Exhibit 10.9.4
SECOND AMENDMENT TO
LOAN AGREEMENT AND LOAN DOCUMENTS
THIS SECOND AMENDMENT TO LOAN AGREEMENT AND LOAN DOCUMENTS ("Second
Amendment") dated as of the ____ day of July, 1999, is made and entered into on
the terms and conditions hereinafter set forth, by and among IMTEK OFFICE
SOLUTIONS, INC., a Delaware corporation ("Imtek Office Solutions"), IMTEK
CORPORATION, a Maryland corporation ("Imtek Corporation"), IMTEK SERVICES
CORPORATION, a Maryland corporation ("Imtek Services"), IMTEK FUNDING
CORPORATION, a Maryland corporation ("Imtek Funding"), IMTEK ACQUISITION
CORPORATION, a Maryland corporation ("Imtek Acquisition"), BARBERA BUSINESS
SYSTEMS, INC., a Maryland corporation ("Barbera") and IMTEK CAPITAL CORPORATION,
a Maryland corporation ("Imtek Capital") (Imtek Office Solutions, Imtek
Corporation, Imtek Services, Imtek Funding, Imtek Acquisition, Barbera and Imtek
Capital are referred to herein from time to time individually as a "Borrower"
and collectively as the "Borrowers"), and FINOVA MEZZANINE CAPITAL INC., a
Tennessee corporation, f/k/a Sirrom Capital Corporation ("Lender").
W I T N E S S E T H:
WHEREAS, Lender has previously made a term loan to the Borrowers
(excluding Barbera and Imtek Capital) in the original principal amount of Six
Million and No/100ths Dollars ($6,000,000.00) (the "Loan") on the terms and
conditions set forth in that certain Loan Agreement dated as of May 29, 1998, by
and among Lender and Imtek Office Solutions, Imtek Corporation, Imtek Services,
Imtek Funding and Imtek Acquisition (as now or hereafter amended, the "Loan
Agreement");
WHEREAS, the Loan is further evidenced and secured by certain
agreements, documents and instruments as more particularly described in the Loan
Agreement and defined therein as the "Loan Documents";
WHEREAS, Borrowers have requested Lender's consent and Lender has
consented to the refinancing and increasing of Borrower's senior credit facility
and to the creation of Imtek Capital, as a new subsidiary of Imtek Services, in
accordance with and subject to the terms and conditions of the Loan Agreement,
which provide among other things that any affiliates of Borrowers resulting from
such a transaction become bound by the terms of the Loan Agreement and the Loan
Documents;
WHEREAS, Borrowers and Lender desire that Imtek Capital and Barbera
become parties to and be bound by the terms and conditions, covenants and other
provisions of the Loan Agreement and Loan Documents;
WHEREAS, this Second Amendment shall amend the Loan Agreement and Loan
Documents.
1
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrowers and Lender hereby agree as follows:
1. Capitalized terms used herein but not otherwise defined shall have
the meanings ascribed thereto in the Loan Agreement.
2. The obligations of Borrowers in connection with and/or relating to
the Loan are further evidenced and/or secured by the Loan Documents.
3. Borrowers hereby represent and warrant, jointly and severally, to
Lender that all of the representations made in Section 2 of the Loan Agreement,
as amended, are true and correct as of the date hereof, except as modified or
supplemented by SCHEDULE A attached hereto and incorporated herein by this
reference.
4. Borrowers hereby represent and warrant, jointly and severally, to
Lender that the address(es) set forth on SCHEDULE B attached hereto and
incorporated herein by this reference are the principal places of Imtek
Capital's and Barbera's business and the location of all tangible collateral and
the place where the records concerning all intangible collateral are kept and/or
maintained.
5. Borrowers warrant and represent, jointly and severally, that (a)
the Loan Documents are valid, binding and enforceable against Borrowers
according to their terms, subject to principles of equity and laws applicable to
the rights of creditors generally, including bankruptcy laws, (b) no default or
Event of Default presently exists under the Loan Documents and no condition
presently exists which, with the giving of notice, the passing of time, or both,
would cause such a default or Event of Default. Borrowers further acknowledge
that Borrowers' obligations evidenced by the Loan Documents are not subject to
any counterclaim, defense or right of setoff, and Borrowers hereby release
Lender from any claim, known or unknown, that Borrowers may have against Lender
as of the execution of this Second Amendment.
6. The terms "Loan Document" and "Loan Documents" as defined in the
Loan Agreement are amended to include this Second Amendment.
7. The terms "Borrower" and "Borrowers" as defined in the Loan
Agreement are amended to include Imtek Capital and Barbera. Each of the
Borrowers hereby acknowledges that all references to a "Borrower" and the
"Borrowers" in the Loan Documents shall hereafter include Imtek Capital and
Barbera and that Imtek Capital and Barbera are and shall be bound by the terms
of the Loan Agreement and the Loan Documents.
8. The Borrowers hereby represent and warrant that Imtek Capital is
in the same line of business as presently conducted by the other Borrowers
(excluding Imtek Acquisition).
9. The Borrowers and Lender hereby agree that the Security Agreement
referred to in the Loan Agreement is amended to grant Lender a security interest
in all of the Collateral (as defined in said Security Agreement) of
2
Imtek Acquisition, Barbera and Imtek Capital, such security interests to be
evidenced by the filing of financing statements in the appropriate filing
offices.
10. Based on the terms of the Second Amendment, Lender hereby consents
to the creation of Imtek Capital.
11. This Second Amendment may be executed in any number of counterparts
and by different parties to this Second Amendment in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same Second Amendment.
12. Except as modified and amended hereby, the Loan Documents shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment, or have caused this Second Amendment to be executed by their duly
authorized officers, as of the day and year first above written.
BORROWER:
IMTEK OFFICE SOLUTIONS, INC.,
a Delaware corporation
By:
-----------------------------------
Title:
---------------------------------
IMTEK CORPORATION,
a Maryland corporation
By:
-----------------------------------
Title:
---------------------------------
IMTEK SERVICES CORPORATION,
a Maryland corporation
By:
-----------------------------------
Title:
---------------------------------
(signatures continue on next page)
3
IMTEK FUNDING CORPORATION,
a Maryland corporation
By:
-----------------------------------
Title:
---------------------------------
IMTEK ACQUISITION CORPORATION,
a Maryland corporation
By:
-----------------------------------
Title:
---------------------------------
BARBERA BUSINESS SYSTEMS, INC.,
a Maryland corporation
By:
-----------------------------------
Title:
---------------------------------
IMTEK CAPITAL CORPORATION,
a Maryland corporation
By:
-----------------------------------
Title:
---------------------------------
LENDER:
FINOVA MEZZANINE CAPITAL INC.,
a Tennessee corporation, f/k/a Sirrom
Capital Corporation
By:
-----------------------------------
Title:
---------------------------------
4
SCHEDULE A
MODIFICATIONS AND SUPPLEMENTS
TO
REPRESENTATIONS AND WARRANTIES
5
SCHEDULE B
LOCATION OF PRINCIPAL PLACE
OF BUSINESS AND COLLATERAL
THIS INSTRUMENT AND ALL RIGHTS OF THE PARTIES HEREUNDER ARE SUBJECT TO AND
GOVERNED BY THE TERMS AND CONDITIONS OF A SUBORDINATION AND INTERCREDITOR
AGREEMENT DATED JULY ___, 1999, BY AND BETWEEN THE PROVIDENT BANK AND FINOVA
MEZZANINE CAPITAL INC. WITHOUT LIMITATION TO THE FOREGOING, ALL RIGHTS OF
PAYMENT, LIEN RIGHTS, AND ENFORCEMENT RIGHTS OF THE HOLDER OF THIS INSTRUMENT,
ARE EXPRESSLY SUBORDINATED AND SUBJECT TO THE RIGHTS OF THE PROVIDENT BANK.
6
