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EXHIBIT 10.46
LENDER ADDITION AND ACKNOWLEDGEMENT AGREEMENT
Dated July 21, 1997
Reference is made to the Amended and Restated Loan Agreement dated as
of February 21, 1997 (as amended or supplemented from time to time, the "Loan
Agreement") by and among LASON SYSTEMS, INC., a corporation organized under the
laws of Delaware (the "Borrower"), the Lenders who are or may become party
thereto (collectively, the "Lenders) and First Union National Bank (f/k/a First
Union National Bank of North Carolina) ("First Union"), as Agent for the
Lenders (the "Agent") and as Issuing Bank. Capitalized terms which are defined
in the Loan Agreement and which are used herein without definition shall have
the same meanings herein as in the Loan Agreement.
The Borrower and First Union, Comerica Bank, NDB Bank (each a "Current
Lender" and collectively the "Current Lenders") agree as follows:
1. Subject to section 2.8 of the Loan Agreement and this Lender
Addition and Acknowledgement Agreement, the Borrower hereby increases the Total
Revolving Credit Commitment from $40,000,000 to $60,000,000 (such increased
amount not to exceed $60,000,000). This Lender Addition and Acknowledgement
Agreement is entered into pursuant to, and authorized by, Section 2.8(a)(v) of
the Loan Agreement.
2. The parties hereto acknowledge and agree that, as of the date
hereof, (a) the percentage of the Total Revolving Credit Commitment under the
Loan Agreement (without giving effect to increases in the Aggregate Commitment
which have not yet become effective) of each Lender, (b) the commitment under
the Loan Agreement (without giving effect to increases in the Aggregate
Commitment which have not yet become effective) of each Lender, and (c) the
outstanding balances of the Loans under the Loan Agreement (without giving
effect to increases in the Aggregate Commitment which have not yet become
effective) made by each Lender, are each set forth on Schedule A-1 hereto.
3. The parties hereto acknowledge and agree that, as of the Effective
Date (as defined below), (a) the percentage of the Total Revolving Credit
Commitment under the Loan Agreement of each Lender, (b) the Commitment under
the Loan Agreement of each Lender, and (c) the outstanding balances of the
Loans under the Loan Agreement made by each Lender are each set forth on
Schedule A-2 hereto.
4. Attached hereto is a revised Annex 1 to the Loan Agreement, revised
to reflect the Commitment of each Lender as of the Effective Date of this
Lender Addition and Acknowledgement Agreement.
5. The Borrower acknowledges that it shall ensure that all filings and
recordations that are necessary to perfect the security interests of the
Lenders in the Collateral shall have been filed or recorded in all appropriate
locations and it shall deliver to the Agent evidence satisfactory to the Agent
that such security interests constitute valid and perfected first priority
Liens therein (including evidence
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satisfactory that the amount of indebtedness secured reflects the increase in
the Total Revolving Credit Commitment and that all necessary tax or other
indebtedness has been paid).
6. Each Current Lender attaches the Note delivered to it under the Loan
Agreement and requests that the Borrower exchange such Note for a new Note
payable to the current Lender as follows:
Revolving Credit Note
Payable to the Order of Principal Amount of Note:
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First Union National Bank $22,500,000
Comerica Bank $18,750,000
NBD Bank $18,750,000
7. Each Lender (i) represents and warrants that it is legally
authorized to enter into this Lender Addition and Acknowledgement Agreement;
(ii) confirms that it has received a copy of the Loan Agreement, together with
copies of the most recent financial statements delivered pursuant to Section
6.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Lender Addition and Acknowledgement Agreement; (iii) agrees that it will,
independently and without reliance upon any other Lender or Agent and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Agreement; (iv) confirms that it meets the criteria set forth in the
definition of Eligible Assignee; (v) appoints and authorizes Agent to take such
action as agent on its behalf and to exercise such powers under the Loan
Agreement and the other Loan Documents as are delegated to such Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
(vi) agrees that it will perform in accordance with their terms all the
obligations which by the terms of the Loan Agreement and the other Loan
Documents are required to be performed by it as a Lender; and (vii) agrees that
it will keep confidential all the information with respect to the Borrower
furnished to it by the Borrower (other than information required or requested
to be disclosed by it pursuant to regulatory requirements or legal process;
information requested by and disclosed to its auditors, accountants and
attorneys, provided that each Lender shall use its best efforts to have such
Persons enter into a confidentiality agreement with respect to such
information; and information generally available to the public or otherwise
available to the Lender on a nonconfidential basis).
8. The effective date for this Lender Addition and Acknowledgement
Agreement shall be (the "Effective Date"). Following the execution of this
Lender Addition and Acknowledgement Agreement, it will be delivered to the
Agent for the consent of the Agent and acceptance and recording in the
Register.
9. Upon such consents, acceptance and recording, from and after
the Effective Date, each Current Lender shall be a party to the Loan Agreement
and the other Loan Documents to which Lenders are parties and to the extent
provided in this Lender Addition and Acknowledgement Agreement, have the rights
and obligations of a Lender under each such agreement.
10. Upon such consents, acceptance and recording, from and after
the Effective Date, the Agent shall make all payments in respect of the
interest assigned hereby (including payments of principal, interest, fees and
other amounts) to the Current Lenders.
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11. The representations and warranties of the Borrower under the
Loan Agreement and the other Loan Documents are true and correct in all
material respects as of the date hereof, both before and after giving effect to
the Loan requested herein.
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12. THIS LENDER ADDITION AND ACKNOWLEDGEMENT AGREEMENT SHALL BE
DEEMED TO BE A CONTRACT UNDER SEAL AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES.
LASON SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: President and Chief Executive Officer
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FIRST UNION NATIONAL BANK
Commitment $22,500,000
Percentage of Total Revolving Credit
Commitment 37.50%
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
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Title: Vice President
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NBD BANK
Commitment $18,750,000
Percentage of Total Revolving Credit
Commitment 31.25%
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Senior Vice President
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COMERICA BANK
Commitment $18,750,000
Percentage of Total Revolving Credit
Commitment 31.25%
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Vice President
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Acknowledged and Consented to:
FIRST UNION NATIONAL BANK, as Agent
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
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Title: Vice President
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