EXHIBIT 10.8
LETTER LOAN AGREEMENT
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March 18, 0000
Xxxxxxxxx Xxxx xx Xxxxx, N.A.
X.X. Xxx 00000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx XxXxx
Gentlemen:
The undersigned, DOCUMENTATION ASSOCIATES, INC., a Texas corporation
("Borrower"), duly organized and existing under the laws of the State of Texas,
has requested that SOUTHWEST BANK OF TEXAS, N.A. ("Lender") lend to Borrower the
sum of $1,000,000.00. Lender has advised Borrower that Lender is willing to
lend such funds to Borrower upon the terms and subject to the conditions set
forth in this letter loan agreement (the "Agreement"). In consideration for the
above premises and the mutual promises and covenants herein contained, Borrower
and Lender do hereby agree as follows:
1. Loans. On the terms and subject to the conditions hereinafter set
forth, Lender agrees to lend to Borrower the sum of $1,000,000.00 (the "Loan").
The Loan shall be evidenced by (i) a master revolving credit note (the "Note")
in a form satisfactory to Lender, duly executed by Borrower in the principal
amount of $1,000,000.00 and made payable to the order of Lender. Principal and
interest on the Note shall be due and payable in the manner and at the times set
forth in the Note with final maturity on March 18, 1997 (the "Maturity Date").
2. Revolving Credit Advances. Subject to the terms hereof, Borrower may
borrow, pay, reborrow and repay under the Note, provided, however, the maximum
principal outstanding under the Note shall not exceed the lesser of (i)
$1,000,000.00, or (ii) the Borrower's Loan Limit, as such term is defined in
Schedule "A" attached hereto and made a part hereof. Borrower's requests for
advances under the Note shall specify the aggregate amount of the advance and
the date of such advance. Borrower shall furnish to Lender a request for
borrowing in a form satisfactory to Lender at least one business day prior to
the requested borrowing date. After receiving notice of a requested advance in
the manner provided herein, Lender shall make the requested funds available to
Borrower on the requested borrowing date at Lender's principal banking office in
Houston, Texas. The funds advanced under the Note are to enable Borrower to
finance working capital needs and general corporate purposes. If at any time
prior to the Maturity Date, the outstanding advances under the Note exceed the
Borrower's Loan Limit, Borrower shall prepay on the Note such amount as may be
necessary to eliminate such excess.
3. Conditions Precedent.
(a) The obligation of Lender to make the initial advance under the
Note is subject to the conditions precedent that, as of the date of such
advance, (i) Lender shall have received duly executed copies of each document
listed on the last page hereof relating to the Loan, in form and substance
acceptable to Lender and its legal counsel (all the documents listed on the last
page hereof, together with this Agreement and any other security documents
relating to the Loan, and
any modifications thereof, are hereinafter collectively referred to as the "Loan
Documents"), and (ii) Lender's approval of a pre-closing field audit performed
by Creekwood Capital.
(b) Lender's obligation to make any advances under the Loan
shall be subject to the additional conditions precedent that, as of the date of
such advance and after giving effect thereto: (i) all representations and
warranties made by Borrower to Lender are true and correct, as if made on such
date, (ii) all documents and proceedings shall be reasonably satisfactory to
legal counsel for Lender, (iii) no condition or event exists which constitutes
an Event of Default (as hereinafter defined) or which, with the lapse of time
and/or giving of notice, would constitute an Event of Default, and (iv) all
conditions precedent set forth in subparagraph (a) above shall have been
satisfied.
4. Representations and Warranties. In order to induce Lender to
make the Loan, Borrower represents and warrants to Lender that:
(a) The Loan Documents are the legal and binding obligations of
Borrower, enforceable in accordance with their respective terms, except as
limited by bankruptcy, insolvency or other laws of general application relating
to the enforcement of creditors' rights;
(b) All financial statements delivered by Borrower to Lender
prior to the date hereof are true and correct, fairly present the consolidated
financial condition of Borrower and its subsidiaries in all material respects
and have been prepared in accordance with generally accepted accounting
principles, consistently applied; as of the date hereof, there are no
obligations, liabilities or indebtedness (including contingent and indirect
liabilities) which are material to Borrower or its subsidiaries and not
reflected in such financial statements; and no material adverse changes have
occurred in the financial condition or business of Borrower or its subsidiaries
since the date of the most recent financial statements which Borrower has
delivered to Lender;
(c) Neither the execution and delivery of this Agreement and the
other Loan Documents, nor consummation of any of the transactions herein or
therein contemplated, nor compliance with the terms and provisions hereof or
thereof, will contravene or conflict in any material respect with any provision
of law, statute or regulation to which Borrower is subject or any judgment,
license, order or permit applicable to Borrower or any indenture, mortgage, deed
of trust or other instrument to which Borrower may be subject; no consent,
approval, authorization or order of any court, governmental authority or third
party is required in connection with the execution and delivery by Borrower of
this Agreement or transactions contemplated herein or therein;
(d) No litigation, investigation, or governmental proceeding is
pending, or, to the knowledge of any of Borrower's officers, threatened against
or affecting Borrower or any of its subsidiaries, which may result in any
material adverse change in Borrower's or its subsidiaries' business, properties
or operations;
(e) There is no specific fact known to Borrower that Borrower
has not disclosed to Lender in writing which is likely to result in any material
adverse change in Borrower's or its subsidiaries' business, properties or
operations;
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(f) Borrower (or its subsidiaries) owns all of the assets
reflected on its most recent balance sheet free and clear of all liens, security
interest or other encumbrances, except as previously disclosed in writing to
Lender;
(g) The principal office, chief executive office and principal
place of business of Borrower is in Houston, Texas;
(h) All taxes required to be paid by Borrower and its
subsidiaries have in fact been paid, except for taxes being contested in good
faith by appropriate proceedings for which adequate reserves have been
established;
(i) Borrower is not in violation of any law, ordinance,
governmental rule or regulation to which it is subject, and is not in default
beyond any cure period under any material agreement, contract or understanding
to which it is a party; and
(j) No written certificate or written statement herewith or
heretofore delivered by Borrower to Lender in connection herewith, or in
connection with any transaction contemplated hereby, contains any untrue
statement of a material fact or fails to state any material fact necessary to
keep the statements contained therein from being misleading.
5. Affirmative Covenants. Until payment in full of the Note and all
other obligations and liabilities of Borrower hereunder, Borrower agrees and
covenants that (unless Lender shall otherwise consent in writing):
(a) As soon as available, and in any event within thirty (30)
days after the close of each calendar month, Borrower shall deliver to Lender an
unaudited financial statement showing the financial condition of Borrower and
its subsidiaries at the close of each such month and the results of operations
during such month, which financial statements shall include, but shall not be
limited to, a profit and loss statement, balance sheet, and such other matters
as Lender may reasonably request; all such monthly financial statements shall be
certified on the face thereof by the chief financial officer of Borrower, or any
officer of Borrower acceptable to Lender, and shall be forwarded to Lender with
a letter of transmittal from him in which he shall certify that Borrower is in
compliance with all of the covenants contained in Paragraph 5 and Paragraph 6
hereof, and further stating that, to Borrower's best knowledge, no Event of
Default exists in the performance by Borrower of any of the other terms,
conditions and covenants required under this Agreement to be performed by
Borrower;
(b) As soon as available, and in any event within ninety (90)
days after the end of each fiscal year of Borrower, Borrower shall deliver to
Lender a copy of the annual audited consolidated financial statement of Borrower
prepared in conformity with generally accepted accounting principles by Xxxxxx &
Xxxxxx or independent certified public accountants selected by Borrower and
acceptable to Lender, which show the financial condition of Borrower and its
subsidiaries at the close of such fiscal year and the results of operations
during such fiscal year, and shall include, but not be limited to, a profit and
loss statement, balance sheet and such other matters as Lender may reasonably
request;
(c) As soon as available, and in any event within thirty (30)
days after the end of each month, and upon each request for an advance Borrower
shall deliver to Lender a (i)
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Borrowing Base Certificate and Compliance Certificate in the form of Schedule
"B" attached hereto together with such other information as may be deemed
necessary or appropriate by Lender and (ii) an aging and listing of all accounts
receivable, accounts payable and inventory of Borrower in a form acceptable to
Lender;
(d) Borrower shall furnish to Lender within thirty (30) days
after the end of September 1996 and each six month period after September 1996
field audit reports prepared by a company mutually acceptable to Lender and
Borrower, in a form acceptable to Lender;
(e) As soon as available, and in any event within thirty (30)
days after the end of each calendar year, Borrower shall cause the Guarantor
(hereinafter defined) to deliver to Lender a copy of the annual financial
statement of such Guarantor, which statement shall include, but not be limited
to, a balance sheet, an income statement, a cash flow statement, a statement of
contingent liabilities, and such other matters as Lender may reasonably
request;
(f) As soon as available, and in any event no later than April
30 of each year, Borrower shall cause Guarantor to deliver to Lender a copy of
her federal income tax return(s) filed for the immediately preceding calendar
year (or, in the alternative, should an extension be filed, the extension must
be delivered to Lender by April 30 of such year, and the tax return must be
delivered to Lender within 15 days after the date it is actually filed);
(g) Borrower shall conduct its business in an orderly and
efficient manner consistent with good business practices and in accordance with
all valid regulations, laws and orders of any governmental authority and will
act in accordance with customary industry standards in maintaining and operating
its assets, properties and investments;
(h) Borrower shall maintain complete and accurate books and
records of its transactions in accordance with generally accepted accounting
principles, and will give Lender access, after forty-eight hours prior notice,
during business hours to all books, records and documents of Borrower and permit
Lender to make and take away copies thereof;
(i) Borrower shall furnish to Lender, immediately upon becoming
aware of the existence of any condition or event constituting an Event of
Default or event which, with the lapse of time and/or giving of notice, would
constitute an Event of Default, written notice specifying the nature and period
of existence thereof and any action which Borrower is taking or proposes to take
with respect thereto;
(j) Borrower shall promptly notify Lender of (i) any material
adverse change in its financial condition or business; (ii) receipt of notice of
any default under any material agreement, contract or other instrument to which
Borrower is a party or by which any of its properties are bound, or any
acceleration of any maturity of any indebtedness owing by Borrower; (iii) any
material adverse claim against or affecting Borrower or any of its subsidiaries
or properties; and (iv) any litigation, or any claim or controversy which might
become the subject of litigation, against Borrower or its subsidiaries affecting
any property, if such litigation or potential litigation might, in the event of
an unfavorable outcome, have a material adverse effect on Borrower's financial
condition or business or might cause an Event of Default;
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(k) Borrower shall promptly pay all lawful claims, whether for
labor, materials or otherwise, which might or could, if unpaid, become a lien or
charge on any property or assets of Borrower, unless and to the extent only that
the same are permitted hereby or are being contested in good faith by
appropriate proceedings and reserves deemed adequate by Lender have been
established therefor;
(l) Borrower shall maintain or cause to be maintained insurance
from responsible and reputable companies in such amounts and covering such risks
as is acceptable to Lender, is prudent and is usually carried by companies
engaged in businesses similar to that of Borrower; Borrower shall furnish
Lender, on request, with certified copies of insurance policies or other
appropriate evidence of compliance with the foregoing covenant;
(m) Borrower shall preserve and maintain all licenses,
privileges, franchises, certificates and the like necessary for the operation of
its business;
(n) Borrower shall promptly furnish to Lender, at Lender's
request, such additional financial or other information concerning assets and
liabilities of Borrower as Lender may from time to time reasonably request; and
(o) Borrower shall make, execute or endorse, and acknowledge and
deliver or file or cause the same to be done, all such vouchers, invoices,
notices, certifications and additional security agreements, financing statements
with respect to the Collateral and take any and all such other action, as Lender
may, from time to time, deem reasonably necessary or proper in connection with
any of the Loan Documents, the obligations of Borrower, or for better assuring
and confirming unto Lender all or any part of the security for any of such
obligations as set forth herein.
(p) Borrower shall establish a lock box arrangement with Lender
in accordance with its normal practices in connection with the payment and
collection of Borrower's accounts receivable.
6. Negative Covenants. Until payment in full of the Note and all
other obligations and liabilities of Borrower hereunder, Borrower covenants that
it shall not (unless Lender shall otherwise consent in writing):
(a) Permit at any time Borrower's Tangible Net Worth to be less
than:
from the date hereof through
June 29, 1996 $800,000.00;
from June 30, 1996 through
December 30, 1996 $1,050,000.00; and
from December 31, 1996 through
the Maturity Date $1,300,000.00;
as used herein, the term "Tangible Net Worth" shall mean the total assets of
Borrower, minus its total liabilities (including contingent liabilities), minus
all intangibles, expenses and other items
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deducted in arriving at tangible net worth as determined by Borrower's regularly
employed certified public accountant in a manner consistent with prior
practice;
(b) Permit, at any time during the periods set forth below, its ratio of
total liabilities to Tangible Net Worth to be more than 2.50 to 1.00.
(c) Permit, at any time, its ratio of Current Assets to Current
Liabilities to be less than 1.25 to 1.00; as used herein, the term "Current
Assets" shall mean all assets of Borrower that, in accordance with generally
accepted accounting principles, would be included as current assets on a balance
sheet as of such date, and the term "Current Liabilities" shall mean all
liabilities of Borrower that, in accordance with generally accepted accounting
principles, would be included as current liabilities on a balance sheet as of
such date;
(d) Incur or assume any indebtedness or borrow money without Lender's
consent, except for (i) the Loan; (ii) debt incurred in the ordinary course of
business; and (iii) debt reflected on Borrower's most recent balance sheet and
any renewal, extension or modifications thereof; or sell any of its accounts
receivable, with or without recourse;
(e) Permit, for any three consecutive months, Borrower's Net Income to
be less than zero for each such month during the three month period; as used
herein, the term "Net Income" means, for any period, the net earnings (or loss)
after taxes of Borrower for such period determined in accordance with GAAP;
(f) Endorse, guarantee, or otherwise become liable for the obligations
of any person, firm or corporation except for endorsements of negotiable
instruments by Borrower in the ordinary course of business;
(g) Mortgage, assign, encumber, incur, assume or grant a security
interest in or lien upon any of Borrower's assets, except to Lender and as
permitted herein (provided, however, that the foregoing shall not apply to an
inchoate lien for taxes which are not delinquent or which are being contested in
good faith and liens resulting from deposits to secure the payments of worker's
compensation or social security or to secure the performance of bids or
contracts in the ordinary course of business or others arising by operation of
law);
(h) Liquidate, dissolve or reorganize; or merge or consolidate with, or
acquire all or substantially all of the assets of, any other company, firm or
association; or make any other substantial change in its capitalization or its
business;
(i) Sell any of its assets, except in the ordinary course of business;
or sell any of its assets to any other person, firm or corporation with the
agreement that such assets shall be leased back to Borrower, unless replaced
with assets of equal value;
(j) Own, purchase or acquire, directly or indirectly, any promissory
notes, stock or securities of any other person, firm or corporation, other than
securities guaranteed as to the principal and interest by the United States
government; or make any loans or advances to any other person or affiliated
entity, in excess of $100,000 in the aggregate;
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(k) Permit any transfer, pledge or other change in the ownership of
controlling interest of the stock of Borrower during the term of the Loan,
without the prior written consent of Lender; as used herein, the term
"controlling interest" shall mean 51% of the stock of Borrower; and if a
shareholder is an individual, the death of such shareholder shall not be deemed
to be a change in the ownership of such stock of Borrower.
(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, and which exceeds, in the aggregate, $100,000.
7. Default. An "Event of Default" shall exist if any one or more of the
following events (herein collectively called "Events of Default") shall occur:
(a) Borrower shall fail to pay when due any principal of, or interest
on, the Note or any other fee or payment due hereunder or under any other
indebtedness owing to Lender or any of the Loan Documents;
(b) Any representation or warranty made in any of the Loan Documents
shall prove to be untrue or inaccurate in any material respect as of the date on
which such representation or warranty is made;
(c) Default shall occur in the performance of any of the covenants or
agreements of Borrower contained herein or in any other documents securing any
other indebtedness owing to Lender or in any of the other Loan Documents and
with respect to the Affirmative Covenants set forth herein [except subparagraphs
5(h), 5(i), 5(j), 5(n), and 5(o)] and Negative Covenants set forth herein such
default shall continue for more than thirty (30) days after Lender's sending
written demand therefor;
(d) Borrower shall (i) apply for or consent to the appointment of a
receiver, custodian, trustee, intervenor or liquidator of it or of all or a
substantial part of its assets, (ii) voluntarily become the subject of a
bankruptcy, reorganization or insolvency proceeding or be insolvent or admit in
writing that it is unable to pay debts as they become due, (iii) make a general
assignment for the benefit of creditors, (iv) file a petition or answer seeking
reorganization or an arrangement with creditors or to take advantage of any
bankruptcy or insolvency laws, (v) file an answer admitting the material
allegations of, or consent to, or default in answering, a petition filed against
it in any bankruptcy, reorganization or insolvency proceeding, (vi) become the
subject of an order for relief under any bankruptcy, reorganization or
insolvency proceeding, or (vii) fail to pay any money judgment against it or
obtain a supersedeas bond before the expiration of thirty (30) days after such
judgment becomes final and no longer subject to appeal;
(e) An order, judgment or decree shall be entered by any court of
competent jurisdiction or other competent authority approving a petition
appointing a receiver, custodian, trustee, intervenor or liquidator of Borrower
or of all or substantially all of its assets, and such order, judgment or decree
shall continue unstayed and in effect for a period of ninety (90) days; or a
complaint or petition shall be filed against Borrower seeking or instituting a
bankruptcy,
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insolvency, reorganization, rehabilitation or receivership proceeding of
Borrower, and such petition or complaint shall not have been dismissed within
ninety (90) days; or
(f) Borrower shall default in the payment of any indebtedness of
Borrower to financial institutions or in the performance of any of Borrower's
obligations to financial institutions and such default shall continue for more
than any applicable period of grace.
8. Remedies Upon Event of Default. If an Event of Default shall have
occurred and be continuing, then Lender, at its option, may (i) declare the
principal of, and all interest then accrued on, the Note and any other
liabilities of Borrower to Lender to be forthwith due and payable, whereupon the
same shall forthwith become due and payable without notice, presentment, demand,
protest, notice of intention to accelerate, or other notice of any kind, all of
which Borrower hereby expressly waives, anything contained herein or in the Note
to the contrary notwithstanding, (ii) reduce any claim to judgment, and/or (iii)
without further notice of default or demand, pursue and enforce any of Lender's
rights and remedies under the Loan Documents or otherwise provided under or
pursuant to any applicable law or agreement.
9. Collateral. Payment of the Note and performance of the obligations
described herein shall be secured, directly or indirectly, by the following:
(a) a first priority perfected security interest in all of Borrower's
accounts, and general intangibles;
(b) the guaranty of Xxxxxxxx Xxxxxxxx (the "Guarantor").
10. Miscellaneous.
(a) Waiver. No failure to exercise, and no delay in exercising, on the
part of Lender, any right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right. The rights of Lender hereunder and
under the other Loan Documents shall be in addition to all other rights provided
by law. No notice or demand given in any case shall constitute a waiver of the
right to take other action in the same, similar or other instances without such
notice or demand.
(b) Notices. Any notices or other communications required or permitted
to be given by any of the Loan Documents must be given in writing and must be
personally delivered, or mailed by prepaid certified or registered mail to the
party to whom such notice or communication is directed at the address of such
party as follows:
(i) Borrower: Documentation Associates, Inc.
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxx
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(iii) Lender: Southwest Bank of Texas
P. O. Xxx 00000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx XxXxx
Any such notice or other communication shall be deemed to have been given
(whether actually received or not) on the day it is personally delivered as
aforesaid, or, if mailed, on the third day after it is mailed as aforesaid. Any
party may change its address for purposes of this Agreement by giving notice of
such damage to all other parties pursuant to this Paragraph.
(c) Governing Law. This Agreement and the other Loan Documents are
being executed and delivered, and are intended to be performed, in the State of
Texas, and the substantive laws of Texas shall govern the validity,
construction, enforcement and interpretation of this Agreement and all other
Loan Documents, except to the extent: (i) otherwise specified therein; (ii) the
federal or state laws governing national banking associations expressly
supersede and have contrary application; or (iii) federal laws governing maximum
interest rates shall provide for rates of interest higher than those permitted
under the laws of the State of Texas.
(d) Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws effective
during the term of this Agreement, such provision shall be fully severable and
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement, and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unforceable provision or by its
severance from this Agreement.
(e) Maximum Interest Rate. It is the intention of the parties hereto to
comply with the usury laws of the State of Texas and the United States;
accordingly, it is agreed that notwithstanding any provision to the contrary in
the Note, or in any of the documents securing payment hereof or otherwise
relating hereto, no such provision shall require the payment or permit the
collection of interest in excess of the maximum permitted by applicable state or
Federal Law. If any excess of interest in such respect is provided for, or shall
be adjudicated to be so provided for, in the Note or in any of the documents
securing payment hereof or otherwise relating hereto, or in the event the
maturity of the indebtedness evidenced by the Note is accelerated in whole or in
part, or in the event that all or part of the principal or interest of the Note
shall be prepaid, so that under any of such circumstances the amount of interest
contracted for, charged or received under the Note or under any of the
instruments securing payment hereof or otherwise relating hereto, on the amount
of principal actually outstanding from time to time under the Note shall exceed
the maximum amount of interest permitted by the usury laws of the State of Texas
and the United States, then, in any such event, (i) the provisions of this
paragraph shall govern and control, (ii) neither Borrower nor its legal
representatives or assigns or any other party liable for the payment hereof
shall be obligated to pay the amount of such interest to the extent that it is
in excess of the maximum amount permitted by applicable state or Federal law,
(iii) any such excess which may have been collected shall be, at the holder's
option (at maturity or in the Event of Default hereunder), either applied as a
credit against the then unpaid principal amount hereof or refunded to Borrower,
and (iv) the effective rate of interest shall be automatically subject to
reduction to the maximum lawful contract rate allowed under the usury laws of
the State of Texas or the United States as now or hereafter construed by the
courts
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having jurisdiction. It is further agreed that without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged or
received under the Note or under such other documents which are made for the
purpose of determining whether such rate exceeds the maximum lawful rate of
interest, shall be made, to the extent permitted by the laws of the State of
Texas and the United States, by amortizing, prorating, allocating and spreading
in equal parts during the period of the full stated term of the Loans, all
interest at any time contracted for, charged or received from Borrower or
otherwise by the holder of the Note in connection with such Loan.
(f) Entirety and Amendments. The Loan Documents embody the entire
agreement between the parties and supersede all prior agreements and
understandings, if any, relating to the subject matter hereof and thereof, and
this Agreement and the other Loan Documents may be amended only by an instrument
in writing executed by the party, or an authorized officer of the party,
against whom such amendment is sought to be enforced.
(g) Parties Bound. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns; provided, however, that Borrower may
not, without the prior written consent of Lender, assign any rights, powers,
duties or obligations hereunder.
(h) Headings. Paragraph and section headings are for convenience of
reference only and shall in no way affect the interpretation of this Agreement.
(i) Financial Terms. As used in this Agreement, all financial and
accounting terms not otherwise defined herein shall be defined and calculated in
accordance with generally accepted accounting principles consistently applied.
(j) Expenses of Lender. Borrower will, on demand, reimburse Lender
for all expenses except as otherwise provided herein, including the reasonable
fees and expenses of legal counsel for Lender, incurred by Lender in connection
with the preparation, administration, amendment, modification or enforcement of
this Agreement, the Note and the Loan Documents and the collection or the
attempted collection of the Note.
(k) Construction and Conflicts. The provisions of this Agreement
shall be in addition to those of the Note, the Loan Documents and any guaranty,
pledge or security agreement, note or other evidence of liability held by
Lender, all of which shall be construed as complementary to each other. Nothing
herein contained shall prevent Lender from enforcing the Note, the Loan
Documents and any and all other notes, guaranty, pledge or security agreements
in accordance with their respective terms. To the extent of any irreconcilable
conflict between the terms hereof and the terms of the Note, the Loan Documents
or any other document executed in connection herewith, the terms of this
Agreement shall control.
11. Agreement for Binding Arbitration. The parties agree to be bound by
the terms and provisions of the Arbitration Agreement by and among the parties
hereto, which Agreement is incorporated by reference herein, pursuant to which
any and all disputes shall be resolved by mandatory binding arbitration upon the
request of any party.
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12. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, and each counterpart executed by any party shall be deemed an
original and shall be binding upon the person or entity executing the same,
irrespective of whether any other party has executed that or any other
counterpart of this Agreement. Production of any counterpart other than the one
to be enforced shall not be required.
13. NO ORAL AGREEMENTS. THE 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.
If Lender agrees to the foregoing, Lender should execute this Agreement
in the space indicated below.
"Borrower"
DOCUMENTATION ASSOCIATES, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------
Xxxxxx Xxxxx, Vice President
"Guarantor"
/s/ Xxxxxxxx Xxxxxxxx
-------------------------------
XXXXXXXX XXXXXXXX, to evidence
Guarantor's agreement to
paragraph 11 hereof
ACCEPTED:
"Lender"
SOUTHWEST BANK OF TEXAS, N.A.
By /s/ Xxxxxx XxXxx
-----------------------------
Xxxxxx XxXxx
Senior Vice President
UNITED KINGDOM )
Great Britain and Northern Ireland )
London, England ) ss
Embassy of the United States of America )
THE EMBASSY OF THE UNITED )
STATES OF AMERICA )
BEFORE ME, the undersigned authority, a Vice Consul of the United States
of America resident in London, the United Kingdom, duly commissioned and
qualified, on this day personally appeared XXXXXXXX XXXXXXXX, known to me or
proven to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that she executed the same for purposes and
consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL this Eighteenth day of March, 1996.
/s/ Xxxxxxx Xxxxxxxx Arkley
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(Typed name of foreign service officer)
of the United States of America
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(Title)
XXXXXXX XXXXXXXX XXXXXX
VICE CONSUL OF THE
UNITED STATES OF AMERICA
LONDON, ENGLAND
