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EXHIBIT 10.44
FOURTH AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of March 30, 2001 (the "Fourth Amendment Effective
Date"), is by and among LASON, INC., a Delaware corporation (the "Company"),
LASON CANADA COMPANY, a Nova Scotia unlimited liability company ("Lason
Canada"), LASON U.K., LTD., a corporation organized under the laws of the United
Kingdom ("Lason U.K." and, collectively with the Company and Lason Canada, the
"Borrowers"), the lenders set forth on the signature pages hereof (collectively,
the "Lenders") and BANK ONE, MICHIGAN, a Michigan banking corporation, as
administrative agent for the Lenders (in such capacity, the "Agent").
RECITALS
A. The Borrowers, the Agent and the Lenders are parties to a Third
Amended and Restated Credit Agreement dated as of August 16, 1999 (as now and
hereafter amended, the "Credit Agreement"), pursuant to which the Lenders
agreed, subject to the terms and conditions thereof, to extend credit to the
Borrowers.
B. The Credit Agreement was amended by a First Amendment to Third
Amended and Restated Credit Agreement dated as of August 25, 1999 (the "First
Amendment") among the Borrowers, the Lenders and the Agent, pursuant to which
the parties agreed to modify certain terms and conditions of the extension of
credit to the Borrowers.
C. On December 17, 1999, the Company informed the Agent and the Lenders
that the Company was in violation of certain financial covenants set forth in
the Credit Agreement. The Agent and the Lenders, at the request of the Company,
waived the defaults created by such violation through March 30, 2000.
D. At the request of the Company, the Credit Agreement was further
amended by a Second Amendment to Third Amended and Restated Credit Agreement
dated as of March 30, 2000 (the "Second Amendment") among the Borrowers, the
Lenders and the Agent, pursuant to which the amount of revolving credit
available to the Borrowers under the Credit Agreement was increased and certain
terms and conditions of the extension of credit to the Borrowers were modified.
E. On April 13, 2000, the Company informed the Agent that the Company
did not have sufficient cash to meet its payroll obligations due April 14, 2000.
At the request of the Company, on April 13, 0000 Xxxx Xxx, Xxxxxxxx, as an
interim financial accommodation to the Company, advanced the principal sum of
$1,400,000 to the Company in order to permit the Company to meet its payroll
obligations. On May 31, 2000, the Borrowers, the Agent and the Lenders agreed
that such principal amount would be added to the then-outstanding principal
balance of the Revolving Credit Loans, and the amount of the revolving credit
available to the Borrowers under the Credit Agreement was increased accordingly.
F. At various times between April 29, 2000 and September 7, 2000, the
Company informed the Agent and the Lenders that certain Events of Default had
occurred under the Credit Agreement. Such
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Events of Default included the Company's violation of: (i) the covenant
contained in Section 2.24 as of April 29, 2000; (ii) the covenant contained in
Section 6.2(f) as of March 1, 2000; (iii) the covenant contained in Section 7.1
as of March 31, 2000; (iv) the covenant contained in Section 7.5 as of March 31,
2000; (v) paragraph 2(f) of the Second Amendment; (vi) the covenant contained in
Section 7.2 as of June 30, 2000; (vii) the covenant contained in Section 6.5 as
of June 30, 2000; (viii) the covenant contained in Section 7.3 as of June 30,
2000; and (ix) the covenant contained in Section 8.4. At various times the
Company and its advisors requested that the Agent and the Lenders waive such
Events of Default on a temporary basis. The Company and its advisors also
requested that the Agent and the Lenders defer the scheduled installment payment
of principal on the Term Loan due on May 31, 2000 pursuant to Section 2.7.2. The
Agent and the Lenders granted the waivers and deferrals requested by the Company
subject to the terms and conditions set forth in letter agreements dated May 15,
2000, May 31, 2000, July 10, 2000 and August 15, 2000.
G. Prior to September 15, 2000, the Company and its advisors prepared
and submitted to the Agent and the Lenders a restructuring proposal. In
connection with such proposal, the Company and its advisors requested that the
Agent and the Lenders (a) modify certain terms and conditions of borrowing under
the Credit Agreement, (b) waive the then-existing defaults on a temporary basis
and (c) permit the Borrowers to continue to borrow under the revolving credit
facility established in the Credit Agreement, all in order to (i) permit the
Company an opportunity to implement its restructuring plan and (ii) permit the
Company to continue to develop and implement a revised business plan and
financial strategy that would address, inter alia, repayment of the indebtedness
owed to the Lenders. Pursuant to such request, the Credit Agreement was further
amended by a Third Amendment to Third Amended and Restated Credit Agreement
dated as of September 15, 2000 (the "Third Amendment") among the Borrowers, the
Lenders and the Agent. The Third Amendment, among other things, granted to the
Company a "Restructuring Period" during which the Company would be permitted to
implement its restructuring plan to include, without limitation, the sale of
certain designated assets and business units.
H. The Credit Agreement (as modified by the First Amendment, the Second
Amendment and the Third Amendment), all promissory notes executed by any
Borrower in favor of the Agent and/or the Lenders, and any and all of the
Security Documents (including without limitation all security agreements,
mortgages, guaranties, pledges and other instruments, documents or agreements of
any kind evidencing or securing the indebtedness of the Borrowers in favor of
the Lenders) are sometimes referred to collectively as the "Loan Documents."
I. On December 6, 2000, the Company informed the Agent and the Lenders
that the Company was in violation of the covenant contained in Section 1.3.f of
the Third Amendment, thereby creating an Event of Default under the Credit
Agreement. On December 21, 2000, the Company informed the Agent and the Lenders
that the Company anticipated that it would not have sufficient cash to make the
scheduled installment payment of principal on the Term Loan due on December 31,
2000 pursuant to Section 2.7.2 of the Credit Agreement (as said Section 2.7.2
was amended by the Third Amendment) and the scheduled payment of interest on the
Loans due on December 31, 2000 pursuant to Section 2.14 of the Credit Agreement.
The Company and its advisors requested that the Lenders and the Agent (i) waive
the Event of Default created by the violation of Section 1.3.f of the Third
Amendment so that the Restructuring Period could continue and (ii) defer
temporarily the scheduled payment of principal on the Term Loan due on December
31, 2000 and the scheduled payment of interest on the Loans due on December 31,
2000, so that the Company would have sufficient cash to meet its immediate and
necessary operating expenses. The Lenders and the Agent granted such waiver and
deferral subject to the terms and conditions set forth in that certain letter
agreement dated December 29, 2000.
J. On January 17, 2001, representatives of the Company, the Lenders and
the Agent met to, among other things, review the Company's updated business plan
and proposed financial strategy for the
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period ending December 31, 2001. Following such meeting the Company informed the
Agent and the Lenders that the Company remained in violation of the covenant
contained in Section 1.3.f of the Third Amendment and that the Company also was
in violation of the covenant contained in Section 1.3.g of the Third Amendment.
The Company and its advisors requested that the Lenders and the Agent (i) extend
the duration of the waiver set forth in the December 29, 2000 letter so that the
Company could continue to refine its updated business plan and obtain any
necessary approvals with respect to the implementation of such plan; (ii) waive
the continuing Defaults so that the Restructuring Period may continue; (iii)
extend the duration of the temporary deferral of the scheduled installment
payment of principal on the Term Loan due on December 31, 2000, and also defer
temporarily the scheduled installment payment of principal on the Term Loan due
on January 31, 2001, so that the Company would have sufficient cash to meet its
immediate and necessary operating expenses; (iv) extend the duration of the
temporary deferral of a portion of the scheduled payment of interest on the
Loans due on December 31, 2000, and also defer temporarily the scheduled payment
of interest on the Loans due on January 31, 2001, so that the Company would have
sufficient cash to meet its immediate and necessary operating expenses; (v)
approve the implementation of the Company's employee retention program; and (vi)
with respect to certain proposed asset sales identified by the Company, approve
a modification of the terms otherwise applicable to such asset sales as provided
in the Third Amendment. The Lenders and the Agent granted such requests subject
to the terms and conditions set forth in that certain letter agreement dated
January 19, 2001.
K. The waivers granted by the December 29, 2000 letter and the January
19, 2001 letter have now expired. The Company (i) remains in violation of the
covenant contained in Section 1.3f of the Third Amendment, (ii) remains in
violation of the covenant contained in Section 1.3g of the Third Amendment,
(iii) has failed to pay principal and interest to the Lenders when due under the
terms of the Loan Documents, as such terms were modified by the December 29,
2000 letter and the January 19, 2001 letter, (iv) has failed timely to provide
the information required by Sections 6.1(b), 6.2(b), 6.2(f) and 6.2(g) of the
Credit Agreement and by Section 1.3b of the Third Amendment, and (v) is in
violation of the covenant contained in Section 1.3p of the Third Amendment
(collectively the "Existing Defaults").
L. As a consequence of the Existing Defaults, among other things, (i)
the Required Lenders have the right at any time to declare all indebtedness owed
to the Lenders by the Borrowers and all other obligations owed to the Lenders or
the Agent under the Loan Documents to be immediately due and payable, pursuant
to Section 9.2(b) of the Credit Agreement and Section 1.10 of the Third
Amendment, and (ii) the Lenders have no obligation to advance further loans or
credit to the Borrowers, pursuant to Section 4.2(b) of the Credit Agreement.
M. Notwithstanding the continuation of the Existing Defaults, the
Company and its advisors have requested that the Agent and the Lenders, in lieu
of the exercise of remedies available under the Loan Documents or at law or in
equity, (a) modify the restructuring conditions set forth in the Third Amendment
and extend the Restructuring Period, (b) waive the Existing Defaults on a
temporary basis, (c) permit the Borrowers to continue to borrow under the
revolving credit facility established in the Credit Agreement, (d) defer certain
scheduled installment payments of principal on the Term Loan and (e) defer the
due date of scheduled payments of interest on the Loans, all in order to permit
the Company an opportunity to continue to implement its restructuring plan.
N. Based upon the foregoing recitals, and without waiving any existing
or future rights or remedies which the Agent and/or the Lenders may have against
any Borrower or any Guarantor, the Agent and the Lenders are willing to amend
the terms of the Credit Agreement and the Third Amendment under the terms and
conditions expressly set forth herein.
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TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE 1.
DEFAULT AND RESTRUCTURING PROVISIONS
1.1 Affirmation of Recitals. The Borrowers and the Guarantors hereby
acknowledge and affirm the accuracy of the foregoing recitals.
1.2 Existing Defaults. The Borrowers acknowledge the occurrence of the
Existing Defaults and the continuation of such Existing Defaults through the
date of this Amendment. As a result of the Existing Defaults, the Borrowers
acknowledge that the Required Lenders have the right at any time to declare all
indebtedness owed by the Borrowers to the Lenders to be immediately due and
payable. Also as a result of the Existing Defaults, the Borrowers acknowledge
that they are precluded from making any payments to the holders of any
Subordinated Indebtedness (if any) and the Borrowers have agreed not to make any
payment related to any Subordinated Indebtedness, notwithstanding the provisions
of Section 8.2(iv) of the Credit Agreement, absent the prior written consent of
the Required Lenders (or the Agent acting with the consent of the Required
Lenders).
1.3 Restructuring Conditions. Section 1.3 of the Third Amendment set
forth certain "restructuring conditions" governing the Borrowers' implementation
of their business improvement plan. Such "restructuring conditions" are hereby
amended and restated in their entirety as set forth below in this Section 1.3.
Nothing contained herein, however, shall be deemed to modify or retract the
terms and conditions that were applicable under the Third Amendment during the
period from and including the Third Amendment Effective Date through and
including the date immediately preceding the Fourth Amendment Effective Date.
All actions performed by or on behalf of the Borrowers during such period in
furtherance of their obligations under the Third Amendment are hereby confirmed
and ratified, and the Agent and the Lenders shall be entitled to retain the full
benefit of such performance. There shall be no disgorgement, refund or
rescission with respect to any payment made by or on behalf of the Borrowers and
received by the Agent or the Lenders pursuant to the terms of the Third
Amendment. Except to the extent expressly modified by the terms set forth below,
each of the terms and conditions set forth in the Third Amendment is hereby
confirmed and ratified and shall remain in full force and effect as provided
therein. From and after the Fourth Amendment Effective Date, subject to strict
compliance with the terms and conditions set forth herein, the Lenders agree to
refrain from enforcing their rights and remedies based on the Existing Defaults
while the Company and its consultants continue to implement their plan for
improvement of the Company's financial condition, provided that (i) except to
the extent and on the terms set forth expressly herein, the Agent and the
Lenders do not waive the Existing Defaults and (ii) the agreement contained
herein shall not create a waiver of the right of the Agent or the Lenders, upon
the occurrence of an Event of Default hereunder or under the Loan Documents, to
enforce available rights and remedies at any time, in their sole discretion, in
accordance with the Credit Agreement (as modified herein) and the other Loan
Documents. Absent an earlier Event of Default, the Borrowers shall be permitted
to implement their restructuring efforts during the period from the Third
Amendment Effective Date through January 31, 2002 (the "Restructuring Period").
The Borrowers' restructuring opportunity shall be governed by and subject to the
following terms and conditions:
a. The Company shall keep the representatives of the
Agent and the Lenders apprised of the Borrowers' business and
financial operations and of any material discussions
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and negotiations pertaining to lessors, vendors, suppliers,
customers, earn-out creditors, joint venture partners,
acquisition targets or potential purchasers of any business
segments or significant assets of any Borrower. Reports on
such matters shall be provided periodically as appropriate and
not less frequently than weekly.
b. Notwithstanding any prior practice, the Borrowers
shall strictly comply with the financial reporting
requirements under the Loan Documents, as modified herein. In
addition to the reporting requirements set forth in Sections
6.1 and 6.2 of the Credit Agreement (as modified herein), (i)
not later than Thursday of each week during the Restructuring
Period, the Company and its financial and operational advisors
will deliver to the Agent and the Lenders, in form and detail
satisfactory to the Agent, weekly updates related to the
detailed 13-week rolling domestic cash flow forecast as
required under Section 4.3 of this Amendment; (ii) not later
than the tenth (10th) Business Day of each month during the
Restructuring Period, the Company and its financial and
operational advisors will deliver to the Agent and the
Lenders, in form and detail satisfactory to the Agent, (w)
summary agings by division of accounts payable and accounts
receivable for each Borrower as of the end of the prior month,
(x) a detailed schedule of all projected and actual earn-out
payments for which any Borrower is or may be obligated,
including any variance in the amount or timing of actual
payments compared against the most recent projection of such
payments, (y) summary capital expenditures for the prior month
and cumulative capital expenditures during the Restructuring
Period, and (z) a duly-executed Compliance Certificate with
respect to the cash flow restrictions and other payment
restrictions set forth in subparagraph f below; and (iii) the
Company shall deliver to the Agent, immediately upon receipt
thereof, copies of any correspondence, letters of intent,
agreements or similar documents pertaining in any manner to
any proposed sale or other disposition of any assets of the
Company or its Subsidiaries other than in the ordinary course
of business.
c. (i) Except to the extent expressly excused or
waived under the terms and conditions set forth in this
Amendment, the Borrowers shall pay when due all amounts owed
to the Agent and the Lenders under the Loan Documents.
(ii) Notwithstanding the provisions of Section
2.7.2 of the Credit Agreement (as previously modified by
Section 2.7 of the Third Amendment), but provided that no
further Default or Event of Default occurs under this
Amendment or the Loan Documents (as modified hereby), the
Lenders agree to defer the due date of certain installment
payments of principal on the Term Loan during the
Restructuring Period according to the table set forth below.
At the end of the Restructuring Period (on January 31, 2002),
or upon the occurrence of an earlier Event of Default, (x) all
principal payments in respect of the Term Loan previously
deferred shall immediately be due and payable without further
action on behalf of the Agent or the Lenders, (y) any future
scheduled deferrals automatically shall be canceled and
rescinded without further action on behalf of the Agent or the
Lenders, and (z) the Lenders shall have the remedies as
described in Section 1.10 of this Amendment. Subject to the
foregoing conditions, the following table sets forth the
agreement of the parties with respect to the deferral of
principal in respect of the Term Loan:
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Payment Date Principal Installment Principal Installment
------------ --------------------- ---------------------
under Third Amendment with deferral under this Amendment
--------------------- ----------------------------------
May 31, 2000 $3,750,000 $3,750,000
August 31, 2000 $3,750,000 $3,750,000
September 30, 2000 $1,250,000 $1,250,000
October 31, 2000 $1,250,000 $1,250,000
November 30, 2000 $1,250,000 $1,250,000
December 31, 2000 $1,250,000 0
January 31, 2001 $1,250,000 0
February 28, 2001 $1,250,000 0
March 31, 2001 $1,250,000 0
April 30, 2001 $1,250,000 0
May 31, 2001 $1,250,000 0
June 30, 2001 $2,187,500 0
July 31, 2001 $2,187,500 0
August 31, 2001 $2,187,500 0
September 30, 2001 $2,187,500 0
October 31, 2001 $2,187,500 $1,000,000
November 30, 2001 $2,187,500 $1,000,000
December 31, 2001 $2,187,500 $1,000,000
January 31, 2002 $2,187,500 $22,000,000
February 28, 2002 $2,187,500 $2,187,500
March 31, 2002 $2,187,500 $2,187,500
April 30, 2002 $2,187,500 $2,187,500
May 31, 2002 $2,187,500 $2,187,500
June 30, 2002 $3,750,000 $3,750,000
July 31, 2002 $3,750,000 $3,750,000
August 31, 2002 $3,750,000 $3,750,000
September 30, 2002 $3,750,000 $3,750,000
October 31, 2002 $3,750,000 $3,750,000
November 31, 2002 $3,750,000 $3,750,000
December 31, 2002 $3,750,000 $3,750,000
January 31, 2003 $3,750,000 $3,750,000
February 28, 2003 $3,750,000 $3,750,000
March 31, 2003 $3,750,000 $3,750,000
April 30, 2003 $3,750,000 $3,750,000
May 31, 2003 $3,750,000 $3,750,000
June 30, 2003 $5,000,000 $5,000,000
July 31, 2003 $5,000,000 $5,000,000
August 31, 2003 $5,000,000 $5,000,000
September 30, 2003 $5,000,000 $5,000,000
October 31, 2003 $5,000,000 $5,000,000
November 30, 2003 $5,000,000 $5,000,000
December 31, 2003 $5,000,000 $5,000,000
January 31, 2004 $5,000,000 $5,000,000
February 29, 2004 $5,000,000 $5,000,000
March 31, 2004 $5,000,000 $5,000,000
April 30, 2004 $5,000,000 $5,000,000
May 31, 2004 $5,000,000 $5,000,000
(iii) Pursuant to Section 2.5 of the Third
Amendment and Section 2.14 of the Credit Agreement, the
Borrowers agreed to pay interest on each Advance on the last
Business Day of each month. Notwithstanding such provisions,
from and after the Fourth Amendment Effective Date and during
the remainder of the Restructuring Period, interest on each
Advance shall be paid on a weekly basis according to the
following schedule: (A) on March 15, 2001, the Borrowers paid
all outstanding interest due under the Third Amendment as of
January 31, 2001 and a portion of the outstanding interest due
under the Third Amendment as of February 28, 2001; (B) the
Borrowers shall not be required to make any further interest
payments during the remainder of the month of March, 2001; (C)
commencing April 10, 2001 and continuing on each Tuesday
thereafter until the earlier to occur of (-x-) April 24, 2001
or (-y-) the date on which the Company closes the sale of
substantially all of its business operations in the United
Kingdom (the "UK Sale Date"), the
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Borrowers shall pay interest that is two (2) months in arrears
in equal weekly installments (i.e., absent the earlier
occurrence of the UK Sale Date, the remaining interest due
under the Third Amendment on February 28, 2001 shall be paid
in three (3) equal weekly installments on April 10, 2001,
April 17, 2001 and April 24, 2001); and (D) on the earlier to
occur of (I) the UK Sale Date or (II) May 1, 2001, all unpaid
interest then in arrears under the requirements of the Third
Amendment shall be due and payable in full, and thereafter for
the remainder of the Restructuring Period interest on each
Advance will be paid currently on a weekly basis in equal
installments (based upon good faith estimates of the amount
due) on each Tuesday (i.e., for any month containing four
Tuesdays interest otherwise due on the last Business Day of
such month will be payable each Tuesday in four (4) equal
installments, and for any month containing five Tuesdays
interest otherwise due on the last Business Day of such month
will be payable each Tuesday in five (5) equal installments).
The first weekly installment due each month shall be adjusted
to reflect the actual aggregate amount of interest due for the
prior month. Upon the occurrence of an Event of Default, (-1-)
all interest payments previously deferred shall immediately be
due and payable without further action on behalf of the Agent
or the Lenders, (-2-) any future scheduled deferrals
automatically shall be canceled and rescinded without further
action on behalf of the Agent or the Lenders, and (-3-) the
Lenders shall have the remedies as described in Section 1.10
of this Amendment.
(iv) The parties agree that no course of dealing
is intended or is capable of being inferred from the Lenders'
prior agreement (as described in the recitals to this
Amendment) and current agreement (as described in the
preceding subparagraphs) to certain deferrals of principal and
interest installments, and no future deferrals of principal,
interest or other charges are contemplated by the parties or
expected by the Borrowers.
d. The aggregate outstanding amount of the Revolving
Credit Loans shall not exceed the maximum amount described in
Article 2 of the Third Amendment.
e. All representations and warranties made by the
Borrowers under this Amendment shall be true and correct.
f. (i) There shall be no material adverse
change in the financial performance or condition of the
Borrowers as compared with the projections submitted to and
approved by the Agent and the Lenders in the Approved Budget
pursuant to Section 4.3 of this Amendment.
(ii) For each "Measuring Period" (defined below)
during the Restructuring Period, the actual cumulative
"Pre-Earn-out Net Cash Flow" (defined below) of the Company
and its Subsidiaries on a consolidated basis during such
Measuring Period shall equal or exceed the projected
Pre-Earn-out Net Cash Flow for such Measuring Period as
compared against the Approved Budget, within a negative
variance of twenty percent (20%) for the first Measuring
Period and ten percent (10%) for each Measuring Period
thereafter. The term "Pre-Earn-out Net Cash Flow" shall mean
the excess (if any) of the consolidated aggregate cash
receipts of the Company and its Subsidiaries during the
relevant period (including the Company's share of any Net Cash
Proceeds generated by any sale of assets as otherwise
permitted under this Amendment) compared to the consolidated
aggregate cash disbursements of the Company and its
subsidiaries during such period for operating expenses, taxes
and debt service, but excluding any disbursements made during
such period in respect of any "Earn-out Obligations"
(hereafter defined), all as shown on the reports required
pursuant to Section 4.3 of this Amendment and prepared in a
manner
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consistent with the presentation set forth in the Approved
Budget. The term "Earn-out Obligations" shall mean any amounts
required to be paid by the Company or any of its Subsidiaries
pursuant to any agreement, instrument or document governing or
related to any prior Acquisition by the Company or any of its
Subsidiaries. The cumulative Pre-Earn-out Net Cash Flow of the
Company and its Subsidiaries shall be measured as of the end
of each calendar month, for the cumulative period commencing
September 1, 2000 and ending on the last day of each
successive month (each a "Measuring Period") (i.e., the first
Measuring Period shall be a one-month period commencing
September 1, 2000 and ending September 30, 2000, the second
Measuring Period shall be a two-month period commencing
September 1, 2000 and ending October 31, 2000, etc.).
(iii) The Borrowers shall not, absent the prior
written consent of the Required Lenders, disburse any funds in
an amount that would cause a violation of the net cash flow
restrictions or other payment restrictions set forth above,
and shall not in any event disburse any funds in a manner
inconsistent with any other restrictions set forth in this
Amendment or the Loan Documents.
(iv) Prior to the Fourth Amendment Effective Date,
the Company advised the Agent and the Lenders that the Company
was in violation of the covenant contained in subparagraph f
(ii) above and does not anticipate the ability to comply with
such covenant until October, 2001. Provided that no further
Event of Default occurs, the Agent and the Lenders agree to
forbear from the exercise of any remedies due to the Company's
violation of such covenant through September 30, 2001.
g. (i) The Company will not permit Consolidated
EBITDA to be less than (i) $28,775,000 for the ten (10)
consecutive months ending October 31, 2001; (ii) $31,680,000
for the eleven (11) consecutive months ending November 30,
2001; and (iii) $34,784,000 for the twelve (12) consecutive
months ending December 31, 2001. During the Restructuring
Period, the Company's compliance with the foregoing
restrictions shall be in lieu of compliance with Section 7.5
of the Credit Agreement.
(ii) Prior to the Fourth Amendment Effective Date,
the Company advised the Agent and the Lenders that the Company
was in violation of the covenant contained in subparagraph g
(i) above (as such covenant was expressed in the Third
Amendment) and does not anticipate the ability to comply with
such covenant until the fiscal quarter beginning October 1,
2001. Provided that no further Event of Default occurs, the
Agent and the Lenders agree to forbear from the exercise of
any remedies due to the Company's violation of such covenant
through the fiscal quarter ending September 30, 2001.
h. The Company has advised the Agent and the Lenders
of the commencement of certain actions or arbitration
proceedings against one or more Borrowers. No judgment, order,
decree, injunction or finding by any court, arbitrator or
similar tribunal shall be entered against any Borrower in any
such action or proceeding or any other action or proceeding
that would prevent, impair or delay the completion of the
Company's business improvement plan. With the exception of the
pending actions and proceedings identified by the Company, no
other action or proceeding shall be commenced or continued
against any Borrower that would, if adversely determined,
either singly or in combination with other pending or new
actions or proceedings, cause a Material Adverse Effect or
prevent, impair or delay the completion of the Company's
business improvement plan.
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i. Absent prior approval on behalf of the Agent and
the Lenders, no Borrower shall (i) file with any bankruptcy
court or be the subject of any petition under title 11 of the
United States Code (the "Bankruptcy Code"), (ii) be the
subject of any order for relief issued under the Bankruptcy
Code, (iii) file or be the subject of any petition seeking any
liquidation, reorganization, adjustment, protection,
arrangement, composition, dissolution or similar relief under
any present or future federal or state act or law relating to
bankruptcy, insolvency, reorganization or other relief for
debtors, (iv) have sought or consented to or acquiesced in the
appointment of any receiver, trustee, conservator, liquidator,
custodian or other similar official, or (v) be the subject of
any order, judgment or decree entered by any court of
competent jurisdiction approving a petition filed against such
party for any liquidation, reorganization, adjustment,
protection, arrangement, composition, dissolution or similar
relief under any present or future federal or state act or law
relating to bankruptcy, insolvency, reorganization or other
relief for debtors.
j. The Agent on behalf of the Lenders, or its
representatives or consultants, shall be permitted to conduct
audits of any collateral securing the obligations of the
Borrowers to the Lenders. The Company shall compensate the
Agent for such audits in accordance with the Agent's schedule
of fees, as applicable, and as such schedule may be amended
from time to time. The foregoing permission to conduct audits
shall not restrict or impair the right of the Agent or the
Lenders to inspect the collateral and any records pertaining
thereto at such times and at such intervals as the Agent or
the Required Lenders may require.
k. There shall be no material adverse change in the
ability of the Borrowers to obtain supplies or other assets to
continue their operations.
l. Notwithstanding anything in the Credit Agreement
to the contrary (including without limitation the provisions
of Section 8.2 of the Credit Agreement), during the
Restructuring Period, absent the prior written consent of the
Required Lenders, the Company shall not, and shall not permit
or cause any of its Subsidiaries to, create, incur, assume or
suffer to exist any Indebtedness other than Indebtedness as
permitted under subsections 8.2(i), (ii), (iv), (v), (vii) and
(viii) of the Credit Agreement.
m. Notwithstanding anything in the Credit Agreement
to the contrary (including without limitation the provisions
of Section 8.3 of the Credit Agreement), during the
Restructuring Period, absent the prior written consent of the
Required Lenders, the Company shall not, and shall not permit
or cause any of its Subsidiaries to, create, incur or suffer
to exist any new or additional Lien other than Liens in favor
of the Agent for the benefit of itself and the Lenders and
Liens in existence immediately prior to the Third Amendment
Effective Date.
n. Notwithstanding anything in the Credit Agreement
to the contrary (including without limitation the provisions
of Section 8.4 of the Credit Agreement), during the
Restructuring Period, neither the Company nor any of its
Subsidiaries shall agree to or consummate the sale,
assignment, lease, conveyance, transfer or other disposition
of any of its assets, except for (i) sales of inventory in the
ordinary course of business or (ii) the disposition of assets
under terms approved by the Required Lenders as evidenced by
the prior written consent of the Agent (provided that such
consent shall require the approval of all of the Lenders in
the event of any proposed disposition of all or substantially
all of the Collateral). Notwithstanding clause (ii) of the
preceding sentence, approval by the Required Lenders need not
be obtained with respect to certain proposed dispositions of
assets having a
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value (x) less than $500,000 in connection with any particular
transaction and (y) less than $1,500,000 in the aggregate for
all such transactions, and the Agent shall be authorized in
its sole discretion to approve the terms of such dispositions
of assets.
o. Notwithstanding anything in the Credit Agreement
to the contrary (including without limitation the provisions
of Section 8.5 of the Credit Agreement), during the
Restructuring Period, neither the Company nor any of its
Subsidiaries shall agree to or consummate any Acquisition at
any time (even though such Acquisition would qualify as a
Permitted Acquisition), any purchase of or investment in any
other Person, extend any credit to any other Person, or enter
into any similar business arrangement or combination, in each
case without the prior written consent of the Required
Lenders. The Company shall be permitted to consummate its
acquisition of DRI of Kentucky, Inc. upon such terms and
conditions as may be approved in writing by the Required
Lenders.
p. Notwithstanding anything in the Credit Agreement
to the contrary, and notwithstanding the agreements described
in paragraph 5 of Schedule 8.7 attached to the Credit
Agreement or any similar agreements, during the Restructuring
Period, neither the Company nor any of its Subsidiaries shall
advance any loans or credit to any officer, director,
stockholder or other Affiliate of the Company or any of its
Subsidiaries, or otherwise enter into any similar transaction,
nor shall the Company or any of its Subsidiaries forgive or
defer any payment of principal or interest with respect to any
existing loan or advance to any such officer, director,
stockholder or other Affiliate.
q. The Company has advised the Agent and the Lenders
that the Company has entered into certain written agreements
or letters of intent (subject to customary due diligence
activities), and intends to enter into one or more additional
written agreements or letters of intent (subject to customary
due diligence activities), for the sale of certain business
segments or assets of the Company and its Subsidiaries, which
would be within the scope of Section 2.7.3 of the Credit
Agreement. Effective as of the Fourth Amendment Effective
Date, with respect to certain identified sales, the Company
and the Lenders have agreed upon (i) the anticipated sale
closing date, (ii) the minimum Net Cash Proceeds to be
generated by the sale or disposition, and (iii) the allocation
among the Company and the Lenders with respect to such Net
Cash Proceeds. During the Restructuring Period and so long as
the Company is in strict compliance with its covenants and
obligations set forth in this Amendment, notwithstanding the
provisions of Section 2.7.3 of the Credit Agreement, the
Lenders shall permit the Company to retain, for working
capital purposes, the designated proportion of the Net Cash
Proceeds received by the Company or any Subsidiary in
connection with any sale or other disposition of any of the
designated assets, provided that the terms of such sale or
other disposition (including price, timing and all other
material terms of sale) shall be acceptable to the Required
Lenders or the Agent (pursuant to Section 1.3n of this
Amendment) as evidenced by a written consent executed by the
Agent. The remaining portion of any such Net Cash Proceeds
shall be, immediately upon receipt, tendered to the Agent for
the benefit of the Lenders, to be applied as a reduction of
the outstanding principal balance of the Term Loan (and, after
repayment in full of the Term Loan, as a reduction of the
outstanding principal balance of the Revolving Credit Loans as
a permanent reduction of the aggregate amount of the Revolving
Credit Commitments). Any application of Net Cash Proceeds to
the outstanding principal balance of the Term Loan shall first
be applied to any past due or deferred principal installments
and thereafter as a prepayment in accordance with Section
2.7.3 (i.e., in inverse order of maturity). For any sale
transaction (x) consummated after the designated sale closing
date (provided that the failure to close the sale by such date
is not caused by the Lenders' failure to timely respond to any
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request for consent) and/or (y) generating Net Cash Proceeds
below the designated minimum amount (but nevertheless on such
terms approved by the Required Lenders or the Agent, as the
case may be), the sharing formula will be adjusted such that
an additional five percent (5%) of the Net Cash Proceeds will
be payable to the Lenders as a reduction of the outstanding
principal balance of the Term Loan or the Revolving Credit
Loans as set forth above. For purposes of calculating the Net
Cash Proceeds subject to the sharing formulae set forth
herein, any payments, credits, setoffs or similar recognition
of amounts required in connection with or on account of any
Earn-out Obligations shall be disregarded.
r. The Company shall, immediately upon receipt
thereof, provide to the Agent and the Lenders copies of any
written agreement or letter of intent for the sale of any
business segments or assets of the Company and its
Subsidiaries, which shall be subject to the approval of the
Lenders as set forth in subparagraph n above. With respect to
any transaction evidenced by a binding agreement or letter of
intent that is approved by the Required Lenders under the
provisions of this Amendment and otherwise is permissible
under the Credit Agreement (as modified herein), such
transaction shall be consummated within the time parameters
and other terms and conditions as disclosed in the applicable
written agreement or letter of intent, as the same may be
amended from time to time with the approval of the Required
Lenders. In the event that the Company consummates one or more
permissible sales of material assets which results in a
material diminution of Consolidated EBITDA, the Agent and the
Lenders agree to, in good faith, discuss with the Company the
appropriate level of periodic principal amortization as set
forth in Section 2.7.2 of the Credit Agreement.
s. Notwithstanding anything in the Credit Agreement
to the contrary, during the Restructuring Period, the Company
shall not, and shall not permit any Subsidiary to, make any
Capital Expenditures that exceed in the aggregate for the
Company and its Subsidiaries (i) $3,600,000 during the fiscal
quarter ending September 30, 2000; (ii) $7,200,000 during the
two consecutive fiscal quarters ending December 31, 2000;
(iii) $10,800,000 during the three consecutive fiscal quarters
ending March 31, 2001; (iv) $14,400,000 during the four
consecutive fiscal quarters ending June 30, 2001; (v)
$14,400,000 during the four consecutive fiscal quarters ending
September 30, 2001; or (vi) $14,400,000 during the four
consecutive fiscal quarters ending December 31, 2001.
t. The Company shall continue to engage, for at least
the duration of the Restructuring Period, one or more
financial consultants or turnaround advisors acceptable to the
Agent and the Required Lenders and a Chief Financial Officer
acceptable to the Agent and the Required Lenders. The scope of
the engagement of any financial consultants or turnaround
advisors, and the scope of the responsibilities of the Chief
Financial Officer, shall be acceptable to the Agent and the
Required Lenders. Without limiting the generality of the
preceding sentence, the Chief Financial Officer shall control
and implement procedures regarding the Company's cash
management and cash disbursements, which procedures shall be
acceptable to the Agent and the Required Lenders. The Company
shall initiate and diligently complete its search for a
permanent Chief Executive Officer according to a timetable
acceptable to the Required Lenders.
u. During the Restructuring Period, neither the
Company nor any of its Subsidiaries shall pay any
discretionary bonus or similar compensation award to any of
their respective officers or employees except pursuant to a
comprehensive plan approved by the Required Lenders. The
preceding sentence shall not limit the right of the Company or
its Subsidiaries to pay any bonus required under any existing
written employment agreement,
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incentive plan or similar "guaranteed" bonus plan. Upon
request, the Company shall deliver to the Lenders and the
Agent copies of any applicable employment agreements,
incentive plans or similar "guaranteed" bonus plans.
v. The Company has advised the Agent and the Lenders
that the Company intends to consult with one or more
investment banking firms to explore various strategic
alternatives and will, not later than April 16, 2001, engage
an investment banking firm with respect to certain of the
Company's domestic operations. The Company shall keep
representatives of the Agent and the Lenders apprised of such
consultations. The identity of any investment banking firm
engaged by the Company and the scope and terms of the
engagement must be acceptable to the Agent and the Required
Lenders, acting within the exercise of their reasonable
discretion.
w. The Company shall pay to the Agent, for the
benefit of the Lenders, an amendment fee in the amount of
$1,450,000, payable in installments as follows: $100,000 not
later than September 15, 2000, $100,000 on the fifteenth day
of each month commencing October 15, 2000 through and
including August 15, 2001, and $50,000 on the fifteenth day of
each month commencing September 15, 2001 through and including
January 15, 2002.
x. (i) In connection with the designation by the
Company of certain business segments or assets for sale as
described in subparagraph 1.3q above, the Company and the
Lenders have agreed that up to ten percent (10%) of the Net
Cash Proceeds derived from certain designated proposed sales
may, under the terms and conditions set forth herein, be made
available to the Company to pay certain Earn-out Obligations
in such order, portion and priority as the Company may
specify. Upon the closing of each of the designated sales, up
to ten percent (10%) of the Net Cash Proceeds generated from
such sales (the exact percentage, not to exceed 10%, shall be
designated by the Company in a writing submitted to the Agent
prior to closing of each of the applicable sales) will be
deposited into a segregated cash collateral account maintained
by the Agent. All funds deposited into such cash collateral
account, and all interest thereon, shall at all times prior to
disbursement be the sole property of the Agent for the benefit
of itself and the Lenders for application against the
Borrowers' obligations under the Loan Documents, and
immediately upon the occurrence of any Event of Default, or
upon expiration of the Restructuring Period, or upon the
failure of any conditions for disbursement of funds to the
Company as set forth below, all sums maintained in such cash
collateral account may immediately, and without further notice
to the Borrowers, be applied in reduction of the Borrowers'
obligations to the Agent and the Lenders in such order,
portion and priority as the Agent and the Lenders may specify.
The cash collateral account established by the Agent shall be
for the sole benefit and protection of the Agent and the
Lenders. No other person or entity (including without
limitation any Borrower or any holder of any Earn-out
Obligation) shall have any claim or right whatsoever against
such cash collateral account or any funds on deposit in such
account from time to time. Each Borrower acknowledges and
agrees that all funds deposited into such cash collateral
account represent proceeds from the liquidation of collateral
securing the obligations owed to the Agent and the Lenders,
and that Borrowers have no entitlement to such funds.
(ii) During the Restructuring Period, the Agent
agrees from time to time to disburse to the Company, solely
from the cash collateral account established pursuant to
subparagraph (i) above and not out of any other funds of the
Agent or the
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Lenders, such sums as may be requested by the Company for the
purpose of making cash payments on behalf of the Company and
its Subsidiaries in respect of one or more Earn-out
Obligations, in such order, portion and priority as the
Company may specify, subject to the following restrictions:
(A) cash payments in respect of any
Earn-out Obligations may be made only so long as the Borrowers
and the Guarantors are in strict compliance with all terms and
conditions set forth in this Amendment (including without
limitation the timely payment of all principal, interest, fees
and other charges when due hereunder);
(B) cash payments in respect of any
Earn-out Obligations may be made only so long as not less than
eighty percent (80%), both in the number of holders of
Earn-out Obligations and in the aggregate outstanding dollar
amount of Earn-out Obligations, have agreed in writing to a
standstill agreement having such terms and conditions as may
be mutually acceptable to the Company and the Agent;
(C) the aggregate amount of cash
payments in respect of Earn-out Obligations from time to time
shall be limited such that the "Earn-out Recovery Ratio" at no
time exceeds the "Senior Lender Recovery Ratio" (for purposes
hereof, "Earn-out Recovery Ratio" means the ratio of (i) the
aggregate amount paid on a cash basis by the Company or any of
its Subsidiaries on a cumulative basis during the
Restructuring Period to any holders of Earn-out Obligations to
(ii) the aggregate amount of legitimate and non-disputed
Earn-out Obligations due or to become due on a cash basis
during the Restructuring Period, and "Senior Lender Recovery
Ratio" means the ratio of (x) the sum of all principal
payments in respect of the Term Loan and principal payments
causing a permanent reduction of the outstanding principal
balance of the Revolving Credit Loans received by the Lenders
during the Restructuring Period to (y) the aggregate
outstanding principal amount owed by the Borrowers to the
Lenders at the commencement of the Restructuring Period);
(D) with respect to the deposit of
any funds in the segregated cash collateral account, up to
one-half (1/2) of the amount of any such deposit may, subject
to compliance with the other terms and conditions set forth
herein, be made available to the Company immediately upon such
deposit, and the remaining amount of any such deposit will be
made available (subject to compliance with the other terms and
conditions set forth herein) in equal installments over a
period not less than three (3) months; and
(E) the Company shall not make any
payment to the holder of any Earn-out Obligation until (x) the
amount of the applicable claim has been verified or audited to
the Company's satisfaction and (y) such holder shall have
executed and delivered a settlement agreement and release
having such terms as are acceptable to the Company and the
Agent (the Company and the Agent shall endeavor to agree upon
a standard form of such settlement agreement and release).
(iii) Notwithstanding the procedure established in
subparagraph (ii) above, after the Fourth Amendment Effective
Date the Company shall be permitted to disburse up to
$3,000,000 from Pre-Earn-out Net Cash Flow (if any) in payment
of one or more Earn-out Obligations, under the following terms
and conditions:
(A) such disbursements may be made
only so long as the Borrowers and the Guarantors are in strict
compliance with all terms and conditions set forth
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in this Amendment (including without limitation the timely
payment of all principal, interest, fees and other charges
when due hereunder); and
(B) the amount of Net Cash Proceeds
to be deposited into the cash collateral account as provided
in subparagraph (i) above shall be reduced by an amount equal
to the aggregate amount devoted to Earn-out Obligations from
Pre-Earn-out Net Cash Flow.
y. There shall be no other Default or Event of
Default under the Credit Agreement (as modified herein) or the
other Loan Documents (except for the Existing Defaults
expressly acknowledged and waived in this Amendment through
the effective date hereof).
Notwithstanding the provisions of this Section 1.3, all indebtedness of the
Borrowers to the Lenders shall be due and payable on demand in the discretion of
the Required Lenders upon expiration or termination of the Restructuring Period
or any failure of any one or more of the conditions set forth in this Section
1.3. Further, any failure of any one or more of the conditions set forth in this
Section 1.3 shall constitute an Event of Default under the Loan Documents
(without the necessity of any notice or cure period).
1.4 No Course of Dealing; Review of the Company's Business Plan. The
Borrowers and the Guarantors acknowledge and agree that notwithstanding any
course of dealing between the Borrowers and the Lenders prior to the date
hereof, the Lenders shall have no obligation to make Loans to any Borrower
outside of the strict conditions and requirements of the Credit Agreement (as
modified herein) nor to refrain from exercising available remedies except as
expressly set forth herein. Notwithstanding any past practice, the Borrowers and
the Guarantors agree that (i) the Agent and the Lenders shall not be obligated
or expected to honor any "overdrafts" or items for which funds of the applicable
Borrower are not immediately available, and (ii) the Agent and the Lenders shall
not be obligated or expected to provide any credit references on behalf of any
Borrower, and any inquiries in this regard may be referred back to the
applicable Borrower. The Agent and the Lenders shall be under no obligation
whatsoever to consent to the Company's business plan as the same may be revised
from time to time, and instead the Agent's and the Lenders' consideration of the
Company's business plan shall be undertaken by the Agent and the Lenders in
their sole, absolute and unreviewable discretion. The Agent's and the Lenders'
consideration of the Company's business plan shall be without prejudice to (i)
the possibility that the Agent or the Lenders may conclude that such business
plan, as revised from time to time, does not adequately address the Company's
defaults under the Loan Documents and/or the potential erosion of collateral
supporting the Borrowers' indebtedness to the Lenders, or (ii) the right of the
Agent or the Lenders, in accordance with the terms hereof, to exercise rights or
remedies available due to defaults under the Loan Documents (as modified
herein).
1.5 Dominion of Funds; Transfer of Accounts. (a) Each Borrower shall
enter into a dominion of funds arrangement with the Agent and shall execute and
deliver any and all further documents necessary or desirable to implement such
dominion of funds arrangement, including without limitation any lock box
agreements or blocked account agreements. To the extent that any Borrower
receives any wire transfer or electronic payment in lieu of payment of accounts
by cash, check or other item, the Agent is authorized, immediately upon the
receipt of such wire transfer or electronic payment, to transfer the proceeds
thereof into the cash collateral account maintained in accordance with the
dominion of funds arrangement.
(b) With respect to any bank account maintained on behalf of
any Borrower at any financial institution other than the Agent or one of the
Lenders, each Borrower shall, not later than April 30, 2001, close such accounts
and maintain its banking accounts with the Agent or one or more of the Lenders,
unless the Agent shall otherwise consent in writing.
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(c) Each Borrower shall comply strictly will all procedures
and requirements established from time to time by the Agent or any applicable
Lender with respect to any cash management or similar services provided by the
Agent or such Lender.
1.6 Cooperation With the Agent, the Lenders and their Financial
Consultants. Each Borrower agrees that it will make all of its records available
to the Agent and the Lenders and any financial consultant retained by them and
will make all of its personnel available to the Agent and the Lenders and such
consultants for inquiry as to its business, financial condition and prospects,
and that they will otherwise fully cooperate with the Agent, the Lenders and
their financial consultants in assisting the Lenders to conduct such analyses as
they may wish to make of the Borrowers and their financial condition.
1.7 Defaults. In addition to any events of default specified in the
Loan Documents, the following shall constitute an Event of Default under this
Amendment and under the Loan Documents:
a. Any Borrower or any Guarantor shall fail to comply with,
perform or observe any term, condition, covenant or agreement set forth in this
Amendment;
b. Any representation or warranty of Borrowers or Guarantors
contained in this Amendment shall be untrue when made or shall, during the term
of this Amendment, become impaired, untrue or misleading;
c. With the exception of the Existing Defaults as of the date
hereof, the occurrence of any new or further violation of the sections of the
Credit Agreement implicated by any of the Existing Defaults (provided that,
during the Restructuring Period, a continuing or further violation of the
financial covenants in Article VII of the Credit Agreement shall not be deemed a
new or further Event of Default);
d. The entry of any judgment, order, decree, injunction or
finding by any court, arbitrator or similar tribunal that materially threatens
the ability of the Company to implement or continue the implementation of its
business improvement plan during the Restructuring Period;
e. The violation of any non-compete covenant in favor of the
Company or any of its Subsidiaries or divisions, which violation materially
threatens the ability of the Company to implement or continue the implementation
of its business improvement plan during the Restructuring Period and which is
not stayed or enjoined within thirty (30) days after the occurrence of the
violation; or
f. The occurrence of any further Material Adverse Change
pertaining to any Borrower or any Guarantor.
1.8 Expiration; No Further Extension Implied. The Borrowers and the
Guarantors acknowledge that the Agent and the Lenders have no obligation to
extend the term of the Restructuring Period or refrain from enforcing their
rights and remedies before the end of the Restructuring Period in the event of
any failure of any one or more of the terms and conditions expressed herein,
that no course of dealing that would permit arguing for further extensions
contrary to the Lenders' wishes exists or is capable of being inferred, and that
nothing contained herein or otherwise is intended to be a promise or agreement
to continue to extend the term of the Restructuring Period beyond January 31,
2002 or to extend any further credit to the Borrowers. Furthermore, no future
agreement by the Agent and the Lenders to continue to extend the term of the
Restructuring Period beyond January 31, 2002 or any other agreement shall be
valid or enforceable unless it is contained in a final written agreement signed
by authorized representatives of the Agent and the Lenders. Preliminary
understandings or agreements on
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one or more issues during the course of any negotiations and prior to the
finalization thereof shall not be binding unless and until such a final written
agreement is executed on behalf of the applicable parties.
1.9 Business and Financial Consultant. The Agent and the Lenders hereby
acknowledge that the Company has engaged Xxxxxx XxxXxxxxx & Xxxxxxxx ("CMD") as
business and financial consultants to the Company. The Agent and the Lenders
acknowledge that the retention of CMD by the Company has materially contributed
to the willingness of the Agent and the Lenders to enter into this Amendment.
The Company agrees to promptly provide to the Agent and the Lenders all
financial reports, projections and other information as may be provided to it by
CMD or as may be provided to CMD by the Company, and agrees to cause CMD to
prepare and deliver to the Agent and the Lenders such other reports and
information concerning the business and financial condition of the Company as
the Agent or the Lenders shall from time to time request.
1.10 Remedies Upon Default or Termination. Immediately upon the
occurrence of a further Event of Default or a default under this Amendment or
any document or agreement comprising the Loan Documents, and without notice or
an opportunity to cure such Event of Default or default, or on January 31, 2002
in the absence of (i) a further written agreement among the Borrowers, the Agent
and the Lenders pertaining to the repayment of the Borrowers' obligations, (ii)
earlier demand for repayment following a further Event of Default or (iii) the
Borrowers then being in full compliance with all provisions of the Loan
Documents (as amended by this Amendment but without the benefit of any waiver of
defaults), the Restructuring Period shall automatically expire and, upon the
election of the Required Lenders but without further notice, all of the
Borrowers' obligations to the Lenders shall be immediately due and payable (to
the extent not already due and payable), all undertakings of the Agent and the
Lenders hereunder, including without limitation the Agent's and the Lenders'
agreement not to exercise available remedies, shall terminate without notice to
the Company and without the requirement of any further action by or on behalf of
the Agent or the Lenders, the waiver of the Existing Defaults as set forth
herein shall be deemed rescinded ab initio, and the Agent or the Lenders shall
have the right to exercise any remedies provided in this Amendment or any of the
Loan Documents, or under applicable law or in equity. All rights and remedies of
the Agent and the Lenders shall be cumulative and not exclusive, and the Agent
or the Lenders shall be entitled to pursue one or more rights and/or remedies
simultaneously or sequentially without the necessity of an election of remedies.
1.11 Reservation of Rights; No Waiver by Conduct. This Amendment grants
a restructuring opportunity until January 31, 2002 only, or until an earlier
Event of Default, upon the terms and conditions set forth in this Amendment.
Nothing herein shall be deemed to constitute a waiver of any Existing Defaults
(except to the extent and on the terms expressly set forth herein), or a waiver
of any new Events of Default or defaults of any other provision of any of the
documents referred to herein, and nothing herein shall in any way prejudice the
rights and remedies of the Agent and/or the Lenders under any of the documents
referred to herein or applicable law. Further, the Agent and the Lenders shall
have the right to waive any conditions set forth in this Amendment and/or such
documents, in their sole discretion, and any such waiver shall not prejudice,
waive or reduce any other right or remedy which the Agent or the Lenders may
have against the Company. No waiver of the rights or any condition of this
Amendment and/or any other document by the Agent or the Lenders shall be
effective unless the same shall be contained in a writing signed by authorized
representatives of the Agent or the Lenders, as the case may be, in the manner
required by Section 12.5 of the Credit Agreement. No course of dealing on the
part of the Agent or the Lenders, nor any delay or failure on the part of the
Agent or the Lenders in exercising any right, power or privilege hereunder shall
operate as a waiver of such right, power or privilege, nor shall any single or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other right, power or privilege.
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1.12 Limitations on Certain Advances. Notwithstanding the provisions of
Section 2.1 of the Credit Agreement, during the Restructuring Period the
Borrowers agree that the Lenders shall not be obligated to advance any Alternate
Currency Loan or any Multicurrency Revolving Credit Loan, but instead any
request for such an advance will be honored only in the discretion of each
Alternate Currency Lender or Multicurrency Revolving Credit Lender.
Notwithstanding the provisions of Sections 2.6, 2.8 and 2.9 of the Credit
Agreement, during the Restructuring Period the Borrowers agree that the Lenders
shall not be obligated to advance any Eurodollar Loan and that, upon the end of
any existing Interest Period with respect to any outstanding Eurodollar Loan,
such Eurodollar Loan shall be converted to a Floating Rate Loan.
1.13 Survival. All representations, warranties, covenants, agreements,
releases and waivers made by or on behalf of the Company, any other Borrower or
any Guarantor under this Amendment shall survive and continue after the
expiration or termination of the Restructuring Period.
ARTICLE 2.
AMENDMENTS
Effective as of the Fourth Amendment Effective Date, the Credit
Agreement shall be amended as follows:
2.1 A new definition of "Fourth Amendment Effective Date" is added
Section 1.1 of the Credit Agreement in appropriate alphabetical order, stating
as follows:
"Fourth Amendment Effective Date" shall mean March 30, 2001.
2.2 Section 6.2(f) of the Credit Agreement is restated in its
entirety as follows:
(f) As soon as available and in any event within
thirty (30) days after the end of each month, the consolidated
balance sheet of the Company and its Subsidiaries as of the
end of such month, and the related consolidated statements of
income and cash flows of the Company and its Subsidiaries for
such month and for the period commencing at the end of the
previous fiscal year and ending with the end of such month, in
form and detail acceptable to the Agent, setting forth in each
case in comparative form the corresponding figures for the
corresponding date or period of the preceding fiscal year and
the variances, if any, from the budget and forecast delivered
pursuant to Section 4.3 of that certain Fourth Amendment to
Third Amended and Restated Credit Agreement dated as of March
30, 2001, and together with a duly executed Compliance
Certificate;
2.3 Section 9.1(p) of the Credit Agreement is restated in its
entirety as follows:
(p) The Company shall fail to consummate the sale of assets,
which assets have been designated by the Company for sale
prior to the Fourth Amendment Effective Date, which results in
Net Cash Proceeds acceptable to the Required Lenders received
by the Company (i) on or before April 30, 2001 in the case of
certain foreign assets and (ii) on or before August 31, 2001
in the case of certain domestic assets.
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ARTICLE 3.
REPRESENTATIONS
Each Borrower represents and warrants to the Agent and the Lenders
that:
3.1 The execution, delivery and performance by it of this Amendment are
within its powers, have been duly authorized by all necessary action and are not
in contravention with any law, rule or regulation, or any judgment, decree,
writ, injunction, order or award of any arbitrator, court or governmental
authority, of the terms of its Articles of Incorporation or By-laws, or any
contract or undertaking to which it is a party or by which it or its property is
or may be bound.
3.2 This Amendment is its legal, valid and binding obligation,
enforceable against it in accordance with the terms hereof.
3.3 No consent, approval or authorization of or declaration,
registration or filing with any governmental authority or any nongovernmental
person or entity, including, without limitation, any of its creditors or
stockholders, is required on its part in connection with the execution, delivery
and performance of this Amendment or as a condition to the legality, validity or
enforceability of this Amendment.
3.4 After giving effect to the amendments herein contained, the
representations and warranties contained in Article V of the Credit Agreement
are true on and as of the date hereof with the same force and effect as if made
on and as of the date hereof.
ARTICLE 4.
ADDITIONAL COVENANTS OF THE COMPANY
The Company shall:
4.1 Promptly perform and observe, and cause each other Borrower and
each Guarantor to perform and observe, its respective obligations set forth in
this Amendment.
4.2 Cause each of the Guarantors to execute the Consent and Agreement
at the end of this Amendment.
4.3 Not later than April 6, 2001, prepare and deliver to the Agent and
the Lenders a revised interim business plan and detailed budget forecast for the
remainder of the year 2001 and through the remainder of the Restructuring
Period, including financial and cash flow projections, and such business plan,
budget forecast and projections shall be acceptable to the Required Lenders
(once approved by the Required Lenders, such budget forecast and projections
shall be referred to as the "Approved Budget"). The cash flow projections shall
be prepared in the same manner as required under the Third Amendment. Not later
than Thursday of each week (commencing April 12, 2001), the Company shall update
all applicable line items of the Approved Budget and domestic cash flow
projections to reflect actual results from the prior week and on a cumulative
basis, and shall prepare and deliver to the Agent and the Lenders such update
and a report of any variances between actual results and the Approved Budget
originally approved by the Required Lenders.
4.4 Promptly deliver to the Lenders such information as has previously
been requested in writing by the Lenders, the Agent or the Agent's financial
consultant.
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4.5 Within five (5) Business Days following a request by the Agent,
cause each of its Foreign Subsidiaries, to the extent requested by the Agent, to
execute and deliver to the Agent one or more guarantees of the Company's
indebtedness in favor of the Lenders.
4.6 Within five (5) Business Days following a request by the Agent,
cause each of its Foreign Subsidiaries to complete the execution and delivery of
the Security Documents as required by the Agent and to the extent permitted by
applicable law and not cost prohibitive as determined by the Agent.
4.7 Not permit any amendment pertaining to any Subordinated
Indebtedness unless the form and substance of such amendment is acceptable to
the Lenders and the Agent as evidenced by the written consent of the Agent,
which may be withheld in the sole discretion of the Agent and the Lenders.
4.8 Promptly complete, and cause each other Borrower to complete, all
matters required by the Agent for full implementation of the dominion of funds
arrangement between the Borrowers and the Agent and otherwise cooperate with the
implementation of such arrangement.
4.9 Promptly execute and deliver, and cause each other Borrower and
each Guarantor to execute and deliver, such other documents as the Agent or the
Lenders may reasonably request.
4.10 With respect to any sums required to be paid under the terms of
this Amendment to the Agent or the Lenders prior to the date of execution
hereof, pay such sums immediately upon execution of this Amendment.
ARTICLE 5.
MISCELLANEOUS.
5.1 Cross References. References in the Credit Agreement or in any
note, certificate, instrument or other document to the "Credit Agreement" shall
be deemed to be references to the Credit Agreement as amended hereby and as
further amended from time to time.
5.2 Expenses and Costs. Each Borrower agrees to pay and to save the
Agent and the Lenders harmless for the payment of all fees, out-of-pocket
disbursements, and other costs and expenses incurred by or on behalf of the
Agent or any Lender arising in any way in connection with this Amendment, or any
other document relating to indebtedness described in the recitals to this
Amendment, including the fees and expenses of Xxxxxxxxx Xxxxxx PLLC, counsel to
the Agent, and Xxx Xxxx & Associates, Inc., consultant to the Agent, and
specifically including, without limitation, (a) the cost of any financial audit
or inquiry conducted by the Agent, any Lender or their consultants, (b) the fees
and expenses of counsel for the Agent or any Lender for the work performed as a
result of the Borrowers' defaults or financial problems, and for the
preparation, examination and approval of this Amendment or any documents in
connection with this Amendment, (c) for the payment of all fees and
out-of-pocket disbursements incurred by the Agent or any Lender, including
attorneys' fees, in any way arising from or in connection with any action taken
by the Agent or any Lender to monitor, advise, enforce or collect the
obligations described in the recitals hereto or to enforce any obligations of
any Borrower or any Guarantor under this Amendment or the other documents
referred to herein, including any actions to lift the automatic stay or to
otherwise in any way participate in any bankruptcy, reorganization or insolvency
proceeding of any Borrower or Guarantor or in any trial or appellate
proceedings, and (d) any expenses or fees (including attorneys' fees) incurred
in relation to or in defense of any litigation instituted by any Borrower, any
Guarantor or any third party against the Agent or any Lender arising from or
relating to the obligations described in the recitals hereto or this Amendment,
including any so-called "lender liability" action. All of these expenses and
fees (including attorneys' fees) shall be part of
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the obligations and indebtedness owing under the Credit Agreement, and shall be
secured by all of the collateral described in the Security Documents. In the
event the Borrowers fail to pay any such fees, expenses and costs within five
(5) days of being invoiced therefor, the Agent or the Lenders, as the case may
be, shall be permitted to charge the accounts of any Borrower for such fees,
expenses and costs, without prejudice to any other rights or remedies of the
Agent or the Lenders. The rights and remedies of the Agent and the Lenders
contained in this paragraph shall be in addition to, and not in lieu of, the
rights and remedies contained in the Credit Agreement, the Security Documents
and as otherwise provided by law.
5.3 Waiver of Existing Defaults. The Company has requested that the
Lenders and the Agent waive the Existing Defaults subject to the terms and
conditions set forth herein. Pursuant to such request, the Lenders and the Agent
hereby waive the Existing Defaults for the period prior to the effectiveness of
this Amendment and, so long as there is no occurrence of a new Event of Default
(for purposes hereof, a new Event of Default includes a new or further violation
of any of the sections of the Credit Agreement implicated in any of the Existing
Defaults other than the financial covenants set forth in Article VII thereof),
for the remainder of the Restructuring Period, but not at any time thereafter.
The Company acknowledges and agrees that the waiver contained herein is a
limited, specific and one-time waiver as described above. Such limited waiver
(a) shall not modify or waive any other term, covenant or agreement contained in
any of the Loan Documents, and (b) shall not be deemed to have prejudiced any
present or future right or rights which the Agent or the Lenders now have or may
have under this Amendment, the Credit Agreement (as modified hereby) or the
other Loan documents.
5.4 Release. Each Borrower and each Guarantor represents and warrants
that it is not aware of any claims or causes of action against the Agent or any
Lender, any participant lender or any of their successors or assigns, and that
it has no defenses, offsets or counterclaims with respect to the indebtedness
owed by the Borrowers to the Lenders. Notwithstanding this representation and as
further consideration for the agreements and understandings herein, the
Borrowers and Guarantors, on behalf of themselves and their respective
employees, agents, executors, heirs, successors and assigns, hereby release the
Agent and the Lenders, their respective predecessors, officers, directors,
employees, agents, attorneys, affiliates, subsidiaries, successors and assigns,
from any liability, claim, right or cause of action which now exists or
hereafter arises as a result of acts, omissions or events occurring on or prior
to the date hereof, whether known or unknown, including but not limited to
claims arising from or in any way related to the Credit Agreement or the
business relationship among the Borrowers, the Guarantors, the Agent and the
Lenders.
5.5 Performance by Lenders and Agent; No Agency; Borrowers Remain in
Control. Each Borrower and each Guarantor acknowledges and agrees that the Agent
and the Lenders have fully performed all of their obligations under the Credit
Agreement and all documents executed in connection with the Credit Agreement,
and that all actions taken by the Agent and the Lenders are reasonable and
appropriate under the circumstances and within their rights under the Credit
Agreement and all other documents executed in connection therewith and otherwise
available. The actions of the Agent and the Lenders taken pursuant to this
Amendment and the documents referred to herein are in furtherance of the efforts
of the Agent and the Lenders as secured lenders seeking to collect the
obligations owed to the Lenders. Nothing contained in this Amendment shall be
deemed to create a partnership, joint venture or agency relationship of any
nature between the Borrowers and the Lenders or the Agent. The Borrowers, the
Guarantors, the Agent and the Lenders agree that notwithstanding the provisions
of this Amendment, each Borrower remains in control of its business operations
and determines the business plans (including employment, management and
operating directions) for its business.
5.6 Entire Agreement; Severability. The Credit Agreement, as previously
amended and as amended by this Amendment, constitutes the entire understanding
of the parties with respect to the subject matter hereof and may only be
modified or amended by a writing signed by the party to be charged. If any
provision of this Amendment is in conflict with any applicable statute or rule
of law or
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otherwise unenforceable, such offending provision shall be null and void only to
the extent of such conflict or unenforceability, but shall be deemed separate
from and shall not invalidate any other provision of this Amendment.
5.7 No Other Promises or Inducements. There are no promises or
inducements which have been made to any signatory hereto to cause such signatory
to enter into this Amendment other than those which are set forth in this
Amendment. Each Borrower and each Guarantor acknowledges that its authorized
officers have thoroughly read and reviewed the terms and provisions of this
Amendment and are familiar with same, that the terms and provisions contained
herein are clearly understood by such Borrower or Guarantor and have been fully
and unconditionally consented to by such Borrower or Guarantor, and that such
Borrower or Guarantor has had full benefit and advice of counsel of its own
selection, or the opportunity to obtain the benefit and advice of counsel of its
own selection, in regard to understanding the terms, meaning and effect of this
Amendment, and that this Amendment has been entered into by each Borrower and
Guarantor freely, voluntarily, with full knowledge, and without duress, and that
in executing this Amendment, each Borrower and Guarantor is relying on no other
representations, either written or oral, express or implied, made by any other
party hereto, and that the consideration hereunder received by the Borrowers has
been actual and adequate.
5.8 Sufficiency of Restructuring Period. Each Borrower represents that:
(a) it has no intention to file or acquiesce in the filing of any bankruptcy or
insolvency proceeding hereafter, absent approval on behalf of the Agent and the
Lenders of such proceeding; and (b) the Restructuring Period (as extended
herein) is sufficient for such Borrower to accomplish the commitments it has
undertaken in this Amendment.
5.9 Ratification. The Borrowers agree that the Credit Agreement, the
Security Documents and all other documents and agreements executed by the
Borrowers or the Guarantors in connection with the Credit Agreement in favor of
the Agent or any Lender are ratified and confirmed and shall remain in full
force and effect as amended hereby, and that there is no set off, counterclaim
or defense with respect to any of the foregoing. Terms used but not defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
5.10 Counterparts; Effectiveness. This Amendment may be executed in any
number of counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument. Facsimile copies of signatures shall be
treated as original signatures for all purposes under this Amendment. This
Amendment shall become effective as of March 30, 2001 when each of the following
has been satisfied:
(a) Receipt by the Agent of counterparts of this Amendment duly
executed by each Borrower and each Lender, and counterparts of the Consent and
Agreement annexed hereto duly executed by each Guarantor.
(b) With respect to any interest, fees or other charges previously
required to be paid by the Company under the terms of any waiver or extension
letter (as modified by the terms of this Amendment), receipt by the Agent of
full payment of such interest, fees or other charges.
(c) Copies, certified by the Secretary or Assistant Secretary of each
Borrower and Guarantor, of its Board of Directors' resolutions and of
resolutions or actions of any other body authorizing the execution of this
Amendment and all Security Documents to be executed in connection herewith to
which the Company or Guarantor, as applicable, is a party.
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(d) An incumbency certificate, executed by the Secretary or Assistant
Secretary of each Borrower and Guarantor, which shall identify by name and title
and bear the signatures of the Authorized Officers and any other officers of
each Borrower and Guarantor authorized to sign this Amendment and all Security
Documents to be executed in connection herewith to which the Company and each
Guarantor is a party, upon which certificate the Agent and the Lenders shall be
entitled to rely until informed of any change in writing by such Borrower and
such Guarantor.
(e) A written opinion of the Borrowers' and Guarantors' counsel,
addressed to the Agent and Lenders and in form and substance satisfactory to the
Agent.
(f) Executed copies of all Security Documents and other documents in
connection therewith requested by the Agent, together with all necessary
consents and other related documents in connection therewith, insurance
certificates, financing statements, environmental reports, opinions of foreign
counsel, original stock certificates and related transfer powers, UCC, judgment
and other lien and encumbrance searches, title searches and insurance, surveys
and other documents required by the Agent.
(g) Delivery of such other agreements and documents, and the
satisfaction of such other conditions as may be reasonably required by the
Agent, including without limitation a solvency certificate of the Company, and
such evidence of the perfection and priority of all liens and security interests
as required by the Agent, all of which shall be satisfactory to the Agent and
its counsel to the extent required by the Agent.
5.11 Other Documents. Each Borrower and each Guarantor agrees to
execute and deliver any and all documents reasonably deemed necessary or
appropriate by the Agent or the Lenders to carry out the intent of and/or to
implement this Amendment.
5.12 Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Michigan without giving effect to
choice of law principles of such State.
5.13 Miscellaneous. This Amendment is made for the sole benefit and
protection of the Borrowers, the Agent and the Lenders and their respective
successors and permitted assigns (provided that no Borrower shall be permitted,
absent the prior written consent of all of the Lenders, to assign any of its
rights or obligations under this Amendment). No other person or entity shall
have any rights whatsoever under this Amendment. Time shall be of the strictest
essence in the performance of each and every one of the Borrowers' obligations
hereunder.
5.14 Construction. This Amendment shall not be construed more strictly
against the Lenders or the Agent merely by virtue of the fact that the same has
been prepared by the Lenders and the Agent or their counsel, it being recognized
that the Company, the Agent and the Lenders have contributed substantially and
materially to the preparation of this Amendment, and each of the parties hereto
waives any claim contesting the existence and the adequacy of the consideration
given by any of the other parties hereto in entering into this Amendment.
5.15 Headings. The headings of the various paragraphs in this Amendment
are for convenience of reference only and shall not be deemed to modify or
restrict the terms or provisions hereof.
5.16 Waiver of Jury Trial; Consent to Jurisdiction. (a) Each Borrower,
each Guarantor, each Lender and the Agent hereby specifically ratifies and
confirms the waiver of jury trial set forth in Section 12.16 of the Credit
Agreement. Without limiting the generality of the preceding ratification and
confirmation, each Borrower, each Guarantor, each Lender and the Agent, after
consulting or having had
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the opportunity to consult with counsel, knowingly, voluntarily and
intentionally waives any right any of them may have to a trial by jury in any
litigation or proceeding based upon or arising out of this Amendment or any
related instrument or agreement or any of the transactions contemplated by this
Amendment or any conduct, dealing, statements (whether oral or written) or
actions of any of them. None of the Borrowers, the Guarantors, the Lenders or
the Agent shall seek to consolidate, by counterclaim or otherwise, any such
action in which a jury trial has been waived with any other action in which a
jury trial cannot be or has not been waived. These provisions shall not be
deemed to have been modified in any respect or relinquished by any party hereto
except by a written instrument executed by such party.
(b) Each Borrower and each Guarantor agrees that any legal action or
proceeding with respect to this Amendment or any related instrument or
agreement, including the Credit Agreement as previously amended and as amended
hereby, or with respect to the transactions contemplated hereby, may be brought
in any court of the State of Michigan, sitting in or having jurisdiction over
the County of Wayne, Michigan, or in any federal court located within the
Eastern District of Michigan, and Borrowers and Guarantors hereby submit to and
accept generally and unconditionally the non-exclusive jurisdiction of those
courts with respect to their person and property and irrevocably consent to
service of process in connection with any such action or proceeding by mailing
such service of process (certified or registered, if capable of certification or
registration) to Borrowers and/or Guarantors at the address they may have from
time to time provided to the Agent. Borrowers and Guarantors hereby irrevocably
waive any objection based upon jurisdiction, improper venue or forum non
conveniens in any such suit or proceeding in the above-described courts. Nothing
contained herein shall limit the right of the Agent or the Lenders to serve
process in any other manner permitted by law or limit the right of the Agent or
the Lenders to commence any such action or proceeding in the courts of any other
jurisdiction.
[Signatures next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date and year first above written.
LASON, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Title: Executive Vice President and CFO
-----------------------------------------
LASON CANADA COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Title: Executive Vice President and CFO
-----------------------------------------
LASON U.K., LTD.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Title: Director
----------------------------------------
BANK ONE, MICHIGAN, AS AGENT AND AS A LENDER
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------------
Title: First Vice President
-----------------------------------------
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Title: Vice President
-----------------------------------------
CREDIT LYONNAIS-CHICAGO BRANCH
By: /s/ Xxxx-Xxxxxxx van Essche
--------------------------------------------
Title: Vice President
-----------------------------------------
NATIONAL CITY BANK
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Title: Executive Vice President/Sr. Credit
Officer
-----------------------------------------
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ABN AMRO BANK N.V.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Title: Group Senior Vice President
-----------------------------------------
And By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Title: Group Vice President
-----------------------------------------
MICHIGAN NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Title: Controller - Asset Structuring
-----------------------------------------
UNION BANK OF CALIFORNIA, N. A.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------------
Title: Vice President
-----------------------------------------
THE FUJI BANK LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Title: Senior Vice President & Group Head
-------------------------------------
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Title: Vice President
-----------------------------------------
MELLON BANK, N.A.
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Title: First Vice President
-----------------------------------------
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FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxx
--------------------------------------------
Title: Authorized Officer
-----------------------------------------
BARCLAYS BANK PLC
NEW YORK BRANCH
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Title: Director
-----------------------------------------
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CONSENT AND AGREEMENT OF GUARANTORS
As of the date and year first above written, each of the undersigned
hereby:
(a) fully consents to the terms and provisions of the above Amendment
and the consummation of the transactions contemplated thereby and agrees to all
terms and provisions of the above Amendment applicable to it;
(b) agrees that each Guaranty, Security Document and all other
agreements executed by any of the undersigned in connection with the Credit
Agreement or otherwise in favor of the Agent or the Lenders (collectively, the
"Guarantor Documents") are hereby ratified and confirmed and shall remain in
full force and effect, and each of the undersigned acknowledges that it has no
setoff, counterclaim or defense with respect to any Guarantor Document; and
(c) acknowledges that its consent and agreement hereto is a condition
to the Lenders' obligation under this Amendment and it is in its interest and to
its financial benefit to execute this consent and agreement.
LASON SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Its: Executive Vice President and CFO
-------------------------------------
LASON SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Its: Executive Vice President and CFO
-------------------------------------
LASON INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Its: Executive Vice President and CFO
-------------------------------------
LASON SYSTEMS PMC, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Its: Executive Vice President and CFO
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