EXHIBIT 10(r)(xix)
AMENDMENT NUMBER EIGHT TO
LOAN AND SECURITY AGREEMENT
QMS, INC.
This AMENDMENT NUMBER EIGHT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is entered into as of November 17, 1998, by and between Foothill Capital
Corporation, a California corporation ("Foothill"), on the one hand, and QMS,
Inc., a Delaware corporation ("Borrower"), with reference to the following
facts:
A. Foothill and Borrower heretofore have entered into that certain Loan and
Security Agreement, dated as of November 7, 1995 as amended by that certain
Amendment Number One to Loan and Security Agreement, dated as of December 4,
1995, as further amended by that certain Amendment Number Two to Loan and
Security Agreement, dated as of February 7, 1996, as further amended by that
certain Amendment Number Three to Loan and Security Agreement, dated as of
July 31, 1996, as further amended by that certain Amendment Number Four to
Loan and Security Agreement, dated as of January 22, 1997, as further amended
by that certain Amendment Number Five to Loan and Security Agreement, dated
as of June 23, 1997, as further amended by that certain Amendment Six to Loan
and Security Agreement, dated as of October 8, 1997 and as further amended by
that certain Amendment Number Seven to Loan and Security Agreement, dated as
of September 23, 1998 (as so amended and otherwise modified from time to
time, the "Agreement");
B. Borrower has requested that Foothill amend the Agreement to increase the
Total Liabilities to Tangible Net Worth Ratio, as set forth in this
Amendment;
C. Foothill is willing to so amend the Agreement in accordance with the terms
and conditions hereof; and
D. All capitalized terms used herein and not defined herein shall have the
meanings ascribed to them in the Agreement, as amended hereby.
NOW, THEREFORE, in consideration of the above recitals and the mutual premises
contained herein, Foothill and Borrower agree as follows:
1. Amendment to the Agreement.
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a. Section 6.13(b) of the Agreement hereby is deleted in its entirety and
the following hereby is substituted in lieu thereof:
"(b) Total Liabilities to Tangible Net Worth Ratio. Effective as of
September 30, 1998, a ratio of Borrower's total liabilities divided by Tangible
Net Worth of not more than four to one (4.0:1.0), measured on a fiscal quarter-
end basis; and"
2. Fees. Foothill shall charge Borrower's loan account an amendment fee in
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the amount of Fifteen Thousand Dollars ($15,000.00) and a documentation fee in
the amount of Two Hundred Fifty ($250). Said fees shall be fully-earned, non-
refundable, and due and payable on the date Borrower's loan account is charged.
3. Representations and Warranties. Borrower hereby represents and warrants to
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Foothill that (a) the execution, delivery, and performance of this Amendment and
of the Agreement, as amended by this Amendment, are within its corporate powers,
have been duly authorized by all necessary corporate action, and are not in
contravention of any law, rule, or regulation, or any order, judgment, decree,
writ, injunction, or award of any arbitrator, court, or governmental authority,
or of the terms of its charter or bylaws, or of any contract or undertaking to
which it is a party or by which any
of its properties may be bound or affected, and (b) this Amendment and the
Agreement, as amended by this Amendment, constitute Borrower's legal, valid, and
binding obligation, enforceable against Borrower in accordance with its terms.
4. Conditions Precedent to Amendment. The satisfaction of each of the
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following on or before, unless otherwise specified below, shall constitute
conditions precedent to the effectiveness of this Amendment:
a. Foothill shall have received the reaffirmation and consent of the
Guarantors attached hereto as Exhibit A, duly executed and delivered by the
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respective authorized officials thereof;
b. Foothill shall have received all required consents of Foothill's
participants in the obligations to Foothill's execution, delivery, and
performance of this Amendment;
c. The representations and warranties in this Amendment, the Agreement as
amended by this Amendment, 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);
d. No Event of Default or event which with the giving of notice or passage
of time would constitute an Event of Default shall have occurred and be
continuing on the date hereof, nor shall result from the consummation of the
transactions contemplated herein;
e. 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 Borrower, Foothill, or any of their Affiliates;
f. The Collateral shall not have declined materially in value from the
values set forth in the most recent appraisals of field examinations previously
done by Foothill;
g. All other documents and legal matters in connections with the
transactions contemplated by this Amendment shall have been delivered or
executed or recorded and shall be in form and substance satisfactory to Foothill
and its counsel.
5. Effect on Agreement. The Agreement, as amended hereby, shall be and remain
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in full force and effect in accordance with its respective terms and hereby is
ratified and confirmed in all respects. The execution, delivery, and
performance of this Amendment shall not operate as a waiver of or, except as
expressly set forth herein, as an amendment, of any right, power, or remedy of
Foothill under the Agreement, as in effect prior to the date hereof.
6. Further Assurances. Borrower shall, and shall cause Guarantor to, execute
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and deliver all agreements, documents, and instruments, in form and substance
satisfactory to Foothill, and take all actions as Foothill may reasonably
request from time to time, to perfect and maintain the perfection and priority
of Foothill's security interests in the Collateral, the collateral in which
Guarantor has granted or is required to grant security interest in favor of
Foothill, and the Real Property, and to fully consummate the transactions
contemplated under this Amendment and the Agreement, as amended by this
Amendment.
7. Miscellaneous.
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a. Upon the effectiveness of this Amendment, each reference in the
Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of like
import referring to the Agreement shall mean and refer to the Agreement as
amended by this Amendment.
b. Upon the effectiveness of this Amendment, each reference in the Loan
Documents of the "Loan Agreement", "thereunder", "therein", "thereof" or words
of like import referring to the Agreement shall mean and refer to the Agreement
as amended by this Amendment.
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c. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first written above.
FOOTHILL CAPITAL CORPORATION QMS, INC.,
A California corporation a Delaware corporation
By: /s/ Xxxxxxxxxxx X. Xxxxx By /s/ Xxxxx X. Xxxxx for Xxxxx X. Xxxxxxx
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Xxxxxxxxxxx X. Xxxxx Xxxxx X. Xxxxxxx
Title: Vice President Title: Chief Financial Officer
EXHIBIT A
Reaffirmation and Consent
All capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to them in that certain Amendment Number Eight to
Loan and Security Agreement, dated as of November 17, 1998 (the "Amendment").
Each of the undersigned hereby (a) represents and warrants to Foothill that the
execution, deliver, and performance of this Reaffirmation and Consent are within
its corporate powers, have been duly authorized by all necessary corporate
action, and are not in contravention of any law, rule, or regulation, or any
order, judgment, decree, writ, injunction, or award of any arbitrator, court, or
governmental authority, or of the terms of its charter or bylaws or of any
contract or undertaking to which it is a party or by which any of its properties
may be bound or affected; (b) consents to the amendment of the Agreement by the
Amendment; (c) acknowledges and reaffirms its obligations owing to Foothill
under its Guaranty and each of the other Loan Documents to which it is party;
and (d) agrees that each of the Guaranty and the other Loan Documents to which
it is a party is and shall remain in full force and effect. Although each of
the undersigned has been informed of the matters set forth herein and has
acknowledged and agreed to same, it understands that Foothill has no obligation
to inform it of such matters in the future or to seek its acknowledgment or
agreement to future amendments, and nothing herein shall create such a duty.
QMS CIRCUITS, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxx for Xxxxx X. Xxxxxxx
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Xxxxx X Xxxxxxx
Title: Secretary and Treasurer
QMS CANADA, INC., a corporation incorporated under
the laws of Canada
By: /s/ Xxxxx X. Xxxxx for Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Title: Secretary and Treasurer
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