EXHIBIT 4.1
January 18, 2001
Xxxxxxx Communications, Inc.
00000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000-0000
RE: THIRD AMENDMENT
Gentlemen:
XXXXXXX COMMUNICATIONS, INC., a Georgia corporation ("Borrower") and
LaSalle Bank National Association formerly known as LaSalle National Bank, 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 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 June 21, 2003 (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; (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.
XXXXXXX COMMUNICATIONS, INC.
DECEMBER 20, 2000
PAGE 2
(b) Paragraph (1) of Exhibit A of the Agreement is deleted in its entirety
and the following is substituted in its place:
(1) LOAN LIMITS: Bank may, in its sole discretion, advance an amount
up to the sum of the following sublimits (the "Loan Limit"):
(a) 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
Xxxxxxxx's Eligible Accounts; plus
(b) 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
(c) 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 ----
(d) 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 ----
(e) 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 ----
(f) 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 ----
(g) Subject to subparagraph (2)(a) of this Exhibit A, up to
eighty percent (80%) of the purchase price of the Equipment
purchased with such advances (exclusive of sales taxes,
delivery charges and other "soft" costs related to such
purchases), to be used by Borrower from time to time to
purchase new Equipment, or One Million and No/100 Dollars
($1,000,000.00), whichever is less; provided, that prior to
any advance under this
XXXXXXX COMMUNICATIONS, INC.
DECEMBER 20, 2000
PAGE 3
subparagraph, Borrower shall furnish to Bank an invoice and
acceptance letter for the Equipment being purchased and
shall have executed such documents and taken such other
actions as Bank shall require to assure that Bank has a
first perfected security interest in such Equipment; and
further provided, that each advance under this subparagraph
shall equal or exceed One Hundred Thousand and No/100
Dollars ($100,000.00) and may be made not more frequently
than quarterly; plus
(h) Subject to subparagraphs (2)(b) and (13).(1) of this Exhibit
A, up to seventy percent (70%) of the fair market value (as
determined by an appraiser acceptable to Bank) of that
certain real property described in subparagraph (14)(a) of
this Exhibit A or Three Hundred Eighty-Eight Thousand Four
Hundred Thirty and 92/100 Dollars ($388,430.92), whichever
is less; minus
(i) Such reserve as Bank elects, in its sole discretion, to
establish from time to time;
provided, that the aggregate amount of Loans made pursuant
to subparagraphs (1)(c), (1)(d), (1)(e) and (1)(f) of this
Exhibit A shall in no event exceed Two Million and No/100
Dollars ($2,000,000.00);
further provided, that the aggregate amount of Loans made
pursuant to subparagraphs (1)(a), (1)(b), (1)(c), (1)(d),
(1)(e), (1)(f) and (1)(g) of this Exhibit A shall in no
event exceed Eight Million Five Hundred Thousand and No/100
Dollars ($8,500,000.00); and
further provided, that the aggregate Loan Limit shall in no
event exceed TEN MILLION AND NO/100 DOLLARS
($10,000,000.00), except as such amount may be increased or
decreased by Bank, in its sole discretion, from time to
time.
(c) Paragraph (2)(a) of Exhibit A of the Agreement is deleted in its
entirety and the following is substituted in its place:
XXXXXXX COMMUNICATIONS, INC.
DECEMBER 20, 2000
PAGE 4
(a) Borrower shall repay to Bank monthly an amount sufficient
(assuming a like payment each month) to repay the entire
principal amount of each advance made pursuant to subparagraph
(1)(g) of this Exhibit A within sixty (60) months following the
date of such advance. Such payments shall be made on the
thirtieth (30th) day following the date of each such advance, and
on the corresponding day of each month thereafter until the
earliest to occur of (i) the date upon which each such advance is
repaid in full, (ii) the date upon which demand for repayment of
the Loans is made by Bank and (iii) the date upon which this
Agreement terminates pursuant to the provisions of Paragraph 9 of
the Agreement.
(d) Paragraph (7)(a) of Exhibit A of the Agreement is deleted in its
entirety and the following is substituted in its place:
(a) FACILITIES FEES: With respect to the first Five Million Five
Hundred Thousand and No/100 Dollars ($5,500,000.00) of loans and
advances made pursuant to subparagraphs (1)(a), (1)(b), (1)(c),
(1)(d), (1)(e), (1)(f), and (1)(g) of this Exhibit A, Borrower
shall pay to Bank an annual facilities fee equal to one-half of
one percent (1/2 of 1%) of Five Million Five Hundred Thousand and
No/100 Dollars ($5,500,000.00), payable by Xxxxxxxx and earned by
Bank as of June 6, 2001 and on the same date of each year
thereafter during the Original Term and any Renewal Term. At such
time as the loans and advances made pursuant to subparagraphs
(1)(a), (1)(b), (1)(c), (1)(d), (1)(e), (1)(f), and (1)(g) of
Exhibit A exceed Five Million Five Hundred Thousand and No/100
Dollars ($5,500,000.00), Borrower shall pay to Bank and Bank
shall fully earn at the time of such payment, an annual
facilities fee equal to one-half of one percent (1/2 of 1%) of
Three Million and No/100 Dollars ($3,000,000.00), or a pro-rata
amount thereof if paid after June 6th of any year but before June
6th of the following year. Thereafter, Borrower shall pay to
Bank, and Bank shall fully earn a fee equal to one-half of one
percent (1/2 of 1%) of Three Million and No/100 Dollars
($3,000,000.00) on June 6th of each year during the Original Term
and any Renewal Term. For purposes of determining whether
Xxxxxxxx has received any advances against the availability set
forth in subparagraph (1)(h) of this Exhibit A, advances to
Borrower shall first be deemed to be advanced against the
availability set forth in subparagraphs (1)(h) of this Exhibit A
(subject to any sublimits contained in Paragraph (1) of this
Exhibit A) until the amount so advanced equals the availability
under that paragraph, and then to the availability under
subparagraphs
XXXXXXX COMMUNICATIONS, INC.
DECEMBER 20, 2000
PAGE 5
(1)(a), (1)(b), (1)(c), (1)(d), (1)(e), (1)(f) and (1)(g) of this
Exhibit A (subject to any sublimits contained in Paragraph (1) of
this Exhibit A).
(e) Paragraph (13) of Exhibit A of the Agreement is amended to add the
following provision:
(13).(1) REAL PROPERTY LOAN: Upon repayment in full of the real
property Loan described in subparagraph (1)(h) of this
Exhibit A, Bank may, in its sole discretion, reset the
real property Loan to an amount equal to up to seventy
percent (70%) of the fair market value (as determined
by an appraiser and survey acceptable to Bank) of that
certain real property commonly known as 00000
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx or One Million Five
Hundred Thousand and No/100 Dollars ($1,500,000.00),
whichever is less, which would curtail by an amount
based upon an amortization schedule of thirty- five
(35) equal monthly payments with a balloon payment on
June 30, 2003. The Loan described herein would bear
interest at the fixed rate of 225 basis points in
excess Bank's cost of funds in effect at the time of
disbursement of such Loan hereunder. Borrower would
pay Bank a transaction fee of one-half of one percent
(1/2 of 1%) at the time of disbursement of such Loan.
(f) Paragraph (7).(1) of Exhibit A of the Agreement is deleted in its
entirety and the phrase "Intentionally Omitted" is substituted in its place:
2. Bank and Borrower agree that Bank shall have the right to restructure
the Agreement, including but not limited to resetting and changing the
covenants, financial and otherwise. 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.
LASALLE BANK NATIONAL ASSOCIATION
FORMERLY KNOWN AS LASALLE NATIONAL
BANK, A NATIONAL BANKING ASSOCIATION
By:_________________________________
Title:______________________________
XXXXXXX COMMUNICATIONS, INC.
DECEMBER 20, 2000
PAGE 6
Accepted and agreed to this 14th day of
December, 2000.
XXXXXXX COMMUNICATIONS, INC.
By: _________________________
Xxxx Xxxxxxxx, Xx.
Title: Treasurer and CFO
Consented and agreed to by the following
guarantor of the obligations of XXXXXXX
COMMUNICATIONS, INC. to LaSalle Bank
National Association formerly know as
LaSalle National Bank.
XXXXXXX CORPORATION
By: _____________________________
Xxxxxx X. Xxxxxx
Title: President and CEO
Date: January 18, 2001
