EXHIBIT 4.22
FINOVA
SECURED REVOLVING CREDIT NOTE
$7,500,000 March , 1997
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FOR VALUE RECEIVED, the undersigned, HOLD BILLING SERVICES, LTD. (the
"Undersigned"), a Texas limited partnership with a principal place of business
at 00000 XX-00 Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000, hereby promises to pay
to FINOVA CAPITAL CORPORATION ("FINOVA"), or order, at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 or at such other address as the holder
may specify in writing, the principal sum of Seven Million Five Hundred Thousand
Dollars ($7,500,000), or such lesser sum which represents the principal balance
of Loans outstanding under the Total Facility established pursuant to the
provisions of that certain Loan and Security Agreement dated of even date
herewith, between the Undersigned and FINOVA (as amended from time to time, the
"Agreement"), plus interest in the manner and upon the terms and conditions set
forth below. This Secured Revolving Credit Note ("Note") is made pursuant to the
Agreement, the provisions of which are incorporated herein by this reference.
Capitalized terms herein, unless otherwise noted, shall have the meaning set
forth in the Agreement. The actual amount due and owing hereunder shall be
evidenced by XXXXXX's records of receipts and disbursements with respect to
Loans, which records shall be conclusive of such amount due and owing under the
Agreement.
1.0 RATE AND PAYMENT OF INTEREST.
The outstanding principal balance of this Note shall bear interest at a
per annum rate of one and one-half percentage points (1.5%) in excess of the
Base Rate. The interest rate chargeable hereunder shall be increased or
decreased, as the case may be, without notice or demand of any kind, upon the
announcement of any change in the Base Rate. Each change in the Base Rate shall
be effective hereunder on the first day following the announcement of such
change. Interest charges and all other fees and charges herein shall be computed
on the basis of a year of 360 days and actual days elapsed and shall be payable
to FINOVA in arrears on the first day of each month hereafter at its address set
forth above. Accrued but unpaid interest under this Note shall be due and
payable on the first day of each month, commencing April 1, 1997, and at
maturity, on which date all interest remaining unpaid shall be due and payable.
2.0 SCHEDULE OF PRINCIPAL PAYMENTS.
A final installment of all outstanding principal, accrued and unpaid
interest and all other sums payable pursuant to the Loan Documents on the
expiration of the Initial Term or any Renewal Term as agreed to by FINOVA
pursuant to the Loan Documents, unless due earlier pursuant to the terms of the
Agreement.
3.0 PREPAYMENT.
Prepayment may be made under this Note in whole or in part, subject to
the Termination Fee, as applicable, as set forth in the Agreement.
4.0 HOLDER'S RIGHT OF ACCELERATION.
If the Agreement is terminated for any reason whatsoever, or if there
shall occur an Event of Default or if this Note is not paid when due, the entire
remaining principal balance and all accrued and unpaid interest and other fees
and charges with respect to this Note shall, at FINOVA's option, become
immediately due and payable.
5.0 HOLDER'S RIGHTS UPON DEFAULT.
If any Event of Default occurs, then from the date such Event of
Default occurs, in addition to any agreed upon charges, the principal balance of
this Note shall thereafter, at FINOVA's option, bear interest at two percentage
points (2.0%) per annum in excess of the rate set forth in Section 1.0, computed
on the basis of a year of three hundred sixty (360) days and the actual number
of days elapsed.
6.0 ADDITIONAL RIGHTS OF HOLDER.
If any installment of principal or interest hereunder is not paid when
due, the holder shall have, in addition to the rights set forth herein, in the
Agreement and under law, the right to compound interest by adding the unpaid
interest to principal, with such amount thereafter bearing interest at the rate
provided in this Note.
7.0 General Provisions.
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7.1 If this Note is not paid when due or upon the occurrence of an
Event of Default, the Undersigned further promises to pay all costs of
collection, foreclosure fees, reasonable attorneys' fees and expert
witness fees incurred by the holder, whether or not suit is filed
hereon, and the fees, costs and expenses as provided in the Agreement.
7.2 The Undersigned hereby consents to any and all renewals,
replacements and/or extensions of time for payment of this Note before,
at or after maturity.
7.3 The Undersigned hereby consents to the acceptance, release or
substitution of security for this Note.
7.4 Presentment for payment, notice of dishonor, protest and notice of
protest are hereby expressly waived by the Undersigned.
7.5 The contracted for rate of interest of the loan contemplated
hereby, without limitation, shall consist of the following: (i) the
interest rate set forth on the Schedule, calculated and applied to the
principal balance of this Note in accordance with the provisions of
this Note; (ii) interest after an Event of Default, calculated and
applied to the amounts due under this Note in accordance with the
provisions hereof including, without limitation, after entry of a
judgment; and (iii) all Additional Sums (as herein defined), if any.
The Undersigned agrees to pay an effective contracted for rate of
interest which is the sum of the above-referenced elements. All
examination fees, attorneys' fees, expert witness fees, letter of
credit fees, collateral monitoring fees, closing fees, Loan Fees,
Termination Fees, Unused Line Fees, minimum interest charges, other
charges, goods, things in action or any other sums or things of value
paid or payable by the Undersigned (collectively, the "Additional
Sums), whether pursuant to this Note, the Agreement or any other
documents or instruments in any way pertaining to this lending
transaction, or otherwise with respect to this lending transaction,
that under any applicable law may be deemed to be interest with respect
to this lending transaction, for the purpose of any applicable law that
may limit the maximum amount of interest to be charged with respect to
this lending transaction, shall be payable by the Undersigned as, and
shall be deemed to be, additional interest and for such purposes only,
the agreed upon and "contracted for rate of interest" of this lending
transaction shall be deemed to be increased by the rate of interest
resulting from the inclusion of the Additional Sums.
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It is the intent of the parties to comply with the usury law of the
State of Arizona (the "Applicable Usury Law"). Accordingly, it is
agreed that notwithstanding any provisions to the contrary in this
Note, or in any of the documents securing payment hereof or otherwise
relating hereto, in no event shall this Note or such documents require
the payment or permit the collection of interest in excess of the
maximum contract rate permitted by the Applicable Usury Law (the
"Maximum Interest Rate"). In the event (a) any such excess of interest
otherwise would be contracted for, charged or received from the
Undersigned or otherwise in connection with the Loans evidenced hereby,
(b) the maturity of indebtedness evidenced by this Note is accelerated
in whole or in part, or (c) all or part of the principal or interest of
this Note shall be prepaid, so that under any of such circumstances the
amount of interest contracted for, shared or received in connection
with the Loans evidenced hereby, would exceed the Maximum Interest
Rate, then in any such event (1) the provisions of this paragraph shall
govern and control, (2) neither the Undersigned nor any other person or
entity now or hereafter liable for the payment hereof shall be
obligated to pay the amount of such interest to the extent that it is
in excess of the Maximum Interest Rate, (3) any such excess which may
have been collected shall be either applied as a credit against the
then unpaid principal amount hereof or refunded to the Undersigned, at
FINOVA's option, and (4) the effective rate of interest shall be
automatically reduced to the Maximum Interest Rate. It is further
agreed, without limiting the generality of the foregoing, that to the
extent permitted by the Applicable Usury Law; (x) all calculations of
interest which are made for the purpose of determining whether such
rate would exceed the Maximum Interest Rate shall be made by
amortizing, prorating, allocating and spreading during the period of
the full stated term of the Loans evidenced hereby, all interest at any
time contracted for, charged or received from the Undersigned or
otherwise in connection with such Loans; and (y) in the event that the
effective rate of interest on the Loans should at any time exceed the
Maximum Interest Rate, such excess interest that would otherwise have
been collected had there been no ceiling imposed by the Applicable
Usury Law shall be paid to FINOVA from time to time, if and when the
effective interest rate on the Loans otherwise falls below the Maximum
Interest Rate, to the extent that interest paid to the date of
calculation does not exceed the Maximum Interest Rate, until the entire
amount of interest which would otherwise have been collected had there
been no ceiling imposed by the Applicable Usury Law has been paid in
full. The Undersigned further agrees that should the Maximum Interest
Rate be increased at any time hereafter because of a
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change in the Applicable Usury Law, then to the extent not prohibited
by the Applicable Usury Law, such increases shall apply to all
indebtedness evidenced hereby regardless of when incurred; but, again
to the extent not prohibited by the Applicable Usury Law, should the
Maximum Interest Rate be decreased because of a change in the
Applicable Usury Law, such decreases shall not apply to the
indebtedness evidenced hereby regardless of when incurred.
7.6 No delay or omission on the part of the holder of this Note in
exercising any right shall operate as a waiver thereof or of any other
right.
7.7 No waiver by the holder of this Note upon any one occasion shall be
effective unless in writing nor shall it be construed as a bar or
waiver of any right or remedy on any future occasion.
7.8 Time is of the essence for the performance by the Undersigned of
the obligations set forth in this Note.
7.9 Should any one or more of the provisions of this Note be determined
illegal or unenforceable, all other provisions shall nevertheless
remain effective.
7.10 This Note cannot be changed, modified, amended or terminated
orally.
7.11 This Note shall be governed by, construed and enforced in
accordance with the laws of the State of Arizona, without reference to
the principles of conflicts of laws thereof.
7.12 THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION TO ENFORCE OR DEFEND ANY MATTER ARISING FROM OR
RELATED TO THIS NOTE AND ACKNOWLEDGES THAT FINOVA ALSO WAIVES SUCH
RIGHT.
8.0 SECURITY FOR THIS NOTE.
This Note is secured pursuant to the Agreement and is subject to all of
the terms and conditions thereof, including, but not limited to, the remedies
specified therein.
IN WITNESS WHEREOF, this Secured Revolving Credit Note has been
executed and delivered as of the date first set forth above.
HOLD BILLING SERVICES, LTD.
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By: HBS, Inc., its sole
general partner
By:_____________________________
Name: Title:
Attest:_________________________
Tax I.D. No.:
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