<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
-------- SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD
ENDED JULY 2, 1995
------------
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
------- SECURITIES EXCHANGE ACT OF 1934
Commission file number 0-14618
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VECTRA TECHNOLOGIES, INC.
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(Exact name of registrant as specified in its charter)
Washington 91-1160888
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(State or other jurisdiction of (IRS Employer
Incorporation or Organization Identification No.)
5000 Executive Parkway, Suite 500, San Ramon, CA 94583
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(Address of principal executive offices)
(510) 275-4500
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(Registrant's telephone number, including area code)
1010 South 336th Street, Suite 220, Federal Way, WA 98003
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(Former name, former address and former fiscal year,
if changed since last report)
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
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There were 7,833,627 shares of common stock outstanding as of August 8,
1995.
Page 1 of 13
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PART 1 - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
--------------------
VECTRA TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
July 2, 1995 and January 1, 1995
(In thousands)
<TABLE>
<CAPTION>
July 2 January 1
------ ---------
(Unaudited) (Audited)
<S> <C> <C>
ASSETS
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Current Assets:
Cash and cash equivalents $ 6,034 $ 3,427
Securities available for sale 1,157 919
Accounts receivable, net 19,046 26,211
Costs and estimated earnings in excess of
billings on uncompleted contracts 6,513 3,076
Inventories 1,396 1,426
Prepaid expenses 722 931
---------- ----------
Total current assets 34,868 35,990
Property and equipment, at cost, less accumulated depreciation of
$11,446 at July 2 and $15,027 at January 1 9,530 11,304
Costs in excess of net assets acquired,
net of accumulated amortization 26,452 28,638
Licenses, patents and other intangibles at cost,
net of accumulated amortization 4,810 5,270
Investments and long-term prepaid costs 2,305 2,647
Other assets 257 316
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$ 78,222 $ 84,165
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---------- ----------
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
Current liabilities:
Note payable to bank $ 8,389 $ 15,200
Accounts payable 7,910 5,060
Accrued payroll and related expenses 8,043 7,014
Other accrued liabilities 12,398 6,153
Billings in excess of costs and estimated earnings
on uncompleted contracts 2,561 9,122
Long-term debt due within one year 1,170 2,712
---------- ----------
Total current liabilities 40,471 45,261
Long-term debt 1,358 8,617
Deferred lease incentive 456 487
Shareholders' equity:
Class A preferred stock, 4,100,000 authorized -- --
Common stock, 30,000,000 authorized,
7,833,627 issued and outstanding (7,848,627 in 1994) 45,403 45,212
Accumulated deficit (9,466) (15,412)
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Total shareholders' equity 35,937 29,800
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$ 78,222 $ 84,165
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---------- ----------
</TABLE>
See accompanying notes 2
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VECTRA TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Three Months Six Months Six Months
Ended Ended Ended Ended
July 2, 1995 July 3, 1994 July 2, 1995 July 3, 1994
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Revenues $34,078 $38,023 $72,729 $75,168
Operating costs 23,572 26,101 51,022 50,660
------------ ------------ ------------ ------------
Gross profit 10,506 11,922 21,707 24,508
Research and
development expenses 26 185 55 492
------------ ------------ ------------ ------------
Selling, general and
administrative expenses 13,268 11,977 23,482 23,658
------------ ------------ ------------ ------------
Operating income (loss) (2,788) (240) (1,830) 358
Other income (expense):
Interest expense, net (804) (725) (1,559) (1,328)
Gain on sale of subsidiary 10,752 -- 10,752 --
------------ ------------ ------------ ------------
Income (loss) before taxes 7,160 (965) 7,363 (970)
Income taxes 1,404 55 1,444 110
------------ ------------ ------------ ------------
Net income (loss) $5,756 $(1,020) $5,919 $(1,080)
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Net income (loss) per share $.73 $(.13) $.75 $(.14)
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Average shares outstanding 7,897,531 7,858,055 7,898,455 7,745,989
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
</TABLE>
See accompanying notes 3
<PAGE>
VECTRA TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOW
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended Six Months Ended
July 2, 1995 July 3, 1994
------------ ------------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $5,919 $(1,080)
Adjustments to reconcile net income (loss)
to net cash provided from operations:
Depreciation and amortization 3,039 3,232
Gain on sale of subsidiary (10,752) --
Writedown of fixed assets and intangibles 2,220 --
Decrease in cash from changes in operating
working capital:
Accounts receivable and billings (2,521) (5,915)
Inventories and prepaid expenses 202 (527)
Accounts payable and accrued expenses 10,804 31
------------ ------------
Net cash provided by (used in) operating activities 8,911 (4,259)
------------ ------------
Cash flows from investing activities:
Payments related to Impell acquisition 559 (23,251)
Proceeds from sale of subsidiary 14,173 --
Capital expenditures (5,278) (2,142)
Increases in securities available for sale (211) (1,368)
Other 50 (568)
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Net cash used in investing activities 9,293 (27,329)
------------ ------------
Cash flows from financing activities:
Net borrowing (repayment) under short-term
loans (6,811) 19,871
Proceeds from long-term debt -- 13,962
Payments on long-term loans (8,786) (3,914)
Proceeds from issuance of common stock
and warrants 2,007
------------ ------------
Net cash provided by financing activities (15,597) 31,926
------------ ------------
Net increase (decrease) in cash 2,607 338
Cash at beginning of period 3,427 572
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Cash at end of period $6,034 $910
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------------ ------------
Cash paid for interest $1,216 $584
Cash paid for income taxes -- $206
</TABLE>
(See accompanying notes) 4
<PAGE>
VECTRA TECHNOLOGIES, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(Unaudited)
1. BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and
Article 10 of Regulation S-X. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of
management, all adjustments considered necessary for a fair presentation
have been included. Operating results for the three- and six-month periods
ended July 2, 1995 are not necessarily indicative of the results that may
be expected for the full year. The unaudited condensed consolidated
financial statements should be read in conjunction with the consolidated
financial statements and footnotes thereto included in the Company's fiscal
1994 Annual Report on Form 10-K.
2. SALE OF SUBSIDIARY
Effective June 30, 1995, the Company sold all of the outstanding shares of
its wholly owned subsidiary, Plant Services, Inc. to Westinghouse Electric
Corporation. The sale price was $19 million less estimated adjustments for
billings in excess of costs and estimated earnings on uncompleted contracts
and changes in equity of approximately $1.8 million. In addition, there is
an earnout provision with a minimum payout of $0.5 million and a maximum
payout of $3.6 million over the next three years. The proceeds from the
sale were used to reduce the note payable and long-term debt, pay retained
liabilities, and pay expenses associated with the transaction.
3. NOTE PAYABLE AND LONG-TERM DEBT
In conjunction with the sale of the plant services business the banks
reduced the limit on the revolving credit facility from $22.5 million to
$12.5 million. Additionally, the banks issued a letter of commitment to
provide a $3 million bridge facility to support the Company's capital
expenditure program subject to certain conditions. The Company plans to
negotiate the terms of this facility with the banks in the near future.
4. EARNINGS PER SHARE
Net income (loss) per share is based upon the weighted average number of
common shares outstanding during each period plus the dilutive effect of
stock options and warrants. Net income (loss) per share on a fully diluted
basis was the same as the primary income per share.
5. CONTINGENCIES
The Company is self-insured for general liability risk for $1 million per
occurrence and $2 million in the aggregate. As of July 2, the Company has
accrued approximately
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$604 thousand for unreported and/or potential losses. Coverage above the
self-insured limits is provided for under an umbrella policy with a
commercial insurance company.
The radioactive materials handled by the Company are the legal
responsibility of the Company's utility customers. The Company does not
take title to such materials. In the event of an accident or incident
involving such material, the Company is covered under insurance carried by
and provided to operators of nuclear plants or transporters of nuclear
materials.
6. RECLASSIFICATIONS
Certain reclassifications have been made to the 1994 financial statements
to conform to the current year presentation.
6
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<PAGE>
ITEM 1. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITIONS
ACQUISITION AND DIVESTITURE
On January 6, 1994 the Company's shareholders approved the purchase of all of
the stock of ABB Impell Corporation, ABB Government Services Inc. and ABB Impell
Ltd. (the "Impell Companies") from affiliates of ABB Asea Brown Boveri Ltd. of
Zurich, Switzerland (the "Seller"). The acquisition, effective as of midnight
December 31, 1993, was completed on January 7, 1994 and was accounted for as a
purchase in 1994. The Company also changed its name from Pacific Nuclear
Systems, Inc. to VECTRA Technologies, Inc. ("VECTRA" or "the Company"). The
purchase price of $31.9 million together with the direct costs of the
acquisition were allocated to the fair value of the assets acquired and
liabilities assumed. The seller received $14 million in common stock (1,714,503
shares) and the remainder of the purchase price in cash. The purchase price of
$31.9 million reflects a reduction of $480,000 for ABB Impell Corporation and
ABB Government Services, Inc. that was paid in cash by the Seller in April, 1995
pursuant to an arbitration proceeding. The final purchase price for ABB Impell
Ltd. is subject to a further adjustment which is not material.
On June 30, 1995, the Company sold all the outstanding shares of Plant Services,
Inc. to Westinghouse Electric Corporation. Immediately prior to the closing of
the transaction, VECTRA Services, Inc. (a wholly owned subsidiary of the
Company) contributed all of the assets and substantially all of the liabilities
of its chemical cleaning and chemical decontamination business to Plant
Services, Inc. The sale price was $19 million less estimated adjustments for
billings in excess of costs and estimated earnings on uncompleted contracts and
changes in equity of approximately $1.8 million. In addition, the cash received
at closing was reduced by $2 million which the parties agreed to deposit into an
escrow account in order to finance an environmental remediation plan. Any
excess funds in the escrow will be distributed to the Company and used to pay
down the term loan. In addition, there is an earnout provision with a minimum
payout of $0.5 million and a maximum payout of $3.6 million over the next three
years. The proceeds from the sale were used to reduce the note payable and
long-term debt, pay retained liabilities, and pay expenses associated with the
transaction.
RESULTS OF OPERATIONS
REVENUES
Total revenues decreased 3% to $72.7 million in the first six months of 1995
from $75.2 million in the first six months of 1994. Revenues decreased 10%
from $38.0 million for the three months ended July 3, 1994, compared to $34.1
million for the three months ended July 2, 1995. The decrease in revenues for
the six month period is primarily due to decreased nuclear engineering services
activity and decreases in activity relating to low level nuclear waste services
due to the completion of a large contract with a client in Korea during 1994.
This decrease was partially offset by increased activity in certain contracts
for spent fuel storage systems and a full system decontamination contract. For
the three month period ending July 2, 1995, the revenue decrease is attributable
to lower level of activity in nuclear engineering and the completion of a
7
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steam generator cleaning contract partially offset by increased work on
contracts for spent fuel storage systems.
Most of the Company's contracts are awarded by the competitive bidding process
in which a number of firms submit proposals in response to a request for
proposals to provide specific products or services. The Company operates in a
very competitive industry, and in recent quarters utilities have limited or
deferred spending. Consequently, management is unable to comment on the outlook
for future contracts. The Company's ongoing marketing activities include
identifying prospective bid requests and requests for proposals. In its target
market areas, the Company aggressively pursues such requests.
GROSS PROFITS
Each of the Company's contracts is negotiated independently and varies as to
profitability. The timing and actual performance by the Company on its major
contracts also affect the Company's gross profit margin.
Gross profit decreased by 11% or $2.8 million for the first six months of 1995
compared to the first six months of 1994. For the three months ended July 2,
1995, gross profit decreased by 12% or $1.4 million from the comparable period
in 1994.
Gross profit was 30% of revenues in the first six months of 1995 compared to 33%
in the first six months of 1994. For the three months ended July 2, 1995, gross
profit was 31% compared to 31% in the three months ended July 3, 1994. The
decline in gross profit dollars for the six month and three month periods is due
to lower revenues plus lower gross margins in engineering services and spent
fuel storage contracts. The lower engineering services margins reflect
competitive pricing pressures. The lower margins for fuel storage contracts
reflect the fact that a higher percentage of these contracts are for procurement
which are typically lower margin than labor intensive contracts. These lower
margins were in part offset by higher margins on decontamination and waste
processing contracts including the previously mentioned full system
decontamination.
EXPENSES
Research and development expenses decreased for both the six month and three
month periods in 1995 compared to 1994. The majority of the 1994 expense was
related to development of the Company's vitrification process, Enviroglass-
Registered Trademark-, which features thermal treatment and volume reduction of
low level radioactive waste into an environmentally stable glass form. In 1995
the Company has moved from R & D activity to the fabrication of vitrification
equipment to support client contracts.
Selling, general and administrative expenses, as a percentage of revenues,
increased to 32% from 30% for the first six months of 1995 compared to the same
period in 1994. For the three month period ended July 2, 1995 selling, general
and administrative expense as a percentage of revenues, increased to 39% from
32% for the comparable period in 1994. Actual selling, general, and
administrative expenses increased $1.1 million during the first six months of
1995 compared with the first six months of the prior year and $1.3 million
during the three months
8
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ended July 2, 1995 compared to the three months ended July 3, 1994. The
increase in both periods is primarily attributable to severance charges of $1.5
million, asset write-offs of $2.2 million and other charges of $0.2 million
taken in June 1995 offset in part by lower levels of overhead expense in the
engineering services business resulting from the reductions in staff in 1994.
Net interest expense increased in both the first half of 1995 and the three
months ended July 2, 1995 from the comparable periods in 1994 due to higher
interest rates. Interest expense includes interest on the long-term debt and
the revolving credit facility as well as amortization of bank fees and warrant-
related debt discount.
The effective income tax rate is lower than the statutory tax rate for the six
months and three months ended July 2, 1995 due to the use of net operating loss
carryforwards. The effective income tax rate is higher than the statutory rate
for the comparable periods in 1994 due to provisions for state income taxes.
GAIN ON SALE OF ASSETS
Effective June 30, 1995, the Company sold its wholly owned subsidiary, Plant
Services, Inc., to Westinghouse Electric Corporation for $19 million less
approximately $1.8 million in balance sheet adjustments. The Company also
established an environmental escrow in the amount of $2 million. Expenses for
the transaction totaled approximately $980,000 and taxes were $1.4 million for a
net gain over book value of $9.4 million. Any excess funds from the escrow will
be distributed to the Company and will increase the gain on sale.
NET INCOME (LOSS)
Net loss of $1.1 million in the first six months of 1994 improved to net income
of $5.9 million in the first six months of 1995. Net loss of $1.0 million in
the three months ended July 3, 1994 improved to a net income of $5.8 million in
the three months ended July 2, 1995. The increase in income is due primarily to
the sale of the plant services business and the cost reduction measures taken in
the fourth quarter of 1994 offset in part by the severance, asset write-offs and
other charges taken in June 1995.
LIQUIDITY AND CAPITAL RESOURCES
Net cash from operating activities was $8.9 million in the six months ended July
2, 1995 compared to net cash used by operations of $4.3 million in the six
months ended July 3, 1994. Accounts receivable and billings balances differ
from period to period as a result of varying contractual terms that relate to
the timing and amount of progress payments for some of the Company's multi-year,
multi-million dollar contracts. This variability is expected to continue in
future periods.
Capital expenditures were $5.4 million in the six months ended July 2, 1995
compared to $2.1 million in the six months ended July 3, 1994. Capital
expenditures were $3.1 million in the three months ended July 2, 1995 compared
to $1.3 million in the same period of 1994. The Company's agreement with its
banks allows a maximum of $6.8 million in capital expenditures and commitments
during the first six months of 1995. The majority of the Company's capital
9
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expenditures are for processing equipment for radioactive waste volume
reduction, dewatering, and vitrification systems in waste services and
decontamination equipment in plant services. Fuel services has capital
requirements primarily for licenses and high level waste transportation
equipment. Engineering services has modest capital requirements mainly for
computer equipment. The largest capital expenditure is to support the Company's
vitrification technology, Enviroglass-Registered Trademark-. The Company
anticipates that it will need to devote significant capital resources to
technology development in the future in order to remain competitive. The
Company had contractual commitments of $5.8 million as of quarter end for
capital acquisitions to be made during the remainder of 1995. Depending on the
capital resources available to the Company, it may make additional capital
expenditures during 1995.
The Company has financed its operations, development, and growth primarily from
bank debt, currently in the form of a revolving credit line secured by
receivables and a long term loan. The long-term debt matures in January, 1999
and the revolving credit facility matures in January, 1996. The interest rate
for both loans is the bank's base rate plus 1.0% to 1.5% or the Eurodollar rate
plus from 2.0% to 2.5%. The Company also issued warrants to the banks in
conjunction with the debt to purchase 830,060 shares of common stock at $8.17
per share which are exercisable through January 1999. In March, 1995, the banks
required the Company to reprice the common stock warrants issued in connection
with the bank debt at $2.9375 per share. Also in March the banks required that
if the Company did not raise $10 million in cash by June 30, 1995, the warrant
price would be further reduced to $0.01 per share purchase price. This
condition was satisfied by the sale of the plant services business which enabled
the Company to pay $7.3 million to reduce the long-term debt and $6.6 to reduce
borrowings under the revolving credit facility. In connection with the plant
services transaction, the banks received a fee of $100,000 and reduced the
maximum amount which can be borrowed under the revolving credit facility to
$12.5 million.
Additionally, the banks issued the Company a letter of commitment to provide a
senior secured six month non-revolving bridge line of credit of up to $3 million
to fund capital expenditures subject to certain conditions. The Company expects
to negotiate with the banks to put this facility in place.
The agreements with the banks specify certain negative, affirmative and
financial covenants, including without limitation, covenants with respect to
debt/capital ratio, interest coverage, fixed charge coverage and minimum net
worth, and restrictions on dividends and activities of the Company. The Company
renegotiated the requirements with the banks and established new ratios for the
quarter ended July 2, 1995 with which it complied. The banks charged a $100,000
fee in connection with establishing these covenants. The Company plans to
negotiate revised covenants for the second half of 1995 and beyond reflecting
the sale of the plant services business, the current outlook for operating
performance and capital expenditure requirements.
Borrowings under the revolving credit facility are limited by eligible
receivables in the accounts receivable borrowing base. At the end of the
quarter, the Company had an unused revolving credit facility of $4.1 million of
which $2.9 million was available based on the accounts receivable borrowing
base. The amount of availability is subject to fluctuation.
10
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Lower than projected cash flows and lower borrowing availability under the
revolving credit facility have restricted the Company's ability to fund
expenditures and develop its technology. As previously discussed, operations in
1995 are not likely to generate sufficient cash to continue operations and
concurrently invest in necessary expenditures for technology development
including certain amounts which are contractually committed. The Company
recognizes its need for additional cash. The sale of the plant services
business has provided much of the cash required for operations and technology
development. Additional cash will be needed, however, and management
anticipates that sufficient cash will be provided via a combination of the
bridge line of credit from the banks, additional reductions in operating
expenses, entering into a joint venture or strategic partnership, and the sale
of other assets.
11
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PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS Not applicable.
ITEM 2. CHANGES IN SECURITIES Not applicable.
ITEM 3. DEFAULT UPON SENIOR SECURITIES Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO
A VOTE OF SECURITY HOLDERS Not applicable.
ITEM 5. OTHER INFORMATION None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 Fourth Amendment, Fifth Amendment and Sixth Amendment to the Term Loan
Agreement, First Amendment to Security Agreement and Intellectual
Property Security Agreement among VECTRA Technologies, Inc., the banks
named herein and Banque Paribas as Agent and Banque Nationale de Paris
as Managing Agent. Third Amendment and Fourth Amendment to Credit
Agreement and First Amendment to Security Agreement among VECTRA
Technologies, Inc., the banks named herein and Banque Paribas as
Agent, Banque Nationale de Paris as Managing Agent and Bank Hapoalim.
27 Financial Data Schedule
(b) The Company filed a current report on Form 8-K dated June 30, 1995
announcing the sale of its plant services business.
12
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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.
VECTRA TECHNOLOGIES, INC.
Dated August 11, 1995 By /s/ Ray A. Fortney
------------------------------
Ray A. Fortney
President
Chief Executive Officer
Dated August 11, 1995 By /s/ Lynne M. Heitman
------------------------------
Lynne M. Heitman
Vice President, Finance
Chief Financial Officer
13
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FOURTH AMENDMENT
(TERM LOAN AGREEMENT)
This FOURTH AMENDMENT ("AMENDMENT") dated as of May 23, 1995 is entered
into among, VECTRA TECHNOLOGIES, INC. (the "BORROWER"), BANQUE PARIBAS, as a
Bank (as defined below) and as the Agent (as defined below), and BANQUE
NATIONALE DE PARIS, as a Bank and as the Managing Agent (as defined below).
RECITALS
A. The Borrower has entered into that certain Term Loan Agreement dated
as of January 6, 1994, as amended by the First Amendment and Waiver to Term Loan
Agreement dated as of March 29, 1994, the Amendment and Limited Waiver dated as
of August __, 1994 and the Third Amendment dated as of March 10, 1995 (as so
amended, the "TERM AGREEMENT"), among the Borrower, the Banks party thereto,
Banque Paribas, acting in its separate capacity as agent for the Banks (the
"AGENT"), and Banque Nationale de Paris, acting in its separate capacity as
Managing Agent (as defined therein) (the "MANAGING AGENT").
B. The Borrower has requested that subsection (e) (Capital Expenditures)
of Section 6.1 (Financial Covenants) of the Term Agreement be amended as set
forth below.
C. The Banks are willing to so amend the Term Agreement, but only upon
the terms and conditions and in reliance upon the representations and warranties
of the Borrower set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties to the Term
Agreement agree as follows:
1. DEFINITIONS. Capitalized terms used but not defined in this Amendment
shall have the meanings given to them in the Term Agreement.
2. AMENDMENTS. The Term Agreement is hereby amended as follows:
2.1 Subsection (s) (Weekly Reports) of Section 5.1 (Information
Covenants) is amended by deleting the word "and" immediately preceding clause
(iii) and inserting at the end of clause (iii) the following:
and (iv) as to the Capital Expenditures made or incurred commited to
be made or incurred (1) during the immediately preceding week and (2)
cumulatively since the beginning of the current fiscal quarter
2.2 Subsection (e) (Capital Expenditures) of Section 6.1 (Financial
Covenants) is amended by deleting from the table set forth in such subsection
the maximum amount of
1.
<PAGE>
"$2,100,000" set forth opposite the period "1/2/95 - 4/2/95" and inserting in
its place the maximum amount of "2,700,000."
3. LIMITATION OF AMENDMENT.
(a) The amendments set forth in Section 2, above, is effective for
the purposes set forth herein and shall be limited precisely as written and
shall not be deemed to (i) be a consent to any amendment, waiver or modification
of any other term or condition of any Loan Document or (ii) otherwise prejudice
any right or remedy which the Banks, the Agent or the Managing Agent may now
have or may have in the future under or in connection with any Loan Document.
(b) This Amendment shall be construed in connection with and as part
of the Loan Documents and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Loan Documents, except as herein
amended, are hereby ratified and confirmed and shall remain in full force and
effect.
4. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks, the
Agent and the Managing Agent to enter into this Amendment, the Borrower hereby
represents and warrants to each Bank, the Agent and the Managing Agent as
follows:
(a) After giving effect to this Amendment (i) the representations and
warranties contained in the Loan Documents (other than those which expressly
speak as of a different date) are true, accurate and complete in all material
respects as of the date hereof and (ii) no Default or Event of Default has
occurred and is continuing;
(b) The Borrower has the corporate power and authority to execute and
deliver this Amendment and to perform its obligations under the Term Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party;
(c) The certificate of incorporation, bylaws and other organizational
documents of the Borrower delivered to each Bank on the Closing Date are true,
accurate and complete and have not been amended, supplemented or restated and
are and continue to be in full force and effect;
(d) The execution and delivery by the Borrower of this Amendment and
the performance by Borrower of its obligations under the Term Agreement, as
amended by this Amendment, and each of the other Loan Documents to which it is a
party have been duly authorized by all necessary corporate action on the part of
the Borrower;
(e) The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of its obligations under the Term Agreement, as
amended by this Amendment, and each of the other Loan Documents to which it is a
party do not and will not contravene (i) any law or regulation binding on or
affecting the Borrower, (ii) the certificate of incorporation or bylaws of the
Borrower, (iii) any order, judgment or decree of any court or
2.
<PAGE>
other governmental or public body or authority, or subdivision thereof, binding
on the Borrower or (iv) any contractual restriction binding on or affecting the
Borrower;
(f) The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of its obligations under the Term Agreement, as
amended by this Amendment, and each of the other Loan Documents to which it is a
party do not require any order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on the
Borrower, except as already has been obtained or made; and
(g) This Amendment has been duly executed and delivered by the
Borrower and is the binding obligation of the Borrower, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
5. REAFFIRMATION. The Borrower hereby reaffirms its obligations under
each Loan Document to which it is a party.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
7. EFFECTIVENESS. This Amendment shall be deemed effective as of January
2, 1995 (the "DEEMED EFFECTIVE DATE") upon the receipt by the Agent of an
originally executed counterpart (or facsimile thereof with the original to
follow by Federal Express or other overnight courier) of this Amendment,
executed by the Borrower and each Bank.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
9. RELEASE AND WAIVER.
(a) The Borrower hereby acknowledges and agrees that: (i) it has no
claim or cause of action against any Bank or the Agent or the Managing Agent or
any parent, subsidiary or affiliate of any Bank or the Agent or the Managing
Agent, or any of such Bank's, the Agent's or the Managing Agent's officers,
directors, employees, attorneys or other representatives or agents (all of which
parties other than the Banks, the Agent and the Managing Agent being,
collectively, the "LENDER AGENTS") in connection with the Term Agreement, the
Loans thereunder or the transactions contemplated therein; (ii) it has no offset
or defense against any of its respective obligations, indebtedness or contracts
in favor of the Banks, the Agent or the Managing Agent; and (iii) it recognizes
that each of the Banks, the Agent and the Managing Agent has heretofore properly
performed and satisfied in a timely manner all of its respective obligations to
and contracts with the Borrower.
3.
<PAGE>
(b) Although each of the Banks, the Agent and the Managing Agent
regards its respective conduct as proper and does not believe the Borrower to
have any claim, cause of action, offset or defense against such Bank, the Agent
or the Managing Agent or any Lender Agent in connection with the Term Agreement,
the Loans thereunder or the transactions contemplated therein, each Bank, the
Agent and the Managing Agent wishes and Borrower agrees to eliminate any
possibility that any past conditions, acts, omissions, events, circumstances or
matters could impair or otherwise affect any rights, interests, contracts or
remedies of the Banks, the Agent or the Managing Agent. Therefore, the Borrower
unconditionally releases and waives (i) any and all liabilities, indebtedness
and obligations, whether known or unknown, of any kind of any Bank, the Agent or
the Managing Agent or of any of Lender Agents to the Borrower, except the
obligations remaining to be respectively performed by the Banks, the Agent or
the Managing Agent as expressly stated in the Term Agreement, this Amendment and
the other Loan Documents; (ii) any legal, equitable or other obligations or
duties, whether known or unknown, of any Bank, the Agent, the Managing Agent or
any Lender Agent to the Borrower (and any rights of the Borrower against any
Bank, the Agent, the Managing Agent or any Lender Agent) besides those expressly
stated in the Term Agreement, this Amendment and the other Loan Documents;
(iii) any and all claims under any oral or implied agreement, obligation or
understanding with any Bank, the Agent, the Managing Agent or any Lender Agent,
whether known or unknown, which is different from or in addition to the express
terms of the Term Agreement, this Amendment or any of the other Loan Documents;
and (iv) all other claims, causes of action or defenses of any kind whatsoever
(if any), whether known or unknown, which the Borrower might otherwise have
against any Bank, the Agent, the Managing Agent and/or any Lender Agent on
account of any condition, act, omission, event, contract, liability, obligation,
indebtedness, claim, cause of action, defense, circumstance or matter of any
kind whatsoever which existed, arose or occurred at any time prior to the
execution and delivery of this Amendment or which could arise concurrently with
the effectiveness of this Amendment.
(c) THE BORROWER AGREES TO ASSUME THE RISK OF ANY AND ALL UNKNOWN,
UNANTICIPATED OR MISUNDERSTOOD DEFENSES, CLAIMS, CAUSES OF ACTION, CONTRACTS,
LIABILITIES, INDEBTEDNESS AND OBLIGATIONS WHICH ARE RELEASED BY THIS AMENDMENT
IN FAVOR OF THE BANKS, THE AGENT, THE MANAGING AGENT AND THE LENDER AGENTS. TO
THE EXTENT ANY LAW MAY BE APPLICABLE, THE BORROWER WAIVES AND RELEASES (TO THE
MAXIMUM EXTENT PERMITTED BY LAW) ANY RIGHT OR DEFENSE WHICH IT MIGHT OTHERWISE
HAVE UNDER THE LAWS OF THE SATE OF NEW YORK OR ANY OTHER APPLICABLE JURISDICTION
WHICH MIGHT LIMIT OR RESTRICT THE EFFECTIVENESS OR SCOPE OF ANY OF ITS WAIVERS
OR RELEASES UNDER THIS AMENDMENT.
4.
<PAGE>
IN WITNESS WHEREOF, the parties hereby have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
VECTRA TECHNOLOGIES, INC.
By: /s/ Ray A. Fortney
---------------------------------------------
Its: President and CEO
---------------------------------------------
BANQUE PARIBAS, as a bank and as Agent
By: /s/ ?
---------------------------------------------
Its: VP
---------------------------------------------
By: /s/ Lee S. Buckner
---------------------------------------------
Its: Group Vice President
---------------------------------------------
BANQUE NATIONALE DE PARIS as a Bank
and as Managing Agent
By: /s/ Richard Cushing Kathy ?
---------------------------------------------
Its: AVP SVP
---------------------------------------------
5
<PAGE>
ACKNOWLEDGEMENT OF AMENDMENT
AND REAFFIRMATION OF GUARANTY
SECTION 1. Each of the undersigned Guarantors hereby acknowledges and confirms
that it has reviewed and approved the terms and conditions of this Amendment.
SECTION 2. Each Guarantor hereby consents to this Amendment and agrees that its
respective Guaranty of the Obligations of the Borrower under the Term Agreement
shall continue in full force and effect, shall be valid and enforceable and
shall not be impaired or otherwise affected by the execution of this Amendment
or any other document or instrument delivered in connection herewith.
SECTION 3.Each Guarantor severally represents and warrants that, after giving
effect to this Amendment, all representations and warranties contained in its
respective are true, accurate and complete as if made the date hereof.
GUARANTORS PACIFIC NUCLEAR STORAGE SYSTEMS, INC.
By: /s/ Ray A. Fortney
----------------------------------------------
Printed Name: RAY A. FORTNEY
-----------------------------------
Title: President
-----------------------------------------
NUCLEAR PACKAGING, INC.
By: /s/ Ray A. Fortney
----------------------------------------------
Printed Name: RAY A. FORTNEY
-----------------------------------
Title: President
------------------------------------------
VECTRA SERVICES, INC.
3 By: /s/ Ray A. Fortney
----------------------------------------------
Printed Name: RAY A. FORTNEY
-----------------------------------
Title: President
------------------------------------------
CTL INTERNATIONAL, INC.
By: /s/ Ray A. Fortney
----------------------------------------------
Printed Name: RAY A. FORTNEY
-----------------------------------
Title: President
------------------------------------------
6.
<PAGE>
VECTRA GOVERNMENT SERVICES, INC.
By: /?/
----------------------------------------------
Printed Name: John A. Majeski, Jr.
-----------------------------------
Title: President
-----------------------------------------
7.
<PAGE>
FIFTH AMENDMENT TO TERM LOAN AGREEMENT AND
FIRST AMENDMENT TO SECURITY AGREEMENT AND
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO TERM LOAN AGREEMENT AND FIRST AMENDMENT TO SECURITY
AGREEMENT AND INTELLECTUAL PROPERTY SECURITY AGREEMENT ("AMENDMENT") dated as of
June 30, 1995 is entered into among VECTRA TECHNOLOGIES, INC. (the "BORROWER"),
BANQUE PARIBAS, as a Bank (as defined below) and as the Agent (as defined
below), and BANQUE NATIONALE DE PARIS, as a Bank and as the Managing Agent (as
defined below).
RECITALS
A. The Borrower has entered into that Term Loan Agreement dated as of
January 6, 1994, as amended by the First Amendment and Waiver to Term Loan
Agreement dated as of March 29, 1994, the Amendment and Limited Waiver dated as
of August __, 1994, the Third Amendment dated as of March 10, 1995 and the
Fourth Amendment dated as of May 23, 1995 (as so amended, the "TERM AGREEMENT"),
among the Borrower, the Banks party thereto, Banque Paribas, acting in its
separate capacity as agent for the Banks (the "AGENT"), and Banque Nationale de
Paris, acting in its separate capacity as Managing Agent (as defined therein)
(the "MANAGING AGENT").
B. In conjunction with and at the time of entering into the Term
Agreement, and as a condition to the agreement of the Banks to provide the Loans
under the Term Agreement, the Borrower has entered into that Security Agreement
dated as of January 6, 1994 (the "SECURITY AGREEMENT"), between the Borrower and
the Agent, pursuant to which the Borrower created and granted in favor of the
Agent, for the ratable benefit of the Banks, a security interest in the
Borrower's right, title and interest in and to all of its personal property
assets described and defined in Article II thereof as the "Collateral."
C. In conjunction with and at the time of entering into the Term
Agreement, and as a further condition to the agreement of the Banks to provide
the Loans under the Term Agreement, the Borrower has entered into that
Intellectual Property Security Agreement dated as of January 6, 1994 (the "IP
SECURITY AGREEMENT"), between the Borrower and the Agent, pursuant to which the
Borrower created and granted in favor of the Agent, for the ratable benefit of
the Banks, a security interest in the Borrower's right, title and interest in
and to all of its patents, patent applications, trademarks, trademark
applications, copyrights and copyright applications described and defined in
Section 2 thereof as the "Collateral", including, without limitation, the
Borrower's registered United States patent for a Temporary Cooling System,
registered with the federal Patent and Trademark Office as patent no. 5,268,942
(the "TEMPORARY COOLING SYSTEM PATENT") and the Borrower's interest in the
registered United States patent for a Steam Generator Cleaning Solvent Mixing
System & Method, registered with the federal
1.
<PAGE>
Patent and Trademark Office as patent no. 5,257,296 (the "STEAM GENERATOR
CLEANING MIXING SYSTEM PATENT").
D. The Borrower and its wholly-owned Subsidiary, VECTRA Services, Inc.
("SERVICES"), and Westinghouse Electric Corporation, through its Nuclear
Services Division ("WESTINGHOUSE"), have entered into that Stock Purchase
Agreement dated as of June 30, 1995 (the "PLANT SERVICES PURCHASE AGREEMENT"),
pursuant to which Services has agreed to sell to Westinghouse and Westinghouse
has agreed to purchase from Services, all the issued and outstanding stock (the
"PLANT SERVICES SHARES") of Plant Services, Inc., a newly formed, wholly-owned
Subsidiary of Services ("PLANT SERVICES").
E. Plant Services is to be capitalized with certain of the assets owned
and used by Services in the conduct of its existing plant services line of
business (collectively, the "PLANT SERVICES ASSETS" and more specifically
described in the First Amendment to Subsidiary Security Agreement and Subsidiary
Intellectual Property Security Agreement and Consent and Waiver to Subsidiary
Pledge Agreement dated as of even date hereof between Services and the other
Subsidiaries of the Borrower party thereto and the Agent, on behalf of the
Banks), which Plant Services Assets are to be contributed as a capital
contribution by Services to Plant Services immediately prior to the "Closing",
as defined in the Plant Services Purchase Agreement.
F. The Plant Services Assets, with the exception of the Temporary Cooling
System Patent and the Steam Generator Cleaning Mixing System are all owned by
Services and are subject to perfected security interests created in favor of the
Agent, for the ratable benefit of the Banks, pursuant to the Subsidiary Security
Agreement and the Subsidiary Intellectual Property Security Agreement and by way
of assignment from the Borrower pursuant to the Intercompany Security Agreement.
G. It is a condition to the Closing, as defined in the Plant Services
Purchase Agreement, that, among other things, (1) the Plant Services Assets
shall, at the time of the transfer of title in and to the Plant Services stock
to Westinghouse, be free and clear of Liens, including the security interests of
the Agent, and (2) that the Banks shall have consented to the Closing.
H. Section 6.5 of the Term Agreement presently would require that one
hundred percent (100.0%) of the total net proceeds received by the Borrower or
any of its Subsidiaries (including Services) from the sale of the stock of Plant
Services to Westinghouse be paid over and applied to the payment of the
Obligations under the Term Agreement.
I. The Borrower has requested, among other things, that the Agent release
its security interests in the Plant Services Assets and that the Banks consent
to the Closing.
J. The Banks and the Agent are willing to so amend the Term Agreement and
other Loan Documents and to give such consent, but only upon the terms and
conditions and in reliance upon the representations and warranties of the
Borrower set forth below.
2.
<PAGE>
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties to the Term
Agreement agree as follows:
ARTICLE I
AMENDMENTS TO TERM LOAN AGREEMENT
1. DEFINITIONS. Capitalized terms used but not defined in this Article I
shall have the meanings given to them in the Term Agreement.
2. AMENDMENTS TO TERM AGREEMENT. The Term Agreement is hereby amended as
follows:
2.1 SECTION 1.1 (DEFINITIONS). A new definition of "Fifth Amendment
to Term Agreement" is added to Section 1.1 of the Term Agreement to read as
follows:
"Fifth Amendment to Term Agreement" means that Fifth Amendment to
Term Loan Agreement and First Amendment to Security Agreement and
Intellectual Property Security Agreement dated as of June 30, 1995,
among the Borrower, the Banks, the Agent and the Managing Agent.
2.2 SECTION 1.1 (DEFINITIONS). A new definition of "First Amendment
to Subsidiary Security Agreement" is added to Section 1.1 of the Term Agreement
to read as follows:
"First Amendment to Subsidiary Security Agreement" means that
First Amendment to Subsidiary Security Agreement and Subsidiary
Intellectual Property Security Agreement and Consent and Waiver to
Subsidiary Pledge Agreement dated as of June 30, 1995, among the
Subsidiaries of the Borrower party thereto in favor of and accepted by
the Agent, for the ratable benefit of the Banks.
2.3 SECTION 1.1 (DEFINITIONS). A new definition of "Plant Services"
is added to Section 1.1 of the Term Agreement to read as follows:
"Plant Services" means Plant Services, Inc., a Washington
corporation and a wholly-owned Subsidiary of Services.
3.
<PAGE>
2.4 SECTION 1.1 (DEFINITIONS). A new definition of "Plant Services
Business" is added to Section 1.1 of the Term Agreement to read as follows:
"Plant Services Business" means the (a) chemical
decontamination, (b) chemical cleaning and (c) equipment
leasing and sales lines of business conducted by Services.
2.5 SECTION 1.1 (DEFINITIONS). A new definition of "Plant Services
Purchase Agreement" is added to Section 1.1 of the Term Agreement to read as
follows:
"Plant Services Purchase Agreement" means the Stock Purchase
Agreement dated as of June 30, 1995, among the Borrower, Services and
Westinghouse.
2.6 SECTION 1.1 (DEFINITIONS). The definition of "Receivables
Agreements" set forth in Section 1.1 of the Term Agreement is amended to insert
after the words "GSI Purchase Agreement" in the third line thereof the words ",
the Services Purchase Agreement."
2.7 SECTION 1.1 (DEFINITIONS). A new definition of "Receivables
Facility Amendment" is added to Section 1.1 of the Term Agreement to read as
follows:
"Receivables Facility Amendment" means that Fourth Amendment to
Credit Agreement and First Amendment to Security Agreement dated as of
June 30, 1995, among Receivableco, the Receivableco Banks, Banque
Paribas, as Agent for the Receivableco Banks, and Banque Nationale de
Paris, as Managing Agent for the Receivableco Banks.
2.8 SECTION 1.1 (DEFINITIONS). A new definition of "Services
Purchase Agreement" is added to Section 1.1 of the Term Agreement to read as
follows:
"Services Purchase Agreement" means that Receivables Purchase
Agreement dated as of January 6, 1994, between Services and
Receivableco, as the same may be amended, modified, restated or
supplemented from time to time with the consent of Required Banks.
2.9 SECTION 1.1 (DEFINITIONS). A new definition of "Westinghouse" is
added to Section 1.1 of the Term Agreement to read as follows:
"Westinghouse" means Westinghouse Electric Corporation, through
its Nuclear Services Division.
2.10 SECTION 6.5 (SALE OF ASSETS). Section 6.5 of the Term Agreement
is amended by adding at the end of the section the following:
Notwithstanding anything to the contrary contained in this Section
6.5, with respect to the transactions contemplated by the Plant
Services Purchase
4.
<PAGE>
Agreement, (1) the Borrower shall be permitted to assign and transfer
to Services its title and interest in and to the Temporary Cooling
System Patent and its interest in the Steam Generator Cleaning Mixing
System Patent (as such terms are defined in the Fifth Amendment to
Term Agreement), (2) Receivableco shall be permitted to assign and
transfer to Services all of its title and interest in and to the Plant
Services Receivables, as such term is defined in the Receivables
Facility Amendment, (3) Services shall be permitted to assign and
transfer to Plant Services all of its title and interest in and to the
Plant Services Business, including the Plant Services Assets (as such
term is defined in the First Amendment to Subsidiary Security
Agreement) (which Plant Services Assets shall include the Temporary
Cooling System Patent and the Borrower's interest in the Steam
Generator Cleaning Mixing System Patent as assigned by the Borrower
and the Plant Services Receivables as assigned by Receivableco), and
(4) Services shall be permitted to sell to Westinghouse of all of its
title and interest in and to the issued and outstanding capital stock
of Plant Services, as the same have been capitalized with the Plant
Services Business and the related Plant Services Assets, all as
expressly contemplated by the Plants Services Purchase Agreement;
PROVIDED AND UPON AND SUBJECT TO THE EXPRESS AND MUTUALLY AGREED
CONDITIONS THAT:
(A) the entire purchase price to be paid by Westinghouse, as the
purchaser under the Plant Services Purchase Agreement, whether of that
portion payable at Closing (as such term is defined in the Plant
Services Purchase Agreement) or at any time thereafter, whether
contingent or noncontingent, shall be payable only in cash or other
immediately funds unless the Agent shall otherwise consent in writing;
(B) An amount equal to $15,417,703 representing that portion of
the purchase price payable at Closing (defined in the Plant Services
Purchase Agreement as the "Closing Cash Payment") shall be received
from Westinghouse by Services at its Collateral Account (as defined in
the Subsidiary Security Agreement), account no. 184-005643 maintained
at Bank of the West, or at such other account designated by Services
and expressly consented to in advance by the Agent, and shall
immediately be disbursed by Services as follows:
(1) an amount equal to $1,807,759.77 representing the
dollar amount outstanding with respect to the Plant Services
Receivables at the time of their assignment by Receivableco to
Services (the "Receivables Amount") shall be disbursed by wire
transfer or intrabank credit to Receivableco at such account as
Receivableco shall designate (subject to the Agent's prior
consent) for immediate application by Receivableco to the
outstanding obligations under the Receivables Facility;
(2) an amount equal to $1,532,145 representing the
Borrower's and its Subsidiaries' reasonable transaction expenses
(including an amount not to exceed $750,000 representing amounts
required to pay Services'
5.
<PAGE>
Retained Liabilities (as described and defined in the Plant
Services Purchase Agreement)), as reviewed and reasonably
approved by the Agent, which expenses may include investment
banker fees, not to exceed market for a transaction of this type,
accounting and legal fees and sales and similar taxes, if any,
but shall not include federal or state income taxes, all of which
shall reflect the direct expenses of the Borrower and its
Subsidiaries in consummating the transactions contemplated by the
Plant Services Purchase Agreement (collectively, the "Plant
Services Transaction Costs"), may be disbursed as directed by the
Borrower; and
(3) an amount equal to the difference between $13,885,558
and the Receivables Amount the balance of the Closing Cash
Payment (the "Net Plant Services Sale Proceeds") shall be
disbursed by or on behalf of Services by wire transfer or
intrabank credit (which disbursement must be made the same day
or, if not reasonably practicable, within one (1) Business Day of
the initial receipt by Services of the Closing Cash Payment) to
the Borrower at such account as the Borrower shall designate
(subject to the Agent's prior consent), to be disbursed as
follows:
(x) an amount equal to $7,285,558 shall be disbursed by
wire transfer to the Agent's Office in partial prepayment of
the Loans outstanding under the Term Agreement, it being
understood and agreed that the first $750,000 of such amount
shall be applied in full payment of the Borrower's scheduled
principal installment due September 30, 1995, that the
second $750,000 of such amount shall be applied in full
payment of the Borrower's scheduled principal installment
due December 31, 1995 and that the balance of such amount
shall be applied in inverse order to the scheduled principal
installments for the repayment of the Loans; and
(y) second, an amount equal to the difference between
$6,600,000 and the Receivables Amount shall be disbursed by
wire transfer or intrabank credit to Receivableco at such
account as Receivableco shall designate (subject to the
Agent's prior consent), for immediate application by
Receivableco to the outstanding obligations under the
Receivables Facility as set forth in the Receivables
Facility Amendment; and
(C) all further and subsequent payments in respect of any
deferred portion of the purchase price payable pursuant to
the Plant Services Purchase Agreement, including, without
limitation, any Post-Closing Adjustment, any release of
escrowed funds from the escrow provided by the Environmental
Escrow Agreement or any payment in respect of the Backlog
Gross Margin Earn-Out or the Successor Gross Margin Earn-Out
(as each such term is defined in
6.
<PAGE>
the Plant Services Purchase Agreement), shall be disbursed
by the Borrower immediately upon receipt thereof (and if
such amounts are initially received by Services, the
Borrower shall immediately cause Services to disburse such
amounts to the Borrower) by wire transfer to the Agent's
Office in partial prepayment of the Loans outstanding under
the Term Agreement and shall be applied in inverse order to
the outstanding Obligations under the Term Agreement.
2.11 SECTION 6.6 (CONTINGENT OBLIGATIONS). Section 6.6 of the Term
Agreement is amended by deleting the "and" at the end of clause (d),
substituting a "; and" for the "." at the end of clause (e) and adding the
following new clause (f);
(f) indemnity obligations of the Borrower and Services arising
under the terms of the Plant Services Purchase Agreement.
3. LIMITED WAIVERS AND CONSENTS - TERM AGREEMENT.
3.1 SECTION 6.4(A) (RESTRICTIONS ON FUNDAMENTAL CHANGES). The Banks
hereby waive any Default or Event of Default which has occurred or may occur
under the Term Agreement in respect of a breach of the Borrower's negative
covenants contained in Section 6.4(a) of the Term Agreement as the result of the
assignment by Services to Plant Services of the Plant Services Assets and the
sale by Services of all of the issued and outstanding capital stock of Plant
Services to Westinghouse pursuant to the Plant Services Purchase Agreement.
3.2 SECTION 6.4(B) (RESTRICTIONS ON FUNDAMENTAL CHANGES). The Banks
hereby waive any Default or Event of Default which has occurred or may occur
under the Term Agreement in respect of a breach of the Borrower's negative
covenants contained in Section 6.4(b) of the Term Agreement as the result of the
formation of Plant Services as a Subsidiary of Services and the assignment of
the Temporary Cooling System Patent and its interest in the Steam Generator
Cleaning Mixing System Patent by the Borrower to Services and the ensuing
assignment of the Plant Services Assets by Services to Plant Services of the
Plant Services Assets and the sale by Services of all of the issued and
outstanding capital stock of Plant Services to Westinghouse pursuant to the
Plant Services Purchase Agreement.
3.3 SECTION 6.8 (ADVANCES, INVESTMENTS AND LOANS). The Banks hereby
waive any Default or Event of Default which has occurred or may occur under the
Term Agreement in respect of a breach of the Borrower's negative covenants
contained in Section 6.8 of the Term Agreement as the result of the consummation
of the transactions contemplated by the Plant Services Purchase Agreement,
including, without limitation, the transactions and disbursements of the
purchase price contemplated by and effected in accordance with Section 6.5 of
this Agreement.
3.3 SECTION 6.9 (TRANSACTIONS WITH AFFILIATES). The Banks hereby
waive any Default or Event of Default which has occurred or may occur under the
Term Agreement in
7.
<PAGE>
respect of a breach of the Borrower's negative covenants contained in Section
6.9 of the Term Agreement as the result of the consummation of the transactions
contemplated by the Plant Services Purchase Agreement, including, without
limitation, the transactions and disbursements of the purchase price
contemplated by and effected in accordance with Section 6.5 of this Agreement.
3.4 SECTION 6.11 (CHANGE IN BUSINESS). The Banks hereby waive any
Default or Event of Default which has occurred or may occur under the Term
Agreement in respect of a breach of the Borrower's negative covenants contained
in Section 6.11 of the Term Agreement as the result of the sale of the Plant
Services Business pursuant to and as contemplated by the Plant Services Purchase
Agreement.
3.5 SECTION 7.1(D) (DEFAULT UNDER OTHER AGREEMENTS). The Banks
hereby waive any Default or Event of Default which has occurred or may occur
under the Term Agreement in respect of a breach of the cross default provisions
contained in Section 7.1(d) of the Term Agreement but only to the extent that
such defaults arise under the Credit Agreement and are waived or consented to by
the Banks (as defined therein) in the Receivables Facility Amendment.
ARTICLE II
AMENDMENTS TO SECURITY AGREEMENT
4. DEFINITIONS. Capitalized terms used but not defined in this Article I
shall have the meanings given to them in the Security Agreement.
5. AMENDMENTS TO SECURITY AGREEMENT. The Security Agreement is hereby
amended as follows:
5.1 SECTION 1.1 (DEFINITIONS). A new definition of "Fifth Amendment
to Term Agreement" is added to Section 1.1 of the Security Agreement to read as
follows:
"Fifth Amendment to Term Agreement" means that Fifth Amendment to
Term Loan Agreement and First Amendment to Security Agreement and
Intellectual Property Security Agreement dated as of June 30, 1995,
among the Borrower, the Banks, the Agent and the Managing Agent.
5.2 ARTICLE II. Article II of the Security Agreement is amended by
inserting at the end of the last sentence thereof the following:
; PROVIDED, FURTHER, that, from and after the effective date of the
Fifth Amendment to Term Agreement, the Temporary Cooling System Patent
and the Steam Generator Cleaning Mixing System Patent (as such terms
are defined in the Fifth Amendment to Term Agreement) (but excluding
any rights retained or received by the Borrower in and under any
licenses or sublicenses to use such patents) shall be fully and
unconditionally released from the security interest and Lien
8.
<PAGE>
created by this Article II and shall thereafter be deemed
excluded from the Collateral.
5.3 SECTION 4.2 (CHIEF EXECUTIVE OFFICE). Section 4.2 of the
Security Agreement is amended by deleting the last sentence in its entirety and
replacing it with the following:
No Assignor shall establish a new location for its chief
executive office or such activities (or move any such
activities from the location listed opposite the name of
such Assignor on Schedule II therefor) until (i)(A) it shall
have given to the Agent not less than 30 days' prior written
notice of its intention to do so, clearly describing such
new location and providing such other information in
connection therewith as the Agent may reasonably request or
(B) the Agent shall have consented in writing to such new
location and (ii) in either case, with respect to such new
location, such Assignor shall have taken all action
satisfactory to the Agent and as the Agent may request to
maintain the security interest of the Agent in the
Collateral intended to be granted hereby at all times fully
perfected with the same or better priority and in full force
and effect.
ARTICLE III
AMENDMENTS TO IP SECURITY AGREEMENT
6. DEFINITIONS. Capitalized terms used but not defined in this Article I
shall have the meanings given to them in the IP Security Agreement.
7. AMENDMENTS TO IP SECURITY AGREEMENT. The IP Security Agreement is
hereby amended as follows:
7.1 SECTION 1.1 (DEFINITIONS). A new definition of "Fifth Amendment
to Term Agreement" is added to Section 1.1 of the IP Security Agreement to read
as follows:
"Fifth Amendment to Term Agreement" means that Fifth Amendment to
Term Loan Agreement and First Amendment to Security Agreement and
Intellectual Property Security Agreement dated as of June 30,
1995, among the Borrower, the Banks, the Agent and the Managing
Agent.
9.
<PAGE>
7.2 SECTION 2. Section 2 of the IP Security Agreement is amended by
inserting at the end of the first sentence thereof the following:
; PROVIDED, FURTHER, that, from and after the effective date of the
Fifth Amendment to Term Agreement, the Temporary Cooling System Patent
and the Steam Generator Cleaning Mixing System Patent (but excluding
any rights retained or received by the Borrower in and under licenses
or sublicenses to use such patents) shall be fully and unconditionally
released from the security interest and Lien created by this Section 2
and shall thereafter be deemed excluded from the Collateral.
ARTICLE IV
MISCELLANEOUS
8. LIMITATION OF AMENDMENTS, CONSENTS AND WAIVERS.
(a) The amendments, releases of security interests and Liens, waivers
and consents set forth above are effective for the purposes set forth herein and
shall be limited precisely as written and shall not be deemed to (i) be a
consent to any amendment, release of security interest or Lien, waiver or
modification of any other term or condition of any Loan Document or
(ii) otherwise prejudice any right or remedy which the Banks, the Agent or the
Managing Agent may now have or may have in the future under or in connection
with any Loan Document.
(b) This Amendment shall be construed in connection with and as part
of the Loan Documents and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Loan Documents, except as herein
amended, are hereby ratified and confirmed and shall remain in full force and
effect.
9. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks, the
Agent and the Managing Agent to enter into this Amendment, the Borrower hereby
represents and warrants to each Bank, the Agent and the Managing Agent as
follows:
(a) After giving effect to this Amendment (i) the representations and
warranties contained in the Loan Documents (other than those which expressly
speak as of a different date) are true, accurate and complete in all material
respects as of the date hereof and (ii) no Default or Event of Default has
occurred and is continuing;
(b) The Borrower has the corporate power and authority to execute and
deliver this Amendment and to perform its obligations under the Term Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party;
10.
<PAGE>
(c) The certificate of incorporation, bylaws and other organizational
documents of the Borrower delivered to each Bank on the Closing Date are true,
accurate and complete and have not been amended, supplemented or restated and
are and continue to be in full force and effect;
(d) The execution and delivery by the Borrower of this Amendment and
the performance by Borrower of its obligations under the Term Agreement, as
amended by this Amendment, and each of the other Loan Documents to which it is a
party have been duly authorized by all necessary corporate action on the part of
the Borrower;
(e) The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of its obligations under the Term Agreement, as
amended by this Amendment, and each of the other Loan Documents to which it is a
party do not and will not contravene (i) any law or regulation binding on or
affecting the Borrower (including, with respect to the disbursements of the
purchase price paid by Westinghouse pursuant to the Plant Services Purchase
Agreement, Section 23B.06.400 of the Washington Business Corporation Act), (ii)
the articles of incorporation or bylaws of the Borrower, (iii) any order,
judgment or decree of any court or other governmental or public body or
authority, or subdivision thereof, binding on the Borrower or (iv) any
contractual restriction binding on or affecting the Borrower;
(f) The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of its obligations under the Term Agreement, as
amended by this Amendment, and each of the other Loan Documents to which it is a
party do not require any order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on the
Borrower, except as already has been obtained or made; and
(g) This Amendment has been duly executed and delivered by the
Borrower and is the binding obligation of the Borrower, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
10. FURTHER ASSURANCES. The Agent, on behalf of the Banks, hereby agrees
to take such necessary and appropriate actions as may be reasonably requested by
the Borrower to effectuate the release of the Agent's security interest in the
Plant Services Assets and the Plant Services Shares as contemplated by this
Amendment.
11. REAFFIRMATION. The Borrower hereby reaffirms its obligations under
each Loan Document to which it is a party.
12. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
11.
<PAGE>
13. EFFECTIVENESS. This Amendment shall become effective on the last to
occur of:
(a) The receipt by the Agent of an originally executed counterpart
(or facsimile thereof with the original to follow by Federal Express or other
overnight courier) of this Amendment, executed by the Borrower and each of the
Banks;
(b) The execution and delivery to the Agent of an originally executed
counterpart (or facsimile thereof with the original to follow by Federal Express
or other overnight courier) of the forms of acknowledgement and reaffirmations
of guaranty obligations attached to this amendment, whether the same or
different copies, by each of the Guarantors.
(c) The Banks shall have delivered to the Borrower their written
Confirmation of Consent in the form set forth in EXHIBIT A attached hereto,
confirming the Bank's review and approval of the Plant Services Purchase
Agreement and such other related documents as the Banks shall request to review,
including, without limitation, the documentation evidencing the assignment and
transfer to Services of the Borrower's title to the Temporary Cooling System
Patent and interest in the Steam Generator Cleaning Mixing System Patent, the
assignment and transfer to Services of all of Receivableco's title and interest
in and to the Plant Services Receivables, the assignment and transfer to Plant
Services of all of Services' title and interest in and to the Plant Services
Business, including the Plant Services Assets, and the sale to Westinghouse of
all of Services' title and interest in and to the issued and outstanding capital
stock of Plant Services and their consent to the consummation of the
transactions expressly contemplated by the Plant Services Purchase Agreement.
(d) The delivery to the Agent of a certificate of the secretary of
the Borrower, attaching the current articles of incorporation and bylaws of the
Borrower, good standing certificates for the States of Washington and
California, and the duly adopted resolutions of the board of directors of the
Borrower authorizing the execution, delivery and performance of this Amendment.
(e) The delivery to the Agent of a certificate of the secretary of
Services, attaching the current articles of incorporation and bylaws of
Services, good standing certificates for the State of Washington, and the duly
adopted resolutions of the board of directors of the Borrower authorizing the
execution, delivery and performance of the First Amendment to Subsidiary
Security Agreement.
(f) The delivery to the Agent of a bring-down certificate executed by
the chief financial officer of the Borrower.
(g) The delivery to the Agent of the favorable legal opinion of the
law firm of Preston, Gates & Ellis, general outside counsel to the Borrower and
Services, addressed to Westinghouse, together with a reliance letter signed by
Preston Gates & Ellis stating that the Banks may rely on such opinion.
12.
<PAGE>
(h) The delivery to the Agent of the favorable legal opinion of the
law firm of William F. Stoll, Deputy General Counsel for Westinghouse, addressed
to the Borrower and Services, together with a reliance letter signed by Mr.
Stoll stating that the Banks may rely on such opinion.
(i) Delivery to Services of the Closing Cash Payment at such account
as Services shall designate (subject to the Agent's prior consent).
14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. RELEASE AND WAIVER.
(a) The Borrower hereby acknowledges and agrees that: (i) it has no
claim or cause of action against any Bank or the Agent or the Managing Agent or
any parent, subsidiary or affiliate of any Bank or the Agent or the Managing
Agent, or any of such Bank's, the Agent's or the Managing Agent's officers,
directors, employees, attorneys or other representatives or agents (all of which
parties other than the Banks, the Agent and the Managing Agent being,
collectively, the "LENDER AGENTS") in connection with the Term Agreement, the
Loans thereunder or the transactions contemplated therein; (ii) it has no offset
or defense against any of its respective obligations, indebtedness or contracts
in favor of the Banks, the Agent or the Managing Agent; and (iii) it recognizes
that each of the Banks, the Agent and the Managing Agent has heretofore properly
performed and satisfied in a timely manner all of its respective obligations to
and contracts with the Borrower.
(b) Although each of the Banks, the Agent and the Managing Agent
regards its respective conduct as proper and does not believe the Borrower to
have any claim, cause of action, offset or defense against such Bank, the Agent
or the Managing Agent or any Lender Agent in connection with the Term Agreement,
the Loans thereunder or the transactions contemplated therein, each Bank, the
Agent and the Managing Agent wishes and Borrower agrees to eliminate any
possibility that any past conditions, acts, omissions, events, circumstances or
matters could impair or otherwise affect any rights, interests, contracts or
remedies of the Banks, the Agent or the Managing Agent. Therefore, the Borrower
unconditionally releases and waives (i) any and all liabilities, indebtedness
and obligations, whether known or unknown, of any kind of any Bank, the Agent or
the Managing Agent or of any of Lender Agents to the Borrower, except the
obligations remaining to be respectively performed by the Banks, the Agent or
the Managing Agent as expressly stated in the Term Agreement, this Amendment and
the other Loan Documents; (ii) any legal, equitable or other obligations or
duties, whether known or unknown, of any Bank, the Agent, the Managing Agent or
any Lender Agent to the Borrower (and any rights of the Borrower against any
Bank, the Agent, the Managing Agent or any Lender Agent) besides those expressly
stated in the Term Agreement, this Amendment and the other Loan Documents;
(iii) any and all claims under any oral or implied agreement, obligation or
understanding with any Bank, the Agent, the Managing Agent or any Lender Agent,
whether known or unknown, which is different from or in addition
13.
<PAGE>
to the express terms of the Term Agreement, this Amendment or any of the other
Loan Documents; and (iv) all other claims, causes of action or defenses of any
kind whatsoever (if any), whether known or unknown, which the Borrower might
otherwise have against any Bank, the Agent, the Managing Agent and/or any Lender
Agent on account of any condition, act, omission, event, contract, liability,
obligation, indebtedness, claim, cause of action, defense, circumstance or
matter of any kind whatsoever which existed, arose or occurred at any time prior
to the execution and delivery of this Amendment or which could arise
concurrently with the effectiveness of this Amendment.
(c) THE BORROWER AGREES TO ASSUME THE RISK OF ANY AND ALL UNKNOWN,
UNANTICIPATED OR MISUNDERSTOOD DEFENSES, CLAIMS, CAUSES OF ACTION, CONTRACTS,
LIABILITIES, INDEBTEDNESS AND OBLIGATIONS WHICH ARE RELEASED BY THIS AMENDMENT
IN FAVOR OF THE BANKS, THE AGENT, THE MANAGING AGENT AND THE LENDER AGENTS. TO
THE EXTENT ANY LAW MAY BE APPLICABLE, THE BORROWER WAIVES AND RELEASES (TO THE
MAXIMUM EXTENT PERMITTED BY LAW) ANY RIGHT OR DEFENSE WHICH IT MIGHT OTHERWISE
HAVE UNDER THE LAWS OF THE SATE OF NEW YORK OR ANY OTHER APPLICABLE JURISDICTION
WHICH MIGHT LIMIT OR RESTRICT THE EFFECTIVENESS OR SCOPE OF ANY OF ITS WAIVERS
OR RELEASES UNDER THIS AMENDMENT.
14.
<PAGE>
IN WITNESS WHEREOF, the parties hereby have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
VECTRA TECHNOLOGIES, INC.
By: /?/
-----------------------------------------
Its: VICE PRESIDENT
-----------------------------------------
BANQUE PARIBAS, as a Bank and as Agent
By: /?/
-----------------------------------------
Its: VP
-----------------------------------------
By: /Lee S. Buckner/
-----------------------------------------
Its: GROUP VICE PRESIDENT
-----------------------------------------
BANQUE NATIONALE DE PARIS, as a Bank and as
Managing Agent
By:
-----------------------------------------
Its:
-----------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
15
<PAGE>
ACKNOWLEDGEMENT OF AMENDMENT
AND REAFFIRMATION OF GUARANTY
SECTION 1. Each of the undersigned Guarantors hereby acknowledges and confirms
that it has reviewed and approved the terms and conditions of this Amendment.
SECTION 2. Each Guarantor hereby consents to this Amendment and agrees that its
respective Guaranty of the Obligations of the Borrower under the Term Agreement
shall continue in full force and effect, shall be valid and enforceable and
shall not be impaired or otherwise affected by the execution of this Amendment
or any other document or instrument delivered in connection herewith.
SECTION 3. Each Guarantor severally represents and warrants that, after giving
effect to this Amendment, all representations and warranties contained in its
respective Guaranty are true, accurate and complete as if made the date hereof.
GUARANTORS PACIFIC NUCLEAR STORAGE SYSTEMS, INC.
By: /s/ Ray A. Fortney
----------------------------------------------
Printed Name: RAY A. FORTNEY
------------------------------------
Title: PRESIDENT
-------------------------------------------
NUCLEAR PACKAGING, INC.
By: /s/ Ray A. Fortney
----------------------------------------------
Printed Name: RAY A. FORTNEY
------------------------------------
Title: PRESIDENT
-------------------------------------------
VECTRA SERVICES, INC.
By: /s/ Lynne Heitman
----------------------------------------------
Printed Name: LYNNE HEITMAN
------------------------------------
Title: VICE PRESIDENT
-------------------------------------------
CTL INTERNATIONAL, INC.
By: /s/ Ray A. Fortney
----------------------------------------------
Printed Name: RAY A. FORNTNEY
------------------------------------
Title: PRESIDENT
-------------------------------------------
1.
<PAGE>
VECTRA GOVERNMENT SERVICES, INC.
By: /s/ A.J. Mageski Jr.
----------------------------------------------
Printed Name: A.J. MAJESKI, JR.
------------------------------------
Title: PRESIDENT
-------------------------------------------
2.
<PAGE>
EXHIBIT A
CONFIRMATION OF CONSENT
June 30, 1995
VECTRA Technologies, Inc.
1010 S. 336th, Suite 220
Federal Way, Washington 98003
Attention: Ray E. Fortney, President
and Chief Executive Officer
RE: FIFTH AMENDMENT TO TERM LOAN AGREEMENT AND FIRST AMENDMENT TO SECURITY
AGREEMENT AND INTELLECTUAL PROPERTY SECURITY AGREEMENT DATED AS OF JUNE 30,
1995 (THE "FIFTH AMENDMENT TO TERM AGREEMENT"), AMONG VECTRA TECHNOLOGIES,
INC., THE BANKS NAMED THEREIN, BANQUE PARIBAS, AS AGENT FOR THE BANKS, AND
BANQUE NATIONALE DE PARIS.
Ladies and Gentlemen:
This letter is with reference to the Stock Purchase Agreement dated as of June
30, 1995 (the "Plant Services Purchase Agreement") among VECTRA Technologies,
Inc., VECTRA Services, Inc. and Westinghouse Electric Corporation, through its
Nuclear Service Division, and the Fifth Amendment to Term Agreement and in the
Confirmation of Consent referred to in Section 12(c) of the Fifth Amendment to
Term Agreement. The Banks hereby confirm their consent to the consummation of
the transactions expressly contemplated by the Plant Services Purchase
Agreement, conditioned upon and subject to the terms pertaining thereto set
forth in the Fifth Amendment to Term Agreement and the other Loan Documents,
including the related documents contemporaneously executed and delivered by the
Borrower and its Subsidiaries.
Very truly yours,
BANQUE PARIBAS
By By
------------------------------- ------------------------------
Title Title
BANQUE NATIONALE DE PARIS
By By
------------------------------- ------------------------------
Title Title
<PAGE>
THIRD AMENDMENT
(CREDIT AGREEMENT)
This THIRD AMENDMENT ("AMENDMENT") dated as of May 24, 1995 is entered
into among VECTRA NEVADA, INC. (the "BORROWER"), BANQUE PARIBAS, as a Bank (as
defined below) and as the Agent (as defined below), BANQUE NATIONALE DE PARIS,
as a Bank and as the Managing Agent (as defined below), AND BANK HAPOALIM, as a
Bank.
RECITALS
A. The Borrower has entered into that certain Credit Agreement dated as
of January 6, 1994, as amended by the Amendment and Limited Waiver dated as of
August __, 1994 and the Second Amendment dated as of October 20, 1994 (as so
amended, the "CREDIT AGREEMENT"), among the Borrower, the Banks party thereto,
Banque Paribas, acting in its separate capacity as agent for the Banks (the
"AGENT"), and Banque Nationale de Paris, acting in its separate capacity as
Managing Agent (as defined therein) (the "MANAGING AGENT").
B. The Borrower has requested that clauses (iii) and (iv) of the
definition of "Eligible Receivables" set forth in the Credit Agreement be
amended as set forth below.
C. The Banks are willing to so amend the Credit Agreement, but only upon
the terms and conditions and in reliance upon the representations and warranties
of the Borrower set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties to the Credit
Agreement agree as follows:
1. DEFINITIONS. Capitalized terms used but not defined in this Amendment
shall have the meanings given to them in the Credit Agreement.
2. AMENDMENT. The Credit Agreement is hereby amended by deleting clause
(iii) of the definition of "Eligible Receivable" set forth in Section 1.1 of the
Credit Agreement in its entirety and inserting in its place the following:
(iii) the Obligor of which is not the Obligor of Receivables for
which any payment, or part thereof, remains unpaid for more than one
hundred twenty days from the original billing date with respect thereto,
which Receivables have an aggregate Outstanding Balance in excess of 25% of
the aggregate Outstanding Balance of all such Obligor's Receivables.
The amendment set forth in this Section 2 shall only be in effect though August
31, 1995, and shall be repealed effective as of September 1, 1995, as used for
the calculation of the Borrowing
1.
<PAGE>
Base as of any date subsequent to August 31, 1995. From and after September 1,
1995, clause (iii) of the definition of "Eligible Receivable" set forth in the
Credit Agreement shall read precisely the same as such clause read on the day
immediately prior to the Deemed Effective Date (as defined below).
3. LIMITATION OF AMENDMENT.
(a) The amendments set forth in Section 2, above, is effective for
the purposes set forth herein and shall be limited precisely as written and
shall not be deemed to (i) be a consent to any amendment, waiver or modification
of any other term or condition of any Loan Document or (ii) otherwise prejudice
any right or remedy which the Banks, the Agent or the Managing Agent may now
have or may have in the future under or in connection with any Loan Document.
(b) This Amendment shall be construed in connection with and as part
of the Loan Documents and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Loan Documents, except as herein
amended, are hereby ratified and confirmed and shall remain in full force and
effect.
4. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks, the
Agent and the Managing Agent to enter into this Amendment, the Borrower hereby
represents and warrants to each Bank, the Agent and the Managing Agent as
follows:
(a) After giving effect to this Amendment (i) the representations and
warranties contained in the Loan Documents (other than those which expressly
speak as of a different date) are true, accurate and complete in all material
respects as of the date hereof and (ii) no Default or Event of Default has
occurred and is continuing;
(b) The Borrower has the corporate power and authority to execute and
deliver this Amendment and to perform its obligations under the Credit
Agreement, as amended by this Amendment, and each of the other Loan Documents to
which it is a party;
(c) The certificate of incorporation, bylaws and other organizational
documents of the Borrower delivered to each Bank on the Closing Date are true,
accurate and complete and have not been amended, supplemented or restated and
are and continue to be in full force and effect;
(d) The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of its obligations under the Credit Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party have been duly authorized by all necessary corporate action on the
part of the Borrower;
(e) The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of its obligations under the Credit Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party do not and will not
2.
<PAGE>
contravene (i) any law or regulation binding on or affecting the Borrower, (ii)
the certificate of incorporation or bylaws of the Borrower, (iii) any order,
judgment or decree of any court or other governmental or public body or
authority, or subdivision thereof, binding on the Borrower or (iv) any
contractual restriction binding on or affecting the Borrower;
(f) The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of its obligations under the Credit Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on the
Borrower, except as already has been obtained or made; and
(g) This Amendment has been duly executed and delivered by the
Borrower and is the binding obligation of the Borrower, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
5. REAFFIRMATION. The Borrower hereby reaffirms its obligations under
each Loan Document to which it is a party.
6. AMENDMENT FEE. As consideration for the Banks' agreement to amend the
Credit Agreement as set forth in this Amendment, the Borrower agrees to pay to
the Agent, for the benefit of the Banks according to their Pro Rata Share, an
amendment fee ("AMENDMENT FEE") of $100,000, in immediately available funds, due
and payable on July 31, 1995. The timely payment of the Amendment Fee shall be
a condition subsequent to the effectiveness of this Amendment.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
8. EFFECTIVENESS. Subject to SECTION 6, above, this Amendment shall be
deemed effective as of April 30, 1995 (the "DEEMED EFFECTIVE DATE") upon the
satisfaction of all of the following conditions precedent prior to 5:00 p.m.,
San Francisco time, on May 30, 1995:
(a) The receipt by the Agent of an originally executed counterpart
(or facsimile thereof with the original to follow by Federal Express or other
overnight courier) of this Amendment, executed by the Borrower and such Banks as
is sufficient to constitute Required Banks; and
(b) The receipt by the Agent, on behalf of the Banks, of the full
amount of the mandatory prepayment due and payable in accordance with Section
2.10(a) of the Credit Agreement, which prepayment shall equal the amount by
which the aggregate principal amount of the Revolving Loans outstanding on the
date of this Amendment (as opposed to the Deemed
3.
<PAGE>
Effective Date) exceeds the Borrowing Base, as calculated as of the last day of
April 1995, taking into account the effectiveness of this Amendment.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. RELEASE AND WAIVER.
(a) The Borrower hereby acknowledges and agrees that: (i) it has no
claim or cause of action against any Bank or the Agent or the Managing Agent or
any parent, subsidiary or affiliate of any Bank or the Agent or the Managing
Agent, or any of such Bank's, the Agent's or the Managing Agent's officers,
directors, employees, attorneys or other representatives or agents (all of which
parties other than the Banks, the Agent and the Managing Agent being,
collectively, the "LENDER AGENTS") in connection with the Credit Agreement, the
Revolving Loans thereunder or the transactions contemplated therein; (ii) it has
no offset or defense against any of its respective obligations, indebtedness or
contracts in favor of the Banks, the Agent or the Managing Agent; and (iii) it
recognizes that each of the Banks, the Agent and the Managing Agent has
heretofore properly performed and satisfied in a timely manner all of its
respective obligations to and contracts with the Borrower.
(b) Although each of the Banks, the Agent and the Managing Agent
regards its respective conduct as proper and does not believe the Borrower to
have any claim, cause of action, offset or defense against such Bank, the Agent
or the Managing Agent or any Lender Agent in connection with the Credit
Agreement, the Revolving Loans thereunder or the transactions contemplated
therein, each Bank, the Agent and the Managing Agent wishes and the Borrower
agrees to eliminate any possibility that any past conditions, acts, omissions,
events, circumstances or matters could impair or otherwise affect any rights,
interests, contracts or remedies of the Banks, the Agent or the Managing Agent.
Therefore, the Borrower unconditionally releases and waives (i) any and all
liabilities, indebtedness and obligations, whether known or unknown, of any kind
of any Bank, the Agent or the Managing Agent or of any of Lender Agents to the
Borrower, except the obligations remaining to be respectively performed by the
Banks, the Agent or the Managing Agent as expressly stated in the Credit
Agreement, this Amendment and the other Loan Documents; (ii) any legal,
equitable or other obligations or duties, whether known or unknown, of any Bank,
the Agent, the Managing Agent or any Lender Agent to the Borrower (and any
rights of the Borrower against any Bank, the Agent, the Managing Agent or any
Lender Agent) besides those expressly stated in the Credit Agreement, this
Amendment and the other Loan Documents; (iii) any and all claims under any oral
or implied agreement, obligation or understanding with any Bank, the Agent, the
Managing Agent or any Lender Agent, whether known or unknown, which is different
from or in addition to the express terms of the Credit Agreement, this Amendment
or any of the other Loan Documents; and (iv) all other claims, causes of action
or defenses of any kind whatsoever (if any), whether known or unknown, which the
Borrower might otherwise have against any Bank, the Agent, the Managing Agent
and/or any Lender Agent on account of any condition, act, omission, event,
contract, liability, obligation, indebtedness, claim, cause of action, defense,
4.
<PAGE>
circumstance or matter of any kind whatsoever which existed, arose or occurred
at any time prior to the execution and delivery of this Amendment or which could
arise concurrently with the effectiveness of this Amendment.
(c) THE BORROWER AGREES TO ASSUME THE RISK OF ANY AND ALL UNKNOWN,
UNANTICIPATED OR MISUNDERSTOOD DEFENSES, CLAIMS, CAUSES OF ACTION, CONTRACTS,
LIABILITIES, INDEBTEDNESS AND OBLIGATIONS WHICH ARE RELEASED BY THIS AMENDMENT
IN FAVOR OF THE BANKS, THE AGENT, THE MANAGING AGENT AND THE LENDER AGENTS. TO
THE EXTENT ANY LAW MAY BE APPLICABLE, THE BORROWER WAIVES AND RELEASES (TO THE
MAXIMUM EXTENT PERMITTED BY LAW) ANY RIGHT OR DEFENSE WHICH IT MIGHT OTHERWISE
HAVE UNDER THE LAWS OF THE SATE OF NEW YORK OR ANY OTHER APPLICABLE JURISDICTION
WHICH MIGHT LIMIT OR RESTRICT THE EFFECTIVENESS OR SCOPE OF ANY OF ITS WAIVERS
OR RELEASES UNDER THIS AMENDMENT.
5.
<PAGE>
IN WITNESS WHEREOF, the parties hereby have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
VECTRA NEVADA, INC.
By: /Ray A. Fortney/
-----------------------------------------
Its: PRESIDENT
-----------------------------------------
BANQUE PARIBAS, as a Bank and as Agent
By: /?/
-----------------------------------------
Its: VP
-----------------------------------------
By: Lee S. Buckner
-----------------------------------------
Its: GROUP VICE PRESIDENT
-----------------------------------------
BANQUE NATIONALE DE PARIS, as a Bank and as
Managing Agent
By: /Richard ?/ /Kathy ?/
-----------------------------------------
Its: AVP SVP
By:
-----------------------------------------
Its:
-----------------------------------------
BANK HAPOALIM, as a Bank
By: /S/
-----------------------------------------
Its:
-----------------------------------------
6.
<PAGE>
FOURTH AMENDMENT TO CREDIT AGREEMENT AND
FIRST AMENDMENT TO SECURITY AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO SECURITY
AGREEMENT ("AMENDMENT") dated as of June 30, 1995 is entered into among VECTRA
NEVADA, INC. (the "BORROWER"), BANQUE PARIBAS, as a Bank (as defined below) and
as the Agent (as defined below), BANQUE NATIONALE DE PARIS, as a Bank and as the
Managing Agent (as defined below), AND BANK HAPOALIM, as a Bank.
RECITALS
A. The Borrower has entered into that certain Credit Agreement dated as
of January 6, 1994, as amended by the Amendment and Limited Waiver dated as of
August __, 1994, the Second Amendment dated as of October 20, 1994 and the Third
Amendment dated as of May 24, 1995 (as so amended, the "CREDIT AGREEMENT"),
among the Borrower, the Banks party thereto, Banque Paribas, acting in its
separate capacity as agent for the Banks (the "AGENT"), and Banque Nationale de
Paris, acting in its separate capacity as Managing Agent (as defined therein)
(the "MANAGING AGENT").
B. In conjunction with and at the time of entering into the Credit
Agreement, and as a condition to the agreement of the Banks to provide the
Revolving Loan Commitments and Loans under the Credit Agreement, the Borrower
has entered into that Security Agreement dated as of January 6, 1994 (the
"SECURITY AGREEMENT"), between the Borrower and the Agent, pursuant to which the
Borrower created and granted in favor of the Agent, for the ratable benefit of
the Banks, a security interest in the Borrower's right, title and interest in
and to all of its personal property assets described and defined and described
in Article II thereof as the "Collateral."
C. VECTRA Technologies, Inc. ("VECTRA") and its wholly-owned subsidiary,
VECTRA Services, Inc. ("SERVICES"), and Westinghouse Electric Corporation,
through its Nuclear Services Division ("WESTINGHOUSE"), have entered into that
Stock Purchase Agreement dated as of June 30, 1995 (the "PLANT SERVICES PURCHASE
AGREEMENT"), pursuant to which Services has agreed to sell to Westinghouse and
Westinghouse has agreed to purchase from Services, all the issued and
outstanding stock (the "PLANT SERVICES SHARES") of Plant Services, Inc., a newly
formed, wholly-owned subsidiary of Services ("PLANT SERVICES").
D. Plant Services is to be capitalized with certain of the assets owned
and used by Services in the conduct of its existing plant services line of
business (collectively, the "PLANT SERVICES ASSETS") and more specifically
described in the First Amendment to Subsidiary Security Agreement dated as of
even date herewith between Services and the other Subsidiaries of VECTRA that
are party thereto and the Agent, on behalf of the Banks, which Plant Services
Assets are to be contributed as a capital contribution by Services to Plant
Services immediately prior to the "Closing", as defined in the Plant Services
Purchase Agreement.
1.
<PAGE>
E. Included in the Plant Services Assets are certain Receivables which
have been purchased by the Borrower from Services pursuant to a verbal purchase
agreement and which Receivables are presently subject to the security interests
created in favor of the Agent, for the ratable benefit of the Banks, pursuant to
the Security Agreement.
F. It is a condition to the Closing of the Plant Services Purchase
Agreement that, among other things, (1) the Plant Services Assets shall, at the
time of the transfer of title to the Plant Services stock to Westinghouse, be
free and clear of Liens, including the security interests of the Agent, and (2)
that the Banks shall have consented to the Closing.
I. The Borrower has requested, among other things, that the Agent release
its security interests in the Plant Services Assets, and that the Banks consent
to the Closing.
J. The Banks and the Agent are willing to so amend the Credit Agreement
and other Loan Documents and to give such consents, but only upon the terms and
conditions and in reliance upon the representations and warranties of the
Borrower set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties to the Credit
Agreement agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
1.1 DEFINITIONS. Capitalized terms used but not defined in this Article
shall have the meanings given to them in the Credit Agreement.
1.2 AMENDMENT. The Credit Agreement is hereby amended as follows:
1.2.1 (DEFINITIONS - SECTION 1.1). A definition of "Plant
Services" is added to Section 1.1 of the Credit Agreement to read as follows:
"Plant Services" shall mean Plant Services, Inc.
a Washington corporation and wholly-owned subsidiary of
Services.
1.2.2 (DEFINITIONS - SECTION 1.1). A definition of "Plant
Services Purchase Agreement" is added to Section 1.1 of the Credit Agreement to
read as follows:
"Plant Services Purchase Agreement" shall mean that certain
Stock Purchase Agreement by and among VECTRA, Services and
Westinghouse Electric Corporation, through its Nuclear Services
Division ("Westinghouse"), dated as of June 30, 1995.
2.
<PAGE>
1.2.3 (DEFINITIONS - SECTION 1.1). A definition of "Plant
Services Receivables" is added to Section 1.1 of the Credit Agreement to read as
follows:
"Plant Services Receivables" shall mean those
Accounts that were purchased by the Borrower from
Services and which are to be sold back to Services and
included within the Acquired Assets (as such term is
defined in the Plant Services Purchase Agreement) in
exchange for Service's making of a cash payment of a
like amount for the purpose of and expressly on the
condition that the Borrower immediately apply the entire
amount of such cash payment to repay amounts outstanding
under the Credit Agreement.
1.2.4 (DEFINITIONS - SECTION 1.1). The definition of "Purchase
Agreement" in Section 1.1 of the Credit Agreement is amended to add the words ",
the Services Purchase Agreement" after the words "Receivables Purchase
Agreement" in Line 2 thereof.
1.2.5 (DEFINITIONS - SECTION 1.1). A definition of "Services" is
added to Section 1.1 of the Credit Agreement to read as follows:
"Services" shall mean VECTRA Services, Inc., a
wholly-owned subsidiary of VECTRA.
1.2.6 (DEFINITIONS - SECTION 1.1). A definition of "Services
Purchase Agreement" is added to Section 1.1 of the Credit Agreement to read as
follows:
"Services Purchase Agreement" shall mean that
certain Receivables Purchase Agreement dated as of
January 6, 1994 between Services and Borrower, as the
same may from time to time be amended, modified,
restated or supplemented in accordance the terms hereof.
1.2.7 (VOLUNTARY REDUCTION). Section 2.9 of the Credit Agreement
by inserting after the words "Business Day's" in Line 1 thereof the words ", or
such lesser time as Agent agrees to in writing".
1.2.8 (VOLUNTARY PREPAYMENT). Section 2.11 of the Credit
Agreement is amended by inserting after the words "Business Days" in Line 7
thereof the words ", or such lesser time as Agent agrees to in writing".
1.2.9 (CORPORATE STRUCTURE). Section 4.15 of the Credit Agreement
is amended by inserting at the end of the first sentence thereof the following:
, except that the shares of Plant Services are not and
shall not be set forth on such Schedule 4.15.
3.
<PAGE>
1.2.10 (SALE OF ASSETS). Section 6.4 of the Credit Agreement is
amended inserting after the word "assets" in Line 5 thereof the following:
; PROVIDED, HOWEVER, that notwithstanding anything to
the contrary contained in this Section 6.4, with respect
to the transactions contemplated by the Plant Services
Purchase Agreement, the Borrower shall be permitted to
assign and transfer to Services all of its right, title
and interest in and to Plant Services Receivables in
exchange for an immediate payment, in cash, equal to the
value thereof, which payment shall be immediately
applied to reduce the Obligations under this Credit
Agreement.
1.2.11 (CHANGES IN BUSINESS, CERTAIN TRANSACTIONS). Section 6.8 of
the Credit Agreement is amended inserting after the word "Documents" in Line 6
thereof the following:
; PROVIDED, HOWEVER, that notwithstanding anything to
the contrary contained in this Section 6.8, with respect
to the transactions contemplated by the Plant Services
Purchase Agreement, the Borrower shall be permitted to
enter into an agreement to assign and transfer to
Services all of its right, title and interest in and to
Plant Services Receivables in exchange for an immediate
payment equal to the value thereof pursuant to the terms
of this Credit Agreement.
1.2.12 (SCHEDULE I). In connection with and upon the voluntary and
permanent reduction in the Total Revolving Loan Commitment from $22,500,000 to
$12,500,000 as elected by Borrower, as of the effective date of this Amendment,
Schedule I to the Credit Agreement referred to in the definition of "Revolving
Loan Commitment" in Section 1.1 of the Credit Agreement shall be deleted in its
entirety and replaced with the Schedule I attached hereto and incorporated
herein by this reference.
1.3 LIMITED WAIVER AND CONSENT - CREDIT AGREEMENT. The Banks hereby
waive any Default or Event of Default which has occurred or may occur under the
Credit Agreement in respect of a breach of the cross-default provisions
contained in Section 7.1(d) (Default Under Other Agreements), but only to the
extent that such defaults arise under the Term Loan Agreement and are waived or
consented to by the Banks (as defined therein) in the Term Loan Amendment.
1.4 LIMITED WAIVER - THIRD AMENDMENT TO THE CREDIT AGREEMENT. The Banks
hereby waive the Borrower's obligation to pay the Amendment Fee under and as
defined in Section 6 of the Third Amendment to the Credit Agreement dated as of
May 24, 1995.
4.
<PAGE>
ARTICLE II
AMENDMENTS TO SECURITY AGREEMENT
2.1 DEFINITIONS. Capitalized terms used but not defined in this
Amendment shall have the meanings given to them in the Security Agreement.
2.2 AMENDMENT. The Security Agreement is hereby amended as follows:
2.2.1 (DEFINITIONS - SECTION 1.1). The definition of "Contracts"
in Section 1.1 of the Security Agreement is amended by inserting after the words
"GSI Purchase Agreement" in Line 2 thereof the words ", the Services Purchase
Agreement".
2.2.2 (DEFINITIONS - SECTION 1.1). A definition of "First
Amendment to Security Agreement" is added to Section 1.1 of the Security
Agreement to read as follows:
"Fourth Amendment to Credit Agreement" shall
mean that Fourth Amendment to Credit Agreement and First
Amendment to Security Agreement dated as of June 30,
1995, entered into by and among Assignor, Agent and the
Banks.
2.2.3 (DEFINITIONS - SECTION 1.1). The definition of "General
Intangibles" in Section 1.1 of the Security Agreement is amended to add, within
the parenthetical following the words "other than Receivables" in Line 4
thereof, the following:
but including, specifically, any payments due or to
become due, contingent or noncontingent, under the Plant
Services Purchase Agreement.
2.2.4 (DEFINITIONS - SECTION 1.1). A definition of "Plant
Services" is added to Section 1.1 of the Security Agreement to read as follows:
"Plant Services" shall mean Plant Services, Inc.
a Washington corporation and wholly-owned subsidiary of
Services.
2.2.5 (DEFINITIONS - SECTION 1.1). A definition of "Plant
Services Purchase Agreement" is added to Section 1.1 of the Security Agreement
to read as follows:
"Plant Services Purchase Agreement" shall mean that certain
Stock Purchase Agreement by and among VECTRA, Services and
Westinghouse Electric Corporation, through its Nuclear Services
Division ("Westinghouse"), dated as of June 30, 1995.
2.2.6 (DEFINITIONS - SECTION 1.1). A definition of "Plant
Services Receivables" is added to Section 1.1 of the Security Agreement to read
as follows:
5.
<PAGE>
"Plant Services Receivables" shall mean those
Accounts that were purchased by Assignor from Services
and which are to be sold back to Services and included
within the Acquired Assets (as such term is defined in
the Plant Services Purchase Agreement) in exchange for
Service's making of a capital contribution to Assignor
of a like amount, in cash, for the purpose of and
expressly on the condition that Assignor immediately
apply the entire amount of such capital contribution to
repay amounts outstanding under the Credit Agreement.
2.2.7 (DEFINITIONS - SECTION 1.1). A definition of "Services
Purchase Agreement" is added to Section 1.1 of the Security Agreement to read as
follows:
"Services Purchase Agreement" shall mean that
certain Receivables Purchase Agreement dated as of
January 6, 1994 between Services and Assignor, as the
same may from time to time be amended, modified,
restated or supplemented in accordance the terms hereof.
2.2.8 (ARTICLE II COLLATERAL). Article II of the Security
Agreement is amended by inserting at the end of the last sentence thereof the
following:
; PROVIDED, FURTHER, that, from and after the
effective date of the Fourth Amendment to Credit
Agreement, the Plant Services Receivables shall be fully
and unconditionally released from the Security interest
and Lien created by this Article II and shall thereafter
be deemed excluded from the Collateral.
2.2.9 (VALIDITY, PERFECTION AND PRIORITY). Section 3.2(a) of the
Security Agreement is amended by inserting after the word "hereunder" in Line 3
thereof the words "and except for the rights of the Westinghouse to the Plant
Services Receivables" and by inserting after the word "Impell" in Line 8 the
following ", Services".
2.2.10 (FURTHER ASSURANCE). A new Section 4.1(b) is added to the
Security Agreement to read as follows:
(b) Assignor and the Agent mutually agree that
they shall execute such documents as the other party
shall reasonably request to release the Liens of the
Agent in the Plant Services Receivables, and any
proceeds thereof, and shall take such necessary and
appropriate steps so that any proceeds received, after
the Closing, from the liquidation of any Plant Services
Receivable are turned over to the holder of such Plant
Services Receivable.
6.
<PAGE>
2.2.11 (CHIEF EXECUTIVE OFFICE). Section 4.2 of the Security
Agreement is amended by deleting the last sentence in its entirety and replacing
it with the following:
No Assignor shall establish a new location for its chief
executive office or such activities (or move any such
activities from the location listed opposite the name of
such Assignor on Schedule II therefor) until (i)(A) it
shall have given to the Agent not less than 30 days'
prior written notice of its intention to do so, clearly
describing such new location and providing such other
information in connection therewith as the Agent may
reasonably request or (B) the Agent shall have consented
in writing to such new location and (ii) in either case,
with respect to such new location, such Assignor shall
have taken all action satisfactory to the Agent and as
the Agent may request to maintain the security interest
of the Agent in the Collateral intended to be granted
hereby at all times fully perfected with the same or
better priority and in full force and effect.
ARTICLE III
MISCELLANEOUS
3.1 LIMITATION OF AMENDMENTS, WAIVERS AND CONSENTS.
3.1.1 The amendments, releases of security interests and Liens,
waivers and consents set forth above are effective for the purposes set forth
herein and shall be limited precisely as written and shall not be deemed to
(i) be a consent to any amendment, release of security interest or Lien, waiver
or modification of any other term or condition of any Loan Document or
(ii) otherwise prejudice any right or remedy which the Banks, the Agent or the
Managing Agent may now have or may have in the future under or in connection
with any Loan Document.
3.1.2 This Amendment shall be construed in connection with and as
part of the Loan Documents and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan Documents, except as
herein amended, are hereby ratified and confirmed and shall remain in full force
and effect.
3.2 REPRESENTATIONS AND WARRANTIES. In order to induce the Banks, the
Agent and the Managing Agent to enter into this Amendment, the Borrower hereby
represents and warrants to each Bank, the Agent and the Managing Agent as
follows:
3.2.1 After giving effect to this Amendment (i) the
representations and warranties contained in the Loan Documents (other than those
which expressly speak as of a different date) are true, accurate and complete in
all material respects as of the date hereof and (ii) no Default or Event of
Default has occurred and is continuing;
7.
<PAGE>
3.2.2 The Borrower has the corporate power and authority to
execute and deliver this Amendment and to perform its obligations under the
Credit Agreement, as amended by this Amendment, and each of the other Loan
Documents to which it is a party;
3..2.3 The certificate of incorporation, bylaws and other
organizational documents of the Borrower delivered to each Bank on the Closing
Date are true, accurate and complete and have not been amended, supplemented or
restated and are and continue to be in full force and effect;
3.2.4 The execution and delivery by the Borrower of this Amendment
and the performance by Borrower of its obligations under the Credit Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party have been duly authorized by all necessary corporate action on the
part of the Borrower;
3.2.5 The execution and delivery by the Borrower of this Amendment
and the performance by the Borrower of its obligations under the Credit
Agreement, as amended by this Amendment, and each of the other Loan Documents to
which it is a party do not and will not contravene (i) any law or regulation
binding on or affecting the Borrower, (ii) the certificate of incorporation or
bylaws of the Borrower, (iii) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding
on the Borrower or (iv) any contractual restriction binding on or affecting the
Borrower;
3.2.6 The execution and delivery by the Borrower of this Amendment
and the performance by the Borrower of its obligations under the Credit
Agreement, as amended by this Amendment, and each of the other Loan Documents to
which it is a party do not require any order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by any governmental or public body or authority, or subdivision
thereof, binding on the Borrower, except as already has been obtained or made;
and
3.2.7 This Amendment has been duly executed and delivered by the
Borrower and is the binding obligation of the Borrower, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
3.3 FURTHER ASSURANCES. The Agent, on behalf of the Banks, hereby
agrees to take such necessary and appropriate actions as may be reasonably
requested by the Borrower to effectuate the release of the Agent's security
interest in the Plant Services Assets and the Plant Services Shares as
contemplated by this Amendment.
3.4 REAFFIRMATION. The Borrower hereby reaffirms its obligations under
each Loan Document to which it is a party.
3.5 AMENDMENT FEE. As consideration for the Banks' agreement to amend
the Credit Agreement and to consent to the release of the Agent's security
interest in the Plant
8.
<PAGE>
Services Receivables in contemplation of the sale of the Plant Services Shares
to Westinghouse, as set forth in this Amendment, the Borrower agrees to pay to
the Agent, for the benefit of the Banks according to their Pro Rata Share, an
amendment fee of $100,000, in immediately available funds, due and payable on
July 31, 1995.
3.6 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
3.7 EFFECTIVENESS. This Amendment shall be deemed effective as of the
last to occur of each of the following:
3.7.1 The receipt by the Agent of an originally executed
counterpart (or facsimile thereof with the original to follow by Federal Express
or other overnight courier) of this Amendment, executed by the Borrower, Agent
and the Banks;
3.7.2 The Banks shall have delivered to the Borrower their written
Confirmation of Consent in the form set forth in EXHIBIT A attached hereto,
confirming the Banks' review and approval of the Plant Services Purchase
Agreement and such other related documents as the Banks shall request to review,
including, without limitation, the documentation evidencing the assignment and
transfer to Plant Services of all of Services' title and interest in and to the
Plant Services Business (as defined in the Term Loan Amendment, including the
Plant Services Assets, and the sale to Westinghouse of all of Services' title
and interest in and to the issued and outstanding capital stock of Plant
Services and their consent to the consummation of the transactions expressly
contemplated by the Plant Services Purchase Agreement.
3.7.3 The delivery to the Agent of a certificate of the secretary
of the Borrower, attaching the duly adopted resolutions of the board of
directors of the Borrower authorizing the execution, delivery and performance of
this amendment.
3.7.4 The delivery to the Agent of bring-down certificate,
executed by the chief financial officer of the Borrower.
3.7.5 The delivery to Services of the Closing Cash Payment (as
defined in the Plant Services Purchase Agreement) at such account as Services
shall designate (subject to the Agent's prior consent).
3.8 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
3.9 RELEASE AND WAIVER.
3.9.1 The Borrower hereby acknowledges and agrees that: (i) it
has no claim or cause of action against any Bank or the Agent or the Managing
Agent or any parent,
9.
<PAGE>
subsidiary or affiliate of any Bank or the Agent or the Managing Agent, or any
of such Bank's, the Agent's or the Managing Agent's officers, directors,
employees, attorneys or other representatives or agents (all of which parties
other than the Banks, the Agent and the Managing Agent being, collectively, the
"LENDER AGENTS") in connection with the Credit Agreement, the Revolving Loans
thereunder or the transactions contemplated therein; (ii) it has no offset or
defense against any of its respective obligations, indebtedness or contracts in
favor of the Banks, the Agent or the Managing Agent; and (iii) it recognizes
that each of the Banks, the Agent and the Managing Agent has heretofore properly
performed and satisfied in a timely manner all of its respective obligations to
and contracts with the Borrower.
3.9.2 Although each of the Banks, the Agent and the Managing Agent
regards its respective conduct as proper and does not believe the Borrower to
have any claim, cause of action, offset or defense against such Bank, the Agent
or the Managing Agent or any Lender Agent in connection with the Credit
Agreement, the Revolving Loans thereunder or the transactions contemplated
therein, each Bank, the Agent and the Managing Agent wishes and the Borrower
agrees to eliminate any possibility that any past conditions, acts, omissions,
events, circumstances or matters could impair or otherwise affect any rights,
interests, contracts or remedies of the Banks, the Agent or the Managing Agent.
Therefore, the Borrower unconditionally releases and waives (i) any and all
liabilities, indebtedness and obligations, whether known or unknown, of any kind
of any Bank, the Agent or the Managing Agent or of any of Lender Agents to the
Borrower, except the obligations remaining to be respectively performed by the
Banks, the Agent or the Managing Agent as expressly stated in the Credit
Agreement, this Amendment and the other Loan Documents; (ii) any legal,
equitable or other obligations or duties, whether known or unknown, of any Bank,
the Agent, the Managing Agent or any Lender Agent to the Borrower (and any
rights of the Borrower against any Bank, the Agent, the Managing Agent or any
Lender Agent) besides those expressly stated in the Credit Agreement, this
Amendment and the other Loan Documents; (iii) any and all claims under any oral
or implied agreement, obligation or understanding with any Bank, the Agent, the
Managing Agent or any Lender Agent, whether known or unknown, which is different
from or in addition to the express terms of the Credit Agreement, this Amendment
or any of the other Loan Documents; and (iv) all other claims, causes of action
or defenses of any kind whatsoever (if any), whether known or unknown, which the
Borrower might otherwise have against any Bank, the Agent, the Managing Agent
and/or any Lender Agent on account of any condition, act, omission, event,
contract, liability, obligation, indebtedness, claim, cause of action, defense,
circumstance or matter of any kind whatsoever which existed, arose or occurred
at any time prior to the execution and delivery of this Amendment or which could
arise concurrently with the effectiveness of this Amendment.
3.9.3 THE BORROWER AGREES TO ASSUME THE RISK OF ANY AND ALL
UNKNOWN, UNANTICIPATED OR MISUNDERSTOOD DEFENSES, CLAIMS, CAUSES OF ACTION,
CONTRACTS, LIABILITIES, INDEBTEDNESS AND OBLIGATIONS WHICH ARE RELEASED BY THIS
AMENDMENT IN FAVOR OF THE BANKS, THE AGENT, THE MANAGING AGENT AND THE LENDER
AGENTS. TO THE EXTENT ANY LAW MAY BE APPLICABLE, THE BORROWER WAIVES AND
RELEASES (TO THE MAXIMUM EXTENT PERMITTED BY LAW) ANY RIGHT OR
10.
<PAGE>
DEFENSE WHICH IT MIGHT OTHERWISE HAVE UNDER THE LAWS OF THE SATE OF NEW YORK OR
ANY OTHER APPLICABLE JURISDICTION WHICH MIGHT LIMIT OR RESTRICT THE
EFFECTIVENESS OR SCOPE OF ANY OF ITS WAIVERS OR RELEASES UNDER THIS AMENDMENT.
IN WITNESS WHEREOF, the parties hereby have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
VECTRA NEVADA, INC.
By: Ray A. Fortney
----------------------------------------
Its: President
----------------------------------------
BANQUE PARIBAS, as a Bank and as Agent
By:
----------------------------------------
Its: Vice President
----------------------------------------
By: Lee S. Buckner
----------------------------------------
Its: Group Vice President
----------------------------------------
BANQUE NATIONALE DE PARIS, as a Bank
and as Managing Agent
By:
----------------------------------------
Its:
----------------------------------------
BANK HAPOALIM, BM, as a Bank
By:
----------------------------------------
Its:
----------------------------------------
11.
<PAGE>
SCHEDULE 1 TO CREDIT AGREEMENT
BANKS AND REVOLVING LOAN COMMITMENTS
NAME OF BANK REVOLVING LOAN COMMITMENT
Banque Paribas $5,000,000
Domestic Lending Office and
Eurodollar Lending Office:
2029 Century Park East
Suite 3900
Los Angeles, California 90067
Banque Nationale de Paris $5,000,000
Domestic Lending Office and
Eurodollar Lending Office:
499 Park Avenue
7th Floor
New York, New York 10022
Bank Hapoalim $2,500,000
Domestic Lending Office and
Eurodollar Lending Office:
1177 Avenue of the Americas
New York, New York 10036
<PAGE>
EXHIBIT A
CONFIRMATION OF CONSENT
June 30, 1995
VECTRA Nevada, Inc.
1010 S. 336th, Suite 220
Federal Way, Washington 98003
Attention: Ray E. Fortney, President and Chief Executive Officer
RE: FOURTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO SECURITY
AGREEMENT DATED AS OF JUNE 30, 1995 (THE "FOURTH AMENDMENT TO CREDIT
AGREEMENT"), AMONG VECTRA NEVADA, INC., THE BANKS NAMED THEREIN, BANQUE
PARIBAS, AS AGENT FOR THE BANKS, AND BANQUE NATIONALE DE PARIS.
Ladies and Gentlemen:
This letter is with reference to the Stock Purchase Agreement dated as of June
30, 1995 (the "Plant Services Purchase Agreement") among VECTRA Technologies,
Inc., VECTRA Services, Inc. and Westinghouse Electric Corporation, through its
Nuclear Service Division, and the Fourth Amendment to Credit Agreement and in
the Confirmation of Consent referred to in Section 3.7.2 of the Fourth Amendment
to Credit Agreement. The Banks hereby confirm their consent to the consummation
of the transactions expressly contemplated by the Plant Services Purchase
Agreement, conditioned upon and subject to the terms pertaining thereto set
forth in the Fourth Amendment to Credit Agreement and the other Loan Documents.
Very truly yours,
BANQUE PARIBAS
BY BY
----------------------- ----------------------
TITLE TITLE
BANQUE NATIONALE DE PARIS
BY BY
----------------------- ----------------------
TITLE TITLE
BANK HAPOALIM
BY
-----------------------
Title
<PAGE>
SIXTH AMENDMENT TO TERM LOAN AGREEMENT
AND LIMITED WAIVER
THIS SIXTH AMENDMENT TO TERM LOAN AGREEMENT AND LIMITED WAIVER (the
"AMENDMENT"), dated as of August 8, 1995, among VECTRA TECHNOLOGIES, INC.
("BORROWER"), BANQUE PARIBAS, as a Bank (as defined below) and as the Agent (as
defined below) and BANQUE NATIONALE DE PARIS, as a Bank and as the Managing
Agent (as defined below).
RECITALS
A. Borrower entered into that Term Loan Agreement, dated as of
January 6, 1994, as amended by the First Amendment and Waiver to Term Loan
Agreement, dated as of March 29, 1994, the Amendment and Limited Waiver, dated
as of August __, 1994, the Third Amendment, dated as of March 10, 1995, the
Fourth Amendment, dated as of May 23, 1995, and the Fifth Amendment to Term Loan
Agreement and First Amendment to Security Agreement and Intellectual Property
Security Agreement, dated as of June 30, 1995 (as so amended, the "TERM
AGREEMENT"), among the Borrower, the Banks party thereto, Banque Paribas, acting
in its separate capacity as agent for the Banks (the "AGENT"), and Banque
Nationale de Paris, acting in its separate capacity as Managing Agent (as
defined therein) (the "MANAGING AGENT").
B. Borrower and its wholly-owned Subsidiary, VECTRA Services, Inc.
("SERVICES") and Westinghouse Electric Corporation, through its Nuclear Services
Division ("WESTINGHOUSE"), have entered into that Stock Purchase Agreement,
dated as of June 30, 1995 (the "PLANT SERVICES PURCHASE AGREEMENT"), pursuant to
which Services has agreed and did sell to Westinghouse and Westinghouse has
agreed to and did purchase from Services, all the issued and outstanding stock
of Plant Services, Inc., a newly formed, wholly-owned Subsidiary of Services
("PLANT SERVICES").
C. Plant Services was capitalized with certain of the assets owned and
used by Services in the conduct of its plant services line of business
(collectively, the "PLANT SERVICES ASSETS"). As a result of the sale of the
Plant Services Shares to Westinghouse and the capitalization of Plant Services
with the Plant Services Assets, Services and Borrower incurred certain one time
severance costs and experienced certain one time losses as a result of the
writing-down or off of the Plant Services Assets (such severance costs and
write-down or off losses, in an aggregate amount not to exceed $3,885,000, the
"Write-down").
D. The parties to the Term Agreement are negotiating an amendment and
restatement of the Term Agreement to provide, among other things, for the
availability of a $3,000,000 non-revolving bridge line of credit (the "Bridge
Facility") to be used for the purpose of financing capital expenditures.
1.
<PAGE>
E. The parties to the Term Agreement desire to amend the Term Agreement
and to waive any Default or Event of Default (each as defined therein)
pertaining to the calculation of the financial covenants set forth in the Term
Agreement and arising from or resulting from the Write-down on and in accordance
with the terms, subject to the conditions and in reliance on the representations
and warranties set forth below.
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, the parties hereto agree as follows:
F. AMENDMENTS TO THE TERM AGREEMENT.
a. Section 6.1(b) (Interest Coverage Ratio) of the Term
Agreement is hereby amended by deleting the Interest Coverage Ratio of "3.65 :
1.0" appearing in the table at the end of subsection (b) set forth opposite the
period "4/3/95 - 7/2/95" and inserting in its place the Interest Coverage Ratio
"3.45 : 1.0".
b. Section 6.1(e) (Capital Expenditures) of the Term Agreement
is hereby amended by deleting the maximum Capital Expenditure amount of
"$2,500,000" appearing in the table in such subsection (e) set forth opposite
the period "4/3/95 - 7/2/95" and inserting in its place the maximum Capital
Expenditure amount of "$4,050,000".
G. LIMITED WAIVERS. Effective for the period commencing on April 3,
1995 and ending on July 2, 1995, each of the Banks, the Agent and the Managing
Agent hereby waives any breach of Section 6.1 (Financial Covenants) of the Term
Agreement and any Default or Event of Default (each as defined in the Term
Agreement) which has occurred solely as a result of failure of Borrower to
comply with the provisions of Section 6.1 of the Term Agreement solely as a
result of the Write-down. This waiver is a one time waiver, limited in its
application to the extent that $3,885,000, in the aggregate, of severance costs,
write-downs and write-offs associated with the sale of the Plant Services Assets
pursuant to the Plant Services Purchase Agreement shall be excluded from the
calculation of the financial covenants set forth in Section 6.1 of the Term
Agreement. Any severance costs, write-downs or write-offs of assets in excess
of this dollar limit are not included in this waiver and shall be included in
the calculation of such financial covenants.
H. LIMITATION OF AMENDMENT AND WAIVER.
i. The amendments set forth in SECTION 1 and the waivers set
forth in SECTION 2 hereof are effective for the purposes set forth herein and
shall be limited precisely as written and shall not be deemed to (i) be a
consent to any amendment, waiver or modification of any other term or condition
of any Loan Document (as defined in the Term Agreement) or (ii) otherwise
prejudice any right or remedy which the Banks, the Agent or the Managing Agent
may now have or may have in the future under or in connection with any Loan
Document.
2.
<PAGE>
ii. This Amendment shall be construed in connection with and as
part of the Loan Documents and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan Documents, except as
herein waived or amended, are hereby ratified and confirmed and shall remain in
full force and effect.
I. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks, the
Agent and the Managing Agent to enter into this Amendment, Borrower represents
and warrants to each Bank, the Agent and the Managing Agent as follows:
i. After giving effect to this Amendment (i) the
representations and warranties contained in the Loan Documents (other than those
which expressly speak as of a different date) are true and correct in all
material respects as of the date hereof and (ii) no Default or Event of Default
(as each such term is defined in the Term Agreement) has occurred and is
continuing;
(b) The Borrower has the corporate power and authority to
execute and deliver this Amendment and to perform its obligations under the Term
Agreement, as amended by this Amendment, and each of the other Loan Documents to
which it is a party;
(c) The certificate of incorporation, bylaws and other
organizational documents of the Borrower, delivered to each Bank on the Closing
Date, are true, accurate and complete and have not been amended, supplemented or
restated and are and continue to be in full force and effect;
(d) The execution and delivery by the Borrower of this Amendment
and the performance by Borrower of its obligations under the Term Agreement, as
amended by this Amendment, and each of the other Loan Documents to which it is a
party have been duly authorized by all necessary corporate action on the part of
the Borrower;
(e) The execution and delivery by the Borrower of this Amendment
and the performance by the Borrower of its obligations under the Term Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party do not and will not contravene (i) any law or regulation binding on
or affecting the Borrower, (ii) the articles of incorporation or bylaws of the
Borrower, (iii) any order, judgment or decree of any court or other governmental
or public body or authority, or subdivision thereof, binding on the Borrower or
(iv) any contractual restriction binding on or affecting the Borrower;
(f) The execution and delivery by the Borrower of this Amendment
and the performance by the Borrower of its obligations under the Term Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or
3.
<PAGE>
registration with, or exemption by any governmental or public body or authority,
or subdivision thereof, binding on the Borrower, except as already has been
obtained or made; and
(g) This Amendment has been duly executed and delivered by the
Borrower and is the binding obligation of the Borrower, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' right
J. REAFFIRMATION. Borrower hereby reaffirms its obligations under each
Loan Document to which it is a party.
K. AMENDMENT FEE. As consideration for the Banks' agreement to amend
the Term Agreement as herein provided, the Borrower agrees to pay to the Agent,
for the benefit of the Banks according to their Pro Rata Share, an amendment fee
of $100,000, in immediately available funds, payable at the earlier of (a) the
funding date of the first loan under the Bridge Facility or (b) November 30,
1995.
L. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
a. EFFECTIVENESS. This Amendment shall be deemed effective as of April
3, 1995, except that the waivers set forth in SECTION 2 hereof shall be deemed
effective as of June 30, 1995, upon the last to occur of the following:
i. The receipt by the Agent of an originally executed
counterpart (or facsimile thereof with the original to follow by Federal Express
or other overnight courier) of this Amendment, executed by the Borrower and each
of the Banks; and
ii. The execution and delivery to the Agent of an originally
executed counterpart (or facsimile thereof with the original to follow by
Federal Express or other overnight courier) of the forms of acknowledgement and
reaffirmations of guaranty obligations attached to this amendment, whether the
same or different copies, by each of the Guarantors.
M. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
N. RELEASE AND WAIVER.
(a) The Borrower hereby acknowledges and agrees that: (i) it
has no claim or cause of action against any Bank or the Agent or the Managing
Agent or any parent, subsidiary
4.
<PAGE>
or affiliate of any Bank or the Agent or the Managing Agent, or any of such
Bank's, the Agent's or the Managing Agent's officers, directors, employees,
attorneys or other representatives or agents (all of which parties other than
the Banks, the Agent and the Managing Agent being, collectively, the "LENDER
AGENTS") in connection with the Term Agreement, the Loans thereunder or the
transactions contemplated therein; (ii) it has no offset or defense against any
of its respective obligations, indebtedness or contracts in favor of the Banks,
the Agent or the Managing Agent; and (iii) it recognizes that each of the Banks,
the Agent and the Managing Agent has heretofore properly performed and satisfied
in a timely manner all of its respective obligations to and contracts with the
Borrower.
(b) Although each of the Banks, the Agent and the Managing Agent
regards its respective conduct as proper and does not believe the Borrower to
have any claim, cause of action, offset or defense against such Bank, the Agent
or the Managing Agent or any Lender Agent in connection with the Term Agreement,
the Loans thereunder or the transactions contemplated therein, each Bank, the
Agent and the Managing Agent wishes and Borrower agrees to eliminate any
possibility that any past conditions, acts, omissions, events, circumstances or
matters could impair or otherwise affect any rights, interests, contracts or
remedies of the Banks, the Agent or the Managing Agent. Therefore, the Borrower
unconditionally releases and waives (i) any and all liabilities, indebtedness
and obligations, whether known or unknown, of any kind of any Bank, the Agent or
the Managing Agent or of any of Lender Agents to the Borrower, except the
obligations remaining to be respectively performed by the Banks, the Agent or
the Managing Agent as expressly stated in the Term Agreement, this Amendment and
the other Loan Documents; (ii) any legal, equitable or other obligations or
duties, whether known or unknown, of any Bank, the Agent, the Managing Agent or
any Lender Agent to the Borrower (and any rights of the Borrower against any
Bank, the Agent, the Managing Agent or any Lender Agent) besides those expressly
stated in the Term Agreement, this Amendment and the other Loan Documents;
(iii) any and all claims under any oral or implied agreement, obligation or
understanding with any Bank, the Agent, the Managing Agent or any Lender Agent,
whether known or unknown, which is different from or in addition to the express
terms of the Term Agreement, this Amendment or any of the other Loan Documents;
and (iv) all other claims, causes of action or defenses of any kind whatsoever
(if any), whether known or unknown, which the Borrower might otherwise have
against any Bank, the Agent, the Managing Agent and/or any Lender Agent on
account of any condition, act, omission, event, contract, liability, obligation,
indebtedness, claim, cause of action, defense, circumstance or matter of any
kind whatsoever which existed, arose or occurred at any time prior to the
execution and delivery of this Amendment or which could arise concurrently with
the effectiveness of this Amendment.
(c) THE BORROWER AGREES TO ASSUME THE RISK OF ANY AND ALL
UNKNOWN, UNANTICIPATED OR MISUNDERSTOOD DEFENSES, CLAIMS, CAUSES OF ACTION,
CONTRACTS, LIABILITIES, INDEBTEDNESS AND OBLIGATIONS WHICH ARE RELEASED BY THIS
AMENDMENT IN FAVOR OF THE BANKS, THE AGENT, THE MANAGING AGENT AND THE LENDER
AGENTS.
5.
<PAGE>
TO THE EXTENT ANY LAW MAY BE APPLICABLE, THE BORROWER WAIVES AND RELEASES (TO
THE MAXIMUM EXTENT PERMITTED BY LAW) ANY RIGHT OR DEFENSE WHICH IT MIGHT
OTHERWISE HAVE UNDER THE LAWS OF THE SATE OF NEW YORK OR ANY OTHER APPLICABLE
JURISDICTION WHICH MIGHT LIMIT OR RESTRICT THE EFFECTIVENESS OR SCOPE OF ANY OF
ITS WAIVERS OR RELEASES UNDER THIS AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
VECTRA TECHNOLOGIES, INC.
By:
-----------------------------------
Its:
----------------------------------
BANQUE PARIBAS, as a Bank and as Agent
By:
-----------------------------------
Its:
----------------------------------
By:
-----------------------------------
Its:
----------------------------------
BANQUE NATIONALE DE PARIS, as a Bank
and as Managing Agent
By:
-----------------------------------
Its:
----------------------------------
6.
<PAGE>
ACKNOWLEDGEMENT OF AMENDMENT
AND REAFFIRMATION OF GUARANTY
O. Each of the undersigned Guarantors hereby acknowledges and confirms that it
has reviewed and approved the terms and conditions of this Amendment.
P. Each Guarantor hereby consents to this Amendment and agrees that its
respective Guaranty of the Obligations of the Borrower under the Term Agreement
shall continue in full force and effect, shall be valid and enforceable and
shall not be impaired or otherwise affected by the execution of this Amendment
or any other document or instrument delivered in connection herewith.
Q. Each Guarantor severally represents and warrants that, after giving effect
to this Amendment, all representations and warranties contained in its
respective Guaranty are true, accurate and complete as if made the date hereof.
GUARANTORS PACIFIC NUCLEAR STORAGE
SYSTEMS, INC.
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
NUCLEAR PACKAGING, INC.
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
VECTRA SERVICES, INC.
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
CTL INTERNATIONAL, INC.
1.
<PAGE>
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
VECTRA GOVERNMENT SERVICES, INC.
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
2.
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<PAGE>
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<S> <C>
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<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> APR-03-1995
<PERIOD-END> JUL-02-1995
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<SECURITIES> 1,157
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0
0
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