EXHIBIT 10.26
SIXTEENTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This Sixteenth Amendment to Amended and Restated Loan Agreement (this
"Amendment") is executed as of April 21, 2006 but effective as of January 1,
2006, by and between SAI HOLDINGS, INC., a Texas corporation ("Borrower"), and
GUARANTY BANK, a federal savings bank ("Bank").
R E C I T A L S:
A. Borrower and Bank have entered into that certain Amended and Restated
Loan Agreement dated as of April 30, 2001 (as the same has been or may be
amended, restated, modified or supplemented from time to time, the "Agreement").
B. Borrower has requested Bank to amend Section 11.7 of the Agreement,
which Bank is willing to do pursuant to the terms and conditions hereinafter
provided.
C. Borrower and Bank now desire to amend the Agreement as herein set
forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used in this Amendment, to the
extent not otherwise defined herein, shall have the same meaning as in the
Agreement, as amended hereby.
ARTICLE II
AMENDMENTS TO AGREEMENT
Section 2.1 Amendment to Section 11.7. Effective as of January 1, 2006,
Section 11.7 of the Agreement is amended and restated in its entirety to read as
follows:
Section 11.7 Xxxxxx Worldwide EBITDA. Borrower shall not permit
Xxxxxx Worldwide to permit more than 50% of its EBITDA to be based upon
income of any direct or indirect foreign Subsidiaries.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions. The effectiveness of this Amendment is subject to
the satisfaction of the following conditions precedent:
(a) Bank shall have received all of the following, each dated
(unless otherwise indicated) the date of this Amendment, in form and
substance satisfactory to Bank:
(1) Amendment. This Amendment, duly executed by Borrower and
ratified by each guarantor listed herein;
(2) Attorneys' Fees and Expenses. Payment of all outstanding
attorneys' fees and expenses incurred by Bank in connection with the
Agreement, as amended; and
(3) Additional Information. Such additional documents,
instruments and information as Bank or its legal counsel, Xxxxxxxx
Xxxxxxxx & Xxxxxx P.C., may reasonably request.
(b) The representations and warranties contained herein and in all
other Loan Documents, as amended hereby, shall be true and correct as of
the date hereof as if made on the date hereof, except to the extent
disclosed on Schedules delivered as of the date of this Amendment.
(c) No Event of Default shall have occurred and be continuing and no
event or condition shall have occurred that with the giving of notice or
lapse of time or both would be an Event of Default.
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments, and other legal matters incident thereto shall be
satisfactory to Bank and its legal counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx
P.C.
ARTICLE IV
NO WAIVER
Section 4.1 No Waiver. Nothing contained herein shall be construed as a
waiver by Bank of any covenant or provision of the Agreement, this Amendment, or
the other Loan Documents, or of any other contract or instrument between
Borrower and Bank, and the failure of Bank at any time or times hereafter to
require strict compliance by Borrower of any provision thereof shall not waive,
affect or diminish any right of Bank to thereafter demand strict compliance
therewith. Bank hereby reserves all rights granted under the Agreement, this
Amendment, the other Loan Documents and any other contract or instrument between
Borrower and Bank.
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ARTICLE V
MISCELLANEOUS
Section 5.1 Representations and Warranties. Borrower hereby represents and
warrants to Bank that (a) the execution, delivery and performance of this
Amendment and any and all other Loan Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of Borrower and will not violate the articles of incorporation or
bylaws of Borrower, (b) the representations and warranties contained in the
Agreement, as amended hereby, and any other Loan Document are true and correct
on and as of the date hereof as though made on and as of the date hereof, (c) no
Event of Default has occurred and is continuing and no event or condition has
occurred that with the giving of notice or lapse of time or both would be an
Event of Default, and (d) Borrower is in full compliance with all covenants and
agreements contained in the Agreement as amended hereby.
Section 5.2 Ratifications. Except as expressly modified and superseded by
this Amendment, the terms and provisions of the Agreement and the other Loan
Documents are ratified and confirmed and shall continue in full force and
effect. The representations and warranties contained herein and in all other
Loan Documents, as amended hereby, shall be true and correct as of, and as if
made on, the date hereof. Borrower and Bank agree that the Agreement as amended
hereby shall continue to be legal, valid, binding and enforceable in accordance
with its respective terms.
Section 5.3 Reference to the Agreement. Each of the Loan Documents,
including the Agreement and any and all other agreements, documents or
instruments now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Agreement as amended hereby, are hereby amended
so that any reference in such Loan Documents to the Agreement shall mean a
reference to the Agreement as amended hereby.
Section 5.4 Expenses of Bank. As provided for in the Agreement, Borrower
agrees to pay on demand all reasonable costs and expenses incurred by Bank in
connection with the preparation, negotiation, execution of this Amendment, and
the other Loan Documents executed pursuant hereto and any and all amendments,
modifications and supplements thereto including, without limitation, the
reasonable costs and fees of Bank's legal counsel, and all reasonable costs and
expenses incurred by Bank in connection with the enforcement or preservation of
any rights under the Agreement, as amended hereby, or any other Loan Documents.
Section 5.5 Severability. Any provisions of this Amendment held by court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provisions so held to be invalid or unenforceable.
Section 5.6 Applicable Law. This Amendment and all other Loan Documents
executed pursuant hereto shall be governed by and construed in accordance with
the laws of the State of Texas.
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Section 5.7 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of Bank and Borrower and their respective successors
and assigns.
Section 5.8 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original
but all of which when taken together shall constitute one and the same
instrument.
Section 5.9 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 5.10 NO ORAL AGREEMENTS. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES, AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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EXECUTED as of April 21, 2006.
BORROWER:
SAI HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
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Title:
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BANK:
GUARANTY BANK
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxx X. Xxxxxxxx, Xx.
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Title: Chairman
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Signature Page
Sixteenth Amendment to Amended and Restated
Loan Agreement
REAFFIRMATION OF AMENDED AND RESTATED GUARANTIES
Each of the undersigned hereby (i) consents to the execution and delivery
of the Amendment to which this Reaffirmation of Amended and Restated Guaranties
is attached (the "Amendment") by the parties thereto, (ii) agrees that the
Amendment shall not limit or diminish the obligations of each of the undersigned
under certain Fifth Amended and Restated Guaranties (Limited) dated as of
December 31, 2002 (each, a "Guaranty"), executed or joined in by each of the
undersigned and delivered to the Bank, (iii) reaffirms his obligations under his
respective Guaranty, and (iv) agrees that his Guaranty remains in full force and
effect, as limited by the terms of such Guaranty, and is hereby ratified and
confirmed.
Dated as of April 21, 2006.
GUARANTORS:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Son
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Xxxxxx X. Son
/s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx
/s/ Xxxxx X. Xxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxx, Xx.
