Exhibit 10.3
SECOND AMENDMENT
TO
LOAN AGREEMENT
THIS SECOND AMENDMENT (this "Second Amendment") is made and entered into
as of April 18, 2003 by and between RMH TELESERVICES, INC., a Pennsylvania
corporation (the "Borrower"), and FOOTHILL CAPITAL CORPORATION, a California
corporation (the "Lender").
WITNESSETH:
WHEREAS, the Borrower and the Lender are parties to that certain Loan and
Security Agreement dated as of September 4, 2002 (as amended as of November 4,
2002, and as the same may be further amended, modified and supplemented from
time to time, the "Loan Agreement"); and
WHEREAS, the Borrower and the Lender wish to further amend the Loan
Agreement as herein provided;
NOW, THEREFORE, in consideration of the agreements and provisions herein
contained, the parties hereto do hereby agree as follows:
Section 1. Definitions. Any capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Loan Agreement.
Section 2. Amendments to Loan Agreement. The Loan Agreement is hereby amended,
effective as of the date this Second Amendment becomes effective in accordance
with Section 4 hereof, as follows:
2.01 Amendments to Section 1.1.
(a) The definition of "Eligible Billed Accounts" is hereby amended
by:
(i) deleting subsection (i) in its entirety and inserting
the following new subsection (i) in replacement thereof:
"(i) Accounts with respect to an Account Debtor whose
total obligations owing to Borrower exceed 10% (such
percentage as applied to a particular Account Debtor being
subject to reduction by Lender in its Permitted Discretion if
the creditworthiness of such Account Debtor deteriorates) of
all Eligible Accounts, to the extent of the obligations owing
by such Account Debtor in excess of such percentage; provided,
however, that subject to Lender's ability to adjust such
percentage limitations in its Permitted Discretion, (a) as to
the
following Account Debtors, the percentage limitation of 15%
(in lieu of 10%) shall apply for purposes hereof: MCI,
Citicorp, Inc., Nextel Communications and Aegon USA, Inc., and
(b) as to the following Account Debtors, the percentage
limitation of 20% (in lieu of 10%) shall apply for purposes
hereof: Microsoft Corporation, AT&T Corp. and United Parcel
Service of America, Inc.";
(ii) deleting clause (j) in its entirety and inserting the
following new clause (j) in replacement thereof:
"(j) except for Eligible MCI Billed Accounts, Accounts
with respect to which an Account Debtor (including but not
limited to MCI and its Affiliates) is subject to an Insolvency
Proceeding, is not Solvent, has gone out of business, or as to
which Borrower has received notice of an imminent Insolvency
Proceeding or a material impairment of the financial condition
of such Account Debtor,"; and
(iii) deleting clause (p) in its entirety and inserting the
following new clause (p) in replacement thereof:
"(p) Accounts that represent goods sold or services
rendered to MCI or its Affiliates prior to the commencement of
the MCI Bankruptcy (it being understood and agreed that
Eligible Billed Accounts shall include Accounts that represent
goods sold or services rendered to MCI or its Affiliates after
the commencement of the MCI Bankruptcy to the extent that such
Accounts otherwise meet the criteria of Eligible Billed
Accounts (such Accounts, "Eligible MCI Billed Accounts"))."
(b) The following additional definitions shall be inserted in
Section 1.1 of the Loan Agreement in alphabetical order:
"Eligible MCI Billed Accounts" shall have the meaning set
forth in clause (p) of the definition of Eligible Billed Accounts.
"Eligible MCI Unbilled Accounts" shall have the meaning set
forth in clause (p) of the definition of Eligible Unbilled Accounts.
(c) The definition of "Eligible Unbilled Accounts" is hereby
amended by:
(i) deleting subsection (i) in its entirety and inserting
the following new subsection (i) in replacement thereof:
"(i) Accounts with respect to an Account Debtor whose
total obligations owing to Borrower exceed 10% (such
percentage as applied to a particular Account Debtor being
subject to reduction by Lender in its Permitted Discretion if
the creditworthiness of such Account Debtor deteriorates) of
all Eligible Accounts, to the extent of the obligations owing
by such Account Debtor in excess of such percentage; provided,
however, that subject to Lender's ability to adjust such
percentage limitations in its Permitted Discretion, (a) as to
the following Account Debtors, the percentage limitation of
15% (in lieu of 10%)
2
shall apply for purposes hereof: MCI, Citicorp, Inc., Nextel
Communications and Aegon USA, Inc., and (b) as to the
following Account Debtors, the percentage limitation of 20%
(in lieu of 10%) shall apply for purposes hereof: Microsoft
Corporation, AT&T Corp. and United Parcel Service of America,
Inc.";
(ii) deleting clause (j) in its entirety and inserting the
following new clause (j) in replacement thereof:
"(j) except for Eligible MCI Unbilled Accounts,
Accounts with respect to which an Account Debtor (including
but not limited to MCI and its Affiliates) is subject to an
Insolvency Proceeding, is not Solvent, has gone out of
business, or as to which Borrower has received notice of an
imminent Insolvency Proceeding or a material impairment of the
financial condition of such Account Debtor,"; and
(iii) deleting clause (p) in its entirety and inserting the
following new clause (p) in replacement thereof:
"(p) Accounts that represent goods sold or services
rendered to MCI or its Affiliates prior to the commencement of
the MCI Bankruptcy (it being understood and agreed that
Eligible Unbilled Accounts shall include Accounts that
represent goods sold or services rendered to MCI or its
Affiliates after the commencement of the MCI Bankruptcy to the
extent that such Accounts otherwise meet the criteria of
Eligible Unbilled Accounts (such Accounts, "Eligible MCI
Unbilled Accounts"))."
2.02 Amendments to Section 2.1(a). Clause (x) of Section 2.1(a) is hereby
amended by deleting clause (x) in its entirety and inserting the following new
clause (x) in replacement thereof:
"(x) the lesser of
(i) the sum of
(A) the sum of (I) 85% of the amount of
Eligible Billed Accounts (excluding Eligible MCI
Billed Accounts), less the amount, if any, of the
Dilution Reserve allocable to Eligible Billed
Accounts (excluding Eligible MCI Billed Accounts),
plus (II) 60% of the amount of Eligible MCI Billed
Accounts, less the amount, if any, of the Dilution
Reserve allocable to Eligible MCI Billed Accounts,
plus
(B) the lesser of
(I) the sum of (X) 75% of the amount of
Eligible Unbilled Accounts (excluding
Eligible MCI Unbilled Accounts) less the
amount, if any, of the Dilution Reserve
allocable to Eligible Unbilled Accounts
3
(excluding Eligible MCI Unbilled Accounts),
plus (Y) 50% of the amount of Eligible MCI
Unbilled Accounts, less the amount, if any,
of the Dilution Reserve allocable to
Eligible MCI Unbilled Accounts, and
(II) 50% of the aggregate amount of
credit availability created by the foregoing
clauses (x)(i)(A) and (x)(i)(B)(I), and
(ii) an amount equal to Borrower's Collections
with respect to Accounts for the immediately preceding
60 day period, minus".
Section 3. Representations and Warranties. In order to induce the Lender to
enter into this Second Amendment, the Borrower hereby represents and warrants
that:
3.01 No Default. At and as of the date of this Second Amendment and at
and as of the Effective Date and both prior to and after giving effect to this
Second Amendment, no Default or Event of Default exists and is continuing.
3.02 Representations and Warranties True and Correct. At and as of the
date of this Second Amendment and at and as of the Effective Date and both prior
to and after giving effect to this Second Amendment, each of the representations
and warranties contained in the Loan Agreement and the other Loan Documents is
true and correct in all material respects.
3.03 Corporate Power, Etc. The Borrower (a) has all requisite corporate
power and authority to execute and deliver this Second Amendment and to
consummate the transactions contemplated hereby and (b) has taken all action,
corporate or otherwise, necessary to authorize the execution and delivery of
this Second Amendment and the consummation of the transactions contemplated
hereby.
3.04 No Conflict. Neither the execution and delivery of this Second
Amendment nor consummation of the transactions contemplated hereby will (a)
conflict with or result in any breach or violation of any provision of the
certificate of incorporation or by-laws of the Borrower, (b) result in any
breach or violation of, or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in the
creation of a Lien upon any of the properties or assets of the Borrower under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease agreement or other instrument or
obligation to which the Borrower is a party or to which any of its properties or
assets are subject, (c) require any consent, approval, authorization or permit
of, or filing with or notification to, any third party or any Governmental
Authority, or (d) violate any order, writ, injunction, decree, judgment, ruling,
law, statute, rule or regulation of any Governmental Authority.
3.05 Binding Effect. This Second Amendment has been duly executed and
delivered by the Borrower and constitutes the legal, valid and binding
obligation of the Borrower,
4
enforceable against the Borrower in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in effect,
relating to or affecting the enforcement of creditors' rights generally, and (b)
the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 4. Conditions. This Second Amendment shall be effective as of April 18,
2003 (the "Effective Date") upon the fulfillment by the Borrower, in a manner
satisfactory to the Lender, of all of the following conditions precedent set
forth in this Section 4:
4.01 Execution of the Second Amendment. Each of the parties hereto shall
have executed an original counterpart of this Second Amendment and shall have
delivered (including by way of facsimile transmission) the same to the Lender.
4.02 Delivery of Other Documents. The Lender shall have received all
other such instruments, documents and agreements as the Lender may reasonably
request, duly executed and dated the date hereof, in form and substance
reasonably satisfactory to the Lender.
4.03 Representations and Warranties. As of the Effective Date, the
representations and warranties set forth in Section 3 hereof shall be true and
correct.
4.04 Fee. The Borrower shall have paid to the Lender a fee in the amount
of $10,000.
4.05 Compliance with Terms. The Borrower shall have complied in all
respects with the terms hereof and of any other agreement, document, instrument
or other writing to be delivered by the Borrower in connection herewith.
Section 5. General Confirmations and Amendments.
5.01 Continuing Effect. Except as specifically provided herein, the Loan
Agreement and the other Loan Documents shall remain in full force and effect in
accordance with their respective terms and are hereby ratified and confirmed in
all respects.
5.02 No Modification or Waiver. This Second Amendment is limited as
specified and the execution, delivery and effectiveness of this Second Amendment
shall not operate as a modification, acceptance or waiver of any provision of
the Loan Agreement or any other Loan Document, except as specifically set forth
herein.
5.03 References.
(a) From and after the Effective Date, (i) the Loan Agreement, the
other Loan Documents and all agreements, instruments and documents executed and
delivered in connection with any of the foregoing shall each be deemed amended
hereby to the extent necessary, if any, to give effect to the provisions of this
Second Amendment and (ii) all of the terms and provisions of this Second
Amendment are hereby incorporated by reference into the Loan Agreement as if
such terms and provisions were set forth in full therein, as applicable.
5
(b) From and after the Effective Date, (i) all references in the
Loan Agreement to "this Agreement", "hereto", "hereof", "hereunder" or words of
like import referring to the Loan Agreement shall mean the Loan Agreement as
amended hereby and (ii) all references in the Loan Agreement, the other Loan
Documents or any other agreement, instrument or document executed and delivered
in connection therewith to "Loan Agreement", "thereto", "thereof", "thereunder"
or words of like import referring to the Loan Agreement shall mean the Loan
Agreement as amended hereby.
Section 6. Miscellaneous.
6.01 Governing Law. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6.02 Severability. The provisions of this Second Amendment are severable,
and if any clause or provision shall be held invalid or unenforceable in whole
or in part in any jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such jurisdiction and
shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision in this Second Amendment in any
jurisdiction.
6.03 Counterparts. This Second Amendment may be executed in any number of
counterparts, each of which counterparts when executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A complete set of counterparts shall be lodged with the Borrower and
the Lender.
6.04 Headings. Section headings in this Second Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Second Amendment for any other purpose.
6.05 Binding Effect; Assignment. This Second Amendment shall be binding
upon and inure to the benefit of the Borrower and the Lender and their
respective successors and assigns; provided, however, that the rights and
obligations of the Borrower under this Second Amendment shall not be assigned or
delegated without the prior written consent of the Lender.
6.06 Expenses. The Borrower agrees to pay the Lender upon demand for all
reasonable expenses, including reasonable fees of attorneys and paralegals for
the Lender (who may be employees of the Lender), incurred by the Lender in
connection with the preparation, negotiation and execution of this Second
Amendment and any document required to be furnished herewith.
[Signature page follows]
6
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWER:
RMH TELESERVICES, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
LENDER:
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx III
-----------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Vice President
7
