Exhibit
10.5


 


AMENDMENT NUMBER 4 TO

AND WAIVER UNDER

LOAN AND SECURITY AGREEMENT


 


THIS
AMENDMENT NUMBER 4 TO AND WAIVER UNDER LOAN AND SECURITY AGREEMENT
(this “Amendment”), dated as of November 12, 2004, is entered into by AEGIS COMMUNICATIONS GROUP, INC., a Delaware corporation (“Parent”),
and each of Parent’s Subsidiaries identified on the signature pages hereof
(such Subsidiaries, together with Parent, are referred to hereinafter each
individually as a “Borrower”, and individually and collectively, jointly
and severally, as “Borrowers”), WELLS FARGO FOOTHILL, INC.,
a California corporation, as the arranger and administrative agent for the
Lenders (in such capacity, “Agent”), and the lenders identified on the
signature pages hereof (such lenders, together with their respective successors
and assigns, are referred to hereinafter each individually as a “Lender”
and collectively as the “Lenders”), in light of the following:


 


W  I  T  N  E  S  S
E  T  H


 


WHEREAS,
Borrowers, Agent and Lenders are parties to that certain Loan and Security
Agreement, dated as of January 26, 2004 (as amended, restated,
supplemented, or modified from time to time, the “Loan Agreement”); and


 


WHEREAS, Borrowers
have informed Agent and Lenders that a violation of the Loan Agreement has
occurred as a result of Borrowers’ failure to comply with certain terms and
provisions thereof; and


 


WHEREAS, Borrowers
have requested that Lenders waive such violation of the Loan Agreement; and


 


WHEREAS, Borrowers
have further requested that the Loan Agreement be amended to modify certain
terms more fully set forth hereinbelow;


 


NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree to amend the Loan Agreement as follows:


 


1.                                      DEFINITIONS  Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to them in the Loan Agreement, as amended hereby.


 


2.                                      AMENDMENTS
TO LOAN AGREEMENT


 


(a)                                  Subclause (i) of clause (a) of the
definition of Borrowing Base appearing in Section 1.1 of the Loan
Agreement is hereby amended and restated in its entirety as follows:


 


“(i) the sum of (A) 85% of the amount of Eligible
Billed Accounts other than Trilegiant Accounts, (B) 80% of the amount of
Eligible Unbilled Accounts other than Trilegiant Accounts (it being
acknowledged that the percentage shall reduce to (1) 70% as of November 30,
2004, (2) 50% as of December 15, 2004, and (3)


 





















 


40% as of December 31, 2004), and (C) the
Trilegiant Base up to a maximum amount of $1,000,000 in each case less the amount, if any, of the Dilution Reserve, and”


 


(b)                                 The table of Applicable Amounts and
Applicable Periods set forth in Section 7.18(a)(i) of the Loan
Agreement is hereby amended and restated in its entirety as follows:


 


	
  Applicable Amount

  	
   

  	
  Applicable Period (Month-end)

  
	
  $

  	
  (9,880,000

  	
  )

  	
  October 2004

  
	
  $

  	
  (10,800,000

  	
  )

  	
  November 2004

  
	
  $

  	
  (11,500,000

  	
  )

  	
  December 2004

  



 


3.                                      WAIVER.  Borrowers have informed Agent and Lenders
that Borrowers have failed to maintain or achieve EBITDA of not less than ($8,650,000)
for the period ending on the last day of the month of September, 2004, as
required under Section 7.18(a)(i) of the Loan Agreement (the “Existing
Default”).  At the Borrowers’
request, Agent and Lenders hereby waive the Existing Default, subject to the
terms and conditions set forth herein. 


 


4.                                      CONDITIONS
PRECEDENT TO THIS AMENDMENT.   The
satisfaction of each of the following shall constitute conditions precedent to
the effectiveness of this Amendment and each and every provision hereof:


 


(a)                                  Agent shall have received for its
own account an amendment fee in the amount of $25,000, which amendment fee
shall be fully earned as of the date hereof and shall not be subject to refund,
rebate or proration for any reason whatsoever;


 


(b)                                 The representations and warranties
in the Loan Agreement and the other Loan Documents shall be true and correct in
all respects on and as of the date hereof, as though made on such date (except
to the extent that such representations and warranties relate solely to an
earlier date);


 


(c)                                  No Default or Event of Default shall
have occurred and be continuing on the date hereof or as of the date of the
effectiveness of this Amendment; and


 


(d)                                 No injunction, writ, restraining
order, or other order of any nature prohibiting, directly or indirectly, the
consummation of the transactions contemplated herein shall have been issued and
remain in force by any Governmental Authority against any Borrower, Agent, or
any Lender.


 


5.                                      CONSTRUCTION. THIS AMENDMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.


 


 


6.                                      ENTIRE
AMENDMENT; EFFECT OF AMENDMENT. This Amendment, and the terms and
provisions hereof, constitute the entire agreement among the parties pertaining
to the


 


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subject matter hereof and supersede any and all prior or
contemporaneous amendments relating to the subject matter hereof.  Except for the amendments to the Loan
Agreement expressly set forth in Section 2 hereof, the Loan
Agreement and other Loan Documents shall remain unchanged and in full force and
effect.  To the extent any terms or
provisions of this Amendment conflict with those of the Loan Agreement or other
Loan Documents, the terms and provisions of this Amendment shall control.  This Amendment is a Loan Document.


 


7.                                      COUNTERPARTS;
TELEFACSIMILE EXECUTION.  This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and any of the parties
hereto may execute this Amendment by signing any such counterpart.  Delivery of an executed counterpart of this
Amendment by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Amendment.  Any party delivering an executed counterpart
of this Amendment by telefacsimile also shall deliver an original executed
counterpart of this Amendment, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect
of this Amendment.


 


8.                                      MISCELLANEOUS


 


(a)                                  Upon the effectiveness of this
Amendment, each reference in the Loan Agreement to “this Agreement”, “hereunder”,
“herein”, “hereof” or words of like import referring to the Loan Agreement
shall mean and refer to the Loan Agreement as amended by this Amendment.


 


(b)                                 Upon the effectiveness of this
Amendment, each reference in the Loan Documents to the “Loan Agreement”, “thereunder”,
“therein”, “thereof” or words of like import referring to the Loan Agreement
shall mean and refer to the Loan Agreement as amended by this Amendment.


 


 


[SIGNATURE PAGE FOLLOWS]


 


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IN
WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above written.


 


	
   

  	
  AEGIS
  COMMUNICATIONS GROUP, INC.

  
	
   

  	
  a Delaware
  corporation, as a Borrower and Administrative Borrower 

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Richard Ferry 

  	
   

  
	
   

  	
  Title:

  	
   President and CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ADVANCED
  TELEMARKETING CORPORATION

  
	
   

  	
  a Nevada
  corporation, as a Borrower 

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Richard Ferry 

  	
   

  
	
   

  	
  Title:

  	
  President and
  CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  IQI,
  INC. 

  
	
   

  	
   

  
	
   

  	
  a New York
  corporation, as a Borrower 

  
	
   

  	
  By:

  	
   /s/
  Richard Ferry

  	
   

  
	
   

  	
  Title:

  	
  President and
  CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LEXI
  INTERNATIONAL, INC.

  
	
   

  	
  a California
  corporation, as a Borrower 

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Richard Ferry

  	
   

  
	
   

  	
  Title:

  	
   President and CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INTERSERV
  SERVICE CORPORATION 

  
	
   

  	
  a Delaware
  corporation, as a Borrower 

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Gene
  Speyer 

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO FOOTHILL, INC. 

  
	
   

  	
  a California
  corporation, as Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Robert
  Bernier

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
									



 


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