EXHIBIT 4.21
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT AND
SCHEDULE TO LOAN AND SECURITY AGREEMENT
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This Second Amendment to Loan and Security Agreement and Schedule to
Loan and Security Agreement ("Amendment") dated as of the ____ day of April,
1998 is by and between HOLD BILLING SERVICES, LTD., a Texas limited partnership
("Borrower") and FINOVA CAPITAL CORPORATION ("FINOVA").
BACKGROUND
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A. On March 25, 1997, Borrower and FINOVA entered into a certain Loan
and Security Agreement (as amended from time to time, "Loan Agreement"), a
certain Schedule to Loan and Security Agreement (as amended from time to time,
"Schedule") and certain related agreements and instruments to reflect financing
arrangements between the parties thereto (collectively the "Loan Documents").
All capitalized terms used herein without definition shall have the meanings
ascribed thereto in the Loan Agreement and the Schedule.
B. The Borrower and FINOVA have agreed, subject to the terms and
conditions of this Amendment, to modify and amend certain terms of their
financing arrangements.
NOW THEREFORE, with the foregoing Background deemed incorporated by
reference herein and made a part hereof, the parties hereto, intending to be
legally bound, hereby promise and agree as follows:
1. AMENDMENTS:
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1.1 The limit on Capital Expenditures referenced in Section
14.9 of the Loan Agreement and described in Section 14 of the Schedule is
increased by replacing the description in Section 14 of the Schedule as follows:
Capital Expenditures: Borrower shall not make or
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incur any Capital Expenditure if, after giving effect
thereto, the aggregate amount of all Capital
Expenditures by Borrower in its fiscal year ending
December 31, 1998 would exceed $600,000 or, in each
fiscal year thereafter, $150,000.
2. DISTRIBUTIONS TO AVERY
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Notwithstanding the terms of Section 14.3 of the Loan
Agreement, FINOVA consents to a distribution by Borrower to Avery of $1,450,000,
to occur prior to August 10, 1998 and upon prior written notice to FINOVA, to
enable Avery to purchase certain investors' equity interests in Avery, provided
that not less than $1,150,000 of the proceeds of such distribution are used
solely for such purposes and the balance to be used for working capital and no
Event of Default is outstanding at the time of such distribution or would occur
after taking into account the effects of such distribution.
3. FURTHER ASSURANCES
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Borrower hereby agrees to take all such actions and to execute
and/or deliver to FINOVA all such documents, assignments, financing statements
and other documents as FINOVA may reasonably require from time to time, to
effectuate and implement the purposes of this Amendment.
4. CONFIRMATION OF COLLATERAL
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Borrower hereby confirms its existing grant to FINOVA of a
security interest in the Collateral. Borrower hereby confirms that all security
interests at any time granted by them to FINOVA continue in full force and
effect and secure and shall continue to secure the liabilities and obligations
of Borrower so long as any such liabilities or obligations remain outstanding
and that all assets subject thereto remain free and clear of any liens or
encumbrances other than those in favor of FINOVA or as specifically set forth in
the Agreement and exhibits thereto.
5. REPRESENTATIONS AND WARRANTIES
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Borrower hereby reaffirms all representations and warranties
made to FINOVA under the Loan Agreement and all of the other Loan Documents and
confirms that all are true and correct as of the date hereof. Borrower further
represents and warrants that it has the authority and legal right to execute,
deliver and carry out the terms of this Amendment, that such actions were duly
authorized by all necessary limited partnership action on the part of Borrower
and that the parties executing this Amendment on its behalf were similarly
authorized and empowered, and that this Amendment does not contravene any
provisions of its Agreement of Limited partnership or Certificate of Limited
Partnership, or of any contract or agreement to which it is a party or by which
any of its properties is bound. Borrower reaffirms all of the covenants
contained in the Agreement and covenants to abide thereby until all of the Loans
and other liabilities and obligations of Borrower to FINOVA, of whatever nature
and whenever incurred, are satisfied and/or released by FINOVA.
6. CONDITIONS PRECEDENT
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The Amendment shall not be effective until the following
conditions have been met to the sole satisfaction of FINOVA:
(a) Borrower shall have executed and delivered to FINOVA this
Amendment and FINOVA shall have executed this Amendment; and
(b) FINOVA shall have received from Borrower an amendment fee
in an amount equal to Twenty Thousand Two Hundred Dollars ($20,200) in good
cleared funds.
7. PAYMENT OF EXPENSES
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Borrower shall pay or reimburse FINOVA for its reasonable
attorneys' fees and expenses in connection with the preparation, negotiation and
execution of this Amendment and the documents provided for herein or related
hereto.
8. REAFFIRMATION OF EXISTING AGREEMENT
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Except as modified by the terms hereof, all of the terms and
conditions of the Loan Agreement, and Schedule and all of the other Loan
Documents are hereby reaffirmed and shall continue in full force and effect as
therein written. In the event of any express inconsistency between the terms of
this Amendment and the terms of any of the Loan Documents, the terms hereof
shall govern.
9. ADDITIONAL FEE
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Borrower acknowledges that it has already made a distribution
to Avery of the type described in Section 2 of this Amendment in the amount of
$450,000. Contemporaneously with the making of any further distributions to
Avery as permitted in Section 2 hereof, Borrower shall pay to FINOVA a
non-refundable fee in the amount of $44,800.00, in good cleared funds.
10. MISCELLANEOUS
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(a) Third Party Rights. No rights are intended to be created
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hereunder for the benefit of any third party donee, creditor, or incidental
beneficiary.
(b) Headings. The headings of any paragraph of this Amendment
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are for convenience only and shall not be used to interpret any provision
hereof.
(c) Other Instruments. Borrower agrees to execute any other
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documents, instruments and writings, in form satisfactory to FINOVA, as FINOVA
may reasonably request to carry out the intentions of the parties hereunder.
(d) Modifications. No modification hereof or any agreement
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referred to herein shall be binding or enforceable unless in writing and signed
on behalf of the party against whom enforcement is sought.
(e) Governing Law. The terms and conditions of this Amendment
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shall be governed by the laws of the State of Arizona.
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(f) Counterparts. This Amendment may be executed in one or
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more counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date above
written.
HOLD BILLING SERVICES, LTD. FINOVA CAPITAL CORPORATION
By: HBS, INC., its sole general partner By:____________________________
By:____________________________________
Scott McCormick, Vice President
Attest:________________________________
Secretary or Assistant Secretary
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By their execution hereof, each of the undersigned acknowledge and agree that
the Validity and Support Agreements executed by them on March 25, 1997 in favor
of FINOVA continue in full force and effect.
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Harold Box
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David Mechler