<PAGE> 1
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 0-27986
ITEQ, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 41-1667001
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2727 ALLEN PARKWAY, SUITE 760, HOUSTON, TEXAS 77019
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 713-285-2700
Indicate by check mark whether the registrant (1) has filed all
reports to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or 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[ ]
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares of each of the issuer's classes of common stock,
as of the latest practicable date.
26,682,038
(Shares of common stock outstanding as of November 5, 1997)
================================================================================
<PAGE> 2
ITEQ, INC.
FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED
SEPTEMBER 30, 1997
<TABLE>
<CAPTION>
PAGE
PART I - FINANCIAL INFORMATION ----
<S> <C>
ITEM 1: FINANCIAL STATEMENTS
Consolidated Balance Sheets as of December 31, 1996 and September 30, 1997
(unaudited) 3
Consolidated Statements of Operations for the three and nine months ended
September 30, 1996 (unaudited) and 1997 (unaudited) 4
Consolidated Statements of Cash Flows for the nine months ended
September 30, 1996 (unaudited) and 1997 (unaudited) 5
Notes to Consolidated Financial Statements (unaudited) 6
Supplemental Unaudited Condensed Pro Forma Balance Sheet 12
Supplemental Unaudited Condensed Pro Forma Statements of Operations 13
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 14
PART II - OTHER INFORMATION 20
</TABLE>
2
<PAGE> 3
CONSOLIDATED BALANCE SHEETS
AS OF DECEMBER 31, 1996 AND SEPTEMBER 30, 1997
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
ASSETS
DECEMBER 31, SEPTEMBER 30,
1996 1997
--------- ---------
(UNAUDITED)
CURRENT ASSETS:
<S> <C> <C>
Cash and cash equivalents $ 6,475 $ 2,411
Due on contracts and other receivables, net 34,230 36,330
Costs and estimated earnings in excess of billings on uncompleted contracts 20,690 24,236
Inventories 10,649 6,663
Prepaid expenses, deposits and other assets 881 2,326
Deferred tax asset 1,979 1,881
--------- ---------
Total Current Assets 74,904 73,847
--------- ---------
Property and equipment, net 13,661 15,100
Other assets, net 47,823 50,076
--------- ---------
TOTAL ASSETS $ 136,388 $ 139,023
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 14,568 $ 15,261
Accrued liabilities:
Job costs 8,171 7,437
Warranties 353 282
Compensation 5,067 3,645
Other 4,260 6,375
Billings in excess of costs and estimated earnings on uncompleted contracts 958 908
Progress billings 5,137 4,270
Current maturities of long-term debt 6,012 --
Income taxes payable 527 476
--------- ---------
Total Current Liabilities 45,053 38,654
LONG-TERM LIABILITIES:
Borrowings under line of credit 25,400 42,632
Other long-term obligations, less current maturities 29,029 --
Subordinated notes 12,712 --
Deferred tax liability 941 943
--------- ---------
Total Liabilities 113,135 82,229
--------- ---------
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value; 1,000 shares authorized, no shares issued
or outstanding -- --
Common stock, $.001 par value, 30,000 shares authorized, 11,510 and 17,084
shares issued and outstanding at December 31, 1996 and September 30, 1997,
respectively
11 17
Additional paid-in capital 23,161 56,927
Retained earnings (deficit) (44) 502
Translation adjustment 125 (652)
--------- ---------
Total Stockholders' Equity 23,253 56,794
--------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $136,388 $ 139,023
========= =========
</TABLE>
See Notes to Consolidated Financial Statements
3
<PAGE> 4
ITEQ, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE MONTHS AND NINE MONTHS ENDED
SEPTEMBER 30, 1996 AND 1997
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------ -------------------------
1996 1996
AS RESTATED 1997 AS RESTATED 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Revenues $ 16,796 $ 48,240 $ 51,192 $ 131,412
Cost of revenues 12,788 37,596 38,285 102,271
Selling, general and administrative expenses 2,186 4,882 6,541 13,888
Sales commissions 520 580 2,222 1,881
Depreciation and amortization 365 771 921 2,106
Merger and acquisition and restructuring costs -- -- 1,818 --
--------- --------- --------- ---------
Operating profit 937 4,411 1,405 11,266
--------- --------- --------- ---------
Other income (expense):
Interest expense, net (209) (628) (598) (3,131)
Miscellaneous, net (4) 153 29 371
--------- --------- --------- ---------
Total other expense (213) (475) (569) (2,760)
--------- --------- --------- ---------
Earnings from continuing operations
before income tax provision 724 3,936 836 8,506
Income tax provision 285 1,406 278 3,134
--------- --------- --------- ---------
Earnings from continuing operations 439 2,530 558 5,372
--------- --------- --------- ---------
Earnings (Loss) from discontinued operations, net of
income tax provision (benefit) 474 (237) (1,553) (1,061)
Loss on disposal of discontinued operations, net of
income tax benefit -- (1,728) -- (1,728)
--------- --------- --------- ---------
Earnings (Loss) from discontinued operations 474 (1,965) (1,553) (2,789)
--------- --------- --------- ---------
Earnings (Loss) before extraordinary loss on early
extinguishment of debt 913 565 (995) 2,583
Extraordinary loss on early extinguishment of debt,
net of income tax benefit of $1,145 -- (2,037) -- (2,037)
--------- --------- --------- ---------
Net earnings (loss) $ 913 ($ 1,472) ($ 995) $ 546
========= ========= ========= =========
Earnings per share:
Earnings from continuing operations $ 0.04 $ 0.14 $ 0.05 $ 0.35
Earnings (Loss) from discontinued operations $ 0.04 ($ 0.11) ($ 0.14) ($ 0.18)
Extraordinary loss -- ($ 0.11) -- ($ 0.13)
Net earnings (loss) per common share $ 0.08 ($ 0.08) ($ 0.09) $ 0.04
Weighted average common and common equivalent
shares outstanding 11,568 18,464 11,466 15,316
</TABLE>
See Notes to Consolidated Financial Statements
4
<PAGE> 5
ITEQ, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1997
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
1996
AS RESTATED 1997
--------- --------
<S> <C> <C>
FLOWS FROM OPERATING ACTIVITIES:
Net earnings (loss) $ (995) $ 546
Adjustments to reconcile net earnings (loss) to net cash provided by
operating activities
Non-cash interest -- 499
Depreciation and amortization 1,238 2,382
Non-cash write-offs related to discontinued operations -- 555
Extraordinary losses -- 3,182
Provision for deferred income taxes 47 99
Changes in assets and liabilities: -- --
Due on contracts and other receivables 7,136 1,141
Inventories 163 5,262
Costs and estimated earnings in excess of billings on uncompleted
contracts (3,601) (3,717)
Prepaid expenses, deposits and other assets (362) (1,228)
Accounts payable and accrued liabilities (2,786) (3,081)
Billings in excess of costs and estimated earnings on uncompleted
contracts 676 356
Progress billings -- (1,202)
Other (343) (562)
-------- --------
Net cash provided by operating activities 1,173 4,232
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Cash paid for acquired businesses, net of cash acquired (268) (7,997)
Purchases of property and equipment (384) (1,143)
-------- --------
Net cash used by investing activities (652) (9,140)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Payments of long-term obligations (2,499) (16,981)
Net borrowings (payments) under line of credit 2,002 (800)
Repayment of Subordinated Debt -- (15,000)
Net proceeds from common stock offering -- 31,795
Proceeds from exercise of stock options and warrants 93 1,971
-------- --------
Net cash provided (used) by financing activities (404) 985
-------- --------
EFFECT OF EXCHANGE RATE CHANGES ON CASH (54) (141)
-------- --------
Net increase/(decrease) in cash and cash equivalents 63 (4,064)
Cash and cash equivalents, beginning of period 2,299 6,475
-------- --------
Cash and cash equivalents, end of period $ 2,362 $ 2,411
======== ========
</TABLE>
See Notes to Consolidated Financial Statements
5
<PAGE> 6
ITEQ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been
prepared in accordance with regulation S-X pursuant to the rules and regulations
of the Securities and Exchange Commission ("SEC"). Certain information and
footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed or
omitted pursuant to such rules and regulations, although management believes
that the disclosures are adequate to make the information presented not
misleading.
In the opinion of management, the unaudited consolidated financial
statements contain all adjustments, consisting of only normal recurring
adjustments, necessary to present fairly the financial position as of September
30, 1997, the results of operations for the three and nine months ended
September 30, 1996 and 1997, and the cash flows for the nine months ended
September 30, 1996 and 1997.
The unaudited consolidated financial statements include the accounts of
ITEQ, Inc. and its wholly-owned subsidiaries ("ITEQ" or the "Company").
Significant intercompany balances and transactions have been eliminated. Certain
reclassifications have been made to the prior period's consolidated financial
statements to conform with the current period presentation.
During the fourth quarter of 1996, effective January 1, 1996, the
Company estimated percentage-of-completion for the materials portion of its
long-term contracts at its Allied Industries, Inc. ("Allied") subsidiary, based
on when purchased material was placed into production, whereas previously, such
estimates were based on when the liability for the cost of the material was
legally incurred. This method of applying the percentage-of-completion
accounting principle was adopted to better reflect the economics of Allied's
revenue and profit earnings process. Financial statements of prior years and
interim periods have been restated to apply the revised method retroactively.
However, these amounts are now presented as discontinued operations (see Note
7). The effect of the accounting change on previously reported net earnings
(loss) for the three months and nine months ended September 30, 1996 are as
follows:
<TABLE>
<CAPTION>
Increase / (Decrease)
----------------------
Three months ended Nine months ended
September 30, 1996 September 30, 1996
------------------ ------------------
<S> <C> <C>
Net earnings (loss) $485 ($575)
Net earnings (loss) per common share $.04 ($.05)
</TABLE>
As planned when acquired in November 1996, Ohmstede, Inc. ("Ohmstede")
initiated foreign sales, which typically have longer production times and more
units per order in production and shipment than Ohmstede's historical domestic
business. Accordingly, such sales have been recognized under the
percentage-of-completion revenue recognition method.
6
<PAGE> 7
ITEQ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
NOTE 2 - DUE ON CONTRACTS AND OTHER RECEIVABLES
At December 31, 1996, and September 30, 1997, due on contracts and other
receivables consists of:
<TABLE>
<CAPTION>
December 31, September 30,
1996 1997
-------- --------
<S> <C> <C>
Billings on completed contracts and contracts in progress $ 34,273 $ 35,922
Retained contract receivables 544 828
Other miscellaneous receivables 125 181
Allowance for doubtful accounts (712) (601)
-------- --------
Total $ 34,230 $ 36,330
======== ========
</TABLE>
NOTE 3 --- INVENTORIES
Inventories consist of costs for which no related revenue has been
recognized. Inventories include materials used in the manufacturing process,
purchased parts and equipment held for resale and are valued at the lower of
cost or market. Cost is determined by the average cost for materials and the
first-in, first-out (FIFO) method for purchased parts. At December 31, 1996 and
September 30, 1997, inventories consist of the following:
<TABLE>
<CAPTION>
December 31, September 30
1996 1997
------- ------
<S> <C> <C>
Raw Materials $ 3,514 $3,402
Work in Progress 7,135 3,261
------- ------
Total $10,649 $6,663
======= ======
</TABLE>
NOTE 4 --- OTHER ASSETS
At December 31, 1996 and September 30, 1997, other assets consist of
the following:
<TABLE>
<CAPTION>
December 31, September 30,
1996 1997
------- -------
<S> <C> <C>
Excess of costs over net assets acquired, net of accumulated
amortization, of $1,789 and $2,380 at December, 1996 and
September 30, 1997, respectively $32,941 $36,469
Licenses, trademarks and tradenames, net of accumulated amortization
of $878 and $1,397 at December 31, 1996 and September 30, 1997,
respectively 11,880 11,362
Debt issuance costs, net of accumulated amortization of $45 and $390
at December 31, 1996 and September 30, 1997, respectively
2,957 1,585
Other 45 660
------- -------
Total $47,823 $50,076
======= =======
</TABLE>
NOTE 5 --- BUSINESS ACQUISITIONS
Effective August 1, 1997, the Company purchased all of the capital
stock of Exell, Inc. (Exell) for total cash consideration of approximately
$8,088 plus assumption of certain liabilities. The cash consideration consisted
of $7,864 in purchase price and $224 for related acquisition expenses. Exell is
a
7
<PAGE> 8
ITEQ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
manufacturer of shell and tube heat exchangers and was previously a competitor
of the Company's Ohmstede operation. For its fiscal year ended September 30,
1996, Exell reported revenues of approximately $26,779. The transaction was
accounted for using the purchase method of accounting, and, accordingly, the
operating results of Exell are included in the accompanying consolidated
financial statements from the effective date of the acquisition.
The purchase price has been allocated to the assets purchased and the
liabilities assumed based upon the estimated fair values at the date of the
acquisition as follows:
<TABLE>
<S> <C>
Working capital $1,424
Property and equipment 1,422
Excess of costs over net assets acquired 5,242
------
Total purchase price $8,088
======
</TABLE>
The excess of costs over net assets acquired of $5,242 is being
amortized on a straight line basis over forty years.
The following unaudited pro forma consolidated results of operations
assume that the purchase occurred on January 1, 1996 and 1997, respectively. The
pro forma consolidated results of operations may not necessarily be indicative
of the Company's results of operations that would have occurred had the
transaction been effected on the assumed dates, nor do the pro forma results
purport to indicate the Company's results of operations for any future period.
<TABLE>
<CAPTION>
For the nine months ended
September 30,
-------------------------
1996 1997
--------- ---------
<S> <C> <C>
Revenues $ 70,889 $146,578
Earnings from continuing operations 862 5,472
Net earnings (loss) (691) 646
Earnings from continuing operations per share .08 .36
Net earnings (loss) per share (.06) .04
</TABLE>
NOTE 6 ---- RESTRUCTURING COSTS
A restructuring charge of $4,200 was taken during the three months
ended March 31, 1996, of which $2,382 related to the Company's discontinued
Allied subsidiary (see Note 7), and, accordingly, is now presented as earnings
(loss) from discontinued operations, net of income tax benefit, on the
accompanying statements of operations. The restructuring charge included (i) a
provision for the contractually required severance obligations to the former
president and chief executive officer who was replaced in March 1996, and (ii)
the cost of implementing new management's plan to reduce the Company's overall
cost structure including employee severance, lease and other contract buyouts,
inventory and other asset impairments, losses related to termination of
unprofitable product lines, excess machinery disposal and other related costs.
8
<PAGE> 9
ITEQ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
NOTE 7 --- DISCONTINUED OPERATIONS
During August 1997, management adopted plans to discontinue the
operations of the Company's Allied subsidiary. For accounting purposes, this
discontinuance was treated as effective on August 31, 1997.
The majority of Allied's operations relate to fabricating certain types of
pressure vessels. The net assets of Allied's operations will be liquidated as
remaining orders in process are completed. The estimated completion date of the
net asset liquidation is February 28, 1998. The Allied facility will not be
disposed of as it will be used in the Company's facility consolidation effort
(see Note 10). Net assets of Allied of $4,111 are included in the September 30,
1997 consolidated balance sheet. Management believes the $1,345 liability for
the estimated loss on disposal of discontinued operations, which includes $900
of estimated operating losses during the phase-out period, is adequate.
Sales from discontinued operations were $7,863 and $3,818, for the
three months ended September 30, 1996 and 1997 and $19,331 and $12,944 for the
nine months ended September 30, 1996 and 1997, respectively. Summary operating
results through August 31, 1997, the date of measurement, were as follows:
<TABLE>
<CAPTION>
Two months Eight months
ended ended
August 31, August 31,
1997 1997
---------- ------------
<S> <C> <C>
Revenues $2,675 $11,800
Operating loss 116 578
Interest expense 243 1,030
Loss before income taxes 359 1,608
Income tax benefit 122 547
Net loss from discontinued operations 237 1,061
</TABLE>
The earnings (loss) from discontinued operations included in the
statements of operations are reflected net of the effective income tax rate for
the applicable period.
Interest expense has been allocated based on intercompany debt
balances. After-tax interest expense of $193 has been included in the estimated
loss on disposal. Discontinued operations have not been separated in the
consolidated statements of cash flows and, therefore, amounts for certain
captions will not agree with the respective consolidated statements of
operations.
NOTE 8 --- STOCK OFFERING
In May 1997, the Company sold approximately 5,058 shares of ITEQ common
stock. The primary use of the offering proceeds of approximately $31,795 was to
reduce debt incurred for the Company's acquisition program.
9
<PAGE> 10
ITEQ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
NOTE 9 --- EXTRAORDINARY ITEM
During the quarter ended September 30, 1997, the Company repaid its
subordinated notes using available proceeds under its revolving credit facility.
The Company incurred an extraordinary loss of $3,182, ($2,037 net of taxes),
related to the write-off of unamortized debt issuance and discount costs. These
amounts have been reflected in the accompanying statements of operations.
NOTE 10 --- SUBSEQUENT EVENTS
On October 28, 1997, the Company's merger (the "Merger") with Astrotech
International Corporation ("Astrotech") was approved by shareholders of both
companies. Astrotech is a leading domestic designer, fabricator and supplier of
proprietary storage tank products and services. The company provides a broad
range of inspection, engineering, construction and maintenance services for
aboveground storage tanks and also offers mobile storage tank leasing services.
Industries served include refining, petrochemical, wastewater treatment,
agricultural, pulp and paper, mining, water storage, power generation and
process systems. The Company will issue approximately 9,500 shares of ITEQ
common stock (subject to the adjustment for elimination of fractional shares) in
exchange for all the outstanding shares of Astrotech common stock based on an
exchange ratio of .93 of a share of ITEQ common stock for each share of
Astrotech common stock outstanding. In addition, all outstanding options to
purchase Astrotech common stock were converted into options to purchase shares
of ITEQ common stock as adjusted for the exchange ratio. In connection with the
Merger, the Company amended and restated its Certificate of Incorporation to,
among other things, increase its authorized shares of common stock from 30,000
to 40,000.
The Merger will be accounted for as a pooling of interests.
Accordingly, future consolidated financial statements will be restated to
include the accounts and results of operations of Astrotech with those of the
Company, as if the two companies had been combined since inception. See
supplemental combined pro forma financial statements contained elsewhere herein.
The consolidated financial statements will be restated on a combined
basis in the Company's Form 10-K for the year ending December 31, 1997.
Astrotech's historical statements of operations for all prior years will
likewise be combined with ITEQ's historical statements of operations.
In conjunction with the Merger, management is initiating plans to
restructure and consolidate the combined companies. Duplicate facilities and
excess capacity will be eliminated and certain operations will be consolidated
into existing Astrotech or ITEQ facilities. All merger and restructuring costs
will be expensed in the fourth quarter of the year ending December 31, 1997.
These costs include investment banking, legal, accounting, stockholder meeting
expenses, employee severance, asset write-downs and business integration
expenses. Management currently estimates that the merger, acquisition and
restructuring costs charged in the fourth quarter will be approximately $15,000
to $16,000 excluding extraordinary charges related to early extinguishment
of debt and discontinuance of the operations of the Company's Allied subsidiary.
In October 1997, in connection with the Merger, the Company refinanced
its and Astrotech's existing credit facilities under a new revolving credit
facility (the "New Credit Facility") with various financial institutions with a
commitment amount of up to $175,000 maturing in 5 years and bearing interest, at
the Company's option, at BankBoston, N.A.'s customary base rate or at
BankBoston's eurodollar rate plus, in either case, an agreed upon margin ranging
from 0% to .25% for the applicable
10
<PAGE> 11
ITEQ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) (CONTINUED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
base rate margin, and from 1% to 1.75% for the applicable eurodollar rate
margin. The applicable interest rate on amounts outstanding at October 31, 1997
was 6.625%. A commitment fee ranging from 0.25% to 0.5% per annum is payable on
the unused portion of the New Credit Facility. The New Credit Facility is
secured by substantially all of the assets of the Company, a pledge of the stock
of the Company's domestic subsidiaries, and guarantees entered into by such
subsidiaries. All outstanding indebtedness as of September 30, 1997 has been
reflected as long-term in the accompanying balance sheet to reflect the terms of
the New Credit Facility.
The Company's credit facilities require the Company to maintain certain
levels of working capital and stockholders' equity and contain other restrictive
covenants. Such instruments also limit the ability of the Company to incur
additional indebtedness and to make acquisitions and certain investments. At
September 30, 1997, the Company was in compliance with the provisions of its
debt agreements.
The Company's outstanding balance as of October 31, 1997 was $78,083 of
which $44,732 related to the repayment of ITEQ's term loan and revolving credit
facility. In October 1997, the Company incurred an extraordinary charge of
$1,644, ($1,052 net of taxes), related to the write off of debt issuance costs
from these previous debt facilities. This loss will be reflected in the
Company's consolidated financial statements during the year ending December 31,
1997 and will be combined with the extraordinary loss in the accompanying
statements of operations related to the repayment of the subordinated notes. The
total extraordinary loss, net of applicable taxes, related to the early
extinguishment of debt will be $3,089 for the year ending December 31, 1997.
11
<PAGE> 12
ITEQ AND ASTROTECH COMBINED
SUPPLEMENTAL UNAUDITED CONDENSED PRO FORMA BALANCE SHEET
(IN THOUSANDS)
SEPTEMBER 30, 1997
<TABLE>
<CAPTION>
ASSETS
Pro Forma Combined
ITEQ Astrotech Adjustments Company
-------- --------- ----------- - -------
<S> <C> <C> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 2,411 $ 214 $ $ 2,625
Due on contracts and other receivables, net 36,330 32,722 69,052
Costs and estimated earnings in excess of billings on uncompleted
contracts 24,236 6,602 30,838
Inventories 6,663 6,055 12,718
Prepaid expenses, deposits and other assets 2,326 2,769 5,095
Deferred tax asset 1,881 1,072 2,953
-------- ------- ------- ---------
Total Current Assets 73,847 49,434 -- 123,281
Property and equipment, net 15,100 30,523 45,623
Other assets, net 50,076 31,919 81,995
-------- -------- ------- ---------
ASSETS $139,023 $111,876 $ -- $ 250,899
======== ======== ======= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $15,261 $ 8,816 $ $ 24,077
Accrued liabilities 18,215 13,481 31,696
Billings in excess of costs and estimated earnings on uncompleted
contracts 908 5,720 6,628
Progress billings 4,270 -- 4,270
------- ------- ------- --------
Total Current Liabilities 38,654 28,017 -- 66,671
LONG-TERM LIABILITIES:
Long-term obligations 42,632 36,074 78,706
Deferred tax liability 943 4,014 4,957
------- ------- ------- --------
Total Liabilities 82,229 68,105 $ -- 150,334
------- ------- ------- --------
STOCKHOLDERS' EQUITY:
Common stock 17 103 (93) (a) 27
Additional paid-in capital 56,927 61,719 93 (a) 118,739
Retained earnings (deficit) 502 (18,051) (17,549)
Translation adjustment (652) -- (652)
------- ------- ------- ---------
Total Stockholders' Equity 56,794 43,771 $ -- 100,565
-------- -------- ------- ---------
LIABILITIES AND STOCKHOLDERS' EQUITY $139,023 $111,876 $ -- $ 250,899
======== ======== ======= =========
</TABLE>
(a) Pro forma adjustment to Astrotech common stock to reflect the pooling of
interest based on a conversion rate of .93 and to reflect the par value of ITEQ
Common Stock.
12
<PAGE> 13
ITEQ AND ASTROTECH COMBINED
SUPPLEMENTAL UNAUDITED CONDENSED PRO FORMA STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Three-months ended Nine months ended
September 30, September 30,
------------------------- -------------------------
1996 1997 1996 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Revenues $ 56,049 $ 90,039 $ 147,472 $ 242,101
Cost of revenues 42,727 69,965 109,972 185,528
Selling, general and administrative expenses 7,423 9,646 21,183 29,391
Sales commissions 738 882 2,758 2,478
Depreciation and amortization 1,456 2,041 3,901 5,640
Merger costs, restructuring charges and other non-recurring
costs -- -- 1,818 --
--------- --------- --------- ---------
Operating profit 3,705 7,505 7,840 19,064
Interest expense, net (659) (1,297) (1,663) (4,694)
Other income (229) 11 (245) 22
--------- --------- --------- ---------
Earnings from continuing operations before
extraordinary item and provision for income taxes 2,817 6,219 5,932 14,392
Provision for income taxes 1,011 2,319 2,230 5,488
--------- --------- --------- ---------
Earnings from continuing operations before
extraordinary loss 1,806 3,900 3,702 8,904
Earnings (Loss) from discontinued operations 474 (1,965) (1,553) (2,789)
Extraordinary loss on early extinguishment of debt -- (2,037) -- (2,037)
--------- --------- --------- ---------
Net Earnings $ 2,280 $ (102) $ 2,149 $ 4,078
========= ========= ========= =========
Earnings from continuing operations before extraordinary item
per common share $ 0.09 $ 0.14 $ 0.18 $ 0.36
Net earnings per common share $ 0.11 $ 0.00 $ 0.10 $ 0.16
Weighted average number of common and common equivalent shares
outstanding 21,176 28,415 20,900 24,907
</TABLE>
13
<PAGE> 14
ITEM 2
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
GENERAL
Since its inception in 1990 the Company has acquired nine businesses.
Due to the magnitude of these acquisitions and the integration of the acquired
operations with the Company's existing business, results of operations for prior
periods are not necessarily comparable with or indicative of results of
operations for current or future periods.
The Company records revenues from long-term contracts using the
percentage-of-completion method. Under this method, the Company recognizes as
revenues that portion of the total contract price which the cost of work
completed to date bears to the estimated total cost of the work included in the
contract. Because contracts may extend over more than one fiscal period,
revisions of cost and profit estimates are made periodically and are reflected
in the accounting period in which they are determined. If the estimate of total
costs on a contract indicates a loss, the total anticipated loss is recognized
immediately. Contract costs include all direct material, labor and
subcontracting costs and those indirect costs related to contract performance,
such as supplies, tools and repairs.
The Company recognizes revenue from certain short-term contracts using
the completed contract method. Revenue is recognized when a project is
substantially complete. The contracts under this revenue recognition method are
typically less than three months in duration.
The Company historically has experienced quarterly fluctuations in its
operating results. Operating results in any quarter are dependent upon the
timing of equipment and system sales, which may vary considerably among periods.
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1997 COMPARED TO THREE MONTHS
ENDED SEPTEMBER 30, 1996
Revenues
Revenues for the three months ended September 30, 1997 increased
$31,444, to $48,240 from $16,796 for the three months ended September 30, 1996.
The increase was primarily attributable to the November 1996 acquisition of
Ohmstede, Inc. ("Ohmstede") and the August 1997 acquisition of Exell, Inc.
("Exell") which contributed revenues of $26,862 and $4,823, respectively, for
the three months ended September 30, 1997. This increase was partially offset by
the disposition in November 1996 of Air-Cure, Inc. ("ACI") and Pipkorn, Inc.
("Pipkorn"), both of which were formerly subsidiaries of the Company. In the
third quarter of 1996, ACI and Pipkorn contributed $1,417 in revenues.
Cost of Revenues
Cost of revenues for the three months ended September 30, 1997
increased $24,808 to $37,596 primarily due to the Ohmstede and Exell
acquisitions. Cost of revenues for Ohmstede and Exell for the three months ended
September 30, 1997 was $21,263 and $3,622, respectively, partially offset by the
sale of ACI and Pipkorn, which had cost of revenues of $1,182 for the three
months ended September 30, 1996.
14
<PAGE> 15
Selling, General and Administrative Expenses
Selling, general and administrative (SG&A) expenses increased by $2,696
to $4,882 from $2,186 which was primarily attributable to the Ohmstede and Exell
acquisitions. Ohmstede's and Exell's SG&A expense for the three months ended
September 30, 1997 was $2,434 and $338, respectively, which was partially offset
by a $178 reduction in SG&A expense related to the sale of ACI and Pipkorn.
Sales Commissions
Sales commissions represent commissions paid to third party sales
representatives or distributors. The commissions vary from period to period with
the projects and products sold and the arrangement between the Company and the
sales representative.
Depreciation and Amortization
Depreciation and amortization expense for the three months ended
September 30, 1997 increased $406 to $771 primarily due to the Ohmstede and
Exell acquisitions. Ohmstede's and Exell's depreciation and amortization expense
for the three months ended September 30, 1997 was $418 and $63, respectively.
Interest Expense, net
Interest expense for the three months ended September 30, 1997 and 1996
was $628 and $209, respectively, primarily due to the borrowings required to
finance the Ohmstede acquisition, which aggregated $56,100.
Income Taxes
The effective tax rate for the three months ended September 30, 1997
and 1996 was 36% and 39%, respectively.
Discontinued Operations and Extraordinary Loss
During August 1997, management adopted plans to discontinue the
operations of the Company's Allied subsidiary. For accounting purposes, this
discontinuance was treated as effective on August 31, 1997.
The majority of Allied's operations relate to fabricating certain types
of pressure vessels. The net assets of Allied's operations will be liquidated as
remaining orders in process are completed. The estimated completion date of the
net asset liquidation is February 28, 1998. The Allied facility will not be
disposed of as it will be used in the Company's facility consolidation effort.
Earnings (loss) from discontinued operations for the three months ended
September 30, 1997, and 1996 were ($1,965) (net of $1,086 income tax benefit)
and $474 (net of $267 income tax provision), respectively.
During the quarter ended September 30, 1997, the Company repaid its
unsecured subordinated notes using available proceeds under its revolving credit
facility. The Company incurred an extraordinary loss of $3,182 ($2,037 net of
taxes), related to the write-off of unamortized debt issuance and discount
costs.
15
<PAGE> 16
NINE MONTHS ENDED SEPTEMBER 30, 1997 COMPARED TO NINE MONTHS
ENDED SEPTEMBER 30, 1996
Revenues
Revenues for the nine months ended September 30, 1997 increased
$80,220, to $131,412 from $51,192 for the nine months ended September 30, 1996.
The increase was primarily attributable to the November 1996 acquisition of
Ohmstede and the August 1997 acquisition of Exell, which contributed revenues of
$80,449 and $4,823, respectively for the nine months ended September 30, 1997.
This increase was partially offset by the disposition in November 1996 of ACI
and Pipkorn, both of which were formerly subsidiaries of the Company. For the
nine months ended September 30, 1996, ACI and Pipkorn contributed $4,406 in
revenues.
Cost of Revenues
Cost of revenues for the nine months ended September 30, 1997 increased
$63,986 to $102,271 primarily due to the Ohmstede and Exell acquisitions. Cost
of revenues for Ohmstede and Exell for the nine months ended September 30, 1997
was $63,007 and $3,622, respectively, partially offset by the sale of ACI and
Pipkorn which had cost of revenues of $ $3,594 for the nine months ended
September 30, 1996.
Selling, General and Administrative Expenses
Selling, general and administrative (SG&A) expenses increased by $7,347
to $13,888 from $6,541, which was primarily attributable to the Ohmstede and
Exell acquisitions. Ohmstede's and Exell's SG&A expense for the nine months
ended September 30, 1997 was $7,139 and $338, respectively, which was partially
offset by a $540 reduction in SG&A expense related to the sale of ACI and
Pipkorn.
Sales Commissions
Sales commissions represent commissions paid to third party sales
representatives or distributors. The commissions vary from period to period with
the projects and products sold and the arrangement between the Company and the
sales representative.
Depreciation and Amortization
Depreciation and amortization expense for the nine months ended
September 30, 1997 increased $1,185 to $2,106 primarily due to the Ohmstede and
Exell acquisitions. Ohmstede's and Exell's depreciation and amortization expense
for the nine months ended September 30, 1997 was $1,220 and $62, respectively.
Interest Expense, net
Interest expense for the nine months ended September 30, 1997 and 1996
was $3,131 and $598, respectively, primarily due to the borrowings required to
finance the Ohmstede acquisition, which aggregated $56,100.
Income Taxes
The effective tax rate for the nine months ended September 30, 1997 and
1996 was 37% and 33%, respectively.
16
<PAGE> 17
Discontinued Operations and Extraordinary Loss
During August 1997, management adopted plans to discontinue the
operations of the Company's Allied subsidiary. For accounting purposes, this
discontinuance was treated as effective on August 31, 1997.
The majority of Allied's operations relate to fabricating certain types
of pressure vessels. The net assets of Allied's operations will be liquidated as
remaining orders in process are completed. The estimated completion date of the
net asset liquidation is February 28, 1998. The Allied facility will not be
disposed of as it will be used in the Company's facility consolidation effort.
Earnings (loss) from discontinued operations for the nine months ended
September 30, 1997, and 1996 were ($2,789) (net of $1,511 income tax benefit)
and ($1,553) (net of $827 income tax benefit), respectively.
During the quarter ended September 30, 1997, the Company repaid its
unsecured subordinated notes using available proceeds under its revolving credit
facility. The Company incurred an extraordinary loss of $3,182 ($2,037 net of
taxes), related to the write-off of unamortized debt issuance and discount
costs.
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 1997, the Company's cash position was $2,411 compared
with $6,475 at December 31, 1996. Net working capital at September 30, 1997 was
$35,193 compared to $29,851 at December 31, 1996.
The Company's existing capital resources consist of cash balances, cash
provided by its operating activities and funds available under its line of
credit. The Company's operating activities provided $4,142 in cash during the
nine months ended September 30, 1997.
The Company's cash requirements consist of its general working capital
needs, capital expenditures, obligations under its leases and indebtedness, and
capital required for future acquisitions. The Company's general working capital
requirements consist of salary costs and related overhead and the purchase price
of materials and components, and may also include subcontracts with respect to
which such costs are incurred. Management anticipates that the Company will make
capital expenditures of approximately $2,400 in 1997 as compared to
approximately $1,000 in 1996. The increase in capital expenditures relates
primarily to a full year of Ohmstede operations.
In November 1996, the Company issued Senior Subordinated Notes
("Subordinated Notes") to two institutional lenders in an aggregate amount of
$15,000. The 12% Subordinated Notes were scheduled to mature November 18, 2003
but were repaid during the quarter ending September 30, 1997 as discussed below.
As additional consideration, the Subordinated Note holders received warrants to
purchase an aggregate of 1,760 shares of the Company's common stock at $5.10 per
share, subject to adjustment. The warrants may be exercised at any time prior to
expiration on November 18, 2003. Approximately $2,300 of warrant value was
reflected as equity and as debt discount and prior to repayment was being
amortized as additional interest expense over the seven year life of the
Subordinated Notes.
17
<PAGE> 18
During the quarter ended September 30, 1997, the Company repaid the
Subordinated Notes using available proceeds under its secured revolving credit
facility. The Company incurred an extraordinary loss of $3,182 ($2,037 net of
taxes), related to the write-off of unamortized debt issuance and debt discount
costs.
In November 1996, the Company amended its principal credit agreement to
increase the commitment in conjunction with the Ohmstede acquisition. The
financing consisted of a $35,000 term loan and a $38,000 revolving line of
credit facility. In May 1997, the Company sold approximately 5,058 shares of
ITEQ Common Stock and used the net proceeds (approximately $31,795) to reduce
debt. This reduced the term loan and revolving line of credit outstanding as of
September 30, 1997 to $18,000 and $24,600, respectively.
On October 28, 1997, the Company's merger (the "Merger") with Astrotech
International Corporation ("Astrotech") was approved by shareholders of both
companies. Astrotech is a leading domestic designer, fabricator and supplier of
proprietary storage tank products and services. The company provides a broad
range of inspection, engineering, construction and maintenance services for
aboveground storage tanks and also offers mobile storage tank leasing services.
Industries served include refining, petrochemical, wastewater treatment,
agricultural, pulp and paper, mining, water storage, power generation and
process systems. The Company will issue approximately 9,500 shares of ITEQ
common stock (subject to the adjustment for elimination of fraction shares) in
exchange for all the outstanding shares of Astrotech common stock based on an
exchange ratio of .93 of a share of ITEQ common stock for each share of
Astrotech common stock outstanding. In addition, all outstanding options to
purchase Astrotech common stock were converted into options to purchase shares
of ITEQ common stock as adjusted for the exchange ratio. In connection with the
Merger, the Company amended and restated its Certificate of Incorporation to,
among other things, increase its authorized shares of common stock from 30,000
to 40,000. The Merger will be accounted for as a pooling of interests.
In conjunction with the Merger, management is initiating plans to
restructure and consolidate the combined companies. Duplicate facilities and
excess capacity will be eliminated and certain operations will be consolidated
into existing Astrotech or ITEQ facilities. All merger and restructuring costs
will be expensed in the fourth quarter of the year ending December 31, 1997.
These costs include investment banking, legal, accounting, stockholder meeting
expenses, employee severance, asset write-downs and business integration
expenses. Management currently estimates that the merger, acquisition and
restructuring costs charged in the fourth quarter will be approximately $15,000
to $16,000 excluding extraordinary charges related to early extinguishment of
debt and discontinuance of the operations of the Company's Allied subsidiary.
In October 1997, in connection with the Merger, the Company refinanced
its and Astrotech's existing credit facilities under a new revolving credit
facility (the "New Credit Facility") with various financial institutions with a
commitment amount of up to $175,000 maturing in 5 years and bearing interest, at
the Company's option, at BankBoston, N.A.'s customary base rate or at
BankBoston's eurodollar rate plus, in either case, an agreed upon margin ranging
from 0% to .25% for the applicable base rate margin, and from 1% to 1.75% for
the applicable eurodollar rate margin. The applicable interest rate on amounts
outstanding at October 31, 1997 was 6.625%. A commitment fee ranging from 0.25%
to 0.5% per annum payable quarterly on the unused portion of the New Credit
Facility. The New Credit Facility is secured by substantially all of the assets
of the Company, a pledge of the stock of the Company's domestic subsidiaries,
and guarantees entered into by such subsidiaries.
The Company's outstanding indebtedness balance as of October 31, 1997
was $78,083 of which $44,732 related to the repayment of ITEQ's term loan and
revolving credit facility. In October 1997, the Company incurred an
extraordinary charge of $1,644, ($1,052 net of taxes), related to the write off
of debt issuance costs from these previous debt facilities. This loss will be
reflected in the Company's
18
<PAGE> 19
consolidated financial statements during the year ending December 31,
1997 and will be combined with the extraordinary loss in the accompanying
statements of operations related to the repayment of the subordinated notes. The
total extraordinary loss, net of applicable taxes, related to the early
extinguishment of debt will be $3,089 for the year ending December 31, 1997.
The Company's credit facilities require the Company to maintain certain
levels of working capital and stockholders' equity and contain other restrictive
covenants. Such instruments also limited the ability of the Company to incur
additional indebtedness and to make acquisitions and certain investments. At
September 30, 1997, the Company was in compliance with the provisions of its
debt agreements.
Except with respect to the funding of any future acquisitions,
management believes that funds available under its credit facilities, together
with cash generated from operations, will be sufficient to meet the Company's
anticipated cash requirements for 1997. Management further believes that the
Company could obtain additional capital to make acquisitions through debt or
lease financing or issuances of common or preferred stock, although no assurance
can be given with respect to whether such financing would be available when
required or whether such financing can be obtained on terms acceptable to the
Company.
Information Regarding Forward-Looking Statements
This Quarterly Report on Form 10-Q includes forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E
of the Securities Exchange Act of 1934. All statements other than statements of
historical facts included in the preceding discussion regarding ITEQ's financial
position, business strategy, and plans of management for future operations are
forward-looking statements. Although ITEQ believes that the expectations
reflected in such forward-looking statements are reasonable, it can give no
assurance that such expectations will prove to have been correct.
19
<PAGE> 20
PART II --- OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits:
2.1 -- Plan and Agreement of Merger dated as of June 30, 1997, by and
between the Registrant and Astrotech International Corporation
("Astrotech"). (Filed as Appendix A to the Joint Proxy
Statement/Prospectus of the Registrant and Astrotech on October
3, 1997 and incorporated herein by reference.)
2.2 -- Stock Purchase Agreement, dated April 24, 1997, among the
owners of Exell Inc. ("Exell") and the Registrant. (Filed as an
exhibit to Amendment No. 2 to the Registrant's Registration
Statement on Form S-2 (No. 333-23245) and incorporated herein by
reference.)
2.3 -- First and Second Amendment to Exell Stock Purchase Agreement
among the owners of Exell and the Registrant. (Filed as an
exhibit to Form 10-Q for the quarter ending June 30, 1997 and
incorporated herein by reference.)
2.4 -- Purchase and Sale Agreement, dated as of the Effective Date
(as defined therein), between Babel, Miller & Blackwell
Partnership (the "Partnership") and the Registrant. (Filed as an
exhibit to Form 8-K dated August 28, 1997 and incorporated herein
by reference.)
2.5 -- First Amendment to Purchase and Sale Agreement, effective August
13, 1997, among the Partnership, Beaumont Franklin Street
Properties, L.L.C. ("BFSP"), Neches Street Properties, L.L.C.
("NSP") and the Registrant. (Filed as an exhibit to Form 8-K
dated August 28, 1997 and incorporated herein by reference.)
3.1 -- Amended and Restated Certificate of Incorporation of the
Registrant. (Filed as Appendix E to the Joint Proxy
Statement/Prospectus of the Registrant and Astrotech on October
3, 1997 and incorporated herein by reference.)
3.2 -- Amended and Restated Bylaws of the Registrant.
4.1 -- See Exhibits 3.1 and 3.2 for provisions of the Certificate of
Incorporation and Bylaws of the Registrant defining the rights of
holders of Common Stock.
4.2 -- Revolving Credit Agreement dated as of October 28, 1997 by and
among the Registrant, the Guarantors and various lending
institutions including Deutsche Bank AG as Documentation Agent
and BankBoston, N.A. as Agent.
4.3 -- Warrant Agreement, dated November 18, 1996, between the
Registrant and Mezzanine. (Filed as an exhibit to Form 8-K dated
December 5, 1996 and incorporated herein by reference.)
4.4 -- Warrant Agreement dated November 18, 1996, between the
Registrant and First Commerce, (Filed as an exhibit to Form 8-K
dated December 5, 1996 and incorporated herein by reference.)
4.5 -- Registration Rights Agreement dated November 18, 1996, among the
Registrant, Mezzanine, and First Commerce. (Filed as an exhibit
to Form 8-K dated December 5, 1996 and incorporated herein by
reference.)
4.6 -- Warrant Agreement, dated April 24, 1996, between the Registrant
and Sanders Morris Mundy, Inc. (Filed as an exhibit to Form 10-Q
for the quarter ended September 30, 1996 and incorporated herein
by reference.)
10.1 -- Amended and Restated ITEQ 1990 Stock Option Plan. (Filed as
Appendix D to the Joint Proxy Statement/Prospectus of the
Registrant and Astrotech on October 3, 1997 and incorporated
herein by reference.)
10.2 -- Lease, dated August 13, 1997, among BFSP, NSP and Exell. (Filed
as an exhibit to Form 8-K dated August 28, 1997 and incorporated
herein by reference.)
10.3 -- Employment Agreement dated September 30, 1997 for Mark E.
Johnson.
27 -- Financial Data Schedule.
(b) Reports on Form 8-K. The Registrant filed a Form 8-K dated August
28, 1997 with respect to the acquisition of Exell, Inc.
20
<PAGE> 21
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.
ITEQ, INC.
Date: November 14, 1997 /s/ Lawrance W. McAfee
----------------------------------
Lawrance W. McAfee
Executive Vice President and
Chief Financial Officer
Date: November 14, 1997 /s/ Kathryn S. Henderson
----------------------------------
Kathryn S. Henderson
Corporate Controller and
Assistant Secretary
21
<PAGE> 22
INDEX TO EXHIBITS
Exhibit Description
- ------- -----------
2.1 -- Plan and Agreement of Merger dated as of June 30, 1997, by and
between the Registrant and Astrotech International Corporation
("Astrotech"). (Filed as Appendix A to the Joint Proxy
Statement/Prospectus of the Registrant and Astrotech on October
3, 1997 and incorporated herein by reference.)
2.2 -- Stock Purchase Agreement, dated April 24, 1997, among the
owners of Exell Inc. ("Exell") and the Registrant. (Filed as an
exhibit to Amendment No. 2 to the Registrant's Registration
Statement on Form S-2 (No. 333-23245) and incorporated herein by
reference.)
2.3 -- First and Second Amendment to Exell Stock Purchase Agreement
among the owners of Exell and the Registrant. (Filed as an
exhibit to Form 10-Q for the quarter ending June 30, 1997 and
incorporated herein by reference.)
2.4 -- Purchase and Sale Agreement, dated as of the Effective Date
(as defined therein), between Babel, Miller & Blackwell
Partnership (the "Partnership") and the Registrant. (Filed as an
exhibit to Form 8-K dated August 28, 1997 and incorporated herein
by reference.)
2.5 -- First Amendment to Purchase and Sale Agreement, effective August
13, 1997, among the Partnership, Beaumont Franklin Street
Properties, L.L.C. ("BFSP"), Neches Street Properties, L.L.C.
("NSP") and the Registrant. (Filed as an exhibit to Form 8-K
dated August 28, 1997 and incorporated herein by reference.)
3.1 -- Amended and Restated Certificate of Incorporation of the
Registrant. (Filed as Appendix E to the Joint Proxy
Statement/Prospectus of the Registrant and Astrotech on October
3, 1997 and incorporated herein by reference.)
3.2 -- Amended and Restated Bylaws of the Registrant.
4.1 -- See Exhibits 3.1 and 3.2 for provisions of the Certificate of
Incorporation and Bylaws of the Registrant defining the rights of
holders of Common Stock.
4.2 -- Revolving Credit Agreement dated as of October 28, 1997 by and
among the Registrant, the Guarantors and various lending
institutions including Deutsche Bank AG as Documentation Agent
and BankBoston, N.A. as Agent.
4.3 -- Warrant Agreement, dated November 18, 1996, between the
Registrant and Mezzanine. (Filed as an exhibit to Form 8-K dated
December 5, 1996 and incorporated herein by reference.)
4.4 -- Warrant Agreement dated November 18, 1996, between the
Registrant and First Commerce, (Filed as an exhibit to Form 8-K
dated December 5, 1996 and incorporated herein by reference.)
4.5 -- Registration Rights Agreement dated November 18, 1996, among the
Registrant, Mezzanine, and First Commerce. (Filed as an exhibit
to Form 8-K dated December 5, 1996 and incorporated herein by
reference.)
4.6 -- Warrant Agreement, dated April 24, 1996, between the Registrant
and Sanders Morris Mundy, Inc. (Filed as an exhibit to Form 10-Q
for the quarter ended September 30, 1996 and incorporated herein
by reference.)
10.1 -- Amended and Restated ITEQ 1990 Stock Option Plan. (Filed as
Appendix D to the Joint Proxy Statement/Prospectus of the
Registrant and Astrotech on October 3, 1997 and incorporated
herein by reference.)
10.2 -- Lease, dated August 13, 1997, among BFSP, NSP and Exell. (Filed
as an exhibit to Form 8-K dated August 28, 1997 and incorporated
herein by reference.)
10.3 -- Employment Agreement dated September 30, 1997 for Mark E.
Johnson.
27 -- Financial Data Schedule.
<PAGE> 1
EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
ITEQ, INC.*
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation required by the General Corporation Law of the State of Delaware to
be maintained in the State of Delaware shall be the registered office named in
the Amended and Restated Certificate of Incorporation of the Corporation, or
such other office as may be designated from time to time by the board of
directors in the manner provided by law. Should the Corporation maintain a
principal office or place of business within the State of Delaware, such
registered office need not be identical to such principal office or place of
business of the Corporation.
Section 2. Other Offices. The Corporation may also have
offices at such other places within or without the State of Delaware as the
board of directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders
will be held at the principal office of the Corporation, or at such other place
within or without the State of Delaware as may be determined by the board of
directors and stated in the notice of the meeting or in duly executed waivers of
notice the meeting.
Section 2. Annual Meetings. An annual meeting of the
Corporation's stockholders shall be held for the election of directors at such
date, time and place, either within or without the State of Delaware, as may be
designated by resolution of the board of directors from time to time; provided
that each successive annual meeting shall be held on a date within 13 months
after the date of the preceding annual meeting. At the annual meeting of
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before
- ---------------
*Adopted by the board of directors on July 23, 1997, and to become
effective on the Effective Date of the ITEQ/Astrotech merger referred to in the
attached Agreement.
<PAGE> 2
an annual meeting, business must be (a) specified in the notice of meeting given
by or at the direction of the board of directors, (b) otherwise properly brought
before the meeting by or at the direction of the board of directors, or (c)
otherwise properly brought before the meeting by a stockholder of the
Corporation. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation, no less than 60 days nor more than 180 days prior to the
anniversary date of the immediately preceding annual meeting; provided, however,
that if the date of the annual meeting is more than 60 days later than the
anniversary date of the immediately preceding annual meeting, notice by the
stockholder, to be timely, must be received not later than the close of business
on the tenth day following the earlier of (a) the date on which a written
statement setting forth the date of the annual meeting was mailed to
stockholders and (b) the date on which the date of the meeting is first
disclosed to the public. A stockholder's notice to the Secretary shall set forth
as to each matter the stockholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before the annual
meeting, (b) the name and address, as they appear on the Corporation's books, of
the stockholder proposing such proposal, (c) the class and number of shares of
the Corporation that are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business. In addition, if the
stockholder's ownership of shares of the Corporation, as set forth in the
notice, is solely beneficial, documentary evidence of such ownership must
accompany the notice. Notwithstanding anything else in these bylaws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 2. The presiding
officer of an annual meeting shall, if the facts warrant, determine and declare
to the meeting that any business that was not properly brought before the
meeting is out of order and shall not be transacted at the meeting.
Section 3. Postponement or Adjournment of Meetings. The board
of directors may, at any time prior to the holding of a meeting of shareholders,
postpone such meeting to such time and place as is specified in the notice of
postponement of such meeting, which notice shall be given in accordance with
Article VI of these bylaws at least ten days before the date to which the
meeting is postponed. In addition, any meeting of the stockholders may be
adjourned at any time by the Chairman of the Board or such other person who
shall be lawfully acting as chairman of the meeting, if such adjournment is
deemed by the chairman of the meeting to be a reasonable course of action under
the circumstances.
Section 4. Notice of Annual Meeting. Written or printed notice
of the annual meeting, stating the place, day and hour thereof, will be served
upon or mailed to each stockholder entitled to vote thereat at such address as
appears on the books of the Corporation, not less than ten days nor more than 60
days before the date of the meeting.
Section 5. Special Meeting. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or the Certificate of Incorporation, may only be called by the
President, the Chairman of the Board, or the Chief Executive Officer.
-2-
<PAGE> 3
Section 6. Notice of Special Meeting. Written notice of a
special meeting of stockholders, stating the place, day and hour and purpose or
purposes thereof, will be served upon or mailed to each stockholder entitled to
vote thereat at such address as appears on the books of the Corporation, not
less than ten days nor more than 60 days before the date of the meeting.
Section 7. Business at Special Meeting. Business transacted
at all special meetings will be confined to the purpose or purposes stated in
the notice.
Section 8. Stockholder List. At least ten days before each
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting or any adjournment thereof, arranged in alphabetical order, with
the address of and the number of shares held by each stockholder, will be
prepared by the Secretary. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during usual business
hours, for a period of ten days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice, or, if not so specified, at the place where the meeting is to be held.
Such list will also be produced and kept open at the time and place of the
meeting and shall be subject to the inspection of any stockholder during the
whole time of the meeting.
Section 9. Quorum. The holders of a majority of the shares of
capital stock issued and outstanding and entitled to vote thereat, represented
in person or by proxy, will constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute, the Certificate of Incorporation or these bylaws. If, however, a quorum
is not present or represented at any meeting of the stockholders, the chairman
of the meeting or a majority of the shares of stock, present in person or
represented by proxy, although not constituting a quorum, shall have power to
postpone or recess the meeting without notice other than announcement at the
meeting of the date, time and place of the postponed or recessed meeting. At any
such adjourned meeting at which a quorum is represented any business may be
transacted which might have been transacted at the meeting as originally
noticed.
Section 10. Majority Vote. When a quorum is present at any
meeting, the vote of the holders of a majority of the shares having voting power
represented at the meeting in person or by proxy will decide any question
brought before the meeting, unless the question is one upon which, by statute or
express provision of the Certificate of Incorporation or these bylaws, a
different vote is required, in which case such express provision will govern and
control the decision of such question. Where a separate vote by class is
required, the affirmative vote of the majority of shares of such class present
in person or represented by proxy at the meeting shall be the act of such class.
Section 11. Proxies. At any meeting of the stockholders every
stockholder having the right to vote will be entitled to vote in person or by
proxy appointed by an instrument in writing subscribed by such stockholder or
his duly authorized attorney in fact and bearing a date not more than eleven
months prior to the date of the meeting.
-3-
<PAGE> 4
Section 12. Voting. Unless otherwise provided by statute, the
Certificate of Incorporation or these bylaws, each stockholder will have one
vote for each share of stock having voting power, registered in his name on the
books of the Corporation.
Section 13. Voting of Stock of Certain Holders; Elections;
Inspections. Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officers, agent or proxy as the bylaws of such
corporation may prescribe, or in the absence of such provision, as the Board of
Directors of such corporation may determine. Shares standing in the name of a
deceased person may be voted by the executor or administrator of such deceased
person, either in person or by proxy. Shares standing in the name of a guardian,
conservator or trustee may be voted by such fiduciary, either in person or by
proxy, but no fiduciary shall be entitled to vote shares held in such fiduciary
capacity without a transfer of such shares into the name of the fiduciary.
Shares standing in the name of a receiver may be voted by the receiver. A
stockholder whose shares are pledged shall be entitled to vote such shares,
unless in the transfer by the pledgor on the books of the Corporation, he has
expressly empowered the pledgee to vote thereon, in which case only the pledgee,
or his proxy, may represent the stock and vote thereon.
If shares or other securities having voting power stand of
record in the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety or
otherwise, or if two or more persons have the same fiduciary relationship
respecting the same shares, unless the Secretary of the Corporation is given in
written notice to the contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect:
(a) If only one votes, his act binds all;
(b) If more than one vote, the act of the majority so voting
binds all;
(c) If more than one vote, but the vote is evenly split on any
particular matter, each fraction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if
any, may apply to the Court of Chancery or such other court as may have
jurisdiction to appoint an additional person to act with the persons so
voting the shares, which shall then be voted as determined by a
majority of such persons and the person appointed by the Court.
All voting, except as required by the Certificate of
Incorporation or where otherwise required by law, may be by a voice vote;
provided, however, that upon demand therefor by stockholders holding a majority
of the issued and outstanding stock present in person or by proxy at any
meeting, a stock vote shall be taken. Every stock vote shall be taken by written
ballots, each of which shall state the name of the stockholder or proxy voting
and such other information as may be required under the procedure established
for the meeting. All elections of directors shall be by ballot, unless otherwise
provided in the Certificate of Incorporation.
-4-
<PAGE> 5
At any meeting at which a vote is taken by ballots, the
chairman of the meeting may appoint one or more inspectors, each of whom shall
subscribe an oath or affirmation to execute faithfully the duties of inspector
at such meeting with strict impartiality and according to the best of his
ability. Such inspector shall receive the ballots, count the votes and make and
sign a certificate of the result thereof. The chairman of the meeting may
appoint any person to serve as inspector, except no candidate for the office of
director shall be appointed as inspector.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the Corporation
will be managed by a board of directors. The board may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute,
by the Certificate of Incorporation or these bylaws directed or required to be
exercised or done by the stockholders.
Section 2. Number of Directors. The number of directors which
constitute the whole board will be no less than three and no more than twelve,
as such number shall be determined by resolution of the board of directors from
time to time or, if such number is not so determined, the number shall be nine;
provided that no decrease in the number of directors shall have the effect of
shortening the term of any incumbent director.
Section 3. Nomination. Only persons who are nominated in
accordance with the procedures set forth in these bylaws shall be eligible to
serve as directors. Nominations of persons for election to the board of
directors of the Corporation may be made by or at the direction of the board of
directors or by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Section 3, who shall
be entitled to vote for the election of directors at the meeting, and who
complies with the notice procedures set forth in this Section 3.
Nominations by stockholders shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation (a) in the case of an annual
meeting, not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that if
the date of the annual meeting is changed by more than 30 days from such
anniversary date, notice by the stockholder, to be timely, must be so received
not later than the close of business on the tenth day following the earlier of
the day on which notice of the date of the meeting was mailed or prior public
disclosure of the meeting date was made, and (b) in the case of a special
meeting at which directors are to be elected, not later than the close of
business on the tenth day following the earlier of the day on which notice of
the date of the meeting was mailed or such public disclosure was made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of
-5-
<PAGE> 6
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to the stockholder giving the notice
(i) the name and address, as they appear on the Corporation's books, of such
stockholder and (ii) the class and number of shares of the Corporation which are
beneficially owned by such stockholder and also which are owned of record by
such stockholder; and (c) as to the beneficial owner, if any, on whose behalf
the nomination is made, (i) the name and address of such person and (ii) the
class and number of shares of the Corporation which are beneficially owned by
such person. At the request of the board of directors, any person nominated by
the board of directors for election as a director shall furnish to the Secretary
of the Corporation that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee.
The presiding officer of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this Section 3, and if he shall so
declare, the defective nomination shall be disregarded.
Section 4. Election and Term. The directors shall be elected
at the annual meeting of stockholders, except as provided in Section 5 of this
Article III, and each director elected shall hold office until his successor
shall be elected and shall qualify. Directors need not be residents of Delaware
or stockholders of the Corporation.
Section 5. Vacancies. If any vacancy occurs in the Board of
Directors caused by the death, resignation, retirement, disqualification, or
removal from office of any director, or otherwise, or if any new directorship is
created by an increase in the authorized number of directors, a majority of the
directors then in office, though less than a quorum, or a sole remaining
director, may choose a successor or fill the resulting vacancy or the newly
created directorship; and a director so chosen shall hold office until the next
election and until his successor shall be duly elected and shall qualify, unless
sooner removed.
Section 6. Resignation; Removal. Any director may resign at
any time. Any director may be removed either for or without cause at any special
meeting of stockholders duly called and held for such purpose.
ARTICLE IV
MEETINGS AND COMMITTEES OF THE BOARD
Section 1. First Meeting. Each newly elected board of
directors may hold its first meeting for the purpose of organization and the
transaction of business, if a quorum is present, immediately after and at the
same place as the annual meeting of the stockholders, and no notice of such
meeting shall be necessary; or the board may meet for such purpose at such place
and time as is fixed by the consent in writing of all the directors.
-6-
<PAGE> 7
Section 2. Regular Meetings. Regular meetings of the board may
be held at such time and place either within or without the State of Delaware
and with such notice or without notice as is determined from time to time by the
board.
Section 3. Special Meetings. Special meetings of the board may
be called by the President or the Chairman of the Board of directors on one
day's notice to each director, either personally or by mail, telegram or
facsimile transmission. Special meetings will be called by the President or the
Secretary in like manner and on like notice upon the written request of any
director.
Section 4. Quorum and Voting. At all meetings of the board, a
majority of the directors will be necessary and sufficient to constitute a
quorum for the transaction of business. The act of a majority of the directors
present at any meeting at which there is a quorum will be the act of the board
of directors, except as may be otherwise specifically provided by statute, the
Certificate of Incorporation or these bylaws. If a quorum is not present at any
meeting of directors, the directors present may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present.
Section 5. Telephone Meetings. The directors may hold their
meetings in any manner permitted by law. Without limitation, at any meeting of
the board, a member may attend by telephone, radio, television, interactive
media or similar means of communication by means of which all participants can
hear each other and which permits him to participate in the meeting, and a
director so attending will be deemed present at the meeting for all purposes,
including the determination of whether a quorum is present.
Section 6. Action by Written Consent. Any action required or
permitted to be taken by the board of directors or the executive committee, if
one is established, under applicable statutory provisions, the Certificate of
Incorporation, or these bylaws, may be taken without a meeting if a consent in
writing, setting forth the action so taken, is signed by all the members of the
board of directors or executive committee, as the case may be, and filed with
the minutes of the proceedings of the directors or executive committee, as the
case may be.
Section 7. Committees of Directors. The board of directors
may, by resolution passed by a majority of the whole board, establish one or
more committees. Each committee shall consist of one or more members of the
board. Members of committees of the board of directors shall be elected annually
by vote of a majority of the board. Presence of a majority of the committee
members shall constitute a quorum at committee meetings. A Committee may act by
majority vote of its voting members present at a meeting. Each committee shall
have and may exercise such of the powers of the board of directors in the
management of the business and affairs of the Corporation as may be provided in
these bylaws or by resolution of the board of directors. Each committee may
authorize the seal of the Corporation to be affixed to any document or
instrument. The board of directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of such committee. Meetings of a
-7-
<PAGE> 8
committee may be called by any member of the committee by written, telegraphic,
facsimile or telephonic notice to all members of the committee and shall be at
such time and place as shall be stated in the notice of such meeting. Any member
of a committee may participate in any meeting of the committee by means of
conference telephone or similar communications equipment. In the absence or
disqualification of a member of any committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not
constituting a quorum may, if deemed advisable, unanimously appoint another
member of the board to act at the meeting in the place of the disqualified or
absent member. Each committee may fix such other rules and procedures governing
conduct of its meetings as it shall deem appropriate.
ARTICLE V
COMPENSATION OF DIRECTORS
The Board of Directors shall have the authority to fix the
compensation of directors. The board shall also have the authority to fix the
compensation of members of committees of the board. No provision of these bylaws
shall be construed to preclude any director form serving the Corporation in any
other capacity and receiving compensation therefor.
ARTICLE VI
NOTICES
Section 1. Methods of Notice. Whenever any notice is required
to be given to any stockholder under the provisions of any statute, the
Certificate of Incorporation or these bylaws, it will not be construed to
require personal notice, but such notice may be given in writing by mail
addressed to such stockholder at such address as appears on the books of the
Corporation, and such notice shall be deemed to be given at the time when the
same shall be deposited in the United States mail with postage thereon prepaid.
Section 2. Waiver of Notice. Whenever any notice is required
to be given to any stockholder or director under the provisions of any statute,
the Certificate of Incorporation or these bylaws, a waiver thereof in writing
signed by the person or persons entitled to the notice, whether before or after
the time stated therein, will be deemed equivalent to the giving of such notice.
Attendance at any meeting will constitute a waiver of notice thereof except as
otherwise provided by statute.
-8-
<PAGE> 9
ARTICLE VII
OFFICERS
Section 1. Executive Officers. The officers of the Corporation
shall consist of President, Vice President, Treasurer, and Secretary, each of
whom shall be elected by the board of directors. The board of directors may also
elect a chairman of the board, chief executive officer, chief operating officer,
chief financial officer, additional vice presidents, and one or more assistant
secretaries and assistant treasurers. Any two or more offices may be held by the
same person, and, except for the chairman of the board, none of the officers of
the Corporation need be directors.
Section 2. Other Officers and Agents. The board may elect or
appoint such other officers, assistant officers and agents as it deems
necessary, who will hold their offices for such terms and shall exercise such
powers and perform such duties as determined from time to time by the board.
Section 3. Compensation. The compensation of all officers of
the Corporation will be fixed by the board of directors except as otherwise
directed by the board.
Section 4. Term, Removal and Vacancies. The officers of the
Corporation will hold office until their resignation or their successors are
chosen and qualify. Any officer, agent or member of the executive committee
elected or appointed by the board of directors may be removed at any time by the
board of directors; provided, that such removal shall be without prejudice to
the contract rights, if any, of the removed party. If any such office becomes
vacant for any reason, the vacancy will be filled by the board of directors.
Section 5. Chairman of the Board. The Chairman of the Board,
if one is elected, shall preside at meetings of the board of directors and
stockholders. The chairman shall formulate and submit to the board of directors
or the executive committee, if any, matters of general policy of the Corporation
and shall have such other powers and duties as may from time to time be
prescribed by duly adopted resolutions of the board of directors.
Section 6. Chief Executive Officer. The Chief Executive
Officer, if one is elected, shall preside at meetings of the board of directors
and stockholders if there is no chairman of the board or in his absence, and
shall supervise and have overall responsibility for the business, administration
and operations of the Corporation. In general, he shall perform all duties as
from time to time may be assigned to him by the board. He shall from time to
time make such reports of the affairs of the Corporation as the board may
require.
Section 7. President, Chief Operating Officer, and Chief
Financial Officer. The President, the Chief Operating Officer and the Chief
Financial Officer shall have such duties as shall be assigned to each from time
to time by the Chairman of the Board, the Chief Executive Officer and the board.
During the absence of the Chief Executive Officer or during his inability to
act, the
-9-
<PAGE> 10
President shall exercise the powers and shall perform the duties of the
Chief Executive Officer, subject to the direction of the Board of Directors.
Subject to any limitations imposed on such officers by the Board of Directors,
each such officer shall have the power and authority to take actions necessary
for the proper performance of his duties.
Section 8. Vice Presidents. The Vice Presidents, in the order
determined by the board of directors, will, in the absence or disability of the
President, perform the duties and exercise the powers of the President, and will
perform such other duties as the board of directors and President may prescribe.
Section 9. Secretary. The Secretary will attend all meetings
of the board of directors and all meetings of the stockholders and record all
votes and the minutes of all proceedings in a book to be kept for that purpose
and will perform like duties for the standing committees of the board when
required. He will give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the board of directors, and will perform
such other duties as may be prescribed by the board of directors, the Chief
Executive Officer and the President. He will keep in safe custody the seal of
the Corporation and, when authorized by the board, affix the seal to any
instrument requiring it, and when so affixed it shall be attested by his
signature or by the signature of an assistant secretary.
Section 10. Assistant Secretaries. The assistant secretaries
in the order determined by the board of directors will perform, in the absence
or disability of the Secretary, the duties and exercise the powers of the
Secretary and will perform such other duties as the board of directors, the
Chief Executive Officer and the President may prescribe.
Section 11. Treasurer. The Treasurer will have the custody of
the Corporate's funds and securities and will keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and will
deposit all monies and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the board of
directors. The Treasurer will disburse the funds of the Corporation as may be
ordered by the board, and will render to the board of directors, the Chief
Executive Officer and the President, whenever they may require it, an account of
all of his transactions as Treasurer and of the financial condition of the
Corporation.
Section 12. Assistant Treasurers. The Assistant Treasurers in
the order determined by the board of directors, in the absence or disability of
the Treasurer, perform the duties and exercise the powers of the Treasurer and
will perform such other duties as the board of directors and President may
prescribe.
-10-
<PAGE> 11
ARTICLE VIII
SHARES AND STOCKHOLDERS
Section 1. Certificates Representing Shares. The certificates
representing shares of the Corporation will be numbered and entered in the books
of the Corporation as they are issued. They will exhibit the holder's name and
number of shares and will be signed by the President or Vice-President and the
Secretary or an Assistant Secretary, and will be sealed with the seal of the
Corporation or a facsimile thereof. The signature of any such officer may be
facsimile if the certificate is countersigned by a transfer agent or registered
by a registrar, other than the Corporation itself or an employee of the
Corporation. In case any officer who has signed or whose facsimile signature has
been placed upon such certificate has ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of its issuance.
Section 2. Transfer of Shares. Upon surrender to the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it will be the duty
of the Corporation to issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
Notwithstanding the foregoing, no transfer will be recognized by the Corporation
if such transfer would violate federal or state securities laws, the Certificate
of Incorporation, or any stockholders agreements which may be in effect at the
time of the purported transfer.
Section 3. Fixing Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend, or in
order to make a determination of stockholders for any other proper purpose, the
board of directors may provide that the stock transfer books be closed for a
stated period not to exceed, in any case, 60 days. If the stock transfer books
are closed for the purpose of determining stockholders entitled to notice of or
to vote at a meeting of stockholders, such books must be closed for at least ten
days immediately preceding such meeting. In lieu of closing the stock transfer
books, the board of directors may fix in advance a date as the record date for
any such determination of stockholders, such date, in any case, to be not more
than 60 days and, in case of a meeting of stockholders, not less than ten days
prior to the date on which the particular action requiring such determination of
stockholders is to be taken. If the stock transfer books are not closed and no
record date is fixed for the determination of stockholders entitled to notice of
or to vote at a meeting of stockholders, or stockholders entitled to receive
payment of a dividend, the date on which notice of the meeting is mailed or the
date on which the resolution of the board of directors declaring such dividend
is adopted, as the case may be, will be the record date for such determination
of stockholders. When a determination of stockholders entitled to vote at any
meeting of stockholders has been made as herein provided, such determination
will apply to any adjournment thereof except where the determination has been
made through the closing of stock transfer books and the stated period of
closing has expired.
-11-
<PAGE> 12
Section 4. Registered Stockholders. The Corporation is
entitled to recognize the exclusive right of a person registered on its books as
the owner of a share or shares to receive dividends, and to vote as such owner,
and for all other purposes; and the Corporation is not bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it has express or other notice thereof, except
as otherwise provided by the laws of Delaware.
Section 5. Lost Certificate. The board of directors may direct
a new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost or destroyed. When authorizing such issue of
a new certificate or certificates, the board of directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representatives, to
advertise the same in such manner as it shall require and/or give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
Section 6. Fractional Share Interests. The Corporation may,
but shall not be required to, issue fractions of a share. If the Corporation
does not issue fractions of a share, it shall (a) arrange for the disposition of
fractional interests by those entitled thereto, (b) pay in cash the fair value
of fractions of a share as of the time when those entitled to receive such
factions are determined, or (c) issue script or warrants in registered form
(either represented by a certificate or uncertificated) or bearer form
(represented by a certificate) which shall entitle the holder to receive a full
share upon the surrender of such script or warrants aggregating a full share. A
certificate for a fractional share or an uncertificated fractional share shall,
but script or warrants shall not unless otherwise provided therein, entitle the
holder to exercise voting rights, to receive dividends thereon, and to
participate in any of the assets of the corporation in the event of liquidation.
The board of directors may cause script or warrants to be issued subject to the
conditions that they shall become void if not exchanged for certificates
representing the full shares or uncertificated full shares before a specified
date, or subject to the conditions that the shares for which script or warrants
are exchangeable may be sold by the Corporation and the proceeds thereof
distributed to the holders of script or warrants, or subject to any other
conditions which the board of directors may impose.
ARTICLE IX
GENERAL
Section 1. Dividends. The board of directors may from time to
time declare, and, if so declared, the Corporation pay, dividends on its
outstanding shares of capital stock in cash, in property, or in its own shares,
except when the declaration or payment thereof would be contrary to law or the
Certificate of Incorporation. Such dividends may be declared at any regular or
special
-12-
<PAGE> 13
meeting of the board, and the declaration and payment will be subject to all
applicable provisions of law, the Certificate of Incorporation and these bylaws.
Section 2. Reserves. Before payment of any dividend, there may
be set aside out of any funds of the Corporation available for dividends such
sum or sums as the directors from time to time, in their absolute discretion,
deem proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors may think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 3. Directors' Annual Statement. The board of directors
will present at each annual meeting and when called for by vote of the
stockholders at any special meeting of the stockholders, a full and clear
statement of the business and condition of the Corporation.
Section 4. Checks. All checks or demands for money and notes
of the Corporation will be signed by such officer or officers or such other
person or persons as the board of directors may from time to time designate.
Section 5. Corporate Records. The Corporation will keep at its
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its stockholders giving the names and
addresses of all stockholders and the number and class of shares held by each.
All other books and records of the Corporation may be kept at such place or
places within or without the State of Delaware as the board of directors may
from time to time determine.
Section 6. Seal. The corporate seal will have inscribed
thereon the name of the Corporation. The seal may be used by causing it or a
facsimile thereof to be impressed, affixed or reproduced.
Section 7. Amendment. These bylaws may be altered, amended or
repealed or new bylaws may be adopted at any annual meeting of the stockholders
or at any special meeting of the stockholders at which a quorum is present or
represented, provided notice of the proposed alteration, amendment, repeal or
adoption be contained in the notice of such meeting, by the affirmative vote of
the holders of a majority of the shares entitled to vote at such meeting and
present or represented thereat, or by the affirmative vote of a majority of the
board of directors at any regular or special meeting of the board, subject to
the right of the stockholders entitled to vote with respect thereto to amend or
repeal bylaws adopted or amended by the board.
Section 8. Indemnification. Except as otherwise provided in
the Certificate of Incorporation, each director, officer and former director or
officer of the Corporation, and any person who may have served or who may
hereafter serve at the request of the Corporation as a director or officer of
another corporation in which it owns shares of capital stock or of which it is a
creditor, is hereby indemnified by the Corporation against expenses actually and
necessarily incurred by him in connection with the defense of any action, suit
or proceeding in which he is made a party by
-13-
<PAGE> 14
reason of being or having been such director or officer to the fullest extent
authorized by the General Corporation Law of the State of Delaware, or any other
applicable law as may from time to time be in effect. Such indemnification will
not be deemed exclusive of any other rights to which such director, officer or
other person may be entitled under any agreement, vote of stockholders, or
otherwise. Without limitation, nothing in this section shall limit any
indemnification provisions in the Certificate of Incorporation.
-14-
<PAGE> 1
EXHIBIT 4.2
REVOLVING CREDIT AGREEMENT
Dated as of October 28, 1997
by and among
ITEQ, INC.
(the "Borrower")
THE GUARANTORS
THE LENDING INSTITUTIONS PARTY HERETO
(the "Banks")
DEUTSCHE BANK AG
(the "Documentation Agent")
and
BANKBOSTON, N.A.
(the "Agent")
Arranged By
BANCBOSTON SECURITIES INC.
<PAGE> 2
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of October 28, 1997 (this
"Credit Agreement"), by and among (a) ITEQ, INC., a Delaware corporation (the
"Borrower"), (b) THE GUARANTORS, as defined below, (c) BankBoston, N.A., a
national banking association having its principal place of business at 100
Federal Street, Boston, Massachusetts 02110 (acting in its individual capacity,
"BKB"), and the other lending institutions which become parties hereto
(collectively, the "Banks"), (d) DEUTSCHE BANK AG, as documentation agent (the
"Documentation Agent"), and (e) BANKBOSTON, N.A., as agent for the Banks
(acting in such capacity, the "Agent").
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
SECTION 1.1. DEFINITIONS.
The following terms shall have the meanings set forth in this Section
1 or elsewhere in the provisions of this Credit Agreement referred to below:
Accountants. See Section 5.4(a).
Affected Bank. See Section 4.11.
Agent. See Preamble.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or such other location as the Agent may
designate from time to time.
Applicable Base Rate Margin. The applicable margin with respect to
Base Rate Loans as set forth in the Pricing Table.
Applicable Commitment Rate. The applicable rate with respect to the
Commitment Fee as set forth in the Pricing Table.
Applicable Eurodollar Margin. The applicable margin with respect to
Eurodollar Loans as set forth in the Pricing Table.
Applicable Laws. See Section 6.10.
Applicable L/C Margin. The applicable margin with respect to the
Letter of Credit Fee as set forth in the Pricing Table.
<PAGE> 3
-2-
Arranger. BancBoston Securities Inc.
Assignment and Acceptance. See Section 17.
Astrotech. Astrotech International Corporation, a Delaware
corporation.
Astrotech Credit Agreement. The Amended and Restated Revolving Credit
and Term Loan Agreement, dated as of April 30, 1997, between Astrotech and Bank
One, Texas, N.A.
Astrotech Merger. The merger of Astrotech with and into the Borrower
pursuant to the Astrotech Merger Agreement, with the Borrower being the
surviving corporation.
Astrotech Merger Agreement. The Plan and Agreement of Merger dated as
of June 30, 1997 between Astrotech and the Borrower.
Balance Sheet Date. December 31, 1996.
Banks. See Preamble.
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by the Agent at the Agent's Head Office as its "base rate" (it
being understood that such rate is a reference rate and not necessarily the
lowest rate of interest charged by the Agent) or (b) one percent (1%) above the
overnight federal funds effective rate, as published by the Board of Governors
of the Federal Reserve System, as in effect from time to time.
Base Rate Loans. Loans bearing interest calculated by reference to the
Base Rate.
BKB. See Preamble.
BOA. Bank of America National Trust and Savings Association.
BOA Credit Agreement. The Amended and Restated Credit Agreement, dated
as of November 18, 1996, among the Borrower, the financial institutions party
thereto, BOA as agent, and BKB as co-agent.
Borrower. See Preamble.
Business Day. Any day on which banking institutions in Boston,
Massachusetts and New York, New York are open for the transaction of banking
business.
<PAGE> 4
-3-
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and goodwill); provided that Capital Assets shall not
include (a) any item customarily charged directly to expense or depreciated
over a useful life of twelve (12) months or less in accordance with generally
accepted accounting principles, or (b) any item obtained through an acquisition
permitted by Section 7.4 hereof.
Capital Expenditures. Amounts paid or indebtedness incurred by the
Borrower and its Subsidiaries in connection with the purchase or lease of
Capital Assets that would be required to be capitalized and shown on the
balance sheet of such Person in accordance with GAAP.
Capitalized Leases. Leases under which the Borrower or any Subsidiary
(including Astrotech and its subsidiaries) is the lessee or obligor, the
discounted future rental payment obligations under which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance with
GAAP.
CERCLA. See definition of Release.
Certified. With respect to the financial statements of any Person,
such statements as audited by a firm of independent auditors, whose report
expresses the opinion, without qualification, that such financial statements
present fairly the financial position of such Person.
CFO. See Section 6.4(b).
Closing Date. The date on which the conditions precedent set forth in
Section 9 are satisfied.
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
Collateral. All of the property, rights and interests of the Borrower
and the Guarantors that are or are intended to be subject to the security
interests and Mortgages created by the Security Documents.
Commitment. With respect to each Bank, the amount determined by
multiplying such Bank's Commitment Percentage by the Total Commitment specified
in Section 2.1 hereof, as the same may be reduced from time to time.
Commitment Fee. See Section 4.1.
Commitment Percentage. With respect to each Bank, the percentage
initially set forth beside its name on Schedule 1 (subject to adjustment in
accordance with Section 17).
<PAGE> 5
-4-
Company Balance Sheet Date. June 30, 1997.
Compliance Certificate. See Section 6.4(c).
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries consolidated in accordance with GAAP.
Consolidated Earnings Before Interest and Taxes or EBIT. For any
period, the Consolidated Net Income (or Deficit) of the Borrower and its
Subsidiaries, plus (a) interest expense for such period, (b) income taxes for
such period, and (c) non-recurring charges in connection with the Astrotech
Merger, not to exceed $17,000,000 in the aggregate, which will be taken as a
special charge and allocated between the quarters ending September 30, 1997 and
December 31, 1997, to the extent that each was deducted in determining
Consolidated Net Income (or Deficit), provided that, for purposes of
calculating the financial covenants under Section 8 (but not the Pricing
Ratio), EBIT (excluding any projected cost savings or adjustments) of
Subsidiaries acquired since the date of the most recent financial statements
delivered to the Banks pursuant to Section 6.4 shall be included in the
calculation of EBIT if (i) the financial statements of such acquired
Subsidiaries have been audited for the period sought to be included by the
Accountants or (ii) the Agent and the Majority Banks consent to such inclusion.
Consolidated Earnings Before Interest, Taxes, Depreciation and
Amortization or EBITDA. For any period, EBIT plus (a) depreciation expense and
(b) amortization expense relating to intangible assets for such period, to the
extent that each was deducted in determining Consolidated Net Income (or
Deficit), provided that, for purposes of calculating the Pricing Ratio, EBITDA
shall include EBITDA of Exell, Ohmstede, and Trusco, and provided further, that
for purposes of calculating the financial covenants under Section 8 (but not
the Pricing Ratio), EBITDA (excluding any projected cost savings or
adjustments) of Subsidiaries acquired since the date of the most recent
financial statements delivered to the Banks pursuant to Section 6.4 shall be
included in the calculation of EBITDA if (i) the financial statements of such
acquired Subsidiaries have been audited for the period sought to be included by
the Accountants or (ii) the Agent and the Majority Banks consent to such
inclusion.
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Borrower and its Subsidiaries after deduction of all expenses,
taxes, and other proper charges.
Consolidated Total Assets. All assets of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
<PAGE> 6
-5-
Consolidated Total Interest Expense. For any period, the aggregate
amount of interest expense required to be paid or accrued by the Borrower and
its Subsidiaries during such period on all Indebtedness of the Borrower and its
Subsidiaries outstanding during all or any part of such period, including
capitalized interest expense for such period.
Credit Agreement. This Revolving Credit Agreement, including the
Schedules and Exhibits hereto, as amended and in effect from time to time.
Default. See Section 12.
Delinquent Bank. See Section 14.9.
Depository Accounts. See Section 6.20.
Disposal (or Disposed). See definition of Release.
Distribution. The declaration or payment of any dividend or
distribution on or in respect of any shares of any class of capital stock, any
partnership interests or any membership interests of any Person (other than
dividends or other distributions payable solely in shares of common stock,
partnership interests or membership units of such Person, as the case may be);
the purchase, redemption, or other retirement of any shares of any class of
capital stock, partnership interests or membership units of such Person,
directly or indirectly through a Subsidiary or otherwise; the return of equity
capital by any Person to its shareholders, partners or members as such; or any
other distribution on or in respect of any shares of any class of capital
stock, partnership interest or membership unit of such Person.
Documentation Agent. See Preamble.
Dollars or $. Dollars in lawful currency of the United States of
America.
Drawdown Date. The date on which any Revolving Credit Loan is made or
is to be made, and the date on which any Revolving Credit Loan is converted or
continued in accordance with Section 2.5.
EBIT. See definition of Consolidated Earnings Before Interest and
Taxes.
EBITDA. See definition of Consolidated Earnings Before Interest,
Taxes, Depreciation and Amortization.
Eligible Foreign Bank. (a) Any commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any
such country, provided that such bank is acting through a branch or agency
located in the country
<PAGE> 7
-6-
in which it is organized or another country which is also a member of the OECD;
or (b) the central bank of any country which is a member of the OECD.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower or any
Subsidiary or any ERISA Affiliate, other than a Guaranteed Pension Plan or a
Multiemployer Plan.
Environmental Laws. See Section 5.16(a).
EPA. See Section 5.16(b).
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower or any Subsidiary under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a
Guaranteed Pension Plan within the meaning of Section 4043 of ERISA and the
regulations promulgated thereunder.
Eurodollar Business Day. Any Business Day on which dealings in foreign
currency and exchange are carried on among banks in London, England.
Eurodollar Interest Determination Date. For any Interest Period, the
date two Eurodollar Business Days prior to the first day of such Interest
Period.
Eurodollar Loans. Revolving Credit Loans bearing interest calculated
by reference to the Eurodollar Rate.
Eurodollar Offered Rate. The rate per annum at which deposits of
dollars are offered to the Agent by prime banks in whatever Eurodollar
interbank market may be selected by the Agent, in its sole discretion, acting
in good faith, at or about 11:00 a.m. local time in such interbank market, on
the Eurodollar Interest Determination Date, for a period equal to the requested
Interest Period in an amount substantially equal to the principal amount
requested to be loaned at or converted to a rate based on the Eurodollar Rate.
Eurodollar Rate. The rate per annum, rounded upwards to the nearest
1/16 of 1%, determined by the Agent with respect to an Interest Period in
accordance with the following formula:
Eurodollar Rate = Eurodollar Offered Rate
-----------------------
1-Reserve Rate
<PAGE> 8
-7-
Event of Default. See Section 12.
Exell. Exell, Inc.
Financial Letter of Credit. A Letter of Credit where the event which
triggers payment is financial, such as the failure to pay money, and not
performance related, such as failure to ship a product or provide a service, as
set forth in greater detail in the letter dated March 30, 1995 from the Board
of Governors of the Federal Reserve System or in any applicable directive or
letter ruling of the Board of Governors of the Federal Reserve System issued
subsequent thereto.
Funded Debt. Consolidated Indebtedness of the Borrower and its
Subsidiaries for borrowed money and guarantees of debt for borrowed money
recorded on the Consolidated balance sheet of the Borrower and its
Subsidiaries, including noncontingent reimbursement obligations of the Borrower
and its Subsidiaries with respect to letters of credit and the amount of any
Indebtedness of such Persons for Capitalized Leases which corresponds to
principal.
generally accepted accounting principles or GAAP. When used in general,
generally accepted accounting principles means (1) principles that are
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, in effect for the fiscal year
ended on the Balance Sheet Date, as shall be concurred in by independent
certified public accountants of recognized standing whose report expresses an
unqualified opinion (other than a qualification regarding changes in generally
accepted accounting principles) as to financial statements in which such
principles have been applied; and (2) when used with reference to the Borrower,
such principles shall include (to the extent consistent with such principles)
the accounting practices reflected in the consolidated financial statements for
the year ended on the Balance Sheet Date.
Guaranteed Obligations. See Section 20.1.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower
or any Subsidiary or any ERISA Affiliate, the benefits of which are guaranteed
on termination in full or in part by the PBGC pursuant to Title IV of ERISA,
other than a Multiemployer Plan.
Guarantors. The U.S. Subsidiaries listed on Schedule 2, and any
newly-created or acquired U.S. Subsidiaries that become Guarantors pursuant to
Section 6.19.
Hazardous Substances. See Section 5.16(b).
<PAGE> 9
-8-
HMT Properties. The real property owned by HMT Inc., a U.S.
Subsidiary, as of the Closing Date, located in Tomball, Texas; Beaumont, Texas;
Kelton, Pennsylvania; and Kay County, Oklahoma.
Indebtedness. Collectively without duplication, whether classified as
Indebtedness, an investment or otherwise on the obligor's balance sheet, (a)
all indebtedness for borrowed money, (b) all obligations for the deferred
purchase price of property or services (other than trade payables not overdue
by more than ninety (90) days incurred in the ordinary course of business), (c)
all obligations evidenced by notes, bonds, debentures or other similar debt
instruments, (d) all obligations created or arising under any conditional sale
or other title retention agreement with respect to property acquired (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations, liabilities and indebtedness under Capitalized Leases, (f) all
non-contingent obligations, liabilities or indebtedness under surety,
performance bonds or any other bonding arrangements (to the extent such items
are required to be shown on the balance sheet under GAAP), (g) all
non-contingent reimbursement obligations with respect to letters of credit (to
the extent such items are required to be shown on the balance sheet under
GAAP), (h) all net obligations of such Person with respect to Swap Contracts,
(i) all Indebtedness of others referred to in clauses (a) through (h) above
which is guaranteed, or in effect guaranteed, directly or indirectly in any
manner, including through an agreement (A) to pay or purchase such Indebtedness
or to advance or supply funds for the payment or purchase of such Indebtedness,
(B) to purchase, sell or lease (as lessee or lessor) property, or to purchase
or sell services, primarily for the purpose of enabling any Person to make
payment of such Indebtedness or to assure the holder of such Indebtedness
against loss, (C) to supply funds to or in any other manner invest in any
Person (including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (D)
otherwise to assure any Person against loss, and (j) all Indebtedness referred
to in clauses (a) through (i) above secured or supported by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured or supported by) any lien or encumbrance on (or other right of
recourse to or against) property (including, without limitation, accounts and
contract rights), even though the owner of the property has not assumed or
become liable, contractually or otherwise, for the payment of such
Indebtedness.
Ineligible Securities. Securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1993 (12 U.S.C. Section 24, Seventh), as amended.
Interest Period. With respect to each Eurodollar Loan:
(a) initially, the period commencing on the date of the
making of a Eurodollar Loan or the conversion from a Base Rate Loan into a
Eurodollar Loan and
<PAGE> 10
-9-
ending one (1), two (2), three (3), or six (6) months thereafter, as selected
by the Borrower in a Loan and Letter of Credit Request; and
(b) thereafter, each subsequent Interest Period shall begin
on the last day of the preceding Interest Period and shall end one (1), two (2),
three (3), or six (6) months thereafter, as selected by the Borrower in a Loan
and Letter of Credit Request;
provided, however, that whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in such
Interest Period, such Interest Period shall end on the last Business Day of such
succeeding calendar month.
International Guarantors. The International Subsidiaries which are
guarantors hereunder pursuant to an International Guaranty Agreement.
International Guaranty Agreement. See Section 6.19.
International Stock Pledge Agreement. See Section 6.19.
International Subsidiaries. The Subsidiaries of the Borrower
designated as such on Schedule 2.
Issuing Bank. BKB.
Letter of Credit Applications. Letter of Credit Applications in such
form as may be agreed upon by the Borrower and the Agent from time to time
which are entered into pursuant to Section 3 hereof as such Letter of Credit
Applications are amended, varied or supplemented from time to time.
Letter of Credit Fee. See Section 4.1(b).
Letter of Credit Participation. See Section 3.1(b).
Letters of Credit. Standby Letters of Credit issued or to be issued by
the Agent under Section 3 hereof for the account of the Borrower.
Leverage Ratio. See Section 8.2.
Loan and Letter of Credit Request. See Section 2.6.
Loan Documents. This Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit, the International Guaranty Agreements, and
the Security Documents.
<PAGE> 11
-10-
Loans. The Revolving Credit Loans and the Swing Line Loans.
Majority Banks. As of any date, the Banks holding sixty-six and
two-thirds percent (66-2/3%) of the outstanding principal amount of the
Revolving Credit Loans on such date; and if no such principal is outstanding,
the Banks whose aggregate Commitments constitute sixty-six and two-thirds
percent (66-2/3%) of the Total Commitment.
Maturity Date. October 28, 2002.
Maximum Drawing Amount. The maximum aggregate amount from time to time
that the beneficiaries may draw under outstanding Letters of Credit.
Maximum Rate. With respect to each Bank, the maximum lawful nonusurious
rate of interest (if any) which under Applicable Law such Bank may charge the
Borrower on the Loans and other Obligations from time to time.
Mortgaged Property. Any Real Property which is subject to any Mortgage.
Mortgages. The several mortgages and deeds of trust, dated or to be
dated on or prior to the Closing Date, from the Borrower and its Subsidiaries
to the Agent with respect to the fee interests of the Borrower and its
Subsidiaries in the Real Property (other than the HMT Properties) and in form
and substance satisfactory to the Banks and the Agent.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower or any
Subsidiary or any ERISA Affiliate.
Net Worth. The Borrower's consolidated stockholders' equity,
calculated in accordance with GAAP.
Notes. The Revolving Credit Notes and the Swing Line Note.
Obligations. All indebtedness, obligations and liabilities of the
Borrower to any of the Banks or the Agent, individually or collectively,
existing on the date of this Credit Agreement or arising thereafter, direct or
indirect, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under this Credit Agreement or any of the other
Loan Documents, or under any Swap Contracts between the Borrower and any Bank,
or in respect of any of the Loans made or Reimbursement Obligations incurred or
the Letters of Credit, the Notes or any other instrument at any time evidencing
any thereof.
Ohmstede. Ohmstede, Inc.
<PAGE> 12
-11-
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002
of ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. See Section 7.2.
Person. Any individual, corporation, partnership, trust,
unincorporated association, business, or other legal entity, and any government
or any governmental agency or political subdivision thereof.
Pricing Ratio. As of the end of any fiscal quarter of the Borrower
commencing with the fiscal quarter ending September 30, 1997, the ratio of (a)
Funded Debt as at the end of such quarter to (b) EBITDA for the period of four
(4) consecutive fiscal quarters ending on such date.
Pricing Table:
<TABLE>
- -----------------------------------------------------------------------------------------------------------------------------
APPLICABLE APPLICABLE APPLICABLE
PRICING RATIO EURODOLLAR BASE RATE APPLICABLE COMMITMENT
MARGIN MARGIN L/C MARGIN RATE
(PER ANNUM) (PER ANNUM) (PER ANNUM) (PER ANNUM)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Less than 2.50:1 1.00% 0.00% 1.00% 0.250%
- -----------------------------------------------------------------------------------------------------------------------------
Greater than or equal 1.25% 0.00% 1.25% 0.375%
to 2.50:1 but less
than 3.00:1
- -----------------------------------------------------------------------------------------------------------------------------
Greater than or equal 1.50% 0.00% 1.50% 0.375%
to 3.00:1 but less
than 3.50:1
- -----------------------------------------------------------------------------------------------------------------------------
Greater than or equal 1.75% 0.25% 1.75% 0.500%
to 3.50:1
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
Any change in the applicable margin shall become effective on the first day
after receipt by the Banks of financial statements delivered pursuant to
Section 6.4(a) or (b) which indicate a change in the Pricing Ratio or, with
respect to the Eurodollar Applicable Margin, on the first day of each Interest
Period which begins three (3) or more days after receipt of such financial
statements. If at any time such financial statements are not delivered within
the time periods specified in Section 6.4(a) or (b), the applicable margin
shall be the highest rate set forth in the respective column of the Pricing
Table, subject to adjustment upon actual receipt of such financial statements.
RCRA. See definition of Release.
Real Property. All real property heretofore, now, or hereafter owned or
leased by the Borrower or any Subsidiary.
<PAGE> 13
-12-
Reimbursement Obligation. The Borrower's obligation to reimburse the
Agent and the Banks on account of any drawing under any Letter of Credit as
provided in Section 3.2.
Release. Shall have the meaning specified in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Sections 9601 et seq. ("CERCLA") and the term "Disposal" (or "Disposed") shall
have the meaning specified in the Resource Conservation and Recovery Act of
1976, 42 U.S.C. Sections 6901 et seq. ("RCRA") and regulations promulgated
thereunder; provided that in the event either CERCLA or RCRA is amended so as
to broaden the meaning of any term defined thereby, such broader meaning shall
apply as of the effective date of such amendment and provided further, to the
extent that the laws of a state wherein the property lies establishes a meaning
for "Release" or "Disposal" which is broader than specified in either CERCLA or
RCRA, such broader meaning shall apply.
Replacement Bank. See Section 4.11.
Replacement Notice. See Section 4.11.
Reserve Rate. The rate, expressed as a decimal, at which the Banks
would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any subsequent or similar
regulation relating to such reserve requirements) against "Eurocurrency
Liabilities" (as such term is defined in Regulation D), or against any other
category of liabilities which might be incurred by the Banks to fund Revolving
Credit Loans bearing interest based on the Eurodollar Rate, if such liabilities
were outstanding.
Revolving Credit Loans. Revolving credit loans made by the Banks to the
Borrower pursuant to Section 2.
Revolving Credit Notes. The promissory notes of the Borrower evidencing
the Revolving Credit Loans hereunder, dated as of the date of this Credit
Agreement and in substantially the form of Exhibit A hereto.
Section 20 Subsidiary. A Subsidiary of the bank holding company
controlling any Bank, which Subsidiary has been granted authority by the
Federal Reserve Board to underwrite and deal in certain Ineligible Securities.
Security Agreement. The Security Agreement, dated as of the date
hereof, among the Borrower, its Subsidiaries, and the Agent in form and
substance satisfactory to the Agent.
Security Documents. The Security Agreement, the Stock Pledge
Agreement, the International Stock Pledge Agreement, and the Mortgages, each as
amended and
<PAGE> 14
-13-
in effect from time to time, and any other instruments or documents evidencing
or perfecting the Agent's lien on the assets of the Borrower and its
Subsidiaries for the benefit of the Banks.
Settlement. The making or receiving of payments, in immediately
available funds, by the Banks to or from the Agent in accordance with Section
2.8 hereof to the extent necessary to cause each Bank's actual share of the
outstanding amount of the Revolving Credit Loans to be equal to such Bank's
Commitment Percentage of the outstanding amount of such Revolving Credit Loans,
in any case when, prior to such action, the actual share is not so equal.
Settlement Amount. See Section 2.8(b).
Settlement Date. See Section 2.8(b).
Settling Bank. See Section 2.8(b).
Stock Pledge Agreement. The Stock Pledge Agreement between the
Borrower and the Agent in form and substance satisfactory to the Agent.
Subsidiary. Any corporation, association, trust, or other business
entity of which the Borrower shall at any time own directly, or indirectly
through a Subsidiary or Subsidiaries, at least a majority of the outstanding
capital stock or other interest entitled to vote generally.
Swap Contracts. Any agreement (including any master agreement and any
agreement, whether or not in writing, relating to any single transaction) that
is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, forward foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, swaption, currency option or other similar agreement (including any
option to enter into any of the foregoing).
Swing Line Loans. Loans made by BKB to the Borrower pursuant to
Section 2.8.
Swing Line Note. The promissory note of the Borrower evidencing the
Swing Line Loans hereunder, dated as of the date of this Credit Agreement and
in substantially the form of Exhibit C.
Title Insurance Company. Chicago Title Insurance Company.
Title Policy. In relation to each Mortgaged Property, an ALTA standard
form title insurance policy (or its Texas equivalent) issued by the Title
Insurance Company (with such reinsurance or co-insurance as the Agent may
require, any such
<PAGE> 15
-14-
reinsurance to be with direct access endorsements) in such amount as may be
determined by the Agent insuring the priority of the Mortgage of such Mortgaged
Property and that the Borrower or one of its Subsidiaries holds indefeasible
fee simple title to such Mortgaged Property, subject only to the encumbrances
permitted by such Mortgage and which shall not contain exceptions for mechanics
liens or persons in occupancy (except as may be permitted by such Mortgage),
shall not insure over any matter except to the extent that any such affirmative
insurance is acceptable to the Agent in its sole discretion, and shall contain
such endorsements and affirmative insurance as the Agent in its discretion may
require, including but not limited to (i) comprehensive endorsement, (ii)
variable rate of interest endorsement, (iii) usury endorsement, (iv) revolving
credit endorsement, (v) tie-in endorsement, and (vi) doing business
endorsement.
Total Commitment. See Section 2.1.
Total Indebtedness. All Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis.
Trusco. Trusco Tank Inc.
U.S. Subsidiaries. The Subsidiaries designated as such on Schedule 2
and any newly-created or acquired Subsidiaries in the United States permitted
under Section 7.4.
SECTION 1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall
include such document or agreement as amended, modified or supplemented from
time to time in accordance with its terms and the terms of this Credit
Agreement.
(b) The singular includes the plural and the plural
includes the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms capitalized but not otherwise
defined herein have the meanings assigned to them by generally accepted
accounting principles applied on a consistent basis by the accounting entity to
which they refer.
(f) The words "include," "includes" and "including" are
not limiting.
<PAGE> 16
-15-
(g) All terms not specifically defined herein or by
generally accepted accounting principles, which terms are defined in the
Uniform Commercial Code as in effect in the Commonwealth of Massachusetts, have
the meanings assigned to them therein.
(h) Reference to a particular "Section " refers to that
section of this Credit Agreement unless otherwise indicated.
(i) The words "herein," "hereof," "hereunder" and words
of like import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including," the words "to" and "until" each
mean "to but excluding," and the word "through" means "to and including."
SECTION 2. THE REVOLVING CREDIT FACILITY.
SECTION 2.1. COMMITMENT TO LEND.
Subject to the terms and conditions set forth in this Credit
Agreement, each of the Banks severally agrees to lend to the Borrower and the
Borrower may borrow, repay, and reborrow from time to time from the Closing
Date to the Maturity Date, upon notice by the Borrower to the Agent given in
accordance with Section 2.6, its Commitment Percentage of the Revolving Credit
Loans as are requested by the Borrower, provided that the outstanding amount of
Revolving Credit Loans (including the Swing Line Loans), unpaid Reimbursement
Obligations, and the Maximum Drawing Amount shall not exceed a maximum
aggregate amount outstanding of $175,000,000 at any time, as such amount may be
reduced pursuant to Section 2.2 hereof (the "Total Commitment"). The Revolving
Credit Loans shall be made pro rata in accordance with each Bank's Commitment
Percentage. Each request for a Loan hereunder shall constitute a representation
and warranty by the Borrower that the conditions set forth in Section 9 and
Section 10, as the case may be, have been satisfied on the date of such
request.
SECTION 2.2. REDUCTION OF TOTAL COMMITMENT.
(a) The Borrower shall have the right at any time and from time to
time upon five (5) Business Days' prior written notice to the Agent to reduce
by $5,000,000 or an integral multiple of $1,000,000 in excess thereof, or
terminate entirely, the Total Commitment, whereupon the Commitments of the
Banks shall be reduced pro rata in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as the case may be,
terminated. The Agent will notify the Banks promptly after receiving any
notice of the Borrower delivered pursuant to this Section 2.2.
<PAGE> 17
-16-
(b) No reduction or termination of the Commitments once made may
be revoked; the portion of the Commitments reduced or terminated may not be
reinstated; and amounts in respect of such reduced or terminated portion may
not be reborrowed.
SECTION 2.3. THE REVOLVING CREDIT NOTES.
The Revolving Credit Loans shall be evidenced by separate promissory
notes of the Borrower in substantially the form of Exhibit A hereto (each a
"Revolving Credit Note"), dated as of the Closing Date and completed with
appropriate insertions. One Revolving Credit Note shall be payable to the order
of each Bank in a principal amount equal to such Bank's Commitment or, if less,
the outstanding amount of all Revolving Credit Loans made by such Bank, plus
interest accrued thereon, as set forth below. The Borrower irrevocably
authorizes each Bank to make or cause to be made, in connection with a Drawdown
Date of any Loan or at the time of receipt of any payment of principal on such
Bank's Revolving Credit Note, an appropriate notation on such Bank's records
reflecting the making of such Loan or the receipt of such payment (as the case
may be). The outstanding amount of the Loans set forth on such Bank's record
shall be prima facie evidence of the principal amount thereof owing and unpaid
to such Bank, but the failure to record, or any error in so recording, any such
amount shall not limit or otherwise affect the obligation of the Borrower
hereunder or under any Revolving Credit Note to make payments of principal of
or interest on any Revolving Credit Note when due.
SECTION 2.4. INTEREST ON LOANS.
The outstanding principal amount of the Revolving Credit Loans shall
bear interest at the rate per annum equal to (a) the Base Rate plus the
Applicable Base Rate Margin on Base Rate Loans, (b) the Eurodollar Rate plus
the Applicable Eurodollar Margin on Eurodollar Loans, or (c) the rate mutually
agreed between the Borrower and the Agent on Swing Line Loans. Interest shall
be payable (i) quarterly in arrears on the first Business Day of each calendar
quarter, commencing January 2, 1998, on Base Rate Loans, (ii) on the last day
of the applicable Interest Period, and if such Interest Period is longer than
three (3) months, also on the day which is three (3) months after the
commencement of such Interest Period, on Eurodollar Loans, (iii) monthly in
arrears on the first Business Day of the next succeeding month on Swing Line
Loans, and (iv) on the Maturity Date for all Loans.
SECTION 2.5. ELECTION OF EURODOLLAR RATE; NOTICE OF ELECTION; INTEREST
PERIODS; MINIMUM AMOUNTS.
(a) At the Borrower's option, so long as
no Default or Event of Default has occurred and is then continuing, the
Borrower may (i) elect to convert any Revolving Credit Loan which is a Base
Rate Loan or a portion thereof to a Eurodollar Loan, (ii) elect to convert
outstanding Swing Line Loans in an aggregate amount of $5,000,000 to a
Eurodollar Loan, (iii) at the time of any Loan and Letter
<PAGE> 18
-17-
of Credit Request, specify that a requested Revolving Credit Loan shall be a
Eurodollar Loan, or (iv) upon expiration of the applicable Interest Period,
elect to maintain an existing Eurodollar Loan as such, provided that the
Borrower give notice to the Agent pursuant to Section 2.5(b) hereof. Upon
determining any Eurodollar Rate, the Agent shall forthwith provide notice
thereof to the Borrower and the Banks, and each such notice to the Borrower and
the Banks shall be considered prima facie correct and binding, absent manifest
error.
(b) Three (3) Eurodollar Business Days prior to the making of any
Eurodollar Loan or the conversion of any Base Rate Loan or Swing Line Loan to a
Eurodollar Loan, or, in the case of an outstanding Eurodollar Loan, the
expiration date of the applicable Interest Period, the Borrower shall give
telephonic notice (confirmed by telecopy on the same Eurodollar Business Day)
to the Agent not later than 11:00 a.m. (Boston time) of its election pursuant
to Section 2.5(a). Each such notice delivered to the Agent shall specify the
aggregate principal amount of the Loans to be borrowed or maintained as or
converted to Eurodollar Loans and the requested duration of the Interest Period
that will be applicable to such Eurodollar Loan, and shall be irrevocable and
binding upon the Borrower. If the Borrower shall fail to give the Agent notice
of its election hereunder together with all of the other information required
by this Section 2.5(b) with respect to any Loan, such Loan shall be deemed a
Base Rate Loan. In the event that the Borrower fails to provide any such notice
with respect to the continuation of any Eurodollar Loan as such, then such
Eurodollar Loan shall be automatically converted to a Base Rate Loan at the end
of the then expiring Interest Period relating thereto.
(c) Notwithstanding anything herein to the contrary, the Borrower may
not specify an Interest Period that would extend beyond the Maturity Date.
(d) All Loans shall be in a minimum amount of $5,000,000 or greater
integral multiple of $500,000 above such amount. In no event shall the Borrower
have more than six (6) different maturities of Eurodollar Loans outstanding at
any time.
SECTION 2.6. REQUESTS FOR LOANS.
The Borrower shall give to the Agent written notice in the
form of Exhibit B hereto (or telephonic notice confirmed by telecopy on the
same Business Day in the form of Exhibit B hereto) of each Loan requested
hereunder (a "Loan and Letter of Credit Request") not later than (a) 11:00 a.m.
Boston time one (1) Business Day prior to the proposed Drawdown Date of any
Revolving Credit Loan which is a Base Rate Loan, (b) 11:00 a.m. Boston time
three (3) Eurodollar Business Days prior to the proposed Drawdown Date of any
Eurodollar Loan, or (c) 1:00 p.m. Boston time on the proposed date of funding
of any Swing Line Loan. Each such notice shall be given by the Borrower and
shall specify the principal amount of the Loan requested and shall include a
current Loan and Letter of Credit Request reflecting the Maximum Drawing
Amount. Each Loan and
<PAGE> 19
-18-
Letter of Credit Request shall be irrevocable and binding on the Borrower and
shall obligate the Borrower to accept the Loan requested from the Banks or BKB,
as the case may be, on the proposed Drawdown Date or proposed date of funding
of a Swing Line Loan. Each of the representations and warranties made by or on
behalf of the Borrower to the Banks or the Agent in this Credit Agreement or
any other Loan Document shall be true and correct in all material respects when
made and shall, for all purposes of this Credit Agreement, be deemed to be
repeated on and as of the date of the submission of any Loan and Letter of
Credit Request and on and as of the Drawdown Date of such Revolving Credit
Loan, or the making of a Swing Line Loan, or the date of issuance of such
Letter of Credit (except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, or to the extent that such
representations and warranties expressly relate solely to an earlier date). The
Agent shall promptly notify each Bank of each Loan and Letter of Credit Request
(other than requests for Swing Line Loans only) received by the Agent.
SECTION 2.7. FUNDS FOR REVOLVING CREDIT LOANS.
(a) Not later than 1:00 p.m. (Boston time) on the proposed
Drawdown Date of any Revolving Credit Loan, each of the Banks will make
available to the Agent, at the Agent's Head Office, in immediately available
funds, the amount of such Bank's Commitment Percentage of the amount of the
requested Revolving Credit Loans. Upon receipt from each Bank of such amount,
and upon receipt of the documents required by Sections 9 and 10 and the
satisfaction of the other conditions set forth therein, to the extent
applicable, the Agent will make available to the Borrower in immediately
available funds the aggregate amount of such Revolving Credit Loans made
available to the Agent by the Banks. The failure or refusal of any Bank to make
available to the Agent at the aforesaid time and place on any Drawdown Date the
amount of its Commitment Percentage of the requested Revolving Credit Loans
shall not relieve any other Bank from its several obligation hereunder to make
available to the Agent the amount of such other Bank's Commitment Percentage of
any requested Revolving Credit Loans.
(b) The Agent may, unless notified to the contrary by any Bank
prior to a Drawdown Date, assume that such Bank has made available to the Agent
on such Drawdown Date the amount of such Bank's Commitment Percentage of the
Revolving Credit Loans to be made on such Drawdown Date, and the Agent may (but
it shall not be required to), in reliance upon such assumption, make available
to the Borrower a corresponding amount. If any Bank makes available to the
Agent such amount on a date after such Drawdown Date, such Bank shall pay to
the Agent on demand an amount equal to the product of (i) the average computed
for the period referred to in clause (iii) below, of the weighted average
interest rate paid by the Agent for federal funds acquired by the Agent during
each day included in such
<PAGE> 20
-19-
period, times (ii) the amount of such Bank's Commitment Percentage of such
Revolving Credit Loans, times (iii) a fraction, the numerator of which is the
number of days that elapse from and including such Drawdown Date to the date on
which the amount of such Bank's Commitment Percentage of such Revolving Credit
Loans shall become immediately available to the Agent, and the denominator of
which is 365. A statement of the Agent submitted to such Bank with respect to
any amounts owing under this paragraph shall be prima facie evidence, absent
manifest error, of the amount due and owing to the Agent by such Bank. If the
amount of such Bank's Commitment Percentage of such Revolving Credit Loans is
not made available to the Agent by such Bank within three (3) Business Days
following such Drawdown Date, the Agent shall be entitled to recover such
amount from the Borrower on demand, with interest thereon at the rate per annum
applicable to the Revolving Credit Loans made on such Drawdown Date.
SECTION 2.8. SWING LINE LOANS; SETTLEMENTS.
(a) Solely for ease of administration of the Revolving Credit
Loans, BKB may, upon receipt of a Loan and Letter of Credit Request no later
than 1:00 p.m. (Boston time) on the proposed date of funding, but shall not be
required to, fund Base Rate Loans made in accordance with the provisions of
this Credit Agreement ("Swing Line Loans") for periods not to exceed seven (7)
days in any one case, bearing interest as set forth in Section 2.4. The Swing
Line Loans shall be evidenced by a promissory note of the Borrower in
substantially the form of Exhibit C (the "Swing Line Note") and shall each be
in a minimum amount of $100,000 or greater, provided that the outstanding
amount of Swing Line Loans advanced by BKB hereunder shall not exceed
$5,000,000 at any time. Each Bank shall remain severally and unconditionally
liable to fund its pro rata share (based upon each Bank's Commitment
Percentage) of such Swing Line Loans on each Settlement Date and, in the event
BKB chooses not to fund all Base Rate Loans requested on any date, to fund its
Commitment Percentage of the Base Rate Loans requested, subject to satisfaction
of the provisions hereof relating to the making of Base Rate Loans. Prior to
each Settlement, all payments or repayments of the principal of, and interest
on, Swing Line Loans shall be credited to the account of BKB.
(b) The Banks shall effect Settlements on (i) the Business Day
immediately following any day which BKB gives written notice to the Agent to
effect a Settlement, (ii) the Business Day immediately following the Agent's
becoming aware of the existence of any Default or Event of Default, (iii) the
Maturity Date, (iv) the Business Day immediately following any day on which the
outstanding amount of Swing Line Loans advanced by BKB exceeds $5,000,000, and
(v) in any event, the seventh day on which any Swing Line Loan remains
outstanding (each such date, a "Settlement Date"). One (1) Business Day prior
to each such Settlement Date, the Agent shall give telephonic notice to the
Banks of (A) the respective outstanding amount of Revolving Credit Loans made
by each Bank as at the close of
<PAGE> 21
-20-
business on the prior day, (B) the amount that any Bank, as applicable (a
"Settling Bank"), shall pay to effect a Settlement (a "Settlement Amount") and
(C) the portion (if any) of the aggregate Settlement Amount to be paid to each
Bank. A statement of the Agent submitted to the Banks with respect to any
amounts owing hereunder shall be prima facie evidence of the amount due and
owing. Each Settling Bank shall, not later than 1:00 p.m. (Boston time) on each
Settlement Date, effect a wire transfer of immediately available funds to the
Agent at the Agent's Head Office in the amount of such Bank's Settlement
Amount. The Agent shall, as promptly as practicable during normal business
hours on each Settlement Date, effect a wire transfer of immediately available
funds to each Bank of the Settlement Amount to be paid to such Bank. All funds
advanced by any Bank as a Settling Bank pursuant to this Section 2.8 shall for
all purposes be treated as a Base Rate Advance made by such Settling Bank to
the Borrower, and all funds received by any Bank pursuant to this Section 2.8
shall for all purposes be treated as repayment of amounts owed by the Borrower
with respect to Base Rate Loans made by such Bank.
(c) The Agent may (unless notified to the contrary by any Settling
Bank by 12:00 noon (Boston time) one (1) Business Day prior to the Settlement
Date) assume that each Settling Bank has made available (or will make available
by the time specified in Section 2.8(b)) to the Agent its Settlement Amount,
and the Agent may (but shall not be required to), in reliance upon such
assumption, make available to each applicable Bank its share (if any) of the
aggregate Settlement Amount. If the Settlement Amount of such Settling Bank is
made available to the Agent by such Settling Bank on a date after such
Settlement Date, such Settling Bank shall pay the Agent on demand an amount
equal to the product of (i) the average, computed for the period referred to in
clause (iii) below, of the weighted average annual interest rate paid by the
Agent for federal funds acquired by the Agent during each day included in such
period times (ii) such Settlement Amount times (iii) a fraction, the numerator
of which is the number of days that elapse from and including such Settlement
Date to but not including the date on which such Settlement Amount shall become
immediately available to the Agent, and the denominator of which is 365. Upon
payment of such amount such Settling Bank shall be deemed to have delivered its
Settlement Amount on the Settlement Date and shall become entitled to interest
payable by the Borrower with respect to such Settling Bank's Settlement Amount
as if such share were delivered on the Settlement Date. If such Settlement
Amount is not in fact made available to the Agent by such Settling Bank within
three (3) Business Days of such Settlement Date, the Agent shall be entitled to
recover such amount from the Borrower, with interest thereon at the Base Rate.
(d) After any Settlement Date, any payment by the Borrower of
Swing Line Loans hereunder shall be allocated among the Banks, in amounts
determined so as to provide that after such application and the related
Settlement, the outstanding amount of Revolving Credit Loans of each Bank
equals, as nearly as practicable,
<PAGE> 22
-21-
such Bank's Commitment Percentage of the aggregate amount of Revolving Credit
Loans.
SECTION 2.9. MATURITY OF THE LOANS.
The Loans shall be due and payable on the Maturity Date. The Borrower
promises to pay on the Maturity Date all Loans outstanding on such date,
together with any and all accrued and unpaid interest thereon.
SECTION 2.10. MANDATORY REPAYMENTS OF THE LOANS.
If at any time the outstanding amount of the Loans plus the Maximum
Drawing Amount plus unpaid Reimbursement Obligations exceeds the Total
Commitment, whether by reduction of the Total Commitment or otherwise, then the
Borrower shall immediately pay the amount of such excess to the Agent for
application to the Loans, or if no Loans shall be outstanding, to be held by
the Agent as collateral security for the Reimbursement Obligations, provided,
however, that if the amount of cash collateral held by the Agent pursuant to
this Section 2.10 exceeds the amount of the Obligations, the Agent shall return
such excess to the Borrower.
SECTION 2.11. OPTIONAL PREPAYMENTS OR REPAYMENTS OF REVOLVING CREDIT
LOANS.
THE Borrower shall have the right, at its election, to repay or prepay
the outstanding amount of the Revolving Credit Loans, as a whole or in part, at
any time without penalty or premium. The Borrower shall give the Agent, no
later than 11:00 a.m. (Boston time) on the Business Day of such proposed
prepayment or repayment, written notice (or telephonic notice confirmed in
writing) of any proposed prepayment or repayment pursuant to this Section 2.11,
specifying the proposed date of prepayment or repayment of Revolving Credit
Loans and the principal amount to be paid; provided that the Borrower may not
make any prepayment of any Eurodollar Loan on a date other than the last day of
the applicable Interest Period.
SECTION 3. LETTERS OF CREDIT.
SECTION 3.1. LETTER OF CREDIT COMMITMENTS.
(a) Subject to the terms and conditions hereof and the
execution and receipt of a Loan and Letter of Credit Request reflecting the
Maximum Drawing Amount of all Letters of Credit (including the requested Letter
of Credit) and a Letter of Credit Application, the Agent, on behalf of the
Banks and in reliance upon the agreement of the Banks set forth in Section
3.1(b) and upon the representations and warranties of the Borrower contained
herein, agrees to issue standby letters of credit, in such form as may be
requested from time to time by the Borrower and agreed to by the Agent;
provided, however, that, after giving effect to such request, the Maximum
Drawing Amount plus unpaid Reimbursement Obligations shall not exceed the
lesser of (i) $15,000,000 or (ii) the Total Commitment minus the aggregate
outstanding amount of the Loans. No Letter of Credit shall have an expiration
date later than the
<PAGE> 23
-22-
earlier of (i) one (1) year after the date of issuance of the Letter of Credit
(which may incorporate automatic renewals for periods of up to one (1) year,
provided that the Agent may, upon 30 days' notice to the beneficiary, cancel
such Letter of Credit which has been renewed beyond its initial one (1) year
term), or (ii) thirty (30) days prior to the Maturity Date.
(b) Each Bank severally agrees that it shall be
absolutely liable, without regard to the occurrence of any Default or Event of
Default or any other condition precedent whatsoever, to the extent of such
Bank's Commitment Percentage thereof, to reimburse the Agent on demand for the
amount of each draft paid by the Agent under each Letter of Credit issued in
accordance with the terms hereof to the extent that such amount is not
reimbursed by the Borrower pursuant to Section 3.2 (such agreement for a Bank
being called herein the "Letter of Credit Participation" of such Bank).
(c) Each such payment made by a Bank shall be treated as
the purchase by such Bank of a participating interest in the Borrower's
Reimbursement Obligation under Section 3.2 in an amount equal to such payment.
Each Bank shall share in accordance with its participating interest in any
interest which accrues pursuant to Section 3.2.
SECTION 3.2. REIMBURSEMENT OBLIGATION OF THE BORROWER.
In order to induce the Agent to issue, extend and renew each Letter of
Credit and the Banks to participate therein, the Borrower hereby agrees to
reimburse or pay to the Agent with respect to each Letter of Credit issued,
extended or renewed by the Agent hereunder as follows:
(a) on each date that any draft presented under any
Letter of Credit is honored by the Agent or the Agent otherwise makes payment
with respect thereto, (i) the amount paid by the Agent under or with respect to
such Letter of Credit, and (ii) the amount of any taxes, fees, charges or other
costs and expenses whatsoever incurred by the Agent or any Bank in connection
with any payment made by the Agent or any Bank under, or with respect to, such
Letter of Credit; provided however, if the Borrower does not reimburse the
Issuing Bank on the Drawdown Date, such amount shall, provided that no Event of
Default under Section 12(g) or 12(h) has occurred, become automatically a
Revolving Credit Loan which is a Base Rate Loan advanced hereunder in an amount
equal to such sum; and
(b) upon the Maturity Date, or the termination of the
Total Commitment, or the acceleration of the Reimbursement Obligations in
accordance with Section 12, an amount equal to the Maximum Drawing Amount,
which amount shall be held by the Agent for the benefit of the Banks and the
Agent as cash collateral for all Reimbursement Obligations.
<PAGE> 24
-23-
SECTION 3.3. LETTER OF CREDIT PAYMENTS.
If any draft shall be presented or other demand for payment shall be
made under any Letter of Credit, the Agent shall notify the Borrower of the
date and amount of the draft presented or demand for payment and of the date
and time when it expects to pay such draft or honor such demand for payment. On
the date that such draft is paid or other payment is made by the Agent, the
Agent shall promptly notify the Banks of the amount of any unpaid Reimbursement
Obligation. No later than 3:00 p.m. (Boston time) on the Business Day next
following the receipt of such notice, each Bank shall make available to the
Agent, at the Agent's Head Office, in immediately available funds, such Bank's
Commitment Percentage of such Reimbursement Obligation, together with an amount
equal to the product of (a) the weighted average, computed for the period
referred to in clause (c) below, of the interest rate paid by the Agent for
federal funds acquired by the Agent during each day included in such period,
times (b) the amount equal to such Bank's Commitment Percentage of such unpaid
Reimbursement Obligation, times (c) a fraction, the numerator of which is the
number of days that have elapsed from and including the date the Agent paid the
draft presented for honor or otherwise made payment until the date on which
such Bank's Commitment Percentage of such unpaid Reimbursement Obligation shall
become immediately available to the Agent, and the denominator of which is 365.
The responsibility of the Agent to the Borrower and the Banks shall be only to
determine that the documents (including each draft) delivered under each Letter
of Credit in connection with such presentment shall be in conformity in all
material respects with such Letter of Credit.
SECTION 3.4. OBLIGATIONS ABSOLUTE.
The Borrower's obligations under this Section 3 shall be absolute and
unconditional under any and all circumstances and irrespective of the
occurrence of any Default or Event of Default or any condition precedent
whatsoever or any setoff, counterclaim or defense to payment which the Borrower
may have or have had against the Agent, any Bank or any beneficiary of a Letter
of Credit. Subject to the obligations of the Banks pursuant to Article V of the
Uniform Commercial Code and the obligations of the Agent pursuant to the last
sentence of Section 3.3, the Borrower further agrees with the Agent and the
Banks that the Agent and the Banks shall not be responsible for, and the
Borrower's Reimbursement Obligations under Section 3.2 shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among
the Borrower, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower against the beneficiary of
any Letter of Credit or any such transferee. The Agent and the Banks shall not
be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit. The Borrower agrees that any action taken
or omitted by the Agent or any Bank under or in connection with each Letter of
Credit and the
<PAGE> 25
-24-
related drafts and documents, if done in good faith, shall be binding upon the
Borrower and shall not result in any liability on the part of the Agent or any
Bank to the Borrower.
SECTION 3.5. RELIANCE BY AGENT.
To the extent not inconsistent with Section 3.4, the Agent shall be
entitled to rely, and shall be fully protected in relying upon, any Letter of
Credit, draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel, independent accountants or other experts selected
by the Agent.
SECTION 4. FEES, PAYMENTS, AND COMPUTATIONS.
SECTION 4.1. FEES.
(a) COMMITMENT FEE. The Borrower agrees to pay to the
Agent, for the respective account of each Bank, a fee (the "Commitment Fee")
equal to the Applicable Commitment Rate multiplied by the average daily amount
of the unused portion of such Bank's Commitment during each calendar quarter or
portion thereof from the Closing Date to the Maturity Date (or to the date of
termination in full of the Total Commitment, if earlier). The Commitment Fee
shall be payable quarterly in arrears within five (5) Business Days after the
Borrower's receipt from the Agent of a written computation of such fee for the
immediately preceding calendar quarter (which the Agent shall provide to the
Borrower on the first Business Day following the end of the applicable calendar
quarter), with a final payment on the Maturity Date.
(b) LETTER OF CREDIT FEES. The Borrower shall pay a fee
(the "Letter of Credit Fee") equal to (i) the Applicable L/C Margin multiplied
by the Maximum Drawing Amount of each Financial Letter of Credit, plus (ii) 50%
of the Applicable L/C Margin multiplied by the Maximum Drawing Amount of
non-Financial Letters of Credit, provided, however, that the Letter of Credit
Fee with respect to non-Financial Letters of Credit shall not be less than
0.75%. Such Letter of Credit Fee shall be payable to the Agent for the account
of the Banks, to be shared pro rata by the Banks in accordance with their
respective Commitment Percentages. The Borrower shall also pay a fee (the
"Issuance Fee") to the Issuing Bank, for its own account, equal to 0.125% per
annum on the Maximum Drawing Amount of all Letters of Credit issued by such
Bank, plus its customary administrative charges. The Letter of Credit Fee and
the Issuance Fee shall be payable for the number of days each Letter of Credit
is outstanding, and shall be payable quarterly in arrears on the first day of
each calendar quarter for the immediately preceding calendar quarter, and on
the Maturity Date.
<PAGE> 26
-25-
(c) CLOSING FEES. The Borrower shall pay at closing any
fees owing to any of the Banks, as previously agreed between the Borrower and
the Agent.
SECTION 4.2. PAYMENTS.
(a) All payments of principal, interest, Reimbursement
Obligations, fees and any other amounts due hereunder or under any of the other
Loan Documents shall be made to the Agent, for the respective accounts of the
Banks and the Agent, to be received at the Agent's Head Office in immediately
available funds by 12:00 p.m. (Boston time) on any due date.
(b) All payments by the Borrower hereunder and under any
of the other Loan Documents shall be made without setoff or counterclaim and
free and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein
unless the Borrower is compelled by law to make such deduction or withholding.
If any such obligation is imposed upon the Borrower with respect to any amount
payable by it hereunder or under any of the other Loan Documents, the Borrower
will pay to the Agent, for the account of the Banks or (as the case may be) the
Agent, on the date on which such amount is due and payable hereunder or under
such other Loan Document, such additional amount in Dollars as shall be
necessary to enable the Banks or the Agent to receive the same net amount which
the Banks or the Agent would have received on such due date had no such
obligation been imposed upon the Borrower. In the event that the Borrower is
required to make such deduction or withholding as a result of the fact that a
Bank is organized outside of the United States, such Bank shall use its
reasonable best efforts to transfer its Revolving Credit Loans to an affiliate
organized within the United States if such transfer would have no adverse
effect on such Bank or the Revolving Credit Loans. The Borrower will deliver
promptly to the Bank certificates or other valid vouchers for all taxes or
other charges deducted from or paid with respect to payments made by the
Borrower hereunder or under such other Loan Document.
(c) Whenever a payment hereunder or under any of the
other Loan Documents becomes due on a day that is not a Business Day, the due
date for such payment shall be extended to the next succeeding Business Day,
and interest shall accrue during such extension; provided that any Interest
Period for any Eurodollar Loan which ends on a day that is not a Eurodollar
Business Day shall end on the next succeeding Eurodollar Business Day unless
the result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on the
immediately preceding Eurodollar Business Day.
<PAGE> 27
-26-
SECTION 4.3. COMPUTATIONS.
ALL computations of interest on Base Rate Loans and of Commitment
Fees, Letter of Credit Fees or other fees shall, unless otherwise expressly
provided herein, be based on a 365-day year (or 366-day year, as applicable)
and paid for the actual number of days elapsed. All computations of interest on
Eurodollar Loans shall, unless otherwise expressly provided herein, be based on
a 360-day year and paid for the actual number of days elapsed.
SECTION 4.4. CAPITAL ADEQUACY.
If any present or future law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) or the
interpretation thereof by a court or governmental authority with appropriate
jurisdiction affects the amount of capital required or expected to be
maintained by any Bank or the Agent or any corporation controlling such Bank or
the Agent, and such Bank or the Agent determines that the amount of capital
required to be maintained by it is increased by or based upon the existence of
such Bank's or the Agent's Loans, Letter of Credit Participations or Letters of
Credit, or commitment with respect thereto, then such Bank or the Agent may
notify the Borrower of such fact. To the extent that the costs of such
increased capital requirements are not reflected in the Base Rate (if relating
to Base Rate Loans), the Borrower and such Bank or (as the case may be) the
Agent shall thereafter attempt to negotiate in good faith, within thirty (30)
days of the day on which the Borrower receives such notice, an adjustment
payable hereunder that will adequately compensate such Bank or the Agent in
light of these circumstances. If the Borrower and such Bank or the Agent are
unable to agree to such adjustment within thirty (30) days of the date on which
the Borrower receives such notice, then commencing on the date of such notice
(but not earlier than the effective date of any such increased capital
requirement), the fees payable hereunder shall increase by an amount that will,
in such Bank's or the Agent's reasonable determination, provide adequate
compensation, provided that such Bank or the Agent (as the case may be)
notifies the Borrower of such increased capital requirements no later than 90
days after such Bank's or the Agent's knowledge thereof. Each Bank and the
Agent shall allocate such cost increases among its customers in good faith and
on an equitable basis.
SECTION 4.5. CERTIFICATE.
A certificate setting forth any additional amounts payable pursuant to Section
4.4 and a reasonable explanation of such amounts which are due, submitted by
any Bank or the Agent to the Borrower, shall be conclusive, absent manifest
error, that such amounts are due and owing.
SECTION 4.6. INTEREST ON OVERDUE AMOUNTS.
Overdue principal and (to the extent permitted by applicable law)
interest on the Loans and all other overdue amounts payable hereunder or under
any of the other Loan Documents shall bear interest compounded monthly and
payable on demand at a rate per annum equal to the Base Rate plus the
Applicable Base Rate Margin plus two (2) percentage points (2.00%) until such
amount shall be paid in full (after, as well as before, judgment).
<PAGE> 28
-27-
SECTION 4.7. INTEREST LIMITATION.
Notwithstanding any other term of this Credit Agreement or any Note or
any other document referred to herein or therein, the maximum amount of
interest which may be charged to or collected from any person liable hereunder
or under any Note by any Bank shall be absolutely limited to, and shall in no
event exceed, the maximum amount of interest which could lawfully be charged or
collected under applicable law (including, to the extent applicable, the
provisions of Section 5197 of the Revised Statutes of the United States of
America, as amended, 12 U.S.C. Section 85, as amended), so that the maximum of
all amounts constituting interest under applicable law, howsoever computed,
shall never exceed as to any Person liable therefor such lawful maximum, and
any term of this Credit Agreement, the Notes, the Letter of Credit
Applications, or any other document referred to herein or therein which could
be construed as providing for interest in excess of such lawful maximum shall
be and hereby is made expressly subject to and modified by the provisions of
this paragraph.
SECTION 4.8. EURODOLLAR INDEMNITY.
The Borrower agrees to indemnify the Banks and the Agent and to hold
them harmless from and against any loss, cost or expenses (including loss of
anticipated profits) that the Banks and the Agent may sustain or incur as a
consequence of (a) default by the Borrower in payment of the principal amount
of or any interest on any Eurodollar Loans as and when due and payable,
including any such loss or expense arising from interest or fees payable by any
Bank or the Agent to lenders of funds obtained by it in order to maintain its
Eurodollar Loans, (b) a prepayment of principal on any Eurodollar Loan,
including prepayments which are the result of acceleration by the Banks, or (c)
default by the Borrower in making a borrowing or conversion after the Borrower
has given (or is deemed to have given) notice pursuant to Section 2.5 or
Section 2.6, the making of any payment of a Eurodollar Loan or the making of
any conversion of any such Eurodollar Loan to a Base Rate Loan on a day that is
not the last day of the applicable Interest Period with respect thereto,
including interest or fees payable by any Bank to lenders of funds obtained by
it in order to maintain any such Loans.
SECTION 4.9. ILLEGALITY; INABILITY TO DETERMINE EURODOLLAR RATE.
Notwithstanding any other provision of this Credit Agreement, if (a)
the introduction of, any change in, or any change in the interpretation of, any
law or regulation applicable to the Agent or any Bank shall make it unlawful,
or any central bank or other governmental authority having jurisdiction thereof
shall assert that it is unlawful, for any Bank or the Agent to perform its
obligations in respect of any Eurodollar Loans, or (b) if any Bank or the Agent
shall reasonably determine with respect to Eurodollar Loans that (i) by reason
of circumstances affecting any Eurodollar interbank market, adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate which
would otherwise be applicable during any Interest Period, or (ii) deposits of
Dollars in the relevant amount for the relevant Interest Period are not
available to such Bank or the Agent in any Eurodollar interbank market, or
(iii) the Eurodollar Rate does not or will not accurately reflect the cost to
such Bank or the Agent of obtaining or
<PAGE> 29
-28-
maintaining the applicable Eurodollar Loans during any Interest Period, then
such Bank or the Agent shall promptly give telephonic, telex or cable notice of
such determination to the Borrower (which notice shall be conclusive and
binding upon the Borrower). Upon such notification by such Bank or the Agent,
the obligation of such Bank or the Agent to make Eurodollar Loans shall be
suspended until such Bank or the Agent determines that such circumstances no
longer exist, and the outstanding Eurodollar Loans shall continue to bear
interest at the applicable rate based on the Eurodollar Rate until the end of
the applicable Interest Period, and thereafter shall be deemed converted to
Base Rate Loans in equal principal amounts.
SECTION 4.10. ADDITIONAL COSTS, ETC.
If any present or future applicable law, which expression, as used
herein, includes statutes, rules and regulations thereunder and interpretations
thereof by any competent court or by any governmental or other regulatory body
or official charged with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Bank by any central bank or
other fiscal, monetary or other authority (whether or not having the force of
law), shall impose on any Bank any tax, levy, impost, duty, charge fees,
deduction or withholdings of any nature or requirements with respect to this
Credit Agreement, the other Loan Documents, the Loans, such Bank's Commitment,
the Letters of Credit or any class of loans or commitments or letters of credit
of which any of the Loans, the Commitments or the Letters of Credit forms a
part, and the result of any of the foregoing is:
(i) to increase the cost to such Bank of making, funding,
issuing, renewing, extending or maintaining the Loans, such Bank's Commitment,
or the Letters of Credit; or
(ii) to reduce the amount of principal, interest or other
amount payable to such Bank hereunder on account of such Bank's Commitment, the
Loans, or drawings under the Letters of Credit, or
(iii) to require such Bank to make any payment or to forego
any interest or other sum payable hereunder, the amount of which payment or
foregone interest or other sum is calculated by reference to the gross amount
of any sum receivable or deemed received by such Bank from the Borrower
hereunder,
then, and in each such case, the Borrower will, upon demand made by such Bank
at any time and from time to time and as often as the occasion therefor may
arise, pay to such Bank such additional amounts as will be sufficient to
compensate such Bank for such additional cost, reduction, payment or foregone
interest or other sum (after such Bank shall have allocated the same fairly and
equitably among all customers of any class generally affected thereby),
provided that such Bank notifies the Borrower of such increased costs no later
than 90 days after such Bank's knowledge thereof.
<PAGE> 30
-29-
SECTION 4.11. REPLACEMENT OF BANKS.
If any Bank (an "Affected Bank") (i) makes demand upon the Borrower
for (or if the Borrower is otherwise required to pay) amounts pursuant to
Sections 4.4 or 4.10 or (ii) is unable to make or maintain Eurodollar Loans as
a result of a condition described in Section 4.9, the Borrower may, within 90
days of receipt of such demand or notice (or the occurrence of such other event
causing the Borrower to be required to pay such compensation or causing Section
4.9 to be applicable), by notice in writing to the Agent and such Affected Bank
(a "Replacement Notice") (A) request the Affected Bank to cooperate with the
Borrower in obtaining a replacement bank satisfactory to the Agent and the
Borrower (the "Replacement Bank"); (B) request the non-Affected Banks to
acquire and assume all of the Affected Bank's Loans and Commitment, as provided
herein, but none of such Banks shall be under an obligation to do so; or (C)
designate a Replacement Bank reasonably satisfactory to the Agent. If any
satisfactory Replacement Bank shall be obtained, and/or any of the non-Affected
Banks shall agree to acquire and assume all of the Affected Bank's Loans and
Commitment, then such Affected Bank shall, so long as no Event of Default shall
have occurred and be continuing, assign, in accordance with Section 17, all of
its Commitment, Loans, Notes and other rights and obligations under this
Agreement and all other Loan Documents to such Replacement Bank or non-Affected
Banks, as the case may be, in exchange for payment of the principal amount so
assigned and all interest and fees accrued on the amount so assigned, plus all
other Obligations then due and payable to the Affected Bank; provided, however,
that (i) such assignment shall be without recourse, representation or warranty
and shall be on terms and conditions reasonably satisfactory to such Affected
Bank and such Replacement Bank and/or non-Affected Banks, as the case may be,
and (ii) prior to any such assignment, the Borrower shall have paid to such
Affected Bank all amounts properly demanded and unreimbursed under Sections
4.4, 4.8, 4.9 and 4.10. Upon the effective date of such assignment, the
Borrower shall issue replacement Notes to such Replacement Bank and/or
non-Affected Banks, as the case may be, and such institution shall become a
"Bank" for all purposes under this Agreement and the other Loan Documents.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks that on and as of
the date of this Credit Agreement and each Drawdown Date (with any disclosure
on a schedule pursuant to this Section 5 applying to all relevant
representations and warranties, regardless of whether such schedule is
referenced in each relevant representation):
SECTION 5.1. CORPORATE AUTHORITY.
(a) INCORPORATION; GOOD STANDING. Each of the Borrower and its
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing or in current status under the laws of its respective state of
incorporation, (ii) has all requisite corporate power to own its property and
conduct its business as now conducted and as presently contemplated, and (iii)
is in good standing as a foreign
<PAGE> 31
-30-
corporation and is duly authorized to do business in each jurisdiction in which
its property or business as presently conducted or contemplated makes such
qualification necessary except where a failure to be so qualified would not
have a material adverse effect on the business, assets or financial condition
of the Borrower or such Subsidiary.
(b) AUTHORIZATION. The execution, delivery and performance of the
Loan Documents and the transactions contemplated hereby and thereby (i) are
within the corporate authority of the Borrower and the Guarantors, (ii) have
been duly authorized by all necessary corporate proceedings, (iii) do not
conflict with or result in any material breach or contravention of any
provision of law, statute, rule or regulation to which the Borrower or any
Guarantor is subject or any judgment, order, writ, injunction, license or
permit applicable to the Borrower or Guarantors so as to materially adversely
affect the assets, business or any activity of the Borrower or Guarantors, and
(iv) do not conflict with any provision of the corporate charter or bylaws of
the Borrower or Guarantors or any agreement or other instrument binding upon
them.
(c) ENFORCEABILITY. The execution, delivery and performance of the
Loan Documents will result in valid and legally binding obligations of the
Borrower and Guarantors enforceable against each in accordance with the
respective terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
SECTION 5.2. GOVERNMENTAL APPROVALS.
The execution, delivery and performance by the Borrower and Guarantors
of the Loan Documents and the transactions contemplated hereby and thereby do
not require any approval or consent of, or filing with, any governmental agency
or authority other than those already obtained.
SECTION 5.3. TITLE TO PROPERTIES; LEASES.
The Borrower and its Subsidiaries own all of the assets reflected in
the consolidated balance sheets as at the Balance Sheet Date or acquired since
that date (except property and assets sold or otherwise disposed of in the
ordinary course of business since that date), subject to no mortgages,
capitalized leases, conditional sales agreements, title retention agreements,
liens or other encumbrances except Permitted Liens.
SECTION 5.4. FINANCIAL STATEMENTS; SOLVENCY.
(a) There has been furnished to the Banks (i) audited consolidated
financial statements of the Borrower and its Subsidiaries dated the Balance
Sheet Date, certified by Arthur Andersen LLP or other independent accounting
firm of
<PAGE> 32
-31-
national standing reasonably acceptable to the Banks (the "Accountants"), (ii)
unaudited consolidated financial statements of the Borrower and its
Subsidiaries dated the Company Balance Sheet Date, and (iii) forecasted
consolidated financial statements, taking into account the Astrotech Merger,
dated June 30, 1997. Said financial statements have been prepared in accordance
with GAAP (but, in the case of any such financial statements which are
unaudited, only to the extent that GAAP is applicable to interim unaudited
reports), fairly present in all material respects the financial condition of
the Borrower and its Subsidiaries, or (to the best knowledge of the Borrower
after due inquiry) Astrotech and its subsidiaries, as the case may be, on a
consolidated basis, as at the close of business on the date thereof and the
results of operations for the period then ended. There are no contingent
liabilities of Astrotech and its subsidiaries involving material amounts, known
to the officers of the Borrower, or of the Borrower and its Subsidiaries which
have not been disclosed in said balance sheets and the related notes thereto or
otherwise in writing to the Banks.
(b) The Borrower and its Subsidiaries on a consolidated basis
(both before and after giving effect to the transactions contemplated by this
Credit Agreement, including the Astrotech Merger) are and will be solvent
(i.e., they have assets having a fair value in excess of the amount required to
pay their probable liabilities on their existing debts as they become absolute
and matured) and have, and expect to have, the ability to pay their debts from
time to time incurred in connection therewith as such debts mature.
SECTION 5.5. NO MATERIAL CHANGES, ETC.
Since the Company Balance Sheet Date and, to the best knowledge of the
Borrower after due inquiry, since June 30, 1997, in the case of Astrotech and
its subsidiaries, there have occurred no material adverse changes in the
financial condition or businesses of the Borrower and its Subsidiaries, or
Astrotech and its subsidiaries, taken as a whole, as shown on or reflected in
the consolidated balance sheet of the Borrower and its Subsidiaries, or
Astrotech and its subsidiaries, as at the respective Balance Sheet Date or June
30, 1997, as applicable, or the consolidated statement of income for the fiscal
year then ended. Since the Company Balance Sheet Date, in the case of the
Borrower and its Subsidiaries and, to the best knowledge of the Borrower after
due inquiry, since June 30, 1997 in the case of Astrotech and its subsidiaries,
there have not been any Distributions (including Distributions made by
Astrotech) other than as permitted by Section 7.6 hereof.
SECTION 5.6. PERMITS, FRANCHISES, PATENTS, COPYRIGHTS, ETC.
The Borrower and its Subsidiaries possess all franchises, patents,
copyrights, trademarks, trade names, licenses and permits, and rights in
respect of the foregoing, adequate for the conduct of their businesses
substantially as now conducted without known conflict with any rights of
others.
<PAGE> 33
-32-
SECTION 5.7. LITIGATION.
(a) Except as shown on Schedules 5.7 and 5.16 hereto, there are no
actions, suits, proceedings or investigations of any kind pending or, to the
knowledge of the Borrower or any Subsidiary, threatened against the Borrower or
any Subsidiary before any court, tribunal or administrative agency or board
which, if adversely determined, might, either in any individual case or in the
aggregate, materially adversely affect the properties, assets, financial
condition or business of the Borrower and its Subsidiaries, taken as a whole,
or materially impair the right of the Borrower and its Subsidiaries, taken as a
whole, to carry on business substantially as now conducted, or result in any
substantial liability not adequately covered by insurance, or for which
adequate reserves are not maintained on the consolidated balance sheet or which
question the validity of any of the Loan Documents or any action taken or to be
taken pursuant hereto or thereto.
(b) Except as set forth in Schedules 5.7 and 5.16 hereto, there
are no actions, suits, proceedings or investigations of any kind pending or, to
the knowledge of the Borrower, threatened, before any court, tribunal or
administrative agency or board which contest the validity of the Astrotech
Merger.
SECTION 5.8. NO MATERIALLY ADVERSE CONTRACTS, ETC.
Neither the Borrower nor any Subsidiary is subject to any charter,
corporate or other legal restriction, or any judgment, decree, order, rule or
regulation which in the judgment of the Borrower's officers has or is expected
in the future to have a materially adverse effect on the business, assets or
financial condition of the Borrower and its Subsidiaries, taken as a whole.
Neither the Borrower nor any Subsidiary is a party to any contract or agreement
which in the judgment of the Borrower's officers has or is expected to have any
materially adverse effect on the business of the Borrower and its Subsidiaries,
taken as a whole, except as otherwise reflected in adequate reserves.
SECTION 5.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC.
Neither the Borrower nor any Subsidiary is violating any provision of
its charter documents or by-laws or any agreement or instrument by which any of
them may be subject or by which any of them or any of their properties may be
bound or any decree, order, judgment, or any statute, license, rule or
regulation, in a manner which could result in the imposition of substantial
penalties or materially and adversely affect the financial condition,
properties or business of the Borrower or any Subsidiary.
SECTION 5.10. TAX STATUS.
The Borrower and its Subsidiaries have made or filed all federal and
state income and all other tax returns, reports and declarations required by
any jurisdiction to which any of them is subject (unless and only to the extent
that the Borrower or such Subsidiary has set aside on its books provisions
reasonably
<PAGE> 34
-33-
adequate for the payment of all unpaid and unreported taxes); and have paid all
taxes and other governmental assessments and charges that are material in
amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith; and have set aside on
their books provisions reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the officers of the
Borrower know of no basis for any such claim.
SECTION 5.11. NO EVENT OF DEFAULT.
No Default or Event of Default has occurred and is continuing as of
the date of this Credit Agreement.
SECTION 5.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS.
Neither the Borrower nor any Subsidiary is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company," as such terms are defined in the Public Utility Holding Company Act
of 1935; nor is any of them a "registered investment company," or an
"affiliated company" or a "principal underwriter" of a "registered investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended.
SECTION 5.13. ABSENCE OF FINANCING STATEMENTS, ETC.
Other than Permitted Liens, there is (to the knowledge of the
Borrower) no financing statement, security agreement, chattel mortgage, real
estate mortgage or other document filed or recorded with any filing records,
registry, or other public office, which purports to cover, affect or give
notice of any present or possible future lien on, or security interest in, any
assets or property of the Borrower or any Subsidiary, or any rights relating
thereto.
SECTION 5.14. EMPLOYEE BENEFIT PLANS.
(a) Each Employee Benefit Plan and each Guaranteed Pension Plan
has been maintained and operated in compliance in all material respects with
the provisions of ERISA and, to the extent applicable, the Code, including but
not limited to the provisions thereunder respecting prohibited transactions and
the bonding of fiduciaries and other persons handling plan funds as required by
Section 412 of ERISA. The Borrower has heretofore delivered to the Agent the
most recently completed annual report, Form 5500, with all required
attachments, and actuarial statement required to be submitted under Section
103(d) of ERISA, with respect to each Guaranteed Pension Plan.
(b) No Employee Benefit Plan, which is an employee welfare benefit
plan within the meaning of Section 3(1) or Section 3(2)(B) of ERISA, provides
benefit coverage subsequent to termination of employment, except as required by
Title I, Part 6 of ERISA or the applicable state insurance laws. The Borrower
or a Subsidiary may terminate each such Plan at any time (or at any time
subsequent to the expiration of any applicable bargaining agreement) in the
discretion of the Borrower or such Subsidiary without liability to any Person
other than for claims arising prior to termination.
<PAGE> 35
-34-
(c) Each contribution required to be made to a Guaranteed Pension
Plan, whether required to be made to avoid the incurrence of an accumulated
funding deficiency, the notice or lien provisions of Section 302(f) of ERISA,
or otherwise, has been timely made. No waiver of an accumulated funding
deficiency or extension of amortization periods has been received with respect
to any Guaranteed Pension Plan, and neither the Borrower nor any Subsidiary nor
any ERISA Affiliate is obligated to or has posted security in connection with
an amendment to a Guaranteed Pension Plan pursuant to Section 307 of ERISA or
Section 401(a)(29) of the Code. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred by the
Borrower or any Subsidiary or any ERISA Affiliate with respect to any
Guaranteed Pension Plan and there has not been any ERISA Reportable Event
(other than an ERISA Reportable Event as to which the requirement of 30 days
notice has been waived), or any other event or condition which presents a
material risk of termination of any Guaranteed Pension Plan by the PBGC. Based
on the latest valuation of each Guaranteed Pension Plan (which in each case
occurred within twelve months of the date of this representation), and on the
actuarial methods and assumptions employed for that valuation, the aggregate
benefit liabilities of all such Guaranteed Pension Plans within the meaning of
Section 4001 of ERISA did not exceed the aggregate value of the assets of all
such Guaranteed Pension Plans, disregarding for this purpose the benefit
liabilities and assets of any Guaranteed Pension Plan with assets in excess of
benefit liabilities.
(d) Neither the Borrower nor any Subsidiary nor any ERISA
Affiliate has incurred any material liability (including secondary liability)
to any Multiemployer Plan as a result of a complete or partial withdrawal from
such Multiemployer Plan under Section 4201 of ERISA or as a result of a sale of
assets described in Section 4204 of ERISA. Neither the Borrower nor any
Subsidiary nor any ERISA Affiliate has been notified that any Multiemployer
Plan is in reorganization or insolvent under and within the meaning of Section
4241 or Section 4245 of ERISA or is at risk of entering reorganization or
becoming insolvent, or that any Multiemployer Plan intends to terminate or has
been terminated under Section 4041A of ERISA.
Section 5.15. Use of PROCEEDS.
SECTION 5.15.1. GENERAL.
The proceeds of the Loans shall be used solely as follows: (a)
to repay the existing Indebtedness of the Borrower under the BOA Credit
Agreement; (b) to finance the Astrotech Merger and other acquisitions permitted
pursuant to Section 7.4; and (c) for capital expenditures and working capital
purposes.
SECTION 5.15.2. REGULATIONS U AND X.
No portion of any Loan is to be used, and no portion of any
Letter of Credit is to be obtained, for the purpose of purchasing or carrying
any "margin security" or "margin stock" as such terms are used in
<PAGE> 36
-35-
Regulations U and X of the Board of Governors of the Federal Reserve System, 12
C.F.R. Parts 221 and 224.
SECTION 5.15.3. INELIGIBLE SECURITIES.
No portion of the proceeds of any Loans is to be used, and no
portion of any Letter of Credit is to be obtained, for the purpose of (a)
knowingly purchasing, or providing credit support for the purchase of,
Ineligible Securities from a Section 20 Subsidiary during any period in which
such Section 20 Subsidiary makes a market in such Ineligible Securities, (b)
knowingly purchasing, or providing credit support for the purchase of, during
the underwriting or placement period, any Ineligible Securities being
underwritten or privately placed by a Section 20 Subsidiary, or (c) making, or
providing credit support for the making of, payments of principal or interest
on Ineligible Securities underwritten or privately placed by a Section 20
Subsidiary and issued by or for the benefit of the Borrower or any Subsidiary
or other Affiliate of the Borrower.
SECTION 5.16. ENVIRONMENTAL COMPLIANCE.
The Borrower and its Subsidiaries have investigated the past and
present condition and usage of the Mortgaged Properties and the operations
conducted thereon and, based upon such diligent investigation, have determined
that, except as shown on Schedule 5.16:
(a) Neither the Borrower nor any Subsidiary, nor any operator of
their properties, is in violation, or alleged violation, of any judgment,
decree, order, law, permit, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under RCRA,
CERCLA, the Superfund Amendments and Reauthorization Act of 1986, the Federal
Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act,
or any state or local statute, regulation, ordinance, order or decree relating
to health, safety or the environment (the "Environmental Laws"), which
violation would have a material adverse effect on the business, assets or
financial condition of the Borrower and its Subsidiaries on a consolidated
basis.
(b) Neither the Borrower nor any Subsidiary has received notice
from any third party, including, without limitation: any federal, state or
local governmental authority, (i) that any of them has been identified by the
United States Environmental Protection Agency ("EPA") as a potentially
responsible party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 300 Appendix B; (ii) that any hazardous waste,
as defined by 42 U.S.C. Section 6903(5), any hazardous substances as defined by
42 U.S.C. Section 9601(14), any pollutant or contaminant as defined by 42
U.S.C. Section 9601(33) or any toxic substance, oil or hazardous materials or
other chemicals or substances regulated by any Environmental Laws ("Hazardous
Substances") which any of them has generated, transported or disposed of has
been found at any site at which a federal, state or local agency or other third
party has conducted or has ordered that the Borrower or a Subsidiary conduct a
remedial investigation, removal or other response action pursuant to any
Environmental Law;
<PAGE> 37
-36-
or (iii) that it is or shall be a named party to any claim, action, cause of
action, complaint, legal or administrative proceeding arising out of any third
party's incurrence of costs, expenses, losses or damages of any kind whatsoever
in connection with the release of Hazardous Substances.
(c) Except where it would not have a material adverse effect on
the value of the Real Property, (i) no portion of the Real Property has been
used for the handling, processing, storage or disposal of Hazardous Substances;
and no underground tank or other underground storage receptacle for Hazardous
Substances is located on such properties; (ii) in the course of any activities
conducted by the Borrower or its Subsidiaries, or operators of the Real
Property, no Hazardous Substances have been generated or are being used on such
properties; (iii) there have been no unpermitted Releases or threatened
Releases of Hazardous Substances on, upon, into or from the Real Property; (iv)
to the best of the Borrower's knowledge, there have been no Releases on, upon,
from or into any real property in the vicinity of the Real Property which,
through soil or groundwater contamination, may have come to be located on such
properties; and (v) in addition, when required under applicable Environmental
Laws, any Hazardous Substances that have been generated on the Real Property
have been transported offsite only by carriers having an identification number
issued by the EPA, treated or disposed of only by treatment or disposal
facilities maintaining valid permits as required under applicable Environmental
Laws, which transporters and facilities, to the best of the Borrower's
knowledge, have been and are operating in material compliance with such permits
and applicable Environmental Laws.
(d) None of the Real Property is or shall be subject to any
applicable environmental clean-up responsibility law or environmental
restrictive transfer law or regulation, by virtue of the transactions set forth
herein and contemplated hereby.
SECTION 5.17. PERFECTION OF SECURITY INTERESTS.
All filings, assignments, pledges and deposits of documents or
instruments have been made and all other actions have been taken that are
necessary under applicable law to establish and perfect the Agent's security
interest in the Collateral. The Collateral and the Agent's rights with respect
to the Collateral are not subject to any setoff, claims, withholdings or other
defenses.
SECTION 5.18. TRANSACTIONS WITH AFFILIATES.
Except as was disclosed in filings made by the Borrower and its
Subsidiaries or Astrotech and its subsidiaries under the Securities Exchange
Act of 1934 prior to the Closing Date, and except for arm's length transactions
pursuant to which the Borrower or any Subsidiary makes payments in the ordinary
course of business upon terms no less favorable than the Borrower or such
Subsidiary could obtain from third parties, none of the officers, directors, or
employees of the Borrower or any Subsidiary is presently a party to any
transaction with the Borrower or any Subsidiary (other than for services as
<PAGE> 38
-37-
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of the
Borrower or any Subsidiary, any corporation, partnership, trust or other entity
in which any officer, director, or any such employee has a substantial interest
or is an officer, director, trustee or partner.
SECTION 5.19. SUBSIDIARIES.
Schedule 2 sets forth a complete and accurate list of the Subsidiaries
(other than ITEQ Aviation, Inc.), identifying each as a U.S. Subsidiary or an
International Subsidiary, including the name of each Subsidiary, its
jurisdiction of incorporation, and the address of its chief executive offices,
together with the number of authorized and outstanding shares of each
Guarantor. Each Subsidiary listed on Schedule 2 is wholly owned by the Borrower
and each U.S. Subsidiary is a Guarantor hereunder, 100% of the stock and assets
of which have been pledged to the Agent for the benefit of the Banks pursuant
to the Security Documents. The Borrower has good and marketable title to all of
the shares it purports to own of the stock of each Subsidiary, free and clear
in each case of any lien. All such shares have been duly issued and are fully
paid and non-assessable.
SECTION 5.20. TRUE COPIES OF CHARTER AND OTHER DOCUMENTS.
The Borrower and each Guarantor has furnished the Agent copies, in
each case true and complete as of the Closing Date, of its (a) charter and
other incorporation documents and (b) by-laws, each including any amendments
thereto.
SECTION 5.21. DISCLOSURE.
Neither this Credit Agreement, nor any of the other Loan Documents, nor any
document or information furnished by the Borrower in connection therewith
contains any untrue statement of a material fact or omits to state a material
fact (known to the Borrower or any Subsidiary in the case of any document or
information not furnished by the Borrower or any Subsidiary) necessary in order
to make the statements herein or therein not misleading. There is no fact known
to the Borrower or any Subsidiary which materially adversely affects, or which
is reasonably likely in the future to materially adversely affect, the
business, assets, or financial condition of the Borrower or any Subsidiary,
exclusive of effects resulting from changes in general economic conditions,
legal standards or regulatory conditions.
SECTION 6. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or the Banks have any obligation to make Loans or the Issuing Bank
has any obligation to issue, extend, or renew any Letters of Credit hereunder:
SECTION 6.1. PUNCTUAL PAYMENT.
The Borrower will duly and punctually pay or cause to be paid the
principal and interest on the Loans, all Reimbursement
<PAGE> 39
-38-
Obligations, fees and other amounts provided for in this Credit Agreement and
the other Loan Documents, all in accordance with the terms of this Credit
Agreement and such other Loan Documents.
SECTION 6.2. MAINTENANCE OF OFFICES.
The Borrower will maintain its chief executive offices at 2727 Allen
Parkway, Suite 760, Houston, Texas 77019, or at such other place in the United
States as the Borrower shall designate upon 30 days' prior written notice to
the Agent. The Borrower will also cause each of the Guarantors to maintain
their chief executive offices at the addresses set forth on Schedule 2, or such
other place as the Borrower shall designate upon 30 days' prior written notice
to the Agent.
SECTION 6.3. RECORDS AND ACCOUNTS.
The Borrower will (i) keep, and cause each of its Subsidiaries to
keep, true and accurate records and books of account in which full, true and
correct entries will be made in accordance with generally accepted accounting
principles, (ii) maintain adequate accounts and reserves for all taxes
(including income taxes), depreciation, depletion, obsolescence and
amortization of its properties and the properties of its Subsidiaries,
contingencies, and other reserves, and (iii) at all times engage the
Accountants as the independent certified public accountants of the Borrower and
its Subsidiaries.
SECTION 6.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION.
The Borrower will deliver to the Banks:
(a) as soon as practicable, but, in any event not later than 90
days after the end of each fiscal year of the Borrower, the consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as at the end
of such year, statements of cash flows, and the related consolidated and
consolidating statements of operations, each setting forth in comparative form
the figures for the previous fiscal year, all such consolidated and
consolidating financial statements to be in reasonable detail, prepared in
accordance with GAAP and, with respect to the consolidated financial
statements, certified by the Accountants;
(b) as soon as practicable, but in any event not later than 45
days after the end of each fiscal quarter of the Borrower, copies of the
consolidated and consolidating balance sheets and statement of operations of
the Borrower and its Subsidiaries as at the end of such quarter, subject to
year end adjustments, and the related statement of cash flows, all in
reasonable detail and prepared in accordance with GAAP, with a certification by
the principal financial or accounting officer of the Borrower (the "CFO") that
the consolidated financial statements are prepared in accordance with GAAP and
fairly present the consolidated financial condition of the Borrower and its
Subsidiaries as at the close of business on the date thereof and the results of
operations for the period then ended;
<PAGE> 40
-39-
(c) simultaneously with the delivery of the financial statements
referred to in (a) and (b) above, a statement in the form of Exhibit D hereto
(the "Compliance Certificate") certified by the CFO that the Borrower is in
compliance with the covenants contained in Sections 6, 7 and 8 hereof as of the
end of the applicable period setting forth in reasonable detail computations
evidencing such compliance, provided that if the Borrower shall at the time of
issuance of such certificate or at any other time obtain knowledge of any
Default or Event of Default, the Borrower shall include in such certificate or
otherwise deliver forthwith to the Banks a certificate specifying the nature
and period of existence thereof and what action the Borrower proposes to take
with respect thereto and a certificate of the Borrower's Chief Operating
Officer in the form attached hereto as Exhibit E with respect to environmental
matters;
(d) following the delivery thereof to, and approval by, the board
of directors of the Borrower, copies of the annual budget and business plan
concerning the Borrower in substantially the same form in which such
information is supplied to the board of directors of the Borrower;
(e) contemporaneously with, or promptly following, the filing or
mailing thereof, copies of all material of a financial nature filed with the
Securities and Exchange Commission or sent to the stockholders of the Borrower;
and
(f) from time to time, such other financial data and other
information (including accountants' management letters) as the Banks may
reasonably request.
The Borrower hereby authorizes the Banks to disclose any information
obtained pursuant to this Credit Agreement to all appropriate governmental
regulatory authorities where required by law; provided, however, that this
authorization shall not be deemed to be a waiver of any rights to object to the
disclosure by the Banks of any such information which the Borrower has or may
have under the federal Right to Financial Privacy Act of 1978, as in effect
from time to time.
SECTION 6.5. CORPORATE EXISTENCE AND CONDUCT OF BUSINESS.
The Borrower will do or cause to be done all things necessary to
preserve and keep in full force and effect the Borrower's and its Subsidiaries'
corporate existence, corporate rights and franchises; effect and maintain their
foreign qualifications, licensing, domestication or authorization except as
terminated by the Borrower's or such Subsidiary's Board of Directors in the
exercise of its reasonable judgment and except where the failure of the
Borrower or a Subsidiary to remain so qualified would not materially adversely
impair the financial condition of the Borrower and its Subsidiaries on a
consolidated basis; use its best efforts to comply with all applicable laws;
and shall not become obligated under any contract or binding arrangement which,
at the time it was entered into would materially adversely impair the financial
condition of the Borrower and its Subsidiaries on a consolidated basis. The
Borrower will, and will cause each of
<PAGE> 41
-40-
its Subsidiaries to, continue to engage primarily in the businesses now
conducted by them and in related businesses.
SECTION 6.6. MAINTENANCE OF PROPERTIES.
The Borrower will, and will cause each of its Subsidiaries to, cause
all material properties used or useful in the conduct of their businesses to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower or its Subsidiaries may be necessary so that the
businesses carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
section shall prevent the Borrower or its Subsidiaries from discontinuing the
operation and maintenance of any of their properties if such discontinuance is,
in the judgment of the Borrower or its Subsidiaries, desirable in the conduct
of their business and which does not in the aggregate materially adversely
affect the businesses of the Borrower and its Subsidiaries on a consolidated
basis.
SECTION 6.7. INSURANCE.
The Borrower will, and will cause each of its Subsidiaries to,
maintain insurance as required under Section 7 of the Security Agreement and
Section 2.4 of the Mortgages. The Borrower will furnish from time to time, upon
the Agent's request, a summary of the insurance coverage of the Borrower, which
summary shall be in form and substance satisfactory to the Agent and, if
requested by the Agent, will furnish to the Agent copies of the applicable
policies.
SECTION 6.8. TAXES.
The Borrower will, and will cause each of its Subsidiaries to, duly
pay and discharge, or cause to be paid and discharged, before the same shall
become overdue, all taxes, assessments and other governmental charges (other
than taxes, assessments and other governmental charges imposed by foreign
jurisdictions which in the aggregate are not material to the business or assets
of the Borrower on an individual basis or of the Borrower and its Subsidiaries
on a consolidated basis) imposed upon it and its real properties, sales and
activities, or any material part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies, which if
unpaid might by law become a lien or charge upon any material portion of its
property; provided, however, that any such tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower or such
Subsidiary shall have set aside on its books adequate reserves with respect
thereto; and provided, further, that the Borrower will, and will cause each of
its Subsidiaries to, pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any lien which may
have attached as security therefor.
SECTION 6.9. INSPECTION OF PROPERTIES, BOOKS, AND CONTRACTS.
The Borrower will, and will cause each of its Subsidiaries to, permit
the Banks, the Agent or any of their
<PAGE> 42
-41-
designated representatives, upon reasonable notice, to visit and inspect any of
their properties, to examine their books of account (including the making of
periodic accounts receivable reviews), or contracts (and to make copies thereof
and extracts therefrom), and to discuss their affairs, finances and accounts
with, and to be advised as to the same by, their officers, all at such times
and intervals as the Banks may reasonably request.
SECTION 6.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES AND PERMITS;
MAINTENANCE OF MATERIAL LICENSES AND PERMITS.
The Borrower will, and will cause each of its Subsidiaries to, (i)
comply with the provisions of their charter documents and by-laws and all
agreements and instruments by which they or any of their properties may be
bound; and (ii) comply with all applicable laws and regulations (including
Environmental Laws), decrees, orders, judgments, licenses and permits,
including, without limitation, all environmental permits hereto ("Applicable
Laws"), except where noncompliance with such Applicable Laws would not have a
material adverse effect in the aggregate on the consolidated financial
condition, properties or businesses of the Borrower and its Subsidiaries. If at
any time while the Notes, or any Loan or Letter of Credit is outstanding or any
Bank or the Agent has any obligation to make Loans or issue Letters of Credit
hereunder, any authorization, consent, approval, permit or license from any
officer, agency or instrumentality of any government shall become necessary or
required in order that the Borrower or the Guarantors may fulfill any of their
obligations hereunder, the Borrower will immediately take or cause to be taken
all reasonable steps within the power of the Borrower to obtain such
authorization, consent, approval, permit or license and furnish the Banks with
evidence thereof.
SECTION 6.11. ENVIRONMENTAL INDEMNIFICATION.
The Borrower covenants and agrees that it will indemnify and hold the
Banks harmless from and against any and all claims, expense, damage, loss or
liability incurred by the Banks (including all costs of legal representation
incurred by the Banks) relating to (a) any release or threatened release of
hazardous substances on the Real Property; (b) any violation of any
Environmental Laws with respect to conditions at the Real Property or the
operations conducted thereon; or (c) the investigation or remediation of
offsite locations at which the Borrower, its Subsidiaries, or its predecessors
are alleged to have directly or indirectly disposed of hazardous substances. It
is expressly acknowledged by the Borrower and each Guarantor that this covenant
of indemnification shall include claims, expense, damage, loss or liability
incurred by the Banks based upon the Banks' negligence, and this covenant shall
survive any foreclosure or any modification, release or discharge of the Loan
Documents or the payment of the Loans and shall inure to the benefit of the
Banks, their successors and assigns.
SECTION 6.12. FURTHER ASSURANCES.
The Borrower and each Guarantor will cooperate with the Banks and
execute such further instruments and documents as the
<PAGE> 43
-42-
Banks shall reasonably request to carry out to the Banks' satisfaction the
transactions contemplated by this Credit Agreement and the Loan Documents.
SECTION 6.13. NOTICE OF POTENTIAL CLAIMS OR LITIGATION.
The Borrower will deliver to the Banks, within 30 days of receipt
thereof, written notice of the initiation of any action, claim, complaint, or
any other notice of dispute or potential litigation (including without
limitation any alleged violation of any Environmental Law described in Section
6.14(b)), wherein the potential liability is in excess of $1,000,000, together
with a copy of each such notice received by the Borrower or any Subsidiary.
SECTION 6.14. NOTICE OF CERTAIN EVENTS CONCERNING INSURANCE AND
ENVIRONMENTAL CLAIMS.
(a) The Borrower will provide the Banks with written notice as to any
material cancellation or material change in any insurance of the Borrower or
any Subsidiary within ten (10) Business Days after the Borrower's or such
Subsidiary's receipt of any notice (whether formal or informal) of such
cancellation or change by any of their insurers.
(b) The Borrower will promptly notify the Banks in writing of any of
the following events:
(i) upon the Borrower obtaining knowledge of any violation of
any Environmental Law regarding the Real Property or the Borrower's or any
Subsidiary's operations, which violation could have a material adverse effect
on the Real Property or on the Borrower's or such Subsidiary's operations; (ii)
upon the Borrower obtaining knowledge of any potential or known Release or
threat of Release of any Hazardous Substance at, from, or into the Real Property
which the Borrower or any Subsidiary reports in writing or is reportable by it
in writing to any governmental authority and which is material in amount or
nature or which could materially affect the value of the Real Property; (iii)
upon the Borrower's or any Subsidiary's receipt of any notice of violation of
any Environmental Laws or of any Release or threatened Release of Hazardous
Substances, including a notice or claim of liability or potential responsibility
from any third party (including without limitation any federal, state or local
governmental officials) and including notice of any formal inquiry, proceeding,
demand, investigation or other action with regard to (A) the Borrower's, any
Subsidiary's, or any Person's operation of the Real Property, (B) contamination
on, from or into the Real Property, or (C) investigation or remediation of
offsite locations at which the Borrower, the Subsidiaries, or any of their
predecessors is alleged to have directly or indirectly Disposed of Hazardous
Substances, which violation or Release in any such case could have a material
adverse effect on the Real Property or on the Borrower's operations; or (iv)
upon the Borrower obtaining knowledge that any material expense or loss has been
incurred by such governmental authority in connection with the assessment,
containment,
<PAGE> 44
-43-
removal or remediation of any Hazardous Substances with respect to which the
Borrower or any Subsidiary may be liable or for which a lien may be imposed on
the Real Property.
SECTION 6.15. RESPONSE ACTIONS.
The Borrower covenants and agrees that if any Release or Disposal of
Hazardous Substances shall occur or shall have occurred on the Real Property,
the Borrower will cause the prompt containment and removal of such Hazardous
Substances and remediation of the Real Property as necessary to comply with all
Environmental Laws or to preserve the value of the Real Property.
SECTION 6.16. ENVIRONMENTAL ASSESSMENTS.
If the Banks in their good faith judgment, after discussion with the
Borrower, have reason to believe that the environmental condition of the Real
Property has deteriorated, after reasonable notice by the Banks, whether or not
an Event of Default shall have occurred, the Banks may, from time to time, for
the purpose of assessing and ensuring the value of the Real Property, obtain
one or more environmental assessments or audits of the Real Property prepared
by a hydrogeologist, an independent engineer or other qualified consultant or
expert approved by the Banks to evaluate or confirm (i) whether Hazardous
Substances are present in the soil or water at the Real Property in material
amounts and (ii) whether the use and operation of the Real Property is in
material compliance with all Environmental Laws. Environmental assessments may
include without limitation detailed visual inspections of the Real Property
including, without limitation, any and all storage areas, storage tanks,
drains, dry wells and leaching areas, and the taking of soil samples, surface
water samples and ground water samples, as well as such other investigations or
analyses as the Banks deem appropriate. All such environmental assessments
shall be at the sole cost and expense of the Borrower.
SECTION 6.17. NOTICE OF DEFAULT.
The Borrower will promptly notify the Banks in writing of the
occurrence of any Default or Event of Default. If any Person shall give any
notice or take any other action in respect of a claimed default (whether or not
constituting an Event of Default) under this Credit Agreement or any other
note, evidence of Indebtedness, indenture or other obligation evidencing
Indebtedness in excess of $1,000,000 as to which the Borrower is a party or
obligor, whether as principal or surety, the Borrower shall forthwith give
written notice thereof to the Banks, describing the notice of action and the
nature of the claimed default.
SECTION 6.18. ADDITIONAL MORTGAGED PROPERTY.
If, after the Closing Date, the Borrower or any Guarantor acquires or leases
for a term in excess of five (5) years real estate used as a manufacturing or
warehouse facility, the Borrower shall, or shall cause such Guarantor to,
forthwith notify the Agent of such acquisition or lease and deliver to the
Agent, upon the Agents' request, a fully executed mortgage or deed of trust
over such real estate (or a leasehold mortgage or deed of trust over such
leasehold interest), in form and substance satisfactory to the Agent, together
with
<PAGE> 45
-44-
title insurance policies, surveys, and evidence of insurance with the Agent
named as loss payee and additional insured, in the case of real estate
acquired, and a copy of the lease, in the case of real estate leased, and in
either case, such legal opinions and other documents and certificates with
respect to such real estate as was required for Real Property of the Borrower
or such Guarantor as of the Closing Date. The Borrower further agrees that,
following the taking of such actions with respect to such real estate, the
Agent shall have for the benefit of the Banks and the Agent a valid and
enforceable first priority mortgage or deed of trust over such real estate (or
such leasehold interests), free and clear of all defects and encumbrances
except for Permitted Liens.
SECTION 6.19. NEW GUARANTORS; INTERNATIONAL GUARANTORS.
(a) Any newly-created or acquired U.S. Subsidiaries permitted
under Section 7.4 shall become Guarantors hereunder by (i) signing a joinder
agreement in form and substance satisfactory to the Agent, (ii) entering into
an amendment to this Credit Agreement and the Security Documents with the other
parties hereto and thereto providing that such Subsidiary shall become a
Guarantor hereunder, 100% of the stock and assets of which shall be pledged to
the Agent for the benefit of the Banks, and (iii) providing such other
documentation as the Banks or the Agent may reasonably request, including,
without limitation, documentation with respect to the conditions specified in
Section 9 hereof. In such event, the Agent is hereby authorized by the parties
to amend Schedule 2 to include such new Subsidiary. The Borrower hereby agrees
to pledge all of the stock of such new U.S. Subsidiary to the Agent for the
benefit of the Banks pursuant to the terms of the Stock Pledge Agreement. Such
new U.S. Subsidiary shall pledge all of its assets to the Agent for the benefit
of the Banks under the Security Agreement or, in the case of Real Property,
under a Mortgage.
(b) In the event that investments in International Subsidiaries
exceed 7% of Consolidated Total Assets, the Borrower shall select one or more
International Subsidiaries acceptable to the Agent to become International
Guarantors such that the Borrower is at all times in compliance with Section
7.3(j). Such International Subsidiaries shall become International Guarantors
by (i) signing an International Guaranty Agreement in form and substance
satisfactory to the Agent, pursuant to which the International Guarantors
guarantee certain obligations hereunder, (ii) signing an International Stock
Pledge Agreement in form and substance satisfactory to the Agent, pursuant to
which 66% of the stock of each such International Guarantor is pledged to the
Agent for the benefit of the Banks, and (iii) providing such other
documentation as the Banks or the Agent may reasonably request, including,
without limitation, documentation with respect to the conditions specified in
Section 9 hereof.
SECTION 7. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower agrees that, so long as any Loan or any Note or other Obligation
is
<PAGE> 46
-45-
outstanding or the Banks have any obligation to make Loans or the Issuing Bank
has any obligation to issue, extend or renew any Letters of Credit hereunder:
SECTION 7.1. RESTRICTIONS ON INDEBTEDNESS.
The Borrower shall not, and shall not permit any Subsidiary to, become
or be a guarantor or surety of, or otherwise create, incur, assume, or be or
remain liable, contingently or otherwise, with respect to any Indebtedness, or
become or be responsible in any manner (whether by agreement to purchase any
obligations, stock, assets, goods or services, or to supply or advance any
funds, assets, goods or services or otherwise) with respect to any undertaking
or Indebtedness of any other Person, or incur any Indebtedness other than:
(a) Indebtedness to the Banks and the Agent arising under this
Credit Agreement or the Loan Documents;
(b) other existing Indebtedness listed on Schedule 7.1 hereto, on
the terms and conditions in effect as of the date hereof, together with any
renewals, extensions or refinancings thereof on terms which are not materially
different than those in effect as of the date hereof; provided that no such
Indebtedness may be prepaid without the prior written consent of the Majority
Banks;
(c) incurrence of guaranty, suretyship or indemnification
obligations in connection with the Borrower's or Subsidiaries' performance of
services for their respective customers in the ordinary course of their
businesses;
(d) Indebtedness of a Subsidiary to the Borrower;
(e) Indebtedness with respect to equipment leases owing to any
Subsidiary which is a financing company;
(f) Indebtedness with respect to equipment leases or equipment
chattel mortgages, including any such Indebtedness assumed in connection with
an acquisition permitted under Section 7.4, in an aggregate amount not to
exceed $5,000,000 at any time outstanding; and
(g) Indebtedness, including assumed obligations, incurred in
connection with acquisitions after the date hereof of any stocks of,
partnership or joint venture interests in, or assets of any Person and owing to
the seller(s) of such stocks, partnership or joint venture interests, or
assets; provided that the principal amount of any such Indebtedness shall not
exceed $10,000,000 in the aggregate; and provided, further, that such
acquisitions shall be otherwise permitted pursuant to Section 7.4;
(h) Indebtedness which is subordinated to the Obligations on terms
acceptable to the Agent and the Majority Banks, provided that the maturity of
such Indebtedness is after the Maturity Date and such Indebtedness shall not be
prepaid without the consent of the Majority Banks; and
<PAGE> 47
-46-
(i) other Indebtedness incurred after the date hereof through the
borrowing of money or the obtaining of credit, including any such Indebtedness
assumed in connection with an acquisition permitted under Section 7.4, not to
exceed an aggregate amount of $5,000,000 outstanding at any time.
SECTION 7.2. RESTRICTIONS ON LIENS.
The Borrower shall not, and shall not permit any Subsidiary to, create
or incur or suffer to be created or incurred or to exist any lien, encumbrance,
mortgage, pledge, charge, restriction or other security interest of any kind
upon any property or assets of any character, whether now owned or hereafter
acquired, or upon the income or profits therefrom; or transfer any of such
property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of their general creditors; or acquire, or
agree or have an option to acquire, any property or assets upon conditional
sale or other title retention or purchase money security agreement, device or
arrangement; or suffer to exist for a period of more than 30 days after the
same shall have been incurred any Indebtedness or claim or demand against them
which if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be
given any priority whatsoever over their general creditors; or sell, assign,
pledge or otherwise transfer any accounts, contract rights, general intangibles
or chattel paper, with or without recourse, except as follows (the "Permitted
Liens"):
(a) Liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or liens on properties other than
Mortgaged Properties to secure claims for labor, material or supplies in
respect of obligations not overdue;
(b) Deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age pensions or
other social security obligations;
(c) Liens in respect of judgments or awards which have been in
force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which the Borrower or any
Subsidiary shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution shall have
been obtained pending such appeal or review and in respect of which the
Borrower or such Subsidiary maintains adequate reserves;
(d) Liens of carriers, warehousemen, mechanics and materialmen,
and other like liens, in existence less than 120 days from the date of creation
thereof in respect of obligations not overdue, provided that such liens may
continue to exist for a period of more than 120 days if the validity or amount
thereof shall currently be contested by the Borrower or Subsidiary in good
faith by appropriate proceedings and if the Borrower or such Subsidiary shall
have set aside on its books adequate reserves with respect thereto as required
by GAAP and provided further that the
<PAGE> 48
-47-
Borrower or such Subsidiary will pay any such claim forthwith upon commencement
of proceedings to foreclose any such lien;
(e) Encumbrances on Real Property consisting of easements, rights
of way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's liens
under leases to which the Borrower or a Subsidiary is a party, and other minor
liens or encumbrances none of which in the opinion of the Borrower or such
Subsidiary interferes materially with the use of the property affected in the
ordinary conduct of the business of the Borrower or such Subsidiary, which
defects do not individually or in the aggregate have a material adverse effect
on the business of the Borrower individually or of the Borrower and its
Subsidiaries on a consolidated basis;
(f) Liens existing as of the date hereof and listed on Schedule
7.2 on the terms and conditions in effect as of the date hereof;
(g) Liens securing Indebtedness permitted by Section 7.1(e)
hereof, provided that such Liens shall encumber only the equipment being leased
or acquired and shall not exceed the fair market value thereof;
(h) Liens securing Indebtedness permitted under Section 7.1(f)
incurred in connection with the lease or acquisition of property or fixed
assets useful or intended to be used in carrying on the business of the
Borrower or its Subsidiaries, provided that such Liens shall encumber only the
property or assets so acquired and shall not exceed the fair market value
thereof and provided further that the aggregate amount of Indebtedness secured
by such liens shall not exceed $5,000,000;
(i) Liens securing Indebtedness permitted by Section 7.1(g) or
Section 7.1(i), provided that the aggregate amount of Indebtedness secured by
such Liens shall not exceed $5,000,000; and
(j) Liens in favor of the Agent for the benefit of the Banks and
the Agent under the Loan Documents.
SECTION 7.3. RESTRICTIONS ON INVESTMENTS.
The Borrower shall not, and shall not permit any Subsidiary to,
purchase or acquire, or make any commitment therefor, any capital stock, equity
interest, or other obligations or securities of, or any interest in, any other
Person, or make or commit to make any acquisition under Section 7.4, or make or
commit to make any advance, loan, extension of credit or capital contribution
to or any other investment in, any other Person, other than:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of purchase
(and investments in mutual funds investing primarily in such obligations);
<PAGE> 49
-48-
(b) demand deposits, certificates of deposit, bankers acceptances
and time deposits of United States banks or Eligible Foreign Banks having
unimpaired capital and surplus in excess of $250,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated and
the ratings for which are not less than "P 1" if rated by Moody's Investors
Service, Inc., and not less than "A 1" if rated by Standard and Poor's Rating
Group (and investments in mutual funds investing primarily in such securities);
(d) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(e) investments existing on the date hereof and listed on Schedule
7.3;
(f) loans and advances by any Subsidiary to the Borrower;
(g) investments with respect to Indebtedness permitted by Section
7.1(e) so long as such entities remain Subsidiaries of the Borrower;
(h) investments permitted under Section 7.4;
(i) investments in Guarantors and International Guarantors;
(j) investments in International Subsidiaries (other than
International Guarantors) in an aggregate amount (including such investments
existing as of the date hereof) not to exceed 7% of Consolidated Total Assets;
(k) obligations with respect to the Guaranty under Section 20 and
any International Guaranty Agreements;
(l) loans and advances to employees for moving, entertainment,
travel and other similar expenses in the ordinary course of business not to
exceed $100,000 in the aggregate at any time outstanding; and
(m) other investments (including investments in joint ventures) in
an aggregate amount not to exceed $1,000,000.
SECTION 7.4. MERGERS, CONSOLIDATIONS, SALES.
The Borrower shall not, and shall not permit any Subsidiary to, be a
party to any merger, consolidation or exchange of stock, or purchase or
otherwise acquire all or substantially all of the assets or stock of, or any
partnership or joint venture interest in, any other Person except as otherwise
provided in this Section 7.4, or sell, transfer, convey or lease any assets or
group
<PAGE> 50
-49-
of assets (except sales of equipment in the ordinary course of business) or
sell or assign, with or without recourse, any receivables. Subject to the limit
set forth in Section 7.3(j) with respect to International Subsidiaries, the
Borrower may purchase or otherwise acquire all or substantially all of the
assets or stock of any class of, or joint venture interest in, any Person
provided that (a) the Borrower is in current compliance with and, after giving
effect to the proposed acquisition (including any borrowings made or to be made
in connection therewith), will continue to be in compliance with all of the
covenants in Section 8 hereof on a pro forma historical combined basis as if
the transaction occurred on the first day of the period of measurement, and the
Agent shall have been provided with a Compliance Certificate demonstrating such
compliance; (b) at the time of such acquisition, no Default or Event of Default
has occurred and is continuing, and such acquisition will not otherwise create
a Default or an Event of Default hereunder; (c) the business to be acquired is
predominantly in the same lines of business as the Borrower or its existing
Subsidiaries, or businesses reasonably related or incidental thereto; (d) all
of the assets to be acquired shall be owned by an existing or newly created
Subsidiary or, in the case of a stock acquisition, the acquired business shall
become or shall be merged with a wholly-owned Subsidiary; (e) a copy of the
purchase agreement, together with audited (if available, or otherwise
unaudited) financial statements for any Subsidiary to be acquired or created
shall have been furnished to the Agent; (f) such acquisition is preceded by the
Borrower's standard due diligence practices, and a copy of the due diligence
summaries shall have been furnished to the Agent; (g) the cash consideration to
be paid by the Borrower in connection with any acquisition or series of related
acquisitions (including deferred payments and the aggregate amount of all
liabilities assumed) shall not exceed $15,000,000 without the consent of the
Majority Banks; (h) the total value given in connection with any acquisition or
series of related acquisitions (including deferred payments and the aggregate
amount of all liabilities assumed) shall not exceed $25,000,000 without the
consent of the Majority Banks, (i) the board of directors and (if required by
applicable law) the shareholders, or the equivalent thereof, of the business to
be acquired has approved such acquisition; and (j) if such acquisition is made
by a merger, the Borrower shall be the surviving entity. Any Subsidiary may
merge with the Borrower, provided that the surviving corporation is the
Borrower, and any Subsidiary may merge with any other Subsidiary, provided that
if any transaction is between a non- wholly owned Subsidiary and a wholly-owned
Subsidiary, the wholly-owned Subsidiary shall be the surviving corporation.
SECTION 7.5. SALE AND LEASEBACK.
The Borrower shall not, and shall not permit any Subsidiary to, enter
into any arrangement, directly or indirectly, whereby the Borrower or such
Subsidiary shall sell or transfer any property owned by it in order then or
thereafter to lease such property or lease other property which the Borrower or
such Subsidiary intends to use for substantially the same purpose as the
property being sold or transferred, without the prior written consent of the
Majority Banks.
<PAGE> 51
-50-
SECTION 7.6. RESTRICTED DISTRIBUTIONS AND REDEMPTIONS.
The Borrower shall not, and shall not permit any Subsidiary to, make
Distributions except as set forth in this Section 7.6. The Borrower and its
Subsidiaries may make Distributions payable solely in common stock of such
Person. Any of the Subsidiaries may make Distributions to the Borrower. In
addition, no Subsidiary shall redeem, convert, retire or otherwise acquire
shares of any class of its capital stock. The Borrower may declare or pay
dividends and may redeem, convert, retire, or otherwise acquire shares of its
capital stock, provided that, after giving effect to such Distribution, the
Leverage Ratio shall not be greater than 3.00:1, and provided further that the
aggregate dollar amount of stock repurchases by the Borrower shall not exceed
$2,000,000 in any fiscal year, nor more than $5,000,000 cumulatively from the
Closing Date to the Maturity Date. Notwithstanding the foregoing, the Borrower
shall not, and shall not permit any Subsidiary to, make any Distribution under
this Section 7.6 if a Default or Event of Default exists or would be created by
the making of such Distribution. The Guarantors shall not effect or permit any
change in or amendment to any document or instrument pertaining to the terms of
the Guarantors' capital stock.
SECTION 7.7. EMPLOYEE BENEFIT PLANS.
Neither the Borrower nor any Subsidiary nor any ERISA Affiliate will:
(a) engage in any "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the Code which could result in a
material liability for the Borrower or any Subsidiary; or
(b) permit any Guaranteed Pension Plan to incur a material
"accumulated funding deficiency", as such term is defined in Section 302 of
ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could result
in the imposition of a lien or encumbrance on the assets of the Borrower or any
Subsidiary pursuant to Section 302(f) or Section 4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring
the posting of security pursuant to Section 307 of ERISA or Section 401(a)(29)
of the Code; or
(e) permit or take any action which would result in the aggregate
benefit liabilities (within the meaning of Section 4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of such
Plans, disregarding for this purpose the benefit liabilities and assets of any
such Plan with assets in excess of benefit liabilities.
SECTION 7.8. NEGATIVE PLEDGES.
Neither the Borrower nor any Subsidiary shall enter into or permit to
exist any arrangement or agreement, enforceable under applicable
<PAGE> 52
-51-
law, which directly or indirectly prohibits the Borrower or any Subsidiary from
creating or incurring any lien, encumbrance, mortgage, pledge, charge,
restriction or other security interest in favor of the Agent for the benefit of
the Banks and the Agent under the Loan Documents and other than customary
anti-assignment provisions in leases and licensing agreements entered into by
the Borrower or such Subsidiary in the ordinary course of its business.
SECTION 7.9. BUSINESS ACTIVITIES.
The Borrower will not, and will not permit any Subsidiary to, engage
directly or indirectly (whether through Subsidiaries or otherwise) in any type
of business other than the businesses conducted by them on the Closing Date and
in related businesses.
SECTION 7.10. TRANSACTIONS WITH AFFILIATES.
The Borrower will not, and will not permit any Subsidiary to, engage
in any transaction with any Affiliate (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
such Affiliate or, to the knowledge of the Borrower, any corporation,
partnership, trust or other entity in which any such Affiliate has a
substantial interest or is an officer, director, trustee or partner, on terms
more favorable to such Person than would have been obtainable on an
arm's-length basis in the ordinary course of business.
SECTION 8. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, any Note,
or any Reimbursement Obligation is outstanding or the Banks have any obligation
to make Loans or the Issuing Bank has any obligation to issue, extend or renew
any Letters of Credit hereunder:
SECTION 8.1. FUNDED DEBT TO CAPITALIZATION RATIO.
The Borrower shall not at any time permit the ratio of (a) Funded Debt
to (b) the sum of Funded Debt plus Net Worth to exceed 55%.
SECTION 8.2. LEVERAGE RATIO.
As of the end of any fiscal quarter of the Borrower commencing with
the fiscal quarter ending December 31, 1997, the ratio of (a) Funded Debt as at
the end of such quarter to (b) EBITDA for the period of four (4) consecutive
fiscal quarters ending on such date (the "Leverage Ratio") shall not exceed
3.00:1.
SECTION 8.3. INTEREST COVERAGE RATIO.
As of the end of any fiscal quarter of the Borrower commencing with
the fiscal quarter ending December 31, 1997, the ratio of (i) EBIT for the
period of four (4) consecutive fiscal quarters ending on such date to (ii)
Consolidated Total Interest Expense for such period shall not be less than
3.25:1.
<PAGE> 53
-52-
SECTION 8.4. CURRENT RATIO.
The Borrower shall not permit at any time the ratio of (a)
consolidated current assets to (b) consolidated current liabilities (including
current maturities of long-term Indebtedness) to be less than 1.40:1.
SECTION 8.5. CAPITAL EXPENDITURES.
The Borrower will not make, or permit any Subsidiary to make, in the
aggregate, Capital Expenditures in excess of (a) $1,500,000 from the Closing
Date through December 31, 1997, (b) $6,000,000 in the fiscal year 1998, or (c)
1.65% of reported rolling four quarter revenue for each year thereafter.
SECTION 9. CLOSING CONDITIONS.
The obligations of the Banks to make the Loans and the Issuing Bank to
issue Letters of Credit on the Closing Date and otherwise be bound by the terms
of this Credit Agreement shall be subject to the satisfaction of each of the
following conditions precedent:
SECTION 9.1. CORPORATE ACTION.
All corporate action necessary for the valid execution, delivery and
performance by the Borrower and the Guarantors, including Astrotech, of the
Loan Documents shall have been duly and effectively taken, and satisfactory
evidence thereof shall have been provided to the Agent.
SECTION 9.2. LOAN DOCUMENTS, ETC.
Each of the Loan Documents shall have been duly and properly
authorized, executed and delivered by the respective parties thereto and shall
be in full force and effect in a form satisfactory to the Banks.
SECTION 9.3. CERTIFIED COPIES OF CHARTER DOCUMENTS.
The Agent shall have received from the Borrower and each of the
Guarantors a copy, certified by a duly authorized officer of such Person to be
true and complete on the Closing Date, of each of (a) its charter or other
incorporation documents and (b) its by-laws, each including all amendments
thereto, and each as in effect on the Closing Date.
SECTION 9.4. INCUMBENCY CERTIFICATE.
The Agent shall have received an incumbency certificate of the
Borrower and each of the Guarantors, dated as of the Closing Date, signed by
duly authorized officers giving the name and bearing a specimen signature of
each individual who shall be authorized: (a) to sign the Loan Documents on
behalf of the Borrower and the Guarantors; (b) to make Loan and Letter of
Credit Requests; and (c) to give notices and to take other action on the
Borrower's and the Guarantors' behalf under the Loan Documents.
SECTION 9.5. VALIDITY OF LIENS.
The Security Documents shall be effective to create in favor of the Agent a
legal, valid and enforceable first (except for Permitted Liens entitled to
priority under applicable law) security interest in and lien upon the
Collateral. All filings, recordings, deliveries of instruments and other
actions necessary or desirable in the opinion of the Agent to protect and
preserve such
<PAGE> 54
-53-
security interests shall have been duly effected. The Agent shall have received
evidence thereof in form and substance satisfactory to the Agent.
SECTION 9.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS.
The Agent shall have received from the Borrower and the Guarantors, including
Astrotech, a completed and fully executed Perfection Certificate and the
results of UCC searches with respect to the Collateral, indicating no liens
other than Permitted Liens and otherwise in form and substance satisfactory to
the Agent.
SECTION 9.7. CERTIFICATES OF INSURANCE.
The Agent shall have received a certificate of insurance signed by the
insurer or an agent authorized to bind the insurer dated as of the Closing
Date, or within 15 days prior thereto, identifying insurers, types of
insurance, insurance limits, and policy terms, and otherwise describing the
Borrower's insurance coverage.
SECTION 9.8. LEGAL OPINION.
The Agent shall have received a favorable legal opinion from counsel
to the Borrower and the Guarantors, addressed to the Agent and each Bank, dated
as of the Closing Date, in form and substance satisfactory to the Agent and
each Bank.
SECTION 9.9. ENVIRONMENTAL PERMIT CERTIFICATE.
The Banks shall have received an environmental permit certificate from
the Borrower satisfactory to the Agent concerning principal operating permits
at the Borrower's and its Subsidiaries' principal operating facilities.
SECTION 9.10. TITLE INSURANCE.
The Agent shall have received a Title Policy covering each Mortgaged
Property (or commitments to issue such policies, with all conditions to
issuance of the Title Policy deleted by an authorized agent of the Title
Insurance Company) together with proof of payment of all fees and premiums for
such policies, from the Title Insurance Company and in amounts satisfactory to
the Agent, insuring the interest of the Agent and each of the Banks as
mortgagee under the Mortgages.
SECTION 9.11. PAYMENT OF FEES.
The Borrower shall have paid any fees owing to any of the Banks.
SECTION 9.12. PAYOFF LETTERS.
The Agent shall have received payoff letters from (a) BOA with respect
to the BOA Credit Agreement and (b) Bank One, Texas with respect to the
Astrotech Credit Agreement, each indicating the amount of the loan obligations
of the Borrower and Astrotech, respectively, under such credit agreements to be
discharged on the Closing Date and an acknowledgment by BOA and Bank One, Texas
that upon receipt of such funds it will forthwith execute and deliver to the
Agent for filing all termination statements and take such other actions
<PAGE> 55
-54-
as may be necessary to discharge all mortgages, deeds of trust and security
interests granted by the Borrower or any Subsidiary in favor of such lenders.
SECTION 9.13. ASTROTECH MERGER.
The Astrotech Merger shall have been successfully consummated on terms
no less favorable to the Borrower than the terms set forth in the Astrotech
Merger Agreement, and evidence thereof satisfactory to the Agent, including,
without limitation, an opinion of Borrower's counsel as to the completion of
the Astrotech Merger, shall have been provided to the Agent.
SECTION 9.14. ENVIRONMENTAL ASSESSMENTS.
The Borrower shall have delivered to the Agent satisfactory
environmental assessments or audits for each of the Mortgaged Properties.
SECTION 10. CONDITIONS OF ALL LOANS.
The obligations of the Banks to make any Loan (including without
limitation the obligation of the Issuing Bank to issue, extend or renew any
Letter of Credit) on and subsequent to the Closing Date is subject to the
following conditions precedent:
SECTION 10.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT.
Each of the representations and warranties of the Borrower contained
in this Credit Agreement or in any document or instrument delivered pursuant to
or in connection with this Credit Agreement shall be true as of the date as of
which they were made and shall also be true at and as of the time of any
Drawdown Date with the same effect as if made at and as of that time (except to
the extent of changes resulting from transactions contemplated or permitted by
this Credit Agreement and changes occurring in the ordinary course of business
which singly or in the aggregate are not materially adverse, or to the extent
that such representations and warranties relate solely and expressly to an
earlier date) and no Default or Event of Default shall have occurred and be
continuing.
SECTION 10.2. PERFORMANCE; NO EVENT OF DEFAULT.
The Borrower shall have performed and complied with all terms and
conditions herein required to be performed or complied with by the Borrower
prior to or at the time of any Loan, and at the time of any Loan, there shall
exist no Event of Default or condition which would result in an Event of
Default upon consummation of such Loan (including without limitation any
amounts to be drawn under a Letter of Credit). Each request by the Borrower for
a Loan (including without limitation each request for issuance of a Letter of
Credit) subsequent to the first Loan shall constitute certification by the
Borrower that the conditions specified in Sections 10.1 and 10.2 will be duly
satisfied on the date of such Loan or Letter of Credit issuance.
<PAGE> 56
-55-
SECTION 10.3. NO LEGAL IMPEDIMENT.
No change shall have occurred in any law or regulations thereunder or
interpretations thereof which in the reasonable opinion of the Banks would make
it illegal for the Banks to make Loans hereunder.
SECTION 10.4. GOVERNMENTAL REGULATION.
The Banks shall have received such statements in form and substance
reasonably satisfactory to the Banks as they shall require for the purpose of
compliance with any applicable regulations of the Comptroller of the Currency
or the Board of Governors of the Federal Reserve System.
SECTION 10.5. PROCEEDINGS AND DOCUMENTS.
All proceedings in connection with the transactions contemplated by
this Credit Agreement and all documents incident thereto shall have been
delivered to the Banks as of the date hereof in form and substance satisfactory
to the Banks, including without limitation a Loan and Letter of Credit Request
in the form attached hereto as Exhibit B, and the Banks shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Banks may reasonably request.
Section 11. COLLATERAL SECURITY AND GUARANTIES.
SECTION 11.1. SECURITY OF BORROWER.
The Obligations shall be secured by a (i) perfected first
priority security interest (subject only to Permitted Liens entitled to
priority under applicable law) in all of the assets of the Borrower, whether
now owned or hereafter acquired, pursuant to the terms of the Security
Documents to which the Borrower is a party and (ii) a pledge of all of the
Borrower's stock of each Guarantor pursuant to the terms of the Stock Pledge
Agreement (and a pledge of 66% of the Borrower's stock of each International
Guarantor pursuant to the terms of the International Stock Pledge Agreement, if
so required under Section 6.19(b)).
SECTION 11.2. GUARANTIES AND SECURITY OF GUARANTORS.
The Obligations shall also be guaranteed pursuant to the terms
of Section 20. The obligations of the Guarantors under Section 20 shall be in
turn secured by a (i) perfected first priority security interest (subject only
to Permitted Liens entitled to priority under applicable law) in all of the
assets of each such Guarantor, whether now owned or hereafter acquired,
pursuant to the terms of the Security Documents to which such Guarantor is a
party.
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT.
SECTION 12.1. EVENTS OF DEFAULT AND ACCELERATION.
If any of the following events ("Events of Default" or, if the giving
of notice or the lapse of time or both is required, then, prior to such notice
and/or lapse of time, "Defaults") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans
or any Reimbursement Obligation when the same shall become due and payable,
whether at
<PAGE> 57
-56-
the Maturity Date or any accelerated date of maturity or at any other date
fixed for payment;
(b) if the Borrower shall fail to pay any interest or fees or
other amounts owing hereunder within five (5) Business Days after the same
shall become due and payable whether at the Maturity Date or any accelerated
date of maturity or at any other date fixed for payment;
(c) if the Borrower shall fail to comply with the covenants
contained in Sections 6, 7 or 8 hereof or any of the covenants contained in any
of the Mortgages, or if any Guarantor shall fail to comply with any term,
covenant or agreement contained in Section 20 or any of the Mortgages, or if
any International Guarantor shall fail to comply with any term, covenant or
agreement contained in its International Guaranty Agreement within 10 days
after obtaining knowledge of such failure;
(d) if the Borrower or any Guarantor shall fail to perform any
term, covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified in subsections (a), (b), and (c) above)
within 30 days after written notice of such failure has been given to the
Borrower by the Agent or any Bank;
(e) if any representation or warranty contained in this Credit
Agreement or in any document or instrument delivered pursuant to or in
connection with this Credit Agreement shall prove to have been false in any
material respect upon the date when made or repeated;
(f) if the Borrower or any Subsidiary shall fail to pay at
maturity, or within any applicable period of grace, any and all obligations for
borrowed money (other than the Obligations) or any guaranty with respect
thereto in an aggregate amount greater than $1,000,000, or fail to observe or
perform any material term, covenant or agreement contained in any agreement by
which it is bound, evidencing or securing borrowed money in an aggregate amount
greater than $1,000,000 for such period of time as would, or would have
permitted (assuming the giving of appropriate notice if required) the holder or
holders thereof or of any obligations issued thereunder to accelerate the
maturity thereof; or
(g) if the Borrower or any Subsidiary makes an assignment for the
benefit of creditors, or admits in writing its inability to pay or generally
fails to pay its debts as they mature or become due, or petitions or applies
for the appointment of a trustee or other custodian, liquidator or receiver of
the Borrower or any Subsidiary or of any substantial part of the assets of the
Borrower or any Subsidiary or commences any case or other proceeding relating
to the Borrower or any Subsidiary under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in
<PAGE> 58
-57-
effect, or takes any action to authorize or in furtherance of any of the
foregoing, or if any such petition or application is filed or any such case or
other proceeding is commenced against the Borrower or any Subsidiary or the
Borrower or such Subsidiary indicates its approval thereof, consent thereto or
acquiescence therein;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any
Subsidiary bankrupt or insolvent, or approving a petition in any such case or
other proceeding, or a decree or order for relief is entered in respect of the
Borrower or any Subsidiary in an involuntary case under federal bankruptcy laws
as now or hereafter constituted, and such decree or order remains in effect for
more than sixty (60) days, whether or not consecutive;
(i) if there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty (30) days, whether or not consecutive, any final
judgment against the Borrower or any Subsidiary which, with other outstanding
final judgments against the Borrower and its Subsidiaries, exceeds in the
aggregate $1,000,000 after taking into account any undisputed insurance
coverage;
(j) the Borrower or any Subsidiary or any ERISA Affiliate incurs
any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of
ERISA in an aggregate amount exceeding $1,000,000, or the Borrower or any
Subsidiary or any ERISA Affiliate is assessed withdrawal liability pursuant to
Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments
exceeding $1,000,000, or any of the following occurs with respect to a
Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a
required installment or other payment (within the meaning of Section 302(f)(1)
of ERISA), provided that the Agent determines in its reasonable discretion that
such event (A) could be expected to result in liability of the Borrower or any
Subsidiary to the PBGC or such Guaranteed Pension Plan in an aggregate amount
exceeding $1,000,000 and (B) could constitute grounds for the termination of
such Guaranteed Pension Plan by the PBGC, for the appointment by the
appropriate United States District Court of a trustee to administer such
Guaranteed Pension Plan or for the imposition of a lien in favor of such
Guaranteed Pension Plan; or (ii) the appointment by a United States District
Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the
institution by the PBGC of proceedings to terminate such Guaranteed Pension
Plan;
(k) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded or the Agent's security interests, mortgages or liens in a
substantial portion of the Collateral shall cease to be perfected, or shall
cease to have the priority contemplated by the Security Documents, in each case
otherwise than in accordance with the terms thereof or with the express prior
written agreement, consent or approval of the Banks, or any action at law, suit
or in equity or other legal proceeding to cancel, revoke or rescind any of the
Loan Documents shall be commenced by or on
<PAGE> 59
-58-
behalf of the Borrower or any Subsidiary or any of their respective
stockholders, or any court or any other governmental or regulatory authority or
agency of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of the
Loan Documents is illegal, invalid or unenforceable in accordance with the
terms thereof; or
(l) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) owning less than
5% of the Borrower's common stock as of the date hereof shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 40% or more of the
outstanding shares of common stock of the Borrower; or, during any period of
twelve consecutive calendar months, individuals who were directors of the
Borrower on the first day of such period (and individuals whose nomination to
the board was recommended by a majority of such directors) shall cease to
constitute a majority of the board of directors of the Borrower;
then, and in any such event, so long as the same may be continuing, the Agent
may, and at the request of the Majority Banks shall, by notice in writing to
the Borrower, declare all amounts owing with respect to this Credit Agreement,
the Notes and the other Loan Documents and all Reimbursement Obligations to be,
and they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; provided that in the event of any
Event of Default specified in Section 12(g) or 12(h), all such amounts shall
become immediately due and payable automatically and without any requirement of
notice from the Agent or any Bank. Upon demand by the Banks after the
occurrence of any Event of Default, the Borrower shall immediately provide to
the Agent cash in an amount equal to the Maximum Drawing Amount, to be held by
the Agent as collateral security for the Obligations, provided that in the
event of any Event of Default specified in Section 12(g) or 12(h), all such
amounts shall become immediately due and payable automatically and without any
requirement of notice from the Agent or any Bank.
SECTION 12.2. TERMINATION OF COMMITMENTS.
If any Event of Default shall occur, the Agent may, and at the request
of the Majority Banks shall, by notice to the Borrower, terminate the unused
portion of the Total Commitment hereunder, and upon such Notice being given,
such unused portion of the Total Commitment hereunder shall terminate
immediately and the Banks shall be relieved of all further obligations to make
Loans to or issue Letters of Credit for the account of the Borrower hereunder,
provided that in the event of any Event of Default specified in Section 12(g)
or 12(h), all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the Agent or any Bank.
No termination of any portion of the Total Commitment hereunder shall relieve
the Borrower of any of its existing Obligations to the Banks hereunder or
elsewhere.
<PAGE> 60
-59-
SECTION 12.3. REMEDIES.
Subject to Section 13, in case any one or more Events of Default shall
have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to Section 12.1, each Bank, upon
notice to the other Banks, if owed any amount with respect to the Loans or the
Reimbursement Obligations, may, if the Agent shall have received opinions of
nationally recognized law firms specializing in California law, Louisiana law,
and the law of any other state having a one form of action rule to the effect
that actions by such Bank under such circumstances shall not constitute an
action for purposes of such state's one form of action rule or in any other way
impair the Collateral or the other Banks' rights hereunder or under the other
Loan Documents, proceed to protect and enforce its rights by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Credit Agreement and
the other Loan Documents or any instrument pursuant to which the Obligations or
the Guaranteed Obligations to such Bank are evidenced, including, without
limitation, as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any legal
or equitable right of such Bank. No remedy herein conferred upon any Bank or
the Agent or the holder of any Note or purchaser of any Letter of Credit
Participation is intended to be exclusive of any other remedy and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute
or any other provision of law.
SECTION 13. SETOFF.
Regardless of the adequacy of any collateral, during the continuance
of an Event of Default, any deposits or other sums credited by or due from any
Bank to the Borrower or any Guarantor and any securities or other property of
the Borrower or any Guarantor in the possession of such Bank may be applied to
or set off against the payment of the Obligations and any and all other
liabilities, direct or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising, of the Borrower or any Guarantor to the
Banks. The Banks agree among themselves that, if a Bank shall obtain payment on
any Obligation outstanding under this Credit Agreement through the exercise of
a right of offset, banker's lien or counterclaim, or from any other source
including under Section 12.3 (other than by way of a pro rata payment under
this Credit Agreement), it shall promptly make such adjustments with the other
Banks as shall be equitable to the end that all the Banks shall share the
benefits of such payments pro rata in accordance with the aggregate unpaid
amount of the Revolving Credit Notes held by each Bank immediately prior to the
payment obtained by such Bank as aforesaid. The Banks further agree among
themselves that if any payment to a Bank obtained by such Bank through the
exercise of a right of offset, banker's lien or counterclaim, or from any other
source (other than by way of a pro rata payment) as aforesaid shall be
rescinded or must otherwise be restored, the Banks who shall have shared the
benefit of such payment shall return their share of that benefit to the Bank
whose payment shall have been rescinded or otherwise restored.
<PAGE> 61
-60-
SECTION 14. THE AGENT.
SECTION 14.1. APPOINTMENT OF AGENT, POWERS AND IMMUNITIES.
Each Bank hereby irrevocably appoints and authorizes the Agent to act
as its agent hereunder and under the other Loan Documents, provided, however,
the Agent is hereby authorized to serve only as an administrative and
collateral agent for the Banks and to exercise such powers as are reasonably
incidental thereto and as are set forth in this Credit Agreement and the other
Loan Documents. The Agent hereby acknowledges that it does not have the
authority to negotiate any agreement which would bind the Banks or agree to any
amendment, waiver or modification of any of the Loan Documents or bind the
Banks except as set forth in this Credit Agreement or the Loan Documents.
Except as provided in this Section 14 and in the other Loan Documents, the
Agent shall take action or refrain from acting only upon instructions of the
Banks and no action taken or failure to act without the consent of the Banks
shall be binding on any Bank which has not consented. Each Bank irrevocably
authorizes the Agent to execute the Security Documents and all other
instruments relating thereto and to take such action on behalf of each of the
Banks and to exercise all such powers as are expressly delegated to the Agent
under the Loan Documents and all related documents, together with such other
powers as are reasonably incidental thereto. It is agreed that the duties,
rights, privileges and immunities of BKB, in its capacity as issuer of Letters
of Credit hereunder, shall be identical to its duties, rights, privileges and
immunities as a Bank as provided in this Section 14. The Agent shall not have
any duties or responsibilities or any fiduciary relationship with any Bank
except those expressly set forth in this Credit Agreement. Neither the Agent
nor any of its affiliates shall be responsible to the Banks for any recitals,
statements, representations or warranties made by the Borrower or any other
Person whether contained herein or otherwise or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Credit
Agreement, the other Loan Documents or any other document referred to or
provided for herein or therein or for any failure by the Borrower, any
Guarantor, or any other Person to perform its obligations hereunder or
thereunder or in respect of the Notes. The Agent may employ agents and
attorneys- in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Agent shall exercise the same care in administering the
Loans as its exercises with respect to similar transactions entered into solely
for its own account; however, neither the Agent nor any of its directors,
officers, employees or agents shall be responsible for any action taken or
omitted to be taken in good faith by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct.
The Bank in its separate capacity as a Bank shall have the same rights and
powers hereunder as any other Bank.
<PAGE> 62
-61-
SECTION 14.2. ACTIONS BY AGENT.
The Agent shall be fully justified in failing or refusing to take any
action under this Credit Agreement as it reasonably deems appropriate unless it
shall first have received such advice or concurrence of the Banks and shall be
indemnified to its reasonable satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Credit Agreement
or any of the Loan Documents in accordance with a request of the Majority
Banks, and such request and any action taken or failure to act pursuant thereto
shall be binding upon the Banks and all future holders of the Notes or any
Letter of Credit Participation.
SECTION 14.3. INDEMNIFICATION.
Without limiting the obligations of the Borrower or the Guarantors
under this Credit Agreement or any other Loan Document, the Banks ratably agree
hereby to indemnify and hold harmless the Agent, the Arranger, and their
affiliates from and against any and all claims, actions and suits (whether
groundless or otherwise), losses, damages, costs, expenses (including any
expenses for which the Agent, the Arranger or such affiliate has not been
reimbursed by the Borrower as required by Section 15), and liabilities of every
nature and character arising out of or related to this Credit Agreement, the
Notes, or any of the other Loan Documents or the transactions contemplated or
evidenced hereby or thereby, or the Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused
by the Agent's willful misconduct or gross negligence, it being the intent of
the parties hereto that all such indemnified parties shall be indemnified for
their ordinary sole or contributory negligence.
SECTION 14.4. REIMBURSEMENT.
Without limiting the provisions of Section 14.3, the Banks and the
Agent hereby agree that the Agent shall not be obliged to make available to any
Person any sum which the Agent is expecting to receive for the account of that
Person until the Agent has determined that it has received that sum. The Agent
may, however, disburse funds prior to determining that the sums which the Agent
expects to receive have been finally and unconditionally paid to the Agent, if
the Agent wishes to do so. If and to the extent that the Agent does disburse
funds and it later becomes known that the Agent did not then receive a payment
in an amount equal to the sum paid out, then any Person to whom the Agent made
the funds available shall, on demand from the Agent, refund to the Agent the
sum paid to that Person. If, in the opinion of the Agent, the distribution of
any amount received by it in such capacity hereunder or under the Loan
Documents might involve it in liability, it may refrain from making
distribution until its right to make distribution shall have been adjudicated
by a court of competent jurisdiction. If a court of competent jurisdiction
shall adjudge that any amount received and distributed by the Agent is to be
repaid, each Person to whom any such distribution shall have been made shall
either repay to the Agent its proportionate share of the amount so adjudged to
be repaid or shall pay over the same in such manner and to such Persons as
shall be determined by such court.
<PAGE> 63
-62-
SECTION 14.5. DOCUMENTS.
SECTION 14.5.1. CLOSING DOCUMENTATION.
For purposes of determining compliance with the conditions set forth
in Section 9, each Bank that has executed this Credit Agreement shall be deemed
to have consented to, approved or accepted, or to be satisfied with, each
document and matter either sent, or made available, by the Agent or the
Arranger to such Bank for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Bank, unless the Agent shall have received notice from
such Bank prior to the Closing Date specifying such Bank's objection thereto
and such objection shall not have been withdrawn by notice to the Agent to such
effect on or prior to the Closing Date.
SECTION 14.5.2. OTHER DOCUMENTS.
The Agent will forward to each Bank, promptly after the Agent's
receipt thereof, a copy of each notice or other document furnished to the Agent
for such Bank hereunder; provided, however, that notwithstanding the foregoing,
the Agent may furnish to the Banks a monthly summary with respect to Letters of
Credit issued hereunder in lieu of copies of the related Letter of Credit
Applications.
SECTION 14.6. NON-RELIANCE ON AGENT AND OTHER BANKS.
Each Bank represents that it has, independently and without reliance
on the Agent or any other Bank, and based on such documents and information as
it has deemed appropriate, made its own appraisal of the financial condition
and affairs of the Borrower and its Subsidiaries and decision to enter into
this Credit Agreement and the other Loan Documents and agrees that it will,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own appraisals and decisions in taking or not taking
action under this Credit Agreement or any other Loan Document. The Agent shall
not be required to keep informed as to the performance or observance by the
Borrower or the Guarantors of this Credit Agreement, the other Loan Documents
or any other document referred to or provided for herein or therein or by any
other Person of any other agreement or to make inquiry of, or to inspect the
properties or books of, any Person. Except for notices, reports and other
documents and information expressly required to be furnished to the Banks by
the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning any person
which may come into the possession of the Agent or any of its affiliates. Each
Bank shall have access to all documents relating to the Agent's performance of
its duties hereunder at such Bank's request. Unless any Bank shall promptly
object to any action taken by the Agent hereunder (other than actions to which
the provisions of Section 14.8 are applicable and other than actions which
constitute gross negligence or willful misconduct by the Agent), such Bank
shall conclusively be presumed to have approved the same.
<PAGE> 64
-63-
SECTION 14.7. RESIGNATION OR REMOVAL OF AGENT.
The Agent may resign at any time by giving 60 days' prior written
notice thereof to the Banks and the Borrower. Upon any such resignation, the
Banks shall have the right to appoint a successor Agent. If no successor Agent
shall have been so appointed by the Banks and shall have accepted such
appointment within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a financial institution having a combined
capital and surplus in excess of $150,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation, the provisions of this Credit Agreement shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Agent. Any new Agent appointed pursuant to this Section
14.7 shall immediately issue new Letters of Credit in place of Letters of
Credit previously issued by the Agent (to the extent such Letters of Credit are
returned by the beneficiaries for purposes of such exchange).
SECTION 14.8. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this Credit Agreement
to be given by the Banks may be given, and any term of this Credit Agreement,
the other Loan Documents or any other instrument related hereto or mentioned
herein may be amended, and the performance or observance by the Borrower or any
Subsidiary of any terms of this Credit Agreement, the other Loan Documents or
such other instrument or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Borrower and the written consent of the Majority Banks, provided however, that
the Agent may, in its reasonable discretion, release Collateral with an
aggregate value of $1,000,000 or less in any calendar year. Notwithstanding
the foregoing, no amendment, waiver or consent shall do any of the following
unless in writing and signed by the Borrower and each of the Banks affected
thereby: (a) increase the Commitments of the Banks or subject any Bank to any
additional obligations, or (b) reduce the principal of or the rate of interest
on the Notes (including, without limitation, interest on overdue amounts) or
any fees payable hereunder; and further, no amendment, waiver or consent shall
do any of the following unless in writing and signed by all of the Banks: (c)
postpone the Maturity Date or any date fixed for any payment in respect of
principal or interest (including, without limitation, interest on overdue
amounts) on the Notes, (d) change the definition of "Majority Banks" or the
number of Banks which shall be required for the Banks or any of them to take
any action under the Loan Documents; (e) amend this Section 14.8 or Section 18;
(f) release any Collateral with an aggregate value exceeding $1,000,000 in any
calendar year or (g) release the Borrower, any Guarantor, or any International
Guarantor from its obligations hereunder.
<PAGE> 65
-64-
No waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon. No course of dealing or delay
or omission on the part of the Agent or any Bank in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto. No notice to
or demand upon the Borrower shall entitle the Borrower to other or further
notice or demand in similar or other circumstances.
SECTION 14.9. DELINQUENT BANKS.
Notwithstanding anything to the contrary contained in this Credit
Agreement or any of the other Loan Documents, any Bank that fails (i) to make
available to the Agent its pro rata share of any Loan or to purchase any Letter
of Credit Participation or (ii) to comply with the provisions of Section 15
with respect to making dispositions and arrangements with the other Banks,
where such Bank's share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata share of such payments due and payable
to all of the Banks, in each case as, when and to the full extent required by
the provisions of this Credit Agreement, shall be deemed delinquent (a
"Delinquent Bank") and shall be deemed a Delinquent Bank until such time as
such delinquency is satisfied. A Delinquent Bank shall be deemed to have
assigned any and all payments due to it from the Borrower, whether on account
of outstanding Loans, Reimbursement Obligations, interest, fees or otherwise,
to the remaining nondelinquent Banks for application to, and reduction of,
their respective pro rata shares of all outstanding Loans and Reimbursement
Obligations. The Delinquent Bank hereby authorizes the Agent to distribute such
payments to the nondelinquent Banks in proportion to their respective pro rata
shares of all outstanding Loans and Reimbursement Obligations. A Delinquent
Bank shall be deemed to have satisfied in full a delinquency when and if, as a
result of application of the assigned payments to all outstanding Loans and
Reimbursement Obligations of the nondelinquent Banks, the Banks' respective pro
rata shares of all outstanding Loans and Reimbursement Obligations have
returned to those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.
Section 15. EXPENSES AND INDEMNIFICATION.
SECTION 15.1. EXPENSES.
Whether or not the transactions contemplated herein shall be
consummated, the Borrower agrees to pay (i) the reasonable costs of producing
and reproducing this Credit Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (ii) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of the
Banks (other than taxes based upon the Agent's or any Bank's net income) on or
with respect to the transactions contemplated by this Credit Agreement (the
Borrower hereby agreeing to indemnify the Agent and each Bank with respect
thereto), (iii) the reasonable fees, expenses and disbursements of counsel to
the Agent incurred in connection with the preparation, syndication,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, any amendments,
<PAGE> 66
-65-
modifications, approvals, consents or waivers hereto or hereunder, or the
cancellation of any Loan Document upon payment in full in cash of all of the
Obligations or pursuant to any terms of such Loan Document providing for such
cancellation, (iv) the fees, expenses and disbursements of the Agent, the
Arranger, or any of their affiliates incurred by the Agent, the Arranger, or
such affiliate in connection with the preparation, syndication, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
including all title insurance premiums and surveyor, engineering and appraisal
charges, (v) all reasonable out-of-pocket expenses (including without
limitation reasonable attorneys' fees and costs, which attorneys may be
employees of any Bank or the Agent, and reasonable consulting, accounting,
appraisal, investment banking and similar professional fees and charges)
incurred by any Bank or the Agent in connection with (A) the enforcement of or
preservation of rights under any of the Loan Documents against the Borrower or
any Subsidiary or the administration thereof after the occurrence of a Default
or Event of Default and (B) any litigation, proceeding or dispute whether
arising hereunder or otherwise, in any way related to any Bank's or the Agent's
relationship with the Borrower or any Subsidiary and (vi) all reasonable fees,
expenses and disbursements of the Agent incurred in connection with UCC
searches, UCC filings or mortgage recordings.
SECTION 15.2. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Agent,
its affiliates and the Banks from and against any and all claims, actions and
suits whether groundless or otherwise, and from and against any and all
liabilities, losses, damages and expenses of every nature and character arising
out of this Credit Agreement or any of the other Loan Documents or the
transactions contemplated hereby including, without limitation, (i) any actual
or proposed use by the Borrower or any Subsidiary of the proceeds of any of the
Loans or Letters of Credit, (ii) the Borrower or any Subsidiary entering into
or performing this Credit Agreement or any of the other Loan Documents or (iii)
with respect to the Borrower and its Subsidiaries and their respective
properties and assets, the violation of any Environmental Law, the presence,
disposal, escape, seepage, leakage, spillage, discharge, emission, release or
threatened release of any Hazardous Substances or any action, suit, proceeding
or investigation brought or threatened with respect to any Hazardous Substances
(including, but not limited to, claims with respect to wrongful death, personal
injury or damage to property), in each case including, without limitation, the
reasonable fees and disbursements of counsel and allocated costs of internal
counsel incurred in connection with any such investigation, litigation or other
proceeding. In litigation, or the preparation therefor, the Banks and the
Agent, the Arranger, and their affiliates shall be entitled to select their own
counsel and, in addition to the foregoing indemnity, the Borrower agrees to pay
promptly the reasonable fees and expenses of such counsel. If, and to the
extent that the obligations of the Borrower under this Section 15.2 are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law.
<PAGE> 67
-66-
SECTION 15.3. SURVIVAL.
The covenants contained in this Section 15 shall survive
payment or satisfaction in full of all other Obligations.
SECTION 16. SURVIVAL OF COVENANTS, ETC.
Unless otherwise stated herein, all covenants, agreements,
representations and warranties made herein, in the other Loan Documents or in
any documents or other papers delivered by or on behalf of the Borrower or any
Subsidiary pursuant hereto shall be deemed to have been relied upon by the
Banks and the Agent, notwithstanding any investigation heretofore or hereafter
made by any of them, and shall survive the making by the Banks of the Loans and
the issuance, extension or renewal of any Letters of Credit, as herein
contemplated, and shall continue in full force and effect so long as any amount
due under this Credit Agreement, any Letter of Credit or the Notes remains
outstanding and unpaid or any Bank has any obligation to make any Loans or
issue any Letters of Credit hereunder. All statements contained in any
certificate or other paper delivered by or on behalf of the Borrower or any
Subsidiary pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by the Borrower
hereunder.
SECTION 17. ASSIGNMENT AND PARTICIPATION.
It is understood and agreed that each Bank shall have the right to
assign or participate at any time all or a portion of its Commitment and
interests in the risk relating to any Loans and outstanding Letters of Credit
hereunder in an amount equal to or greater than $5,000,000 (which assignment
shall be of an equal percentage of such Bank's Commitment, the Revolving Credit
Loans and outstanding Letters of Credit) to additional banks or other financial
institutions with the prior written consent of the Agent and, unless a Default
or an Event of Default shall have occurred and be continuing, the Borrower,
which approvals shall not be unreasonably withheld. It is further agreed that
each bank or other financial institution which executes and delivers to the
Banks and the Borrower an Assignment and Acceptance in substantially the form
of Exhibit F (an "Assignment and Acceptance") shall, on the date specified in
such Assignment and Acceptance, become a party to this Credit Agreement and the
other Loan Documents for all purposes of this Credit Agreement and the other
Loan Documents, and its Commitment shall be as set forth in such Assignment and
Acceptance. Upon the execution and delivery of such Assignment and Acceptance
and payment by the assigning bank of an assignment fee in the amount of $3,500
to the Agent (the assigning Bank and/or assignee Bank also being responsible
for their own legal fees incurred in connection with such assignment), (a) the
Borrower shall issue to such bank or other financial institution a Revolving
Credit Note in the amount of such bank's or other financial institution's
Commitment dated the Closing Date or such other date as may be specified by the
Agent and otherwise completed in substantially the form of Exhibit A hereto
and, to the extent any assigning Bank has retained a
<PAGE> 68
-67-
portion of its obligations hereunder, a replacement Revolving Credit Note to
the assigning Bank; (b) the Agent shall distribute to the Borrower, the Banks
and such assignee bank or financial institution a schedule reflecting such
changes; (c) this Credit Agreement shall be appropriately amended to reflect
(i) the status of such bank or financial institution as a party hereto and (ii)
the status and rights of the Banks and Agent hereunder; and (d) the Borrower
shall take such action as the Agent may reasonably request to perfect any
security interests in favor of the Banks, including any bank or financial
institution which becomes a party to this Credit Agreement. The documents
evidencing any such participation may provide that, except with the consent of
the bank or financial institution that is a party thereto, such Bank will not
consent to (a) the reduction in or forgiveness of the stated principal of or
rate of interest on or Commitment Fee with respect to the portion of any Loan
subject to such participation or assignment, (b) the extension or postponement
of any stated date fixed for payment of principal or interest or Commitment Fee
with respect to the portion of any Loan subject to such participation or
assignment, or (c) the waiver or reduction of any right to indemnification of
such Bank hereunder. Notwithstanding the foregoing, no syndication or
participation shall operate to increase the Total Commitment hereunder or
otherwise alter the substantive terms of this Credit Agreement.
SECTION 18. PARTIES IN INTEREST.
All the terms of this Credit Agreement and the other Loan Documents
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto and thereto; provided
that the Borrower shall not assign or transfer its rights hereunder without the
prior written consent of each Bank.
SECTION 19. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the other Loan Documents shall be in writing and shall be
delivered in hand, mailed by United States first-class mail, postage prepaid,
or sent by telegraph, telex or telecopier and confirmed by letter, addressed as
follows:
(a) if to the Borrower, at 2727 Allen Parkway, Suite 760, Houston,
Texas 77019, Attention: Larry McAfee, Executive Vice President and CFO,
telephone number 713-285-2700, telecopy number 713-522-1759;
(b) if to the Agent or BKB, at 100 Federal Street, Boston,
Massachusetts 02110, Attention: Timothy M. Laurion, Director, telephone number
617-434-9689, telecopy number 617-434-2160;
or such other address for notice as shall have last been furnished in
writing to the Person giving the notice.
<PAGE> 69
-68-
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (a) if delivered by hand to a responsible
officer of the party to which it is directed, at the time of the receipt
thereof by such officer, (b) if sent by registered or certified first-class
mail, postage prepaid, five Business Days after the posting thereof, and (c) if
sent by telex or cable, at the time of the dispatch thereof, if in normal
business hours in the country of receipt, or otherwise at the opening of
business on the following Business Day.
SECTION 20. GUARANTY.
SECTION 20.1. GUARANTY.
For value received and hereby acknowledged and as an
inducement to the Banks and the Agent to make the Loans available to the
Borrower, and issue, extend or renew Letters of Credit for the account of the
Borrower, the Guarantors each hereby unconditionally and irrevocably guarantee
(a) the full punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of the Borrower now or hereafter
existing whether for principal, interest, fees, expenses or otherwise, and (b)
the strict performance and observance by the Borrower of all agreements,
warranties and covenants applicable to the Borrower in the Loan Documents,
including with respect to the environmental indemnification contained in
Section 6.11 and (c) the obligations of the Borrower under the Loan Documents
(such Obligations collectively being hereafter referred to as the "Guaranteed
OBLIGATIONS").
SECTION 20.2. GUARANTY ABSOLUTE.
Each of the Guarantors guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms hereof,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Bank or the Agent
with respect thereto. The liability of the Guarantors under the guaranty
granted under this Credit Agreement with regard to the Guaranteed Obligations
shall be absolute and unconditional irrespective of:
(a) any change in the time, manner or place of payment
of, or in any other term of, all or any of its Guaranteed Obligations or any
other amendment or waiver of or any consent to departure from this Credit
Agreement or any other Loan Document (with regard to such Guaranteed
Obligations);
(b) any release or amendment or waiver of or consent to
departure from any other guaranty for all or any of its Guaranteed Obligations;
(c) any change in ownership of the Borrower;
(d) any acceptance of any partial payment(s) from the
Borrower or any other Guarantor; or
<PAGE> 70
-69-
(e) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Borrower in respect
of its Obligations under any Loan Document.
The guaranty under this Credit Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any Guaranteed Obligation is rescinded or must otherwise be returned by the
Banks or the Agent upon the insolvency, bankruptcy or reorganization of the
Borrower or otherwise, all as though such payment had not been MADE.
SECTION 20.3. EFFECTIVENESS; ENFORCEMENT.
The guaranty under this Credit Agreement shall be effective
and shall be deemed to be made with respect to each Loan and each Letter of
Credit as of the time it is made, issued or extended, or becomes a Letter of
Credit under this Credit Agreement, as applicable. No invalidity, irregularity
or unenforceability by reason of any bankruptcy or similar law, or any law or
order of any government or agency thereof purporting to reduce, amend or
otherwise affect any liability of the Borrower, and no defect in or
insufficiency or want of powers of the Borrower or irregular or improperly
recorded exercise thereof, shall impair, affect, be a defense to or claim
against such guaranty. The guaranty under this Credit Agreement is a continuing
guaranty and shall (a) survive any termination of this Credit Agreement, and
(b) remain in full force and effect until payment in full of, and performance
of, all Guaranteed Obligations and all other amounts payable under this Credit
Agreement. The guaranty under this Credit Agreement is made for the benefit of
the Agent and the Banks and their successors and assigns, and may be enforced
from time to time as often as occasion therefor may arise and without
requirement on the part of the Agent or the Banks first to exercise any rights
against the Borrower, or to resort to any other source or means of obtaining
payment of any of the said obligations or to elect any other remedy.
SECTION 20.4. WAIVER.
Except as otherwise specifically provided in any of the Loan
Documents, each of the Guarantors hereby waives promptness, diligence, protest,
notice of protest, all suretyship defenses, notice of acceptance and any other
notice with respect to any of its Guaranteed Obligations and the guaranty under
this Credit Agreement and any requirement that the Banks or the Agent protect,
secure, perfect any security interest or lien or any property subject thereto
or exhaust any right or take any action against the Borrower or any other
Person. Each of the Guarantors also irrevocably waives, to the fullest extent
permitted by law, all defenses which at any time may be available to it in
respect of its Guaranteed Obligations by virtue of any statute of limitations,
valuation, stay, moratorium law or other similar law now or hereafter in
effect.
SECTION 20.5. EXPENSES.
Each of the Guarantors hereby promises to reimburse (a) the
Agent and its affiliates for all reasonable out-of-pocket fees and
disbursements (including all reasonable attorneys' fees), incurred or expended
in
<PAGE> 71
-70-
connection with the preparation, filing or recording, or interpretation of the
guaranty under this Credit Agreement, the other Loan Documents to which such
Guarantor is a party, or any amendment, modification, approval, consent or
waiver hereof or thereof, and (b) the Agent and the Banks and their respective
affiliates for all reasonable out-of-pocket fees and disbursements (including
reasonable attorneys' fees), incurred or expended in connection with the
enforcement of its Guaranteed Obligations (whether or not legal proceedings are
instituted). The Guarantors will pay any taxes (including any interest and
penalties in respect thereof) other than the Banks' taxes based on overall
income or profits, payable on or with respect to the transactions contemplated
by the guaranty under this Credit Agreement, each of the Guarantors hereby
agreeing jointly and severally to indemnify each Bank with respect THERETO.
SECTION 20.6. CONCERNING JOINT AND SEVERAL LIABILITY OF THE GUARANTORS.
(a) Each of the Guarantors hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with the Borrower, with respect to the payment and
performance of all of its Guaranteed Obligations (including, without
limitation, any Guaranteed Obligations arising under this Section 20), it being
the intention of the parties hereto that all such Guaranteed Obligations shall
be the joint and several Guaranteed Obligations of such Guarantor and the
Borrower without preferences or distinction among them.
(b) If and to the extent that the Borrower shall fail to
make any payment with respect to any of its Guaranteed Obligations as and when
due or to perform any of its Guaranteed Obligations in accordance with the
terms thereof, then in each such event the applicable Guarantor will make such
payment with respect to, or perform, such Guaranteed Obligation.
(c) The Guaranteed Obligations of each Guarantor under
the provisions of this Section 20 constitute full recourse obligations of such
Guarantor enforceable against such Guarantor to the full extent of its
properties and assets, irrespective of the validity, regularity or
enforceability of this Credit Agreement or any other circumstance whatsoever.
(d) Except as otherwise expressly provided in this Credit
Agreement, each of the Guarantors hereby waives notice of acceptance of its
joint and several liability, notice of any Loans made, or Letters of Credit
issued under this Credit Agreement, notice of any action at any time taken or
omitted by the Agent or the Banks under or in respect of any of the Guaranteed
Obligations, and, generally, to the extent permitted by applicable law, all
demands, notices and other formalities of every kind in connection with this
Credit Agreement. Each of the Guarantors hereby assents to, and waives notice
of, any extension or postponement of the time for the payment of any of the
Guaranteed Obligations, the acceptance of any payment of any
<PAGE> 72
-71-
of the Guaranteed Obligations, the acceptance of any partial payment thereon,
any waiver, consent or other action or acquiescence by the Agent or the Banks
at any time or times in respect of any Default or Event of Default by the
Borrower or the Guarantors in the performance or satisfaction of any term,
covenant, condition or provision of this Credit Agreement or any other Loan
Document, any and all other indulgences whatsoever by the Agent or the Banks in
respect of any of the Guaranteed Obligations, and the taking, addition,
substitution or release, in whole or in part, at any time or times, of any
security for any of the Guaranteed Obligations or the addition, substitution or
release, in whole or in part, of the Borrower or any Guarantor. Without
limiting the generality of the foregoing, each of the Guarantors assents to any
other action or delay in acting or failure to act on the part of the Banks or
the Agent with respect to the failure by the Borrower or any Guarantor to
comply with its respective Obligations or Guaranteed Obligations, including,
without limitation, any failure strictly or diligently to assert any right or
to pursue any remedy or to comply fully with applicable laws or regulations
thereunder, which might, but for the provisions of this Section 20, afford
grounds for terminating, discharging or relieving the Guarantors, in whole or
in part, from any of the Guaranteed Obligations under this Section 20, it being
the intention of the Guarantors that, so long as any of the Guaranteed
Obligations hereunder remain unsatisfied, the Guaranteed Obligations of each of
the Guarantors under this Section 20 shall not be discharged except by
performance and then only to the extent of such performance. The Guaranteed
Obligations of each of the Guarantors under this Section 20 shall not be
diminished or rendered unenforceable by any winding up, reorganization,
arrangement, liquidation, reconstruction or similar proceeding with respect to
the Borrower or any of the Guarantors or the Banks or the Agent. The joint and
several liability of each of the Guarantors hereunder shall continue in full
force and effect notwithstanding any absorption, merger, consolidation,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of the Borrower or the Guarantors, the Banks
or the Agent.
(e) The Guarantors shall be liable under the Guaranty
under this Section 20 only for the maximum amount of such liabilities that can
be incurred under applicable law without rendering this Credit Agreement, as it
relates to the guaranty under this Section 20, voidable under applicable law
relating to fraudulent conveyance and fraudulent transfer, and not for any
greater amount. Accordingly, if any obligation under any provision of the
guaranty under this Section 20 shall be declared to be invalid or unenforceable
in any respect or to any extent, it is the stated intention and agreement of
the Guarantors, the Agent and the Banks that any balance of the obligation
created by such provision and all other obligations of the Guarantors under
this Section 20 to the Banks or the Agent shall remain valid and enforceable,
and that all sums not in excess of those permitted under applicable law shall
remain fully collectible by the Banks and the Agent from the Borrower or the
Guarantors, as the case may be.
<PAGE> 73
-72-
(f) The provisions of this Section 20 are made for the
benefit of the Agent and the Banks and their successors and assigns, and may be
enforced in good faith by them from time to time against the Guarantors as
often as occasion therefor may arise and without requirement on the part of the
Agent or the Banks first to marshal any of their claims or to exercise any of
their rights against the Borrower or the Guarantors or to exhaust any remedies
available to them against the Borrower or the Guarantors or to resort to any
other source or means of obtaining payment of any of the obligations hereunder
or to elect any other remedy. The provisions of this Section 20 shall remain in
effect until all of the Guaranteed Obligations shall have been paid in full or
otherwise fully satisfied and the Commitments have expired and all outstanding
Letters of Credit have expired, matured or otherwise been terminated. If at any
time, any payment, or any part thereof, made in respect of any of the
Guaranteed Obligations, is rescinded or must otherwise be restored or returned
by the Banks or the Agent upon the insolvency, bankruptcy or reorganization of
the Borrower or any of the Guarantors, or otherwise, the provisions of this
Section 20 will forthwith be reinstated in effect, as though such payment had
not been made.
SECTION 20.7. WAIVER.
Until the final payment and performance in full of all of the
Obligations, none of the Guarantors shall exercise and each of the Guarantors
hereby waives any rights such Guarantor may have against the Borrower or the
other Guarantors arising as a result of payment by such Guarantor hereunder, by
way of subrogation, reimbursement, restitution, contribution or otherwise, and
will not prove any claim in competition with the Agent or any Bank in respect
of any payment hereunder in any bankruptcy, insolvency or reorganization case
or proceedings of any nature; such Guarantor will not claim any setoff,
recoupment or counterclaim against the Borrower or the other Guarantors in
respect of any liability of the Borrower to such Guarantor; and such Guarantor
waives any benefit of and any right to participate in any collateral security
which may be held by the Agent or any Bank.
SECTION 20.8. SUBROGATION; SUBORDINATION.
The payment of any amounts due with respect to any
indebtedness of the Borrower for money borrowed or credit received now or
hereafter owed to any of the Guarantors is hereby subordinated to the prior
payment in full of all of the Obligations. Each of the Guarantors agrees that,
after the occurrence of any default in the payment or performance of any of the
Obligations, such Guarantor will not demand, sue for or otherwise attempt to
collect any such indebtedness of the Borrower or the other Guarantors to such
Guarantor until all of the Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, any of the Guarantors shall collect,
enforce or receive any amounts in respect of such indebtedness while any
Obligations are still outstanding, such amounts shall be collected, enforced
and received by such Guarantor as trustee for the Banks and the Agent and be
paid over to the Agent at Default, for the benefit of the Banks, and the Agent
on account of the Obligations without affecting in any manner the liability of
such Guarantor under the other provisions hereof.
<PAGE> 74
-73-
SECTION 21. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
SECTION 21.1. SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY.
The Borrower acknowledges that from time to time financial advisory, investment
banking and other services may be offered or provided to the Borrower or one or
more of its Subsidiaries, in connection with this Credit Agreement or
otherwise, by a Section 20 Subsidiary. The Borrower, for itself and each of its
Subsidiaries, hereby authorizes (a) such Section 20 Subsidiary to share with
the Agent and each Bank any information delivered to such Section 20 Subsidiary
by the Borrower or any of its Subsidiaries, and (b) the Agent and each Bank to
share with such Section 20 Subsidiary any information delivered to the Agent or
such Bank by the Borrower or any of its Subsidiaries pursuant to this Credit
Agreement, or in connection with the decision of such Bank to enter into this
Credit Agreement; it being understood, in each case, that any such Section 20
Subsidiary receiving such information shall be bound by the confidentiality
provisions of this Credit Agreement. Such authorization shall survive the
payment and satisfaction in full of all of the Obligations.
SECTION 21.2. CONFIDENTIALITY.
Each of the Banks and the Agent agrees, on behalf of itself and each
of its affiliates, directors, officers, employees and representatives, to use
reasonable precautions to keep confidential, in accordance with their customary
procedures for handling confidential information of the same nature and in
accordance with safe and sound banking practices, any non-public information
supplied to it by the Borrower or any of its Subsidiaries pursuant to this
Credit Agreement that is identified by such Person as being confidential at the
time the same is delivered to the Banks or the Agent, provided that nothing
herein shall limit the disclosure of any such information (a) after such
information shall have become public other than through a violation of this
Section 21, (b) to the extent required by statute, rule, regulation or judicial
process, (c) to counsel for any of the Banks or the Agent, (d) to bank
examiners or any other regulatory authority having jurisdiction over any Bank
or the Agent, or to auditors or accountants, (e) to the Agent, any Bank or any
Section 20 Subsidiary, (f) in connection with any litigation to which any one
or more of the Banks, the Agent or any Section 20 Subsidiary is a party, or in
connection with the enforcement of rights or remedies hereunder or under any
other Loan Document, (g) to a subsidiary or affiliate of such Bank as provided
in Section 21.1 or (h) to any assignee or participant (or prospective assignee
or participant) so long as such assignee or participant agrees to be bound by
the provisions of this Section 21.
SECTION 21.3. PRIOR NOTIFICATION.
Unless specifically prohibited by applicable law or court order, each
of the Banks and the Agent shall, prior to disclosure thereof, notify the
Borrower of any request for disclosure of any such non-public information by
any governmental agency or representative thereof (other than any such request
in connection with an examination of the financial condition of such Bank by
such governmental agency) or pursuant to legal process.
<PAGE> 75
-74-
SECTION 21.4. OTHER.
In no event shall any Bank or the Agent be obligated or required to
return any materials furnished to it or any Section 20 Subsidiary by the
Borrower or any of its Subsidiaries. The obligations of each Bank under this
Section 21 shall supersede and replace the obligations of such Bank under any
confidentiality letter in respect of this financing signed and delivered by
such Bank to the Borrower prior to the date hereof and shall be binding upon
any assignee of, or purchaser of any participation in, any interest in any of
the Loans or Reimbursement Obligations from any Bank.
SECTION 22. MISCELLANEOUS.
The rights and remedies herein expressed are cumulative and not
exclusive of any other rights which the Banks or Agent would otherwise have.
The captions in this Credit Agreement are for convenience of reference only and
shall not define or limit the provisions hereof. This Agreement and any
amendment hereof may be executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one instrument. In proving
this Credit Agreement it shall not be necessary to produce or account for more
than one such counterpart signed by the party against whom enforcement is
sought.
SECTION 23. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in Section 14.8. No waiver shall extend to or affect any obligation
not expressly waived or impair any right consequent thereon. No course of
dealing or omission on the part of the Agent or any Bank in exercising any
right shall operate as a waiver thereof or otherwise be prejudicial thereto. No
notice to or demand upon the Borrower shall entitle the Borrower to other or
further notice or demand in similar or other circumstances.
SECTION 24. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT
TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE
PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY HERETO
(a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE,
<PAGE> 76
-75-
THAT IT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (b) ACKNOWLEDGES THAT EACH OTHER PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY BECAUSE
OF, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
SECTION 25. GOVERNING LAW.
This Agreement and each of the other Loan Documents are contracts
under the laws of the Commonwealth of Massachusetts and shall for all purposes
be construed in accordance with and governed by the laws of said commonwealth
(excluding the laws applicable to conflicts or choice of law). The Borrower and
Guarantors consent to the jurisdiction of any of the federal or state courts
located in the Commonwealth of Massachusetts in connection with any suit to
enforce the rights of any Bank or the Agent under this Credit Agreement or any
of the other Loan Documents.
SECTION 26. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or
in part in any jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such jurisdiction,
and shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Credit Agreement in any
jurisdiction.
[Signature Pages Follow]
<PAGE> 77
IN WITNESS WHERETO, the undersigned have duly executed this Credit
Agreement under seal as of the date first set forth above.
THE BORROWER:
ITEQ, INC.
By: /s/ LAWRANCE W. MCAFEE
---------------------------
Lawrance W. McAfee
Chief Financial Officer
THE GUARANTORS:
AIR-CURE DYNAMICS, INC.
AMEREX INDUSTRIES, INC.
EXELL, INC.
OHMSTEDE, INC.
INTEREL ENVIRONMENTAL TECHNOLOGIES, INC.
ALLIED INDUSTRIES, INC.
By: /s/ LAWRANCE W. MCAFEE
---------------------------
Lawrance W. McAfee
Chief Financial Officer
HMT INC.
HMT CONSTRUCTION SERVICES, INC.
HMT TANK SERVICE, INC.
AIX INTELLECTUAL PROPERTIES, INC.
HMT SENTRY SYSTEMS, INC.
ASTROTECH INVESTMENTS, INC.
TEXOMA TANK COMPANY, INC.
BROWN-MINNEAPOLIS TANK & FABRICATING CO.
GRAVER HOLDING COMPANY
GRAVER TANK & MFG. CO., INC.
GRAVER TANK INTERNATIONAL, INC.
GRAVER POWER, INC.
GRAVER TANK & VESSEL, INC.
TRUSCO TANK INC.
By: /s/ LAWRANCE W. MCAFEE
----------------------------
Lawrance W. McAfee
Chief Financial Officer
<PAGE> 78
THE LENDERS:
BANKBOSTON, N.A.,
individually and as Agent
By: /s/ TIMOTHY M. LAURION
-----------------------------------
Timothy M. Laurion, Director
DEUTSCHE BANK AG,
individually and as Documentation Agent
By: /s/ JEAN M. HANNIGAN
-------------------------------------
Name: Jean M. Hannigan
Title: Vice President
By: /s/ SUSAN L. PEARSON
-------------------------------------
Name: Susan L. Pearson
Title: Vice President
BANK OF SCOTLAND
By: /s/ ANNIE CHIN TAT
-------------------------------------
Name: Annie Chin Tat
Title: Vice President
BANK ONE, TEXAS, N.A.
By: /s/ BARRY A. KELLY
-------------------------------------
Name: Barry A. Kelly
Title: Senior Vice President
<PAGE> 79
BANQUE PARIBAS
By: /s/ SCOTT CLINGAN
---------------------------------------
Name: Scott Clingan
Title: Vice President
By: /s/ LARRY ROBINSON
---------------------------------------
Name: Larry Robinson
Title: Vice President
COMERICA BANK
By: /s/ REGINALD M. GOLDSMITH, III
---------------------------------------
Name: Reginald M. Goldsmith, III
Title: Vice President
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By: /s/ PHILIP C. LAUINGER, III
---------------------------------------
Name: Philip C. Lauinger, III
Title: Vice President & Manager
HIBERNIA NATIONAL BANK
By: /s/ STEPHANIE M. FREEMAN
---------------------------------------
Name: Stephanie M. Freeman
Title: Banking Officer
NATIONSBANK OF TEXAS, N.A.
By: /s/ RICHARD NICHOLS
---------------------------------------
Name: Richard Nichols
Title: Vice President
<PAGE> 80
TEXAS COMMERCE BANK, N.A.
By: /s/ MICHAEL ONDRUCH
-----------------------------------------
Name: Micael Ondruch
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ JULIE BLOOMFIELD
------------------------------------------
Name: Julie Bloomfield
Title: Vice President
<PAGE> 1
EXHIBIT 10.3
September 30, 1997
Mr. Mark E. Johnson
3620 Albans
Houston, Texas 77005
Dear Mr. Johnson:
ITEQ, Inc. (the "Company") considers the establishment and maintenance
of a sound and vital management to be essential for the protection and
enhancement of the best interests of the Company and its shareholders. In view
of your experience and performance in the business of the Company and its
subsidiaries, the Company desires to retain your services for an extended
period. In addition, the Company recognizes that, as is the case with many
publicly-held corporations, the possibility of a change in control may arise
and that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of management
personnel to the detriment of the Company and its shareholders.
Accordingly, the board of directors of the Company (the "Board") has
determined that appropriate steps should be taken to assure the Company of the
continuation of your services and to reinforce and encourage the attention and
dedication of members of the Company's management to their assigned duties
without distraction in circumstances arising from the possibility of a change
in control of the Company. In particular the Board believes it important,
should the Company or its shareholders receive a proposal for or notice of
transfer of control of the Company, that you be able to assess and advise the
Board whether such transfer would be or is in the best interests of the Company
and its shareholders, and to take such other action regarding such proposal or
transfer as the Board might determine to be appropriate without being
influenced by the uncertainties of your own situation.
In order to induce you to remain in the employ of the Company, this
letter agreement (the "Agreement"), which has been approved by the Board and
which supersedes any previous employment arrangements between you and the
Company in their entirety, sets forth the terms of your continued employment by
the Company and the compensation and severance benefits which the Company
agrees will be provided to you in the event of a change in control and if your
employment with the Company should be terminated under the circumstances
described below.
Reference is made to Annex I hereto for definitions of certain terms
used in this Agreement, and such definitions are incorporated herein by such
reference with the same effect
<PAGE> 2
Mr. Mark E. Johnson
September 30, 1997
Page 2
as if set forth herein. Certain capitalized terms used in this Agreement in
connection with the description of various Plans are defined in the respective
Plans, but if any conflicts with a definition herein contained, the latter
shall prevail.
1. Term of Employment. The Company hereby agrees to continue
your employment and you hereby agree to serve the Company for an employment
period commencing on the date hereof and initially ending the third anniversary
from the date hereof; provided, however, that on each successive September 30
commencing in 1998, the employment period shall automatically be extended for
one additional year (with the date to which the employment period has most
recently been so extended being hereinafter referred to as the "Expiration
Date" and the period commencing the date hereof and ending on the Expiration
Date being hereinafter referred to as the "Employment Period"), subject to
prior termination of the Employment Period pursuant to Section 4 of this
Agreement.
2. Duties.
(a) During the Employment Period, you shall serve the
Company as its Chairman and Chief Executive Officer and perform your duties and
responsibilities diligently, faithfully and loyally and devote such time to the
Company's affairs as may be necessary to the end of achieving the proper,
efficient and successful operation of the Company's business. In such
capacities you shall (i) generally have the duties of such offices as specified
in the Bylaws, (ii) report directly to the Board and (iii) have general
executive supervision and management of the business and affairs of the
Company, subject to the direction of the Board or any Committee thereof. The
foregoing shall not, however, be deemed to restrict you from attending to
matters or engaging in activities not directly related to the business of the
Company, if reasonable in scope and time commitment and not otherwise in
violation of this Agreement.
(b) If during the Employment Period, (i) a tender offer
or exchange offer is made for more than 20% of the Company's outstanding Voting
Securities or (ii) a transaction is proposed which, if consummated, would
result in a Change of Control, you agree that you will not leave your
employment with the Company (other than as a result of Disability or upon
Retirement) and will also continue to render the services contemplated in the
introductory paragraphs of this Agreement.
<PAGE> 3
Mr. Mark E. Johnson
September 30, 1997
Page 3
3. Compensation.
(a) Base Salary. As compensation for your services, the
Company agrees to pay you basic compensation at the rate of $350,000 per annum
through December 31, 1997 ("Base Salary"), payable on a current basis in equal
installments not less frequently than monthly, subject only to such payroll and
withholding deductions as may be required by law or the terms of Plans in which
you are a participant. For periods subsequent to December 31, 1997, your Base
Salary shall be established annually by the Compensation Committee of the Board
and paid on the same basis as for the prior year, but no such adjustment shall
result in a Base Salary for any year of less than the highest annual rate so
authorized by the Committee to be paid to you during any previous calendar
year(s) of the Company ended during the Employment Period, except upon your
prior written consent.
(b) Plans. In addition to your Base Salary, you will
participate in the Bonus Plan and be eligible to participate in the Defined
Contribution Plan and Other Plans, for each year during the Employment Period.
(c) Other. The Company shall reimburse you for all
expenses paid or incurred by you in the performance of your duties under this
Agreement in accordance with the Company's normal expense reimbursement
policies applicable to senior executives.
4. Termination. Upon compliance by the initiating party with any
applicable procedures set forth in Section 5 hereof, your employment with the
Company:
(a) shall terminate automatically upon your death or
Retirement;
(b) may be terminated prior to the Expiration Date at the
discretion of the Board upon your Disability;
(c) may be terminated prior to the Expiration Date at the
discretion of the Board for Cause;
(d) may be terminated prior to the Expiration Date at
your discretion, other than for Good Reason;
(e) may be terminated prior to the Expiration Date at the
discretion of the Board prior to a Change of Control without Cause;
<PAGE> 4
Mr. Mark E. Johnson
September 30, 1997
Page 4
(f) may be terminated prior to the Expiration Date at the
discretion of the Board at or after a Change of Control without Cause;
(g) may be terminated prior to the Expiration Date at
your discretion for Good Reason prior to a Change of Control; or
(h) may be terminated prior to the Expiration Date at
your discretion for Good Reason at or after a Change of Control.
5. Procedures for Termination. If it is intended that your
employment be terminated:
(a) pursuant to Section 4(b), the Company shall transmit
to you written notice setting forth the particulars upon which the
Company bases its determination that a Disability exists, together
with a Board resolution adopted by at least two-thirds of the members
of the Board requiring that you resume your duties within 30 days
following the date thereof, failing which a "final discharge" shall
then occur;
(b) pursuant to Section 4(c), the Company shall transmit
to you written notice setting forth the Cause for which you are
proposed to be dismissed in sufficient detail to permit a reasonable
assessment of the bona fides thereof, and setting a meeting of the
Board not less than 30 days following the date of such notice at which
the Board shall consider your termination and at which you and your
counsel shall have the opportunity to be heard, following which the
Board shall either by resolution withdraw the notice, or if it so
finds in its good faith opinion, issue its report within ten days
thereafter that Cause exists and specifying the particulars of its
findings, in which latter event a "final discharge" shall occur.
After receipt of a notice of intended termination for Cause, you shall
not have any authority to incur any obligation of any kind whatsoever
on behalf of the Company pending withdrawal of such notice or "final
discharge;"
(c) pursuant to Section 4(d), you shall transmit to the
Company written notice specifying that your resignation is other than
for Good Reason;
(d) pursuant to Section 4(e) or 4(f) the Company shall
transmit to you written notice specifying that your termination is
without Cause;
(e) pursuant to Section 4(g) or 4(h), you shall transmit
to the Company written notice setting forth the particulars upon which
you base your determination that Good
<PAGE> 5
Mr. Mark E. Johnson
September 30, 1997
Page 5
Reason exists and, only if the stated basis therefor is capable of
being cured, requesting a cure within 10 days, failing which a "final
separation" shall then occur, and if such stated basis is not capable
of cure by the Company, "final separation" shall occur co-extensive
with delivery of the notice.
For purposes of this Agreement, a "Termination Date" shall be deemed
to have occurred upon (i) the happening of any event contemplated by Section
4(a) [death or Retirement], (ii) the date of "final discharge" in the case of
termination initiated under Sections 5(a) [Disability] or 5(b)[Cause], (iii)
the date of "final separation" in the case of a termination initiated under
Section 5(e) [Good Reason], or (iv) the 30th day following the date of any
notice contemplated by Sections 5(c) [resignation without Good Reason] or 5(d)
[discharge without Good Reason; provided, that any proceeding initiated
pursuant to Section 10 hereof within 15 days after the giving of any notice
under this Section 5 shall (anything else in this Agreement to the contrary
notwithstanding) automatically toll the effectiveness of any Termination Date
until final resolution of such proceeding. Each notice which complies with the
requirements of this Section 5 is hereinafter referred to as a "Termination
Notice".
6. Effect of Termination. If your employment is terminated:
(a) pursuant to Sections 4(a) [death or Retirement], 4(b)
[Disability], 4(c) [Cause], or 4(d) [resignation without Good Reason],
then you shall be entitled to receive (i) payment when due of your
Base Salary through the end of the first monthly pay period ended
after the Termination Date and (ii) all benefits under the Plans in
which you are at the time a participant, to the extent the same are
vested under the terms thereof at the Termination Date, and (except as
otherwise provided herein) all other obligations of the Company under
this Agreement shall thereupon cease; or
(b) pursuant to Sections 4(e) [discharge without Cause
prior to Change of Control] or 4(g) [resignation for Good Reason prior
to Change of Control], then you shall become entitled to all benefits
conferred upon you by the Termination Package, and (except as
otherwise provided herein) all other obligations of the Company under
this Agreement shall thereupon cease; or
(c) pursuant to Sections 4(f) [discharge without Cause
after Change of Control] or 4(h) [resignation for Good Reason after
Change of Control], then you shall become entitled to all benefits
conferred upon you by the Severance Package, and (except as
<PAGE> 6
Mr. Mark E. Johnson
September 30, 1997
Page 6
otherwise provided herein) all other obligations of the Company under
this Agreement shall thereupon cease.
You shall not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment, nor shall the
amount of any payment provided for in this Agreement be reduced by any
compensation earned by you as the result of employment by another employer
after any Effective Date or Termination Date.
7. Excise Tax. To the extent that the acceleration of vesting or
any payment, distribution or issuance made to you pursuant to this Agreement
following any Effective Date or Change of Control is subject to federal income,
excise, or other tax at a rate above the rate ordinarily applicable to like
payments paid in the ordinary course of business ("Penalty Tax"), whether as a
result of the provisions of Section 280G(b)(1) and 4999(a) of the Internal
Revenue Code of 1986, as amended, any similar or analogous provisions of any
statute adopted subsequent to the date hereof, or otherwise, then the Company
shall pay you an additional amount of cash (the "Additional Amount") such that
the net amount received by you, after paying any applicable Penalty Tax and any
federal or state income tax on such Additional Amount, shall be equal to the
amount that you would have received if such Penalty Tax were not applicable.
8. Deferral of Payments; Early Payments. At any time prior to a
Termination Date, you may irrevocably direct the Company that any amounts which
are or should become payable to you under the Severance Package or Termination
Package shall be paid to you in three equal installments, payable on or within
ten days following the Termination Date, and on the first and second
anniversaries of the initial installment payment. In addition, if any payment
to you in respect of a stock-based benefit which is precipitated by the
occurrence of an Effective Date or a Termination Date and which would, in and
of itself, give rise to a short-swing profit under Section 16(b) of the
Exchange Act, then both the payment and the entitlement to payment thereof,
shall automatically be deferred until the earliest date (not later than 183
days following a Termination Date) at which the payment of such benefit would
not, in and of itself, result in a short-swing profit. The Company and you
further agree that when it has become apparent in our collective best judgment
(as expressed by the Compensation Committee of the Board, in the case of the
Company) that a Change of Control is likely to occur and further that a likely
consequence thereof will be the occurrence of a Termination Date, the Company
and you will use reasonable good faith efforts to undertake and conclude
negotiations intended to result in the payment to you of a portion of the
Severance Package earlier than would otherwise be the case hereunder, thereby
increasing the benefit conferred upon you and the tax efficiency of such
payments to the Company, with any consequent tax savings to be allocated
between you and the Company in such reasonable
<PAGE> 7
Mr. Mark E. Johnson
September 30, 1997
Page 7
proportions as we shall agree; unless so agreed to by both parties
in writing, no such negotiation or agreement shall affect the Company's
obligations to you under any other provision of this Agreement.
9. Conditional Share Purchase Obligation.
(a) If a Change of Control occurs as a consequence of a
tender offer or exchange offer (the "Tender Offer"), the Company shall, if
requested by you, purchase from you (whether a Termination Date has occurred
following the Change of Control) for cash on any business day selected by you
upon not less than ten days' notice to the Company, which day shall not be less
than ten days following consummation of the Tender Offer nor more than three
years after the Effective Date, up to that number of Shares which shall be
equal to the product of (x) the number of Shares acquired by you upon exercise
or distribution of any benefit under any Plan prior to consummation of the
Tender Offer, multiplied by (y) the decimal equivalent of (I) the number of
Shares accepted for purchase or exchange in the Tender Offer, divided by (II)
the number of Shares timely and validly tendered pursuant to the Tender Offer.
In the event the above obligation to purchase Shares occurs by reason of a cash
tender offer or a combination cash tender offer and exchange offer, the cash
price per share to be paid to you hereunder shall be equal to the highest price
paid in cash pursuant to the Tender Offer. In the event such obligation occurs
by reason of an exchange offer, the cash price per share to be paid to you
hereunder shall be equal to the closing price, if traded on a stock exchange,
or the average bid and asked prices, if traded in the over-the-counter market,
of the security of the person so exchanged for the Shares (the "Exchange
Security") on the first day on which the Exchange Security could have been sold
by you on such exchange or in the over-the-counter market, as the case may be,
in a regular broker's transaction had your Shares been tendered and accepted,
multiplied by the number of Exchange Securities (or fraction thereof) issued in
the Tender Offer for each Company Share; and
(b) if a Change of Control occurs pursuant to a Tender
Offer and (i) a merger, consolidation, reorganization, sale, spin-off, or
purchase of assets under which all remaining outstanding Shares will be
converted into or become exchangeable for cash, or for securities ("Merger
Security") issued or to be issued by the Person who made the Tender offer (or a
subsidiary or affiliate of such Person), is thereafter proposed to the Company
or its shareholders, and (ii) such merger, consolidation, reorganization or
purchase of assets occurs less than three years after the Effective Date, and
(iii) the amounts of cash into which each Share would be converted if the
transaction is effected wholly for cash, or the Merger Security Value (as
defined below) if such transaction is effected wholly for Merger Securities, or
the sum of the cash and the Merger Security Value if the Transaction is
effected partly for cash and partly for Merger
<PAGE> 8
Mr. Mark E. Johnson
September 30, 1997
Page 8
Securities, as the case may be, is less than 95% of the per share price that
would have been paid by the Company for such portion of your Shares had you
exercised your option to require the Company to purchase such Shares under
Section 9(a) above, the Company shall pay you (whether or not a Termination
Date has occurred following a Change of Control), an amount in cash equal to
the difference between the aggregate price you would have received from the
number of Shares the Company would have been required to purchase from you had
you exercised such option under Section 9(a) and the amount of cash and/or the
Merger Security Value received for the same number of Shares in such merger,
consolidation, reorganization or purchase of assets. Such cash payment shall
be made to you on a business day selected by you upon no less than ten calendar
days' notice to the Company or its Successor (as hereinafter defined). For
purposes of this Section 9(b), "Merger Security Value" shall mean the closing
price, if traded on a stock exchange, or the average bid and asked prices if
traded in the over-the-counter market, of the Merger Security on the first day
on which the Merger Security could have been sold by you on such exchange or in
the over-the-counter market, as the case may be, in a regular broker's
transaction, multiplied by the number of Merger Securities (or fraction
thereof) for which each Share was exchangeable or into which each Share was
convertible. If no public market develops for the Merger Security within 30
days from the date of its issue, however, "Merger Security Value" shall mean
the fair market value of such Merger Security (on a per unit basis in the
written opinion of a nationally recognized investment banking firm acceptable
to you) on the effective date of the merger, consolidation, reorganization or
purchase of assets, as the case may be, multiplied by the number of Merger
Securities (or fraction thereof) for which each Share was exchangeable or into
which each Share was convertible.
10. Dispute Resolution. It is irrevocably agreed that if any
dispute arises between us under this Agreement, or as to any interpretive
matter under or alleged breach of this Agreement, the exclusive remedy of each
of us shall be to commence binding arbitration proceedings under the rules of
the American Arbitration Association (the "Rules"), with any such arbitration
proceeding to be conducted in Houston, Texas, applying the substantive law of
the State of Texas ("Arbitration"). If Arbitration is commenced prior to an
Effective Date, each of us will deposit with the arbitrator(s), 50% of the
arbitrator's preliminary estimate of the costs of arbitration (excluding
counsel fees and expenses) as security for costs; if Arbitration is commenced
after an Effective Date, the Company will be solely responsible for all costs
thereof and shall deposit with the arbitrator(s) 100% of the arbitrator(s)
preliminary estimate thereof. Notwithstanding any contrary provision of the
Rules or Texas law, the Company shall have the burden of proof with respect to
any of the following which are at issue in Arbitration: (i) that Cause or
Disability existed at the time any notice was given to you under Section 5
based upon either them and/or the sufficiency of such notice; and (ii) that
Good Reason did not exist at the time notice was given to
<PAGE> 9
Mr. Mark E. Johnson
September 30, 1997
Page 9
the Company under Section 5 based upon Good Reason (but only if such notice was
dated on or after an Effective Date) and/or the sufficiency of such notice; and
(iii) that a Change of Control has not occurred. Any final ruling of the
arbitrator(s) in an Arbitration shall be final and binding for all purposes,
and judgment on any Arbitration award may be entered and enforced in any court
having jurisdiction.
The Company and you irrevocably agree that in the event the
arbitrator(s) shall determine (after hearing) that any matter presented in
Arbitration is one which under Texas law is not susceptible to arbitration, in
such event (and only in such event), (i) exclusive jurisdiction over the
non-arbitrable issue shall be in the lowest Texas state court of general
jurisdiction sitting in Harris County, Texas, (ii) we are each at the time
present in Texas for the purpose of conferring personal jurisdiction; (iii) any
such action may be brought in such courts, and any objection that the Company
or you may now or hereafter have to the venue of such action or proceeding in
any such court or that such action or proceeding was brought in an inconvenient
court is waived, and we each agree not to plead or claim the same, (iv) service
of process in any such proceeding or action may be effected by mailing a copy
thereof by registered or certified mail, return receipt requested (or any
substantially similar form of mail), postage prepaid, to such party at the
address provided in Section 13 hereof, (v) no punitive or consequential damages
shall be awarded in any such action or proceeding and we each agree not to
plead or claim the same; and (vi) prior to any trial on the merits, we will
submit any such non-arbitrable issue to court supervised, non-binding
mediation.
If proceedings are commenced prior to an Effective Date, all actual
costs of Arbitration or court proceedings involving any non-arbitrable issue
(excluding, in each case, counsel fees and expenses), shall be apportioned by
the arbitrator(s) or the court in such manner as shall be deemed equitable in
light of any final Arbitration award or judgment; if commenced on or after an
Effective Date, all such costs shall be borne exclusively by the Company.
Anything else in this Section to the contrary notwithstanding, nothing
in this Agreement shall impair your ability to seek specific performance of
your right to be paid under, and to receive all other benefits conferred by,
Section 3 of this Agreement during the pendency of any dispute or proceeding
concerning Sections 5, 6 and/or 8 hereof.
<PAGE> 10
Mr. Mark E. Johnson
September 30, 1997
Page 10
11. Successors; Binding Agreement.
(a) Upon your written request, the Company will seek to
have any Successor (as defined below), by agreement in form and substance
satisfactory to you, expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it. If there has been a Change of Control prior to, or a Change of
Control will result from, any such succession, then failure of the Company to
obtain at your request such agreement prior to or upon the effectiveness of any
such succession (other than by merger or consolidation) shall constitute Good
Reason for termination by you of your employment and, upon delivery of a Notice
of Termination by you to the Company, you shall be entitled to the benefits
provided in Section 6(c) hereof. "Successor" shall mean any Person that
succeeds to, or has the ability to control, the Company's business as a whole,
directly by merger, consolidation or spin-off or indirectly by purchase of the
Company's Voting Securities or acquisition of all or substantially all of the
assets of the Company.
(b) This Agreement shall inure to the benefit of and be
enforceable by your personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
12. Fees and Expenses. The Company shall pay all legal fees and
reasonable expenses incurred by you (including costs of arbitration) as a
result of (a) your termination following a Change of Control (including all
such fees and expenses, if any, incurred in contesting or disputing any such
termination) or (b) your seeking to obtain, assert or enforce any right or
benefit conferred upon you by this Agreement.
13. Notices. Any and all notices required or permitted to be
given hereunder shall be in writing and shall be deemed to have been given when
delivered in person to the persons specified below or deposited in the United
States mail, certified or registered mail, postage prepaid and addressed as
follows:
If to the Company: ITEQ, Inc.
2727 Allen Parkway
Houston, Texas 77019
Attention: Chairman,
Compensation Committee of the
Board of Directors
<PAGE> 11
Mr. Mark E. Johnson
September 30, 1997
Page 11
If to you: Mark E. Johnson
3620 Albans
Houston, Texas 77005
Either party may change, by the giving of notice in accordance with
this Section 13, the address to which notices are thereafter to be sent.
14. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
15. Survival. All obligations undertaken and benefits conferred
pursuant to this Agreement, except those set forth in Sections 1 and 2, shall
survive the Employment Period and continue thereafter until performed in full.
16. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
agreed to in writing signed by you and the Chairman of the Compensation
Committee of the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or of compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the internal laws of the State of Texas.
<PAGE> 12
Mr. Mark E. Johnson
September 30, 1997
Page 12
If this letter correctly sets forth our understanding with respect to
the subject matter hereof, please sign and return one copy of this letter to
the Company.
Sincerely,
ITEQ, INC.
BY: /s/ T. William Porter
------------------------------------
T. William Porter
Chairman of the Compensation
Committee of the Board
Agreed to as of the 30th
day of September, 1997.
/s/ Mark E. Johnson
- ------------------------------------
Mark E. Johnson
<TABLE> <S> <C>
<ARTICLE> 5
<RESTATED>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 9-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1996
<PERIOD-START> JAN-01-1997 JAN-01-1996
<PERIOD-END> SEP-30-1997 SEP-30-1996
<CASH> 2,411 2,362
<SECURITIES> 0 0
<RECEIVABLES> 36,330 16,229
<ALLOWANCES> 0 0
<INVENTORY> 6,663 3,778
<CURRENT-ASSETS> 73,847 47,945
<PP&E> 15,100 5,123
<DEPRECIATION> 0 0
<TOTAL-ASSETS> 139,023 69,413
<CURRENT-LIABILITIES> 38,654 29,099
<BONDS> 42,632 17,669
0 0
0 0
<COMMON> 17 11
<OTHER-SE> 56,777 22,377
<TOTAL-LIABILITY-AND-EQUITY> 139,023 69,413
<SALES> 131,412 51,192
<TOTAL-REVENUES> 131,412 51,192
<CGS> 102,271 38,285
<TOTAL-COSTS> 102,271 38,285
<OTHER-EXPENSES> 17,875 11,502
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 3,131 598
<INCOME-PRETAX> 8,506 836
<INCOME-TAX> 3,134 278
<INCOME-CONTINUING> 5,372 558
<DISCONTINUED> (2,789) (1,553)
<EXTRAORDINARY> (2,037) 0
<CHANGES> 0 0
<NET-INCOME> 546 (995)
<EPS-PRIMARY> .04 (.09)
<EPS-DILUTED> .04 (.09)
</TABLE>
