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EXHIBIT 10.22
WAIVER AGREEMENT AND AMENDMENT NO. 8 TO
CREDIT AGREEMENT AND OTHER LOAN AND LEASE DOCUMENTS
THIS WAIVER AGREEMENT AND AMENDMENT NO. 8 TO CREDIT AGREEMENT AND OTHER
LOAN AND LEASE DOCUMENTS ("this Amendment") is dated as of September 8, 2000, by
and between the BANKS listed on the signature pages hereof ("Banks"), BANK ONE,
COLORADO, N.A., as Agent ("Agent"), BANC ONE LEASING CORPORATION, as Lessor
("Banc One Leasing"), ANALYTICAL SURVEYS, INC., as Borrower and Lessee
("Borrower"), MSE CORPORATION, an Indiana corporation, as Guarantor and lease
guarantor ("MSE"), ASI LANDMARK, INC., a Colorado corporation, as Guarantor and
lease guarantor ("Landmark"), ASI OF PUERTO RICO, INC., a Puerto Rico
corporation, as Guarantor ("Puerto Rico"), MSE HOLDING COMPANY, an Indiana
corporation, as Guarantor ("MSE Holding"), MSE LLC, an Indiana limited liability
company, as Guarantor ("MSE LLC"), CARTOTECH, INC., a Texas corporation, as
lease guarantor ("Cartotech"), INTELLIGRAPHICS INTERNATIONAL, INC. ALSO KNOWN AS
ASI TECHNOLOGIES (INTELLIGRAPHICS), a Wisconsin corporation, as lease guarantor
("Intelligraphics"), and SURVEY HOLDINGS, INC., a Texas corporation, as
Guarantor and lease guarantor ("Holdings" which together with MSE, Landmark,
Puerto Rico, MSE Holding, MSE LLC, Cartotech, Intelligraphics and Holdings may
be collectively referred to as "Guarantors");
WITNESSETH:
WHEREAS, Borrower, Banks and Agent are parties to a Credit Agreement dated
as of June 3, 1998, as amended by Amendment No. 1 through Amendment No. 5,
Waiver Agreement and Amendment No. 6 to Credit Agreement and Other Loan and
Lease Documents and Waiver Agreement and Amendment No. 7 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 Holdings, MSE LLC,
Landmark, and Puerto Rico each executed and delivered to Agent a Guaranty of the
Obligations;
WHEREAS, to secure each of their respective Guaranties and to further
secure the Obligations, MSE, MSE Holdings, MSE LLC, Landmark, and Puerto Rico
each executed and delivered to Agent a Security Agreement and Assignment;
WHEREAS, to further secure the Leases, MSE, Landmark, Holdings, Cartotech
and Intelligraphics each executed and delivered to Banc One Leasing a guaranty
of the Leases;
WHEREAS, Borrower and Guarantors desire that Banks extend the maturity of
the Revolving Loans, modify the payment dates of certain of the Obligations,
waive all identified existing Events of Default and Defaults, and modify certain
terms of the Credit Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements contained herein and the acts to be performed
hereunder, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties, the parties
hereby jointly and severally agree as follows:
1. Incorporation of Recitals/Definitions. The foregoing recitals and
definitions set forth above are incorporated herein and made a part hereof.
Terms which are defined in the Credit Agreement and which are not otherwise
defined in this Amendment shall have the meanings ascribed to them in the Credit
Agreement.
2. Waiver.
(a) Acknowledgment of Default. Borrower and Guarantors acknowledge
that Borrower, as of the date of this Amendment, is not in compliance with
the financial covenants set forth in Sections 5.2(a)(i) and 5.2(a)(ii) of
the Credit Agreement and Section 18 of the Master Lease, and that each such
non-compliance, until and except as waived by the Banks and Banc One
Leasing, constitutes an Event of Default under the Credit Agreement (all
such non-compliance being collectively referred to as the "Financial
Covenant Defaults").
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(b) Waiver. Banks and Banc One Leasing hereby waive the Financial
Covenant Defaults, all such waivers being effective through October 1, 2001
(or such later date as may hereafter be agreed to in writing by Banks). The
Banks and Banc One Leasing also hereby waive, effective through October 1,
2001, compliance by Borrower with Sections 5.2(a)(i) and (ii) of the Credit
Agreement and Section 18 of the Master Lease. Banc One Leasing hereby
waives, effective through October 1, 2001, any default or event of default
by reason of the Financial Covenant Defaults and the Monetary Defaults.
(c) Effect of Extension and Waiver. The extension and waivers granted
pursuant to Subsection (b) of this Section 2 are not and shall not be
deemed to be a waiver by Banks or Banc One Leasing of any other Defaults or
Events of Default which may now or hereafter exist.
3. Amendments to Credit Agreement.
(a) The following new definitions are inserted in Section 1.1 of the
Credit Agreement such that all definitions therein are in alphabetical
order:
"Eighth Amendment" means the Waiver Agreement and Amendment No. 8
to Credit Agreement and Other Loan and Lease Documents, dated as of
September 8, 2000, by and between Borrower, certain Subsidiaries or
Affiliates of Borrower, Banc One Leasing Corporation, Banks and Agent.
"Eligible Retainage" means that portion of Eligible Accounts
Receivable of the Borrower and the Guarantors payment of which is
withheld by an account debtor as security for Borrower's or such
Guarantor's performance pending completion of the contract giving rise
to said Eligible Account Receivable, payment of which is not in
dispute, which are subject to a first and prior Lien in favor of the
Agent on behalf of the Banks pursuant to the Collateral Documents
(reduced by the amount of any refund, rebate, allowance, discount or
other concession to the account debtor in connection therewith).
(b) The definition of Eligible Account Receivable in Section 1.1 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"Eligible Account Receivable" means all Accounts Receivable of
the Borrower and the Guarantors which are subject to a first and prior
Lien in favor of the Agent on behalf of the Banks pursuant to the
Collateral Documents (reduced by the amount of any refund, rebate,
allowance, discount or other concession to the account debtor in
connection therewith) except for the following:
(a) Accounts Receivable with respect to which the account debtor
is an Affiliate of the Borrower or any Guarantor, or a director,
officer, employee or agent of the Borrower or any Guarantor;
(b) Accounts Receivable by reason of which the payment of the
account debtor may be conditional;
(c) Accounts Receivable which are subject to dispute,
counterclaim or setoff;
(d) Accounts Receivable from account debtors whose financial
condition or creditworthiness of such account debtor is unacceptable
under the credit policy of the Borrower, which credit policy shall be
consistent with prudent industry practice;
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(e) Accounts Receivable which are more than 90 days past the
invoice date and more than 45 days after the date of acceptance by
Borrower's or any Guarantor's account debtors of the work represented
by such Accounts Receivable;
(f) Account Receivable owing from a single account debtor if
more than Twenty-five percent (25%) of its Accounts Receivable with
the Borrower and all Guarantors is more than 90 days past the invoice
date and more than 45 days after the date of acceptance by Borrower's
or any Guarantor's account debtors of the work represented by such
Accounts Receivable;
(g) Accounts Receivable from account debtors which do not
maintain their principal place of business in the United States,
unless they are supported by an irrevocable letter of credit from a
banking institution in the United States acceptable to the Agent in
its sole discretion;
(h) Accounts Receivable from an account debtor which has filed,
or which has had filed against it, and is pending, a petition in
bankruptcy or an application for relief under any provision of any
state or federal bankruptcy, insolvency or debtor-relief statute; or
which has had appointed, and continues to be appointed, a trustee,
custodian or receiver for the assets of such account debtor; or which
has made, and is pending, an assignment for the benefit of creditors
or has become, and remains, insolvent or has failed, and continues to
fail, generally to pay its debts (including its employee payroll) as
such debts become due; and
(i) Accounts Receivable which are not subject to a Lien in favor
of the Agent, or which are subject to a Lien in favor of a Person
other than the Agent, whether or not such Lien is junior to the Lien
of the Agent other than Liens imposed by any Governmental Authority
for taxes, assessments or charges not yet due or which are being
contested in good faith and with due diligence and with respect to
which adequate reserves, determined in the reasonable discretion of
the Agent, have been established and Liens which do not materially and
adversely affect the Banks' rights and interests in such Accounts
Receivable, the Collateral, or the collectibility of the Accounts
Receivable.
(c) Revolving Loans Scheduled Maturity Date. The definition of
Revolving Loans Scheduled Maturity Date in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Revolving Loans Scheduled Maturity Date" means September 1,
2001.
(d) Revolving Note. The definition of Revolving Note in Section 1.1
of the Credit Agreement is hereby amended in its entirety to read as
follows:
"Revolving Note" means the promissory notes in the aggregate
principal amount of $7,500,000 made by the Borrower and payable to the
order of the Banks, substantially in the form of Exhibit A-1 hereto,
as the same may be supplemented, modified, amended or restated from
time to time in the manner provided herein.
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(e) Term Loan Scheduled Maturity Date. The definition of Term Loan
Scheduled Maturity Date in Section 1.1 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"Term Loan Scheduled Maturity Date" means October 1, 2001.
(f) Restructure of Term Loan Payment. Section 2.6(b) is hereby
amended 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 January 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.
(g) Mandatory Prepayments. Section 2.6(d) of the Credit Agreement is
hereby amended in its entirety to read as follows:
(d) Mandatory Repayment Notwithstanding any provision of this
Agreement to contrary:
(i) The Borrower will repay the Loans in full on demand upon
the acceleration of the due date of any of the Loans by the
Agent pursuant to Article VI 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 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 ninety percent (90.0%) of Borrower's
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) on or before November 30, 2000, the sum of One Million
Two Hundred Twenty-Five Thousand Dollars ($1,225,000.00)
less the
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proceeds of any Tax Refunds attributable to State 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 Eighth Amendment; (y) on or before January 1,
2001, the sum of Four Million Dollars ($4,000,000.00)
reduced by the proceeds of any equity securities issuance or
sale received by Agent after the date of the Eighth
Amendment pursuant to Section 2.6(d)(ii) hereof; 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 Eighth Amendment.
(h) Borrowing Base. Section 2.15(b) of the Credit Agreement is hereby
amended to read as follows:
(b) For purposes of this Agreement, the term "Borrowing Base"
shall mean a dollar amount equal to the sum of: (i) seventy-five
percent (75%) of Eligible Accounts Receivable which are less than
90 days past the invoice date; plus (ii) fifty percent (50%) of
Eligible Retainage; plus (iii) fifty percent (50%) of Eligible
Accounts Receivable which are more than 90 days past the invoice
date but not more than 45 days after the date of acceptance by
Borrower's or any Guarantor's account debtors of the work
represented by such Accounts Receivable.
(i) Section 5.1(s) of the Credit Agreement is hereby amended in its
entirety to read as follows:
(s) Tax Refunds. On or before the earliest of one hundred twenty
(120) days after the end of their respective tax years, the
Borrower and Guarantors shall file all income tax returns,
schedules and other filings with the Internal Revenue Service,
Colorado Department of Revenue, Indiana Department of Revenue and
the department of revenue or similar agency of all other states
in which Borrower and/or any Guarantor is entitled to claim a
refund of taxes, to recover the Federal and State tax refunds
which the Borrower has advised the Banks in connection with
negotiation of the Eighth Amendment that Borrower is entitled to
claim and all other Federal and State tax refunds to which the
Borrower and Guarantors are, or hereafter may become, entitled
(collectively, the "Tax Refunds"). The Borrower shall provide the
Agent with copies of all such filings within ten (10) days of the
filing thereof. To the extent permitted by law, the Borrower
shall, and shall cause the Guarantors, to assign and cause such
Tax Refunds to be paid directly to the Agent for the benefit of
the Banks. Notwithstanding any other provision of this Agreement
to the contrary, any of the Tax Refunds received by Borrower or
any Guarantor shall be paid over to Agent for the benefit of the
Banks within one (1) business day of the receipt thereof by
Borrower or such Guarantor. Immediately upon receipt by the
Banks, the Tax Refunds shall be applied as mandatory principal
payments on the Term Loan in the inverse order of maturity.
(j) Article IX of the Credit Agreement is hereby amended 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 (as if the Monetary
Defaults and Financial Covenants Defaults did not occur) and otherwise in
accordance with the terms of this Agreement, except that notwithstanding
any provision of this Agreement to the contrary:
(i) Borrower shall cause the aggregate principal balance of the
Revolving Loans outstanding to be not more than one hundred ten
percent (110%) of the amount set forth in SCHEDULE 9.3(I), attached
hereto, on the fifth day of the month so indicated.
(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 ninety percent (90.0%) of Borrower's Unbilled
Revenues; and
(iii) Banks shall have no obligation to make any Advances if any Event
of Default or Default, other than those Events of Default and Default
waived in the Sixth Amendment, 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 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%).
9.6 Financial Information and Reporting. In addition to all other
financial statements and reports required by the terms of this Agreement
during the Interim Period 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 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)
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effective for the week ending September 15, 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 September 15, 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 September 13, 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), 9.13, 9.16(b) and 9.16(c) of this Agreement.
9.7 Independent Consultant. During the Interim Period, Borrower shall
continue to employ a financial management consulting firm ("Financial
Management Consultant") acceptable to Banks. Borrower's current Financial
Management Consultant, Xxxxxxxx & Associates, Inc., is acceptable to the
Banks.
9.8 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 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.
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9.9 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 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.
9.10 Delivery of Contracts. Upon request of Agent from time to time,
Borrower shall within three (3) Business Days of such request deliver to
Agent copies of Borrower's and Guarantors' contracts with their respective
customers not previously delivered to Agent.
9.11 Contract Review. The Agent may retain a consultant of its choice
to review the Borrower's and Guarantors' contracts at Borrower's expense.
Such review shall be in scope and detail satisfactory to the Agent.
9.12 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.
9.13 Capital Expenditures. For the period from September 1, 2000
through October 1, 2001, Capital Expenditures shall not exceed that portion
of the amount of Capital Expenditures set forth in SCHEDULE 9.13.
9.14 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.
9.15 Cash Collateral Account. Borrower shall maintain with Agent a
cash collateral account, over which Agent alone shall have the power of
withdrawal.
9.16 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 9.10; (ii) a Rolling Cash Flow Projection; (iii) any Borrowing
Base Certificate, A/R Aging, Revenue Report or Status Report; or (iv)
any other information required to delivered to Agent or Banks pursuant
to the terms of this Agreement.
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(b) Cash Receipts Shortfall. Borrower's actual cumulative cash
receipts (excluding state income tax refunds) 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
(excluding state income tax refunds) for such month-end as set forth
in SCHEDULE 9.16(b), attached hereto.
(c) Cash Expenditures. Borrower's actual cumulative cash
expenditures (excluding Capital Expenditures) for months ending
September 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 on SCHEDULE 9.16(C), attached hereto, for such month-end.
4. Conditions Precedent. This Amendment shall be effective when each of
the following have been satisfied:
(a) Agent has received the initial installment of the Extension Fee
required by Section 9.8 of the Credit Agreement as amended by this
Amendment;
(b) Amendment to Pledge Agreement. Borrower has executed and
delivered to Agent an amendment of the Pledge Agreement to include the
stock or other ownership interest of Borrower in Infotech Enterprises Ltd.
as Collateral; and
(c) Borrower, each Guarantor, Agent, each Bank and Banc One Leasing
has executed this Amendment and Agent has received a counterpart originally
executed by each of the foregoing.
5. Post-Closing Items. On or before September 18, 2000, 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.
6. 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 6,
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
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AMENDMENT, THEY UNDERSTAND THAT THIS AMENDMENT CONTAINS A RELEASE OF THE
BROADEST POSSIBLE NATURE AND RESULTS IN THE RELEASE OF THOSE CLAIMS KNOWN TO THE
PARTIES AND THOSE CLAIMS WHICH ARE NOT KNOWN TO THE PARTIES AND, FURTHERMORE,
THAT THE RELEASE HEREBY GIVEN IS GIVEN IN EACH AND EVERY CAPACITY WHICH THE
PARTY HOLDS AND RELEASES NOT ONLY THOSE CLAIMS WHICH THE PARTY MIGHT HAVE
BROUGHT DIRECTLY PRIOR TO THE EXECUTION OF THIS AMENDMENT BUT ALSO THOSE CLAIMS
WHICH MAY HAVE BEEN BROUGHT INDIRECTLY OR DERIVATIVELY BY BORROWER OR
GUARANTORS. BORROWER AND EACH OF THE GUARANTORS SHALL BE DEEMED TO HAVE
RELEASED, RELINQUISHED, WAIVED AND DISCHARGED EACH AND EVERY CLAIM ANY OF THEM
MAY HAVE WHETHER NOW EXISTING OR HEREAFTER ARISING TO THE FULLEST EXTENT
POSSIBLE AS HEREINBEFORE PROVIDED. BORROWER AND GUARANTORS ACKNOWLEDGE THAT THE
PROVISIONS OF THIS SECTION 6 ARE A MATERIAL INDUCEMENT FOR THE BANKS AND AGENT
TO ENTER INTO THIS AMENDMENT. For the purposes of this Section 6, 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 6, 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 6, 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.
7. 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;
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(b) Banc One Leasing and Banks are not obligated to reach any further
agreement concerning the reinstatement, restructure or modification of the
Obligations, any obligation under or with respect to the Master Lease and
the Leases or any of the Loan Instruments, the Master Lease or any of the
Leases; and
(c) Neither this Amendment, nor any action taken or forbearance by
Banc One Leasing and the Banks pursuant to this Amendment, shall impair,
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.
8. Substitution of Exhibit. Exhibit A-1 attached to this Amendment shall
be substituted in lieu of Exhibit A-1 of the Credit Agreement.
9. Consent of Guarantor. Each of the Guarantors hereby expressly consent
to the execution and delivery of this Amendment by each of the parties to this
Amendment, including Banks and Banc One Leasing, and to the performance by
Borrower, Guarantors, Agent, Banks and Banc One Leasing pursuant to this
Amendment and agrees that neither the provisions of this Amendment nor any
action taken or not taken in accordance with the terms of this Amendment shall
constitute a termination, extinguishment, release or discharge of any of the
Obligations or the liability of the Borrower with respect thereto or the
obligations of any Guarantor or provide a defense, setoff or counterclaim to the
Borrower or any Guarantor with respect to any of the Obligations under the
Credit Agreement, any Guarantee in favor of Agents or Banks, as applicable, or
any Lease now existing or hereafter arising.
10. Survival/No Third Party Beneficiaries. All of the acknowledgments,
representations, warranties, covenants and agreements of the Borrower and each
of the Guarantors shall survive and continue in full force and effect from and
after the closing of this Amendment. There are no third party beneficiaries of
or to this Amendment.
11. No Joint Venture. Borrower and Guarantors acknowledge that the
relationship between Borrower and Guarantors, on the one hand, and Agent, Banks
and Banc One Leasing, on the other, is strictly that of "debtor/creditor", and
that this Amendment shall not be construed as creating a partnership, joint
venture or co-venture between them. Borrower and Guarantors acknowledge and
agree that neither Agent, any of the Banks nor Banc One Leasing is a fiduciary
with respect to them, or the creditors or equity security holders of Borrower or
Guarantors.
12. Counterparts. This Amendment may be executed in several counterparts
and by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one
instrument.
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13. Entire Agreement. This Amendment embodies the entire agreement and
understanding between Borrower, Guarantors, Agent, Banks and Banc One Leasing
with respect to the subject matter hereof, and supersedes all prior agreements
and understandings relating to its subject matter. This Amendment may not be
amended or in any manner modified unless such amendment or modification is in
writing and signed by all of the parties hereto.
14. Ratification. Borrower and each Guarantor hereby ratifies and confirms
its Obligations under the Credit Agreement and the other Loan Instruments, as
amended hereby, and the liens and security interests created thereby, and
acknowledges that it has no defenses, claims or setoffs to the enforcement by
Agent or Banks of Borrower's and/or Guarantors' Obligations under the Credit
Agreement and the other Loan Instruments, as amended hereby.
15. Continued Effectiveness. The Credit Agreement and the Loan Instruments
shall be amended only to the extent provided herein and shall remain in full
force and effect in accordance with their respective terms, as hereby amended.
16. Expenses. Borrower agrees to pay or reimburse on demand all reasonable
costs and expenses of the Agent, including, without limitation, legal fees,
incurred in connection with the preparation, execution, delivery, interpretation
or enforcement of this Amendment and the other agreements, documents and
instruments provided for herein and/or the interpretation or enforcement of the
Credit Agreement or any of the other Loan Instruments and/or any rights and/or
remedies of Agent and/or Banks under the Credit Agreement, this Amendment or any
of the other Loan Instruments.
17. Applicable Law. This Amendment shall be governed by and construed in
accordance with the substantive law of the State of Indiana notwithstanding the
fact that the conflict of law provisions of Indiana law may require the
application of the substantive law of another jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Amendment.
ANALYTICAL SURVEYS, INC., as Borrower
By:
Xxxxxx Xxxxxx, Chief Executive Officer
MSE CORPORATION, as Guarantor and lease
guarantor
By:
Xxxxxx Xxxxxx, Chief Executive Officer
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ASI LANDMARK, INC., as Guarantor and lease
guarantor
By:
Xxxxxx Xxxxxx, Chief Executive Officer
ASI OF PUERTO RICO, INC., as Guarantor
By:
Xxxxxx Xxxxxx, Chief Executive Officer
MSE HOLDING COMPANY, as Guarantor
By:
Xxxxxx Xxxxxx, Chief Executive Officer
MSE LLC, as Guarantor
By:
Xxxxxx Xxxxxx, Chief Executive Officer
CARTOTECH, INC., as lease guarantor
By:
Xxxxxx Xxxxxx, Chief Executive Officer
INTELLIGRAPHICS INTERNATIONAL, INC., also
known as ASI TECHNOLOGIES (INTELLIGRAPHICS),
as lease guarantor
By:
Xxxxxx Xxxxxx, Chief Executive Officer
SURVEY HOLDINGS, INC., as Guarantor and
lease guarantor
By:
Xxxxxx Xxxxxx, Chief Executive Officer
BANK ONE, COLORADO, N.A., as Agent and Bank
By:
Xxxxxxx X. Xxxxxx, Officer
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KEYBANK NATIONAL ASSOCIATION, as Bank
By:
Printed Name and Title
THE FIFTH THIRD BANK OF CENTRAL INDIANA, as
Bank
By:
Printed Name and Title
NATIONAL CITY BANK OF INDIANA, as Bank
By:
Printed Name and Title
BANC ONE LEASING CORPORATION
By:
Xxxxxxx X. Xxxxxxx, Special Assets
Officer
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