June 28, 2007
Exhibit
4.1
June
28, 2007
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Xxxxxxx
Communications, Inc.
00000
Xxxxxxxxxx Xxxxxx
Duluth,
Georgia 30155
Re:
Ninth Amendment
Gentlemen:
Xxxxxxx
Communications, Inc., a
Georgia corporation
("Borrower") and LaSalle Bank National Association, a national banking
association ("Bank") have entered into that certain Loan and Security Agreement
dated June 5, 1996 (the "Security Agreement"). From time to time thereafter,
Xxxxxxxx and Bank may have executed various amendments (each an "Amendment"
and
collectively the "Amendments") to the Security Agreement (the Security Agreement
and the Amendments hereinafter are referred to, collectively, as the
"Agreement"). Borrower and Bank now desire to further amend the Agreement as
provided herein, subject to the terms and conditions hereinafter set
forth.
NOW,
THEREFORE, in consideration of the foregoing recitals, the mutual covenants
and
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1.
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The
Agreement hereby is amended as
follows:
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(a) The
first
grammatical sentence of Paragraph 9 of the Agreement is deleted in its entirety
and the following is substituted in its place:
9.
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TERMINATION:
This Agreement shall be in effect from the date hereof until September
30, 2008
(the "Original Term") and shall automatically renew itself from year
to
year thereafter (each such one-year renewal being referred to herein
as a
"Renewal Term") unless (a) Bank makes demand for repayment prior
to the
end of the Original Term or the then current Renewal Term; provided,
however, absent an Event of Default, Bank shall give Borrower at
least one
hundred twenty (120) days notice of its intention to demand the Loans
or
terminate this Agreement prior to the end of the Original Term or
the then
current Renewal Term; (b) the due date of the Liabilities is accelerated
pursuant to paragraph 13 hereof; or (c) Borrower prepays all of the
Liabilities prior to the end of the Original Term or the then current
Renewal Term and by paying all of the Liabilities in full on the
last day
of such term.
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(b) Paragraph
(1) of Exhibit A of the Agreement is deleted in its entirety and the following
is substituted in its place:
(1)
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LOAN
LIMITS: Bank
may, in its sole discretion, advance an amount up to the sum of the
following sublimits (the “Loan
Limit”):
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(a)
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Subject
to subparagraph (4)(a) of this Exhibit A, up to eighty percent (80%)
of
the face amount (less maximum discounts, credits and allowances which
may
be taken by or granted to Account Debtors in connection therewith)
of
Borrower’s Eligible Accounts; plus
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(b)
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Subject
to subparagraph (4)(b) of this Exhibit A, up to eighty percent (80%)
of
the face amount (less maximum discounts, credits and allowances which
may
be taken by or granted to Account Debtors in connection therewith)
of
Borrower’s Eligible Accounts or Five Hundred Thousand and No/100 Dollars
($500,000.00), whichever is less; plus
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(c)
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Subject
to subparagraph (5)(a) of this Exhibit A, up to twenty percent (20%)
of
the lower of the cost or market value of Borrower’s Eligible Inventory;
plus
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(d)
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Subject
to subparagraph (5)(b) of this Exhibit A, up to twenty percent (20%)
of
the lower of the cost or market value of Borrower’s Eligible Inventory;
plus
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(e)
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Subject
to subparagraph (5)(c) of this Exhibit A, up to forty percent (40%)
of the
lower of the cost or market value of Borrower’s Eligible Inventory;
plus
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(f)
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Subject
to subparagraph (5)(d) of this Exhibit A, up to fifty percent (50%)
of the
lower of the cost or market value of Borrower’s Eligible Inventory;
plus
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(g)
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Up
to One Million and No/100 Dollars ($1,000,000.00) as a special
accommodation; provided, however, the advances requested by Borrower
under
this subparagraph (1)(g) shall be made by Bank only if there is
insufficient availability under subparagraphs (1)(a), (1)(b), (1)(c),
(1)(d), (1)(e), and (1)(f) of this Exhibit A;
plus
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(h)
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Up
to
fifty
percent (50%)
against the face amount of commercial Letters of Credit issued by
Bank for
the purpose of purchasing Eligible Inventory; provided, that such
commercial Letters of Credit are in form and substance satisfactory
to
Bank; minus
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(i)
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Such
reserve as Bank elects, in its sole discretion, to establish from
time to
time;
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provided,
that the aggregate amount of Loans made pursuant to subparagraphs
(1)(c),
(1)(d), (1)(e), (1)(f) and 1(h) of this Exhibit A shall in no event
exceed
Five Million and No/100 Dollars ($5,000,000.00);
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further
provided, that the aggregate Loan Limit shall in no event exceed
Five
Million and No/100 Dollars ($5,000,000.00),
except as such amount may be increased or decreased by Bank, in its
sole
discretion, from time to time.
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(c) Subparagraph
(7)(a) of Exhibit A of the Agreement is deleted in its entirety and the
following is substituted in its place:
(a)
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Facilities
Fees: Borrower
shall pay to Bank an annual facilities fees equal to two percent
(2.0%) of
the aggregate Loan Limit, which fee shall be fully earned by Bank
and
payable on June 30, 2007,
and
on the same day of each year thereafter during the Original Term
and any
Renewal Term.
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2.
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This
Amendment shall not become effective until fully executed by all
parties
hereto.
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3.
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Except
as expressly amended hereby and by any other supplemental documents
or
instruments executed by either party hereto in order to effectuate
the
transactions contemplated hereby, the Agreement and Exhibit A thereto
hereby are ratified and confirmed by the parties hereto and remain
in full
force and effect in accordance with the terms
thereof.
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LaSalle
Bank National Association,
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a
national banking association
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By:/s/
Xxxxxx Xxxxxxxxx
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Title:
Vice President
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Accepted
and agreed to this
29th
day
of June, 2007.
XXXXXXX
COMMUNICATIONS, INC.
By:
/s/Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx
Title:
President
By
/s/X.
Xxxx Xxxxxxxx Xx.
X. Xxxx
Xxxxxxxx, Xx.
Title:
Treasurer
Consented
and agreed to by the following guarantor of the obligations of Xxxxxxx
Communications,
Inc. to
LaSalle Bank National Association.
XXXXXXX
CORPORATION
By:
/s/Xxxxxx X. Xxxxxx _
Xxxxxx
X. Xxxxxx
Title:
President and CEO
Date:
June 29, 2007