EXHIBIT 10.8
FIFTH AMENDMENT TO CREDIT AGREEMENT
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This Fifth Amendment to Credit Agreement ("Amendment"), dated September 27,
2000, 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 Fifteen Million Dollars ($15,000,000).
Capitalized terms used but not otherwise defined in this Amendment shall have
the meanings given to such terms in the Credit Agreement.
B. 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. Line of Credit and Use of Proceeds. Effective on the Effective Date
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(as defined below), the Credit Agreement is hereby amended by deleting Section 1
in its entirety and replacing it with the following:
1. Line of Credit and Use of Proceeds. The first credit facility is
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a committed revolving line of credit under which Borrower may request
and Bank, subject to the terms and conditions of this letter, will
make advances to Borrower from time to time until the Expiration Date
("Line of Credit"). The aggregate principal amount of unpaid advances
(including unreimbursed draws on Letters of Credit) shall not, at any
time, exceed Twenty Million Dollars ($20,000,000). The "Expiration
Date" means September 30, 2001, or such later date as may be
designated by Bank by written notice to Borrower. Advances may be
used for working capital or other general business purposed of
Borrower. Notwithstanding anything in the Credit Agreement to the
contrary, in no event may the face amount of all issued and
outstanding Letters of Credit, plus the amount of all drawn but
unreimbursed Letters of Credit, exceed at any time Four Million
Dollars ($4,000,000)
2. Base Rate Option: Effective on the Effective Date, the Credit
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Agreement is hereby amended by deleting Subsection 2(i) in its entirety and
replacing it with the following:
i. Base Rate Option. A rate of interest per annum (computed on the
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basis of a year of 360 days and the actual number of days elapsed)
equal to rate of interest announced from time to time by Bank at its
principal office as its prime rate, which rate may not be the lowest
interest rate then being charged commercial borrowers by Bank (the
"Prime Rate") minus one percent (1.0%). If and when the Prime Rate
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changes, the rate of interest on the principal of the Line of Credit
bearing interest under the Base Rate Option will change automatically
without notice to Borrower, effective on the date of any such change.
3. Euro-Rate Interest Period. Effective on the Effective Date, the
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definition of "Euro-Rate Interest Period" contained in the Credit Agreement is
hereby restated in its entirety and shall read as follows:
"Euro-Rate Interest Period" shall mean the period seven days, fourteen
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days, one, two, three, four or six months, or an overnight period,
each as selected by Borrower commencing on the date on which a Euro-
Rate Option is elected to commence; provided, that if a Euro-Rate
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Interest Period would end on a day which is not a Business Day, it
shall end on the next succeeding Business day, unless, with respect to
Euro-Rate Interest Periods of one month or longer, such day falls in
the succeeding calendar month on which case the Euro-Rate Interest
Period shall end on the next preceding Business Day. In no event
shall any Euro-Rate Interest Period end on a day after the Expiration
Date.
4. Negative Covenants: Effective on the Effective Date, the Credit
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Agreement is hereby amended by deleting Subsections III (d) and III(f) of
Exhibit "A" in their entirety and replacing them with the following:
(d) Borrower will not, nor suffer or permit any Subsidiary to, make
acquisitions of all or substantially all of the property or assets of
any person, firm, corporation, or other entity, except for an
investment on terms and conditions satisfactory to Bank of an
aggregate amount not to exceed $1,500,000 in a joint venture with
Advanta Partners to be called "000xxx.xxx."
(f) Subject to Subsection (a) above, Borrower and each of its
Subsidiaries will not incur, create or assume any commitment to make
any direct or indirect payment, whether rent or otherwise, under any
lease rental or other arrangement for the use of real or personal
property, except for: (i) operating leases with Bank or its
affiliates, or (ii) operating leases with other parties so long as the
aggregate outstanding obligations, direct or indirect, due or to
become due, under all such leases does not exceed $16,000,000.
5. Payment of Fee. In consideration of the agreements and undertakings of
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Bank
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set forth in this Amendment, and contemporaneously with the execution hereof,
Borrower shall pay to Bank a fee of Ten Thousand Dollars ($10,000) ("Closing
Fee").
6. 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 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, shall be 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; provided
that Section 7(h) of the Letter Agreement is hereby amended to include Surety,
RMH Interactive, and 000xxx.xxx.XX, as additional subsidiaries of Borrower.;
(d) 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, has occurred or is existing.
7. 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.
8. 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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9. 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 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) execution and delivery by Borrower to Bank of a certain
Amended and Restated Committed Line of Credit Note in the principal amount of
$20,000,000;
(iii) Borrower shall have executed and delivered to Bank, the
Working Cash, Line of Credit Investment Sweep Rider and the Working Cash Trust
Agreement
(iv) 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 this Amendment 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;
(v) a certificate of incumbency from the secretary of each of
Borrower and Surety identifying, as of the Effective Date, the names and titles
of the officers of Borrower authorized by specific resolution adopted by the
respective board of directors of Borrower to execute this Amendment and related
agreements, instruments or other documents, along with specimen signatures of
such officers; 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) 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, has occurred or is existing; and
(c) payment or reimbursement by Borrower of all fees owing to Bank
and Expenses (including, without limitation, attorneys' fees) incurred by Bank
to analyze, prepare and negotiate and conclude this Amendment and all related
agreements and transactions described herein.
10. 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
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other modification of the Credit Agreement nor does it constitute a course of
conduct or dealing on behalf of Bank or a waiver of 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.
11. 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.
12. No Modification: No modification of this Amendment or of any
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agreement referred to herein shall be binding or enforceable unless in writing
and signed on behalf of the party against whom enforcement is sought.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, execute
this Amendment on the date first above written.
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BANK:
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PNC Bank, National Association
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: VP
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BORROWER:
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RMH Teleservices, Inc.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: CFO
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SURETY:
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RMH Teleservices International, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: EVP
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