EXHIBIT 10.18
THIRTEENTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This Thirteenth Amendment to Amended and Restated Loan Agreement (this
"Amendment") is dated as of September 19, 2005, by and between SAI HOLDINGS,
INC., formerly known as SERVICE ASSET INVESTMENTS, INC., a Texas corporation
("Borrower"), and GUARANTY BANK, a federal savings bank ("Bank").
RECITALS:
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"),
pursuant to which Bank agreed to extend credit to Borrower in the form of a term
loan under the terms and provisions stated therein.
B. Borrower has requested that Bank amend certain provisions of the
Agreement to, among other things, (i) modify the Minimum Debt Service Coverage
Requirement for Xxxxxx Worldwide, (ii) decrease the Regulatory Capital of Xxxxxx
Financial Services, Inc., and (iii) allow the incurrence of additional Debt by
Xxxxxx Worldwide, Inc., 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
Section 2.1 Modification of Definition. Effective as of the date hereof,
the following definition in Section 1.1 of the Agreement is amended and restated
in its entirety as follows:
"EBITDA" means, for each period of determination, the sum of (a)
consolidated net income of a Person and its Subsidiaries for such period,
as determined in accordance with GAAP, plus (b) to the extent deducted in
arriving at consolidated net income for the period, depreciation,
amortization, non-cash charges, taxes, and interest expense of such
Person and its Subsidiaries for such period, provided, however, the
Borrower may add back one time non-recurring expenses incurred during its
fiscal quarters ending June 30, 2005 and September 30, 2005, associated
with severance costs, temporary and contract employee costs, and consultant
expenses in an amount not to exceed $1,500,000 in the aggregate for such
periods.
Section 2.2 Addition of Definitions. Effective as of the date hereof, the
following definitions are added in alphabetical order to Section 1.1 of the
Agreement to read as follows:
"CCS Transition" means (a) the occurrence of the customer conversions
to PFS from CCS that are planned by PFS and (b) the return of capital from
CCS to PFS that was loaned by PFS to CCS.
Section 2.3 Amendment to Section 10.18. Effective as of the date hereof,
Section 10.18 of the Agreement is amended and restated in its entirety as
follows:
Section 10.18. Xxxxxx Worldwide Debt. Borrower shall not permit Xxxxxx
Worldwide to incur any Debt other than the Short Term Debt, the SunGard
Debt, and the Service Lloyd's Debt plus $15,000,000 in other Debt.
Furthermore, Borrower shall not permit Xxxxxx Worldwide to make any
prepayments under the SunGard Debt at any time before this Agreement is
terminated. In addition, Borrower shall not permit Xxxxxx Worldwide to make
any payments under the Service Lloyd's Debt, the Short Term Debt, or the
SunGard Debt upon the occurrence of a Default or Event of Default under
this Agreement, or a "default" (as such term is defined therein) under the
Service Lloyd's Debt, the Short Term Debt, or the SunGard Debt.
Section 2.4 Amendment to Section 11.4. Effective as of the date hereof,
Section 11.4 of the Agreement is amended and restated in its entirety as
follows:
Section 11.4 Monthly Minimum Capital Requirements. Borrower shall
cause PFS to maintain as of the end of each fiscal month Regulatory Capital
which exceeds the sum of (a) 5% of the Debit Balances, plus (b) the
Additional Amount. For purposes of this Section 11.4, "Additional Amount"
shall mean $8,000,000, provided, however, the Additional Amount shall mean
$3,000,000 until December 30, 2005.
Section 2.5 Amendment to Section 11.6. Effective as of the date hereof,
Section 11.6 of the Agreement is amended and restated in its entirety as
follows:
Section 11.6 Minimum Debt Service Coverage Requirement. Borrower shall
cause Xxxxxx Worldwide to maintain, on a consolidated basis with its
Subsidiaries, as of the end of each fiscal quarter, tested quarterly for
the twelve-month period then ending, a Debt Service Coverage Ratio of at
least a ratio of (a) 1.00 to 1.00 for the fiscal quarters ending June 30,
2005, September 30, 2005 and December 31, 2005, and (b) 1.25 to 1.00
thereafter.
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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 Guarantors;
(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) Amendment Fee. Payment of an amendment fee in the amount of
$30,000 to Bank.
(4) 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 such
representations and warranties relate solely to an earlier date in which
case they shall have been true and accurate in all respects as of such
earlier date.
(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
Miscellaneous
Section 4.1 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
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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 4.2 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 4.3 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 4.4 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 4.5 Severabilitv. 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 4.6 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.
Section 4.7 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 4.8 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original
(including electronic copies) but all of which when taken together shall
constitute one and the same instrument.
Section 4.9 Headings. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
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Section 4.10 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 the day and year first above written.
BORROWER:
SAI HOLDINGS, INC., formerly known as
SERVICE ASSET INVESTMENTS, INC.
By: /s/ XXXXX X. XXXXXXXX, XX.
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Name:
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Title:
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BANK:
GUARANTY BANK
By: /s/ XXXXXXX X. XXXXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
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Title: Senior Vice President
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Signature Page
Thirteenth 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 Bank, (iii) reaffirms its obligations under its
respective Guaranty, and (iv) agrees that its Guaranty remains in full force and
effect, as limited by the terms of such Guaranty, and is hereby ratified and
confirmed.
Dated as of September___, 2005.
GUARANTORS:
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Xxxxxxx X. Xxxxx
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Xxxxxx X. Son
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Xxxxxx X. Xxxxxxxxxxx
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Xxxxx X. Xxxxxxxx, Xx.
