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EXHIBIT 10.24
WAIVER AGREEMENT AND AMENDMENT NO. 9 TO
CREDIT AGREEMENT AND OTHER LOAN AND LEASE DOCUMENTS
THIS WAIVER AGREEMENT AND AMENDMENT NO. 9 TO CREDIT AGREEMENT AND OTHER
LOAN AND LEASE DOCUMENTS ("this Amendment") is dated and effective as of
December 28, 2000, 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 and Waiver Agreement and Amendment No. 8 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);
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 $ 1,213,592.25
(ii) KeyBank $ 1,213,592.25
(iii) Fifth Third $ 2,427,184.50
(iv) Bank One $ 2,645,631.00
(b) Term Loan Principal Balances as of September 8, 2000:
(i) National City $ 2,613,268.63
(ii) KeyBank $ 2,613,268.63
(iii) Fifth Third $ 5,226,537.28
(iv) Bank One $ 5,696,925.46
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;
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 are to make a regularly scheduled
quarterly principal payment in the amount of $1,225,000.00 and a mandatory
prepayment of principal in the amount of $4,000,000.00, each of which are to be
applied to the Term Loan and are due January 1, 2001;
WHEREAS, Borrower and Guarantors desire that Banks modify the payment dates
for each of these principal payments 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. Amendments to Credit Agreement.
(a) The following new definitions are inserted in Section 1.1 of the
Credit Agreement such that all definitions therein are in alphabetical
order:
"Ninth Amendment" means the Waiver Agreement and Amendment No. 9
to Credit Agreement and Other Loan and Lease Documents, dated as of
December 28, 2000, by and among Borrower, certain Subsidiaries or
Affiliates of Borrower, Banc One Leasing Corporation, Banks and Agent.
. . .
"Seventh Amendment" means the Waiver Agreement and Amendment No.
7 to Credit Agreement and Other Loan and Lease Documents, executed on
or about July 28, 2000, to be effective as of May 30, 2000, by and
among Borrower, certain Subsidiaries or Affiliates of Borrower, Banc
One Leasing Corporation, Banks and Agent.
(b) Applicable Margin. Section 1.1 of the Credit Agreement is hereby
amended effective as of the date hereof by deleting the definition for the
term "Applicable Margin" and inserting in lieu thereof the following:
"Applicable Margin" means 2.00% for Prime Rate Loans.
(c) Interim Period. Section 1.1 of the Credit Agreement is hereby
amended effective as of the date hereof by deleting the definition for the
term "Interim Period" and inserting in lieu thereof the following:
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"Interim Period" means the period from the date of the Ninth
Amendment to and including September 1, 2001.
(d) Seventh Amendment. Section 1.2 of the Credit Agreement is hereby
amended effective as of the date hereof by deleting therefrom the
definition for the term "Seventh Amendment."
(e) Restructure of Term Loan Payment. Section 2.6(b) is hereby
amended effective as of the date hereof in its entirety to read as follows:
(b) Installment Payments of Term Loan The Borrower will repay
the Term Loan in quarterly installment payments of principal in
the sum of One Million Two Hundred Twenty-Five Thousand Dollars
($1,225,000.00) each, commencing on April 1, 2001, and on the
first day of each quarter thereafter. On October 1, 2001, the
Term Loan and all accrued interest thereon shall be due and
payable in full. This Section 2.6(b) supersedes Section 2(b) of
the Seventh Amendment.
(f) Mandatory Prepayments. Section 2.6(d) of the Credit Agreement is
hereby amended effective as of the date hereof 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 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 required under the terms of this Section 2.6.
(iii) The Borrower shall, upon demand by Agent, pay to the
Agent as a principal reduction of the Revolving Loan
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the amount by which the principal balance then outstanding
on the Revolving Loan at any time exceeds the Borrowing
Base.
(iv) 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 of the Loans then
outstanding exceed the sum of: (x) the Borrowing Base; plus
(y) an amount equal to seventy-eight percent (78.0%) of
Borrower's gross Unbilled Revenues.
(v) In addition to all other payments required to be paid
under the terms of this Agreement (except the payment of
proceeds of Tax Refunds, as hereinafter provided), the
Borrower shall pay to Agent as a principal payment on the
Term Loan, to be applied in the inverse order of maturity:
(x) the proceeds of any Tax Refunds attributable to state
income tax returns received by the Agent as a principal
payment on the Term Loan after the effective date of the
Ninth Amendment; (y) on or before March 1, 2001, the sum of
Five Million Two Hundred Twenty-Five Thousand Dollars
($5,225,000.00); and (z) on or before April 30, 2001, the
sum of Two Million Four Hundred Fifty Thousand Dollars
($2,450,000.00) less the Proceeds of any Tax Refunds
attributable to Federal income tax returns received by the
Agent as a principal payment on the Term Loan on or before
such date but after the effective date of the Ninth
Amendment. Notwithstanding any provision hereof to the
contrary, the date of payment for the principal payment due
March 1, 2001 pursuant to Section 2.6(d)(v)(y) will be
extended to April 1, 2001 if, prior to March 1, 2001,
Borrower has delivered to Agent and each Bank a copy of a
definitive agreement for a capital contribution or other
equity investment in Borrower or a sale of all or a
substantial portion of the capital stock or assets of
Borrower for amounts and on terms acceptable to Banks, which
agreement therefor shall be subject only to shareholder
approval, if required, and closing.
(g) Article IX of the Credit Agreement is hereby amended effective as
of the date hereof in its entirety to read as follows:
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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 Loans 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. Subject to the
Borrower's compliance with the terms of this Agreement, prior to the
Revolving Loan Scheduled Maturity Date, Banks shall continue to make
Advances under the Revolving Loan during the Interim Period pursuant to the
terms and limitations of Article II of this Agreement and otherwise in
accordance with the terms of this Agreement, except that notwithstanding
any provision of this Agreement to the contrary:
(i) on and after the fourth day of the following month, the aggregate
principal balance of the Revolving Loans outstanding shall not be more
than one hundred five percent (105.0%) of the projected principal
balance of the Revolving Loan for the end of the prior month, as set
forth in the financial projections, prepared by Borrower and delivered
to Agent and Banks, dated September 5, 2000 (the "September 2000
Projections"); (ii) Borrower shall not make any Request for Advance
and Banks shall not be obligated to fund any Advance which would cause
the aggregate outstanding principal balance of the Revolving Loan to
exceed the sum of the Borrowing Base or would cause the aggregate
outstanding principal balance of the Loans to exceed the sum of the
Borrowing Base and the amount equal to seventy-eight percent (78.0%)
of Borrower's gross Unbilled Revenues; and
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(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, the Seventh Amendment and the Eighth
Amendment, shall occur and remain unremedied.
9.4 Rolling Cash Flow Projections. Within five (5) 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 Deferral Fee. As additional compensation for extension of the
due date of the principal payments due January 1, 2001, pursuant to Section
2.6(d)(v)(y) of this Agreement, as amended by the Eighth Amendment, in
additional to interest and all other fees as herein provided, Borrower
shall pay to Banks a fee of one hundred fifty (150) basis points per annum,
prorated for any partial year, on the principal balance of the Revolving
Loans and the Term Loan outstanding from time to time during the period
from January 1, 2001 through the date upon which the principal payments
required pursuant to Section 2.6(d)(v)(y) of this Agreement, as amended by
the Ninth Amendment, have been fully paid. Such fee shall be due and
payable on the earlier of the occurrence of an Event of Default or the date
upon which the principal payments required pursuant to Section 2.6(d)(v)(y)
of this Agreement, as amended by the Ninth Amendment, are paid.
9.6 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 the Term Loan plus the Maximum
Revolving Credit Amount as at October 15th of each year. For the purposes
of this Agreement, one hundred (100) basis points equal one percent (1.0%).
9.7 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 and/or the Term Loan
and/or the Leases remains unpaid Borrower shall: (a) provide Agent with a
Borrowing Base Certificate setting forth each component of the Borrowing
Base as of the day prior to any Request for Advance; (b) 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
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Certificate to be received by Banks not later than Wednesday of the
following week; (c) deliver to Agent such invoices, contracts and other
documentation supporting Borrower's computation of the Borrowing Base, as
Agent may reasonably request; (d) 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, an A/R Aging, an Unbilled Revenues report ("Revenue Report")
and contract status report ("Status Report"); (e) effective for the week
ending December 29, 2000, 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; (f) effective for the week
ending December 29, 2000, initiate and conduct a weekly telephone
conference with a representative of Borrower, Borrower's Investment
Advisor, Agent and, at the option of each of the Banks, Bank; and (g) on
Wednesday of each week, beginning December 27, 2000, a cash flow report for
the preceding calendar week comparing actual cash flow results to
Borrower's then current Rolling Cash Flow Projection and also comparing
Borrower's actual performance to the requirements of Sections 9.3(i),
9.3(ii), 9.14, 9.17(b) and 9.17(c) of this Agreement.
9.8 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.
9.9 Commitment Extension Fee. Borrower shall pay to Agent, for the
ratable benefit of the Banks, a commitment extension fee, payable monthly
in advance, in the amount of Eight Thousand Eight Hundred Seventy Dollars
($8,870.00) each, payable on the September 8, 2000 effective date of the
Eighth Amendment and on the first day of each month commencing October 1,
2000 until the Loans have been fully paid and Banks have no further
obligation to make any Advance under this Agreement.
9.10 Investment Advisor. Borrower has determined that it is in the
Borrower's best interest to engage an investment advisor to assist Borrower
in pursuing a strategic alliance, equity investment, merger or a sale of
all or part of Borrower's businesses, capital stock or assets. Borrower has
engaged Xxxxx Xxxxxx as Borrower's investment advisor ("Investment
Advisor"). Subject to execution of a confidentiality agreement by the Agent
and the Banks, as required by the Investment Advisor and Borrower of other
recipients, on or before September 15, 2000, Borrower shall deliver to
Agent, with a copy for each of the
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Banks, the offering circular, book or other presentation material intended
for dissemination to prospective strategic partners, investors or
purchasers of Borrower's businesses, capital stock 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.
9.11 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.
9.12 Contract Review. The Borrower has retained a consultant to review
the Borrower's and Guarantors' contracts at Borrower's expense. Borrower
shall deliver to Agent, with a copy to each Bank, the written report of
this consultant on or before December 31, 2000.
9.13 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 hereunder; and (ii)
intercompany Debt; and (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.
9.14 Capital Expenditures. For the period from December 1, 2000
through October 1, 2001, Capital Expenditures shall not exceed that portion
of the amount of Capital Expenditures set forth in the September 2000
Projections allocable to such period.
9.15 Additional Information. Borrower shall: (i) make available for
consultation with Agent, in the presence of one or more 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 or
assets, to the extent that such letter, expression or offer is not subject
to a confidentiality agreement or non-disclosure provision.
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9.16 Cash Collateral Account. Borrower shall maintain with Agent a
cash collateral account, over which Agent alone shall have the power of
withdrawal.
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:
(a) Failure to Timely Deliver Financial and Other Information.
Borrower fails to timely deliver: (i) any contracts required by
Section 9.11; (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) Cash Receipts Shortfall. Borrower's actual cumulative cash
receipts for the months ending October 31, 2000 and thereafter are
less than eighty-five percent (85.0%) of the amount of the anticipated
cumulative cash receipts for such month-end as set forth in September
2000 Projections.
(c) Cash Expenditures. Borrower's actual cumulative cash
expenditures for months ending November 30, 2000 and thereafter shall
not exceed Borrower's actual cash receipts, on a cumulative basis,
plus any increase in the principal balance of the Revolving Loans and
minus any decrease in the principal balance of the Revolving Loans, on
a cumulative basis, as set forth in the September 2000 Projections for
such month-end.
3. 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.
4. Post-Closing Items. On or before January 10, 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 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.
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5. 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 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 5,
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
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THAT THE PROVISIONS OF THIS SECTION 5 ARE A MATERIAL INDUCEMENT FOR THE BANKS
AND AGENT TO ENTER INTO THIS AMENDMENT. For the purposes of this Section 5,
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 5, 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 5, 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.
6. 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
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(c) Neither this Amendment, nor any action taken or forbearance by
Banc One Leasing and the Banks pursuant to this Amendment, shall impair,
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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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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12. 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.
13. 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.
14. 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.
15. 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:
Xxxxxxx X. Xxxxxxxxx, Chief
Financial Officer
15
MSE CORPORATION, as Guarantor and lease
guarantor
By:
Xxxxxxx X. Xxxxxxxxx, Chief
Financial Officer
ASI LANDMARK, INC., as Guarantor and
lease guarantor
By:
Xxxxxxx X. Xxxxxxxxx, Chief
Financial Officer
ASI OF PUERTO RICO, INC., as Guarantor
By:
Xxxxxxx X. Xxxxxxxxx, Chief
Financial Officer
MSE HOLDING COMPANY, as Guarantor
By:
Xxxxxxx X. Xxxxxxxxx, Chief
Financial Officer
MSE LLC, as Guarantor
By:
Xxxxxxx X. Xxxxxxxxx, Chief
Financial Officer
16
CARTOTECH, INC., as lease guarantor
By:
Xxxxxxx X. Xxxxxxxxx, Chief
Financial Officer
INTELLIGRAPHICS INTERNATIONAL, INC.,
also known as ASI TECHNOLOGIES
(INTELLIGRAPHICS), as lease guarantor
By:
Xxxxxxx X. Xxxxxxxxx, Chief
Financial Officer
SURVEY HOLDINGS, INC., as Guarantor and
lease guarantor
By:
Xxxxxxx X. Xxxxxxxxx, Chief
Financial Officer
BANK ONE, COLORADO, N.A., as Agent and
Bank
By:
Xxxxxxx X. Xxxxx, Senior Vice
President
KEYBANK NATIONAL ASSOCIATION, as Bank
By:
Printed Name and Title
17
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:
Printed Name and Title
