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