EXHIBIT 4.20
AMENDMENT TO LOAN AND SECURITY AGREEMENT AND
SCHEDULE TO LOAN AND SECURITY AGREEMENT
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This Amendment to Loan and Security Agreement and Schedule to Loan and
Security Agreement ("Amendment") dated as of the ____ day of February 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 ("Loan Agreement"), a certain Schedule to Loan and
Security Agreement ("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 definition of "Total Facility" set forth in the
Schedule is deleted and replaced with the following:
Ten Million Dollars ($10,000,000).
2. PAYMENT TO SUBORDINATED CREDITOR
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Notwithstanding the terms of that certain Subordination
Agreement dated March 25, 1997 among FINOVA, Borrower and Home Owners Long
Distance Incorporated ("Subordinated Creditor"), FINOVA hereby consents to
Borrower's repayment of the principal amount of Six Hundred Fifty Thousand
Dollars ($650,000.00), or such lesser amount outstanding on the date hereof,
plus all accrued but unpaid interest thereon, owing to Subordinated Creditor.
Borrower represents and warrants to FINOVA that after such payment is made to
Subordinated Creditor, it shall no longer be indebted to Subordinated Creditor.
Borrower agrees that it shall not incur any additional indebtedness owing to
Subordinated Creditor without the written consent of FINOVA.
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;
(b) Borrower shall have furnished to FINOVA appropriate
resolutions adopted by the Board of Directors of its corporate general partner
authorizing the execution and delivery of this Amendment and all such other
documents as are required hereunder or which FINOVA shall reasonably require in
addition hereto;
(c) FINOVA shall have received from Borrower an additional
facility fee in an amount equal to Twenty-five Thousand Dollars ($25,000) in
good cleared funds; and
(d) Borrower shall have executed and delivered to FINOVA a
restated promissory note in the principal amount of $10,000,000 in form and
substance acceptable to FINOVA.
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. 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.
(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:__________________________
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Xxxxx XxXxxxxxx, 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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Xxxxxx Box
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Xxxxx Xxxxxxx
