<PAGE> 1
(conformed)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED JULY 31, 1997 OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM
____________ TO ____________
COMMISSION FILE NUMBER 0-13667
PDG ENVIRONMENTAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-2677298
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
300 OXFORD DRIVE, MONROEVILLE, PENNSYLVANIA 15146
(Address of principal executive offices) (Zip Code)
412-856-2200
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes __X__ No _____
As of September 3, 1997, there were 6,003,868 shares of the registrant's common
stock outstanding.
<PAGE> 2
PDG ENVIRONMENTAL, INC. AND SUBSIDIARIES
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION PAGE
<S> <C>
Item 1. Consolidated Financial Statements and Notes to Consolidated Financial Statements
(a) Condensed Consolidated Balance Sheets as of July 31, 1997 (unaudited) and January 31, 1997 3
(b) Consolidated Statements of Operations for the Three Months Ended July 31, 1997 and 1996 (unaudited) 4
(c) Consolidated Statements of Operations for the Six Months Ended July 31, 1997 and 1996 (unaudited) 5
(d) Consolidated Statements of Cash Flows for the Six Months Ended July 31, 1997 and 1996 (unaudited) 6
(e) Notes to Consolidated Financial Statements (unaudited) 7
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 10
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 13
Item 3. Defaults Upon Senior Securities 13
Item 6. Exhibits and Reports on Form 8-K 13
Signatures 14
</TABLE>
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
PDG ENVIRONMENTAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
JULY 31, JANUARY 31,
1997 1997*
------------ --------------
(UNAUDITED)
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and short-term investments $ 792,000 $ 429,000
Accounts receivable - net 4,357,000 3,708,000
Costs and estimated earnings in excess of billings on
uncompleted contracts 862,000 614,000
Inventory 169,000 182,000
Other current assets 510,000 507,000
-------------- --------------
TOTAL CURRENT ASSETS 6,690,000 5,440,000
PROPERTY, PLANT AND EQUIPMENT 4,201,000 3,972,000
Less: accumulated depreciation 3,425,000 3,284,000
-------------- --------------
776,000 688,000
OTHER ASSETS 47,000 37,000
-------------- --------------
TOTAL ASSETS $ 7,513,000 $ 6,165,000
============== ==============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 1,982,000 $ 1,699,000
Accrued liabilities 1,520,000 1,212,000
Billings in excess of costs and estimated earnings
on uncompleted contracts 980,000 635,000
Current portion of long-term debt 141,000 1,485,000
-------------- --------------
TOTAL CURRENT LIABILITIES 4,623,000 5,031,000
LONG-TERM DEBT 1,675,000 372,000
STOCKHOLDERS' EQUITY
Cumulative convertible 2% preferred stock 444,000 444,000
Common stock 120,000 118,000
Additional paid-in capital 4,287,000 4,260,000
Deficit (3,636,000) (4,060,000)
-------------- --------------
TOTAL STOCKHOLDERS' EQUITY 1,215,000 762,000
-------------- --------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 7,513,000 $ 6,165,000
============== ==============
</TABLE>
*Derived from audited financial statements.
See accompanying notes to consolidated financial statements.
3
<PAGE> 4
PDG ENVIRONMENTAL, INC. AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED JULY 31,
----------------------------------
1997 1996
------------- -------------
<S> <C> <C>
CONTRACT REVENUES $ 5,310,000 $ 3,715,000
CONTRACT COSTS 4,409,000 3,202,000
------------ -------------
Gross margin 901,000 513,000
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES 591,000 556,000
------------ -------------
Income (Loss) from operations 310,000 (43,000)
OTHER INCOME (EXPENSE):
Interest expense (54,000) (84,000)
Interest income 6,000 -
Other income 9,000 39,000
------------ -------------
(39,000) (45,000)
------------ -------------
Income (Loss) before income taxes and
discontinued operations 271,000 (88,000)
INCOME TAX PROVISION 5,000 -
------------ -------------
INCOME (LOSS) BEFORE DISCONTINUED OPERATIONS 266,000 (88,000)
DISCONTINUED OPERATIONS:
Loss from operations - (252,000)
Gain on disposal - 212,000
------------ -------------
- (40,000)
NET INCOME (LOSS) $ 266,000 $ (128,000)
============ =============
PREFERRED STOCK DIVIDEND REQUIREMENTS $ - $ 9,000
============ =============
PER SHARE OF COMMON STOCK - PRIMARY:
Income (loss) before discontinued operations $ 0.04 $ (0.01)
Discontinued operations - (0.01)
------------ -------------
Net income (loss) per share $ 0.04 $ (0.02)
============ =============
AVERAGE COMMON SHARES OUTSTANDING 5,941,000 5,909,000
AVERAGE DILUTIVE COMMON STOCK EQUIVALENTS OUTSTANDING 1,646,000 -
------------ -------------
AVERAGE COMMON SHARES AND DILUTIVE COMMON
EQUIVALENTS OUTSTANDING FOR EARNINGS PER
SHARE CALCULATION 7,587,000 5,909,000
============ =============
</TABLE>
See accompanying notes to consolidated financial statements.
4
<PAGE> 5
PDG ENVIRONMENTAL, INC. AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED JULY 31,
------------------------------------
1997 1996
--------------- --------------
<S> <C> <C>
CONTRACT REVENUES $ 9,799,000 $ 7,525,000
CONTRACT COSTS 8,069,000 6,691,000
-------------- -------------
Gross margin 1,730,000 834,000
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES 1,218,000 1,231,000
-------------- -------------
Income (loss) from operations 512,000 (397,000)
OTHER INCOME (EXPENSE):
Interest expense (107,000) (168,000)
Interest income 9,000 5,000
Other income 20,000 46,000
-------------- -------------
(78,000) (117,000)
-------------- -------------
Income (loss) before income taxes and
discontinued operations 434,000 (514,000)
INCOME TAX PROVISION 10,000 -
-------------- -------------
LOSS BEFORE DISCONTINUED OPERATIONS 424,000 (514,000)
DISCONTINUED OPERATIONS:
Loss from operations - (505,000)
Gain on disposal - 212,000
-------------- -------------
- (293,000)
NET INCOME (LOSS) $ 424,000 $ (807,000)
============== =============
PREFERRED STOCK DIVIDEND REQUIREMENT $ - $ 18,000
============== =============
PER SHARE OF COMMON STOCK - PRIMARY:
Income (loss) before discontinued operations $ 0.06 $ (0.09)
Discontinued operations - (0.05)
-------------- -------------
Net income (loss) per common share $ 0.06 $ (0.14)
============== =============
AVERAGE COMMON SHARES OUTSTANDING 5,932,000 5,909,000
AVERAGE DILUTIVE COMMON STOCK EQUIVALENTS OUTSTANDING 1,646,000 -
-------------- -------------
AVERAGE COMMON SHARES AND DILUTIVE COMMON
EQUIVALENTS OUTSTANDING FOR EARNINGS PER
SHARE CALCULATION 7,578,000 5,909,000
============== =============
</TABLE>
See accompanying notes to consolidated financial statements.
5
<PAGE> 6
PDG ENVIRONMENTAL, INC. AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED JULY 31,
---------------------------------
1997 1996
------------ ------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ 424,000 $ (807,000)
ADJUSTMENTS TO RECONCILE NET
INCOME (LOSS) TO CASH:
Gain on sale of ICHOR Corporation common stock - (212,000)
Depreciation and amortization 171,000 181,000
Other 1,000 16,000
CHANGES IN ASSETS AND LIABILITIES
OTHER THAN CASH:
Accounts receivable (649,000) (56,000)
Costs and estimated earnings in excess of billings
on uncompleted contracts (248,000) (134,000)
Inventory 13,000 (4,000)
Net assets of discontinued operations - 498,000
Other current assets 155,000 319,000
Accounts payable 105,000 38,000
Billings in excess of costs and estimated earnings
on uncompleted contracts 345,000 (7,000)
Accrued liabilities 308,000 144,000
Other (18,000) -
------------- -------------
TOTAL ADJUSTMENTS IN ASSETS AND LIABILITIES 11,000 798,000
------------- -------------
NET CASH PROVIDED (USED) BY OPERATING ACTIVITIES 607,000 (24,000)
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property, plant and equipment (233,000) (44,000)
Proceeds from the sale of property, plant and equipment 1,000 3,000
------------- -------------
NET CASH USED BY INVESTING ACTIVITIES (232,000) (41,000)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from exercise of stock options 29,000 -
Proceeds from debt 400,000 -
Principal payments on debt (441,000) (89,000)
------------- -------------
NET CASH USED BY FINANCING ACTIVITIES (12,000) (89,000)
------------- -------------
Net Increase (Decrease) in Cash and Short-Term Investments 363,000 (154,000)
Cash and Short-Term Investments, Beginning of Period 429,000 273,000
------------- -------------
CASH AND SHORT-TERM INVESTMENTS, END OF PERIOD $ 792,000 $ 119,000
============= =============
</TABLE>
See accompanying notes to consolidated financial statements.
Additional information:
The proceeds on the sale of ICHOR Corporation common stock of $1,205,000 for
the six months ended July 31, 1996 was not received in the form of cash, but
rather was a direct offset to the debt owed Drummond Financial, Inc.
6
<PAGE> 7
PDG ENVIRONMENTAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE THREE AND SIX MONTHS ENDED JULY 31, 1997
(UNAUDITED)
NOTE 1 -- BASIS OF PRESENTATION
The consolidated financial statements include PDG Environmental, Inc.'s (the
"Corporation") and its wholly-owned subsidiaries. The accounts of ICHOR
Corporation ("ICHOR"), in which PDG Environmental, Inc. maintained until July
31, 1996 a 59.5% ownership interest, are reflected as a discontinued operation.
The accompanying financial statements of the Corporation are unaudited.
However, in the opinion of management, they include all adjustments necessary
for a fair presentation of financial position, results of operations and cash
flows. All adjustments made during the three and six months ended July 31,
1997 were of a normal, recurring nature. The amounts presented for the three
and six months ended July 31, 1997 are not necessarily indicative of results of
operations for a full year. Additional information is contained in the Annual
Report on Form 10-K of the Corporation for the year ended January 31, 1997
dated May 15, 1997 and Quarterly Report on Form 10-QSB of the Corporation for
the quarter ended April 30, 1997 dated June 9, 1997, and should be read in
conjunction with this quarterly report.
The prior year financial statements have been reclassified to reflect ICHOR
business as a discontinued operation.
NOTE 2 - FEDERAL INCOME TAXES
No federal income taxes have been provided for the three and six months ended
July 31, 1997 due to the existence of unused net operating loss carryforwards.
The Company has recorded a provision for state income taxes.
Income taxes paid by the Corporation for the six months ended July 31, 1997 and
1996 totaled approximately $6,000 and $4,000, respectively.
NOTE 3 - DEBT
On July 31, 1996, the Corporation entered into a Loan Modification Agreement
("Modification Agreement") with Drummond Financial Corporation (Drummond).
Pursuant to the Modification Agreement, Drummond purchased all 1,470,320 shares
of ICHOR common stock held by the Corporation for $0.82 per share and the
aggregate purchase price of $1,205,662 was utilized to reduce the outstanding
balance on the line of credit maintained by the Corporation with Drummond.
This resulted in a $212,000 gain on the sale ($0.03 per share). After
application of the proceeds, the debt under the line of credit was reduced to
$1,214,332 at July 31, 1996, and the maximum allowable borrowings under the
line of credit were capped at $1,500,000. The maturity date of the line of
credit and term loan agreements was extended until August 1, 1997. At July 31,
1997, the Corporation had $1,407,000 outstanding on the line of credit.
On May 27, 1997, the Corporation closed on a $375,000 loan from a financial
institution to refinance a $289,000 term loan payable to Drummond maturing on
August 1, 1997. The new loan is for a seven-year term at a 9.5% interest rate
fixed for the first four years of the loan. The interest will then be
readjusted to the current five year treasury bill rate plus 3.25% for the
remaining three years of the loan. The new loan requires monthly debt service
payments of approximately $6,100 which is a reduction of approximately $10,000
from the debt service on the Drummond term loan. The remaining proceeds from
the loan were utilized to reduce the outstanding balance on the line of credit
with Drummond.
On August 25, 1997, the Corporation closed on a new $2 million credit facility
consisting of a 5-year $0.5 million equipment note and a 3-year revolving line
of credit with a maximum advance of $1.5 million. Both the equipment note and
the line of credit have an interest rate of prime plus 3.5%.
7
<PAGE> 8
The proceeds of the new financing fully satisfied the remaining outstanding
balance on the Drummond line of credit and provide working capital for the
Corporation. As of September 2, 1997, the balance on the new revolving line of
credit had been reduced to zero.
The Corporation paid interest costs totaling approximately $54,000 and $29,000
during the six months ended July 31, 1997 and 1996, respectively.
NOTE 4 - PREFERRED STOCK
Cumulative dividends in arrears on the Corporation's 2% Series A Preferred
Stock were approximately $147,000 at July 31, 1997. At July 31, 1997, there
were 185,925 shares of Series A Preferred Stock outstanding. The Series A
Preferred Stock is convertible into four shares of the Corporation's common
stock at the option of the preferred stockholder.
The conversion rate on the Series A Preferred Stock is also subject to
adjustment as a result of certain changes in the Corporation's capital
structure or distributions to common stockholders (except for cash dividends
permissible under law).
NOTE 5 - NET EARNINGS PER SHARE
Primary earnings per share for the six months and three months ended July 31,
1997 were calculated by dividing the net income by the average common shares
outstanding and dilutive common stock equivalents. Stock options and warrants
have been reflected as exercised for purposes of computing the primary earnings
per share for the three months and the six months ended July 31, 1997 since the
exercise of such options and warrants would be dilutive.
The primary (loss) per common share for the three months and the six months
ended July 31, 1996 was computed by adjusting the net loss for the preferred
dividend requirement of $9,000 and $18,000, respectively, and dividing this
amount by the weighted average number of shares of common stock outstanding for
the respective period. The effects of assuming the conversion of preferred
stock or the exercise of stock options, stock warrants and common stock rights
would be antidilutive for the three months and the six months ended July 31,
1996.
The Corporation will adopt the Statement of Financial Accounting Standards No.
128, "Earnings Per Share" ("FAS 128") in the fourth quarter of 1997, as
required. The Company will continue to apply APB Opinion No. 15, "Earnings Per
Share" until the adoption of FAS 128. The standard specifies the computation,
presentation and disclosure requirements for earnings per share. The adoption
of FAS 128 will not have a material effect on previously reported earnings per
share.
NOTE 6 - COMMITMENTS AND CONTINGENCIES
The Corporation and ICHOR are guarantors under the Sirrom Environmental Funding
LLC Agreements. On October 31, 1996, the Corporation advised Sirrom that it
would no longer guarantee future advances to ICHOR under the Sirrom Agreements.
At that time, ICHOR was advanced approximately $3.0 million under the Sirrom
Agreements. At July 31, 1997, Sirrom had approximately $4.5 million of
receivables from the State of Florida collateralizing the Sirrom Agreements and
held ICHOR funds of approximately $0.7 million in escrow.
It expects that the amounts under the aforementioned guarantees will decrease
in 1997 as the balances due ICHOR from the EDI Program are remitted thereby
allowing ICHOR to reduce the amounts owed Sirrom.
As discussed in further detail in Item 3. Legal Proceedings contained in the
Corporation's Annual Report on Form 10-K for the year ended January 31, 1997,
dated May 15, 1997, the Corporation, ICHOR and others have been named as
defendants in a purported class action lawsuit involving the purchase by all
persons and entities of ICHOR's common stock from February 9, 1995, through May
23, 1995. The action alleges that the defendants violated certain federal
securities laws.
8
<PAGE> 9
The Corporation and ICHOR believe that the allegations are without merit or
that there are meritorious defenses to the allegations, and intends to defend
the action vigorously. If, however, the plaintiff is successful in its claims,
a judgment rendered against the Corporation and the other defendants would
likely have a material adverse effect on the business and operations of the
Corporation.
9
<PAGE> 10
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
THREE MONTHS ENDED JULY 31, 1997 AND 1996
The Corporation's contract revenues increased by approximately 43% to $5.3
million during the three months ended July 31, 1997 ("Fiscal 1998") compared to
$3.7 million in the three months ended July 31, 1996 ("Fiscal 1997"). The
increase in revenues was due to the Corporation entering the current fiscal
year with a greater backlog of contracts and securing a number of significant
new contracts during the current fiscal year.
The Corporation's gross margin increased to $0.9 million in the second quarter
of fiscal 1998 compared to $0.5 million in the second quarter of fiscal 1997.
The increase in gross margin was primarily attributable to the aforementioned
increase in contract revenue although gross margin as a percentage of revenue
did increase by 3% to 17% for the current three month period due to the fixed
portion of contract costs being spread over a larger revenue base and also due
to achieving higher field margins.
Selling, general and administrative expenses increased to $0.59 million in the
three months ended July 31, 1997 compared to $0.56 million in the three months
ended July 31, 1996. The increase is primarily attributable to the addition of
a new branch office in Atlanta and the personnel necessary to support a higher
level of activity.
As a result of the factors described above, the Corporation reported income
from operations of $0.3 million in the current three month period compared to a
loss from operations of $0.04 million for the same three months of the prior
fiscal year.
The Corporation's interest expense decreased to $54,000 for the three months
ended July 31, 1997 from $84,000 for the three months ended July 31, 1996. The
Corporation's interest expense decreased due to a $1 million decrease in the
balance of indebtedness as compared to the prior fiscal quarter.
Interest income increased to $6,000 for the three months ended July 31, 1997
versus zero for the three months ended July 31, 1996 due to higher invested
cash balances. During the three months ended July 31, 1996, $39,000 of other
income was recognized primarily from the sale of fixed assets.
During the three months ended July 31, 1997, the Corporation made no provision
for federal income taxes due to the utilization of net operating loss
carryforwards for financial reporting purposes. The Corporation recorded a
state income tax provision of $5,000. During the three months ended July 31,
1996, the Corporation did not provide an income tax provision due to the loss
for financial reporting purposes.
For the three months ended July 31, 1996, the Corporation recognized its 59.5%
interest in ICHOR resulting in a $252,000 loss from discontinued operations.
The sale of the ICHOR shares to Drummond on July 31, 1996 resulted in a
$212,000 gain.
SIX MONTHS ENDED JULY 31, 1997 AND 1996
The Corporation's contract revenues increased by approximately 30% to $9.8
million for the six months ended July 31, 1997 compared to $7.5 million for the
six months ended July 31, 1996.
The increase in revenues was due to the Corporation entering the current fiscal
year with a greater backlog of contracts and securing a number of significant
new contracts during the current fiscal year.
The gross margin reported by the Corporation in the six months ended July 31,
1997 increased to $1.7 million compared to $0.8 million for the six months
ended July 31, 1996. The increase in gross margin primarily related to an
increase in gross margin as a percentage of revenue due to the fixed portion of
contract costs being spread over a larger revenue base and achieving higher
field margins. Additionally, during the first quarter of Fiscal 1997, two
significant projects (completed in that quarter) were not profitable.
10
<PAGE> 11
Selling, general and administrative expenses reported by the Corporation for
the six months ended July 31, 1997 decreased slightly to $1.2 million as
compared to the same six month period of the prior fiscal year. The decrease
is primarily attributable to cost-saving measures implemented during the
current fiscal year offset by the addition of a new branch office in Atlanta in
the second quarter of Fiscal 1998 and the personnel necessary to support a
higher level of activity.
The Corporation reported income from operations of $0.5 million in the six
months ended July 31, 1997 as a result of the factors discussed above compared
to a loss from operations of $0.4 million in the same six month period last
year.
Interest expense decreased to $0.11 million in the current six month period
compared to $0.17 million in the six months ended July 31, 1996 due to a $1
million decrease in the balance of indebtedness as compared to the prior fiscal
year.
Interest income totaled $9,000 for the current six month period versus $5,000
in the same six month period of the prior fiscal year due to higher invested
cash balances. Other income in the prior six month period was primarily
generated from the sale of fixed assets.
No provision for federal income taxes was made during the six months ended July
31, 1997 due to the utilization of net operating loss carryforwards for
financial reporting purposes. A state income tax provision of $10,000 was made
for the six-month period.
No income tax provision was recorded for the six months ended July 31, 1996 due
to a loss for financial reporting purposes.
For the six months ended July 31, 1996, the Corporation recognized its 59.5%
interest in ICHOR resulting in a $505,000 loss from discontinued operations.
LIQUIDITY AND CAPITAL RESOURCES
The Corporation's liquidity increased during the six months ended July 31, 1997
as cash and short-term investments increased by $0.36 million to $0.79 million
compared to a decrease in cash and short-term investments of $0.15 million in
the six months ended July 31, 1996.
During the six months ended July 31, 1997, the $0.36 million increase in the
Corporation's liquidity resulted from cash used by operating activities of $0.6
million. This cash inflow was offset in part by cash utilized by investing
activities of $0.23 million and cash utilized by financing activities of $0.01
million.
The Corporation's cash inflows of $0.6 million from operating activities
principally included net income of $0.42 million generated during the period,
depreciation and amortization of $0.17 million, a $0.16 million decrease in
other assets, a $0.1 million increase in accounts payable, a $0.35 million
increase in billing in excess of costs and estimated earnings on uncompleted
costs and a $0.31 million increase in accrued liabilities. These cash inflows
were partially offset by a $0.65 million increase in accounts receivable
reflecting the related increase in revenues and a $0.25 million increase in
costs and estimated earnings in excess of billings on uncompleted contracts.
During the six months ended July 31, 1997, cash outflows associated with
investing activities of $0.23 million were due to the purchase of property,
plant and equipment.
The Corporation's cash outflows related to financing activities included $0.44
million of debt repayments offset by $0.4 million in proceeds of new debt
(primarily the $0.375 million received from the refinancing of a $289,000 term
loan) and $0.03 million from the exercise of employee stock options.
The decrease in cash flows during the prior six month period is principally
attributable to the repayment of debt.
11
<PAGE> 12
Cash inflows associated with financing activities during the prior six months
included $1.2 million of proceeds from the sale of ICHOR stock to Drummond
which was utilized to reduce borrowing under the revolving line of credit.
Additionally, $0.09 million of principal payments were made on the Drummond
term debt.
Cash outflows from operating activities of $0.03 million in the six months
ended July 31, 1996 included a $0.06 million increase in accounts receivable, a
$0.13 million increase in costs and estimated earnings in excess of billings on
uncompleted contracts related to the timing of certain contract activity, $0.8
million as a result of net loss generated during the period and an adjustment
of $0.2 million due to the gain on the sale of ICHOR common stock. The
aforementioned cash outflows from operating activities were offset, in part, by
a $0.04 million increase in accounts payable, a $0.32 million decrease in other
current assets, a $0.14 million increase in accrued liabilities due to the
timing of payments and $0.18 million of depreciation and amortization.
The Corporation's cash outflows from investing activities of $0.04 million in
the six months ended July 31, 1996 was attributable to $0.04 million for the
purchase of property, plant and equipment.
At July 31, 1997, the Corporation's backlog associated with its asbestos
abatement business totaled $10.9 million ($5.3 million on fixed fee contracts
and $5.6 million on time and materials or unit price contracts).
On May 27, 1997, the Corporation closed on a $375,000 loan from a financial
institution to refinance a $289,000 term loan payable to Drummond maturing on
August 1, 1997. The new loan is for a seven-year term at a 9.5% interest rate
fixed for the first four years of the loan. The interest will then be
readjusted to the current five year treasury bill rate plus 3.25% for the
remaining three years of the loan. The new loan requires monthly debt service
payments of approximately $6,100 which is a reduction of approximately $10,000
from the debt service on the Drummond term loan. The remaining proceeds from
the loan were utilized to reduce the outstanding balance on the line of credit
with Drummond. At July 31, 1997, the Corporation had borrowings under the
Drummond line of credit totaling $1.41 million.
On August 25, 1997, the Corporation closed on a new $2 million credit facility
consisting of a 5-year $0.5 million equipment note and a 3-year revolving line
of credit with a maximum advance of $1.5 million. Both the equipment note and
the line of credit have an interest rate of prime plus 3.5%.
The proceeds of the new financing fully satisfied the remaining outstanding
balance on the Drummond line of credit and provide working capital for the
Corporation.
The Corporation and ICHOR are guarantors on the Sirrom Environmental Funding
LLC Agreements. On October 31, 1996, the Corporation advised Sirrom that it
would no longer guarantee future advances to ICHOR under the Sirrom Agreements.
At that time, ICHOR had been advanced approximately $3.0 million under the
Sirrom Agreements.
PROSPECTIVE INFORMATION
The Corporation, ICHOR, certain of ICHOR's officers and directors and the
underwriters of ICHOR's initial public offering have been named as defendants
in a purported class action involving the purchase by all persons and entities
of ICHOR common stock from February 9, 1995 through May 23, 1995. The action
alleges that defendants violated certain federal securities laws.
The Corporation believes that the allegations are without merit or that there
are meritorious defenses to the allegations, and intends to defend the action
vigorously. If, however, the plaintiff is successful in its claims, a judgment
rendered against the Corporation and the other defendants would likely have a
material adverse effect on the business and operations of the Corporation.
12
<PAGE> 13
PART II-- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
With respect to the action, captioned Klein v. PDG Remediation, Inc., et al.
described in the Corporation's Form 10-K for the year ended January 31, 1997,
notice of the Court's certification of the class was sent to potential class
members in August, 1997.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
The registrant is currently in arrears with respect to the payment of dividends
on its Series A Preferred Stock. At July 31, 1997, the cumulative dividends in
arrears on the Series A Preferred Stock were approximately $147,000.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
EXHIBIT INDEX
EXHIBIT NO. AND DESCRIPTION
<TABLE>
<CAPTION>
PAGES OF SEQUENTIAL
NUMBERING SYSTEM
<S> <C>
4(a) Security Agreement dated August 19, 1997 between Finova Capital Corporation and
PDG Environmental, Inc., PDG, Inc., Project Development Group, Inc. and
Enviro-Tech Abatement Services Co.
(b) The registrant did not file any current reports on Form 8-K during the three months
ended July 31, 1997.
</TABLE>
13
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PDG ENVIRONMENTAL, INC.
By /s/John C. Regan
--------------------------------
John C. Regan
Chairman and Chief Executive Officer
Date: September 12, 1997
14
<PAGE> 1
Exhibit 4.A
SECURITY AGREEMENT
(ACCOUNTS RECEIVABLE
INVENTORY AND EQUIPMENT)
BETWEEN
FINOVA CAPITAL CORPORATION
111 WEST 40TH STREET
NEW YORK, NEW YORK 10018
AND
PDG ENVIRONMENTAL, INC.
PROJECT DEVELOPMENT GROUP, INC.
PDG, INC.
ENVIRO-TECH ABATEMENT SERVICES, CO.
ASBESTEMPS, INC.
APPLIED ENVIRONMENTAL TECHNOLOGIES, INC.
ASBESTEC-APPLIED, INC.
DPI ENERGY, INC.
300 OXFORD DRIVE
MONROEVILLE, PENNSYLVANIA 15146-2343
<PAGE> 2
FINOVA Capital Corporation Security Agreement
- ------------------------------------------------------------------------------
FINOVA(R)
FINANCIAL INNOVATORS
This Security Agreement, made and entered into in New York, New York, as
of this 19th day of August, 1997, by and between PDG ENVIRONMENTAL, INC., a
corporation existing under and by virtue of the laws of the State of Delaware,
with its principal place of business located at 300 Oxford Drive, Monroeville,
Pennsylvania 15146-2343; PROJECT DEVELOPMENT GROUP, INC., a corporation existing
under and by virtue of the laws of the State of Pennsylvania, with its principal
place of business located at 300 Oxford Drive, Monroeville, Pennsylvania
15146-2343; PDG, INC., a corporation existing under and by virtue of the laws
of the State of Pennsylvania, with its principal place of business located at
300 Oxford Drive, Monroeville, Pennsylvania 15146-2343; ENVIRO-TECH ABATEMENT
SERVICES, CO., a corporation existing under and by virtue of the laws of the
State of North Carolina with its principal place of business located at
300 Oxford Drive, Monroeville, Pennsylvania 15146-2343; ASBESTEMPS, INC., a
corporation existing under and by virtue of the laws of the State of Delaware,
with its principal place of business located at 300 Oxford Drive, Monroeville,
Pennsylvania 15146-2343; APPLIED ENVIRONMENTAL TECHNOLOGIES, INC., a corporation
existing under and by virtue of the laws of the State of Delaware, with its
principal place of business at 300 Oxford Drive, Monroeville, Pennsylvania
15146-2343; ASBESTEC-APPLIED, INC., a corporation existing under and by virtue
of the laws of the State of Delaware, with its principal place of business
located at 300 Oxford Drive, Monroeville, Pennsylvania 15146-2343; and DPI
ENERGY, INC., a corporation existing under and by virtue of the laws of the
State of Delaware, with its principal place of business located at 300 Oxford
Drive, Monroeville, Pennsylvania 15146-2343; (collectively, the "Borrower") and
FINOVA CAPITAL CORPORATION, a Delaware corporation, with a place of business
located at 111 West 40th Street, New York, New York 10018 ("FINOVA"). This
Agreement sets forth the terms and conditions upon which FINOVA may, in its sole
and absolute discretion, make loans, advances and other financial accommodations
to or for the benefit of Borrower upon the security referred to herein.
Section 1. DEFINED TERMS
1.1. All terms used herein which are defined in Article 1 or Article 9 of
the Uniform Commercial Code (the "UCC") shall have the same meaning as given
therein unless otherwise defined in this Agreement. All references to the
plural shall also mean the singular.
1.2. "Account" or "Accounts" shall mean all of Borrower's present and
hereafter created accounts receivable, contract rights, general intangibles,
security deposits, trade styles, trademarks, chattel paper, notes, drafts,
acceptances, leases, lease payments, rents, tax refunds, options to purchase
real or personal property, securities, stock options, customer lists, insurance
claims, patents, patent applications, documents, instruments, copyrights,
claims, and any other choses in action, as such terms may be defined in the
UCC, including, without limitation, all obligations for the payment of money
arising out of Borrower's sale, lease or other disposition of goods or other
property or Borrower's rendition of services, and to all of Borrower's
merchandise which is represented thereby whether delivered or undelivered, and
to all proceeds thereof including, but not limited to, the proceeds of any
insurance thereon whether or not specifically assigned to FINOVA.
1.3. "Account Debtor" shall mean each debtor or obligor in any way
obligated on or in connection with any Account.
1.4. "Collateral" shall have the meaning set forth in Section 4.1 hereof.
1.5. "Costs and Expenses" shall include, but not be limited to commissions,
fees, appraisal fees, taxes, title insurance premiums, internal and external
audit expenses for routine and non-routine audits, field examination expenses,
filing, recording and search expenses, reasonable attorney's fees and
disbursements (as may be incurred with respect to the effectuation of this
Agreement or any claim of any nature or litigation whatsoever arising out of or
as a result of the interpretation of this Agreement or the financing provided
for hereunder, including, but not limited to, all fees and expenses for the
service and filing of papers, premiums on bonds and undertakings, fees of
marshals, sheriffs,
2
<PAGE> 3
FINOVA Capital Corporation Security Agreement
- -------------------------------------------------------------------------------
custodians, auctioneers and others, travel expenses and all court costs and
collection charges), Facility Fees (as defined herein), postage, wire transfer
fees, check dishonor fees and other out of pocket expenses arising out of or
relating to the negotiations, preparation, consummation, administration and
enforcement of this Agreement or any other agreement between Borrower and
FINOVA including, but not limited to any guaranty of the Obligations (as
defined herein).
1.6. "Default Rate of Interest" shall have the meaning set forth in
Section 3.2 hereof.
1.7. "Eligible Accounts" shall mean Accounts created by Borrower in the
ordinary course of its business arising out of its sale of goods or rendition of
services, which are and at all times shall continue to be acceptable to FINOVA
in its sole and absolute discretion. Eligible Accounts shall not include:
(a) accounts aged over ninety (90) days from invoice date; (b) contra accounts,
foreign receivables, progress billings, employee or affiliate accounts, poor
credit accounts, excessive concentration accounts, service or finance charges;
and (c) other accounts which, in the sole and absolute discretion of FINOVA,
do not constitute acceptable collateral. Standards of eligibility may be fixed
and revised from time to time solely by FINOVA in its exclusive judgment. In
determining eligibility, FINOVA may, but need not, rely on agings, reports and
schedules of Accounts furnished by Borrower but reliance by FINOVA thereon from
time to time shall not be deemed to limit its right to revise standards of
eligibility at any time without notice as to both Borrower's present and future
Accounts.
1.8. "Events of Default" shall have the meaning set forth in Section 8.1
hereof.
1.9. "Facility Fee" shall have the meaning set forth in Section 3.5
hereof.
1.10. "Line of Credit" as used herein is solely for the purpose of
computing the Facility Fee and does not represent any amount or amounts
available for borrowing purposes nor any limit as to the amount or amounts
available for borrowing purposes, each of which shall be determined at FINOVA's
sole and absolute discretion. Subject to the preceding sentence, Borrower's
Line of Credit is $2,000,000.
1.11. "Net Amount of Eligible Accounts" shall mean the gross amount of
Eligible Accounts less sales, excise or similar taxes, and less returns,
discounts, claims, credits, reserves (as determined by FINOVA in its sole
discretion) and allowances of any nature at any time issued, owing, granted,
outstanding, available or claimed.
1.12. "Obligations" shall mean any and all loans, advances, accommodations,
indebtedness, liabilities. Costs and Expenses and all obligations of every kind
and nature owing by Borrower to FINOVA, however evidenced, whether as principal,
guarantor or otherwise, whether arising under this Agreement, any supplement
hereto, or otherwise, whether now existing or hereafter arising, whether direct
or indirect, absolute or contingent, joint or several, due or not due, primary
or secondary, liquidated or unliquidated, secured or unsecured, original,
renewed, modified or extended, and whether arising directly or acquired from
others (including, without limitation, wherever applicable, FINOVA's
participations or interests in Borrower's obligations to others) and including,
without limitation, FINOVA's charges, of whatever nature, commissions, interest,
expenses, costs and attorneys' fees, all of which are chargeable to Borrower in
connection with any of the foregoing.
1.13. "Records" shall have the meaning set forth in Section 4.1(f) hereof.
1.14. "Renewal Date" shall have the meaning set forth in Section 9.1
hereof.
1.15 "Service Fee" shall have the meaning set forth in Section 3.5 hereof.
Section 2. LOANS AND ADVANCES
2.1. FINOVA shall from time to time, in its sole and absolute discretion,
make loans, advances and other financial accommodations to or for the benefit
of Borrower of up to: (a) 80% of the Net Amount of Eligible Accounts (or such
greater or lesser percentage thereof as FINOVA shall, in its sole and absolute
discretion determine); and (b) $500,000 (the "M&E Advance"). The M&E Advance
shall be repaid in arrears to FINOVA in principal installments in the amount of
$8,333.33 per month and shall be charged to an account in Borrower's name on
the last day of the first month immediately following the month in which this
Agreement is executed and delivered to FINOVA and on the last day of each month
thereafter for fifty-nine (59) months at which time the entire balance of the
M&E
3
<PAGE> 4
FINOVA Capital Corporation Security Agreement
- -------------------------------------------------------------------------------
Advance shall be paid to FINOVA. Notwithstanding the foregoing, FINOVA shall
have the right at any time to demand and receive the immediate repayment of the
entire balance of the M&E Advance in the event (a) of any default or
termination under this Agreement; (b) of any reduction in the value of the
Borrower's machinery and equipment; or (c) that FINOVA, in its sole and
absolute discretion, shall consider the M&E Advance insecure.
2.2. All Obligations shall be charged in arrears to an account in the
Borrower's name as maintained on FINOVA's books. FINOVA shall render to Borrower
a monthly statement of its account which statement shall be deemed correct,
accepted by, and conclusively binding upon Borrower as an account stated, except
to the extent that Borrower shall deliver to FINOVA written notice of any
specific exceptions thereto within thirty (30) days after the date such
statement is rendered.
2.3. All principal, interest, fees, commissions, charges, Costs and
Expenses incurred with or in respect of this Agreement or any supplement or
amendment hereto (all of which shall be cumulative and not exclusive) and any
and all Obligations shall be charged in arrears on the first day of each month
for the prior month's charges as an advance to Borrower's account as maintained
by FINOVA.
2.4. All Obligations shall be payable at FINOVA's office specified above or
at such other place as FINOVA may hereafter designate from time to time. If
requested, Borrower shall execute and deliver to FINOVA one or more promissory
notes in form and substance satisfactory to FINOVA to further evidence the
Obligations.
Section 3. INTEREST AND FEES
3.1. FINOVA is authorized to charge the Borrower's loan account as an
advance on the first day of each month as follows: (a) all Costs and Expenses;
(b) interest on Borrower's monthly average loan balance (inclusive of all
advances made pursuant to paragraph 2.1 of this Agreement together with all
costs and expenses charged to Borrower's account); and (c) Letter of Credit,
Guaranty or Acceptance Fees ("LC Fees"), if any. Interest shall be payable by
Borrower to FINOVA at the per annum Prime Rate (the "Prime Rate") plus 3.5%
(the "Interest Rate"). As used herein the term "Prime Rate" shall be deemed to
mean the prime commercial rate as published from time to time in the Wall
Street Journal, in effect on the date hereof (whether or not such rate is the
lowest rate available by FINOVA) and as same may be adjusted upwards or
downwards from time to time. The Interest Rate shall never be less than six
(6%) percent per annum nor greater than the highest rate permitted by law. Any
change in the Interest Rate shall become effective on the first day of the
month following the month in which the Prime Rate shall have been increased or
decreased, as the case may be. The Interest Rate shall be calculated based on a
three hundred sixty (360) day year for the actual number of days elapsed and
shall be charged to Borrower on all Obligations. All interest charged or
chargeable to Borrower shall be deemed as an additional advance and shall
become part of the Obligations.
3.2 In the event any amount to be advanced or charged to the Borrower
under this Agreement (together with any other agreement between FINOVA and the
Borrower) exceeds the amount available to Borrower for borrowing pursuant to
any percentage or sublimit set forth in this Agreement (hereinafter sometimes
referred to as an "Overadvance") on each of any day in any month, the Interest
Rate charged to the Borrower for that month on all Obligations shall be at a
rate which is one percent (1%) above the Interest Rate otherwise applicable
herein without regard as to whether any such Overadvance is made with or
without FINOVA's knowledge or consent. The Interest Rate will be restored each
time the Overadvance is fully repaid to FINOVA.
3.3. Borrower agrees that upon the occurrence of any Event of Default
(whether caused by the Borrower, an Account Debtor or others), the Interest
Rate on all Obligations shall immediately convert to the rate of 1/15th of 1%
per day (the "Default Rate of Interest") and all interest accruing hereunder
together with all Obligations shall thereafter be payable upon demand.
3.4. In no event shall the Interest Rate or the Default Rate of Interest
exceed the highest rate permitted under any applicable law or regulation. If
any part or provision of this Agreement is in contravention of any such law or
regulation such part or provision shall be deemed amended to conform thereto
and any payments of interest made in excess of such highest rate permitted, if
any, shall be deemed to be payments of principal Obligations to the extent of
such excess.
4
<PAGE> 5
FINOVA Capital Corporation Security Agreement
- -------------------------------------------------------------------------------
3.5. Upon the execution and delivery of this Agreement by the Borrower to
FINOVA, Borrower shall pay a Closing Fee in the amount of (2%) of the Line of
Credit extended by FINOVA to the Borrower. Borrower shall also pay FINOVA an
annual Facility Fee in the amount of 1% of the Line of Credit extended by
FINOVA to Borrower. The Facility Fee is payable upon each annual anniversary
date of this Agreement until such time as this Agreement has been terminated in
accordance with its terms. In addition, Borrower shall pay FINOVA a monthly
Service Fee in the amount of $1,000. The Service Fee is due and payable upon
the execution and delivery of this Agreement and on the first day of each month
until such time as this Agreement has been terminated in accordance with its
terms.
3.6 Borrower shall pay FINOVA an Audit Fee in the amount of $750 per day
for each auditor performing an examination of the Borrower's books and records,
such Audit Fee to be in addition to all other Costs and Expenses incurred by
FINOVA with regard to each such examination, all of which shall be deemed part
of the Obligations.
Section 4. GRANTING PROVISIONS
4.1. As security for the prompt performance, observance and payment in
full of all Obligations, Borrower hereby grants to FINOVA a continuing security
interest in, lien upon and right of setoff against, and Borrower hereby
assigns, transfers, pledges and sets over to FINOVA the following (which,
together with any of Borrower's other property in which FINOVA may at any time
have a security interest or lien, whether pursuant to any supplement or
amendment hereto, or otherwise, all of which are herein collectively referred
to as the "Collateral"): (a) All of Borrower's present and future Accounts; (b)
all of Borrower's monies, securities and other property and the proceeds
thereof, now or hereafter held or received by, or in transit to, FINOVA from or
for Borrower, or for the account of Borrower, whether for safekeeping, pledge,
custody, transmission, collection or otherwise, and all of Borrower's deposits
(general or special) including, but not limited to security deposits, balances,
sums and credits with FINOVA at any time existing or with a third party for the
Borrower's account; (c) all of Borrower's present and future right, title and
interest, and all of Borrower's present and future rights, remedies, security
and liens, in, to and in respect of the Accounts and other Collateral,
including, without limitation, rights of stoppage in transit, replevin,
repossession and reclamation and other rights and remedies of an unpaid vendor,
lienor or secured party, guarantees or other contracts of suretyship with
respect to the Accounts, deposits or other security for the obligation of any
Account Debtor, and credit and other insurance; (d) all of Borrower's present
and future right, title and interest in, to and in respect of all goods
relating to, or which by sale have resulted in, Accounts including, without
limitation, all goods described in invoices, documents, contracts or
instruments with respect to, or otherwise representing or evidencing, any
Accounts or other Collateral, including without limitation, all returned,
reclaimed or repossessed goods; (e) all of Borrower's present and future
deposit accounts; (f) all of Borrower's present and future books, records,
ledger cards, computer programs (including all software and data contained in
or by any computer whether in the possession of the Borrower or any other
party) and other property and general intangibles evidencing or relating to the
Accounts and any other Collateral or any Account Debtor, together with the file
cabinets, containers, tapes or disks, in which the foregoing are stored
("Records"); (g) all of Borrower's presently owned or hereafter acquired
inventory; (h) all of Borrower's machinery and equipment, whether presently
owned or hereinafter acquired; (i) all other of Borrower's present and future
general intangibles of every kind and description, including, without
limitation, customer lists, stock options, patent, trademark and copyright
applications, trade names and trademarks, and the goodwill of the business
symbolized thereby, patents, copyrights, licenses and Federal, State and local
tax refund claims, leases, rents and insurance claims of all kinds; and (j) all
proceeds of the foregoing, in any form, including, without limitation, all
claims against third parties for loss or damage to or destruction of any or all
of the foregoing. The security interests granted herein shall remain effective
whether or not the Collateral covered thereby is acceptable to FINOVA or deemed
by it to be ineligible for the purposes of any loans or advances contemplated
under this Agreement.
4.2. Borrower shall deliver to FINOVA a duplicate and/or original invoice,
and all original documents evidencing the delivery of goods or the performance
of services with regard to each Account, including but not limited to all
original contracts, orders, invoices, bills of lading, warehouse receipts,
delivery tickets and shipping receipts, together with schedules describing
the Accounts and/or written confirmatory assignments to FINOVA of each Account,
in form and substance satisfactory to FINOVA and duly executed by Borrower,
together with such other information as FINOVA may request. In no event shall
the making (or
5
<PAGE> 6
FINOVA Capital Corporation Security Agreement
- -------------------------------------------------------------------------------
the failure to make) of any schedule or assignment or the content of any
schedule or assignment or Borrower's failure to comply with the provisions
hereof be deemed or construed as a waiver, limitation or modification of
FINOVA's security interest in, lien upon and assignment of the Collateral or
Borrower's representations, warranties or covenants under this Agreement or
any supplement or amendment hereto.
Section 5. ENFORCEMENT OF RIGHTS IN AND TO COLLATERAL
5.1. Until Borrower's authority to do so is curtailed or terminated at
any time by FINOVA in its sole and absolute discretion, Borrower shall (at
Borrower's expense) collect on FINOVA's behalf as FINOVA's property and in
trust for FINOVA, and deliver to FINOVA in their original form on the same
date as the date of the actual receipt thereof, all checks, drafts, notes,
acceptances, cash, wire transfers and any other evidences of payment,
applicable to any assigned Account ("Collection"). Five (5) working days shall
be allowed subsequent to receipt by FINOVA of all Collections (other than
wire transfers) to permit bank clearance and collection for the purpose of
calculating interest charged or chargeable to Borrower on all Obligations. Two
(2) working days shall be allowed subsequent to receipt by FINOVA of all wire
transfers for the purpose of calculating interest charged or chargeable to
Borrower on all Obligations.
5.2. FINOVA or FINOVA's representatives shall at all times have free access
to and right of inspection of the Collateral and have full access to and the
right to examine and make copies of Borrower's Records, to confirm and verify
all Accounts, to perform general audits and to do whatever else FINOVA deems
necessary to protect FINOVA's interests. FINOVA may at any time remove from
Borrower's premises or require Borrower or its accountants or auditors to
deliver any Records to FINOVA. FINOVA may, at Borrower's cost and expense,
use any of Borrower's personnel, supplies, computer equipment (including all
computer programs, software and data) and space at Borrower's places of
business or at any other place as FINOVA may designate, as may be reasonably
necessary for the handling of collections.
5.3. Merchandise received in settlement of any assigned Account shall be
received in trust for, segregated and delivered to or for the account of
FINOVA. All returns of merchandise, credits issued by Borrower, claims or
disputes of Account Debtors whether or not accepted by Borrower or given an
allowance of any nature shall be reported by Borrower to FINOVA at least
weekly. Each such report shall be accompanied by copies of all documentation
provided to Borrower in support of all merchandise returns, credits, claims and
disputes. Borrower shall immediately upon obtaining knowledge thereof report
to FINOVA all reclaimed, repossessed and returned goods, Account Debtor claims
and any other matter affecting the value, enforceability or collectability of
Accounts. At FINOVA's request, any goods reclaimed or repossessed by or
returned to Borrower will be set aside, marked with FINOVA's name and held by
Borrower (at Borrower's place of business or at such other place as FINOVA may
designate) for FINOVA's account and subject to FINOVA's security interest.
5.4 All claims and disputes relating to Accounts shall be adjusted within
a reasonable time at Borrower's own cost and expense.
5.5. FINOVA is authorized and empowered at any time, with or without the
occurrence of an Event of Default, to compromise or extend the time for payment
of any Account, for such amounts and upon such terms as FINOVA may in its sole
discretion determine, and to accept the return of the merchandise represented
by any Account, all without notice to or consent by Borrower, and without
discharging or affecting Borrower's Obligations hereunder to any extent, and
Borrower will, upon demand, pay to FINOVA the amount of any allowance given
or authorized by FINOVA hereunder. FINOVA shall have the right (in addition to
its other rights hereunder or otherwise), with or without the occurrence of an
Event of Default and without notice to Borrower, to appropriate, set off and
apply to the payment of any or all of the Obligations, any portion or all of
the Collateral, in such manner as FINOVA shall in FINOVA's sole discretion
determine, to enforce payment of any Collateral, to settle, compromise or
release in whole or in part, any amounts owing on any Collateral, to prosecute
any action, suit or proceeding with respect to the Collateral, to extend the
time of payment of any and all Collateral, to make allowances and adjustments
with respect thereto, to issue credits in FINOVA's or Borrower's name, to sell,
assign and deliver the Collateral (or any part thereof) at public or private
sale, for cash, upon credit or otherwise at FINOVA's sole option and discretion,
and FINOVA may bid or become purchaser at any such sale, free from any right of
redemption which is hereby expressly waived. Any
6
<PAGE> 7
FINOVA Capital Corporation Security Agreement
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public or private sale of the Collateral shall be deemed reasonable to the
extent Borrower shall have received written notice of such sale at least (10)
days prior to its occurrence and shall not have delivered written objection
to FINOVA.
SECTION 6. REPRESENTATIONS AND WARRANTIES
Borrower hereby represents, warrants and covenants to FINOVA the following
(which shall survive the execution and delivery of this Agreement), the truth
and accuracy of which, and continuing compliance with, being a continuing
condition of the making of all loans and advances hereunder by FINOVA or under
any supplement or amendment hereto:
6.1. Borrower is and shall be the owner of the Collateral free and clear of
all liens, security interests, claims and encumbrances of every kind and nature,
except in FINOVA's favor or as otherwise consented to in writing by FINOVA, and
Borrower shall indemnify and defend FINOVA from and against all cost, loss and
expense with regard to the same. None of Borrower's Accounts nor any of its
inventory has been previously sold or assigned to any person, firm or
corporation and will not be sold or assigned, other than to FINOVA, at any time
during the term of this Agreement without first obtaining FINOVA's consent in
writing. Borrower shall not execute any security agreement or UCC financing
statement in favor of any other party or borrow against the security of any
corporate asset, including but not limited to the Collateral, without first
obtaining FINOVA's consent in writing.
6.2. (a) Without first obtaining FINOVA's consent in writing Borrower will
not directly or indirectly sell, lease, transfer, abandon or otherwise dispose
of all or any portion of Borrower's property or assets (except in the ordinary
course of business) or consolidate or merge with or into any other entity or
permit any other entity to consolidate or merge with or into Borrower;
(b) Borrower will preserve, renew and keep in full force and effect
Borrower's existence and good standing as a corporation and its rights and
franchises with respect thereto;
(c) Borrower will continue to engage in business of the same type as
Borrower is engaged as of the date hereof; and
(d) Borrower will give FINOVA thirty (30) days prior written notice
of any proposed change in Borrower's corporate name which notice shall set
forth the new name.
6.3. Borrower's Records and principal executive office are maintained at
the address referred to herein. Borrower shall not change such location without
FINOVA's prior written consent and prior to making any such change, Borrower
agrees to execute any additional financing statements or other documents or
notices which FINOVA may require.
6.4. Borrower shall maintain its shipping forms, invoices and other
related documents in a form reasonably satisfactory to FINOVA and shall
maintain its books, records and accounts in accordance with generally accepted
accounting principles consistently applied. Borrower agrees to furnish FINOVA
monthly with accounts receivable agings, inventory reports (if requested by
FINOVA), and interim financial statements (including balance sheet, statement
of income and surplus account, and cash flow statement) hereafter collectively
referred to as "Interim Financial Statements"), and to furnish FINOVA, at any
time or from time to time with such other information regarding Borrower's
business affairs and financial condition as FINOVA may reasonably request,
including, without limitation, cash flow and other projections, earnings
forecasts, schedules, agings and reports. Borrower hereby irrevocably
authorizes and directs all accountants, auditors and any other third parties
to deliver to FINOVA, at Borrower's expense, copies of Borrower's financial
statements, papers related thereto, and other accounting records of any kind
or nature in their possession and to disclose to FINOVA any information they
may have regarding Borrower's business affairs and financial condition.
Borrower shall furnish FINOVA with audited financial statements within ninety
(90) days of the end of its fiscal year end certified by independent public
accountants selected by Borrower and as to whom FINOVA has no objection.
All financial statements and information shall fairly present Borrower's
financial condition and the results of Borrower's operations for the periods
in which the financial statements are furnished.
6.5. Each Account represents a valid and legally enforceable indebtedness
based upon a bona fide sale and delivery of goods or rendition of services
usually dealt in by Borrower in the ordinary course of its business which has
been finally accepted by the Account Debtor. Each Account is and will be for a
liquidated
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FINOVA Capital Corporation Security Agreement
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amount maturing as stated in the invoice rendered to the Account Debtor who is
unconditionally liable to make payment at maturity of the amount stated in each
invoice, document or instrument evidencing the Account in accordance with the
terms thereof, without offset, defense, deduction, counterclaim, discount or
condition. Every assigned Account, and any evidence of indebtedness with respect
thereto shall be paid in full at maturity. If any Account is not paid in full at
maturity, the amount of such unpaid Account (whether in whole or in part) may be
charged against and deducted from any advance then or thereafter made by FINOVA
to Borrower or, in the event Borrower then has no borrowing availability,
Borrower shall pay FINOVA, upon demand, the full amount remaining unpaid
thereon. Such payment or deduction shall not constitute a reassignment, and
FINOVA may retain the Account as collateral for all Obligations of Borrower to
FINOVA until the same have been fully satisfied.
6.6. All statements made and all unpaid balances appearing in the invoices,
documents and instruments evidencing each Account are true and correct and are
in all respects what they purport to be and all signatures and endorsements that
appear thereon are genuine and all signatories and endorsers have full capacity
to contract. To the best of Borrower's knowledge, each Account Debtor is solvent
and financially able to pay in full each Account when it matures. None of the
transactions underlying or giving rise to any Account shall violate any state or
federal laws or regulations, and all documents relating to the Accounts shall be
legally sufficient under such laws or regulations and shall be legally
enforceable in accordance with their terms and all recording, filing and other
requirements of giving public notice under any applicable law have been and
shall be duly complied with.
6.7. Borrower is solvent and will so remain. Borrower's federal, state and
local taxes of every kind and nature, including, but not limited to employment
taxes, are current, and there are no pending tax audits or examinations with
respect to Borrower's federal, state or local tax returns.
6.8. Borrower shall duly pay and discharge all taxes, assessments,
contributions and governmental charges upon or against it or its properties or
assets prior to the date on which penalties attach thereto. Borrower shall be
liable for all taxes and penalties imposed upon any transaction under this
Agreement or any supplement or amendment hereto or giving rise to the Accounts
or any other Collateral or which FINOVA may be required to withhold or pay for
any reason. Borrower agrees to indemnify and hold FINOVA harmless with respect
thereto, and to repay to FINOVA on demand the amount thereof, and until paid by
Borrower such amounts shall be added to and included in Borrower's Obligations.
6.9. There is no investigation by any state, federal or local agency
pending or threatened against Borrower and there is no action, suit, proceeding
or claim pending or threatened against Borrower or Borrower's assets or goodwill
or affecting any transactions contemplated by this Agreement, or any supplement
or amendment hereto, or any agreements, instruments or documents delivered in
connection herewith or therewith before any court, arbitrator, or governmental
or administrative body or agency which if adversely determined with respect to
Borrower would result in any material adverse change in Borrower's business,
properties, assets, goodwill or condition, financial or otherwise.
6.10. The execution, delivery and performance of this Agreement, any
supplement or amendment hereto, or any agreements, instruments and documents
executed and delivered in connection herewith, are within Borrower's corporate
powers, have been duly authorized, are not in contravention of law or the terms
of Borrower's charter, by-laws or other incorporation papers, or of any
indenture, agreement or undertaking to which Borrower is a party or by which
Borrower is bound.
6.11. Borrower shall keep and maintain, at its sole cost and expense,
satisfactory and complete Records including records of all Accounts, all
payments received and credits granted thereon, and all other dealings therewith.
Upon the sale of goods or the rendering of services, Borrower shall make
appropriate entries in its books and records disclosing such assignments of
Accounts to FINOVA, and shall execute and deliver all papers and instruments,
and do all things necessary to effectuate this Agreement and facilitate the
collection of the Accounts. FINOVA is hereby vested with all of Borrower's
rights, securities and guarantees with respect to each Account, including the
right of stoppage in transit. Notwithstanding the failure of Borrower to execute
and deliver such written assignment as aforesaid, each Account created by
Borrower shall be deemed assigned to FINOVA and shall become its property.
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FINOVA Capital Corporation Security Agreement
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6.12. If any Account Debtor of Borrower shall reject or return any of the
goods which created an assigned Account, Borrower shall promptly deliver the
same to FINOVA, or notify FINOVA and hold the same, separate and apart from
Borrower's stock, in trust for and subject to the order of FINOVA, and FINOVA
may take and sell the same, without notice, for such price and upon such terms
as it may, in its sole and absolute discretion, determine. Borrower shall remain
liable for any difference between the original invoice price and the net
proceeds of re-sale, after deducting any expenses incurred by FINOVA in
connection with such re-sale. Notwithstanding the foregoing, FINOVA may require
Borrower to pay to it the original invoice price of such rejected or returned
goods. In case any such goods shall be re-sold, the Account thereby created
shall be FINOVA's property and shall be deemed assigned hereunder.
6.13. All monies, Accounts and other property of Borrower which may come
into FINOVA's possession in any manner, and all sums to the credit of Borrower
may be retained by FINOVA and applied to the Obligations or any of the
Borrower's obligations owing to FINOVA's parent, any of its subsidiaries or any
of its affiliates. Borrower's obligations as set forth in the preceding sentence
shall remain applicable and enforceable as against Borrower should FINOVA be
merged into or with any other entity, including, but not limited to, its parent
corporation. Borrower absolutely and unconditionally guarantees and grants a
security interest to FINOVA in and to all of its Collateral to secure any and
all Obligations (including but not limited to all obligations of any entity
which is a parent, subsidiary or affiliate of Borrower, whether arising under
this Agreement or otherwise, and whether or not then due and however created)
which Borrower may at any time owe to FINOVA or its parent, any of its
subsidiaries or any of its affiliates.
6.14. FINOVA's agents and examiners shall have the right at any time during
business hours to review, inspect, examine, check and make copies of extracts
from Borrower's Records.
6.15. Borrower shall, at Borrower's expense, duly execute and deliver, or
shall cause to be duly executed and delivered, such further agreements,
instruments and documents, including, without limitation, additional security
agreements, mortgages, deeds of trust, deeds to secure debt, collateral
assignments, UCC financing statements or amendments and continuations thereof,
landlord's or mortgagee's waivers of liens and consents to the exercise by
FINOVA of all of its rights and remedies hereunder, under any supplement or
amendment hereto, or applicable law with respect to the Collateral. In addition,
Borrower shall do or cause to be done such further acts as may be necessary or
proper, in FINOVA's opinion, to evidence, perfect, maintain and enforce its
security interest and the priority thereof in and to the Collateral and to
otherwise effect the provisions and purposes of this Agreement or any supplement
or amendment hereto. Where permitted by law, Borrower hereby authorizes FINOVA
to execute and file one or more UCC financing statements covering the Collateral
signed only by FINOVA.
6.16. Borrower shall, at Borrower's expense, maintain insurance covering
the Collateral in such amounts and with such insurance companies as may be
acceptable to FINOVA in its sole and absolute discretion. Borrower shall have
FINOVA named as mortgagee, loss payee and additional insured on all such
insurance policies. In the event Borrower shall fail to maintain insurance
acceptable to FINOVA, FINOVA without notice, may obtain such insurance in the
name of the Borrower and charge Borrower's account with the costs and expenses
of such insurance. All expenses incurred by FINOVA with regard to such insurance
policies shall be deemed part of the Obligations.
6.17 The Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation G issued by the Board of
Governors of the Federal Reserve System), and no proceeds of any loan or
advances made by FINOVA to Borrower pursuant to Section 2.1 will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock, or in any manner which might cause
such loan or advance or the application of such proceeds to violate (or require
any regulatory filing under) Regulation G, Regulation U, or Regulation X of the
Board of Governors of the Federal Reserve System, in each case as in effect on
the date or dates of such loan or advance and such use of proceeds. Further, no
proceeds of any loan or advance will be used to acquire any security of a class
which is registered pursuant to Section 12 of the Securities Exchange Act of
1934.
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FINOVA Capital Corporation Security Agreement
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Section 7. ADDITIONAL POWERS
7.1. FINOVA shall have the right at any time in its sole and absolute
discretion: (a) to notify Account Debtors that Borrower's Accounts have been
assigned to and are payable to FINOVA; and (b) to collect any and all Accounts
directly in its own name and charge all of its collection costs and expenses
including, but not limited to, its legal expenses to the Borrower's account as
part of the Obligations.
7.2. Borrower hereby appoints FINOVA or FINOVA's designee as Borrower's
attorney-in-fact, at Borrower's own cost and expense, to exercise at any time
all or any of the following powers which, being coupled with an interest, shall
be irrevocable until all Obligations have been paid in full: (a) upon alleging
the occurrence of an Event of Default hereunder to redirect, receive, open and
dispose of all mail addressed to Borrower and to notify postal authorities to
change the address for delivery thereof to such address as FINOVA may designate;
(b) to execute and file in Borrower's name financing statements and amendments
under the UCC; (c) to receive, take, endorse, assign, deliver, accept and
deposit, in FINOVA's or Borrower's name, any and all checks, notes, drafts,
acceptances, money orders, remittances or other evidences of payment of money or
Collateral which may come into FINOVA's possession; (d) to sign Borrower's name
on any drafts against Account Debtors, assignments and verifications of
Accounts; (e) to transmit to Account Debtors notice of FINOVA's interest therein
and to request from such Account Debtors at any time, in FINOVA's or Borrower's
name or that of FINOVA's designee, information concerning the Accounts and the
amounts owing thereon; (f) to notify Account Debtors to make payment directly to
FINOVA; (g) upon alleging the occurrence of an Event of Default hereunder, to
take or bring, in FINOVA's or Borrower's name, and in FINOVA's sole and absolute
discretion all steps, actions, suits or proceedings deemed necessary or
desirable by FINOVA to effect collection of the Collateral; and (h) to do all
other acts and things necessary to carry out this Agreement. Borrower hereby
releases FINOVA and FINOVA's officers, employees and designees, from all
liability arising from any act or acts under this Agreement or in furtherance
thereof, whether by omission or commission, and whether based upon any error
of judgment or mistake of law or fact.
Section 8. EVENTS OF DEFAULT
8.1. All Obligations shall be, at FINOVA's option, immediately due and
payable without notice or demand and the provision of this Agreement (or any
supplement or amendment hereto) as to future loans and advances to or for the
benefit of Borrower shall, at FINOVA's option, terminate forthwith upon the
occurrence of any one or more of the following events of default (the "Events of
Default"): (a) if Borrower shall fail to pay FINOVA when due any amounts owing
to FINOVA under any Obligation, or shall breach any of the terms, covenants,
conditions or provisions of this Agreement, any supplement or amendment hereto
or any other agreement between Borrower and FINOVA; (b) if any guarantor,
endorser or other person liable on the Obligations shall terminate or breach any
of the terms, covenants, conditions or provisions of any guaranty, endorsement
or other agreement of such person with, or in favor of FINOVA; (c) if any
representation, warranty, or statement of fact made to FINOVA at any time by
Borrower or on Borrower's behalf is false or misleading; (d) if Borrower, or any
guarantor, endorser or other person liable on the Obligations shall become
insolvent, fail to meet its or their debts as they mature, call a meeting of
creditors or have a creditors' committee appointed, make an assignment for the
benefit of creditors, commence or have commenced by or against Borrower or any
guarantor, endorser or other person liable on the Obligations any action or
proceeding for relief under any bankruptcy law, or if any judgment is entered
against Borrower or any guarantor, endorser or other person liable on the
Obligations (which has not been bonded or otherwise secured) or if Borrower or
any guarantor, endorser or other person liable on the Obligations suspends or
discontinues doing business for any reason, or if a receiver, custodian or
trustee of any kind is appointed with regard to any property of Borrower or
guarantor, endorser or other person liable on the Obligations; (e) if there
shall be a material adverse change in Borrower's business, assets or condition
(financial or otherwise) from the date hereof; (f) if there is any change in
Borrower's majority control or ownership; or (g) if at any time FINOVA shall, in
FINOVA's sole and absolute discretion, consider the Obligations insecure or any
part of the Collateral unsafe, insecure or insufficient and Borrower (or other
person or entity acting on Borrower's behalf) shall not on FINOVA's demand
furnish other Collateral or make payment on account, satisfactory to FINOVA.
However, notwithstanding anything to the contrary contained in the foregoing,
Borrower shall have fifteen (15) days after receipt of written notice from
FINOVA to cure any failure to comply with any of the requirements contained
10
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FINOVA Capital Corporation Security Agreement
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in paragraphs 6.1, 6.2(b), 6.4, 6.7 and 6.8 of this Agreement.
8.2. In the event FINOVA seeks to take possession of all or any portion
of the Collateral by judicial process (including, but not limited to, FINOVA
obtaining an order of attachment, a temporary restraining order, a preliminary
or permanent injunction or otherwise) against the Borrower or with regard to
the Collateral, Borrower irrevocably waives: (a) the posting of any bond,
surety or security with respect thereto which might otherwise be required, (b)
any demand for possession prior to the commencement of any suit or action to
recover the Collateral, and (c) any requirement that FINOVA retain possession
and not dispose of any Collateral until after trial or final judgment.
8.3. Borrower agrees that the giving of ten (10) days' notice by FINOVA,
sent by ordinary mail, postage prepaid, to Borrower's address set forth herein,
designating the place and time of any public sale or of the time after which any
private sale or other intended disposition of the Collateral is to be made,
shall be deemed to be reasonable notice thereof and Borrower waives any other
notice with respect thereto.
8.4. The net cash proceeds resulting from the exercise of any of FINOVA's
rights or remedies under this Agreement, under the UCC or otherwise, shall be
applied by FINOVA to the payment of the Obligations in such order as FINOVA may
elect, and Borrower shall remain liable to FINOVA for any deficiency. Without
limiting the generality of the foregoing, if FINOVA enters into any credit
transaction, directly or indirectly, in connection with the disposition of any
Collateral, FINOVA shall have the option, at any time, in FINOVA's sole and
absolute discretion, to reduce the Obligations by the amount of such credit
transaction or any part thereof or to defer the reduction thereof until actual
receipt by FINOVA of cash in connection therewith.
8.5. The enumeration of the foregoing rights and remedies is not intended
to be exclusive, and such rights and remedies are in addition to and not by way
of limitation of any other rights or remedies FINOVA may have under the UCC or
other applicable law. FINOVA shall have the right, in FINOVA's sole and
absolute discretion, to determine which rights and remedies, and in which order
any of the same, are to be exercised, and to determine which Collateral is to
be proceeded against and in which order, and the exercise of any right or
remedy shall not preclude the exercise of any others, all of which shall be
cumulative.
8.6. No act, failure or delay by FINOVA shall constitute a waiver of any
of its rights or remedies. No single or partial waiver by FINOVA of any
provision of this Agreement or any supplement or amendment hereto, or breach or
default thereunder, or of any right or remedy which FINOVA may have shall
operate as a waiver of any other provision, breach, default, right or remedy or
of the same provision, breach, default, right or remedy on a future occasion.
8.7. Borrower waives presentment, notice of dishonor, protest and notice
of protest of all instruments included in or evidencing any of the Obligations
or the Collateral and any and all notices or demands whatsoever (except as
expressly provided herein). FINOVA may, at all times, proceed directly against
Borrower or any guarantor or endorser to enforce payment of the Obligations and
shall not be required to take any action of any kind to preserve, collect or
protect FINOVA's or Borrower's rights in the Collateral.
Section 9. MISCELLANEOUS
9.1. This Agreement shall become effective upon acceptance by FINOVA and
shall continue in full force and effect for a term ending three (3) years from
the date hereof (the "Renewal Date") and from year to year thereafter,
unless and until terminated pursuant to the terms hereof. In
addition to FINOVA's right to declare this Agreement immediately terminated at
any time upon the occurrence of an Event of Default, either party may terminate
this Agreement on the Renewal Date or on the anniversary of the Renewal Date in
any year by giving the other party at least sixty (60) days prior written
notice by registered or certified mail, return receipt requested. No
termination of this Agreement, however, shall relieve or discharge Borrower of
Borrower's duties, obligations and covenants hereunder until all Obligations
have been paid in full and FINOVA's continuing security interest in and to the
Collateral shall remain in effect until all such Obligations have been fully
discharged.
9.2. If FINOVA terminates this Agreement upon the occurrence of an Event
of Default or if Borrower terminates this Agreement as to future transactions
other than on the Renewal Date or any anniversary of the Renewal Date, in view
of the impracticality and extreme difficulty in ascertaining FINOVA's actual
damages and by mutual agreement of the parties as to a reasonable calculation
of
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FINOVA Capital Corporation Security Agreement
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FINOVA's lost profits as a result thereof, Borrower hereby agrees that it shall
immediately pay to FINOVA by wire transfer, certified check or bank cashier's
check, Borrower's entire Obligations owing thereunder, plus liquidated damages
of an amount equal to: (a) five percent (5%) of the Line of Credit if this
Agreement is terminated prior to August 20, 1998; (b) three percent (3%) of the
Line of Credit if this Agreement is terminated during the period from August
20, 1998 to August 19, 1999; and (c) one percent (1%) of the Line of Credit if
this Agreement is terminated during the period from August 20, 1999 to August
20, 2000 or during any subsequent term. Prior to its actual receipt of payment
as aforesaid, FINOVA shall be free to exercise, without limitation, all of its
rights under this Agreement or under any other agreement it may then have with
Borrower. Borrower's default of any provision under this Agreement may be
considered and construed at the sole option of FINOVA, as a termination of this
Agreement by Borrower. The liquidated damages provided for in this paragraph
9.2 shall be deemed included in the Obligations and shall be presumed to be the
amount of damages sustained by FINOVA due to the Borrower's early termination
and Borrower agrees that such damages are reasonable and appropriate under the
circumstances currently existing.
9.3. This Agreement, and any supplement or amendment hereto and any
agreements, instruments or documents delivered or to be delivered in connection
herewith, constitute the entire agreement and understanding between FINOVA and
Borrower concerning the subject matter hereof and thereof and as such
supersedes all other prior or contemporaneous agreements, understandings,
negotiations and discussions, representations, warranties, commitments, offers,
contracts, whether written or oral, all of which are merged into this
Agreement. FINOVA and Borrower agree that neither party shall be bound by
anything not expressed herein, nor shall this Agreement be modified orally.
9.4. All amendments to and modifications of this Agreement shall be in
writing and signed by Borrower and FINOVA, which requirement shall not be
modified by oral agreement or by course of conduct.
9.5. All notices, requests and demands to or upon the respective parties
hereto shall be deemed to have been duly given or made: (a) by hand, immediately
upon sending: (b) upon posting if by Federal Express, Express Mail or any other
overnight delivery service; or (c) upon posting if by certified mail, return
receipt requested. All notices, requests and demands are to be given or made to
the respective parties at the addresses set forth herein or at such other
addresses as either party may designate in writing by notice in accordance with
the provisions of this paragraph.
9.6. Borrower and FINOVA each hereby waive all rights to a trial by jury
in any action or proceeding of any kind arising out of or relating to this
Agreement, any supplement or amendment hereto, the Obligations, the Collateral
or any such other transaction. Borrower hereby waives all of its rights of
setoff and rights to interpose any defenses and/or counterclaims in the event
of any litigation with respect to any matter connected with this Agreement, any
supplement or amendment hereto, the Obligations, the Collateral or any other
transaction between the parties. Borrower hereby irrevocably consents and
submits to the jurisdiction and venue of the Supreme Court of the State of New
York (without regard to any choice of law rules) or the United States District
Court for the Southern District of New York in connection with any action or
proceeding of any kind arising out of or relating to this Agreement, any
supplement hereto, the Obligations, the Collateral or any such other
transaction. Borrower agrees that any action brought by it against FINOVA
whether with regard to this Agreement or otherwise shall be subject to the
exclusive jurisdiction and venue of the Supreme Court of the State of New York
(without regard to any choice of law rules), County of New York or the United
States District Court for the Southern District of New York.
9.7. In any litigation brought by FINOVA, Borrower waives personal service
of any summons, complaint or other process and agrees that service thereof may
be made by certified or registered mail directed to Borrower at Borrower's
address set forth below and service so made shall be complete two (2) days
after the same shall have been posted. Within twenty (20) days after such
mailing, Borrower shall appear and answer such summons, complaint or other
process, failing which Borrower shall be deemed in default and judgment may be
entered by FINOVA against Borrower for the amount of the claim and for any
other relief requested therein.
9.8. This Agreement and all transactions hereunder are deemed to be
consummated in the State of New York and shall be governed by and interpreted
in accordance with the substantive and procedural laws of the State of New York
(without regard to any choice of law rules). If any part or provision of
this Agreement shall be determined to be invalid or in contravention of any
applicable law or regulation of the controlling jurisdiction, such part or
provision shall be severed
12
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FINOVA Capital Corporation Security Agreement
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without affecting the validity of any other part or provision of this Agreement.
9.9 Borrower hereby consents to and authorizes FINOVA to issue appropriate
press releases and to cause a tombstone to be published announcing the
consummation of this transaction and the aggregate amount thereof.
9.10. This Agreement shall inure to and be binding upon the parties hereto
and their successors and assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hand and seal the
day and year first above written.
ATTEST: PDG ENVIRONMENTAL, INC.
/s/ DULCIA MAIRE By: /s/ JOHN C. REGAN
- -------------------------------- ------------------------------------
Dulcia Maire, Secretary John C. Regan, Chairman
ATTEST: PROJECT DEVELOPMENT GROUP, INC.
/s/ DULCIA MAIRE By: /s/ JOHN C. REGAN
- -------------------------------- ------------------------------------
Dulcia Maire, Secretary John C. Regan, President
ATTEST: PDG, INC.
/s/ DULCIA MAIRE By: /s/ JOHN C. REGAN
- -------------------------------- ------------------------------------
Dulcia Maire, Secretary John C. Regan, President
ATTEST: ENVIRO-TECH ABATEMENT SERVICES, CO.
/s/ DULCIA MAIRE By: /s/ JOHN C. REGAN
- -------------------------------- ------------------------------------
Dulcia Maire, Secretary John C. Regan, President
ATTEST: ASBESTEMPS, INC.
/s/ DULCIA MAIRE By: /s/ JOHN C. REGAN
- -------------------------------- ------------------------------------
Dulcia Maire, Secretary John C. Regan, President
ATTEST: APPLIED ENVIRONMENTAL TECHNOLOGIES, INC.
/s/ DULCIA MAIRE By: /s/ JOHN C. REGAN
- -------------------------------- ------------------------------------
Dulcia Maire, Secretary John C. Regan, President
ATTEST: ASBESTEC-APPLIED, INC.
/s/ DULCIA MAIRE By: /s/ JOHN C. REGAN
- -------------------------------- ------------------------------------
Dulcia Maire, Secretary John C. Regan, President
13
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FINOVA Capital Corporation Security Agreement
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ATTEST: DPI ENERGY, INC.
/s/ DULCIA MAIRE By: /s/ JOHN C. REGAN
- -------------------------------- ------------------------------------
Dulcia Maire, Secretary John C. Regan, President
ACCEPTED:
FINOVA CAPITAL CORPORATION
By: /s/ CHERYL NICHOLS, AVP
------------------------------------
Cheryl Nichols, Assistant Vice President
GUARANTY
1. In consideration of and in order to induce FINOVA CAPITAL CORPORATION
("FINOVA"), its successors, endorsees or assigns to grant and continue to grant
such advances, loans or extensions of credit directly or indirectly to PDG
ENVIRONMENTAL, INC., ENVIRO-TECH ABATEMENT SERVICES, CO., PROJECT DEVELOPMENT
GROUP, INC., PDG, INC., ASBESTEMPS, INC., APPLIED ENVIRONMENTAL TECHNOLOGIES,
INC., ASBESTEC-APPLIED, INC. and DPI ENERGY, INC., (hereinafter, whether one or
more, called "Borrower") and to grant to Borrower such renewals, extensions,
forbearances, releases of collateral or other relinquishment of legal rights
as FINOVA may deem advisable, and for other good and valuable consideration,
receipt of which is hereby duly acknowledged, the undersigned Guarantor(s)
(hereinafter, whether one or more, called "Guarantor", who, if two or more in
number, shall be jointly and severally bound) for the undersigned Guarantor and
for their heirs and personal representatives, or successors, and assigns of the
undersigned Guarantor, hereby absolutely and unconditionally guarantees to
FINOVA, its successors, endorsees and assigns, the prompt and unconditional
payment when due (whether at maturity, by acceleration or otherwise) and at all
times thereafter of any and all obligations or liabilities of every kind, nature
and character (including all renewals, extensions and modifications thereof) of
Borrower to FINOVA, its successors, endorsees or assigns howsoever created or
arising, whether or not represented by negotiable instruments or other writings,
whether now existing or hereafter incurred, whether originally contracted with
FINOVA or with another and assigned or transferred to FINOVA or otherwise
acquired by FINOVA, whether contracted by Borrower alone or jointly with others,
and whether absolute or contingent, secured or unsecured, matured or unmatured
(collectively, the "Indebtedness"), including but not limited to any and all
sums, late charges, disbursements, expenses, legal fees and any deficiency
upon enforcement of collateral, agreements and contracts in connection with
all of such obligations.
2. Undersigned Guarantor consents that without notice to or further assent
by undersigned Guarantor, the obligation of Borrower or of any other party for
the liability hereby guaranteed may be renewed, extended, modified, prematured
or released by FINOVA as it may deem advisable in its sole and absolute
discretion, and that any security or securities which FINOVA holds may be
exchanged, sold, released, or surrendered by it, as it may deem advisable in
its sole and absolute discretion, without impairing or affecting the obligation
of undersigned Guarantor hereunder.
3. Undersigned Guarantor waives any and all notice of the acceptance of
this Guaranty, or of the creation, renewal or accrual of any obligations or
liability of Borrower to FINOVA, present or future, or of the reliance of
FINOVA upon this Guaranty. Any and every obligation or liability of Borrower to
FINOVA herein described shall conclusively be presumed to have been created,
contracted or incurred in reliance upon this Guaranty, and all dealings between
Borrower and FINOVA shall likewise be presumed to be in reliance upon this
Guaranty. Undersigned Guarantor waives protest, presentment, demand for
payment, notice of default or non-payment and notice of dishonor to or upon
undersigned Guarantor, Borrower or any other party liable for any of Borrower's
obligations hereby granted.
4. This Guaranty shall be construed as an absolute and unconditional
Guaranty of payment without regard to the validity, regularity or
enforceability of any obligation or purported obligation of Borrower. FINOVA
shall have all of its remedies under this
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FINOVA Capital Corporation Security Agreement
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Guaranty without being obliged to resort first to any security or to any other
remedy or remedies to enforce payment or collection of the obligations hereby
guaranteed and may pursue all or any of its remedies at one or at different
times. FINOVA is hereby given a continuing lien for the purposes and security
of this Guaranty as well as for any other obligation or liability (present or
future, absolute or contingent, due or not due) of undersigned Guarantor to
FINOVA upon all property and securities now or hereafter given unto or left in
the possession or custody of FINOVA for any purpose (including property left in
safekeeping or custody), by or for the account of any undersigned Guarantor,
and also upon any deposits with or any credit or claim of any undersigned
Guarantor against FINOVA existing from time to time. FINOVA is hereby
authorized and empowered, upon the occurrence of any of the events set forth in
the next succeeding paragraph, to appropriate and apply to the payment and
extinguishment of the liability of undersigned Guarantor any and all such
monies, property, securities, deposits or credit balances without demand,
advertisement or notice, all of which are hereby expressly waived.
5. Upon the default of Borrower or any undersigned Guarantor with respect
to any obligations or liabilities of either of them to FINOVA or in the event
Borrower or any undersigned Guarantor shall die or become insolvent or make an
assignment for the benefit of creditors, or if a petition in bankruptcy be
filed by or against Borrower or any undersigned Guarantor, or in the event of
the appointment of a receiver (either at law or in equity) of Borrower or of
any undersigned Guarantor, or in the event that a judgment is obtained or
warrant of attachment issued against Borrower or any undersigned Guarantor, or
in the event that the financial or business condition of any of them shall so
change as in the opinion of FINOVA will materially impair its security or
increase its risk, all or any part of the obligations and liabilities of
Borrower and/or of undersigned Guarantor to FINOVA, whether direct or
contingent, and of every kind and description, shall, without notice or demand,
become immediately due and payable insofar as this Guaranty is concerned, and
shall be taken up forthwith by undersigned Guarantor, and in any of such
events, and whether or not the said liabilities and obligations are due and
payable, FINOVA may (in addition to, and subject to its rights and remedies
under the terms of any special contract with Borrower), without demand of
performance or advertisement or notice of intention to sell or of time or place
of sale, or to redeem, or other notice whatsoever to undersigned Guarantor or
to Borrower (all and each of which demands, advertisements and notices being
hereby expressly waived), sell any and all collateral which it may hold for
said obligations, or under this Guaranty, in one or more parcels, at public or
private sale, at FINOVA's office or elsewhere, at such prices as FINOVA may
deem best, either for cash or credit, with the right of FINOVA at any such
sale, public or private, to purchase the whole or any part of said collateral
free from any right or equity of redemption, which right or equity is hereby
expressly waived. FINOVA may, in its uncontrolled discretion, apply the net
proceeds of such sale or sales to payment on account of the obligations or
liabilities of Borrower and undersigned Guarantor in such manner and order of
priority as FINOVA may, in its absolute and uncontrolled discretion, elect. If,
in the opinion of FINOVA, any collateral deposited hereunder cannot be freely
sold or disposed of at public or private sale (because of any relationship
between the owner and issuer thereof or otherwise), FINOVA shall have the
unqualified right (in addition to all other rights hereunder) to sell the same,
or any part thereof, to a purchaser or purchasers, under investment letters,
for a negotiated price or prices which, under such circumstances, shall be
deemed to be fair and equitable.
6. Any stocks, bonds or other securities held by FINOVA hereunder may,
whether or not Borrower or undersigned Guarantor is in default, be registered
and held in the name of FINOVA or its nominee, and FINOVA or said nominee may
exercise all voting and corporate rights relating thereto as if the absolute
owner thereof.
7. The term "Borrower" as used herein shall include the individual or
individuals, association, partnership or corporation named herein as Borrower,
and (a) any successor individual or individuals, association, partnership or
corporation to which all or substantially all of the business or assets of said
Borrower shall have been transferred, (b) in the case of a partnership
Borrower, any new partnership which shall have been created by reason of the
admission of any new partner or partners therein and/or the dissolution of the
existing partnership by the death, resignation, or other withdrawal of any
partner, and (c) in the case of a corporate Borrower, any other corporation
into or with which said Borrower shall have been merged, consolidated,
reorganized, purchased or absorbed. The right of FINOVA to hold, deal with and
dispose of the property deposited by undersigned Guarantor hereunder, as herein
provided, shall continue unimpaired notwithstanding any invalidity or
unenforceability of this
15
<PAGE> 16
FINOVA Capital Corporation Security Agreement
- --------------------------------------------------------------------------------
Guaranty as against undersigned Guarantor personally.
8. FINOVA's books and records showing the account between FINOVA and
Borrower shall be admissible as evidence in any action or proceeding, shall
be binding upon the undersigned Guarantor for the purpose of establishing the
items therein set forth and shall constitute prima facie proof hereof. FINOVA's
monthly statements rendered to Borrower shall, to the extent to which no
written objection is made within thirty (30) days after the date thereof,
constitute an account stated between FINOVA and Borrower and be binding upon
the undersigned Guarantor.
9. The undersigned Guarantor waives any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution or any other claim which
the undersigned Guarantor may now or hereafter have against Borrower, or any
person other than a coguarantor directly or contingently liable for the
obligations guaranteed hereunder, or against or with respect to the Borrower's
property (including without limitation, property collateralizing the
undersigned Guarantor's obligations to FINOVA) arising from the existence or
performance of this Guaranty. In furtherance and not in limitation of the
preceding waiver, the undersigned Guarantor agrees that any payment to FINOVA
by the undersigned Guarantor pursuant to this Guaranty shall be deemed a
contribution to the capital of the Borrower or other obligated party, and any
such payment shall not constitute the undersigned Guarantor a creditor of any
such party.
10. The undersigned Guarantor represents and warrants that there is no
existing indemnification agreement, whether qualified or unqualified, between
the undersigned and Borrower except as set forth on Exhibit "A" attached hereto.
The undersigned waives any right he may otherwise have to seek a stay from any
United States Bankruptcy Court, in which Borrower may become a debtor, of any
claim or cause of action hereinafter asserted against the undersigned Guarantor
on his Guaranty, whether in an action commenced against the undersigned as a
guarantor prior to or instituted following the filing a Chapter 11 petition by
or against Borrower. The undersigned Guarantor further acknowledges that this
waiver hereinabove, is specifically provided to FINOVA as an inducement to it to
effect the financial accommodations provided by FINOVA to Borrower.
11. This Guaranty shall, without further reference, pass to, and may be
relied upon and enforced by, any successor or assignee of FINOVA and any
transferee or subsequent holder of any of said liabilities or obligations of
Borrower. This Guaranty may be terminated (but only insofar as it may relate to
obligations of Borrower arising subsequent to such termination) upon written
notice to that effect delivered by undersigned Guarantor to an officer of
FINOVA, such termination to be effective only upon the execution by such
officer of a written receipt therefor, and in the event of such termination,
undersigned Guarantor and his or their respective executors, administrators or
successors and assigns shall nevertheless remain liable with respect to
obligations incurred or arising theretofore, and with respect to such
obligations and any renewals, extensions or other liabilities arising out of
same, this Guaranty shall continue in full force and effect, and FINOVA shall
have all the rights herein provided for as if no such termination had occurred.
12. The undersigned Guarantor does hereby waive any and all right to a
trial by jury in any action or proceeding based hereon. This Guaranty and the
rights and obligations of FINOVA and of the undersigned Guarantor shall be
governed and construed in accordance with the laws of the State of New York
(without regard to any choice of law rules). The undersigned Guarantor hereby
consents to the exclusive jurisdiction of the Supreme Court of the State of
New York (without regard to any choice of law rules) for a determination of
any dispute connected with this Guaranty and authorizes the service of process
on the undersigned Guarantor by registered or certified mail sent to the
undersigned Guarantor at the address or addresses of the undersigned Guarantor,
as the case may be as herein set forth or as set forth on any record maintained
by FINOVA. Guarantor irrevocably waives, to the fullest extent Guarantor may
effectively do so, the defense of an inconvenient forum to the maintenance of
any such action or proceeding; agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in any other manner
provided by law; Guarantor agrees not to institute any legal action or
proceeding against FINOVA or any of FINOVA's directors, officers, employees,
agents or property concerning any matter arising out of or relating to this
continuing Guaranty in any court other than one located in New York, New York.
Nothing herein shall affect or impair FINOVA's right to serve legal process in
any manner permitted by law or FINOVA's right to bring any action or proceeding
against Guarantor or its property in the courts of any other jurisdiction. This
Guaranty cannot be changed or terminated orally, shall be interpreted according
to the laws of the State of New
16
<PAGE> 17
FINOVA Capital Corporation Security Agreement
- -------------------------------------------------------------------------------
York (without regard to any choice of law rules), shall be binding
upon the heirs, executors, administrators, successors and assigns of the
undersigned Guarantor and shall inure to the benefit of FINOVA's successors and
assigns. Guarantor agrees that any action brought by it against FINOVA whether
with regard to this Agreement or otherwise shall be subject to the exclusive
jurisdiction and venue of the Supreme Court of the State of New York (without
regard to any choice of law rules), County of New York or the United States
District Court for the Southern District of New York.
13. Guarantor agrees that, whenever an attorney is used to obtain
payment under or otherwise enforce this Guaranty or to enforce, declare or
adjudicate any rights or obligations under this Guaranty or with respect to
collateral, whether by legal proceeding or by any other means whatsoever,
FINOVA's reasonable attorney's fee plus costs and expenses shall be payable by
each Guarantor against whom this Guaranty or any obligation or right hereunder
is sought to be enforced, declared or adjudicated. Guarantor, if more than one,
shall be jointly and severally bound and liable hereunder and if any of the
undersigned is a partnership, also the members thereof individually. FINOVA and
Guarantor, in any litigation (whether or not arising out of or relating to
obligations, liabilities or collateral security or any of the matters contained
in this Guaranty) in which FINOVA and any of them shall be adverse parties,
waive trial by jury. In addition, Guarantor waives the performance of each and
every condition precedent to which Guarantor might otherwise be entitled by
law. FINOVA shall have the right to fill in any blank spaces left in this
Guaranty (including the name of "Borrower"), to date this Guaranty and to
correct patent errors therein.
14. Guarantor is fully aware of the financial condition of Borrower and is
executing and delivering this Guaranty at Borrower's request and based solely
upon his own independent investigation of all matters pertinent hereto, and
Guarantor is not relying in any manner upon any representation or statement of
FINOVA with respect thereto. Guarantor represents and warrants that he is in a
position to obtain, and Guarantor hereby assumes full responsibility for
obtaining, any additional information concerning Borrower's financial condition
and any other matter pertinent hereto as Guarantor may desire, and Guarantor is
not relying upon or expecting FINOVA to furnish to him any information now or
hereafter in FINOVA's possession concerning the same or any other matter. By
executing this Guaranty, Guarantor knowingly accepts the full range of risks
encompassed within a contract of continuing Guaranty, which risks Guarantor
acknowledges include without limitation the possibility that Borrower will
incur additional Indebtedness for which Guarantor will be liable hereunder
after Borrower's financial condition or ability to pay such Indebtedness has
deteriorated and/or after bankruptcy or insolvency proceedings have been
commenced by or against Borrower. Guarantor shall have no right to require
FINOVA to obtain or disclose any information with respect to the Indebtedness,
the financial condition or character of Borrower, the existence of any
collateral or security for any or all of the Indebtedness, the filing by or
against Borrower of any bankruptcy or insolvency proceeding, the existence of
any other guaranties of all or any part of the Indebtedness, any action or
non-action on the part of FINOVA, Borrower, or any other person, or any other
matter, fact or occurrence.
15. The Guarantor acknowledges that this Guaranty and the Guarantor's
obligations under this Guaranty are and shall at all times continue to be
absolute and unconditional in all respects and shall at all times be valid and
enforceable irrespective of any other agreements or circumstances of any kind
or nature whatsoever which might otherwise constitute a defense to this
Guaranty and the obligations of the Guarantor under this Guaranty or the
obligations of any other person or party (including, without limitation, the
Borrower) relating to this Guaranty or the obligations of the Guarantor
hereunder or otherwise with respect to any transactions involving the Borrower
and FINOVA. This Guaranty sets forth the entire agreement and understanding of
FINOVA and Guarantor and Guarantor absolutely, unconditionally and irrevocably
waives any and all right to assert any defense, set-off, counterclaim or
cross-claim of any nature whatsoever (including, but not limited to, fraud in
the inducement and commercial disposition of collateral of the Guarantor or
Borrower) with respect to this Guaranty or the obligations of the Guarantor
under this Guaranty or the obligations of any other person or party (including,
without limitation, Borrower) relating to this Guaranty or the obligations of
the Guarantor under this Guaranty or otherwise with respect to any transactions
involving the Borrower and FINOVA in any action or proceeding brought by its
successors and assigns, to collect the Indebtedness or any portion thereof, or
to enforce, the obligations of the Guarantor under this Guaranty. The Guarantor
acknowledges that no oral or other agreements, understandings, representations
or warranties exists with respect to this Guaranty or with respect to the
obligations
17
<PAGE> 18
FINOVA Capital Corporation Security Agreement
- ------------------------------------------------------------------------------
of the Guarantor under this Guaranty, except as specifically set forth in this
Guaranty.
16. No executory agreement and no course of dealing between undersigned
Guarantor and FINOVA shall be effective to change or modify this Guaranty in
whole or in part; nor shall any change, modification or waiver of any rights or
powers of FINOVA be valid or effective unless in writing or signed by an
authorized officer of FINOVA.
17. MUTUAL WAIVER OF RIGHT TO JURY TRIAL. FINOVA, BY ITS ACCEPTANCE
HEREOF, AND GUARANTOR EACH HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (i)
THIS AGREEMENT; OR (ii) ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT
BETWEEN FINOVA AND GUARANTOR; OR (iii) ANY CONDUCT, ACTS OR OMISSIONS OF FINOVA
OR GUARANTOR OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS
OR ANY OTHER PERSONS AFFILIATED WITH FINOVA OR GUARANTOR; IN EACH OF THE
FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
18. Notwithstanding anything to the contrary contained herein, this
Guaranty and the obligations of the Guarantor hereunder shall be limited to the
amount of $300,000 plus interest and cost from the date of demand.
IN WITNESS WHEREOF, the undersigned Guarantor has hereunto set his hand
and seal the day and year first above written.
WITNESS:
/s/ DULCIA MARIE /s/ JOHN C. REGAN
- --------------------------------- ---------------------------------
Dulcia Marie John C. Regan
482 Hillside Avenue
Monroeville, Pennsylvania
Social Security No.: ###-##-####
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF ALLEGHENY )
On this 19th day of August, 1997, before me personally appeared John C.
Regan, to me known, and known to me to be the individual described in and
who executed the foregoing instrument and he duly and severally acknowledged to
me that he executed the same.
/s/ CHERYL M. HUNSBERGER
------------------------------------------
NOTARY PUBLIC
Notarial Seal
Cheryl M. Hunsberger, Notary Public
Monroeville Boro, Allegheny County
My Commission Expires April 12, 2001
Member, Pennsylvania Association of Notaries
18
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AS OF JULY 31, 1997 AND THE CONSOLIDATED STATEMENT OF
OPERATIONS FOR THE SIX MONTHS ENDED JULY 31, 1997 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-START> FEB-01-1997
<PERIOD-END> JUL-31-1997
<CASH> 792,000
<SECURITIES> 0
<RECEIVABLES> 4,357,000
<ALLOWANCES> 0
<INVENTORY> 169,000
<CURRENT-ASSETS> 6,690,000
<PP&E> 4,201,000
<DEPRECIATION> 3,425,000
<TOTAL-ASSETS> 7,513,000
<CURRENT-LIABILITIES> 4,623,000
<BONDS> 1,675,000
0
444,000
<COMMON> 120,000
<OTHER-SE> 651,000
<TOTAL-LIABILITY-AND-EQUITY> 7,513,000
<SALES> 9,799,000
<TOTAL-REVENUES> 9,799,000
<CGS> 8,069,000
<TOTAL-COSTS> 8,069,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 107,000
<INCOME-PRETAX> 434,000
<INCOME-TAX> 10,000
<INCOME-CONTINUING> 424,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 424,000
<EPS-PRIMARY> 0.06
<EPS-DILUTED> 0.06
</TABLE>
