Exhibit 10.3
FOURTH AMENDMENT TO, AND WAIVER UNDER,
LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO, AND WAIVER UNDER, LOAN AND SECURITY AGREEMENT
(this "Fourth Amendment") is made and entered into as of July 25, 2003, by and
between RMH TELESERVICES, INC., a Pennsylvania corporation (the "Borrower"), and
XXXXX FARGO FOOTHILL, INC. (formerly known as 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, April 18, 2003 and May 9, 2003, and as the same is amended hereby and may
be further amended, modified and supplemented from time to time, the "Loan
Agreement");
WHEREAS, pursuant to Section 7.20(a)(i) of the Loan Agreement, the Borrower
is required to maintain minimum EBITDA in accordance with the amounts set forth
therein (each an "Applicable Amount") and the time periods set forth therein
(each, an "Applicable Period");
WHEREAS, the Borrower has failed to maintain the Applicable Amount of
$17,695,000 for the Applicable Period ending June 30, 2003 (the "6/30 Default");
WHEREAS, the Borrower has requested, and the Lender has agreed, subject to
the terms and conditions herein, to waive the 6/30 Default; and
WHEREAS, the Borrower has requested, and the Lender has agreed, subject to
the terms and conditions herein, to amend Section 7.20(a)(i) of the Loan
Agreement to insert an Applicable Amount for the Applicable Period ending
September 30, 2003;
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 Fourth Amendment becomes effective in accordance
with Section 5 hereof, as follows:
2.01 Amendment to Section 7.20. Clause (i) of paragraph (a) of Section 7.20
of the Loan Agreement is hereby amended by inserting a new row between the
current fourth and fifth rows, specifically for the Applicable Period of the 12
month period ending September 30, 2003, and inserting Applicable Amount of
$10,520,000 for that period. Notwithstanding the foregoing,
the next row, setting forth the Applicable Amount of $19,402,000 for the
Applicable Period of the 12 month period ending each fiscal quarter thereafter,
shall remain unchanged.
Section 3. Waiver of 6/30 Default. Subject to the satisfaction of each of the
conditions precedent set forth in Section 5 hereof, the Lender hereby waives the
Event of Default that has occurred and is continuing as a result of the 6/30
Default.
Section 4. Representations and Warranties. In order to induce the Lender to
enter into this Fourth Amendment, the Borrower hereby represents and warrants
that:
4.01 No Default. Other than the 6/30 Default, at and as of the date of this
Fourth Amendment and at and as of the Effective Date and both prior to and after
giving effect to this Fourth Amendment, no Default or Event of Default exists
and is continuing.
4.02 Representations and Warranties True and Correct. At and as of the date
of this Fourth Amendment and at and as of the Effective Date and both prior to
and after giving effect to this Fourth 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.
4.03 Corporate Power, Etc. The Borrower (a) has all requisite corporate
power and authority to execute and deliver this Fourth 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 Fourth Amendment and the consummation of the transactions contemplated
hereby.
4.04 No Conflict. Neither the execution and delivery of this Fourth
Amendment nor the 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.
4.05 Binding Effect. This Fourth Amendment has been duly executed and
delivered by the Borrower and constitutes the legal, valid and binding
obligation of the Borrower, 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).
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Section 5. Conditions. This Fourth Amendment shall be effective as of June 30,
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 5:
5.01 Execution of the Fourth Amendment. Each of the parties hereto shall
have executed an original counterpart of this Fourth Amendment and shall have
delivered (including by way of facsimile transmission) the same to the Lender.
5.02 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.
5.03 Representations and Warranties. As of the Effective Date and as of the
date of this Fourth Amendment, the representations and warranties set forth in
Section 4 hereof shall be true and correct.
5.04 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.
5.05 Fee. The Borrower shall have paid to the Lender a fee in the amount of
$20,000.
Section 6. General Confirmations and Amendments.
6.01 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.
6.02 No Modification or Waiver. This Fourth Amendment is limited as
specified and the execution, delivery and effectiveness of this Fourth 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.
6.03 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
Fourth Amendment and (ii) all of the terms and provisions of this Fourth
Amendment are hereby incorporated by reference into the Loan Agreement as if
such terms and provisions were set forth in full therein, as applicable.
(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"
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or words of like import referring to the Loan Agreement shall mean the Loan
Agreement as amended hereby.
Section 7. Miscellaneous.
7.01 Governing Law. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7.02 Severability. The provisions of this Fourth 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 Fourth Amendment in any
jurisdiction.
7.03 Counterparts. This Fourth 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.
7.04 Headings. Section headings in this Fourth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Fourth Amendment for any other purpose.
7.05 Binding Effect; Assignment. This Fourth 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 Fourth Amendment shall not be assigned or
delegated without the prior written consent of the Lender.
7.06 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 Fourth
Amendment and any document required to be furnished herewith.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth 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:
XXXXX FARGO FOOTHILL, INC.
By: /s/ Xxxxxx X. Xxxxxxx III
----------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Vice President
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