EXHIBIT 10.9
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT
(LIMITED)
WHEREAS, the execution of this Fifth Amended and Restated Guaranty
Agreement (this "Guaranty Agreement"), which amends and restates that certain
Fourth Amended and Restated Guaranty Agreement dated as of July 31, 2002 (the
"Prior Guaranty"), is a condition to SAI HOLDINGS, INC., formerly known as
SERVICE ASSET INVESTMENT, INC., a Texas corporation ("Borrower"), borrowing from
GUARANTY BANK, a federal savings bank, formerly known as Guaranty Federal Bank,
F.S.B. ("Lender"), a term loan pursuant to that certain Amended and Restated
Loan Agreement dated as of April 30, 2001 (such Loan Agreement, as it has been
or may hereafter be amended or modified from time to time, being hereinafter
referred to as the "Loan Agreement") between Borrower and Lender; and
WHEREAS, Borrower and Lender have agreed to modify the Loan Agreement, and
as a condition thereto, Guarantor has agreed to amend and restate the Prior
Guaranty according to the terms hereof.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, XXXXXX X.SON, an individual residing at 0000
Xxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 (the "Guarantor"), hereby irrevocably and
unconditionally guarantees to Lender, subject to the terms of this Guaranty
Agreement, the full and prompt payment and performance of the Guaranteed
Indebtedness (hereinafter defined), this Guaranty Agreement being upon the
following terms:
1. DEFINITION OF GUARANTEED INDEBTEDNESS. The term "Guaranteed
Indebtedness" as used herein means Borrower's obligations under the Term Loan
(as defined in the Loan Agreement), provided that after additional capital is
raised in an amount of no less than $6,000,000 after December 31, 2002 and
injected into Xxxxxx Financial Services, Inc. on terms and conditions
satisfactory to Lender, Guarantor's liability with respect to such obligations
shall be limited to an amount not to exceed an amount equal to $864,000.00. All
capitalized terms used and not otherwise defined herein shall have their
respective meanings as set forth in the Loan Agreement.
2. ABSOLUTE GUARANTY; NO SET-OFF RIGHTS. This instrument shall be an
absolute, continuing, irrevocable, and unconditional guaranty of payment and
performance, and not a guaranty of collection, of the Guaranteed Indebtedness as
provided herein, and Guarantor shall remain liable on its obligations hereunder
until the payment and performance in full of the Guaranteed Indebtedness,
subject to the terms of Section 1 of this Guaranty Agreement. No set-off,
counterclaim, recoupment, reduction, or diminution of any obligation, or any
defense of any kind or nature which Borrower may have against Lender or any
other party, or Guarantor may have against Borrower, Lender, or any other party,
shall be available to, or shall be asserted by, Guarantor against Lender or any
subsequent holder of the Guaranteed Indebtedness or any part thereof or against
payment of the Guaranteed Indebtedness or any part thereof.
3. NO IMPAIRMENT OF RIGHTS. If Guarantor becomes liable for any
indebtedness owing by Borrower to Lender by endorsement or otherwise, other than
under this
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 1
Guaranty Agreement, such liability shall not be in any manner impaired or
affected hereby, and the rights of Lender hereunder shall be cumulative of any
and all other rights that Lender may ever have against Guarantor. The exercise
by Lender of any right or remedy hereunder or under any other instrument, or at
Law or in equity, shall not preclude the concurrent or subsequent exercise of
any other right or remedy.
4. OBLIGATIONS OF GUARANTORS; NO DUTY TO EXHAUST REMEDIES; WAIVER OF
SUBROGATION. In the event of default by Borrower in payment or performance of
the Guaranteed Indebtedness, or any part thereof, when such Guaranteed
Indebtedness becomes due, whether by its terms, by acceleration, or otherwise,
Guarantor shall promptly pay the amount due thereon to Lender without notice or
demand in lawful money of the United States of America and it shall not be
necessary for Lender, in order to enforce such payment by either Guarantor,
first to institute suit or exhaust its remedies against Borrower or any other
guarantor or others liable on such Guaranteed Indebtedness, or to enforce any
rights against any collateral which shall ever have been given to secure such
Guaranteed Indebtedness. Notwithstanding anything to the contrary contained in
this Guaranty Agreement, until such time as the Guaranteed Indebtedness has been
paid in full, Guarantor hereby irrevocably waives any and all rights it may now
or hereafter have under any agreement or at law or in equity (including, without
limitation, any law subrogating Guarantor to the rights of Lender) to assert any
claim against or seek contribution, indemnification or any other form of
reimbursement from Borrower or any other guarantors or any other party liable
for payment of any or all of the Guaranteed Indebtedness for any payment made by
Guarantor under or in connection with this Guaranty Agreement or otherwise. If
acceleration of the time for payment of any amount payable by Borrower under the
Guaranteed Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower, all such amounts otherwise subject to acceleration
under the terms of the Guaranteed Indebtedness shall nonetheless be payable by
Guarantor hereunder forthwith on demand by Lender.
5. NO IMPAIRMENT OF GUARANTOR'S OBLIGATIONS. Guarantor hereby agrees that
its obligations under this Guaranty Agreement shall not be released, discharged,
diminished, impaired, reduced, or affected for any reason or by the occurrence
of any event, including, without limitation, one or more of the following
events, whether or not with notice to or the consent of Guarantor: (a) the
taking or accepting of collateral as security for any or all of the Guaranteed
Indebtedness or the release, surrender, exchange, or subordination of any
collateral now or hereafter securing any or all of the Guaranteed Indebtedness;
(b) any partial release of the liability of Guarantor hereunder, or the full or
partial release of any other guarantor or obligor from liability for any or all
of the Guaranteed Indebtedness; (c) any disability of Borrower, or the
dissolution, insolvency, or bankruptcy of Borrower, Guarantor, or any other
party at any time liable for the payment of any or all of the Guaranteed
Indebtedness; (d) any renewal, extension, modification, waiver, amendment, or
rearrangement of any or all of the Guaranteed Indebtedness or any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (e) any adjustment, indulgence, forbearance,
waiver, or compromise that may be granted or given by Lender to Borrower,
Guarantor, or any other party ever liable for any or all of the Guaranteed
Indebtedness; (f) any neglect, delay, omission, failure, or refusal of Lender to
take or prosecute any action for the collection of any of the Guaranteed
Indebtedness or to foreclose or take or prosecute any action in connection with
any instrument, document, or agreement evidencing, securing, or otherwise
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 2
relating to any or all of the Guaranteed Indebtedness; (g) the unenforceability
or invalidity of any or all of the Guaranteed Indebtedness or of any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (h) any payment by Borrower or any other party
to Lender is held to constitute a preference under applicable bankruptcy or
insolvency law or if for any other reason Lender is required to refund any
payment or pay the amount thereof to someone else; (i) the settlement or
compromise of any of the Guaranteed Indebtedness; (j) the non-perfection of any
security interest or lien securing any or all of the Guaranteed Indebtedness;
(k) any impairment of any collateral securing any or all of the Guaranteed
Indebtedness; (l) the failure of Lender to sell any collateral securing any or
all of the Guaranteed Indebtedness in a commercially reasonable manner or as
otherwise required by law; (m) any change in the corporate existence, structure,
or ownership of Borrower; or (n) any other circumstance which might otherwise
constitute a defense available to, or discharge of, Borrower or Guarantor.
6. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender as follows:
(a) Guarantor has the power and authority and legal right to
execute, deliver, and perform its obligations under this Guaranty
Agreement and this Guaranty Agreement constitutes the legal, valid, and
binding obligation of Guarantor, enforceable against Guarantor in
accordance with its terms, except as limited by bankruptcy, insolvency, or
other laws of general application relating to the enforcement of
creditors' rights.
(b) The execution, delivery, and performance by Guarantor of this
Guaranty Agreement do not and will not violate or conflict with any law,
rule, or regulation or any order, writ, injunction, or decree of any
court, governmental authority or agency, or arbitrator and do not and will
not conflict with, result in a breach of, or constitute a default under,
or result in the imposition of any lien upon any assets of Guarantor
pursuant to the provisions of any indenture, mortgage, deed of trust,
security agreement, franchise, permit, license, or other instrument or
agreement to which Guarantor or its properties is bound.
(c) No authorization, approval, or consent of, and no filing or
registration with, any court, governmental authority, or third party is
necessary for the execution, delivery, or performance by Guarantor of this
Guaranty Agreement or the validity or enforceability thereof.
(d) The value of the consideration received and to be received by
Guarantor as a result of Lender making the Term Loan to Borrower under the
Loan Agreement and Guarantor executing and delivering this Guaranty
Agreement is reasonably worth at least as much as the liability and
obligation of Guarantor hereunder, and such liability and obligation and
the Loan Agreement have benefited and may reasonably be expected to
benefit Guarantor directly and indirectly.
(e) Guarantor has, independently and without reliance upon Lender
and based upon such documents and information as Guarantor has deemed
appropriate, made its own analysis and decision to enter into this
Guaranty Agreement.
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 3
7. COVENANTS OF GUARANTOR. Guarantor covenants and agrees that, as long as
the Guaranteed Indebtedness or any part thereof is outstanding or Lender has any
commitment under the Loan Agreement:
(a) Guarantor will furnish promptly to Lender written notice of the
occurrence of any default under this Guaranty Agreement or an Event of
Default under the Loan Agreement of which Guarantor has knowledge.
(b) Guarantor will furnish promptly to Lender such additional
information concerning Guarantor as Lender may request.
(c) Guarantor will obtain at any time and from time to time all
authorizations, licenses, consents or approvals as shall now or hereafter
be necessary or desirable under all applicable laws or regulations or
otherwise in connection with the execution, delivery and performance of
this Guaranty Agreement and will promptly furnish copies thereof to
Lender.
(d) Guarantor will at all times own directly or indirectly and free
and clear of all liens and encumbrances whatsoever at least the same
percentage of voting shares of Borrower, if any, as it owns directly or
indirectly on the date hereof.
8. LENDER'S RIGHTS WITH RESPECT TO GUARANTOR'S PROPERTY IN LENDER'S
POSSESSION. Lender shall have the right to set off and apply against this
Guaranty Agreement or the Guaranteed Indebtedness or both, at any time and
without notice to Guarantor, any and all deposits (general or Special, time or
demand, provisional or final) or other sums at any time credited by or owing
from Lender to Guarantor whether or not the Guaranteed Indebtedness is then due
and irrespective of whether or not Lender shall have made any demand under this
Guaranty Agreement. As security for this Guaranty Agreement and the Guaranteed
Indebtedness, Guarantor hereby grants Lender a security interest in all money,
instruments, certificates of deposit, and other property of Guarantor now or
hereafter held by Lender, including, without limitation, property held in
safekeeping. In addition to Lender's right of setoff and as further security for
this Guaranty Agreement and the Guaranteed Indebtedness, Guarantor hereby grants
Lender a security interest in all deposits (general or special, time or demand,
provisional or final) and all other accounts of Guarantor now or hereafter on
deposit with or held by Lender and all other sums at any time credited by or
owing from Lender to Guarantor. The rights and remedies of Lender hereunder are
in addition to other rights and remedies (including, without limitation, other
rights of setoff) which Lender may have.
9. SUBORDINATION. (a) Guarantor hereby agrees that the Subordinated
Indebtedness (as hereinafter defined) shall be subordinate and junior in right
of payment to the prior payment in full of all Guaranteed Indebtedness, and
Guarantor hereby assigns the Subordinated Indebtedness to Lender as security for
the Guaranteed Indebtedness. If any sums shall be paid to Guarantor by Borrower
or any other person or entity on account of the Subordinated Indebtedness, suck
sums shall be held in trust by Guarantor for the benefit of Lender and shall
forthwith be paid to Lender without affecting the liability of Guarantor under
this Guaranty Agreement and may be applied by Lender against the Guaranteed
Indebtedness in such order and manner as Lender may determine in its sole
discretion. Upon the request of
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 4
Lender, Guarantor shall execute, deliver, and endorse to Lender such documents
and instruments as Lender may request to perfect, preserve, and enforce its
rights hereunder. For purposes of this Guaranty Agreement, the term
"Subordinated Indebtedness" means all indebtedness, liabilities, and obligations
of Borrower to Guarantor, whether such indebtedness, liabilities, and
obligations now exist or are hereafter incurred or arise, or whether the
obligations of Borrower thereon are direct, indirect, contingent, primary,
secondary, several, joint and several, or otherwise, and irrespective of whether
such indebtedness, liabilities, or obligations are evidenced by a note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such indebtedness, obligations, or liabilities may, at their
inception, have been, or may hereafter be created, or the manner in which they
have been or may hereafter be acquired by Guarantor.
(b) Guarantor agrees that any and all liens, security interests,
judgment liens, charges, or other encumbrances upon Borrower's assets
securing payment of any Subordinated Indebtedness shall be and remain
inferior and subordinate to any and all liens, security interests,
judgment liens, charges, or other encumbrances upon Borrower's assets
securing payment of the Guaranteed Indebtedness or any part thereof,
regardless of whether such encumbrances in favor of Guarantor or Lender
presently exist or are hereafter created or attached. Without the prior
written consent of Lender, Guarantor shall not (i) file suit against
Borrower or exercise or enforce any other creditor's right it may have
against Borrower, or (ii) foreclose, repossess, sequester, or otherwise
take steps or institute any action or proceedings (judicial or otherwise,
including without limitation the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any liens, security interests, collateral rights,
judgments or other encumbrances held by Guarantor on assets of Borrower.
(c) In the event of any receivership, bankruptcy, reorganization,
rearrangement, debtor's relief, or other insolvency proceeding involving
Borrower as debtor, Lender shall have the right to prove and vote any
claim under the Subordinated Indebtedness and to receive directly from the
receiver, trustee or other court custodian all dividends, distributions,
and payments made in respect of the Subordinated Indebtedness. Lender may
apply any such dividends, distributions, and payments against the
Guaranteed Indebtedness in such order and manner as Lender may determine
in its sole discretion.
10. AMENDMENTS; CUMULATIVE REMEDIES. No amendment or waiver of any
provision of this Guaranty Agreement nor consent to any departure by Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by Lender. No failure on the part of Lender to exercise, and no delay
in exercising any right, power, or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power, or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
11. SUCCESSORS AND ASSIGNS. This Guaranty Agreement is for the benefit of
Lender and its successors and assigns, and in the event of an assignment of the
Guaranteed Indebtedness, or any part thereof, the rights and benefits hereunder,
to the extent applicable to the indebtedness so assigned, may be transferred
with such indebtedness. This Guaranty
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 5
Agreement is binding not only on Guarantor, but on Guarantor's heirs and
personal representatives.
12. RELIANCE BY LENDER. Guarantor recognizes that Lender is relying upon
this Guaranty Agreement and the undertakings of Guarantor hereunder in making
extensions of credit to Borrower under the Loan Agreement and further recognizes
that the execution and delivery of this Guaranty Agreement is a material
inducement to Lender in making the Term Loan under the Loan Agreement Guarantor
hereby acknowledges that there are no conditions to the full effectiveness of
this Guaranty Agreement.
13. GOVERNING LAW. THIS GUARANTY AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
14. FEES AND EXPENSES. Guarantor shall pay on demand all reasonable
attorneys' fees and all other costs and expenses incurred by Lender in
connection with the enforcement or collection of this Guaranty Agreement.
15. WAIVERS BY GUARANTOR. Guarantor hereby waives promptness, diligence,
notice of any default under the Guaranteed Indebtedness, demand for payment,
notice of acceptance of this Guaranty Agreement, presentment, notice of protest,
notice of dishonor, notice of the incurring by Borrower of additional
indebtedness, and all other notices and demands with respect to the Guaranteed
Indebtedness and this Guaranty Agreement.
16. VALIDITY; ENFORCEABILITY. The Loan Agreement, and all of the terms
thereof, are incorporated herein by reference, the same as if stated verbatim
herein, and Guarantor agrees that Lender may exercise any and all rights granted
to it under the Loan Agreement and the other Loan Documents (as defined in the
Loan Agreement) without affecting the validity or enforceability of this
Guaranty Agreement.
17. NO RELIANCE ON LENDER. Guarantor hereby represents and warrants to
Lender that Guarantor has adequate means to obtain from Borrower and the
Subsidiaries on a continuing basis information concerning the financial
condition and assets of Borrower and the Subsidiaries and that Guarantor is not
relying upon Lender to provide (and Lender shall have no duty to provide) any
such information to Guarantor either now or in the future.
18. NO ORAL AGREEMENTS. THIS GUARANTY AGREEMENT REPRESENTS THE FINAL
AGREEMENT OF GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE
GUARANTEED INDEBTEDNESS AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
[Remainder of Page Intentionally Left Blank. Signature Page Follows]
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 6
EXECUTED as of the 31 day of December, 2002.
GUARANTOR:
/s/ Xxxxxx X. Son
--------------------------------------
Xxxxxx X. Son
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Signature Page
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT
(LIMITED)
WHEREAS, the execution of this Fifth Amended and Restated Guaranty
Agreement (this "Guaranty Agreement"), which amends and restates that certain
Fourth Amended and Restated Guaranty Agreement dated as of July 31, 2002 (the
"Prior Guaranty"), is a condition to SAI HOLDINGS, INC., formerly known as
SERVICE ASSET INVESTMENT, INC., a Texas corporation ("Borrower"), borrowing from
GUARANTY BANK, a federal savings bank, formerly known as Guaranty Federal Bank,
F.S.B. ("Lender"), a term loan pursuant to that certain Amended and Restated
Loan Agreement dated as of April 30, 2001 (such Loan Agreement, as it has been
or may hereafter be amended or modified from time to time, being hereinafter
referred to as the "Loan Agreement") between Borrower and Lender; and
WHEREAS, Borrower and Lender have agreed to modify the Loan Agreement, and
as a condition thereto, Guarantor has agreed to amend and restate the Prior
Guaranty according to the terms hereof.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, XXXXXX X. XXXXXXXXXXX, an individual residing at
0000 Xxx Xxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxx 00000 (the 'Guarantor"), hereby
irrevocably and unconditionally guarantees to Lender, subject to the terms of
this Guaranty Agreement, the full and prompt payment and performance of the
Guaranteed Indebtedness (hereinafter defined), this Guaranty Agreement being
upon the following terms:
1. DEFINITION OF GUARANTEED INDEBTEDNESS. The term "Guaranteed
Indebtedness" as used herein means Borrower's obligations under the Term Loan
(as defined in the Loan Agreement), provided that after additional capital is
raised in an amount of no less than $6,000,000 after December 31, 2002 and
injected into Xxxxxx Financial Services, Inc. on terms and conditions
satisfactory to Lender, Guarantor's liability with respect to such obligations
shall be limited to an amount not to exceed an amount equal to $864,000.00. All
capitalized terms used and not otherwise defined herein shall have their
respective meanings as set forth in the Loan Agreement.
2. ABSOLUTE GUARANTY; NO SET-OFF RIGHTS. This instrument shall be an
absolute, continuing, irrevocable, and unconditional guaranty of payment and
performance, and not a guaranty of collection, of the Guaranteed Indebtedness as
provided herein, and Guarantor shall remain liable on its obligations hereunder
until the payment and performance in full of the Guaranteed Indebtedness,
subject to the terms of Section 1 of this Guaranty Agreement. No set-off,
counterclaim, recoupment, reduction, or diminution of any obligation, or any
defense of any kind or nature which Borrower may have against Lender or any
other party, or Guarantor may have against Borrower, Lender, or any other party,
shall be available to, or shall be asserted by, Guarantor against Lender or any
subsequent holder of the Guaranteed Indebtedness or any part thereof or against
payment of the Guaranteed Indebtedness or any part thereof.
3. NO IMPAIRMENT OF RIGHTS. If Guarantor becomes liable for any
indebtedness owing by Borrower to Lender by endorsement or otherwise, other than
under this
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 1
Guaranty Agreement, such liability shall not be in any manner impaired or
affected hereby, and the rights of Lender hereunder shall be cumulative of any
and all other rights that Lender may ever have against Guarantor. The exercise
by Lender of any right or remedy hereunder or under any other instrument, or at
law or in equity, shall not preclude the concurrent or subsequent exercise of
any other right or remedy.
4. OBLIGATIONS OF GUARANTORS; NO DUTY TO EXHAUST REMEDIES; WAIVER OF
SUBROGATION. In the event of default by Borrower in payment or performance of
the Guaranteed Indebtedness, or any part thereof, when such Guaranteed
Indebtedness becomes due, whether by its terms, by acceleration, or otherwise,
Guarantor shall promptly pay the amount due thereon to Lender without notice or
demand in lawful money of the United States of America and it shall not be
necessary for Lender, in order to enforce such payment by either Guarantor,
first to institute suit or exhaust its remedies against Borrower or any other
guarantor or others liable on such Guaranteed Indebtedness, or to enforce any
rights against any collateral which shall ever have been given to secure such
Guaranteed Indebtedness. Notwithstanding anything to the contrary contained in
this Guaranty Agreement, until such time as the Guaranteed Indebtedness has been
paid in full, Guarantor hereby irrevocably waives any and all rights it may now
or hereafter have under any agreement or at law or in equity (including, without
limitation, any law subrogating Guarantor to the rights of Lender) to assert any
claim against or seek contribution, indemnification or any other form of
reimbursement from Borrower or any other guarantors or any other party liable
for payment of any or all of the Guaranteed Indebtedness for any payment made by
Guarantor under or in connection with this Guaranty Agreement or otherwise. If
acceleration of the time for payment of any amount payable by Borrower under the
Guaranteed Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower, all such amounts otherwise subject to acceleration
under the terms of the Guaranteed Indebtedness shall nonetheless be payable by
Guarantor hereunder forthwith on demand by Lender.
5. NO IMPAIRMENT OF GUARANTOR'S OBLIGATIONS. Guarantor hereby agrees that
its obligations under this Guaranty Agreement shall not be released, discharged,
diminished, impaired, reduced, or affected for any reason or by the occurrence
of any event, including, without limitation, one or more of the following
events, whether or not with notice to or the consent of Guarantor: (a) the
taking or accepting of collateral as security for any or all of the Guaranteed
Indebtedness or the release, surrender, exchange, or subordination of any
collateral now or hereafter securing any or all of the Guaranteed Indebtedness;
(b) any partial release of the liability of Guarantor hereunder, or the full or
partial release of any other guarantor or obligor from liability for any or all
of the Guaranteed Indebtedness; (c) any disability of Borrower, or the
dissolution, insolvency, or bankruptcy of Borrower, Guarantor, or any other
party at any time liable for the payment of any or all of the Guaranteed
Indebtedness; (d) any renewal, extension, modification, waiver, amendment, or
rearrangement of any or all of the Guaranteed Indebtedness or any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (e) any adjustment, indulgence, forbearance,
waiver, or compromise that may be granted or given by Lender to Borrower,
Guarantor, or any other party ever liable for any or all of the Guaranteed
Indebtedness; (f) any neglect, delay, omission, failure, or refusal of Lender to
take or prosecute any action for the collection of any of the Guaranteed
Indebtedness or to foreclose or take or prosecute any action in connection with
any instrument, document, or agreement evidencing, securing, or otherwise
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 2
relating to any or all of the Guaranteed Indebtedness; (g) the unenforceability
or invalidity of any or all of the Guaranteed Indebtedness or of any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (h) any payment by Borrower or any other party
to Lender is held to constitute a preference under applicable bankruptcy or
insolvency law or if for any other reason Lender is required to refund any
payment or pay the amount thereof to someone else; (i) the settlement or
compromise of any of the Guaranteed Indebtedness; (j) the non-perfection of any
security interest or lien securing any or all of the Guaranteed Indebtedness;
(k) any impairment of any collateral securing any or all of the Guaranteed
Indebtedness; (l) the failure of Lender to sell any collateral securing any or
all of the Guaranteed Indebtedness in a commercially reasonable manner or as
otherwise required by law; (m) any change in the corporate existence, structure,
or ownership of Borrower; or (n) any other circumstance which might otherwise
constitute a defense available to, or discharge of, Borrower or Guarantor.
6. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender as follows:
(a) Guarantor has the power and authority and legal right to
execute, deliver, and perform its obligations under this Guaranty
Agreement and this Guaranty Agreement constitutes the legal, valid, and
binding obligation of Guarantor, enforceable against Guarantor in
accordance with its terms, except as limited by bankruptcy, insolvency, or
other laws of general application relating to the enforcement of
creditors' rights.
(b) The execution, delivery, and performance by Guarantor of this
Guaranty Agreement do not and will not violate or conflict with any law,
rule, or regulation or any order, writ, injunction, or decree of any
court, governmental authority or agency, or arbitrator and do not and will
not conflict with, result in a breach of, or constitute a default under,
or result in the imposition of any lien upon any assets of Guarantor
pursuant to the provisions of any indenture, mortgage, deed of trust,
security agreement, franchise, permit, license, or other instrument or
agreement to which Guarantor or its properties is bound.
(c) No authorization, approval, or consent of, and no filing or
registration with, any court, governmental authority, or third party is
necessary for the execution, delivery, or performance by Guarantor of this
Guaranty Agreement or the validity or enforceability thereof.
(d) The value of the consideration received and to be received by
Guarantor as a result of Lender making the Term Loan to Borrower under the
Loan Agreement and Guarantor executing and delivering this Guaranty
Agreement is reasonably worth at least as much as the liability and
obligation of Guarantor hereunder, and such liability and obligation and
the Loan Agreement have benefitted and may reasonably be expected to
benefit Guarantor directly and indirectly.
(e) Guarantor has, independently and without reliance upon Lender
and based upon such documents and information as Guarantor has deemed
appropriate, made its own analysis and decision to enter into this
Guaranty Agreement.
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 3
7. COVENANTS OF GUARANTOR. Guarantor covenants and agrees that, as long as
the Guaranteed Indebtedness or any part thereof is outstanding or Lender has any
commitment under the Loan Agreement:
(a) Guarantor will furnish promptly to Lender written notice of the
occurrence of any default under this Guaranty Agreement or an Event of
Default under the Loan Agreement of which Guarantor has knowledge.
(b) Guarantor will furnish promptly to Lender such additional
information concerning Guarantor as Lender may request.
(c) Guarantor will obtain at any time and from time to time all
authorizations, licenses, consents or approvals as shall now or hereafter
be necessary or desirable under all applicable laws or regulations or
otherwise in connection with the execution, delivery and performance of
this Guaranty Agreement and will promptly furnish copies thereof to
Lender.
(d) Guarantor will at all times own directly or indirectly and free
and clear of all liens and encumbrances whatsoever at least the same
percentage of voting shares of Borrower, if any, as it owns directly or
indirectly on the date hereof.
8. LENDER'S RIGHTS WITH RESPECT TO GUARANTOR'S PROPERTY IN LENDER'S
POSSESSION. Lender shall have the right to set off and apply against this
Guaranty Agreement or the Guaranteed Indebtedness or both, at any time and
without notice to Guarantor, any and all deposits (general or special, time or
demand, provisional or final) or other sums at any time credited by or owing
from Lender to Guarantor whether or not the Guaranteed Indebtedness is then due
and irrespective of whether or not Lender shall have made any demand under this
Guaranty Agreement. As security for this Guaranty Agreement and the Guaranteed
Indebtedness, Guarantor hereby grants Lender a security interest in all money,
instruments, certificates of deposit, and other property of Guarantor now or
hereafter held by Lender, including, without limitation, property held in
safekeeping. In addition to Lender's right of setoff and as further security for
this Guaranty Agreement and the Guaranteed Indebtedness, Guarantor hereby grants
Lender a security interest in all deposits (general or special, time or demand,
provisional or final) and all other accounts of Guarantor now or hereafter on
deposit with or held by Lender and all other sums at any time credited by or
owing from Lender to Guarantor. The rights and remedies of Lender hereunder are
in addition to other rights and remedies (including, without limitation, other
rights of setoff) which Lender may have.
9. SUBORDINATION. (a) Guarantor hereby agrees that the Subordinated
Indebtedness (as hereinafter defined) shall be subordinate and junior in right
of payment to the prior payment in full of all Guaranteed Indebtedness, and
Guarantor hereby assigns the Subordinated Indebtedness to Lender as security for
the Guaranteed Indebtedness. If any sums shall be paid to Guarantor by Borrower
or any other person or entity on account of the Subordinated Indebtedness, such
sums shall be held in trust by Guarantor for the benefit of Lender and shall
forthwith be paid to Lender without affecting the liability of Guarantor under
this Guaranty Agreement and may be applied by Lender against the Guaranteed
Indebtedness in such order and manner as Lender may determine in its sole
discretion. Upon the request of
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 4
Lender, Guarantor shall execute, deliver, and endorse to Lender such documents
and instruments as Lender may request to perfect, preserve, and enforce its
rights hereunder. For purposes of this Guaranty Agreement, the term
"Subordinated Indebtedness" means all indebtedness, liabilities, and obligations
of Borrower to Guarantor, whether such indebtedness, liabilities, and
obligations now exist or are hereafter incurred or arise, or whether the
obligations of Borrower thereon are direct, indirect, contingent, primary,
secondary, several, joint and several, or otherwise, and irrespective of whether
such indebtedness, liabilities, or obligations are evidenced by a note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such indebtedness, obligations, or liabilities may, at their
inception, have been, or may hereafter be created, or the manner in which they
have been or may hereafter be acquired by Guarantor.
(b) Guarantor agrees that any and all liens, security interests,
judgment liens, charges, or other encumbrances upon Borrower's assets
securing payment of any Subordinated Indebtedness shall be and remain
inferior and subordinate to any and all liens, security interests,
judgment liens, charges, or other encumbrances upon Borrower's assets
securing payment of the Guaranteed Indebtedness or any part thereof,
regardless of whether such encumbrances in favor of Guarantor or Lender
presently exist or are hereafter created or attached. Without the prior
written consent of Lender, Guarantor shall not (i) file suit against
Borrower or exercise or enforce any other creditor's right it may have
against Borrower, or (ii) foreclose, repossess, sequester, or otherwise
take steps or institute any action or proceedings (judicial or otherwise,
including without limitation the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any liens, security interests, collateral rights,
judgments or other encumbrances held by Guarantor on assets of Borrower.
(c) In the event of any receivership, bankruptcy, reorganization,
rearrangement, debtor's relief, or other insolvency proceeding involving
Borrower as debtor, Lender shall have the right to prove and vote any
claim under the Subordinated Indebtedness and to receive directly from the
receiver, trustee or other court custodian all dividends, distributions,
and payments made in respect of the Subordinated Indebtedness. Lender may
apply any such dividends, distributions, and payments against the
Guaranteed Indebtedness in such order and manner as Lender may determine
in its sole discretion.
10. AMENDMENTS; CUMULATIVE REMEDIES. No amendment or waiver of any
provision of this Guaranty Agreement nor consent to any departure by Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by Lender. No failure on the part of Lender to exercise, and no delay
in exercising any right, power, or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power, or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
11. SUCCESSORS AND ASSIGNS. This Guaranty Agreement is for the benefit of
Lender and its successors and assigns, and in the event of an assignment of the
Guaranteed Indebtedness, or any part thereof, the rights and benefits hereunder,
to the extent applicable to the indebtedness so assigned, may be transferred
with such indebtedness. This Guaranty
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 5
Agreement is binding not only on Guarantor, but on Guarantor's heirs and
personal representatives.
12. RELIANCE BY LENDER. Guarantor recognizes that Lender is relying upon
this Guaranty Agreement and the undertakings of Guarantor hereunder in making
extensions of credit to Borrower under the Loan Agreement and further recognizes
that the execution and delivery of this Guaranty Agreement is a material
inducement to Lender in making the Term Loan under the Loan Agreement. Guarantor
hereby acknowledges that there are no conditions to the full effectiveness of
this Guaranty Agreement.
13. GOVERNING LAW. THIS GUARANTY AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
14. FEES AND EXPENSES. Guarantor shall pay on demand all reasonable
attorneys' fees and all other costs and expenses incurred by Lender in
connection with the enforcement or collection of this Guaranty Agreement.
15. WAIVERS BY GUARANTOR. Guarantor hereby waives promptness, diligence,
notice of any default under the Guaranteed Indebtedness, demand for payment,
notice of acceptance of this Guaranty Agreement, presentment, notice of protest,
notice of dishonor, notice of the incurring by Borrower of additional
indebtedness, and all other notices and demands with respect to the Guaranteed
Indebtedness and this Guaranty Agreement.
16. VALIDITY; ENFORCEABILITY. The Loan Agreement, and all of the terms
thereof, are incorporated herein by reference, the same as if stated verbatim
herein, and Guarantor agrees that Lender may exercise any and all rights granted
to it under the Loan Agreement and the other Loan Documents (as defined in the
Loan Agreement) without affecting the validity or enforceability of this
Guaranty Agreement.
17. NO RELIANCE ON LENDER. Guarantor hereby represents and warrants to
Lender that Guarantor has adequate means to obtain from Borrower and the
Subsidiaries on a continuing basis information concerning the financial
condition and assets of Borrower and the Subsidiaries and that Guarantor is not
relying upon Lender to provide (and Lender shall have no duty to provide) any
such information to Guarantor either now or in the future.
18. NO ORAL AGREEMENTS. THIS GUARANTY AGREEMENT REPRESENTS THE FINAL
AGREEMENT OF GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE
GUARANTEED INDEBTEDNESS AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
[Remainder of Page Intentionally Left Blank. Signature Page Follows]
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 6
EXECUTED as of the 31 day of December, 2002.
GUARANTOR:
/s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxxxxx
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Signature Page
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT
(LIMITED)
WHEREAS, the execution of this Fifth Amended and Restated Guaranty
Agreement (this "Guaranty Agreement"), which amends and restates that certain
Fourth Amended and Restated Guaranty Agreement dated as of July 31, 2002 (the
"Prior Guaranty"), is a condition to SAI HOLDINGS, INC., formerly known as
SERVICE ASSET INVESTMENT, INC., a Texas corporation ("Borrower"), borrowing from
GUARANTY BANK, a federal savings bank, formerly known as Guaranty Federal Bank,
F.S.B. ("Lender"), a term loan pursuant to that certain Amended and Restated
Loan Agreement dated as of April 30, 2001 (such Loan Agreement, as it has been
or may hereafter be amended or modified from time to time, being hereinafter
referred to as the "Loan Agreement") between Borrower and Lender; and
WHEREAS, Borrower and Lender have agreed to modify the Loan Agreement, and
as a condition thereto, Guarantor has agreed to amend and restate the Prior
Guaranty according to the terms hereof.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, XXXXXXX X. XXXXX, an individual residing at 0000
Xxxxxxxxx, Xxxxxx, Xxxxx 00000 (the "Guarantor"), hereby irrevocably and
unconditionally guarantees to Lender, subject to the terms of this Guaranty
Agreement, the full and prompt payment and performance of the Guaranteed
Indebtedness (hereinafter defined), this Guaranty Agreement being upon the
following terms:
1. DEFINITION OF GUARANTEED INDEBTEDNESS. The term "Guaranteed
Indebtedness" as used herein means Borrower's obligations under the Term Loan
(as defined in the Loan Agreement), provided that after additional capital is
raised in an amount of no less than $6,000,000 after December 31, 2002 and
injected into Xxxxxx Financial Services, Inc. on terms and conditions
satisfactory to Lender, Guarantor's liability with respect to such obligations
shall be limited to an amount not to exceed an amount equal to $864,000.00. All
capitalized terms used and not otherwise defined herein shall have their
respective meanings as set forth in the Loan Agreement.
2. ABSOLUTE GUARANTY; NO SET-OFF RIGHTS. This instrument shall be an
absolute, continuing, irrevocable, and unconditional guaranty of payment and
performance, and not a guaranty of collection, of the Guaranteed Indebtedness as
provided herein, and Guarantor shall remain liable on its obligations hereunder
until the payment and performance in full of the Guaranteed Indebtedness,
subject to the terms of Section 1 of this Guaranty Agreement. No set-off,
counterclaim, recoupment, reduction, or diminution of any obligation, or any
defense of any kind or nature which Borrower may have against Lender or any
other party, or Guarantor may have against Borrower, Lender, or any other party,
shall be available to, or shall be asserted by, Guarantor against Lender or any
subsequent holder of the Guaranteed Indebtedness or any part thereof or against
payment of the Guaranteed Indebtedness or any part thereof.
3. NO IMPAIRMENT OF RIGHTS. If Guarantor becomes liable for any
indebtedness owing by Borrower to Lender by endorsement or otherwise, other than
under this
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 1
Guaranty Agreement, such liability shall not be in any manner impaired or
affected hereby, and the rights of Lender hereunder shall be cumulative of any
and all other rights that Lender may ever have against Guarantor. The exercise
by Lender of any right or remedy hereunder or under any other instrument, or at
law or in equity, shall not preclude the concurrent or subsequent exercise of
any other right or remedy.
4. OBLIGATIONS OF GUARANTORS; NO DUTY TO EXHAUST REMEDIES; WAIVER OF
SUBROGATION. In the event of default by Borrower in payment or performance of
the Guaranteed Indebtedness, or any part thereof, when such Guaranteed
Indebtedness becomes due, whether by its terms, by acceleration, or otherwise,
Guarantor shall promptly pay the amount due thereon to Lender without notice or
demand in lawful money of the United States of America and it shall not be
necessary for Lender, in order to enforce such payment by either Guarantor,
first to institute suit or exhaust its remedies against Borrower or any other
guarantor or others liable on such Guaranteed Indebtedness, or to enforce any
rights against any collateral which shall ever have been given to secure such
Guaranteed Indebtedness. Notwithstanding anything to the contrary contained in
this Guaranty Agreement, until such time as the Guaranteed Indebtedness has been
paid in full, Guarantor hereby irrevocably waives any and all rights it may now
or hereafter have under any agreement or at law or in equity (including, without
limitation, any law subrogating Guarantor to the rights of Lender) to assert any
claim against or seek contribution, indemnification or any other form of
reimbursement from Borrower or any other guarantors or any other party liable
for payment of any or all of the Guaranteed Indebtedness for any payment made by
Guarantor under or in connection with this Guaranty Agreement or otherwise. If
acceleration of the time for payment of any amount payable by Borrower under the
Guaranteed Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower, all such amounts otherwise subject to acceleration
under the terms of the Guaranteed Indebtedness shall nonetheless be payable by
Guarantor hereunder forthwith on demand by Lender.
5. NO IMPAIRMENT OF GUARANTOR'S OBLIGATIONS. Guarantor hereby agrees that
its obligations under this Guaranty Agreement shall not be released, discharged,
diminished, impaired, reduced, or affected for any reason or by the occurrence
of any event, including, without limitation, one or more of the following
events, whether or not with notice to or the consent of Guarantor: (a) the
taking or accepting of collateral as security for any or all of the Guaranteed
Indebtedness or the release, surrender, exchange, or subordination of any
collateral now or hereafter securing any or all of the Guaranteed Indebtedness;
(b) any partial release of the liability of Guarantor hereunder, or the full or
partial release of any other guarantor or obligor from liability for any or all
of the Guaranteed Indebtedness; (c) any disability of Borrower, or the
dissolution, insolvency, or bankruptcy of Borrower, Guarantor, or any other
party at any time liable for the payment of any or all of the Guaranteed
Indebtedness; (d) any renewal, extension, modification, waiver, amendment, or
rearrangement of any or all of the Guaranteed Indebtedness or any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (e) any adjustment, indulgence, forbearance,
waiver, or compromise that may be granted or given by Lender to Borrower,
Guarantor, or any other party ever liable for any or all of the Guaranteed
Indebtedness; (f) any neglect, delay, omission, failure, or refusal of Lender to
take or prosecute any action for the collection of any of the Guaranteed
Indebtedness or to foreclose or take or prosecute any action in connection with
any instrument, document, or agreement evidencing, securing, or otherwise
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 2
relating to any or all of the Guaranteed Indebtedness; (g) the unenforceability
or invalidity of any or all of the Guaranteed Indebtedness or of any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (h) any payment by Borrower or any other party
to Lender is held to constitute a preference under applicable bankruptcy or
insolvency law or if for any other reason Lender is required to refund any
payment or pay the amount thereof to someone else; (i) the settlement or
compromise of any of the Guaranteed Indebtedness; (j) the non-perfection of any
security interest or lien securing any or all of the Guaranteed Indebtedness;
(k) any impairment of any collateral securing any or all of the Guaranteed
Indebtedness; (l) the failure of Lender to sell any collateral securing any or
all of the Guaranteed Indebtedness in a commercially reasonable manner or as
otherwise required by law; (m) any change in the corporate existence, structure,
or ownership of Borrower; or (n) any other circumstance which might otherwise
constitute a defense available to, or discharge of, Borrower Or Guarantor.
6. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender as follows:
(a) Guarantor has the power and authority and legal right to
execute, deliver, and perform its obligations under this Guaranty
Agreement and this Guaranty Agreement constitutes the legal, valid, and
binding obligation of Guarantor, enforceable against Guarantor in
accordance with its terms, except as limited by bankruptcy, insolvency, or
other laws of general application relating to the enforcement of
creditors' rights.
(b) The execution, delivery, and performance by Guarantor of this
Guaranty Agreement do not and will not violate or conflict with any law,
rule, or regulation or any order, writ, injunction, or decree of any
court, governmental authority or agency, or arbitrator and do not and will
not conflict with, result in a breach of, or constitute a default under,
or result in the imposition of any lien upon any assets of Guarantor
pursuant to the provisions of any indenture, mortgage, deed of trust,
security agreement, franchise, permit, license, or other instrument or
agreement to which Guarantor or its properties is bound.
(c) No authorization, approval, or consent of, and no filing or
registration with, any court, governmental authority, or third party is
necessary for the execution, delivery, or performance by Guarantor of this
Guaranty Agreement or the validity or enforceability thereof.
(d) The value of the consideration received and to be received by
Guarantor as a result of Lender making the Term Loan to Borrower under the
Loan Agreement and Guarantor executing and delivering this Guaranty
Agreement is reasonably worth at least as much as the liability and
obligation of Guarantor hereunder, and such liability and obligation and
the Loan Agreement have benefitted and may reasonably be expected to
benefit Guarantor directly and indirectly.
(e) Guarantor has, independently and without reliance upon Lender
and based upon such documents and information as Guarantor has deemed
appropriate, made its own analysis and decision to enter into this
Guaranty Agreement.
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 3
7. COVENANTS OF GUARANTOR. Guarantor covenants and agrees that, as long as
the Guaranteed Indebtedness or any part thereof is outstanding or Lender has any
commitment under the Loan Agreement:
(a) Guarantor will furnish promptly to Lender written notice of the
occurrence of any default under this Guaranty Agreement or an Event of
Default under the Loan Agreement of which Guarantor has knowledge.
(b) Guarantor will furnish promptly to Lender such additional
information concerning Guarantor as Lender may request.
(c) Guarantor will obtain at any time and from time to time all
authorizations, licenses, consents or approvals as shall now or hereafter
be necessary or desirable under all applicable laws or regulations or
otherwise in connection with the execution, delivery and performance of
this Guaranty Agreement and will promptly furnish copies thereof to
Lender.
(d) Guarantor will at all times own directly or indirectly and free
and clear of all liens and encumbrances whatsoever at least the same
percentage of voting shares of Borrower, if any, as it owns directly or
indirectly on the date hereof.
8. LENDER'S RIGHTS WITH RESPECT TO GUARANTOR'S PROPERTY IN LENDER'S
POSSESSION. Lender shall have the right to set off and apply against this
Guaranty Agreement or the Guaranteed Indebtedness or both, at any time and
without notice to Guarantor, any and all deposits (general or special, time or
demand, provisional or final) or other sums at any time credited by or owing
from Lender to Guarantor whether or not the Guaranteed Indebtedness is then due
and irrespective of whether or not Lender shall have made any demand under this
Guaranty Agreement. As security for this Guaranty Agreement and the Guaranteed
Indebtedness, Guarantor hereby grants Lender a security interest in all money,
instruments, certificates of deposit, and other property of Guarantor now or
hereafter held by Lender, including, without limitation, property held in
safekeeping. In addition to Lender's right of setoff and as further security for
this Guaranty Agreement and the Guaranteed Indebtedness, Guarantor hereby grants
Lender a security interest in all deposits (general or special, time or demand,
provisional or final) and all other accounts of Guarantor now or hereafter on
deposit with or held by Lender and all other sums at any time credited by or
owing from Lender to Guarantor. The rights and remedies of Lender hereunder are
in addition to other rights and remedies (including, without limitation, other
rights of setoff) which Lender may have.
9. SUBORDINATION. (a) Guarantor hereby agrees that the Subordinated
Indebtedness (as hereinafter defined) shall be subordinate and junior in right
of payment to the prior payment in full of all Guaranteed Indebtedness, and
Guarantor hereby assigns the Subordinated Indebtedness to Lender as security for
the Guaranteed Indebtedness. If any sums shall be paid to Guarantor by Borrower
or any other person or entity on account of the Subordinated Indebtedness, such
sums shall be held in trust by Guarantor for the benefit of Lender and shall
forthwith be paid to Lender without affecting the liability of Guarantor under
this Guaranty Agreement and may be applied by Lender against the Guaranteed
Indebtedness in such order and manner as Lender may determine in its sole
discretion. Upon the request of
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 4
Lender, Guarantor shall execute, deliver, and endorse to Lender such documents
and instruments as Lender may request to perfect, preserve, and enforce its
rights hereunder. For purposes of this Guaranty Agreement, the term Subordinated
Indebtedness" means all indebtedness, liabilities, and obligations of Borrower
to Guarantor, whether such indebtedness, liabilities, and obligations now exist
or are hereafter incurred or arise, or whether the obligations of Borrower
thereon are direct, indirect, contingent, primary, secondary, several, joint and
several, or otherwise, and irrespective of whether such indebtedness,
liabilities, or obligations are evidenced by a note, contract, open account, or
otherwise, and irrespective of the person or persons in whose favor such
indebtedness, obligations, or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by Guarantor.
(b) Guarantor agrees that any and all liens, security interests,
judgment liens, charges, or other encumbrances upon Borrower's assets
securing payment of any Subordinated Indebtedness shall be and remain
inferior and subordinate to any and all liens, security interests,
judgment liens, charges, or other encumbrances upon Borrower's assets
securing payment of the Guaranteed Indebtedness or any part thereof,
regardless of whether such encumbrances in favor of Guarantor or Lender
presently exist or are hereafter created or attached. Without the prior
written consent of Lender, Guarantor shall not (i) file suit against
Borrower or exercise or enforce any other creditor's right it may have
against Borrower, or (ii) foreclose, repossess, sequester, or otherwise
take steps or institute any action or proceedings (judicial or otherwise,
including without limitation the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any liens, security interests, collateral rights,
judgments or other encumbrances held by Guarantor on assets of Borrower.
(c) In the event of any receivership, bankruptcy, reorganization,
rearrangement, debtor's relief, or other insolvency proceeding involving
Borrower as debtor, Lender shall have the right to prove and vote any
claim under the Subordinated Indebtedness and to receive directly from the
receiver, trustee or other court custodian all dividends, distributions,
and payments made in respect of the Subordinated Indebtedness. Lender may
apply any such dividends, distributions, and payments against the
Guaranteed Indebtedness in such order and manner as Lender may determine
in its sole discretion.
10. AMENDMENTS; CUMULATIVE REMEDIES. No amendment or waiver of any
provision of this Guaranty Agreement nor consent to any departure by Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by Lender. No failure on the part of Lender to exercise, and no delay
in exercising any right, power, or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power, or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
11. SUCCESSORS AND ASSIGNS. This Guaranty Agreement is for the benefit of
Lender and its successors and assigns, and in the event of an assignment of the
Guaranteed Indebtedness, or any part thereof, the rights and benefits hereunder,
to the extent applicable to the indebtedness so assigned, may be transferred
with such indebtedness. This Guaranty
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 5
Agreement is binding not only on Guarantor, but on Guarantor's heirs and
personal representatives.
12. RELIANCE BY LENDER. Guarantor recognizes that Lender is relying upon
this Guaranty Agreement and the undertakings of Guarantor hereunder in making
extensions of credit to Borrower under the Loan Agreement and further recognizes
that the execution and delivery of this Guaranty Agreement is a material
inducement to Lender in making the Term Loan under the Loan Agreement. Guarantor
hereby acknowledges that there are no conditions to the full effectiveness of
this Guaranty Agreement.
13 GOVERNING LAW. THIS GUARANTY AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
14. FEES AND EXPENSES. Guarantor shall pay on demand all reasonable
attorneys' fees and all other costs and expenses incurred by Lender in
connection with the enforcement or collection of this Guaranty Agreement.
15. WAIVERS BY GUARANTOR. Guarantor hereby waives promptness, diligence,
notice of any default under the Guaranteed Indebtedness, demand for payment,
notice of acceptance of this Guaranty Agreement, presentment, notice of protest,
notice of dishonor, notice of the incurring by Borrower of additional
indebtedness, and all other notices and demands with respect to the Guaranteed
Indebtedness and this Guaranty Agreement.
16. VALIDITY; ENFORCEABILITY. The Loan Agreement, and all of the terms
thereof, are incorporated herein by reference, the same as if stated verbatim
herein, and Guarantor agrees that Lender may exercise any and all rights granted
to it under the Loan Agreement and the other Loan Documents (as defined in the
Loan Agreement) without affecting the validity or enforceability of this
Guaranty Agreement.
17. NO RELIANCE ON LENDER. Guarantor hereby represents and warrants to
Lender that Guarantor has adequate means to obtain from Borrower and the
Subsidiaries on a continuing basis information concerning the financial
condition and assets of Borrower and the Subsidiaries and that Guarantor is not
relying upon Lender to provide (and Lender shall have no duty to provide) any
such information to Guarantor either now or in the future.
18. NO ORAL AGREEMENTS. THIS GUARANTY AGREEMENT REPRESENTS THE FINAL
AGREEMENT OF GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE
GUARANTEED INDEBTEDNESS AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
[Remainder of Page Intentionally Left Blank. Signature Page Follows]
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 6
EXECUTED as of the 31st day of December, 2002.
GUARANTOR:
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Signature Page
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT
(LIMITED)
WHEREAS, the execution of this Fifth Amended and Restated Guaranty
Agreement (this "Guaranty Agreement"), which amends and restates that certain
Fourth Amended and Restated Guaranty Agreement dated as of July 31, 2002 (the
"Prior Guaranty"), is a condition to SAI HOLDINGS, INC., formerly known as
SERVICE ASSET INVESTMENT, INC., a Texas corporation ("Borrower"), borrowing from
GUARANTY BANK, a federal savings bank, formerly known as Guaranty Federal Bank,
F.S.B. ("Lender"), a term loan pursuant to that certain Amended and Restated
Loan Agreement dated as of April 30, 2001 (such Loan Agreement, as it has been
or may hereafter be amended or modified from time to time, being hereinafter
referred to as the "Loan Agreement") between Borrower and Lender; and
WHEREAS, Borrower and Lender have agreed to modify the Loan Agreement, and
as a condition thereto, Guarantor has agreed to amend and restate the Prior
Guaranty according to the terms hereof.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, XXXXX X. XXXXXXXX, XX., an individual residing at
0000 Xxxxxxx Xxxxxxx Xxxx, Xxxxxx, Xxxxx 00000 (the "Guarantor"), hereby
irrevocably and unconditionally guarantees to Lender, subject to the terms of
this Guaranty Agreement, the full and prompt payment and performance of the
Guaranteed Indebtedness (hereinafter defined), this Guaranty Agreement being
upon the following terms:
1. DEFINITION OF GUARANTEED INDEBTEDNESS. The term "Guaranteed
Indebtedness" as used herein means Borrower's obligations under the Term Loan
(as defined in the Loan Agreement), provided that after additional capital is
raised in an amount of no less than $6,000,000 after December 31, 2002 and
injected into Xxxxxx Financial Services, Inc. on terms and conditions
satisfactory to Lender, Guarantor's liability with respect to such obligations
shall be limited to an amount not to exceed an amount equal to $1,408,000.00.
All capitalized terms used and not otherwise defined herein shall have their
respective meanings as set forth in the Loan Agreement.
2. ABSOLUTE GUARANTY; NO SET-OFF RIGHTS. This instrument shall be an
absolute, continuing, irrevocable, and unconditional guaranty of payment and
performance, and not a guaranty of collection, of the Guaranteed Indebtedness as
provided herein, and Guarantor shall remain liable on its obligations hereunder
until the payment and performance in full of the Guaranteed Indebtedness,
subject to the terms of Section 1 of this Guaranty Agreement. No set-off,
counterclaim, recoupment, reduction, or diminution of any obligation, or any
defense of any kind or nature which Borrower may have against Lender or any
other party, or Guarantor may have against Borrower, Lender, or any other party,
shall be available to, or shall be asserted by, Guarantor against Leader or any
subsequent holder of the Guaranteed Indebtedness or any part thereof or against
payment of die Guaranteed Indebtedness or any part thereof.
3. NO IMPAIRMENT OF RIGHTS. If Guarantor becomes liable for any
indebtedness owing by Borrower to Lender by endorsement or otherwise, other than
under this
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 1
Guaranty Agreement, such liability shall not be in any manner impaired or
affected hereby, and the rights of Lender hereunder shall be cumulative of any
and all other rights that Lender may ever have against Guarantor. The exercise
by Lender of any right or remedy hereunder or under any other instrument, or at
law or in equity, shall not preclude the concurrent or subsequent exercise of
any other right or remedy.
4. OBLIGATIONS OF GUARANTORS; NO DUTY TO EXHAUST REMEDIES; WAIVER OF
SUBROGATION. In the event of default by Borrower in payment or performance of
the Guaranteed Indebtedness, or any part thereof, when such Guaranteed
Indebtedness becomes due, whether by its terms, by acceleration, or otherwise,
Guarantor shall promptly pay the amount due thereon to Lender without notice or
demand in lawful money of the United States of America and it shall not be
necessary for Lender, in order to enforce such payment by either Guarantor,
first to institute suit or exhaust its remedies against Borrower or any other
guarantor or others liable on such Guaranteed Indebtedness, or to enforce any
rights against any collateral which shall ever have been given to secure such
Guaranteed Indebtedness. Notwithstanding anything to the contrary contained in
this Guaranty Agreement, until such time as the Guaranteed Indebtedness had been
paid in full, Guarantor hereby irrevocably waives any and all rights it may now
or hereafter have under any agreement or at law or in equity (including, without
limitation, any law subrogating Guarantor to the rights of Lender) to assert any
claim against or seek contribution, indemnification or any other form of
reimbursement from Borrower or any other guarantors or any other party liable
for payment of any or all of the Guaranteed Indebtedness for any payment made by
Guarantor under or in connection with this Guaranty Agreement or otherwise. If
acceleration of the time for payment of any amount payable by Borrower under the
Guaranteed Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower, all such amounts otherwise subject to acceleration
under the terms of the Guaranteed Indebtedness shall nonetheless be payable by
Guarantor hereunder forthwith on demand by Lender.
5. NO IMPAIRMENT OF GUARANTOR'S OBLIGATIONS. Guarantor hereby agrees that
its obligations under this Guaranty Agreement shall not be released, discharged,
diminished, impaired, reduced, or affected for any reason or by the occurrence
of any event, including, without limitation, one or more of the following
events, whether or not with notice to or the consent of Guarantor: (a) the
taking or accepting of collateral as security for any or all of the Guaranteed
Indebtedness or the release, surrender, exchange, or subordination of any
collateral now or hereafter securing any or all of the Guaranteed Indebtedness;
(b) any partial release of the liability of Guarantor hereunder, or the full or
partial release of any other guarantor or obligor from liability for any or all
of the Guaranteed Indebtedness; (c) any disability of Borrower, or the
dissolution, insolvency, or bankruptcy of Borrower, Guarantor, or any other
party at any time liable for the payment of any or all of the Guaranteed
Indebtedness; (d) any renewal, extension, modification, waiver, amendment, or
rearrangement of any or all of the Guaranteed Indebtedness or any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (e) any adjustment, indulgence, forbearance,
waiver, or compromise that may be granted or given by Lender to Borrower.
Guarantor, or any other party ever liable for any or all of the Guaranteed
Indebtedness; (f) any neglect, delay, omission, failure, or refusal of Lender to
take or prosecute any action for the collection of any of the Guaranteed
Indebtedness or to foreclose or take or prosecute any action in connection with
any instrument, document, or agreement evidencing, securing, or otherwise
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 2
relating to any or all of the Guaranteed Indebtedness; (g) the unenforceability
or invalidity of any or all of the Guaranteed Indebtedness or of any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all
of the Guaranteed Indebtedness; (h) any payment by Borrower or any other party
to Lender is held to constitute a preference under applicable bankruptcy or
insolvency law or if for any other reason Lender is required to refund any
payment or pay the amount thereof to someone else; (i) the settlement or
compromise of any of the Guaranteed Indebtedness; (j) the non-perfection of any
security interest or lien securing any or all of the Guaranteed Indebtedness;
(k) any impairment of any collateral securing any or all of the Guaranteed
Indebtedness; (l) the failure of Lender to sell any collateral securing any or
all of the Guaranteed Indebtedness in a commercially reasonable manner or as
otherwise required by law; (m) any change in the corporate existence, structure,
or ownership of Borrower; or (n) any other circumstance which might constitute a
defense available to, or discharge of. Borrower or Guarantor.
6. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender as follows:
(a) Guarantor has the power and authority and legal right to
execute, deliver, and perform its obligations under this Guaranty
Agreement and this Guaranty Agreement constitutes the legal, valid, and
binding obligation of Guarantor, enforceable against Guarantor in
accordance with its terms, except as limited by bankruptcy, insolvency, or
other laws of general application relating to the enforcement of
creditors' rights.
(b) The execution, delivery, and performance by Guarantor of this
Guaranty Agreement do not and will not violate or conflict with any law,
rule, or regulation or any order, writ, injunction, or decree of any
court, governmental authority or agency, or arbitrator and do not and will
not conflict with, result in a breach of, or constitute a default under,
or result in the imposition of any lien upon any assets of Guarantor
pursuant to the provisions of any Indenture, mortgage, deed of trust,
security agreement, franchise, permit, license, or other instrument or
agreement to which Guarantor or its properties is bound.
(c) No authorization, approval, or consent of, and no filing or
registration with, any court, governmental authority, or third party is
necessary for the execution, delivery, or performance by Guarantor of this
Guaranty Agreement or the validity or enforceability thereof.
(d) The value of the consideration received and to be received by
Guarantor as a result of Lender making the Term Loan to Borrower under the
Loan Agreement and Guarantor executing and delivering this Guaranty
Agreement is reasonably worth at least as much as the liability and
obligation of Guarantor hereunder, and such liability and obligation and
the Loan Agreement have benefitted and may reasonably be expected to
benefit Guarantor directly and indirectly.
(e) Guarantor has, independently and without reliance upon Lender
and based upon such documents and information as Guarantor has deemed
appropriate, made its own analysis and decision to enter into this
Guaranty Agreement.
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 3
7. COVENANTS OF GUARANTOR. Guarantor covenants and agrees that, as long as
the Guaranteed Indebtedness or any part thereof is outstanding or Lender has any
commitment under the Loan Agreement:
(a) Guarantor will furnish promptly to Lender written notice of the
occurrence of any default under this Guaranty Agreement or an Event of
Default under the Loan Agreement of which Guarantor has knowledge.
(b) Guarantor will furnish promptly to Lender such additional
information concerning Guarantor as Lender may request.
(c) Guarantor will obtain at any time and from time to time all
authorizations, licenses, consents or approvals as shall now or hereafter
be necessary or desirable under all applicable laws or regulations or
otherwise in connection with the execution, delivery and performance of
this Guaranty Agreement and will promptly furnish copies thereof to
Lender.
(d) Guarantor will at all times own directly or indirectly and free
and clear of all liens and encumbrances whatsoever at least the same
percentage of voting shares of Borrower, if any, as it owns directly or
indirectly on the date hereof.
8. LENDER'S RIGHTS WITH RESPECT TO GUARANTOR'S PROPERTY IN LENDER'S
POSSESSION. Lender shall have the right to set off and apply against this
Guaranty Agreement or the Guaranteed Indebtedness or both, at any time and
without notice to Guarantor, any and all deposits (general or special, time or
demand, provisional or final) or other sums at any time credited by or owing
from Lender to Guarantor whether or not the Guaranteed Indebtedness is then due
and irrespective of whether or not Lender shall have made any demand under this
Guaranty Agreement. As security for this Guaranty Agreement and the Guaranteed
Indebtedness, Guarantor hereby grants Lender a security interest in all money,
instruments, certificates of deposit, and other property of Guarantor now or
hereafter held by Lender, including, without limitation, property held in
safekeeping. In addition to Lender's right of setoff and as further security for
this Guaranty Agreement and the Guaranteed Indebtedness, Guarantor hereby grants
Lender a security interest in all deposits (general or special, time or demand,
provisional or final) and all other accounts of Guarantor now or hereafter on
deposit with or held by Lender and all other sums at any time credited by or
owing from Lender to Guarantor. The rights and remedies of Lender hereunder are
in addition to other rights and remedies (including, without limitation, other
rights of setoff) which Lender may have.
9. SUBORDINATION. (a) Guarantor hereby agrees that the Subordinated
Indebtedness (as hereinafter defined) shall be subordinate and junior in right
of payment to the prior payment in full of all Guaranteed Indebtedness, and
Guarantor hereby assigns the Subordinated Indebtedness to Lender as security for
the Guaranteed Indebtedness. If any sums shall be paid to Guarantor by Borrower
or any other person or entity on account of the Subordinated Indebtedness, such
sums shall be held ire trust by Guarantor for the benefit of Lender and shall
forthwith be paid to Lender without affecting the liability of Guarantor under
this Guaranty Agreement and may be applied by Lender against the Guaranteed
Indebtedness in such order and manner as Lender may determine in its sole
discretion. Upon the request of
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 4
Lender, Guarantor shall execute, deliver, and endorse to Lender such documents
and instruments, as Lender may request to perfect, preserve, and enforce its
right hereunder. For purposes of this Guaranty Agreement, the term "Subordinated
Indebtedness" means all indebtedness, liabilities, and obligations of Borrower
to Guarantor, whether such indebtedness, liabilities, and obligations now exist
or are hereafter incurred or arise, or whether the obligations of Borrower
thereon are direct, indirect, contingent, primary, secondary, several joint and
several, or otherwise, and irrespective of whether such indebtedness,
liabilities, or obligations are evidenced by a note, contact, open account, or
otherwise, and irrespective of the person or persons in whose favor such
indebtedness, obligations, or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by Guarantor.
(b) Guarantor agrees that any and all liens, security interests,
judgment liens charges, or other encumbrances upon Borrower's assets
securing payment of any Subordinated Indebtedness shall be and remain
inferior and subordinate to any and all liens, security interests,
judgement liens, charges, or other encumbrances upon Borrower's assets
securing payment of the Guaranteed indebtedness or any part thereof,
regardless of whether such encumbrances in favor of Guarantor or Lender
presently exist or are hereafter created or attached. Without the prior
written consent of Lender, Guarantor shall not (i) file suit against
Borrower or exercise or enforce any other creditor's right it may have
against Borrower, or (ii) foreclose, repossess, sequester, or otherwise
take steps or institute any action or proceedings (judicial or otherwise,
including without limitation the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any liens, security interests, collateral rights,
judgments or other encumbrances held by Guarantor on assets of Borrower.
(c) In the event of any receivership, bankruptcy, reorganization,
rearrangement, debtor's relief, or other insolvency proceeding involving
Borrower as debtor, Lender shall have the right to prove and vote any
claim under the Subordinated Indebtedness and to receive directly from the
receiver, trustee or other court custodian all dividends, distributions,
and payments made in respect of the Subordinated Indebtedness. Lender may
apply any such dividends, distributions, and payments against the
Guaranteed Indebtedness in such order and manner as Lender may determine
in its sole discretion.
10. AMENDMENTS: CUMULATIVE REMEDIES. No amendment or waiver of any
provision of this Guaranty Agreement nor consent to any departure by Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by Lender. No failure the part of Lender to exercise, and no delay in
exercising any right, power, or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power, or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
11. SUCCESSORS AND ASSIGNS. This Guaranty Agreement is for the benefit of
Lender and its successors and assigns, and in the event of an assignment of the
Guaranteed Indebtedness, or any part thereof, the rights and benefits hereunder,
to the extent applicable to the indebtedness so assigned, may be transferred
such indebtedness. This Guaranty
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 5
Agreement is binding not only on Guarantor, but on Guarantor's heirs and
personal representatives.
12. RELIANCE BY LENDER. Guarantor recognizes that Lender is relying upon
this Guaranty Agreement and the undertakings of Guarantor hereunder in making
extensions of credit to Borrower under the Loan Agreement and further recognizes
that the execution and delivery of this Guaranty Agreement is a material
inducement to Lender in making the Term Loan under the Loan Agreement. Guarantor
hereby acknowledges that there are no conditions to the full effectiveness of
this Guaranty Agreement.
13. GOVERNING LAW. THIS GUARANTY AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
14. FEES AND EXPENSES. Guarantor shall pay on demand all reasonable
attorneys' fees and all other costs and expenses incurred by Lender in
connection with the enforcement or collection of this Guaranty Agreement.
15. WAIVERS BY GUARANTOR. Guarantor hereby waives prompiness, diligence,
notice of any default under the Guaranteed Indebtedness, demand for payment,
notice of acceptance of this Guaranty Agreement, presentment, notice of protest,
notice of dishonor, notice of the incurring by Borrower of additional
indebtedness, and all other notices and demands with respect to the Guaranteed
Indebtedness and this Guaranty Agreement.
16. VALIDITY; ENFORCEABILITY. The Loan Agreement, and all of the terms
thereof, are incorporated herein by reference, the same as if stated verbatim
herein, and Guarantor agrees that Lender may exercise any and all rights granted
to it under the Loan Agreement and the other Loan Documents (as defined in the
Loan Agreement) without affecting the validity or enforceability of this
Guaranty Agreement.
17. NO RELIANCE ON LENDER. Guarantor hereby represents and warrants to
Lender that Guarantor has adequate means to obtain from Borrower and the
Subsidiaries on a continuing basis information concerning the financial
condition and assets of Borrower and the Subsidiaries and that Guarantor is not
relying upon Lender to provide (and Lender shall have no duty to provide) any
such information to Guarantor either now or in the future.
18. NO ORAL AGREEMENTS. THIS GUARANTY AGREEMENT REPRESENTS THE FINAL
AGREEMENT OF GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE
GUARANTEED INDEBTEDNESS AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
[Remainder of Page Intentionally Left Blank. Signature Page Follows]
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Page 6
EXECUTED as of the 31st day of December, 2002.
GUARANTOR:
/s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------
Xxxxx X. Xxxxxxxx, Xx.
FIFTH AMENDED AND RESTATED GUARANTY AGREEMENT - Signature Page
ELEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
This Eleventh Amendment to Amended and Restated Loan Agreement (this
"Amendment") is dated as of March 24, 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, 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 Bank to amend certain provisions of the
Agreement, to consent to advance an additional $10,000,000 under the Term Loan,
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 Recitals. The reference to the amount
"$24,266,192.00" in the second paragraph in the Recitals section of the
Agreement is hereby modified to the amount "$32,244,099.00."
Section 2.2 Modification of Definitions. Effective as of the date hereof,
the definition of the following defined term is hereby amended to read as
follows:
"Term Loan Commitment" means the obligation of Bank to make the Term
Loan pursuant to Section 2.1 in an aggregate principal amount up to but
not exceeding $32,244,099.00.
Section 2.3 Amendment of Section 2.3. Effective as of the date hereof.
Section 2.3 is hereby amended in its entirety and shall read as follows:
Section 2.3 Repayment of Term Loan. Borrower shall repay the unpaid
principal amount of the Term Loan in monthly installments of $537,400.15,
commencing on April 1, 2005 and continuing on each Monthly Payment Date,
with a final installment in the amount of all outstanding principal of the
Term Loan payable on the Maturity Date.
Section 2.4 Addition of Section 2.8. Effective as of the date hereof,
Section 2.8 is hereby added to the Agreement and shall read as follows:
Section 2.8 Commitment Fee. A Commitment Fee in the amount of
$50,000.00 shall be due and payable on March 24, 2005.
Section 2.5 Amendment of Section 10.4. Effective as of the date hereof,
Section 10.4 is hereby amended in its entirety and shall read as follows:
Section 10.4 Loans and Investments. Borrower will not permit any of
the following:
(a) Xxxxxx Worldwide's advance, loan, extension of credit or
capital contribution to or investment (i) in Worldwide in excess of
$10,000,000 and (ii) in Worldwide and Canada in the aggregate in
excess of $15,000,000 (including clause (i) hereof); provided,
however, that (x) no such advances to Canada may result from the
proceeds of the Term Loan, (y) no more than $5,000,000 of any
advances to Worldwide may result from the proceeds of the Capital
Investment, and (z) no more than $4,000,000 advanced to Worldwide
may result from the proceeds of the Term Loan.
ARTICLE III
ADDITIONAL ADVANCE UNDER TERM LOAN
Section 3.1 Additional Advance. Upon the effectiveness of this Agreement,
the amount of $10,000,000 shall be advanced to the Borrower under the Term Loan
pursuant to the modification to the Term Loan Commitment set forth in this
Amendment.
ARTICLE IV
ACKNOWLEDGEMENT AND CLARIFICATION OF SUBSIDIARY MODIFICATIONS
Section 4.1 Subsidiary Modifications. The parties hereto acknowledge the
following modifications that have occurred since November 1, 2004: (a) Nexa
Technologies, Inc. was merged into Integrated Trading Solutions, Inc., and
Integrated Trading Solutions, Inc. has changed its name to Nexa Technologies,
Inc., a Delaware corporation and (b) Xxxxxx Financial Services Venture, Inc.
(sometimes referred to as Xxxxxx Ventures, Inc.) was formerly named 3812359
CANADA, Inc.
2
ARTICLE V
CONDITIONS PRECEDENT
Section 5.1 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;
(2) Commitment Fee. The fee required by Section 2.8 of the
Agreement;
(3) Attorneys' Fees and Expenses. Payment of all outstanding
attorneys' fees and expenses incurred by Bank in connection with the
Agreement, as amended; and
(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
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 VI
MISCELLANEOUS
Section 6.1 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
3
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 6.2 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 6.3 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 6.4 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 6.5 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 6.6 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 6.7 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 6.8 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 6.9 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
4
Section 6.10 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]
5
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.
------------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Chairman
BANK;
GUARANTY BANK
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
Signature Page
Eleventh 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 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 March ____, 2005.
GUARANTORS:
/s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Son
-------------------------------------------
Xxxxxx X. Son
/s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxxxxxx
___________________________________________
Xxxxx X. Xxxxxxxx, Xx.
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 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 March 24, 2005.
GUARANTORS:
______________________________________
Xxxxxxx X. Xxxxx
______________________________________
Xxxxxx X. Son
______________________________________
Xxxxxx X. Xxxxxxxxxxx
/s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
