Exhibit 10.65

 

**FIFTH AMENDMENT**

**TO**

**LOAN AGREEMENT**

 

THIS FIFTH AMENDMENT (this “Fifth Amendment”) is made andentered into as of September 22, 2003 by and between RMH TELESERVICES, INC., a Pennsylvania corporation (the “Borrower”), and WELLS 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, May 9, 2003, and July 25, 2003, and as the same is amended hereby and may be further amended, modified and supplemented from time to time, the “Loan Agreement”); and 

 

WHEREAS, the Borrower and the Lender wish to further amend the Loan Agreementas herein provided; 

 

NOW, THEREFORE, in consideration of theagreements 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 herebyamended, effective as of the date this Fifth Amendment becomes effective in accordance with Section 4 hereof, as follows: 

 

**2.01 Amendments to Section 1.1.**

 

(a) The definition of “Eligible Billed Accounts” is hereby amended by deleting subsection (i) in its entirety andinserting the following new subsection (i) in replacement thereof: 

 

“(i) Accounts with respect to an Account Debtor whose total obligations owing to Borrower exceed 10% (such percentage as applied to a particular Account Debtor being subject to reduction by Lender in itsPermitted Discretion if the creditworthiness of such Account Debtor deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, however, that subject toLender’s ability to adjust such percentage limitations in its Permitted Discretion, (a) as to the following Account Debtors, the percentage limitation of 15% (in lieu of 10%) 

 

shall apply for purposes hereof: MCI, Citicorp, Inc., and Aegon USA, Inc., and (b) as to the following Account Debtors, the percentage limitation of 20% (inlieu of 10%) shall apply for purposes hereof: Microsoft Corporation, AT&T Corp., Nextel Communications, and United Parcel Service of America, Inc.; provided, further, however, that, as to MCI, Microsoft Corporation, AT&TCorp., Nextel Communications, and United Parcel Service of America, Inc., the applicable percentage limitation as to the three (3) out of the five (5) such Account Debtors with the largest Accounts (by Dollar value) at any time of determinationshall be 70% in the aggregate and 30% individually (it being understood and agreed that, at any time of determination, the percentage limitations set forth in clause (a) or (b), as applicable, of the immediately preceding proviso shall apply to thetwo (2) out of the five (5) such Account Debtors whose Accounts do not comprise one of the three (3) such largest Accounts (by Dollar value) at such time),”; and 

 

(b) The definition of “Eligible Unbilled Accounts” is hereby amended by deleting subsection(i) in its entirety and inserting the following new subsection (i) in replacement thereof: 

 

“(i) Accounts with respect to an Account Debtor whose total obligations owing to Borrower exceed 10% (such percentage as applied to aparticular Account Debtor being subject to reduction by Lender in its Permitted Discretion if the creditworthiness of such Account Debtor deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excessof such percentage; provided, however, that subject to Lender’s ability to adjust such percentage limitations in its Permitted Discretion, (a) as to the following Account Debtors, the percentage limitation of 15% (in lieu of 10%)shall apply for purposes hereof: MCI, Citicorp, Inc., and Aegon USA, Inc., and (b) as to the following Account Debtors, the percentage limitation of 20% (in lieu of 10%) shall apply for purposes hereof: Microsoft Corporation, AT&T Corp., NextelCommunications, and United Parcel Service of America, Inc.; provided, further, however, that, as to MCI, Microsoft Corporation, AT&T Corp., Nextel Communications, and United Parcel Service of America, Inc., the applicablepercentage limitation as to the three (3) out of the five (5) such Account Debtors with the largest Accounts (by Dollar value) at any time of determination shall be 70% in the aggregate and 30% individually (it being understood and agreed that, atany time of determination, the percentage limitations set forth in clause (a) or (b), as applicable, of the immediately preceding proviso shall apply to the two (2) out of the five (5) such Account Debtors whose Accounts do not comprise one of thethree (3) such largest Accounts (by Dollar value) at such time),”. 

 

**2.02 Amendments to Section 2.1(a).** Clause (x) of Section 2.1(a) is hereby amended by deleting clause (x) in its entirety and inserting the following new clause (x) in replacement thereof: 

 

“(x) *the lesser of*

 

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(i) the sum of 

 

(A) the sum of (I) 85% of the amount of Eligible Billed Accounts (excluding Eligible MCI Billed Accounts),*less*the amount, if any, of the Dilution Reserve allocable to Eligible Billed Accounts (excluding Eligible MCI Billed Accounts), *plus*(II) 75% (or, upon Lender receiving evidence, satisfactory to Lender in its sole discretion, that MCIshall have emerged from the MCI Bankruptcy and that MCI’s final plan of reorganization shall have been consummated, 85%) of the amount of Eligible MCI Billed Accounts, *less*the amount, if any, of the Dilution Reserve allocable toEligible MCI Billed Accounts, *plus*

 

(B) *the lesser of*

 

(I) thesum of (X) 75% of the amount of Eligible Unbilled Accounts (excluding Eligible MCI Unbilled Accounts) *less* the amount, if any, of the Dilution Reserve allocable to Eligible Unbilled Accounts (excluding Eligible MCI Unbilled Accounts),*plus* (Y) 65% (or, upon Lender receiving evidence, satisfactory to Lender in its sole discretion, that MCI shall have emerged from the MCI Bankruptcy and that MCI’s final plan of reorganization shall have been consummated, 75%) of theamount of Eligible MCI Unbilled Accounts, *less*the amount, if any, of the Dilution Reserve allocable to Eligible MCI Unbilled Accounts, *and*

 

(II) 50% of the aggregate amount of credit availability created by the foregoing clauses (x)(i)(A) and (x)(i)(B)(I), *and*

 

(ii) an amount equal to Borrower’sCollections with respect to Accounts for the immediately preceding 60 day period, *minus*”. 

 

**Section 3.****Representations and Warranties.**In order to induce the Lender to enter into this Fifth Amendment, the Borrower hereby represents and warrants that: 

 

**3.01****No Default.** At and as of the date of this FifthAmendment and at and as of the Effective Date and both prior to and after giving effect to this Fifth Amendment, no Default or Event of Default exists and is continuing. 

 

**3.02****Representations and Warranties True and Correct.** At and as of the date of this Fifth Amendment andat and as of the Effective Date and both prior to and after giving effect 

 

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to this Fifth Amendment, each of the representations and warranties contained in the Loan Agreement and the other Loan Documents is true and correct in allmaterial respects. 

 

**3.03****Corporate Power,Etc.** The Borrower (a) has all requisite corporate power and authority to execute and deliver this Fifth Amendment and to consummate the transactions contemplated hereby and (b) has taken all action, corporate or otherwise, necessary toauthorize the execution and delivery of this Fifth Amendment and the consummation of the transactions contemplated hereby. 

 

**3.04****No Conflict.** Neither the execution and delivery of this Fifth Amendment nor consummation of the transactions contemplated herebywill (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 lapseof 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 anyconsent, 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 anyGovernmental Authority. 

 

**3.05****BindingEffect.** This Fifth 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 suchenforceability 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) theapplication of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). 

 

**Section 4.****Conditions.**This Fifth Amendment shall be effective as of September 22, 2003 (the “Effective Date”) upon the fulfillmentby the Borrower, in a manner satisfactory to the Lender, of all of the following conditions precedent set forth in this Section 4: 

 

**4.01****Execution of the Fifth Amendment.** Each of the parties hereto shall have executed an original counterpart of this Fifth Amendmentand shall have delivered (including by way of facsimile transmission) the same to the Lender. 

 

**4.02****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. 

 

**4.03****Representations and Warranties.**As of the Effective Date and as of the date of this Fifth Amendment, the representations and warranties set forth in Section 3 hereof shall be true and correct. 

 

**4.04****Fee.** The Borrower shall have paid to the Lender afee in the amount of $20,000.****

 

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**4.05****Compliance with Terms.** The Borrower shall have complied in all respects withthe terms hereof and of any other agreement, document, instrument or other writing to be delivered by the Borrower in connection herewith. 

 

**Section 5. General Confirmations and Amendments.**

 

**5.01****Continuing Effect.** Except as specifically provided herein, the Loan Agreement and the other Loan Documents shall remain in fullforce and effect in accordance with their respective terms and are hereby ratified and confirmed in all respects. 

 

**5.02****No Modification or Waiver.**This Fifth Amendment is limited as specified and the execution, delivery and effectiveness of thisFifth 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. 

 

**5.03 References.**

 

(a) From and after the Effective Date, (i) the Loan Agreement, the other Loan Documents and all agreements, instruments and documentsexecuted 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 Fifth Amendment and (ii) all of the terms and provisions of this FifthAmendment 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 LoanAgreement as amended hereby. 

 

**Section 6. Miscellaneous.**

 

**6.01****Governing Law.** THIS FIFTHAMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 

 

**6.02****Severability.** The provisions of this Fifth Amendment are severable, and if any clause or provision shall be held invalid orunenforceable 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 anyother jurisdiction, or any other clause or provision in this Fifth Amendment in any jurisdiction. 

 

**6.03****Counterparts.** This Fifth Amendment may be executed in any number of counterparts, each of which counterparts when executed anddelivered shall be an original, but 

 

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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.

 

**6.04****Headings.** Section headings in thisFifth Amendment are included herein for convenience of reference only and shall not constitute a part of this Fifth Amendment for any other purpose. 

 

**6.05****Binding Effect; Assignment.** This Fifth Amendment shall be binding upon and inure to the benefit of the Borrower and the Lenderand their respective successors and assigns; provided, however, that the rights and obligations of the Borrower under this Fifth Amendment shall not be assigned or delegated without the prior written consent of the Lender. 

 

**6.06****Expenses.** The Borrower agrees to pay the Lenderupon 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 FifthAmendment and any document required to be furnished herewith. 

 

[Signature page follows] 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be executed by theirrespective officers thereunto duly authorized, as of the date first above written. 

 

**BORROWER:**

 

**RMH TELESERVICES, INC.**
By: /s/    JAMES E. PERRY         
Name:
 **James E. Perry**
Title:
 **Senior Vice President Finance**
 

**LENDER:**

 

**WELLS FARGO FOOTHILL, INC.**
By: /s/    ANDREW T. FURLONG III         
Name:
 **Andrew T. Furlong III**
Title:
 **Vice President**
 

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