Exhibit 10.13
FOURTH AMENDMENT
TO
SEVENTH AMENDED AND RESTATED SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO SEVENTH AMENDED AND RESTATED SECURITY
AGREEMENT (the "Amendment") made and entered into as of the 26th day of
November, 2003, by and between DIRECT GENERAL FINANCIAL SERVICES, INC., a
Tennessee corporation whose address is 0000 Xxxxxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx 00000 (f/k/a Direct Financial Services, Inc.) ("Grantor"), and FIRST
TENNESSEE BANK NATIONAL ASSOCIATION, whose address is 000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxx 00000, Attention: Metropolitan Division (in its agency
capacity being herein referred to as "Agent," and in its individual capacity as
"FTBNA"), as agent for itself, and for HIBERNIA NATIONAL BANK, Baton Rouge,
Louisiana ("Hibernia"), and for U. S. BANK NATIONAL ASSOCIATION, St. Louis,
Missouri ("U. S. Bank"), and for REGIONS BANK, Birmingham, Alabama ("Regions"),
and for CAROLINA FIRST BANK, Greenville, South Carolina ("Carolina First"), and
for BANK ONE, NA (Main Office -- Chicago, Illinois), Baton Rouge, Louisiana
("Bank One"), and for NATIONAL CITY BANK OF KENTUCKY, Louisville, Kentucky
("National City Bank"), and for FIFTH THIRD BANK, Franklin, Tennessee ("Fifth
Third") (Agent, Hibernia, U. S. Bank, Regions, Carolina First, National City
Bank, Fifth Third, and Bank One collectively, the "Banks," and each
individually, a "Bank"), pursuant to the Eighth Amended and Restated Loan
Agreement dated as of October 31, 2002, as amended (the "Loan Agreement") among
Grantor, Banks and the other parties named therein.
Recitals of Fact
Pursuant to that certain Seventh Amended and Restated Security
Agreement dated as of October 31, 2002, as amended by that certain First
Amendment to Seventh Amended and Restated Security Agreement dated as of March
31, 2003, as amended by that certain Second Amendment to Seventh Amended and
Restated Security Agreement dated as of May 28, 2003, and as amended by that
certain Third Amendment to the Seventh Amended and Restated Security Agreement
dated as of June 30, 2003 (as amended, the "Security Agreement"), between
Grantor and the Banks, Grantor assigned and pledged Receivables (as defined in
the Loan Agreement) and other contractual rights to the Agent for the benefit of
the Banks as collateral security for all of the Obligations (as defined in the
Security Agreement) of Grantor to the Banks.
The Grantor and the Banks now desire to modify certain terms of the
Security Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises as set forth in the
Recitals of Fact, the mutual covenants and agreements hereinafter set out, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is agreed by the parties as follows:
Agreements
1. All capitalized terms used and not defined herein shall have
the meaning ascribed to them in the Loan Agreement.
2. To induce the Banks to enter into this Amendment, the Grantor
does hereby absolutely and unconditionally, certify, represent and warrant to
the Banks, and covenants and agrees with the Banks, that:
(a) All representations and warranties made by the
Grantor in the Loan Agreement, as amended, in the Security Agreement,
as amended, and in all other loan documents (all of which are herein
sometimes called the "Loan Documents"), are true, correct and complete
in all material respects as of the date of this Amendment.
(b) As of the date hereof and with the execution of this
Amendment, there are no existing events, circumstances or conditions
which constitute, or would, with the giving of notice, lapse of time,
or both, constitute Events of Default.
(c) There are no existing offsets, defenses or
counterclaims to the obligations of the Grantor, as set forth in the
Notes, the Security Agreement, the Loan Agreement, as amended, or in
any other Loan Document executed by the Grantor, in connection with the
Loan.
(d) The Grantor does not have any existing claim for
damages against the Banks arising out of or related to the Loan; and,
if and to the extent (if any) that the Grantor has or may have any such
existing claim (whether known or unknown), the Grantor does hereby
forever release and discharge, in all respects, the Banks with respect
to such claim.
(e) The Loan Documents, as amended by this Amendment, are
valid, genuine, enforceable in accordance with their respective terms,
and in full force and effect.
3. Section 2(a) of the Security Agreement, is hereby deleted in
its entirety and the following is inserted in lieu thereof:
(a) The full and prompt payment, when due, of the
indebtedness (and interest thereon) evidenced and to be evidenced by
those certain promissory notes,
(i) dated as of November 26, 2003, in the
principal sum of Forty Million Dollars
($40,000,000.00), executed by Grantor and
payable to the order of First Tennessee Bank
National Association;
(ii) dated as of November 26, 2003, in the
principal sum of Twenty Million Dollars
($20,000,000.00), executed by Grantor and
payable to the order of Hibernia;
(iii) dated as of November 26, 2003, in the
principal sum of Thirty Million Dollars
($30,000,000.00), executed by Grantor and
payable to the order of U. S. Bank;
(iv) dated as of November 26, 2003, in the
principal sum of Twenty-Five Million Dollars
($25,000,000.00), executed by Grantor and
payable to the order of Regions;
(v) dated as of November 26, 2003, in the
principal sum of Fifteen Million Dollars
($15,000,000.00), executed by Grantor and
payable to the order of Carolina First;
(vi) dated as of November 26, 2003, in the
principal sum of Fifteen Million Dollars
($15,000,000.00), executed by Grantor and
payable to the order of National City Bank;
(vii) dated as of November 26, 2003, in the
principal sum of Ten Million Dollars
($10,000,000.00), executed by Grantor and
payable to the order of Fifth Third; and
(viii) dated as of November 26, 2003, in the
principal sum of Thirty-Five Million Dollars
($35,000,000.00), executed by Grantor and
payable to the order of Bank One,
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together with and any and all renewals, modifications, and extensions
of any of said notes, in whole or in part; and
4. All terms and provisions of the Security Agreement, as
heretofore amended, which are inconsistent with the provisions of this Amendment
are hereby modified and amended to conform hereto; and, as so modified and
amended, the Security Agreement is hereby ratified, approved and confirmed.
Except as otherwise may be expressly provided herein, this Amendment shall
become effective as of the date set forth in the initial paragraph hereof.
5. All references in all Loan Documents (including, but not
limited to, the Notes, the Security Agreement, and the Loan Agreement) to the
"Security Agreement" shall, except as the context may otherwise require, be
deemed to constitute references to the Security Agreement as amended hereby.
[SEPARATE SIGNATURE PAGES FOLLOW]
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SIGNATURE PAGE
TO
FOURTH AMENDMENT TO SEVENTH AMENDED AND RESTATED SECURITY AGREEMENT
================================================================================
IN WITNESS WHEREOF, the Grantor, the Banks and the Agent have caused
this Agreement to be executed by their duly authorized officers, all as of the
day and year first above written.
GRANTOR:
DIRECT GENERAL FINANCIAL SERVICES, INC.,
a Tennessee corporation
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Title: President
--------------------------------------
BANKS:
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Title: SVP
--------------------------------------
HIBERNIA NATIONAL BANK
By: /s/ Xxxxx Xxxxx Rack
-----------------------------------------
Title: Senior Vice President
--------------------------------------
U. S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Vice President
--------------------------------------
CAROLINA FIRST BANK
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------
Title: Executive Vice President
--------------------------------------
[SIGNATURE PAGE CONTINUED]
BANKS (continued):
XXXX XXX, XX
(XXXX XXXXXX - XXXXXXX, XXXXXXXX)
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Title: First Vice President
--------------------------------------
REGIONS BANK
By: /s/ Xxx Xxxxxxxxx
-----------------------------------------
Title: Assistant Vice President
--------------------------------------
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Title: SVP
--------------------------------------
FIFTH THIRD BANK
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Title: VP
--------------------------------------
AGENT:
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Title: SVP
--------------------------------------
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