EXHIBIT 10.14
Loan No.:______________
PROMISSORY NOTE
$762,043.77 October 7, 1997
FOR VALUE RECEIVED, DA CONSULTING GROUP, INC., a Texas corporation
("Maker"), promises to pay to the order of XXXXXX FINANCIAL, INC., a Delaware
corporation (together with any holder of this Note, "Payee"), at its office
located at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other
place as Payee may from time to time designate, the principal sum of Seven
Hundred Sixty Two Thousand Forty Three and 77/100 Dollars ($762,043.77),
together with interest thereon at a fixed rate equal to Nine and 08/100 percent
(9.08%) pre annum. Principal and interest shall be payable in thirty-six (36)
consecutive monthly installments commencing November 1, 1997, and continuing on
the same day of each consecutive calendar month thereafter until this Note is
fully paid, each such installment in the amount of Twenty Four Thousand Two
Hundred Thirty and 81/100 Dollars ($24,230.81); provided, however, that in any
and all events the final installment payment hereunder shall be in the amount of
the entire then outstanding principal balance hereunder, plus all accrued and
unpaid interest, charges and other amounts owing hereunder or under the Security
Agreement (defined below). All payments shall be applied first to interest and
then to principal. Interest shall be computed on the basis of a 360 day year for
the actual number of days elapsed during each month, and shall be billed through
the end of each month.
Notwithstanding the foregoing, if at any time implementation of any
provision hereof shall cause the interest contracted for or charged herein or
collectable hereunder to exceed the applicable lawful maximum rate, then the
interest shall be limited to such applicable lawful maximum.
This Note is secured by the collateral described in the Security
Agreement dated October 7, 1997, between Maker and Payee (the "Security
Agreement;" and together with all related documents and instruments, the "Loan
Documents") to which reference is made for a statement of the nature and extent
of protection and security afforded, certain rights of Payee and certain rights
and obligations of Maker, including Maker's rights, if any, to prepay the
principal balance hereof; provided, however, that in addition to any other sum
payable hereunder, under the Security Agreement or any of the other Loan
Documents, in the event of a prepayment of the principal balance hereunder,
whether voluntary, following acceleration or otherwise, Maker shall pay to Payee
the greater of (i) a prepayment fee in a sum equal to three percent (3%) of the
principal balance prepaid during Loan Year 1, two percent (2%) of the principal
balance prepaid during Loan Year 2, and one percent (1%) of the principal
balance prepaid during Loan Year 3, or (ii) a Breakage Fee, together with the
prepayment fee and amounts payable under Section 3 of the Security Agreement, if
any, represent liquidated damages to Payee for the loss of its bargain and not a
penalty. As used herein, the term "Breakage Fee" shall mean the amount, if any,
by which (A) the present value, in the aggregate, of the then remaining
installments of principal and interest due hereunder, absent the prepayment,
using a discount rate equal to (i) the yield to maturity as of the date two (2)
days prior to the date of the prepayment on United States Treasury securities
with a final maturity approximately equal to the remaining term hereof, absent
the prepayment, as published in The Wall Street Journal, plus (ii) one percent
(1%), exceeds (B) the then outstanding principal balance hereunder, absent the
prepayment. The phrase "Loan Year" means each twelve (12) consecutive months
commencing on the date of the Note. The prepayment fee and Breakage Fee
described in clause (i) above shall also be due upon the acceleration of the
maturity date of any Note following the occurrence of any Event of Default.
Time is of the essence hereof. If payment of any installment or any
other sum due under this Note or the Loan Documents is not paid within 10 days
of the date when due, Maker agrees to pay a late charge equal to the lesser of
(i) five cents (5c) per dollar on, and in addition to, the amount of each such
payment, or (ii) the maximum amount Payee is permitted to charge by law. In the
event of the occurrence of an Event of Default (as defined in the Security
Agreement), then the entire unpaid principal balance hereof with accrued and
unpaid interest thereon, together with all other sums payable under this Note or
the Loan Documents, shall, at the option of Payee and without notice or demand,
become immediately due and payable, such accelerated balance bearing interest
until
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paid at the rate of two and 00/100 percent (2.0%) per annum above the fixed rate
set forth in the first paragraph of this Note.
Maker and all endorsers, guarantors or any others who may at any time
become liable for the payment hereof hereby consent to any and all extensions of
time, renewals, waivers and modifications of, and substitutions or release of
security or of any party primarily or secondarily liable on, or with respect to,
this Note or any of the Loan Documents or any of the terms and provisions
thereof that may be made, granted or consented to by Payee, and agree that suit
may be brought and maintained against any one or more of them, at the election
of Xxxxx, without joinder of the others as parties thereto, and that Payee shall
not be required to first foreclose, proceed against, or exhaust any security
herefor, in order to enforce payment of this Note by any one or more of them.
Maker and all endorsers, guarantors or any others who may at any time become
liable for the payment hereof hereby severally waive presentment, demand for
payment, notice of nonpayment, protest, notice of protest, notice of dishonor,
and all other notices in connection with this Note, filing of suit and diligence
in collecting this Note or enforcing any of the security herefor, and, without
limiting any provision of any of the Loan Documents, agree to pay, if permitted
by law, all expenses incurred in collection, including reasonable attorneys'
fees, and hereby waive all benefits of valuation, appraisement and exemption
laws.
If there be more than one Maker, all the obligations, promises,
agreements and covenants of Maker under this Note are joint and several.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF ILLINOIS WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. AT PAYEE'S ELECTION AND WITHOUT LIMITING
PAYEE'S RIGHT TO COMMENCE AN ACTION IN ANY OTHER JURISDICTION, MAKER HEREBY
SUBMITS TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY COURT (FEDERAL, STATE OR
LOCAL) HAVING SITUS WITHIN THE STATE OF ILLINOIS, EXPRESSLY WAIVES PERSONAL
SERVICE OF PROCESS AND CONSENTS TO SERVICE BY CERTIFIED MAIL, POSTAGE PREPAID,
DIRECTED TO THE LAST KNOWN ADDRESS OF MAKER, WHICH SERVICE SHALL BE DEEMED
COMPLETED WITHIN TEN (10) DAYS AFTER THE DATE OF MAILING THEREOF.
MAKER HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS NOTE. THIS WAIVER IS INFORMED AND
FREELY MADE. MAKER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT XXXXX HAS ALREADY RELIED ON THE WAIVER
IN MAKING THE LOAN EVIDENCED BY THIS NOTE, AND THAT PAYEE WILL CONTINUE TO RELY
ON THE WAIVER IN ITS RELATED FUTURE DEALINGS. MAKER FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL.
Witness/Attest: DA CONSULTING GROUP, INC.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxx
0000 Xxx Xxxxxx, Xxx. 3700 ------------------------
Houston, TX 77057 Title: CFO & EVP
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Finance & Administration
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