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EXHIBIT 10.20
WAIVER AGREEMENT AND AMENDMENT NO. 6 TO
CREDIT AGREEMENT AND OTHER LOAN AND LEASE DOCUMENTS
THIS WAIVER AGREEMENT AND AMENDMENT NO. 6 TO CREDIT AGREEMENT AND OTHER
LOAN AND LEASE DOCUMENTS ("this Amendment") is dated as of May 30, 2000, by and
between 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 (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 and a letter agreement dated October 15, 1999 pursuant to which
Banc One Leasing committed to extend a lease line of credit in the amount of
Five Million Dollars ($5,000,000) (the "Lease Commitment" and the Master Lease
together with all leases and lease schedules executed and delivered by Borrower
to Banc One Leasing under the Master Lease and the Lease Commitment 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);
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
Loan") and (ii) term loans (collectively, the "Term Loan") as follows:
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(a) Revolving Loans Commitment:
(i) National City $ 3,398,058.30
(ii) KeyBank $ 3,398,058.30
(iii) Fifth Third $ 6,796,116.60
(iv) Bank One $ 7,407,766.80
(b) Term Loan Principal Balances as of May 30, 2000:
(i) National City $ 2,661,812.33
(ii) KeyBank $ 2,661,812.33
(iii) Fifth Third $ 5,323,624.67
(iv) Bank One $ 5,802,750.67
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 Holdings, MSE LLC,
Landmark, and Puerto Rico each executed and delivered to Agent a Guaranty of the
Obligations;
WHEREAS, to secure each of their respective Guaranties and to further
secure the Obligations, MSE, MSE Holdings, 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 has not yet paid the quarterly principal installments due
April 5, 2000, on the Term Loan and has not yet paid to Agent $1,030,000 of the
tax refunds to be paid to Agent, as received, pursuant to Section 5.1(s) of the
Credit Agreement;
WHEREAS, Banks are not currently obligated to make any Advances under the
Credit Agreement; and
WHEREAS, Borrower and Guarantors desire that Banks extend the payment date
of certain of the Obligations, waive all identified existing Events of Default
and Defaults, and modify certain terms of the Credit Agreement;
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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 jointly and severally 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 paid the quarterly installments of the
Term Loan payable on April 5, 2000, and $1,030,000 of the Tax Refund, and
that each such failure, until waived by the Banks, constitutes an Event of
Default under the Credit Agreement (all such failures being collectively
called the "Monetary Defaults"). Borrower and Guarantors further
acknowledge that Borrower, as of the date of this Amendment, is not in
compliance with the financial covenants set forth in Sections 5.2(a)(i) and
5.2(a)(ii) of the Credit Agreement, and that each such non-compliance,
until waived by the Banks, constitutes an Event of Default under the Credit
Agreement (all such non-compliance being collectively referred to as the
"Financial Covenant Defaults").
(b) Extension of Payment Dates. Banks hereby agree that the installments
of principal due and payable on April 5, 2000 and July 5, 2000, with
respect to the Term Loan, each in the amount of One Million Two Hundred
Twenty-Five Thousand Dollars ($1,225,000.00), and Borrower's obligation to
pay the Tax Refund (to the extent not previously paid or paid pursuant to
the terms hereof at the closing of this Amendment) are hereby extended to
July 31, 2000, at which time Borrower shall pay to Agent the balance of the
Tax Refund then remaining due (after reduction for the $300,000 payment
being made pursuant to Section 6(b) of this Amendment), plus the extended
quarterly installments on the Term Loan in the aggregate principal sum of
Two Million Four Hundred Fifty Thousand Dollars ($2,450,000.00). The Credit
Agreement is amended to conform to the terms of this Section 2(b).
(c) Waiver. Banks hereby waive the Financial Covenant Defaults and, to the
extent not waived by the extension of the payment dates pursuant to Section
2(b) above, the Monetary Defaults, all such waivers being effective through
July 31, 2000 (or such later date as may hereafter be agreed to in writing
by Banks). The Banks also hereby waive compliance by Borrower during the
Interim Period with Sections 5.2(a)(i) and (ii) of the Credit Agreement.
Banc One Leasing hereby waives, effective through July 31, 2000, any
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default or event of default by reason of the Financial Covenant Defaults
and the Monetary Defaults.
(d) Effect of Extension and Waiver. The extension and waivers granted
pursuant to Subsections (b) and (c), respectively, 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.
3. Amendments to Credit Agreement.
(a) The following new definitions are inserted in Section 1.2 of the
Credit Agreement such that all definitions therein are in alphabetical
order:
"Interim Period" means the period from the date of the Sixth Amendment
to and including July 31, 2000.
"Sixth Amendment" means the Waiver Agreement and Amendment No. 6 to
Credit Agreement and Other Loan Documents, dated as of May 30, 2000 by and
between Borrower, certain Subsidiaries or Affiliates of Borrower, Banc One
Leasing Corporation, Banks and Agent.
(b) A new Article IX is added to the Credit Agreement immediately
following Article XIII which reads as follows:
ARTICLE IX
PROVISIONS RELATING TO INTERIM PERIOD
9.1 Context. The purpose of Article IX is to provide Borrower with an
opportunity to analyze its operations in order to present a business plan
to Banks prior to the conclusion of the Interim Period.
9.2 Interest Payments. Notwithstanding any provision of this
Agreement to the contrary, during the Interim Period the principal balance
of the Revolving 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, and the principal balance of the Term Loan outstanding
from time to time shall bear interest at the LIBOR Rate plus the Applicable
Margin. Interest shall be due and payable in accordance with the terms of
this Agreement.
9.3 Borrowing Base. Notwithstanding any provision of this Agreement
to the contrary, during the Interim Period, the term "Borrowing Base" shall
mean a dollar amount equal to the sum of: (i) seventy-five percent (75%) of
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Eligible Accounts Receivable which are less than 90 days past the invoice
date; plus (ii) fifty percent (50%) of Eligible Retainage; plus (iii) fifty
percent (50%) of Eligible Accounts Receivable which are more than 90 days
past the invoice date but not more than 45 days after the date of
acceptance by Borrower's or any Guarantor's account debtors of the work
represented by such Accounts Receivable.
9.4 Eligible Accounts Receivable. Notwithstanding any provision of
this Agreement to the contrary, during the Interim Period, the term
"Eligible Accounts Receivable" shall be defined as follows:
"Eligible Account Receivable" means all Accounts Receivable of
the Borrower and the Guarantors which are subject to a first and prior
Lien in favor of the Agent on behalf of the Banks pursuant to the
Collateral Documents (reduced by the amount of any refund, rebate,
allowance, discount or other concession to the account debtor in
connection therewith) except for the following:
(a) Accounts Receivable with respect to which the account debtor
is an Affiliate of the Borrower or any Guarantor, or a director,
officer, employee or agent of the Borrower or any Guarantor;
(b) Accounts Receivable by reason of which the payment of the
account debtor may be conditional;
(c) Accounts Receivable which are subject to dispute,
counterclaim or setoff;
(d) Accounts Receivable from account debtors whose financial
condition or creditworthiness of such account debtor is unacceptable
under the credit policy of the Borrower, which credit policy shall be
consistent with prudent industry practice;
(e) Accounts Receivable which are more than 90 days past the
invoice date and more than 45 days after the date of acceptance by
Borrower's or any Guarantor's account debtors of the work represented
by such Accounts Receivable;
(f) Account Receivable owing from a single account debtor if
more than Twenty-five percent (25%) of its Accounts Receivable with
the Borrower and all Guarantors is more than 90 days past the invoice
date and more than 45 days after the date of acceptance by Borrower's
or any
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Guarantor's account debtors of the work represented by such Accounts
Receivable;
(g) Accounts Receivable from account debtors which do not
maintain their principal place of business in the United States,
unless they are supported by an irrevocable letter of credit from a
banking institution in the United States acceptable to the Agent in
its sole discretion;
(h) Accounts Receivable from an account debtor which has filed,
or which has had filed against it, and is pending, a petition in
bankruptcy or an application for relief under any provision of any
state or federal bankruptcy, insolvency or debtor-relief statute; or
which has had appointed, and continues to be appointed, a trustee,
custodian or receiver for the assets of such account debtor; or which
has made, and is pending, an assignment for the benefit of creditors
or has become, and remains, insolvent or has failed, and continues to
fail, generally to pay its debts (including its employee payroll) as
such debts become due; and
(i) Accounts Receivable which are not subject to a Lien in favor
of the Agent, or which are subject to a Lien in favor of a Person
other than the Agent, whether or not such Lien is junior to the Lien
of the Agent other than Liens imposed by any Governmental Authority
for taxes, assessments or charges not yet due or which are being
contested in good faith and with due diligence and with respect to
which adequate reserves, determined in the reasonable discretion of
the Agent, have been established and Liens which do not materially and
adversely affect the Banks' rights and interests in such Accounts
Receivable, the Collateral, or the collectibility of the Accounts
Receivable.
9.5 Eligible Retainage. Notwithstanding any provision of this
Agreement to the contrary, during the Interim Period the term "Eligible
Retainage" shall be defined as follows:
"Eligible Retainage" means that portion of Eligible Accounts
Receivable of the Borrower and the Guarantors payment of which is
withheld by an account debtor as security for Borrower's or such
Guarantor's performance pending completion of the contract giving rise
to said Eligible Account Receivable, which are subject to a first and
prior Lien in favor of the Agent on behalf of the Banks pursuant to
the Collateral Documents (reduced by the amount of any refund, rebate,
allowance, discount or other concession to the account debtor in
connection therewith).
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9.6 Revolving Loan Advances During Interim Period. Subject to the
Borrower's compliance with the terms of this Article IX, Banks shall
continue to make Advances under the Revolving Loan pursuant to the terms
and limitations of Article II of this Agreement (as if the Monetary
Defaults and Financial Covenants Defaults did not occur) and otherwise in
accordance with the terms of this Agreement, except that:
(i) During the Interim Period, Advances with respect to Capital
Expenditures shall not exceed Three Hundred seventy-five Thousand
Dollars ($375,000.00);
(ii) The Maximum Revolving Credit Amount shall not exceed Seven
Million Dollars ($7,000,000.00) until such time as the Section 9.12
Requirement is met, in which event, as provided in Section 9.12, the
Maximum Revolving Credit Amount shall automatically increase to
$7,500,000; and
(iii) Banks shall have no obligation to make any Advances if any Event
of Default or Default, other than those Events of Default and Default
waived in the Sixth Amendment, shall occur and remain unremedied.
9.7 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 on the total principal sum
of the Term Loan plus the Maximum Revolving Credit Amount as at October
15th of each year. On or before June 1, 2000, Borrower shall pay to Agent
the sum of Nine Thousand Nine Hundred Thirty-Seven and 50/100 Dollars
($9,937.50), which is the balance of the fee required hereby after
crediting Borrower for Twenty Thousand Dollars ($20,000.00) paid in
October, 1999. For the purposes of this Agreement, one hundred (100) basis
points equal one percent (1.0%).
9.8 Financial Information and Reporting. In addition to all other
financial statements and reports required by the terms of this Agreement
(with Banks agreeing during the Interim Period that Borrower is permitted
25 days within which to submit such financial statements and reports;
provided, however, Borrower is permitted until June 7, 2000 to submit such
financial statements and reports for the calendar month ending April 30,
2000), during the Interim Period Borrower shall: (a) provide Agent with a
Borrowing Base Certificate setting forth each component of the Borrowing
Base 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) effective for the week ending June 9, 2000,
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initiate and conduct a weekly telephone conference with a representative of
Borrower, Borrower's Financial Management Consultant (presently, Xxxxxxxx &
Associates, Inc.), Agent and, at the option of each of the Banks, Banks;
and (d) on Wednesday of each week, beginning July 5, 2000, a cash flow
report for the preceding calendar week comparing actual cash flow results
to Borrower's Cash Flow Projection.
9.10 Independent Consultant. On or before May 30, 2000, Borrower shall
have employed a financial management consulting firm acceptable to Banks.
Xxxxxxxx & Associates, Inc., if engaged, is acceptable to the Banks.
9.11 Principal Payment on Term Loan. Concurrently with execution of
the Sixth Amendment, Borrower shall pay to Agent the sum of Three Hundred
Thousand Dollars ($300,000.00), which payment shall be treated as a payment
of a portion of the Tax Refund payments and shall be applied to the Term
Loan in the inverse order of maturity.
9.12 Seek Financing for LIDAR System. Borrower shall immediately seek
funding from Banc One Leasing in an amount not less than Five Hundred
Thousand Dollars ($500,000.00) to pay a portion of the balance of the
purchase price with respect to the LIDAR system. Notwithstanding any
provision of this Agreement to the contrary, in the event Banc One Leasing
has not approved funding of the Five Hundred Thousand Dollar ($500,000.00)
discretionary lease line (the "Discretionary Lease Line") by June 3, 2000
(the "Section 9.12 Requirement"), the Maximum Revolving Credit Amount shall
increase on June 4, 2000, to Seven Million Five Hundred Thousand Dollars
($7,500,000.00) to permit Borrower to obtain Advances from the Banks in the
aggregate sum of $500,000 to fund payment of the balance of the purchase
price of the LIDAR system (with Borrower to pay the remainder of such
purchase price balance from cash or general Advances). In the event that on
or before June 3, 2000, Banc One Leasing has approved funding of the
Discretionary Lease Line, the Maximum Revolving Credit Amount shall
increase to Seven Million Five Hundred Thousand Dollars ($7,500,000.00) on
the date of receipt by Agent of Banc One Leasing's acknowledgment that it
has funded the Discretionary Lease Line and Borrower hereby directs that
upon receipt of such acknowledgment and increase in the Maximum Revolving
Credit Amount Agent disburse Five Hundred Thousand Dollars ($500,000.00) as
payment to Agent for the ratable benefit of Banks as a permanent principal
reduction of the Term Loan. Such payment by Borrower shall constitute a
payment of a portion of the unpaid Tax Refund payment due July 31, 2000.
9.13 Cash Flow Projections. On or before June 22, 2000 (or such later
date as may be agreed to in writing by the Agent), Borrower shall prepare
and
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deliver to Agent a thirteen (13) week cash flow forecast (the "Cash Flow
Projection").
9.14 Amendment to Pledge Agreement. The requirements of Section 5.1(u)
of this Agreement remain in effect. Accordingly, upon Borrower's receipt of
any capital stock certificates evidencing its stock ownership in Infotech
Enterprises Ltd., Borrower shall deliver such stock certificates and
appropriate blank stock powers to the Agent. On or before June 15, 2000,
Borrower shall: (i) deliver to Agent reasonable evidence of Borrower's
ownership interest in Infotech Enterprises Ltd.; and (ii) execute and
deliver to Agent an amendment of the Pledge Agreement to include the stock
or other ownership interest of Borrower in Infotech Enterprises Ltd. as
Collateral.
9.15 Business Plan. As soon as available but in any event no later
than July 10, 2000, the business plan of Borrower and Guarantors for the
balance of fiscal year 2000 and fiscal year 2001.
9.16 Delivery of Contracts. Within fifteen (15) days after written
request therefor, Borrower shall deliver to Agent copies of Borrower's and
Guarantors' contracts with their respective customers in connection with
those Accounts Receivable which equal at eighty percent (80%) of the dollar
amount of Borrower's Accounts Receivable outstanding as at April 30, 2000.
9.17 No Additional Debt. Except for any Debt incurred in an amount not
to exceed Five Hundred Thousand Dollars ($500,000.00) to pay the balance of
the purchase price of the LIDAR system, the terms of which Debt, if with
other than Banc One Leasing, must be approved in writing by Agent prior to
being incurred, Borrower and Guarantors shall not create, incur or suffer
to exist, or permit any Guarantor to create, incur or suffer to exist, any
Debt except, (i) Debt hereunder; and (ii) intercompany Debt; and (iii) Debt
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.
4. Lease Commitment. Borrower hereby requests, and Banc One Leasing, hereby
agrees, that Banc One Leasing reduce the remaining unfunded portion of the Lease
Commitment in the amount Four Million Six Hundred Ninety-Three Thousand Two
Hundred Fifteen and 67/100 Dollars ($4,693,215.67) to Five Hundred Thousand
Dollars ($500,000.00) and that the funding thereof be discretionary with Banc
One Leasing. Borrower acknowledges that Banc One Leasing does not have any
further obligations under the Lease Commitment nor any obligation to fund any
Lease. Borrower further acknowledges that in the event Banc One Leasing elects
not to fund the Five Hundred Thousand Dollar ($500,000.00) discretionary lease
line by June 3, 2000, such discretionary lease line is withdrawn. Banc One
Leasing shall give Agent written notice of any
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decision by Banc One Leasing to fund this discretionary lease line and of the
actual funding thereof.
5. Fee. On the effective date hereof, Borrower shall pay to Agent for the
ratable benefit of Banks a restructure and waiver fee in the amount of
Thirty-Five Thousand Six Hundred Dollars ($35, 600.00) for the period from April
15, 2000 through July 31, 2000 (the "Restructure Fee").
6. Conditions Precedent. This Amendment shall be effective when each of the
following have been satisfied:
(a) Agent has received the Restructure Fee required by Paragraph 5 of this
Amendment;
(b) Agent has received the Three Hundred Thousand Dollar ($300,000.00)
Term Loan payment required by Section 9.11 of the Credit Agreement, as
amended hereby;
(c) Borrower, each Guarantor, Agent, each Bank and Banc One Leasing has
executed this Amendment and Agent has received a counterpart originally
executed by each of the foregoing;
(d) Within five Banking Days after the date of this Amendment, Borrower
and each Guarantor has delivered to Agent 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.
Notwithstanding any provision of this Amendment or the Credit Agreement, as
hereby amended, to the contrary, the failure to deliver to Agent the
resolutions required by this Section 6(d) within five Banking Days shall
constitute an Event of Default; and
(e) Borrower and each Guarantor shall have delivered a certificate of its
secretary stating the names of those officers of Borrower and each
Guarantor authorized to execute this Amendment, each containing a specimen
signature of each such officer.
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
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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 LEASE COMMITMENT, 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. 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
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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) This Amendment does not constitute, and, except as expressly set forth
herein, no agreement, compromise or settlement of any kind has been reached
between Banks and Borrower or any Guarantor regarding, a reinstatement,
restructuring or modification of the Obligations or any portion thereof or
of any of the Loan Instruments, 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) Banks are not obligated to reach any further agreement concerning the
reinstatement, restructure or modification of the Obligations or any of the
Loan Instruments; and
(c) Neither this Amendment, nor any action taken or forbearance by Banks
pursuant to this Amendment, shall impair, prejudice, or in any other manner
affect the rights of Agent or Banks in and to any of the Collateral
(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 or Collateral.
9. Consent of Guarantor. Each of the Guarantors hereby expressly consent 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 Guarantee 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
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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.
14. Ratification. Borrower and each Guarantor hereby ratifies and confirms its
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. Except as expressly provided herein, the Credit
Agreement and the Loan Instruments shall remain in full force and effect in
accordance with their respective terms.
16. Expenses. Borrower agrees to pay or reimburse on demand all reasonable
costs and expenses of the Agent incurred in connection with the preparation,
execution, delivery or enforcement of this Amendment and the other agreements,
documents and instruments provided for herein.
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 this Amendment.
ANALYTICAL SURVEYS, INC., as Borrower
By:
Printed Name and Title
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MSE CORPORATION, as Guarantor and lease
guarantor
By:
Printed Name and Title
ASI LANDMARK, INC., as Guarantor and
lease guarantor
By:
Printed Name and Title
ASI OF PUERTO RICO, INC., as Guarantor
By:
Printed Name and Title
MSE HOLDING COMPANY, as Guarantor
By:
Printed Name and Title
15
MSE LLC, as Guarantor
By:
Printed Name and Title
CARTOTECH, INC., as lease guarantor
By:
Printed Name and Title
INTELLIGRAPHICS INTERNATIONAL, INC.,
also known as ASI TECHNOLOGIES
(INTELLIGRAPHICS), as lease guarantor
By:
Printed Name and Title
SURVEY HOLDINGS, INC., as Guarantor and
lease guarantor
By:
Printed Name and Title
16
BANK ONE, COLORADO, N.A., as Agent and
Bank
By:
Xxxxxxx X. Xxxxxx, Officer
KEYBANK NATIONAL ASSOCIATION, as Bank
By:
Printed Name and Title
THE FIFTH THIRD BANK OF CENTRAL INDIANA,
as Bank
By:
Printed Name and Title
NATIONAL CITY BANK OF INDIANA, as Bank
By:
Printed Name and Title
BANC ONE LEASING CORPORATION
By:
Xxxxxxx X. Xxxxxxx, Special Assets
Officer
