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EXHIBIT 10.26
WAIVER AGREEMENT AND AMENDMENT NO. 11 TO
CREDIT AGREEMENT AND OTHER LOAN AND LEASE DOCUMENTS
THIS WAIVER AGREEMENT AND AMENDMENT NO. 11 TO CREDIT AGREEMENT AND
OTHER LOAN AND LEASE DOCUMENTS ("this Amendment") is dated this 26th day of
July, 2001, to be effective as of May 31, 2001, by and among the BANKS listed on
the signature pages hereof ("Banks"), BANK ONE, COLORADO, N.A., as Agent
("Agent"), BANC ONE LEASING CORPORATION, as Lessor ("Banc One Leasing"),
ANALYTICAL SURVEYS, INC., as Borrower and Lessee ("Borrower"), MSE CORPORATION,
an Indiana corporation, as Guarantor and lease guarantor ("MSE"), ASI LANDMARK,
INC., a Colorado corporation, as Guarantor and lease guarantor ("Landmark"), ASI
OF PUERTO RICO, INC., a Puerto Rico corporation, as Guarantor ("Puerto Rico"),
MSE HOLDING COMPANY, an Indiana corporation, as Guarantor ("MSE Holding"), MSE
LLC, an Indiana limited liability company, as Guarantor ("MSE LLC"), CARTOTECH,
INC., a Texas corporation, as lease guarantor ("Cartotech"), INTELLIGRAPHICS
INTERNATIONAL, INC. ALSO KNOWN AS ASI TECHNOLOGIES (INTELLIGRAPHICS), a
Wisconsin corporation, as lease guarantor ("Intelligraphics"), and SURVEY
HOLDINGS, INC., a Texas corporation, as Guarantor and lease guarantor
("Holdings" which together with MSE, Landmark, Puerto Rico, MSE Holding, MSE
LLC, Cartotech, Intelligraphics and Holdings may be collectively referred to as
"Guarantors");
WITNESSETH:
WHEREAS, Borrower, Banks and Agent are parties to a Credit Agreement
dated as of June 3, 1998, as amended by Amendment No. 1 through Amendment No. 5,
Waiver Agreement and Amendment No. 6 to Credit Agreement and Other Loan and
Lease Documents, Waiver Agreement and Amendment No. 7 to Credit Agreement and
Other Loan and Lease Documents, Waiver Agreement and Amendment No. 8 to Credit
Agreement and Other Loan and Lease Documents, Waiver Agreement and Amendment No.
9 to Credit Agreement and Other Loan and Lease Documents and Waiver Agreement
and Amendment No. 10 to Credit Agreement and Other Loan and Lease Documents (as
so amended, the "Credit Agreement");
WHEREAS, Borrower and Banc One Leasing are parties to a Master Lease
Agreement dated June 8, 1993 (the "Master Lease") and various lease schedules
pursuant thereto (the Master Lease together with all leases and lease schedules
executed and delivered by Borrower to Banc One Leasing under the Master Lease
may be referred to as the "Leases" and any of which may be referred to
individually by the words "Lease No." and its lease schedule number, such as
Lease No. 1-94447);
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WHEREAS, Borrower and/or certain Guarantors are parties to various
equipment leases with The Fifth Third Bank of Central Indiana ("Fifth Third")
which leases (collectively, the "5th/3rd Leases") are more particularly
identified on SCHEDULE I to Waiver Agreement and Amendment No. 10 to Credit
Agreement and Other Loan and Lease Documents;
WHEREAS, pursuant to the Credit Agreement, Banks have extended to
Borrower the following secured credit facilities (i) revolving lines of credit,
as provided in Section 2.1 of the Credit Agreement (collectively, the "Revolving
Loans") and (ii) term loans (collectively, the "Term Loan") as follows:
(a) Revolving Loans Principal Balances as of June 30, 2001:
(i) National City $ 711,974.12
(ii) KeyBank $ 711,974.12
(iii) Fifth Third $1,423,948.24
(iv) Bank One $1,552,103.52
(b) Term Loan Principal Balances as of June 30, 2001:
Interest-Bearing Non-Interest Bearing
---------------- --------------------
(i) National City $ 830,517.95 $ 809,061.50
(ii) KeyBank $ 830,517.95 $ 809,061.50
(iii) Fifth Third $1,661,035.94 $1,618,122.99
(iv) Bank One $1,810,529.16 $1,763,754.01
WHEREAS, to secure the Obligations, Borrower executed and delivered to
the Agent, among other things, a Security Agreement and Assignment dated as of
June 3, 1998 (as amended to date, the "Security Agreement"); and a Pledge and
Security Agreement dated as of June 3, 1998, as amended by Amendment No. 1 to
Pledge and Security Agreement dated June 26, 1998 (the "Pledge Agreement");
WHEREAS, to further secure the Obligations, MSE, MSE Holding, MSE LLC,
Landmark, and Puerto Rico each executed and delivered to Agent a Guaranty of the
Obligations;
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WHEREAS, to secure each of their respective Guaranties and to further
secure the Obligations, MSE, MSE Holding, MSE LLC, Landmark, and Puerto Rico
each executed and delivered to Agent a Security Agreement and Assignment;
WHEREAS, to further secure the Leases, MSE, Landmark, Holdings,
Cartotech and Intelligraphics each executed and delivered to Banc One Leasing a
guaranty of the Leases;
WHEREAS, Borrower and Guarantors have requested that Banks waive
existing Events of Default, extend the maturity date of the Revolving Loans to
November 1, 2001, and if Borrower reduces the aggregate principal balance of the
Loans by at least One Million Dollars ($1,000,000.00) on or before November 1,
2001, extend the maturity date of the Revolving Loans to January 31, 2002, and
make other modifications of the Credit Agreement;
WHEREAS, Banks have agreed to waive the existing Events of Default,
extend the maturity date of the Revolving Loans to November 1, 2001, and if
Borrower reduces the aggregate principal balance of the Loans by at least One
Million Dollars ($1,000,000.00) on or before November 1, 2001, extend the
maturity date of the Interest Bearing Term Loan to January 31, 2002, and make
other modifications of the Credit Agreement, subject to the terms and upon the
conditions hereinafter set forth;
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
covenants and agreements contained herein and the acts to be performed
hereunder, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties, the parties
hereby agree as follows:
1. Incorporation of Recitals/Definitions. The foregoing Recitals and
definitions set forth above are incorporated herein and made a part hereof.
Terms which are defined in the Credit Agreement and which are not otherwise
defined in this Amendment shall have the meanings ascribed to them in the Credit
Agreement.
2. Waiver.
(a) Acknowledgment of Default. Borrower and Guarantors acknowledge
that as of the date hereof, Borrower has not obtained a Replacement
Line Commitment and, as a result, the Revolving Loan Scheduled Maturity
Date was May 31, 2001, and Borrower's failure to pay the Obligations in
full on or before May 31, 2001, constitutes an Event of Default and
other Events of Default (including those identified in Section 2(a) and
(b) of the Tenth Amendment) exist under the Credit Agreement
(collectively, the "Existing Defaults").
(b) Waiver. Banks hereby waive the Existing Defaults, all such
waivers being effective through November 1, 2001, and, upon receipt by
Agent, after the effective date of the Eleventh Amendment and on or
prior to November 1, 2001, of not less than One Million Dollars
($1,000,000) (the "Minimum Required Paydown"), such waivers being
extended and effective through January 31, 2002. Banc One Leasing also
hereby waives compliance by Borrower with Section 18 of the Master
Lease. In addition, Banc One Leasing hereby waives any default or event
of default under the Master Lease or the Leases by reason of the
Existing Defaults, such waivers effective through November 1, 2001 and,
upon receipt by the Agent of the Minimum Required Paydown, through
January 31, 2002.
(c) Effect of Waiver. The waivers granted pursuant to Subsection (b)
of this Section 2 are not and shall not be deemed to be a waiver by
Banks of any other Defaults or Events of Default which may now or
hereafter exist.
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3. Amendments to Credit Agreement and Notes.
(a) The following new definitions are inserted in Section 1.1 of the
Credit Agreement such that all definitions therein are in alphabetical
order:
"Eleventh Amendment" means the Waiver Agreement and Amendment
No. 11 to Credit Agreement and Other Loan and Lease Documents dated
as of May 31, 2001 by and among Borrower, certain Subsidiaries or
Affiliates of Borrower, Banc One Leasing Corporation, Banks and
Agent.
"Minimum Required Paydown" means payments of principal of the
Loans in an aggregate amount not less than One Million Dollars
($1,000,000), paid to Agent for the ratable benefit of Banks after
the effective date of the Eleventh Amendment and on or prior to
November 1, 2001.
(b) Amendment of Interest Bearing Term Note. The definition of the
term "Interest Bearing Term Note" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Interest Bearing Term Note" means the promissory notes in the
initial aggregate principal amount of $5,132,601 evidencing the
interest bearing portion of the Term Loan, made by the Borrower and
payable to the order of the Banks, substantially in the form of
Exhibit A-2(a) hereto, as the same may be supplemented, modified,
amended or restated from time to time in the manner provided herein.
(c) Amendment of Interest Bearing Term Loan Scheduled Maturity Date.
The definition of the term "Interest Bearing Term Loan Scheduled
Maturity Date" in Section 1.1 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"Interest Bearing Term Loan Scheduled Maturity Date" means
December 31, 2001, or, in the event that Borrower delivers to Agent
for the ratable benefit of Banks the Minimum Required Paydown on or
before November 1, 2001, January 31, 2002, and, in
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the event that Borrower delivers to Agent for the ratable benefit of
Banks the Minimum Required Paydown on or before November 1, 2001,
the Non-Interest Bearing Term Loan and the Revolving Loans have been
paid in full and the unpaid principal balance of the Interest
Bearing Term Loan on January 31, 2002, is Five Million Dollars
($5,000,000.00) or less, October 1, 2002.
(d) Interim Period. The definition of the term "Interim Period" in
Section 1.1 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"Interim Period" means the period from the effective date of the
Eleventh Amendment to and including November 1, 2001, and if the
Minimum Required Paydown is made on or before November 1, 2001, then
to and including January 31, 2002.
(e) Amendment of Non-Interest Bearing Term Loan Scheduled Maturity
Date. The definition of the term "Non-Interest Bearing Term Loan
Scheduled Maturity Date" in Section 1.1 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"Non-Interest Bearing Term Loan Scheduled Maturity Date" means
November 1, 2001, or, in the event that Borrower delivers to Agent
for the ratable benefit of Banks the Minimum Required Paydown on or
before November 1, 2001, January 31, 2002.
(f) Revolving Loans Commitments. The definition of the term
"Revolving Loans Commitments" in Section 1.1 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"Revolving Loans Commitment" means the commitment of the Banks
to permit the Revolving Loans to remain outstanding in the aggregate
amount not to exceed (i) from the effective date of the Eleventh
Amendment until the earlier of November 1, 2001 or the date of
receipt by Agent of the Minimum Required Paydown, Four Million Four
Hundred Thousand Dollars ($4,400,000); and (ii) if the Minimum
Required Paydown is paid to Agent for the ratable benefit of the
Banks on or before November 1, 2001, from November 2, 2001 to
January 30, 2002, Four Million Four Hundred Thousand Dollars
($4,400,000); and (iii) in the event the Minimum Required Paydown is
not received by Agent on or before November 1, 2001,
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or, in any event, on January 31, 2002, Zero Dollars ($0); provided,
however, notwithstanding any provision of this Agreement or the
Revolving Note to the contrary, Banks shall not make any further
Advance after the effective date of the Tenth Amendment.
(g) Revolving Loans Scheduled Maturity Date. The definition of the
term "Revolving Loans Scheduled Maturity Date" in Section 1.1 of the
Credit Agreement is hereby amended in its entirety to read as follows:
"Revolving Loans Scheduled Maturity Date" means November 1,
2001, or, in the event that Borrower delivers to Agent for the
ratable benefit of Banks the Minimum Required Paydown on or before
November 1, 2001, January 31, 2002.
(h) Revolving Note. The definition of the term "Revolving Note" in
Section 1.1 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"Revolving Note" means the promissory notes in the aggregate
principal amount of $4,400,000 made by the Borrower and payable to
the order of the Banks, substantially in the form of Exhibit A-1
hereto, as the same may be supplemented, modified, amended or
restated from time to time in the manner provided herein.
(i) Amendment of Section 2.6(b). Section 2.6(b) is hereby amended in
its entirety to read as follows:
(b) Payment of Term Loan Notwithstanding any provision of this
Agreement or any Term Note to the contrary, the Borrower will
repay: (i) the Non-Interest Bearing Term Loan in full on or
before the earlier of: (A) the Non-Interest Bearing Term Loan
Scheduled Maturity Date; or (B) the date upon which a Change of
Control occurs; and (ii) will repay the Interest Bearing Term
Loan in full on or before the Interest Bearing Term Loan
Scheduled Maturity Date. Quarterly installment payments of
principal of the Term Loan are no longer required to be made,
effective as of March 31, 2001.
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(j) Mandatory Prepayments. Section 2.6(d) of the Credit Agreement is
hereby amended in its entirety to read as follows:
(d) Mandatory Repayment Notwithstanding any provision of this
Agreement to contrary:
(i) The Borrower will repay the Loans in full on demand upon
the acceleration of the due date of any of the Loans by the
Agent pursuant to Article VI and/or Section 2.17 hereof.
(ii) The Borrower shall pay to the Agent Net Proceeds within
not more than five (5) Business Days after the Borrower
shall receive Net Proceeds from (x) Dispositions, (y) any
equity securities issuance or sale; or (z) insurance
recoveries and condemnation and eminent domain awards.
Collateral shall be released from the liens of the
Collateral Documents upon any Disposition of such
Collateral, provided that (i) no Event of Default has
occurred and (ii) the Borrower shall have made the mandatory
repayment (from the Net Proceeds and not as an additional
payment) required under the terms of this Section 2.6. All
payments made pursuant to this Section 2.6 shall be first
applied to the Non-Interest Bearing Term Loan before being
applied to the Revolving Loans and then to the Interest
Bearing Term Loan, except that for the purposes of
determining whether the unpaid principal balance of the
Revolving Loans exceeds the Borrowing Base plus the amount
of the consolidated cash of Borrower and its Subsidiaries
(as provided in Section 2.6(d)(iii) below), all principal
payments paid after July 1, 2001, shall be deemed to have
been principal payments on the Revolving Loans.
(iii) The Borrower shall, upon demand by Agent, pay to the
Agent as a principal reduction of the Revolving Loan the
amount by which the principal balance then outstanding on
the Revolving Loans at any time exceeds the Borrowing Base
plus the
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amount of the consolidated cash of the Borrower and the
Borrower's Subsidiaries.
(iv) In addition to all other payments required to be paid
under the terms of this Agreement, the Borrower shall pay to
Agent (y) on or before November 1, 2001, as a principal
payment on the Non-Interest Bearing Term Loan, the Minimum
Required Paydown; and (z) upon a Change in Control, the
entire unpaid principal sum of and all accrued interest upon
the Loans, as reduced, if at all, by clause (v) of this
Section 2.6(d).
(v) Notwithstanding any provision of this Agreement or the
Notes to the contrary, upon payment by the Borrower to the
Agent for the ratable benefit of the Banks, in one or more
transactions, on or prior to November 1, 2001, of payments
of principal aggregating: (A) Four Million Dollars
($4,000,000) by Federal Reserve Bank wire-transfer or in
cash, or (B) the sum of: (1) Three Million Dollars
($3,000,000) by Federal Reserve Bank wire-transfer or in
cash, and (2) warrants, stock options or other equity
securities of the Borrower, in any case acceptable in form
and substance to Banks, having a value, as determined in
good faith by Banks, of not less than One Million Dollars
($1,000,000), the Obligations shall be deemed satisfied in
full (with any unpaid balances of the Notes being forgiven
and discharged) and Banks shall deliver to Borrower the
Notes marked "Canceled".
(vi) Notwithstanding any provision of this Agreement or the
Notes to the contrary, if the aggregate sum of all principal
payments made by the Borrower, in one or more transactions,
to the Agent for the ratable benefit of the Banks on or
before November 1, 2001 is less than the amounts set forth
in Section 2.6(d)(v)(A) or (B) above, then, as received: (A)
Banks shall credit Four Dollars ($4.00) of Obligations as
paid for each One Dollar ($1.00) of principal actually paid
by Borrower to the Agent on or before November 1, 2001
(constituting a
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forgiveness of indebtedness of Three Dollars ($3.00) for
each One Dollar ($1.00) of principal received); and (B)
Banks shall credit Three Dollars ($3.00) of Obligations as
paid for each One Dollar ($1.00) of principal actually paid
during the period from November 2, 2001 through January 31,
2002 (constituting a forgiveness of indebtedness of Two
Dollars ($2.00) for every One Dollar ($1.00) received). Any
principal payments received by the Agent for the ratable
benefit of the Banks after January 31, 2002, shall be
credited Dollar for Dollar and no forgiveness of
indebtedness or additional payment credits shall be granted.
The provisions of Section 2.6(d)(v) and this Section
2.6(d)(vi) shall not be construed to apply to any of
Borrower's or Guarantors' lease obligations to Banc One
Leasing Corporation or The Fifth Third Bank, formerly known
as The Fifth Third Bank of Central Indiana.
(k) Article IX of the Credit Agreement is hereby amended in its
entirety to read as follows:
ARTICLE IX
ADDITIONAL PROVISIONS
9.1 Controlling Effect. In the event of any conflict between a
provision of Article IX and any other provision of this Agreement,
the provisions of Article IX shall control.
9.2 Interest Payments. The principal balance of the Revolving
Loans and the Interest Bearing Term Loan outstanding from time to
time shall bear interest and be payable at a variable rate of
interest equal to the Prime Rate plus the Applicable Margin.
Interest shall be due and payable monthly in arrears on the first
day of each month.
9.3 Revolving Loan Advances During Interim Period. From and
after the effective date of the Tenth Amendment, Banks shall make no
further Advances under the Revolving Loans.
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9.4 Rolling Cash Flow Projections. Within ten (10) Business
Days of the end of each calendar month, Borrower shall provide to
Agent, with a copy for each Bank, a prospective sixteen (16) week cash
flow projection in form and detail acceptable to Banks for the sixteen
(16) week period commencing with the first week of the month in which
such cash flow projection is required to be delivered to Agent
("Rolling Cash Flow Projection").
9.5 Agent's Fee. Notwithstanding the letter agreement by and
between Borrower and Agent dated October 8, 1998, Borrower shall pay to
Agent an annual fee equal to twelve and one-half (12.5) basis points
(the "Agent's Fee") on the total principal sum of: (i) the Term Loan,
and (ii) the Revolving Loan Commitments, if any, each as at October
15th of each year.
9.6 Financial Information and Reporting. In addition to all
other financial statements and reports required by the terms of this
Agreement for so long as any portion of the Revolving Loans remains
unpaid Borrower shall: (a) for so long as the Revolving Loans remain
unpaid, provide Agent with a Borrowing Base Certificate setting forth
each component of the Borrowing Base and an accounts receivable aging
report ("A/R Aging"), each as of Friday of each week, such Borrowing
Base Certificate to be received by Banks not later than Wednesday of
the following week; (b) deliver to Agent such invoices, contracts and
other documentation supporting Borrower's computation of the Borrowing
Base, as Agent may reasonably request; (c) monthly, by the twenty-fifth
day of the following month, a consolidated unaudited balance sheet and
income statement prepared in accordance with GAAP, a Borrowing Base
Certificate setting forth each component of the Borrowing Base as of
the last day of such month (but only if weekly Borrowing Base
Certificates are not being provided), an A/R Aging and a contract
status report ("Status Report"). Furthermore, in addition to all other
financial statements and reports required by the terms of this
Agreement for so long as any portion of the Revolving Loans and/or the
Interest Bearing Term Loan and/or the Leases remains unpaid Borrower
shall: (a) effective for the week ending June 6, 2001, initiate and
conduct a telephone conference with a representative of Borrower, Agent
and, at the option of each of the Banks, Banks, as requested by Agent;
(b) on Wednesday of each week, beginning June 6, 2001, a cash flow
report for the preceding calendar week comparing actual cash flow
results to Borrower's then current Rolling Cash Flow Projection; and
(c) monthly, by the twenty-fifth day of the following month, a
consolidated unaudited balance sheet
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and income statement prepared in accordance with GAAP, an A/R Aging and
a Status Report.
9.7 Independent Consultant. During the Interim Period,
Borrower shall continue to employ a financial management consulting
firm ("Financial Management Consultant") acceptable to Banks.
Borrower's current Financial Management Consultant, Xxxxxxxx &
Associates, Inc., is acceptable to the Banks.
9.8 Renewal Fee. Effective May 31, 2001, Borrower shall pay to
Banks on the first day of each month a fee ("Monthly Renewal Fee")
equal to one-twelfth of fifty (50) basis points on the total principal
sum of the Interest Bearing Term Loan and the Revolving Loans. The
Monthly Renewal Fee effective June 1, 2001 shall be Six Thousand
Ninety-Seven Dollars ($6,097) and shall be adjusted upon payment in
full of the Revolving Loans and any principal reductions of the
Interest Bearing Term Loan.
9.9 Investment Advisor. Borrower has engaged Xxxxx Xxxxxx as
Borrower's investment advisor ("Investment Advisor"). Subject to the
confidentiality agreement executed by the Agent and the Banks, as
required by the Investment Advisor and Borrower of other recipients,
Borrower shall deliver to Agent, with a copy for each of the Banks, any
amended offering circular, book or other presentation material intended
for dissemination to prospective strategic partners, investors or
purchasers of Borrower's businesses, capital stock, other equity
securities or assets and, thereafter, shall within three (3) business
days of receipt thereof by Borrower, deliver to Agent, with a copy for
each of the Banks, any supplemental materials intended for
dissemination to such prospective strategic partners, investors or
purchasers.
9.10 Delivery of Contracts. Upon request of Agent from time to
time, Borrower shall within three (3) Business Days of such request
deliver to Agent copies of Borrower's and Guarantors' contracts with
their respective customers not previously delivered to Agent.
9.11 No Additional Debt. Without the prior written consent of
Banks, Borrower and Guarantors shall not create, incur or suffer to
exist, or permit any Guarantor to create, incur or suffer to exist, any
Debt or capital or operating leases except, (i) Debt
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hereunder; (ii) intercompany Debt and deferred rents and fees for
services;(iii) Debt or capital or operating leases incurred prior to
the date of the Sixth Amendment and permitted at the time incurred
under the terms of Section 5.2(d) of this Agreement; and (iv) Debt
incurred pursuant to indemnifications extended to Xxxxxxx Colorado, LLC
in connection with or pursuant to the Xxxxxxx Sale Agreement; and (v)
unsecured Debt for borrowed money fully subordinated to the Obligations
(and without any right to be paid principal or interest so long as any
portion of the Obligations remain unpaid) or Debt fully subordinated to
the Obligations (and without any right to be paid principal or interest
so long as any portion of the Obligations remain unpaid) secured by
liens subordinated unconditionally to the security interests in favor
of the Agent and/or the Banks (provided that the net proceeds of all
such Debt are paid to the Agent for the ratable benefit of the Banks to
be applied against the Obligations). Any such payment made pursuant to
this Section 9.11 shall be a principal payment for purposes of Sections
2.6(d)(v) and (vi).
9.12 Contract Review. The Borrower has retained a consultant
to review the Borrower's and Guarantors' contracts at Borrower's
expense. Borrower was to have delivered to Agent and each Bank a copy
of the written report of such consultant, properly acknowledged as such
consultant's work-product. Borrower has requested that the Banks waive
the requirement that the report be acknowledged by such consultant.
Banks agree to waive permanently this requirement if the Loans are paid
in full, taking into account the provisions of Section 2.6(d)(v) of
this Agreement, on or prior to January 31, 2002. In the event that the
Loans are not paid in full by January 31, 2002, Banks may require
Borrower to deliver the written report of this consultant, properly
acknowledged as such consultant's work-product.
9.13 Capital Expenditures. For the period from April 1, 2001
through September 30, 2001, Capital Expenditures shall not exceed the
amounts projected as capital expenditures in Borrower's financial
projections for Fiscal Year 2001 dated April, 2001 (as previously
delivered to Banks) and for the period from October 1, 2001, through
January 31, 2002, Capital Expenditures shall not exceed the sum of
$200,000.
9.14 Additional Information. Borrower shall: (i) make
available for consultation with Agent, in the presence of one or more
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representatives of Borrower, Borrower's Financial Management Consultant
and Investment Advisor in connection with such matters as may affect
the Collateral, Borrower's financial condition or the repayment of the
Obligations and such other matters as Agent may reasonably request;
(ii) provide periodic status reports received from Borrower's Financial
Management Consultant and/or Investment Advisor; and (iii) promptly
deliver to Agent any letter of intent, written expression of interest
or offer received by Borrower or Borrower's Financial Management
Consultant or Investment Advisor in connection with Borrower's efforts
to achieve a strategic alliance, merger or sale of all or a portion of
Borrower's businesses, capital stock, other equity securities or
assets, to the extent that such letter, expression or offer is not
subject to a confidentiality agreement or non-disclosure provision.
9.15 Cash Collateral Account. So long as any portion of the
Revolving Loans remain unpaid, Borrower shall maintain with Agent a
cash collateral account, over which Agent alone shall have the power of
withdrawal. So long as no Event of Default shall have occurred, all
funds deposited in the cash collateral account shall be released to
Borrower's general operating account promptly after Agent has received
irrevocable credit with respect thereto.
9.16 Proceeds of Commonwealth Edison Receivable. Borrower
claims to be owed in excess of Two Million Seven Hundred Thousand
Dollars ($2,700,000) by Commonwealth Edison (the "Com Ed Claim"), which
is disputed by Commonwealth Edison. In the event of any payment of the
Com Ed Claim prior to payment in full of the Revolving Loans, Borrower
shall pay to Agent for application against the Revolving Loans and as a
permanent reduction of the Revolving Loans Commitment fifty percent
(50%) of the amount of such payment (net of legal fees and litigation
costs related to collection thereof) after the sum of all payments
received exceeds One Million Dollars ($1,000,000). Any payment made
pursuant to this Section 9.16 shall be counted toward the Minimum
Required Paydown, if not otherwise fully paid, and shall be a principal
payment for purposes of Section 2.6(d)(v) and 2.6(d)(vi).
9.17 Additional Events of Default. In addition to the Events
of Default set forth in Section 6.1 hereof and notwithstanding any
provision of this Agreement to the contrary, each of the following
events shall constitute an Event of Default hereunder:
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(a) Failure to Timely Deliver Financial and Other Information.
Borrower fails to timely deliver: (i) any contracts required by Section
9.10; (ii) a Rolling Cash Flow Projection; (iii) any Borrowing Base
Certificate, A/R Aging, Revenue Report or Status Report; or (iv) any other
information required to be delivered to Agent or Banks pursuant to the
terms of this Agreement.
(b) Failure to Pay Monthly Renewal Fee. Borrower fails to timely
pay any Monthly Renewal Fee.
(c) Total Amount of Loans. The aggregate principal balance of the
Loans at any one time outstanding exceeds the sum of: (i) the Borrowing
Base; plus (ii) Borrower's consolidated unbilled revenues as at the end of
the fiscal month most recently closed; plus (iii) Borrower's consolidated
cash.
(d) Cash Receipts Shortfall. Borrower's actual cumulative
consolidated cash receipts for period beginning June, 2001, and measured
at the close of each fiscal month, beginning July 30, 2001, are less than
eighty-five percent (85.0%) of the amount of the anticipated cumulative
consolidated cash receipts at such month-end, as set forth in Borrower's
projections dated June 22, 2001 (the "June 2001 Projections").
(e) Cash Expenditures. Borrower's actual cumulative cash
expenditures for months ending June 30, 2000 and thereafter (excluding
payments to the Agent and/or the Banks for application against the
Obligations or the Master Lease) exceed Borrower's projected cash
receipts, on a cumulative basis for the same period.
(l) Amendments to Interest Bearing Term Notes. The Interest Bearing Notes
shall be amended as follows: (i) the Interest Bearing Term Note in favor of each
of the Banks is hereby amended by deleting the phrase in the upper right-hand
corner of each such Interest Bearing Term Note which reads "As of April 1, 2001"
and inserting in lieu thereof the phrase "As of May 31, 2001"; (ii) the Interest
Bearing Term Note in favor of Bank One, Colorado, N.A. shall be further amended
by: (A) deleting the sum "$2,657,271.80" in the upper left-hand corner of such
Note and inserting in lieu thereof the sum "$1,810,529.16"; and (B) deleting the
phrase
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"TWO MILLION SIX HUNDRED FIFTY-SEVEN THOUSAND TWO HUNDRED SEVENTY-ONE
DOLLARS AND 80/100 CENTS ($2,657,271.80)" in the first paragraph of such
Note and inserting in lieu thereof the phrase "ONE MILLION EIGHT HUNDRED
TEN THOUSAND FIVE HUNDRED TWENTY-NINE DOLLARS AND 16/100 CENTS
($1,810,529.16)"; (iii) the Interest Bearing Term Note in favor of The
Fifth Third Bank of Central Indiana shall be further amended by: (A)
deleting the sum "$2,437,864.10" in the upper left-hand corner of such
Note and inserting in lieu thereof the sum "$1,661,035.94"; and (B)
deleting the phrase "TWO MILLION FOUR HUNDRED THIRTY-SEVEN THOUSAND EIGHT
HUNDRED SIXTY-FOUR AND 10 CENTS ($2,437,864.10)" in the first paragraph of
such Note and inserting in lieu thereof the phrase "ONE MILLION SIX
HUNDRED SIXTY-ONE THOUSAND THIRTY-FIVE DOLLARS AND 94/100 CENTS
($1,661,035.94)"; (iv) the Interest Bearing Term Note in favor of KeyBank
National Association shall be further amended by: (A) deleting the sum
"$1,218,932.05" in the upper left-hand corner of such Note and inserting
in lieu thereof the sum "$830,517.95"; and (B) deleting the phrase "ONE
MILLION TWO HUNDRED EIGHTEEN THOUSAND NINE HUNDRED THIRTY-TWO DOLLARS AND
05/100 CENTS ($1,218,932.05)" in the first paragraph of such Note and
inserting in lieu thereof the phrase "EIGHT HUNDRED THIRTY THOUSAND FIVE
HUNDRED SEVENTEEN DOLLARS AND 95/100 CENTS ($830,517.95)"; and (v) (iv)
the Interest Bearing Term Note in favor of National City Bank of Indiana
shall be further amended by: (A) deleting the sum "$1,218,932.05" in the
upper left-hand corner of such Note and inserting in lieu thereof the sum
"$830,517.95"; and (B) deleting the phrase "ONE MILLION TWO HUNDRED
EIGHTEEN THOUSAND NINE HUNDRED THIRTY-TWO DOLLARS AND 05/100 CENTS
($1,218,932.05)" in the first paragraph of such Note and inserting in lieu
thereof the phrase "EIGHT HUNDRED THIRTY THOUSAND FIVE HUNDRED SEVENTEEN
DOLLARS AND 95/100 CENTS ($830,517.95)".
4. Conditions Precedent. This Amendment shall be effective when Borrower,
each Guarantor, Agent, each Bank and Banc One Leasing have executed this
Amendment and Agent has received a counterpart originally executed by each of
the foregoing and Borrower has executed and delivered to Agent for delivery to
each Bank such Bank's Revolving Note in the form of Exhibit A-1, attached
hereto.
5. Substitution of Exhibits. Exhibit A-1 hereto shall be attached to the
Credit Agreement and substituted for the existing Exhibit A-1 to the Credit
Agreement.
6. Post-Closing Items. On or before July 31, 2001, Borrower and each
Guarantor shall have delivered to Agent: (i) resolutions of its board of
directors authorizing the execution and delivery of this Amendment and the
performance of the obligations of Borrower and each Guarantor hereunder; and
(ii) a certificate of its secretary stating the
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names of those officers of Borrower and each Guarantor authorized to execute
this Amendment, each containing a specimen signature of each such officer.
Notwithstanding any provision of this Amendment or the Credit Agreement, as
hereby amended, to the contrary, the failure of Borrower or any Guarantor to
timely deliver the foregoing shall constitute an Event of Default.
7. RELEASE OF BANKS, AGENT AND BANC ONE LEASING. BORROWER AND GUARANTORS
HEREBY FOREVER RELEASE AND DISCHARGE BANKS, AGENT AND BANC ONE LEASING, FROM,
AND HEREBY FOREVER RELINQUISH AND WAIVE, ANY AND ALL DEBTS, DEMANDS, CLAIMS,
LIABILITY, SUITS, PROCEEDINGS, EXPENSES, ACTIONS AND CAUSES OF ACTION
WHATSOEVER, OF EVERY KIND, NAME AND NATURE, KNOWN AND UNKNOWN, WHETHER OR NOT
FOUNDED IN FACT OR IN LAW, AND WHETHER IN LAW OR IN EQUITY OR OTHERWISE,
HERETOFORE OR NOW EXISTING OR HEREAFTER ARISING IN ANY MANNER WHATSOEVER ARISING
FROM, IN CONNECTION WITH OR WITH RESPECT TO FACTS ARISING BEFORE OR IN EXISTENCE
AS OF THE DATE OF EXECUTION OF THIS AMENDMENT, INCLUDING, WITHOUT LIMITATION,
ANY LOAN TO BORROWER, ANY REQUEST FOR WAIVER OF ANY COVENANT OR CONDITION OF THE
CREDIT AGREEMENT, ANY GUARANTY OR GUARANTEE OF GUARANTORS, ANY COLLATERAL
GRANTED TO BANKS OR AGENT TO SECURE ANY OBLIGATION OF ANY OF BORROWER OR
GUARANTORS TO BANKS OR AGENT, ANY NEGOTIATIONS BETWEEN BANKS OR AGENT AND THE
BORROWER OR ANY GUARANTOR WITH RESPECT TO ANY OF THE FOREGOING, THE MASTER
LEASE, THE LEASES, ANY FAILURE TO FUND ANY LEASE, ANY NEGOTIATIONS BETWEEN BANC
ONE LEASING AND THE BORROWER OR ANY GUARANTOR OR ANY OTHER MATTER INVOLVING
BORROWER, GUARANTORS OR ANY OF THEM, AND ANY OTHER ACT, ACTION, DECISION,
INACTION, REFUSAL TO ACT, FORBEARANCE OR OMISSION OF BANKS, AGENT, BANC ONE
LEASING OR ANY OFFICER, DIRECTOR, EMPLOYEE, ATTORNEY OR OTHER AGENT OF BANKS,
AGENT OR BANC ONE LEASING OR ANY OTHER MEMBER OF THE BANK/AGENT GROUP. WITHOUT
IN ANY MANNER LIMITING THE SCOPE OF THE RELEASE CONTAINED IN THIS SECTION 7,
BORROWER AND GUARANTORS EXPRESSLY AGREE THAT THEY HAVE CONSULTED, OR HAD ANY
OPPORTUNITY TO CONSULT, WITH LEGAL COUNSEL WITH RESPECT TO THE RELEASE CONTAINED
IN THIS AMENDMENT, THEY UNDERSTAND THAT THIS AMENDMENT CONTAINS A RELEASE OF THE
BROADEST POSSIBLE NATURE AND RESULTS IN THE RELEASE OF THOSE CLAIMS KNOWN TO THE
PARTIES AND THOSE CLAIMS WHICH ARE NOT KNOWN TO THE PARTIES AND, FURTHERMORE,
THAT THE RELEASE HEREBY GIVEN IS GIVEN IN EACH AND EVERY CAPACITY WHICH THE
PARTY HOLDS AND RELEASES NOT ONLY THOSE CLAIMS WHICH THE PARTY MIGHT HAVE
BROUGHT DIRECTLY PRIOR TO THE EXECUTION OF THIS AMENDMENT BUT ALSO THOSE CLAIMS
WHICH MAY HAVE BEEN BROUGHT INDIRECTLY OR DERIVATIVELY BY BORROWER OR
GUARANTORS.
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BORROWER AND EACH OF THE GUARANTORS SHALL BE DEEMED TO HAVE RELEASED,
RELINQUISHED, WAIVED AND DISCHARGED EACH AND EVERY CLAIM ANY OF THEM MAY HAVE
WHETHER NOW EXISTING OR HEREAFTER ARISING TO THE FULLEST EXTENT POSSIBLE AS
HEREINBEFORE PROVIDED. BORROWER AND GUARANTORS ACKNOWLEDGE THAT THE PROVISIONS
OF THIS SECTION 7 ARE A MATERIAL INDUCEMENT FOR THE BANKS AND AGENT TO ENTER
INTO THIS AMENDMENT. For the purposes of this Section 7, Banks and Agent shall
mean Bank One, Colorado, N.A., Bank One, Indiana, N.A., KeyBank National
Association, National City Bank of Indiana, National City Bank, Indiana, The
Fifth Third Bank of Central Indiana and their predecessors-in-interest, the
parent company of any of them, all other affiliates of Banks and Agent and all
subsidiaries, direct or indirect, of Banks, Agent and any other member of the
Bank/Agent Group (as hereinafter defined). For the purposes of this Section 7,
Banc One Leasing shall mean Banc One Leasing Corporation, any
predecessor-in-interest, its parent company and all other affiliates of Banc One
Leasing Corporation and all subsidiaries, direct or indirect, of Bank One
Leasing Corporation and any other member of the Bank/Agent Group. For the
purposes of this Section 7, Bank/Agent Group shall mean Banks, Agent, Banc One
Leasing, the parent company of any of them, all other affiliates of any of them
and all subsidiaries, direct or indirect, of Banks, Agent, Banc One Leasing and
any other member of the Bank/Agent Group and all officers, directors, employees,
attorneys and other agents of Banks, Agent, Banc One Leasing and all other
members of the Bank/Agent Group.
8. Further Agreements/No Course of Dealing Established. Borrower and
Guarantors, jointly and severally, hereby acknowledge and agree that:
(a) Except as expressly set forth herein, this Amendment does not
constitute, and no agreement, compromise or settlement of any kind has been
reached between Banc One Leasing, Banks and Borrower or any Guarantor
regarding, a reinstatement, restructuring or modification of the
Obligations, any obligation of Borrower or any Guarantor under or with
respect to the Master Lease and the Leases or any portion thereof or of any
of the Loan Instruments, the Master Lease or any of the Leases and no such
agreement shall exist or be deemed to exist unless and until all parties
thereto execute and deliver complete documentation setting forth the terms
of any such reinstatement, restructuring or modification;
(b) Banc One Leasing and Banks are not obligated to reach any further
agreement concerning the reinstatement, restructure or modification of the
Obligations, any obligation under or with respect to the Master Lease and
the Leases or any of the Loan Instruments, the Master Lease or any of the
Leases; and
(c) Neither this Amendment, nor any action taken or forbearance by Banc
One Leasing and the Banks pursuant to this Amendment, shall impair,
19
prejudice, or in any other manner affect the rights of Banc One Leasing,
Agent or Banks in and to any of the Collateral or any property leased from
Banc One Leasing by Borrower or any Guarantor (including, without
limitation, any proceeds thereof) or establish or be deemed to establish
any precedent or course of dealing with respect to any of the Obligations,
any obligations under the Master Lease and the Leases or any Collateral or
leased property.
9. Consent of Guarantor. Each of the Guarantors hereby expressly consents
to the execution and delivery of this Amendment by each of the parties to this
Amendment, including Banks and Banc One Leasing, and to the performance by
Borrower, Guarantors, Agent, Banks and Banc One Leasing pursuant to this
Amendment and agrees that neither the provisions of this Amendment nor any
action taken or not taken in accordance with the terms of this Amendment shall
constitute a termination, extinguishment, release or discharge of any of the
Obligations or the liability of the Borrower with respect thereto or the
obligations of any Guarantor or provide a defense, setoff or counterclaim to the
Borrower or any Guarantor with respect to any of the Obligations under the
Credit Agreement, any Guaranty in favor of Agents or Banks, as applicable, or
any Lease now existing or hereafter arising.
10. Survival/No Third Party Beneficiaries. All of the acknowledgments,
representations, warranties, covenants and agreements of the Borrower and each
of the Guarantors shall survive and continue in full force and effect from and
after the closing of this Amendment. There are no third party beneficiaries of
or to this Amendment.
11. No Joint Venture. Borrower and Guarantors acknowledge that the
relationship between Borrower and Guarantors, on the one hand, and Agent, Banks
and Banc One Leasing, on the other, is strictly that of "debtor/creditor", and
that this Amendment shall not be construed as creating a partnership, joint
venture or co-venture between them. Borrower and Guarantors acknowledge and
agree that neither Agent, any of the Banks nor Banc One Leasing is a fiduciary
with respect to them, or the creditors or equity security holders of Borrower or
Guarantors.
12. Counterparts. This Amendment may be executed in several counterparts
and by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one
instrument.
13. Entire Agreement. This Amendment embodies the entire agreement and
understanding between Borrower, Guarantors, Agent, Banks and Banc One Leasing
with respect to the subject matter hereof, and supersedes all prior agreements
and understandings relating to its subject matter. This Amendment may not be
amended or in any manner modified unless such amendment or modification is in
writing and signed by all of the parties hereto.
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14. Ratification. Borrower and each Guarantor hereby ratify and confirm its
respective Obligations under the Credit Agreement and the other Loan
Instruments, as amended hereby, and the liens and security interests created
thereby, and acknowledges that it has no defenses, claims or setoffs to the
enforcement by Agent or Banks of Borrower's and/or Guarantors' Obligations under
the Credit Agreement and the other Loan Instruments, as amended hereby.
15. Continued Effectiveness. The Credit Agreement and the Loan Instruments
shall be amended only to the extent provided herein and shall remain in full
force and effect in accordance with their respective terms, as hereby amended.
16. Expenses. Borrower agrees to pay or reimburse on demand all reasonable
costs and expenses of the Agent, including, without limitation, legal fees,
incurred in connection with the preparation, execution, delivery, interpretation
or enforcement of this Amendment and the other agreements, documents and
instruments provided for herein and/or the interpretation or enforcement of the
Credit Agreement or any of the other Loan Instruments and/or any rights and/or
remedies of Agent and/or Banks under the Credit Agreement, this Amendment or any
of the other Loan Instruments.
17. Applicable Law. This Amendment shall be governed by and construed in
accordance with the substantive law of the State of Indiana notwithstanding the
fact that the conflict of law provisions of Indiana law may require the
application of the substantive law of another jurisdiction.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
by their respective duly authorized signatories effective as of the date first
set forth above.
ANALYTICAL SURVEYS, INC., as Borrower
By:
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Xxxxxxx X. Xxxxxxxxx, Chief Financial Officer
