November 22, 2008
Exhibit
4.2.9
November
22, 2008
Xxxxxxx
Communications, Inc.
00000
Xxxxxxxxxx Xxxxxx
Duluth,
Georgia 30155
Re:
Tenth 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. The
Agreement hereby is amended as follows:
(a) Paragraph
1 of the
Agreement is hereby amended to change the following two definitions: (i) the
defined term “Lock
Box Account”
is
hereby deleted in its entirety, and (ii) the defined term “Lock
Box”
shall
have the meaning specified in paragraph
7(a) of
the Agreement.
(b) Paragraph
1 of the Agreement is hereby amended to add the following definitions to be
inserted in their proper alphabetical order:
"Dominion
Account"
shall
have the meaning specified in paragraph 7(a)
hereof.
“Systems
Day One”
shall
mean the date upon which Bank’s system of record for loans and deposits shall
convert to the system of record for loans and deposits used by Bank of America,
X.X.
Xxxxxxx
Communications, Inc.
November
22, 2008
Page
2
(c) Paragraph
7(a) of the Agreement is hereby amended and restated in its entirety as
follows:
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(a)
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Borrower
shall direct all of its Account Debtors to make all payments on the
Accounts directly to a post office box (the "Lock
Box")
designated by, and under the exclusive control of, Bank, at a financial
institution acceptable to Bank. Xxxxxxxx has established an account
(the
"Dominion
Account")
in Bank’s name with a financial institution acceptable to Bank, into which
all payments received in the Lock Box shall be deposited, and into
which
Borrower will immediately deposit all payments received by Borrower
on
Accounts in the identical form in which such payments were received,
whether by cash or check; provided that on or prior to Systems Day
One, at
the request of Bank, the Dominion Account shall be changed to Borrower’s
name for the benefit of Bank. If Borrower, any Affiliate or Subsidiary,
any shareholder, officer, director, employee or agent of Borrower
or any
Affiliate or Subsidiary, or any other Person acting for or in concert
with
Borrower shall receive any monies, checks, notes, drafts or other
payments
relating to or as Proceeds of Accounts or other Collateral, Borrower
and
each such Person shall receive all such items in trust for, and as
the
sole and exclusive property of, Bank and, immediately upon receipt
thereof, shall remit the same (or cause the same to be remitted)
in kind
to the Dominion Account. The financial institution with which the
Dominion
Account is established shall acknowledge and agree, in a manner
satisfactory to Bank, that the amounts on deposit in such Lock Box
and
Dominion Account are the sole and exclusive property of Bank, that
such
financial institution will follow the instructions of Bank with respect
to
disposition of funds in the Lock Box and Dominion Account without
further
consent from Borrower, that such financial institution has no right
to
setoff against the Lock Box or Dominion Account or against any other
account maintained by such financial institution into which the contents
of the Lock Box or Dominion Account are transferred, and that such
financial institution shall wire, or otherwise transfer in immediately
available funds to Bank in a manner satisfactory to Bank, funds deposited
in the Dominion Account on a daily basis as such funds are collected.
Xxxxxxxx agrees that all payments made to such Dominion Account or
otherwise received by Bank, whether in respect of the Accounts or
as
Proceeds of other Collateral or otherwise (except for proceeds of
Collateral which are required to be delivered to the holder of a
Permitted
Lien which is prior in right of payment), will be applied on account
of
the Liabilities in accordance with the terms of this Agreement. Xxxxxxxx
agrees to pay all customary fees, costs and expenses in connection
with
opening and maintaining the Lock Box and Dominion Account. All of
such
fees, costs and expenses if not paid by Xxxxxxxx, may be paid by
Bank and
in such event all amounts paid by Bank shall constitute Liabilities
hereunder, shall be payable to Bank by Borrower upon demand, and,
until
paid, shall bear interest at the highest rate then applicable to
Loans
hereunder. All checks, drafts, instruments and other items of payment
or
Proceeds of Collateral shall be endorsed by Borrower to Bank, and,
if that
endorsement of any such item shall not be made for any reason, Bank
is
hereby irrevocably authorized to endorse the same on Xxxxxxxx's behalf.
For the purpose of this section, Borrower irrevocably hereby makes,
constitutes and appoints Bank (and all Persons designated by Bank
for that
purpose) as Borrower's true and lawful attorney and agent-in-fact
(i) to endorse Borrower's name upon said items of payment and/or
Proceeds of Collateral and upon any Chattel Paper, Document, Instrument,
invoice or similar document or agreement relating to any Account
of
Borrower or Goods pertaining thereto; (ii) to take control in any
manner of any item of payment or Proceeds thereof and (iii) to have
access to any lock box or postal box into which any of Borrower's
mail is
deposited, and open and process all mail addressed to Borrower and
deposited therein.
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Xxxxxxx
Communications, Inc.
November
22, 2008
Page
3
(d) Paragraph
7(c) of the Agreement is hereby amended to add the following at the end of
such
subparagraph:
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(c)
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Notwithstanding
the foregoing, on or after Systems Day One, for purposes of determining
the amount of Loans available for borrowing purposes, the ledger
balance
in the main Dominion Account as of the end of a Business Day shall
be
applied to the Liabilities at the beginning of the next Business
Day.
However, solely for purposes of computing interest hereunder, and
in
addition to Bank's standard fees and charges relating to the Dominion
Account, any application by Bank of such balance to the Liabilities
shall
be deemed to be made two (2) Business Day(s) after application to
the
Liabilities as set forth in the preceding sentence. If, as a result
of
such application, a credit balance exists, the balance shall not
accrue
interest in favor of Borrower and shall be made available to Borrower
as
long as no Event of Default exists. Borrower irrevocably waives the
right
to direct the application of any payments or Collateral proceeds,
and
agrees that Bank shall have the continuing, exclusive right to apply
and
reapply same against the Liabilities, in such manner as Bank deems
advisable, notwithstanding any entry by Bank in its
records.
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Xxxxxxx
Communications, Inc.
November
22, 2008
Page
4
(e) The
first
grammatical sentence of Paragraph 9 of the Agreement is deleted in its entirety
and the following is substituted in its place:
| 9. |
TERMINATION:
This Agreement shall be in effect from the date hereof until
September
30, 2009
(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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Xxxxxxx
Communications, Inc.
November
22, 2008
Page
5
(f) 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), and (1)(h) of this Exhibit A shall bear interest
at 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. Furthermore, if Bank, in its sole discretion determines
that
Borrower’s operating performance is unsatisfactory, such rate of interest
shall be adjusted to the Prime Rate plus one percent (1%). 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 shall not become effective until fully executed by all parties
hereto.
3. 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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Xxxxxxx
Communications, Inc.
November
22, 2008
Page
6
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Accepted
and agreed to this
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_____
8th
day of September, 2008.
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XXXXXXX
COMMUNICATIONS, INC.
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By:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx
X. Xxxxxx
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Title:
President and 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
CORPORATION
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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 8, 2008
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