Exhibit 10.4
THIRD AMENDMENT TO, AND CONSENT AND RELEASE UNDER,
LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO, AND CONSENT AND RELEASE UNDER, LOAN AND SECURITY
AGREEMENT (this "Third Amendment") is made and entered into as of May 9, 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 April 18, 2003, and as the same may be further amended, modified and
supplemented from time to time, the "Loan Agreement");
WHEREAS, the Borrower desires to dissolve (the "Dissolution") one of its
Subsidiaries, RMH Interactive Technologies, LLC, a Delaware limited liability
company ("RMH Interactive");
WHEREAS, RMH Interactive has no Indebtedness or other material
liabilities, conducts no material operations or business and owns no material
assets or properties;
WHEREAS, after the Dissolution, any and all assets of RMH Interactive will
be held by the Borrower;
WHEREAS, the Borrower pledged its ownership of the sole membership
interest of RMH Interactive in accordance with the Securities Pledge Agreement;
WHEREAS, 515963 N.B., Inc., a corporation organized under the laws of New
Brunswick, Canada ("515963 N.B."), currently has an unlimited number of
authorized Class A Shares (the "Class A Shares") and Class B Shares (the "Class
B Shares") and desires to limit the number of authorized Class A Shares to
50,000 shares and the number of authorized Class B Shares to 25,000 shares
(collectively, the "Reduction in Shares"); 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 Third Amendment becomes effective in accordance
with Section 6 hereof, as follows:
2.01 Amendments to Section 1.1. The definition of "EBITDA" is hereby
amended by deleting it in its entirety and inserting the following in
replacement thereof:
"EBITDA" means, with respect to any fiscal period, Borrower's
and its Subsidiaries' consolidated net earnings (or loss),
minus extraordinary gains, plus extraordinary non-cash losses
(which shall include those non-cash losses recognized in the
second quarter of 2003 in relation to (a) the closing of the
properties located at (i) 0000 Xxxxxxxx Xxxx, Xxxxxxxx X Xxxxx
000, Xxxxx, Xxxxxxx 00000; (ii) 0000 Xxxxxxxxxxxx Xxxxxx,
Xxxx, Xxxxxxxxxxxx 00000; and (iii) 0000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx 00000; and (b) the write-off of intangible
assets associated with the contract dated as of April 15,
1999, as amended, between the Borrower and MCI relating to
third party verification of accounts in Canada) in an
aggregate amount not to exceed $5,000,000, interest expense,
income taxes, and depreciation and amortization for such
period, as determined in accordance with GAAP; provided,
however, that if the assets subject to the operating leases
listed on Schedule C-2 become subject to Capital Leases, then
the principal portion of the payments under such Capital
Leases shall be deducted in determining EBITDA.
2.02 Schedule 5.8(c). Schedule 5.8(c) to the Loan Agreement is hereby
amended to provide that 515963 N.B. Inc. has 50,000 authorized Class A Shares
and 25,000 authorized Class B Shares.
Section 3. Consent and Release in Connection with the Dissolution. Subject to
the satisfaction of each of the conditions precedent set forth in Section 6
hereof, the Lender hereby:
(a) assuming the accuracy of the representations set forth in
Section 5.06, acknowledges that the Dissolution is permitted in accordance with
clause (3) of the proviso contained in Section 7.3 of the Loan Agreement; and
(b) consents to the release of, and hereby releases, the pledge by
the Borrower of its ownership of the sole membership interest of RMH Interactive
in accordance with the Securities Pledge Agreement (it being understood and
agreed that this Third Amendment shall in no way effect any release of any
security interest in any Collateral other than the pledge by the Borrower of its
ownership of the sole membership interest of RMH Interactive in accordance with
the Securities Pledge Agreement).
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Section 4. Consent to the Reduction in Shares. Subject to the terms and
conditions contained herein, the Lender hereby consents to the Reduction in
Shares.
Section 5. Representations and Warranties. In order to induce the Lender to
enter into this Third Amendment, the Borrower hereby represents and warrants
that:
5.01 No Default. At and as of the date of this Third Amendment and at and
as of the Effective Date and both prior to and after giving effect to this Third
Amendment, no Default or Event of Default exists and is continuing.
5.02 Representations and Warranties True and Correct. At and as of the
date of this Third Amendment and at and as of the Effective Date and both prior
to and after giving effect to this Third 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.
5.03 Corporate Power, Etc. The Borrower (a) has all requisite corporate
power and authority to execute and deliver this Third 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 Third Amendment and the consummation of the transactions contemplated
hereby.
5.04 No Conflict. Neither the execution and delivery of this Third
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.
5.05 Binding Effect. This Third 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).
5.06 RMH Interactive. RMH Interactive has no Indebtedness or other
material liabilities, conducts no material operations or business and owns no
material assets or properties. After the Dissolution, any and all assets of RMH
Interactive will be held by the Borrower.
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Section 6. Conditions. This Third Amendment shall be effective as of May 9, 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 6:
6.01 Execution of the Third Amendment. Each of the parties hereto shall
have executed an original counterpart of this Third Amendment and shall have
delivered (including by way of facsimile transmission) the same to the Lender.
6.02 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.
6.03 Representations and Warranties. As of the Effective Date, the
representations and warranties set forth in Section 5 hereof shall be true and
correct.
6.04 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.
Section 7. General Confirmations and Amendments.
7.01 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.
7.02 No Modification or Waiver. This Third Amendment is limited as
specified and the execution, delivery and effectiveness of this Third 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.
7.03 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
Third Amendment and (ii) all of the terms and provisions of this Third 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"
or words of like import referring to the Loan Agreement shall mean the Loan
Agreement as amended hereby.
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Section 8. Miscellaneous.
8.01 Governing Law. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8.02 Severability. The provisions of this Third 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 Third Amendment in any
jurisdiction.
8.03 Counterparts. This Third 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.
8.04 Headings. Section headings in this Third Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Third Amendment for any other purpose.
8.05 Binding Effect; Assignment. This Third 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 Third Amendment shall not be assigned or
delegated without the prior written consent of the Lender.
8.06 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 Third
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 Third 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, Finance
LENDER:
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx III
---------------------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Vice President
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