Exhibit 4.4
REAFFIRMATION AND RATIFICATION AGREEMENT
June 30, 2006
Laurus Master Fund, Ltd.
c/o Laurus Capital Management, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the (a) Subsidiary Guaranty dated as of June 30, 2004
made by XxxxxXxx Technologies of Minnesota, Inc., a Minnesota corporation
("XxxxxXxx Minnesota"), XxxxxXxx Technologies of Georgia, Inc., a Georgia
corporation ("XxxxxXxx Georgia"), XxxxxXxx Technologies of Iowa, Inc., an Iowa
corporation ("XxxxxXxx Iowa"), XxxxxXxx Technologies of Tennessee, Inc., a
Tennessee corporation ("XxxxxXxx Tennessee"), XxxxxXxx Technologies of
Wisconsin, Inc., a Wisconsin corporation ("XxxxxXxx Wisconsin") and XxxxxXxx
Technologies of California, Inc., a California corporation ("XxxxxXxx
California") in favor of Laurus Master Fund, Ltd., a Cayman Islands company
("Laurus") (as amended, restated, modified and/or supplemented from time to
time, the "Subsidiary Guaranty"), (b) Master Security Agreement dated as of June
30, 2004 made by XxxxxXxx Technologies, Inc., a Delaware corporation (the
"Parent"; the Parent, XxxxxXxx Minnesota and XxxxxXxx Iowa are collectively
referred to herein as the "Companies" and each, a "Company"), XxxxxXxx
Minnesota, XxxxxXxx Georgia, XxxxxXxx Iowa, XxxxxXxx Tennessee, XxxxxXxx
Wisconsin and XxxxxXxx California in favor of Laurus (as amended, restated,
modified and/or supplemented from time to time, the "Master Security
Agreement"), and (c) Stock Pledge Agreement dated as of June 30, 2004 made by
the Parent, XxxxxXxx Minnesota, XxxxxXxx Georgia, XxxxxXxx Iowa, XxxxxXxx
Tennessee, XxxxxXxx Wisconsin and XxxxxXxx California in favor of Laurus (as
amended, restated, modified and/or supplemented from time to time, the "Stock
Pledge Agreement") (the Subsidiary Guaranty, the Master Security Agreement, and
the Stock Pledge Agreement, collectively, the "Existing Security and Guaranty
Agreements").
WHEREAS, the Companies, XxxxxXxx Georgia, XxxxxXxx Tennessee and Laurus
have agreed to amend and restate in its entirety that certain Security
Agreement, dated as of June 30, 2004 (as amended, restated, modified and/or
supplemented prior to the date hereof, the "Original Security Agreement") in the
form of the 2006 Laurus Purchase Agreement (as defined below)
WHEREAS, the Companies have authorized the issuance to Laurus of each of
the 2006 Laurus Term Note (as defined below) and the 2006 Laurus Revolving Note
(as defined below), which 2006 Laurus Term Note and 2006 Laurus Revolving Note
which shall be given in substitution of and not in satisfaction of each of the
Revolving Note (as defined in the Original Security Agreement), the Minimum
Borrowing Note (as defined in the Original Security Agreement ) and the Secured
Convertible Term Note dated June 30, 2004 issued by the Parent to Laurus (as
amended, restated, modified and/or supplemented from time to time, the "2004
Laurus Term Note");
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration , the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. On the date hereof, (a) the Companies shall, on a joint and several
basis, issue to Laurus each of the 2006 Laurus Term Note and the 2006 Laurus
Revolving Note, in each case, in substitution and not in satisfaction of each of
the Revolving Note, the Minimum Borrowing Note and the 2004 Laurus Term Note and
(b) Laurus shall return to the Companies each of Revolving Note, the Minimum
Borrowing Note and the 2004 Laurus Term Note marked "cancelled". Each Company
and Laurus hereby acknowledges and agrees that the issuance of the 2006 Laurus
Term Note and the 2006 Laurus Revolving Note shall immediately precede the
repayment of the Revolving Note, the Minimum Borrowing Note and the 2004 Laurus
Term Note.
2. On the date hereof, the Companies, XxxxxXxx Georgia, XxxxxXxx Tennessee
and Laurus agree that the Original Security Agreement shall be amended and
restated in the form of the 2006 Laurus Purchase Agreement.
3. To induce Laurus to provide additional financial accommodations to the
Companies evidenced by (i) that certain Secured Non-Convertible Term Note, dated
the date hereof, made by the Parent, XxxxxXxx Minnesota and XxxxxXxx Iowa in
favor of Laurus (as amended, restated, modified and/or supplemented from time to
time, the "2006 Laurus Term Note"), (ii) that certain Secured Non-Convertible
Revolving Note, dated the date hereof, made by the Parent, XxxxxXxx Minnesota
and XxxxxXxx Iowa in favor of Laurus (as amended, restated, modified and/or
supplemented from time to time, the "2006 Laurus Revolving Note"), (iii) the
Amended and Restated Security and Purchase Agreement, dated as of June 30, 2004
and amended and restated as of the date hereof by and among the Parent, XxxxxXxx
Minnesota, XxxxxXxx Iowa and Laurus (as amended, restated, modified or
supplemented from time to time, the "2006 Laurus Purchase Agreement"), (iv) the
other Ancillary Agreements referred to in, and defined in, the 2006 Laurus
Purchase Agreement, as such agreements have been amended, restated modified
and/or supplemented from time to time (the agreements set forth in the preceding
clauses (i) through (iv), inclusive, collectively, the "2006 Laurus
Agreements"), each of the Parent, XxxxxXxx Minnesota and XxxxxXxx Iowa hereby:
(a) represents and warrants to Laurus that it has reviewed and approved
the terms and provisions of each of the 2006 Laurus Agreements and the
documents, instruments and agreements entered into in connection therewith;
(b) acknowledges, ratifies and confirms that all indebtedness incurred by,
and all other obligations and liabilities of, each of the Parent, XxxxxXxx
Minnesota and XxxxxXxx Iowa, under each of the 2006 Laurus Agreements are (i)
"Obligations" under, and as defined in the Subsidiary Guaranty, (ii)
"Obligations" under, and as defined in, the Master Security Agreement, and (iii)
"Indebtedness" under, and as defined in, the Stock Pledge Agreement;
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(c) acknowledges, ratifies and confirms that each of the 2006 Laurus
Agreements are "Documents" under, and as defined in, each of the Subsidiary
Guaranty, the Master Security Agreement and the Stock Pledge Agreement;
(d) acknowledges, ratifies and confirms that all of the terms, conditions,
representations and covenants contained in the Existing Security and Guaranty
Agreements are in full force and effect and shall remain in full force and
effect after giving effect to the execution and effectiveness of each of the
2006 Laurus Agreements;
(e) represents and warrants that no offsets, counterclaims or defenses
exist as of the date hereof with respect to any of the undersigned's obligations
under any Existing Security and Guaranty Agreement; and
(f) acknowledges, ratifies and confirms the grant by each of the Parent,
XxxxxXxx Minnesota and XxxxxXxx Iowa to Laurus of a security interest in the
assets of (including the equity interests owned by) each of the Parent, XxxxxXxx
Minnesota and XxxxxXxx Iowa, respectively, as more specifically set forth in the
Existing Security and Guaranty Agreements.
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This letter agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Very truly yours,
XXXXXXXX TECHNOLOGIES, INC.
By: _____________________________
Name:
Title:
Address: 0 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
XXXXXXXX TECHNOLOGIES OF MINNESOTA, INC.
By: _____________________________
Name:
Title:
Address: 00000 Xxxxxxx Xxx. Xxxxx
Xxxxxx, XX 00000
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XXXXXXXX TECHNOLOGIES OF IOWA, INC.
By: _____________________________
Name:
Title:
Address: 0000 X. Xxxxxx
Xxx Xxxxxx, XX 00000
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Acknowledged and Agreed to by:
LAURUS MASTER FUND, LTD.
By:___________________________
Name:
Title:
XXXXXXXX TECHNOLOGIES OF GEORGIA, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
XXXXXXXX TECHNOLOGIES OF TENNESSEE, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
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