Exhibit 10.19
SEVENTH AMENDMENT TO CREDIT AGREEMENT
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This Seventh Amendment to Credit Agreement ("Amendment"), dated August
8, 2001, is entered into by and among PNC Bank, National Association ("Bank"),
RMH Teleservices, Inc. ("Borrower"), and RMH Teleservices International, Inc.
("Surety").
BACKGROUND
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A. Borrower and Bank are parties to a certain letter agreement, dated
March 21, 1997 (as amended, supplemented, replaced, restated or otherwise
modified from time to time, "Credit Agreement"), pursuant to which Bank
established for the benefit of Borrower a line of credit in the maximum
aggregate principal amount of Twenty Million Dollars ($20,000,000). Capitalized
terms used but not otherwise defined in this Amendment shall have the meanings
given to such terms in the Credit Agreement.
B. Borrower has failed to maintain the minimum Interest Coverage Ratio
under the Credit Agreement for the period ending June 30, 2001 and has failed to
execute certain security documents as required under the Waiver Letter dated May
15, 2001. Borrower's failure to (a) comply with the Interest Coverage Ratio as
of June 30, 2001 and (b) execute the security documents constitute Events of
Default. Such Events of Default are referred to herein as the "Existing
Defaults."
C. Bank and Borrower desire to modify the terms and conditions of the
Credit Agreement as more fully set forth herein.
TERMS AND CONDITIONS
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NOW, THEREFORE, with the foregoing Background hereinafter incorporated
by reference, the parties hereto, intending to be legally bound, hereby covenant
and agree as follows:
1. Consent to Loan: Notwithstanding any provision in the Credit
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Agreement to the contrary, the Bank hereby consents to Borrower obtaining a Five
Million Dollar ($5,000,000) loan from Special Investment Risks, Ltd.
2. Negative Covenants: The Credit Agreement is hereby amended by
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deleting Subsection (III)(b)(iv) of Exhibit "A" in its entirety and replacing it
with the following:
(iv) purchase money indebtedness (including capitalized
lease obligations) incurred for the acquisition of fixed assets, limited in
amount equal to $15,000,000 at any time outstanding in the aggregate for
Borrowers and all Subsidiaries,
3. Waiver:
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(a) Upon satisfaction of the Conditions to Closing (as defined
below), the Bank hereby waives the Existing Defaults.
(b) Except as expressly described above, this waiver shall not
constitute (a) a modification or an alteration of any of the terms, conditions
or covenants of the Agreement or any of the other Loan Documents, all of which
remain in full force and effect, or (b) a waiver, release or limitation upon the
Bank's exercise of any of its rights and remedies thereunder, all of which are
hereby expressly reserved. This waiver shall not relieve or release the Borrower
or any guarantor in
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any way from any of its respective duties, obligations, covenants or agreements
under the Agreement or any of the other Loan Documents or from the consequences
of any Event of Default, other than the Existing Defaults. This waiver shall not
obligate the Bank, or be construed to require the Bank, to waive any other
Events of Default or defaults, whether now existing or which may occur after the
date of this waiver.
4. Representations and Warranties: Borrower and Surety each represents
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and warrants to Bank that:
(a) the execution, delivery and performance by Borrower and Surety of
this Amendment and the transactions contemplated herein: (i) are and will be
within the corporate powers of Borrower and Surety; (ii) have been authorized by
all necessary corporate action; (iii) are not and will not be in contravention
of any order of any court or other agency of government, or of any law to which
Borrower or Surety or any property of Borrower or Surety is bound; and (iv) are
not and will not be in conflict with, or result in a breach of or constitute
(with due notice and/or lapse of time) a default under the articles of
incorporation or bylaws or any indenture, agreement or undertaking to which
Borrower or Surety is a party or by Borrower or Surety or property of Borrower
or Surety is bound;
(b) this Amendment and any other agreements, instruments or documents
executed and/or delivered in connection herewith, are valid, binding and
enforceable against Borrower and Surety, in accordance with their respective
terms;
(c) each of the representations and warranties contained in, and each
of the exhibits and/or schedules attached to, the Credit Agreement, as amended
hereby, and all related agreements, instruments and documents are true and
correct as of the date hereof as to Borrower and Surety, as applicable;
(d) after giving effect to the waiver set forth in Paragraph 3 of
this Amendment, no Event of Default and no event which, with the passage of
time, giving of notice, or both, would become an Event of Default under the
Credit Agreement, is existing.
5. Authorization: Upon the Effective Date, Borrower hereby authorizes the
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Bank to prefile (without Borrower's signature), UCC-1 financing statements
covering the Collateral (as defined below).
6. Confirmation of Indebtedness: Borrower ratifies and reaffirms all of
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its obligations to Bank under the Credit Agreement and related agreements,
instruments and documents and agrees that the same are owing to Bank without any
deduction, defense, setoff, claim or counterclaim, of any nature.
7. Reaffirmation by Surety: Surety, by its execution of this Amendment,
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hereby unconditionally consents to the terms and conditions of this Amendment
and the transactions contemplated herein. Surety further reaffirms its
obligations under its surety agreement in favor of Bank and acknowledges and
agrees that it continues to be liable as surety for all of the liabilities,
debts and obligations of Borrower to Bank under the Credit Agreement, as amended
hereby. Surety further confirms and agrees that the execution and delivery of
this Amendment does not in any way impair any obligations of Surety to Bank
under its surety agreement and that the terms and conditions of such surety
agreement remain unchanged and in full force and effect and that such surety
agreement constitutes the valid, binding and enforceable obligation of Surety,
in accordance with its terms, without any deduction, defense, setoff, claim or
counterclaim, of any nature.
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8. Conditions to Closing: The obligation of Bank to enter into this
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Amendment are subject to, and this Amendment shall become effective upon
("Effective Date"), the following conditions having been satisfied in full to
the complete satisfaction of Bank:
(a) Borrower shall have delivered, or cause to be delivered, to Bank
the following documents (all to be in form and substance acceptable in all
respects to Bank):
(i) this Amendment properly executed by Borrower and Surety;
(ii) a certificate from the secretary of each of Borrower and
Surety certifying resolutions adopted by the respective board of directors of
Borrower and Surety authorizing the execution of, as appropriate, this
Amendment, the granting of security interest in the Collateral, the prefiling of
UCC-1 Financing statements and any other agreement, instrument or other document
required to be executed and/or delivered by Borrower and/or Surety under any
section hereof and authorizing the performance of the transactions contemplated
herein;
(iii) a security agreement executed by Borrower pursuant to which
Borrower will grant Bank a first priority security interest in all of Borrower's
personal property assets (tangible or intangible) including but not limited to
existing and future accounts, contracts, chattel paper, documents, instruments,
deposit accounts, general intangibles, investment property, inventory,
equipment, and fixtures, and proceeds of all of the foregoing (the
"Collateral");
(iv) a guaranty and suretyship agreement executed by
Teleservices Technology Company;
(v) a trademark security agreement executed by Teleservices
Technology Company; and
(vi) such other agreements, instruments, and documents required
to be executed and/or delivered under any provision of the Credit Agreement, as
amended hereby, or as Bank may reasonably determine to carry out the intentions
of parties hereunder.
(b) after giving effect to the waiver set forth in Paragraph 3 of
this Amendment, no Event of Default and no event or condition which, with the
passage of time, the giving of notice, or both, would constitute an Event of
Default under the Credit Agreement, is existing;
(c) payment of a non-refundable waiver fee of Twenty Thousand Dollars
($20,000) to the Bank; and
(d) payment or reimbursement by Borrower of all fees owing to Bank
and Expenses (including, without limitation, reasonable attorneys' fees)
incurred by Bank to analyze, prepare and negotiate and conclude this Amendment
and all related agreements and transactions described herein, as well as all
outstanding attorney's fees incurred by Bank.
9. Non-Waiver: This Amendment does not and shall not be deemed to
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constitute a waiver by Bank of any breach or violation of any representation,
warranty or covenant made or agreed to by Borrower under the Credit Agreement,
as amended hereby, and all claims and rights of Bank resulting from any such
breach or violation are expressly reserved by Bank. This Amendment does not
obligate Bank to agree to any further extension or any other modification of the
Credit Agreement nor does it constitute a course of conduct or dealing on behalf
of Bank or a waiver of
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any other rights or remedies of Bank. No omission or delay by Bank in exercising
any right or power under this Amendment or any related instruments, agreements
or documents will impair such right or power or be construed to be a waiver of
any default or Event of Default or an acquiescence therein, and any single or
partial exercise of any such right or power will not preclude other or further
exercise thereof or the exercise of any other right, and no waiver will be valid
unless in writing and then only to the extent specified.
10. Incorporation: This Amendment (including, without limitation, any
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covenants contained herein) shall amend, and is incorporated into and made part
of, the Credit Agreement. All references to the Credit Agreement contained in
the Credit Agreement or other Loan Documents shall be deemed, for all purposes,
to refer to the Credit Agreement as amended hereby. To the extent that any term
or provision of this Amendment is or may be deemed expressly inconsistent with
any term or provision in the Credit Agreement, the terms and provisions hereof
shall control. Except as expressly amended by this Amendment, all of the terms,
conditions and provisions of the Credit Agreement are hereby ratified and
continue unchanged and remain in full force and effect.
11. No Modification: No modification of this Amendment or of any agreement
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referred to herein shall be binding or enforceable unless in writing and signed
on behalf of the party against whom enforcement is sought.
12. Headings: The headings of any section or paragraph of this Amendment
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are for convenience only and shall not be used to interpret any provision of
this Amendment.
13. Successor and Assigns: This Amendment will be binding upon and inure
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to the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
14. Governing Law: This Amendment shall be governed by, and construed and
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enforced in accordance with the laws of the Commonwealth of Pennsylvania,
excluding its conflict of laws rule.
15. Severability: The provisions of this Amendment are to be deemed
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severable, and the invalidity or unenforceability of any provision shall not
affect or impair the remaining provisions which shall continue in full force and
effect.
16. Execution by Counterparts and Facsimile: This Amendment may be
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executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Signature by facsimile shall also bind the parties
hereto.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, execute
this Amendment on the date first above written.
BANK:
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PNC Bank, National Association
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: V.P.
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BORROWER:
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RMH Teleservices, Inc.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: CFO
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SURETY:
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RMH Teleservices International, Inc.
By: /s/ Xxxxxx X. Berwagner
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Name: Xxxxxx X. Berwagner
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Title: COO/Secretary
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