September 14, 2009
Exhibit
4.1
September
14, 2009
Xxxxxxx
Communications, Inc.
00000
Xxxxxxxxxx Xxxxxx
Duluth,
Georgia 30155
Re: Eleventh
Amendment
Gentlemen:
Xxxxxxx Communications, Inc.,
a Georgia corporation ("Borrower") and Bank of America, N.A.,
successor interest by merger to 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. The
Agreement hereby is amended as follows:
(a) The
first two (2) grammatical sentences of Paragraph 9 of the Agreement are deleted
in their entirety and the following is substituted in their place:
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9.
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TERMINATION: This
Agreement shall be in effect from the date hereof until November 30, 2009 (the
"Original Term") unless (a) Bank makes demand for repayment prior to the
end of the Original 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 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:
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(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; plus
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(i)
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Up
to Five Hundred Thousand and No/100 Dollars ($500,000.00) as a special
accommodation; provided, however, the advances requested by Borrower under
this subparagraph (1)(i) shall be made by Bank only if (i) there is
insufficient availability under subparagraphs (1)(a), (1)(b), (1)(c),
(1)(d), (1)(e), and (1)(f) of this Exhibit A, and (ii) Bank has received a
fully executed asset purchase agreement or merger agreement satisfactory
to Bank, in Bank’s reasonable business judgment, for the sale or merger of
Borrower to or into a third-party purchaser; minus
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(j)
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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 Four
Million and No/100 Dollars ($4,000,000.00);
further
provided, that the aggregate Loan Limit shall in no event exceed Four Million and No/100 Dollars
($4,000,000.00), except as such amount may be increased or decreased by
Bank, in its sole discretion, from time to time.
(c) Paragraph (6) of Exhibit A of the
Agreement is deleted in its entirety and the following is substituted in its
place:
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(6)
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INTEREST RATE: (i)
All Loans made pursuant to subparagraphs (1)(a), (1)(b), (1)(c), (1)(d),
(1)(e), (1)(f), (1)(g), (1)(h) and (1)(i) of this Exhibit A shall bear
interest at Two percent (2.00%) per annum in excess of Bank's publicly
announced prime rate (which is not intended to be Bank's lowest or most
favorable rate in effect at any time) (the "Prime Rate") in effect from
time to time Interest shall be payable on the last business day of each
month, in arrears. Each rate of interest set forth herein shall increase
or decrease with each increase of decrease in the Prime Rate, effective on
the effective date of each such change in the Prime Rate. Upon
the occurrence of an Event of Default and the continuance thereof, each
Loan shall bear interest at the rate of two percent (2%) per annum in
excess of the interest rate otherwise payable thereon, which interest
shall be payable on demand. All interest shall be calculated upon the
basis of a 360 day year.
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2. This
Amendment is subject to Bank receiving, on or before October 15, 2009, a fully
executed asset purchase agreement or merger agreement satisfactory to Bank, in
Bank’s reasonable business judgment, for the sale or merger of Borrower to or
into a third-party purchaser; provided, however, the failure of Borrower to so
provide such fully executed asset purchase or merger agreement to Bank on or
before October 15, 2009 shall be an automatic Event of Default as defined and
set forth in the Agreement, and Bank shall have all of its rights and remedies
as provided for in the Agreement without further notice to
Borrower. The foregoing should not be viewed as a complete
delineation of any rights or remedies of Bank, all of which are hereby
specifically reserved.
3. This
Amendment shall not become effective until fully executed by all parties
hereto.
4. 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.
| Bank of America, N.A., | |||
| successor in interest by merger to, | |||
| LaSalle Bank National Association | |||
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By:
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/s/ Xxxxxx X. Xxxxxx | |
| Title: | Senior Vice President | ||
| Accepted and agreed to this | |||||
| 15th day of September, 2009. | |||||
| XXXXXXX COMMUNICATIONS, INC. | |||||
| By: |
/s/
Xxxxxx X.Xxxxxx
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Xxxxxx
X. Xxxxxx
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| Title: |
CEO
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| By: |
/s/
X. Xxxx Xxxxxxxx, Xx.
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X.
Xxxx Xxxxxxxx,
Xx.
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| Title: |
Treasurer
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Consented
and agreed to by the following guarantor of the obligations of Xxxxxxx Communications, Inc.
to LaSalle Bank National Association.
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| XXXXXXX COMMUNICATIONS, INC. | |||||
| By: |
/s/
Xxxxxx X.Xxxxxx
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Xxxxxx
X. Xxxxxx
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| Title: |
President
and CEO
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| Date: | September 15, 2009 | ||||
