EXHIBIT 10.21
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of January 22, 2004
(this "Second Amendment"), is entered into by and among WEST CORPORATION, a
Delaware corporation (the "Borrower"), certain Domestic Subsidiaries of the
Borrower as Guarantors (the "Guarantors" and together with the Borrower, the
"Credit Parties"), the Required Lenders identified on the signature pages hereto
and WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders
(the "Administrative Agent").
W I T N E S S E T H
WHEREAS, the Borrower, the Guarantors, the Administrative Agent and the
Lenders are parties to that certain Credit Agreement dated as of May 9, 2003 (as
previously amended and modified and as further amended, modified, supplemented
or restated from time to time, the "Credit Agreement"; capitalized terms used
herein shall have the meanings ascribed thereto in the Credit Agreement unless
otherwise defined herein);
WHEREAS, the Borrower has requested certain amendments to the Credit
Agreement, including a $125 million increase to the Aggregate Revolving
Committed Amount; and
WHEREAS, the Required Lenders have agreed to the amendments requested
by the Borrower, subject to the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
AMENDMENTS
1.1 New Definition. Section 1.1 of the Credit Agreement is hereby
amended by the addition of the following definition thereto in the appropriate
alphabetical order:
"Second Amendment Effective Date" shall mean January 22, 2004.
1.2 Consolidated EBITDA. The definition of "Consolidated EBITDA"
set forth in Section 1.1 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
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"Consolidated EBITDA" shall mean, as of any date for the four
fiscal quarter period ending on such date with respect to the
Consolidated Group on a consolidated basis, the sum of (a) Consolidated
Net Income, plus (b) an amount which, in the determination of
Consolidated Net Income, has been deducted for (i) Consolidated
Interest Expense, (ii) total federal, state, local and foreign income,
value added and similar taxes, (iii) depreciation and amortization
expense, all as determined in accordance with GAAP and (iv) non-cash
charges relating to equity and other performance-related compensation,
including stock options; provided that Consolidated EBITDA shall
include add-backs relating to the Acquisition made prior to the Second
Amendment Effective Date, as calculated by the Administrative Agent.
Notwithstanding the above, Consolidated EBITDA shall be (A) $70,952,000
for the fiscal quarter ending ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) $65,803,000 for the
fiscal quarter ending June 30, 2003 and (C) $67,108,000 for the fiscal
quarter ending September 30, 2003.
1.3 Permitted Acquisition. The definition of "Permitted
Acquisition" set forth in Section 1.1 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"Permitted Acquisition" shall mean an acquisition or any
series of related acquisitions by a Credit Party of the assets or all
of the Capital Stock of a Person or any division, line of business or
other business unit of a Person (such Person or such division, line of
business or other business unit of such Person referred to herein as
the "Target"), in each case that is in the same line of business (or
assets used in the same line of business) as the Credit Parties and
their Subsidiaries or whereby a substantial portion of the acquired
business relies upon automated transactions, telephone representatives
or telephony technology, so long as (a) no Default or Event of Default
shall then exist or would exist after giving effect thereto; (b) the
Credit Parties shall demonstrate to the reasonable satisfaction of the
Administrative Agent that the Credit Parties will be in compliance on a
pro forma basis with all of the terms and provisions of the financial
covenants set forth in Section 5.9; (c) the Administrative Agent, on
behalf of the Lenders, shall have received (or shall receive in
connection with the closing of such acquisition) a first priority
perfected security interest in all of the Capital Stock acquired with
respect to the Target and the Target, if a Person, shall have executed
a Joinder Agreement in accordance with the terms of Section 5.10; (d)
such acquisition is not a "hostile" public company acquisition and has
been approved by the Board of Directors and/or shareholders of the
applicable Credit Party and the public company Target; (e) after giving
effect to such acquisition, the sum of (i) the unused availability
under the Aggregate Revolving Committed Amount plus (ii) the Cash and
Cash Equivalents held by the Credit Parties plus (iii) the unused
borrowing availability under any securitization facility of the Credit
Parties is greater than or equal to $10,000,000; and (f) with respect
to any acquisition where the total consideration shall be (i) greater
than $50,000,000 and less than or equal to $100,000,000, the Borrower
shall have delivered to the Administrative Agent and each of the
Lenders not more than thirty (30) days after the consummation of such
acquisition a reasonably detailed description of the material terms
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of such acquisition (including, without limitation, the purchase price
and method and structure of payment) and of each Target and (ii)
greater than $100,000,000, the Borrower shall have delivered to the
Administrative Agent and each of the Lenders not less than ten (10)
Business Days prior to the consummation of such acquisition (A) a
reasonably detailed description of the material terms of such
acquisition (including, without limitation, the purchase price and
method and structure of payment) and of each Target, (B) audited
financial statements of the Target, or company-prepared financial
statements that have been certified by the Target, for the Target's two
(2) most recent fiscal years and unaudited fiscal year-to-date
statements for the most recent interim periods, which financial
statements shall be consistent with any financial statements filed with
the Securities and Exchange Commission in connection with such
acquisition and (C) a certificate, in form and substance reasonably
satisfactory to the Administrative Agent, executed by a Responsible
Officer of the Borrower (1) certifying that such Permitted Acquisition
complies with the requirements of this Credit Agreement and (2)
demonstrating compliance with subsections (b) and (e) of this
definition; provided, however, that an acquisition of a Target that is
not incorporated, formed or organized in the United States (a "Foreign
Target") shall only qualify as a Permitted Acquisition if each of the
other requirements set forth in this definition shall have been
satisfied and the total consideration for all such Foreign Targets does
not exceed $50,000,000 in the aggregate during the term of this Credit
Agreement.
1.4 Permitted Investments. The definition of "Permitted
Investments" set forth in Section 1.1 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"Permitted Investments" shall mean:
(i) cash and Cash Equivalents;
(ii) receivables owing to the Borrower or any of its
Subsidiaries or any receivables and advances to suppliers, in each case
if created, acquired or made in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(iii) investments in and loans to any Credit Parties;
(iv) investments in and loans to domestic subsidiaries of the
Borrower that are not Guarantors solely for the purpose of purchasing
third party debt obligations; provided that the aggregate amount of
investments and loans made pursuant to this clause (iv), together with
the aggregate amount of Indebtedness incurred pursuant to Section
6.1(d)(iii), shall not exceed $50,000,000 at any time outstanding;
(v) investments in and loans to subsidiaries of the Borrower
that are not Guarantors (other than investments and loans pursuant to
clause (iv) above); provided
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that the aggregate amount of such investments and loans, together with
the aggregate amount of Indebtedness incurred pursuant to Section
6.1(d)(iv), shall not exceed $25,000,000 at any time outstanding;
(vi) loans and advances to employees (other than any officer
or director) of the Borrower or its Subsidiaries in an aggregate amount
not to exceed $1,000,000 at any time outstanding;
(vii) investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business;
(viii) investments, acquisitions or transactions permitted
under Section 6.4(b);
(ix) the Borrower may enter into Hedging Agreements to the
extent permitted pursuant to Section 6.1; and
(x) Permitted Acquisitions.
As used herein, "investment" shall mean all investments, in cash or by
delivery of property made, directly or indirectly in, to or from any
Person, whether by acquisition of shares of Capital Stock, property,
assets, indebtedness or other obligations or securities or by loan
advance, capital contribution or otherwise.
1.5 Permitted Liens. The definition of "Permitted Liens" set forth
in Section 1.1 of the Credit Agreement is hereby amended by the addition of the
following clause (xiii) and the redesignation of the existing clause (xiii) as
clause "(xiv)":
(xiii) Liens arising in connection with accounts receivable
securitizations; and
1.6 Aggregate Revolving Committed Amount. Section 2.1 of the
Credit Agreement is hereby amended by deleting the figure "ONE HUNDRED
TWENTY-FIVE MILLION DOLLARS ($125,000,000)" and inserting the figure "TWO
HUNDRED FIFTY MILLION DOLLARS ($250,000,000)" in substitution thereof.
1.7 Equity Issuances. Section 2.7(b)(iii) of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
(iii) Equity Issuances. The Borrower shall prepay the Loans in
an aggregate amount equal to twenty-five percent (25%) of the Net Cash
Proceeds of any Equity Issuance (any such prepayment to be applied as
set forth in clause (iv) below); provided, however, that the following
shall not be subject to such mandatory prepayment requirements: (A)
Equity Issuances constituting stock option exercises; (B) Equity
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Issuances consummated in connection with employee stock plans; (C)
Equity Issuances consummated in connection with Permitted Acquisitions;
and (D) Equity Issuances consummated in connection with restricted
Capital Stock issued by the Borrower in substitution for
performance-based earnout payments due in connection with Permitted
Acquisitions or acquisitions consummated prior to the date hereof.
1.8 Indebtedness. Section 6.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
Section 6.1 Indebtedness.
The Borrower will not, nor will it permit any Subsidiary to,
contract, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness arising or existing under this
Credit Agreement and the other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries
existing as of the Closing Date as referenced in the financial
statements referenced in Section 3.1 (and set out more
specifically in Schedule 6.1(b)) hereto and renewals,
refinancings or extensions thereof in a principal amount not
in excess of that outstanding as of the date of such renewal,
refinancing or extension;
(c) Indebtedness of the Borrower and its Subsidiaries
incurred after the Closing Date consisting of Capital Leases
or Indebtedness incurred to provide all or a portion of the
purchase price or cost of construction of an asset provided
that (i) such Indebtedness when incurred shall not exceed the
purchase price or cost of construction of such asset; (ii) no
such Indebtedness shall be refinanced for a principal amount
in excess of the principal balance outstanding thereon at the
time of such refinancing; and (iii) the total principal amount
of all such Indebtedness shall not exceed $25,000,000 at any
time outstanding;
(d) Unsecured intercompany Indebtedness (i) among the
Credit Parties, (ii) among Foreign Subsidiaries, (iii) owing
from domestic subsidiaries of the Borrower that are not
Guarantors to Credit Parties, which Indebtedness is solely for
the purpose of purchasing third party debt obligations;
provided that the aggregate principal amount of Indebtedness
incurred pursuant to this clause (iii), together with the
aggregate amount of investments and loans made pursuant to
clause (iv) of the definition of Permitted Investments, shall
not exceed $50,000,000 at any time outstanding, and (iv) owing
from subsidiaries of the Borrower that are not Guarantors to
Credit Parties (other than Indebtedness incurred pursuant to
clause (iii) above); provided that the aggregate principal
amount of Indebtedness incurred pursuant to this clause (iv),
together with the aggregate amount of investments and loans
made pursuant to clause (v) of the
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definition of Permitted Investments, shall not exceed
$25,000,000 at any time outstanding;
(e) Secured intercompany Indebtedness among the
Borrower and its Subsidiaries in a principal amount not to
exceed $25,000,000 in the aggregate at any time outstanding;
provided that, to the extent a Credit Party and a Subsidiary
that is not a Credit Party are parties to such intercompany
Indebtedness arrangement, such Credit Party shall be the
secured party;
(f) Indebtedness and obligations owing under Hedging
Agreements relating to the Loans hereunder and other Hedging
Agreements entered into in order to manage existing or
anticipated interest rate, exchange rate or commodity price
risks and not for speculative purposes;
(g) Indebtedness and obligations of Credit Parties
owing under documentary letters of credit for the purchase of
goods or other merchandise (but not under standby, direct pay
or other letters of credit except for the Letters of Credit
hereunder) generally in an aggregate principal amount not to
exceed $25,000,000 at any time outstanding;
(h) Guaranty Obligations in respect of Indebtedness
of a Credit Party to the extent such Indebtedness is permitted
to exist or be incurred pursuant to this Section 6.1;
(i) Indebtedness of the Borrower and its Subsidiaries
arising under any Synthetic Leases (other than Indebtedness
under the Operative Agreements set out on Schedule 6.1(b))
that is pari passu with or subordinated to the Credit Party
Obligations in a principal amount not to exceed $25,000,000 in
the aggregate at any time outstanding;
(j) Indebtedness of the Borrower and its Subsidiaries
consisting of unsecured earnout obligations incurred in
connection with Permitted Acquisitions in a principal amount
not to exceed $50,000,000 in the aggregate at any time
outstanding;
(k) Indebtedness (other than revolving credit
facilities exceeding $50,000,000 in the aggregate and any
Synthetic Leases) of the Borrower and its Subsidiaries that is
pari passu with or subordinated to the Credit Party
Obligations in an aggregate principal amount not to exceed
$300,000,000 at any time outstanding;
(l) Indebtedness of the Borrower and its Subsidiaries
relating to any accounts receivable securitization transaction
or transactions; provided that the
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principal amount of such Indebtedness does not exceed
$100,000,000 in the aggregate at any time outstanding; and
(m) other Indebtedness of the Borrower and its
Subsidiaries; provided that such Indebtedness is non-recourse
to the Borrower or any of its Subsidiaries and the principal
amount of such Indebtedness does not exceed $100,000,000 in
the aggregate at any time outstanding.
1.9 Accounts Receivable Asset Sales. Section 6.4(a) to the Credit
Agreement is hereby amended by the addition of the word "and" at the end of
subsection (a)(v) and the addition of the following new subsection (a)(vi):
(vi) the sale, transfer, contribution, conveyance or other
disposition of accounts receivable and associated collateral, lockbox
and other collection accounts, records and/or proceeds in connection
with any accounts receivable securitization;
1.10 Advances, Investments and Loans. Section 6.5 of the Credit
Agreement is hereby amended by the insertion of the phrase "or to the extent
permitted by Section 6.1" at the end of such Section.
1.11 Schedule of Lenders and Commitments. Schedule 2.1(a) to the
Credit Agreement is hereby amended and restated in its entirety to read as set
forth on Annex A attached hereto.
SECTION 2
CLOSING CONDITIONS
2.1 Closing Conditions.
This Second Amendment shall become effective as of the date hereof upon
satisfaction of the following conditions (in form and substance reasonably
acceptable to the Administrative Agent):
(a) Executed Amendment. Receipt by the Administrative Agent of
a copy of this Second Amendment duly executed by each of the Credit
Parties and the Required Lenders.
(b) Resolutions. Receipt by the Administrative Agent of copies
of resolutions of the Board of Directors of each of the Credit Parties
approving and adopting this Second Amendment, the transactions
contemplated herein and authorizing execution and delivery hereof,
certified by a secretary or assistant secretary of such Credit Party to
be true and correct and in force and effect as of the date hereof.
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(c) Incumbency Certificate. Receipt by the Administrative
Agent of an incumbency certificate with respect to each of the Credit
Parties.
(d) Legal Opinions of Counsel. The Administrative Agent shall
have received opinions of legal counsel for the Credit Parties, dated
the as of the date hereof and addressed to the Administrative Agent and
the Lenders, which opinions shall provide, among other things, that the
execution and delivery of this Second Amendment by the Credit Parties
and the consummation of the transactions contemplated hereby will not
violate the corporate instruments and material agreements of the Credit
Parties, and shall otherwise be in form and substance acceptable to the
Administrative Agent and the Lenders.
(e) Material Adverse Event. Since the Closing Date, there
shall have been no change or occurrence which could reasonably be
expected to have a Material Adverse Effect.
(f) Litigation. There shall not exist any pending or
threatened litigation or investigation affecting or relating to the
Borrower or any of its Subsidiaries, the Credit Agreement or the other
Credit Documents that in the reasonable judgment of the Administrative
Agent and Lenders could materially adversely affect the Borrower and
its Subsidiaries, taken as a whole, or the Credit Agreement or the
other Credit Documents, that has not been settled, dismissed, vacated,
discharged or terminated prior to the date hereof.
(g) Officer's Certificate. The Administrative Agent shall have
received a certificate executed by a responsible officer of the
Borrower as of the date hereof stating that immediately after giving
effect to this Second Amendment and all the transactions contemplated
to occur on the date hereof, (A) no Default or Event of Default exists,
(B) all representations and warranties contained in the Second
Amendment and in the Credit Agreement and the other Credit Documents
(except those which expressly relate to an earlier date) are true and
correct, and (C) the Credit Parties are in compliance with each of the
financial covenants set forth in Section 5.9 to the Credit Agreement on
a pro forma basis.
(h) Consents. The Administrative Agent shall have received
evidence that all governmental, shareholder and material third party
consents and approvals necessary in connection with this Second
Amendment and other transactions contemplated hereby have been obtained
and all applicable waiting periods have expired without any action
being taken by any authority that could restrain, prevent or impose any
material adverse conditions on such transactions or that could seek or
threaten any of such transactions.
(i) Fees. Receipt by the Administrative Agent of all
reasonable fees and expenses of the Administrative Agent in connection
with the preparation, execution and
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delivery of this Second Amendment, including, without limitation, the
reasonable fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC.
SECTION 3
MISCELLANEOUS
3.1 Amended Terms. The term "Credit Agreement" as used in each of
the Credit Documents shall hereafter mean the Credit Agreement as amended by
this Second Amendment. Except as specifically amended or modified hereby or
otherwise agreed, the Credit Agreement is hereby ratified and confirmed and
shall remain in full force and effect according to its terms.
3.2 Representations and Warranties of the Borrower. Each of the
Credit Parties represents and warrants to the Lenders as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Second Amendment.
(b) This Second Amendment has been duly executed and delivered
by such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or Governmental
Authority or third party is required in connection with the execution,
delivery or performance by such Person of this Second Amendment.
(d) The representations and warranties of such Person set
forth in Article III of the Credit Agreement are, subject to the
limitations set forth therein, true and correct in all material
respects as of the date hereof (except for those which expressly relate
to an earlier date).
3.3 Reaffirmation of Credit Party Obligations. Each Credit Party
hereby ratifies the Credit Agreement (as amended by this Second Amendment) and
acknowledges and reaffirms (a) that it is bound by all terms of the Credit
Agreement (as amended by this Second Amendment) applicable to it and (b) that it
is responsible for the observance and full performance of its respective Credit
Party Obligations.
3.4 Credit Document. This Second Amendment shall constitute a
Credit Document under the terms of the Credit Agreement.
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3.5 Expenses. The Borrower agrees to pay all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Second Amendment, including, without limitation,
the reasonable fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, and all previously
incurred fees and expenses which remain outstanding on the date hereof.
3.6 Entirety. This Second Amendment and the other Credit Documents
embody the entire agreement between the parties hereto and supersede all prior
agreements and understandings, oral or written, if any, relating to the subject
matter hereof.
3.7 Counterparts/Telecopy. This Second Amendment may be executed
in any number of counterparts, each of which when so executed and delivered
shall be an original, but all of which shall constitute one and the same
instrument. Delivery of executed counterparts of the Second Amendment by
telecopy shall be effective as an original and shall constitute a representation
that an original shall be delivered.
3.8 Governing Law. This Second Amendment and the rights and
obligations of the parties under this Second Amendment shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
3.9 Consent to Jurisdiction; Service of Process; Waiver of Jury
Trial. The jurisdiction, services of process and waiver of jury trial provisions
set forth in Sections 9.14 and 9.17 of the Credit Agreement are hereby
incorporated by reference, mutatis mutandis.
3.10 Further Assurances. The Credit Parties agree to promptly take
such action, upon the request of the Administrative Agent, as is reasonably
necessary to carry out the intent of this Second Amendment.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Second Amendment to be duly executed under seal and delivered as of the
date and year first above written.
BORROWER: WEST CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
GUARANTORS: WEST TELEMARKETING CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
WEST TELEMARKETING CORPORATION II,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
WEST TELEMARKETING CORPORATION OUTBOUND, a
Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
DAKOTAH DIRECT II, L.L.C.,
a Delaware limited liability company
By: West Telemarketing Corporation
Outbound, Its Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
WEST INTERACTIVE CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
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GUARANTORS CONT.: WEST FACILITIES CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
WEST DIRECT, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
NORTHERN CONTACT, INC.,
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
TEL ▇▇▇▇ SALES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
INTERCALL, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
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GUARANTORS CONT.: INTERCALL TELECOM VENTURES, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
ATTENTION, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
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AGENT AND LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Issuing Lender,
Swingline Lender and as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
[signature pages continue]
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▇▇▇▇▇ FARGO BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. Toll
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Name: ▇▇▇▇▇▇ ▇. Toll
Title: Vice President
[signature pages continue]
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BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
[signature pages continue]
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BNP PARIBAS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Central Region Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[signature pages continue]
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U.S. BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[signature pages continue]
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LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Commercial Loan Officer
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▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
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FIRST NATIONAL BANK OF OMAHA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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KEY BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
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▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ AGENCY
By: /s/ ▇▇▇▇▇ Yew ▇▇▇▇
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Name: ▇▇▇▇▇ Yew ▇▇▇▇
Title: Agent & General Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Deputy General
Manager
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COMERICA BANK
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Vice President
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THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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COMMERCIAL FEDERAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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RZB FINANCE LLC, CONNECTICUT OFFICE
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
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Annex A
to Second Amendment
Schedule 2.1(a)
SCHEDULE OF LENDERS AND
COMMITMENTS
Revolving Revolving LOC LOC
Committed Commitment Committed Commitment
Lender Amount Percentage Amount Percentage
------------------------------------------------ -------------- ----------- ------------- ----------
Wachovia Bank, National Association $22,307,692.33 8.9230769% $ 892,307.69 8.9230769%
BNP Paribas $27,676,923.08 11.0707692% $1,107,076.92 11.0707692%
▇▇▇▇▇ Fargo Bank National Association $22,107,692.31 8.8430769% $ 884,307.69 8.▇▇▇▇▇▇▇%
LaSalle Bank N.A. $22,953,846.15 9.1815385% $ 918,153.85 9.▇▇▇▇▇▇▇%
U.S. Bank, N.A. $23,130,769.23 9.2523077% $ 925,230.77 9.▇▇▇▇▇▇▇%
Bank of America, N.A. $19,369,230.77 7.7476923% $ 774,769.23 7.▇▇▇▇▇▇▇%
The Bank of Nova Scotia $18,653,846.15 7.▇▇▇▇▇▇▇% $ 746,153.85 7.4615385%
United Overseas Bank Limited, New York Agency $17,692,307.69 7.0769231% $ 707,692.31 7.▇▇▇▇▇▇▇%
Key Bank National Association $15,192,307.69 6.0769231% $ 607,692.31 6.▇▇▇▇▇▇▇%
Union Bank of California, N.A. $14,692,307.69 5.8769231% $ 587,692.31 5.8769231%
First National Bank of Omaha $13,792,307.69 5.5169231% $ 551,692.31 5.▇▇▇▇▇▇▇%
Comerica Bank $ 8,084,615.38 3.2338462% $ 323,384.62 3.2338462%
The Northern Trust Company $ 6,846,153.85 2.7384615% $ 273,846.15 2.▇▇▇▇▇▇▇%
Malayan Banking Berhad $ 6,346,153.85 2.5384615% $ 253,846.15 2.5384615%
Commercial Federal Bank $ 5,384,615.38 2.1538462% $ 215,384.62 2.1538462%
RZB Finance LLC, Connecticut Office $ 2,884,615.38 1.1538462% $ 115,384.62 1.1538462%
E. Sun Commercial Bank, Ltd., Los Angeles Branch $ 2,884,615.38 1.1538462% $ 115,384.62 1.1538462%
-------------- ---------- ------------- ----------
Total: $ 250,000,000 100% $ 10,000,000 100%
============== ========== ============= ==========
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