EXHIBIT 10.9.5
AMENDED AND RESTATED
SECURED PROMISSORY NOTE
$6,000,000.00 July ___, 1999
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FOR VALUE RECEIVED, the undersigned, IMTEK OFFICE SOLUTIONS, INC., a
Delaware corporation, IMTEK CORPORATION, a Maryland corporation, IMTEK SERVICES
CORPORATION, a Maryland corporation, IMTEK FUNDING CORPORATION, a Maryland
corporation, IMTEK ACQUISITION CORPORATION, a Maryland corporation, BARBERA
BUSINESS SYSTEMS, INC., a Maryland corporation and IMTEK CAPITAL CORPORATION, a
Maryland corporation (collectively "Maker"), promise to pay to the order of
FINOVA MEZZANINE CAPITAL INC., a Tennessee corporation, f/k/a Sirrom Capital
Corporation ("Payee"; Payee and any subsequent holder[s] hereof are hereinafter
referred to collectively as "Holder"), at the office of Payee at Finova
Mezzanine Capital Inc., P.O. Box 30378, Nashville, TN 37241-0378, or at such
other place as Holder may designate to Maker in writing from time to time, the
principal sum of up to SIX MILLION AND NO/100THS DOLLARS ($6,000,000.00) or so
much thereof as is disbursed hereunder, together with interest on the
outstanding principal balance hereof from the date hereof at the rate of
fourteen percent (14.0%) per annum (computed on the basis of a 360-day year).
Interest only on the outstanding principal balance hereof shall be due
and payable monthly, in arrears, with the first installment being payable on the
first (1st) day of August, 1999, and subsequent installments being payable on
the first (1st) day of each succeeding month thereafter until May 28, 2003 (the
"Maturity Date"), at which time the entire outstanding principal balance,
together with all accrued and unpaid interest, shall be immediately due and
payable in full.
Any advance by Payee to Maker that is not evidenced by another
instrument or agreement between the parties shall be conclusively presumed to
have been made hereunder when such advance is made in accordance with the oral
or written instructions of Maker. The entire balance of all advances hereunder
that may be outstanding from time to time shall constitute a single
indebtedness, and no single advance increasing the outstanding balance hereof
shall itself be considered a separate loan, but rather an increase in the
aggregate outstanding balance of the indebtedness evidenced hereby.
The indebtedness evidenced hereby may be prepaid in whole or in part,
at any time and from time to time, without premium or penalty. Any such
prepayments shall be credited first to any accrued and unpaid interest and then
to the outstanding principal balance hereof.
Time is of the essence of this Note. It is hereby expressly agreed that
in the event that any Event of Default shall occur under and as defined in that
certain Loan Agreement dated May 29, 1998, between Maker and Payee (as amended
from time to time, the "Loan Agreement"), which Event of Default is not cured
following the giving of any applicable notice and within any applicable cure
period set forth in the Loan Agreement, then, and in such event, the entire
outstanding principal balance of the indebtedness evidenced hereby, together
with any other sums advanced hereunder, under the Loan Agreement and/or under
any other instrument or document now or hereafter evidencing, securing or in any
way relating to the indebtedness evidenced hereby, together with all unpaid
interest accrued thereon, shall, at the option of Holder and without notice to
Maker, at once become due and payable and may be collected forthwith, regardless
of the stipulated date of maturity. Upon the occurrence of any Event of Default
as set forth herein, at the option of Holder and
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without notice to Maker, all accrued and unpaid interest, if any, shall be added
to the outstanding principal balance hereof, and the entire outstanding
principal balance, as so adjusted, shall bear interest thereafter until paid at
an annual rate (the "Default Rate") equal to the lesser of (i) the rate that is
seven percentage points (7.0%) in excess of the above-specified interest rate,
or (ii) the maximum rate of interest allowed to be charged under applicable law
(the "Maximum Rate"), regardless of whether or not there has been an
acceleration of the payment of principal as set forth herein. All such interest
shall be paid at the time of and as a condition precedent to the curing of any
such Event of Default.
In the event this Note is placed in the hands of an attorney for
collection, or if Holder incurs any costs incident to the collection of the
indebtedness evidenced hereby, Maker and any endorsers hereof agree to pay to
Holder an amount equal to all such costs, including without limitation all
reasonable attorneys' fees and all court costs.
Presentment for payment, demand, protest and notice of demand, protest
and nonpayment are hereby waived by Maker and all other parties hereto. No
failure to accelerate the indebtedness evidenced hereby by reason of an Event of
Default hereunder, acceptance of a past-due installment or other indulgences
granted from time to time, shall be construed as a novation of this Note or as a
waiver of such right of acceleration or of the right of Holder thereafter to
insist upon strict compliance with the terms of this Note or to prevent the
exercise of such right of acceleration or any other right granted hereunder or
by applicable law. No extension of the time for payment of the indebtedness
evidenced hereby or any installment due hereunder, made by agreement with any
person now or hereafter liable for payment of the indebtedness evidenced hereby,
shall operate to release, discharge, modify, change or affect the original
liability of Maker hereunder or that of any other person now or hereafter liable
for payment of the indebtedness evidenced hereby, either in whole or in part,
unless Holder agrees otherwise in writing. This Note may not be changed orally,
but only by an agreement in writing signed by the party against whom enforcement
of any waiver, change, modification or discharge is sought.
This Note amends and restates that written Secured Promissory Note
dated May 29, 1998 and the indebtedness and other obligations evidenced by this
Note are further evidenced by (i) the Loan Agreement and (ii) certain other
instruments and documents, as may be required to protect and preserve the rights
of Maker and Payee, as more specifically described in the Loan Agreement.
All agreements herein made are expressly limited so that in no event
whatsoever, whether by reason of advancement of proceeds hereof, acceleration of
maturity of the unpaid balance hereof or otherwise, shall the amount paid or
agreed to be paid to Holder for the use of the money advanced or to be advanced
hereunder exceed the Maximum Rate. If, from any circumstances whatsoever, the
fulfillment of any provision of this Note or any other agreement or instrument
now or hereafter evidencing, securing or in any way relating to the indebtedness
evidenced hereby shall involve the payment of
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interest in excess of the Maximum Rate, then, IPSO FACTO, the obligation to pay
interest hereunder shall be reduced to the Maximum Rate; and if from any
circumstance whatsoever, Holder shall ever receive interest, the amount of which
would exceed the amount collectible at the Maximum Rate, such amount as would be
excessive interest shall be applied to the reduction of the principal balance
remaining unpaid hereunder and not to the payment of interest. This provision
shall control every other provision in any and all other agreements and
instruments existing or hereafter arising between Maker and Holder with respect
to the indebtedness evidenced hereby.
This Note is intended as a contract under and shall be construed and
enforceable in accordance with the laws of the State of Tennessee, except to the
extent that federal law may be applicable to the determination of the Maximum
Rate.
Maker hereby irrevocably consents to the jurisdiction of the United
States District Court for the Middle District of Tennessee and of all Tennessee
state courts sitting in Davidson County, Tennessee, for the purpose of any
litigation to which Lender may be a party and which concerns this Note or the
indebtedness evidenced hereby. It is further agreed that venue for any such
action shall lie exclusively with courts sitting in Davidson County, Tennessee,
unless Holder agrees to the contrary in writing.
HOLDER AND MAKER HEREBY KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF
COUNSEL WAIVE TRIAL BY JURY IN ANY ACTIONS, PROCEEDINGS, CLAIMS OR
COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, AT LAW OR IN EQUITY,
ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE LOAN DOCUMENTS.
As used herein, the terms "Maker" and "Holder" shall be deemed to
include their respective successors, legal representatives and assigns, whether
by voluntary action of the parties or by operation of law.
MAKER:
IMTEK OFFICE SOLUTIONS, INC.,
a Delaware corporation
By:
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Title:
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IMTEK CORPORATION,
a Maryland corporation
By:
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Title:
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IMTEK SERVICES CORPORATION,
a Maryland corporation
By:
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Title:
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IMTEK FUNDING CORPORATION,
a Maryland corporation
By:
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Title:
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IMTEK ACQUISITION CORPORATION,
a Maryland corporation
By:
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Title:
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BARBERA BUSINESS SYSTEMS, INC.,
a Maryland corporation
By:
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Title:
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IMTEK CAPITAL CORPORATION,
a Maryland corporation
By:
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Title:
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