONS OF VIRGINIA INC. | ||||||
| INTRADO INC. | ||||||
| NORTHERN CONTACT, INC. | ||||||
| WEST ASSET MANAGEMENT, INC. | ||||||
| WEST DIRECT, INC. | ||||||
| WEST FACILITIES CORPORATION | ||||||
| WEST INTERACTIVE CORPORATION | ||||||
| WEST INTERNATIONAL CORPORATION | ||||||
| WEST RECEIVABLE SERVICES, INC. | ||||||
| WEST TELEMARKETING CORPORATION II | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Chief Financial Officer and Treasurer | ||||||
| ASSET DIRECT MORTGAGE, LLC | ||||||
| BUYDEBTCO, LLC | ||||||
| INTRADO INTERNATIONAL, LLC | ||||||
| STARGATE MANAGEMENT LLC | ||||||
| THE DEBT DEPOT, LLC | ||||||
| WEST ASSET PURCHASING, LLC | ||||||
| WEST TRANSACTION SERVICES II, LLC | ||||||
| WEST TRANSACTION SERVICES, LLC | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Manager | ||||||
| ATTENTION FUNDING CORPORATION | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Treasurer | ||||||
| INTERCALL TELECOM VENTURES, LLC | ||||||
| By INTERCALL, INC. | ||||||
| Its sole member | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Chief Financial Officer and Treasurer | ||||||
| WEST BUSINESS SERVICES, LP | ||||||
| WEST TELEMARKETING, LP | ||||||
| By WEST TRANSACTION SERVICES, LLC | ||||||
| Their general partner | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Manager | ||||||
| ▇▇▇▇▇▇ COMMERCIAL PAPER INC., | ||||||
| as Administrative Agent | ||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇▇▇▇▇ | ||||||
| Title: Managing Director | ||||||