October 8, 2009
Exhibit
4.1
October
8, 2009
Xxxxxxx
Communications, Inc.
00000
Xxxxxxxxxx Xxxxxx
Duluth,
Georgia 30155
Re: Twelfth
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
executed eleven amendments to the Security Agreement.
Bank now proposes to assign its rights
and delegate its duties under the Security Agreement (the “Assignment”) to the The Xxxxx X. Xxxxxxx Trust Dated December 15, 1999
(“Trust”). Before
becoming such assignee and delegatee pursuant to the Assignment, the Trust
desires to further amend the Security Agreement, as amended, as provided herein
(the “Amendment” and,
collectively with the previous eleven amendments, the “Amendments”), such Amendment
not to become effective until consummation of the Assignment.
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 Borrower and the Trust hereby agree as
follows:
A.
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Substantive
Changes.
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1. Substitution
of the Trustee for the Bank. All references in the Agreement to the
“Bank” shall hereafter be references to the “Trust.”
2. Loan
Amount. Provision 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
LIMIT:
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The
aggregate loan limit shall be Four Million and No/100s Dollars
($4,000,000.00) (the “Loan Limit”). The Loan Limit is inclusive
of the amount the Trust will pay to the Bank in respect of the Assignment,
but shall be exclusive of any accrued but unpaid interest
hereunder.
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3. Interest
Rate. Provision 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:
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The
Loan made pursuant to this Agreement shall bear interest at Twelve percent
(12.00%) per annum and such interest shall begin to accrue at that rate on
the date of the Assignment. All interest shall be calculated
upon the basis of a 360 day
year.
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4. Term. Paragraph 9
of the Agreement is deleted in its entirety and the following is substituted in
its place:
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9.
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TERMINATION: This
Agreement shall be in effect from the date the Assignment is consummated
until and including the eighteenth (18) month anniversary of that date
(the "Original
Term"), unless (a) the Trust makes demand for repayment prior to
the end of the Original Term in accordance with its rights under the
Agreement including, without limitation, paragraph 13 hereof, or (b)
Borrower prepays all of the Loan prior to the end of the Original Term.
This Agreement shall automatically renew for successive Twelve (12) month
periods (each a “Renewal
Period”); provided, however, the
Trust may terminate this Agreement by providing the Borrower with ninety
(90) days’ prior written notice of termination at any time beginning on or
after ninety (90) days prior to the expiration of the Original
Term.
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5. Repayment. Paragraph
7 of the Agreement is deleted in its entirety and the following is substituted
in its place:
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7.
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REPAYMENT: Principal
and interest accrued hereunder shall be payable upon the earlier of (a)
the maturity of the Loan, (b) an Event of Default giving the Trust the
right to call the Loan, or (c) 90 days following the date on which the
Trust provides written notice of its intent to terminate the Agreement
pursuant to and in accordance with paragraph 9 hereunder. All
principal and interest shall be payable in U.S. dollars or, upon mutual
agreement of the parties decided in good faith at the time payment is due,
other good and valuable
consideration.
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6. Effectiveness
of Amendment. This Amendment, once fully executed by all parties
hereto, shall become effective automatically upon the consummation of the
Assignment between the Trust and the Bank and thereafter its effectiveness shall
not require any other affirmative action on the part of the Trust or
Borrower.
7. Solvency
Representation. Borrower’s obligations under paragraph 10(p) of the
Agreement shall be suspended until the last day of Borrower’s 2010 fiscal third
quarter. Thereafter, such suspension shall end and Borrower’s full
compliance with such obligations shall be required.
8. Provision
of Reports. Paragraph 11(b) is deleted in its entirety and the phrase
“Intentionally Omitted” is substituted in its place. In addition,
paragraph 8 of the Agreement is deleted in its entirety and the following is
substituted in its place:
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8.
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SCHEDULES AND
REPORTS.
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Borrower
shall provide the Trust with the Borrower’s consolidated quarterly and annual
financial statements promptly upon their availability and such other available
financial records of Borrower as the Trust may reasonably request.
9. Choice
of Law and Forum Selection. Paragraph 13 of the Agreement shall be
modified to provide that (a) the internal laws of the State of Oklahoma, rather
than those of the State of Illinois, shall be the laws governing the Agreement
and (b) courts in the City of Tulsa, State of Oklahoma, rather than those in the
City of Chicago, State of Illinois, shall be the situs of all actions and
proceedings arising out of or related to the Agreement.
10. Change
of Management Default. Provision 12 of Exhibit A of the Agreement is
deleted in its entirety and the following is substituted in its
place:
(12)
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CHANGE
OF MANAGEMENT DEFAULT:
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In
addition to the Events of Default specified in Paragraph 12 of the Agreement, it
shall be an Event of Default hereunder if Xxxxxx X. Xxxxxx shall cease to be
Chairman of the Board of Directors of the Borrower and Xxxx Xxxxxxxx shall cease
to be part of Senior Management of Borrower.
11. Removal
of Merger Agreement Requirement. Section 2 to the Eleventh Amendment
to this Agreement is hereby deleted in its entirety.
12. Fees
and Charges. Paragraph 3 of the Agreement is deleted in its entirety
and the phrase “Intentionally Omitted” is substituted in its place.
13. Tangible
Net Worth Covenant. Paragraph 11(o) of the Agreement and provision 9
of Exhibit A of the Agreement are deleted in their entirety and the phrase
“Intentionally Omitted” is substituted in their place.
14. Availability
Reductions and Increases. Provisions 2 and 3 of Exhibit A of the
Agreement are deleted in their entirety and the phrase “Intentionally Omitted”
is substituted in their place.
15. Advance
Formulae. All loan advance formulae and requirements relating to
“Eligible Accounts” and “Eligible Inventory” in the Agreement are hereby deleted
in their entirety. Without limiting the generality of the forgoing,
provisions 4 and 5 of Exhibit A of the Agreement are deleted in their entirety
and the phrase “Intentionally Omitted” is substituted in their
place.
16. Facility
and Transaction Fees. All facility and transaction fees and related
requirements in the Agreement are hereby deleted in their
entirety. Without limiting the generality of the forgoing, provision
7 of Exhibit A of the Agreement is deleted in its entirety and the phrase
“Intentionally Omitted” is substituted in its place.
17. Checking
Account Provision. Provision 8 of Exhibit A of the Agreement is deleted in
its entirety and the phrase “Intentionally Omitted” is substituted in its
place.
18. Lender
Audits and Fees. Paragraph 11(d) of the Agreement and provision 10 of
Exhibit A of the Agreement are deleted in their entirety and the phrase
“Intentionally Omitted” is substituted in their place.
19. Restrictions
on Payment of Parent Expenses. Provision 11 of Exhibit A of the
Agreement is deleted in its entirety and the phrase “Intentionally Omitted” is
substituted in its place.
B. Nonsubstantive
Clarifications and Deletions.
1. Definitions. The
definitions “Dominion Account,” “Eligible Account,” “Eligible Inventory,” “Lock
Box,” “Lock Box Account,” “Systems Day One” and “Tangible Net Worth” found in
paragraph 1 of the Agreement are hereby deleted in their entirety.
2. Paragraph
2 modifications. The third grammatical sentence in paragraph 2 of the
Agreement is hereby deleted in its entirety. The phrase “, or any
portion of the Loans exceeds any applicable sublimit set forth in Exhibit A,”
set forth in the fourth grammatical sentence in paragraph 2 of the Agreement is
hereby deleted in its entirety.
3. Paragraph
3 modifications. The first grammatical sentence in paragraph 3 of the
Agreement is hereby deleted in its entirety.
4. Paragraph
10 modifications. In addition to the modifications made under Section
A above, paragraph 10(f) of the Agreement is deleted in its entirety and the
phrase “Intentionally Omitted” is substituted in its place.
5. Paragraph
11 modifications. In addition to the modifications made under Section
A above, the last two grammatical sentences of paragraph 11(p) of the Agreement
are deleted in their entirety.
6. Paragraph
15 modifications. The contact address for the Trust for purposes of
paragraph 15 of the Agreement shall be as follows:
The Xxxxx X. Xxxxxxx Trust Dated
December 15, 1999
c/o Xxxxx X. Xxxxxxx
00000 X. Xxxxxx Xxxxxx
Catoosa,
OK 74015
7. References
to Xxxxx, Xxxxxxxx & Xxxxxxx. All references to the law firm of
Xxxxx, Xxxxxxxx & Xxxxxxx in the Agreement shall be deleted and replaced by
another law firm chosen by Xxxxxxxx and communicated to the Trust.
C. MISCELLANEOUS.
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. In the event there is any conflict between the provisions of
this Twelfth Amendment and those in the Agreement generally, the provisions of
this Twelfth Amendment shall control in all respects.
[SIGNATURE
PAGE FOLLOWS]
THE XXXXX X. XXXXXXX TRUST DATED DECEMBER
15, 1999
By/s/
Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title:
Trustee
Accepted
and agreed to this
8th day
of October, 2009.
XXXXXXX
COMMUNICATIONS, INC.
By:/s/
Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title:
CEO
By/s/ X.
Xxxx Xxxxxxxx, Xx.
Name: 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
Name: Xxxxxx X. Xxxxxx
Title:
President and CEO
Date:
October 8, 2009