EXHIBIT 10.12
FOURTH AMENDMENT TO LETTER LOAN AGREEMENT
THIS FOURTH AMENDMENT TO LETTER LOAN AGREEMENT ("Amendment") is made and
entered into effective as of November 26, 1997, 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 in Houston, Texas
(herein called "Lender").
R E C I T A L S:
- - - - - - - -
WHEREAS, Documentation Associates, Inc. and Lender entered into a Letter
Loan Agreement dated March 18, 1996, as amended by First Amendment to Letter
Loan Agreement dated November, 1996 executed by and between Borrower and Lender,
as amended by Second Amendment to Letter Loan Agreement dated effective May 18,
1997 executed by and between Borrower and Lender, and as amended by Third
Amendment to Letter Loan Agreement dated effective May, 1997 executed by and
between Borrower and Lender (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) increase the principal amount of the Note, and (ii) amend certain terms
and provisions of the Loan Agreement.
A G R E E M E N T:
- - - - - - - - -
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) The references to "3,500,000.00" in the opening paragraph, paragraph
1 and paragraph 2 of the Loan Agreement are deleted and replaced with
"5,000,000.00". The reference to the MATURITY DATE is paragraph 1 of the Loan
Agreement is hereby amended to be NOVEMBER 18, 1998.
(b) 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 as follows:
(i) Section (6)(1) is deleted and the following provision is
substituted therefor:
"(1) 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, $1,000,000.00."
(c) Section 10(b)(i) of the Loan Agreement is deleted and replaced
with the following:
(i) Borrower: D.A. Consulting Group, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
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 executed by the Guarantor;
(c) $5,000,000.00 Modification Promissory Note (Revolving Credit)
executed by Borrower;
(d) Supplemental Security Agreement executed by Borrower;
(e) Corporate Certificate and Resolutions from Borrower;
(f) any additional documentation or materials reasonably required by
Lender.
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.
-2-
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 Note 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 Note, 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 against
Lender or any defense to (i) the payment of any obligations and indebtedness
under the Note and/or the Loan Documents or (ii) the performance of any of their
obligations with respect to the Note and/or the Loan Documents, and in the event
any such facts, events, statuses or conditions exist or have existed, Borrower
and Guarantor unconditionally an 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 Note 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. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas.
8. FINAL AGREEMENT. THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR
3
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.,
a Texas corporation, formerly known as
Documentation Associates, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: CFO, EVP Finance & Administration
-------------------------------------
"LENDER"
SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
"GUARANTOR" to evidence its agreement to
Section 5 hereof
D.A. INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: CFO, EVP Finance & Administration
-------------------------------------
4
