EXHIBIT 10.9
FIRST AMENDMENT TO LETTER LOAN AGREEMENT
THIS FIRST AMENDMENT TO LETTER LOAN AGREEMENT ("Amendment") is made and
entered into as of November 30, 1996, by and between D.A. CONSULTING GROUP,INC.,
a Texas corporation, formerly known as Documentation Associates, Inc., a Texas
corporation (herein called "Borrower"), and SOUTHWEST BANK OF TEXAS, N.A., a
national banking association with offices of Houston, Texas (herein called
"Lender").
R E C I T A L S:
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WHEREAS, Documentation Associates, Inc. and Lender entered into a Letter
Loan Agreement dated March 18, 1996 (which, as amended, is herein called the
"Loan Agreement"; the terms defined therein being used herein as therein defined
unless otherwise defined herein); and
WHEREAS, Borrower and Lender desire to further amend the Loan Agreement
to (i) provide for the issuance of one or more Letters of Credit (hereinafter
defined) and (ii) amend certain terms and provisions of the Loan Agreement.
A G R E E M E N T:
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NOW, THEREFORE, in consideration of the mutual promises herein contained
and other good and valuable consideration, the receipt of which is hereby
acknowledged, Borrower and Lender hereby agree to amend the Loan Agreement as
hereinafter set forth.
1. AMENDMENTS TO LOAN AGREEMENT.
(a) Section 2 of the Loan Agreement is effective the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 2
hereof, hereby amended to include the following provisions:
(i) The letter "(a)" is inserted after the term "Revolving Credit
Advances" and before the first full paragraph of Section 2; and
(ii) "On the terms and subject to the conditions hereinafter set
forth, Lender agrees to make Advances to Borrower for the issuance of
one or more letters of credit. Each of the letters of credit shall be
evidenced by an Application and Agreement for Letter of Credit (the
"Application") in a form satisfactory to Lender. Each of these letters
of credit and any renewals, extensions and modifications thereof are
collectively referred to herein as the "Letter of Credit". Repayment of
drafts against the Letter of Credit shall be governed by this Agreement
and the Application, and shall be and is secured by the collateral and
guaranties provided in this Agreement. Borrower's requests for Advances
under the Letter of Credit shall specify the aggregate amount of the
Advance an the date of such Advance. Borrower shall furnish to Lender a
request for borrowing in a form satisfactory to Lender at least two (2)
business days
prior to the requested borrowing date. Lender shall make the requested
funds or Letter of Credit available to Borrower at Lender's principal
banking office in Houston, Texas."
(b) Section 5 of the Loan Agreement is effective the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 2
hereof, hereby amended to include the following provision:
"(q) Borrower shall pay a letter of credit commission to Lender in
respect of each Letter of Credit issued by Lender equal to the
lesser of $250 or an amount determined by multiplying (i) one
percent (1%) of the face amount of such Letter of Credit by (ii) a
fraction, the numerator of which shall be the number of days between
the date of such Letter of Credit and the stated expiration date
thereof and the denominator of which shall be 360; such commission
shall be payable at the time a Letter of Credit is issued and upon
any renewal or extension thereof, additionally, Borrower agrees to
reimburse Lender for all actual out-of-pocket expenses incurred by
Lender, such as advising or confirming bank fees, telex charges and
the like and to pay those fees customarily charged by Lender for any
amendments to a Letter of Credit."
(c) Section 6 of the Loan Agreement is effective as of the date hereof
and subject to the satisfaction of the conditions precedent set forth in Section
2 hereof, hereby amended to delete (6)(1) and substitute the following provision
therefor:
"(l) Expend or enter into any commitment to expend any amount for the
acquisition or lease of tangible, fixed or capital assets, including
repairs, replacements and improvements, which are capitalized under
proper accounting practice, in which exceeds, in the aggregate,
$800,000.00."
(d) Section 10(b)(i) of the Loan Agreement is deleted and replaced with
the following:
(i) Borrower: D. A. Consulting Group, Inc.
00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxx
2. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
when, and only when, Lender shall have received the following:
(a) counterparts of this Amendment executed by Borrower;
(b) Consent of Guarantor from the Guarantor;
(c) Corporate Certificate and Resolutions form of Borrower; and
(d) any additional documentation or materials reasonably required by
Lender.
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3. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower represents and
warrants as follows:
(a) Borrower is duly authorized and empowered to execute, deliver and
perform this Amendment and all other instruments referred to or
mentioned herein to which it is a party, and all action on its part
requisite for the due execution, delivery and the performance of this
Amendment has been duly and effectively taken. This Amendment, when
executed and delivered, will constitute valid and binding obligations of
Borrower enforceable in accordance with its terms. This Amendment does
not violate any provisions of Borrower's Articles of Incorporation,
By-Laws, or any contract, agreement, law or regulation to which Borrower
is subject, and does not require the consent or approval of any
regulatory authority or governmental body of the United States or any
state.
(b) The representations and warranties made by Borrower in the Loan
Agreement are true and correct as of the date of this Amendment.
(c) No event has occurred and is continuing which constitutes an Event
of Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
4. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof each reference in the Loan Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import, and each
reference in the other Loan Documents, shall mean and be a reference to
the Loan Agreement as amended hereby.
(b) Except as specifically amended above, the Loan Agreement and the
Notes and all other instruments securing or guaranteeing Borrower's
obligations to Lender (the "Loan Documents") shall remain in full force
and effect and are hereby ratified and confirmed. Without limiting the
generality of the foregoing, the Loan Documents and all collateral
described therein do and shall continue to secure the payment of all
obligations of Borrower under the Loan Agreement and the Notes, as
amended hereby, and under the other Loan Documents.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of Lender under any of the Loan Documents,
nor constitute a waiver of any provision of any of the Loan Documents.
5. WAIVER. As additional consideration for the execution, delivery and
performance of this Amendment by the parties hereto and to induce Lender to
enter into this Amendment, Borrower and Guarantor warrant and represent to
Lender that no facts, events, statuses or conditions exist or have existed
which, either now or with the passage of time or giving of notice, or both,
constitute or will constitute a basis for any claim or cause of action
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against Lender or any defense to (i) the payment of any obligations and
indebtedness under the Notes and/or the Loan Documents or (ii) the performance
of any of their obligations with respect to the Notes and/or the Loan Documents,
and in the event any such facts, events, statuses or conditions exist or have
existed, Borrower and Guarantor unconditionally and irrevocably waive any and
all claims and causes of action against Lender and any defense to their payment
and performance obligations in respect to the Notes and the Loan Documents.
6. COSTS AND EXPENSES. Borrower agrees to pay on demand all costs and
expenses of Lender in connection with the preparation, reproduction, execution
and delivery of this Amendment and the other instruments and documents to be
delivered hereunder, including the reasonable fees of out-of-pocket expenses of
counsel for Lender. In addition, Borrower shall pay any and all fees payable or
determined to be payable in connection with the execution and delivery, filing
or recording of this Amendment and the other instruments and documents to be
delivered hereunder, and agrees to save Lender harmless from and against any
and all liabilities with respect to or resulting from any delay in paying or
omission to pay such fees, except such liabilities arising from the gross
negligence of Lender.
7. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
8. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas.
9. FINAL AGREEMENT. THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed in multiple counterparts, each of which is an original
instrument for all purposes, all as of the day and year first above written.
"BORROWER"
D.A. CONSULTING GROUP, INC.,
formerly known as Documentation
Associates, Inc.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
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Title: Vice President
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"LENDER"
SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ Xxxxxx X. XxXxx
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Xxxxxx X. XxXxx, Senior Vice President
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