THE PERIOD FROM SEPTEMBER 30, 2009, THROUGH
NOVEMBER 30, 2009, IN EXCESS OF $250,000 IN THE AGGREGATE. FOR PURPOSES OF THIS
SECTION 8.4, THE TERM "CAPITAL EXPENDITURES" MEANS EXPENDITURES FOR THE PURCHASE
OR OTHER ACQUISITION, CONSTRUCTION OR IMPROVEMENT OF ANY FIXED OR CAPITAL ASSETS
THAT ARE REQUIRED TO BE CAPITALIZED UNDER GAAP ON A BALANCE SHEET AS PROPERTY,
PLANT, EQUIPMENT OR OTHER FIXED ASSETS.
2.
CONDITIONS PRECEDENT.
BORROWER SHALL
DELIVER TO BANK AT OR BEFORE CLOSING:
2.1.
THIS AMENDMENT;
2.2.
THE EXTENSION NOTES; AND
2.3.
ANY OTHER INSTRUMENTS, DOCUMENTS OR AGREEMENTS REASONABLY
REQUESTED BY BANK IN CONNECTION HEREWITH.
3.
EFFECT OF AMENDMENT.
EXCEPT AS
EXPRESSLY AMENDED HEREBY, THE CREDIT AGREEMENT AND ALL LOAN DOCUMENTS EXECUTED
OR DELIVERED BY BORROWER TO BANK IN
3
CONNECTION THEREWITH SHALL REMAIN IN FULL FORCE AND EFFECT, BINDING AND
ENFORCEABLE AGAINST BORROWER IN ACCORDANCE WITH THEIR TERMS.
4.
BORROWER RATIFICATION.
BORROWER HEREBY RATIFIES AND REAFFIRMS
THE CREDIT AGREEMENT (AS AMENDED HEREBY), THE SECURITY AGREEMENT AND ALL OTHER
LOAN DOCUMENTS EXECUTED BY IT IN CONNECTION WITH THE CREDIT AGREEMENT.
5.
REPRESENTATIONS AND WARRANTIES.
BORROWER REPRESENTS AND WARRANTS
THAT (I) NO EVENT OF DEFAULT EXISTS UNDER THE CREDIT AGREEMENT OR ANY LOAN
DOCUMENTS EXECUTED BY BORROWER IN CONNECTION THEREWITH, AND (II) ALL
REPRESENTATIONS AND WARRANTIES MADE IN THE CREDIT AGREEMENT AND OTHER LOAN
DOCUMENTS REMAIN TRUE AND CORRECT AS OF THE DATE HEREOF.
BORROWER FURTHER
REPRESENTS AND WARRANTS THAT ALL AUTHORITY DOCUMENTS DELIVERED TO BANK IN
CONNECTION WITH THE CREDIT AGREEMENT REMAIN IN FULL FORCE AND EFFECT AND HAVE
NOT BEEN MODIFIED OR CHANGED WHATSOEVER.
6.
NO COURSE OF PERFORMANCE.
THE AGREEMENT OF BANK TO THE
EXTENSIONS SET FORTH HEREIN SHALL NOT OBLIGATE BANK TO AGREE TO ANY ADDITIONAL
EXTENSIONS WHICH MAY BE REQUESTED BY BORROWER IN THE FUTURE OR TO AGREE TO ANY
OTHER AMENDMENTS OR MODIFICATIONS TO THE TERMS OF THE CREDIT AGREEMENT.
7.
GOVERNING LAW AND BINDING EFFECT.
THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OKLAHOMA,
AND SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON THE PARTIES HERETO, THEIR
SUCCESSORS AND ASSIGNS.
8.
COSTS, EXPENSES AND FEES.
BORROWER AGREES TO PAY ALL COSTS,
EXPENSES AND FEES INCURRED BY BANK IN CONNECTION HEREWITH, INCLUDING, WITHOUT
LIMITATION, ALL REASONABLE ATTORNEY FEES, COSTS AND EXPENSES OF CONNER &
WINTERS, LLP.
9.
MULTIPLE COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED IN
MULTIPLE COUNTERPARTS. DELIVERY OF AN EXECUTED COUNTERPART OF A SIGNATURE
PAGE TO THIS AMENDMENT BY TELECOPIER (FAX) OR BY ELECTRONIC COMMUNICATION BY
PORTABLE DOCUMENT FORMAT (PDF) SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY
EXECUTED COUNTERPART OF THIS AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers thereunto duly authorized, effective as of the date
first above written.
"Borrower"
XETA TECHNOLOGIES, INC.
By
/s/ Robert B. Wagner
Robert B. Wagner, Chief Financial Officer
4
"Bank"
BANK OF OKLAHOMA, N.A.
By
/s/ David Lamb
David Lamb, Senior Vice President
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Schedule "1.3"
(Extension Notes)