EXHIBIT 10.10
AMENDMENT NO. 2
This Amendment No. 2 dated as of September 15, 1996 ("Agreement"), is
entered into by CogniSeis Development, Inc., a Delaware corporation
("Borrower"), and NationsBank of Texas, N.A. ("Bank"). Reference is made to the
Loan Agreement dated as of November 30, 1995, as amended by Amendment No. 1
dated as of June 15, 1996 (as the same may be amended, modified or supplemented
from time to time, the "Loan Agreement"), between the Borrower and the Bank to
which this Agreement relates. Capitalized terms used herein but not defined
herein shall have the meanings specified by the Loan Agreement.
INTRODUCTION
The Borrower and the Bank desire on the terms of this Agreement to amend
the terms of the Loan Agreement to extend the Final Maturity Date, modify
certain financial covenants, and to make certain other amendments to the Loan
Documents. In consideration of the foregoing, and for other good and valuable
consideration, the Borrower and the Bank hereby agree as follows:
Section 1. AMENDMENT OF LOAN AGREEMENT. The Loan Agreement is amended as
follows:
1.1 Section 1.1 of the Credit Agreement is amended by replacing or
inserting, as appropriate, the following definition:
"Final Maturity Date" shall mean June 30, 1997.
"GeoScience" shall mean GeoScience Corporation, a Nevada corporation.
1.2 Section 4.1 of the Loan Agreement is amended by renumbering
paragraph (d) of Section 4.1 as paragraph (e), and inserting the following
paragraphs (d) and (e) following paragraph (c):
(d) GeoScience Annual Reports - promptly after becoming year of
GeoScience, the audited consolidated balance sheet of GeoScience as at
the end of such year, the audited consolidated statement of profit and
loss of GeoScience for such year and the audited consolidated statement
of changes in shareholders investment of GeoScience for such year,
setting forth in each case in comparative form the corresponding figures
for the preceding fiscal year, accompanied by the related report of
independent public accountants of national standing which report shall
be to the effect that such statements have been prepared in accordance
with generally accepted accounting principles consistently followed
throughout the period indicated except for such changes in such
principles with which the independent public accountants shall have
concurred; and
(e) GeoScience Quarterly Reports - promptly after becoming
available and in any event within 120 days after the close of each
fiscal quarter of GeoScience the unaudited consolidated balance sheet of
GeoScience as at the end of such quarter and the unaudited consolidated
statement of profit and loss of GeoScience for such quarter, setting
forth in each case in comparative form the corresponding figures for the
preceding fiscal quarter; and
1.3 Section 5.9 of the Loan Agreement is amended by deleting therefrom
the reference to the amount "$4,000,000" and substituting in lieu thereof a
reference to the amount "$1,500,000."
1.4 Section 5.11 of the Loan Agreement is amended by deleting therefrom
the reference to the ratio "1.5 to 1.0" and substituting in lieu thereof a
reference to the ratio "1.2 to 1.0."
1.5 EXHIBIT C to the Loan Agreement is deleted therefrom, and EXHIBIT C
attached hereto is substituted in lieu thereof.
Section 2. WAIVER. The Bank hereby waives any Events of Default occurring prior
to the date of this Agreement caused by (a) the Borrower's breach of Section 5.9
of the Loan Agreement resulting from the Borrower permitting its tangible net
worth to be less than $4,000,000, and (b) the Borrower's breach of Section 5.15
of the Loan Agreement resulting from the Borrower incurring a net loss from
operations in excess of $500,000 for two consecutive quarters. This Waiver is
limited solely to the purposes and to the extent provided herein and shall not
be construed to be a waiver, except as specifically provided in this Section 2,
(a) of any term, condition or provision of the Loan Agreement or (b) of any
Event of Default or Default that has or may have occurred or occurs after the
date hereof.
Section 3. EFFECT ON LOAN DOCUMENTS.
3.1 Except as amended and waived herein, the Loan Agreement and all
other Loan Documents remain in full force and effect as originally executed.
Except as specified herein, nothing herein shall act as a waiver of any of the
Bank's rights under the Loan Documents as amended, including the waiver of any
default or event of default, however denominated. The Borrower must continue to
comply with the terms of the Loan Documents, as amended.
3.2 This Agreement and the other agreements, documents, and instruments
executed in connection herewith are Loan Documents for the purposes of this
Agreement and all other Loan Documents, and the definition of "Loan Documents"
in the Loan Agreement is deemed to include this
Agreement and such agreements, documents, and instruments thereunder. Without
limiting the foregoing, any breach of representations, warranties, and covenants
under this Agreement may be a Default or Event of Default under the Loan
Agreement.
3.3 All definitions in the Loan Agreement and in each other Loan
Document which refer to the Loan Agreement shall be deemed to refer to such
documents as amended hereby, and all parties reaffirming their obligations under
the Loan Documents accept the amendments hereunder and the transactions
contemplated hereby.
Section 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
to the Bank that:
4.1 The execution, delivery, and performance of this Agreement are
within the corporate power and authority of the Borrower and have been duly
authorized by appropriate proceedings and this Agreement constitutes a legal,
valid, and binding obligation of the Borrower, enforceable in accordance with
its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the rights of creditors
generally and general principles of equity.
4.2 Upon the effectiveness of this Agreement and the amendment of the
Loan Documents as provided for herein, all representations and warranties set
forth in the Loan Documents, as amended, shall be true and correct in all
material respects and the Borrower shall be in compliance with all covenants in
the Loan Documents, as amended.
4.3 Upon the effectiveness of this Agreement and the amendment of the
Loan Documents as provided for herein, no Event of Default shall exist under the
Loan Documents and there shall have occurred no event which with
notice or lapse of time would become an Event of Default under the Loan
Documents, as amended.
Section 5. EFFECTIVENESS. This Agreement and the waivers contained herein shall
become effective and the Loan Documents shall be amended as provided for herein
when the Bank shall have received each of the documents and items listed in the
Closing Documents List dated as of even date herewith relating to this
Agreement, such documents being fully executed where appropriate by the parties
thereto, and the Bank shall have executed and delivered each such document to
which it is a party.
Section 6. MISCELLANEOUS.
6.1 The Borrower shall reimburse the Bank for all expenses of the Bank,
including charges and disbursements of legal counsel for the Bank, in connection
with the creation, amendment, modification, waiver, or interpretation of this
Agreement, and the preservation or enforcement of any rights of the Bank under
this Agreement.
6.2 This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas. This Agreement may be executed
in multiple counterparts which together shall constitute one and the same
agreement.
THIS WRITTEN AGREEMENT AND THE LOAN DOCUMENTS REPRESENT 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.
EXECUTED as of the date first above written.
COGNISEIS DEVELOPMENT, INC.
By:/s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: President
NATIONSBANK OF TEXAS, N.A.
By:/s/XXXX X. XXXXX
Xxxx X. Xxxxx
Vice President
The undersigned ("Guarantor"), has executed a Guaranty dated as of November 30,
1995 ("Guaranty"), guaranteeing payment of the Borrower's obligations under the
Loan Agreement and the Loan Documents and certain other amounts in accordance
with the Guarantor's Guaranty. The Guarantor has reviewed this Agreement and
related documents ("Amendment Documents"), and hereby approves them, including
without limitation the extension of the Final Maturity Date and the modification
of the financial covenants amended hereby. The Guarantor represents and warrants
that the Guarantor knows of no defenses to the enforcement of the Guarantor's
Guaranty and that according to its terms the Guarantor's Guaranty will continue
in full force and effect with respect to the Loan Documents, as amended,
following the execution of the Amendment Documents. The signature of this
document does not indicate or establish a
requirement that the Guaranty requires the Guarantor's approval of amendments to
the Loan Agreement, but has been furnished to the Bank as a courtesy at the
Bank's request. On the foregoing terms, this Agreement and the Amendment
Documents are hereby approved:
TECH-SYM CORPORATION
By:/s/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: President and Chairman
