1
EXHIBIT 4.18
LIMITED WAIVER
This LIMITED WAIVER is made and entered into as of December 10, 1999
(this "Waiver"), among (a) ITEQ, INC., a Delaware corporation (the "Borrower"),
(b) THE GUARANTORS signatories hereto as guarantors, (c) BANKBOSTON, N.A., a
national banking association having its principal place of business at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (acting in its individual capacity,
"BKB"), and the other lending institutions which become parties to the Credit
Agreement defined below (together with BKB, 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"). Capitalized terms
used herein without definition shall have the meanings assigned to such terms in
the Credit Agreement defined below.
WHEREAS, the Borrower, the Guarantors, the Banks, the Documentation
Agent and the Agent have entered into that certain Revolving Credit Agreement,
dated as of October 28, 1997 (as amended and in effect from time to time, the
"Credit Agreement"), pursuant to which the Banks have extended credit to the
Borrower on the terms set forth therein;
WHEREAS, the Borrower has informed the Banks and the Agent that ITEQ
Aviation, Inc., a Subsidiary of the Borrower, has sold its one-half interest in
an airplane timeshare to a third party for net cash proceeds of approximately
$301,000 (the "Sale") without the prior written consent of the Banks;
WHEREAS, as a result of the Sale an Event of Default exists under the
provisions contained Section 7.4 of the Credit Agreement (the "Existing Event of
Default");
WHEREAS, the Borrower has requested that the Banks and the Agent waive
the Existing Event of Default, subject to the conditions contained herein; and
WHEREAS, the Banks and the Agent have agreed to honor such request upon
the terms and subject to the conditions contained herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
SECTION 1. LIMITED WAIVER. The Banks and the Agent hereby waive the
Existing Event of Default, subject to the satisfaction of the conditions
precedent contained in Section 2 hereof. As used in this Section 1, the term
"net cash proceeds" of the Sale means the gross cash proceeds of the Sale, net
of reasonable direct
2
-2-
transaction costs, such as broker's fees, transfer taxes and professional fees
and expenses incurred on account of the Sale.
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Waiver shall not become
effective unless the following conditions are satisfied on or prior to 5:00 p.m.
Boston time on Friday, December 10, 1999: (a) This Waiver shall have been
executed and delivered by the Borrower, the Guarantors, the Majority Banks and
the Agent, and (b) the Borrower shall have reimbursed the Agent for, or paid
directly, all fees, costs and expenses incurred by the Agent's counsel and for
which invoices have been delivered.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Banks and the Agent that (a) the airplane
timeshare is no longer used or useful in the operations of the businesses of the
Borrower and its Subsidiaries as such businesses are now proposed to be
conducted, (b) to the best of the Borrower's knowledge and belief, the
approximate value of the airplane timeshare sold under the Sale is $313,000 and
(c) the net cash proceeds of the Sale have been deposited in the operating
account of the Borrower at BankBoston, N.A.
SECTION 4. RATIFICATION, ETC. This Waiver is limited solely to the Sale
upon the terms and subject to the conditions contained herein. Except as
expressly modified hereby, the Credit Agreement, the other Loan Documents and
all documents, instruments and agreements related thereto are hereby ratified
and confirmed in all respects and shall continue in full force and effect. This
Waiver is a Loan Document.
SECTION 5. COUNTERPARTS. This Waiver may be executed in any number of
counterparts, which together shall constitute one instrument.
SECTION 6. GOVERNING LAW. THIS WAIVER SHALL BE A CONTRACT UNDER THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, SHALL FOR ALL PURPOSES BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF SAID JURISDICTION,
WITHOUT REFERENCE TO CONFLICTS OF LAW, AND IS INTENDED TO TAKE EFFECT AS A
SEALED INSTRUMENT.
3
IN WITNESS WHEREOF, the parties hereto have executed this Waiver as an
instrument under seal to be effective as of the date first above written.
THE BORROWER:
ITEQ, INC.
By: /s/ XXXXXXX X. XXXX
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
4
THE GUARANTORS:
ITEQ MANAGEMENT COMPANY
EXELL, INC. (a Delaware corporation which is
successor by merger to EXELL. INC., a Texas
corporation)
ITEQ TANK SERVICES, INC. (successor by
merger to HMT TANK SERVICE, INC.)
RELIABLE STEEL, INC.
AIR-CURE DYNAMICS, INC.
AMEREX INDUSTRIES, INC.
XXXXXXXX, INC.
INTEREL ENVIRONMENTAL
TECHNOLOGIES, INC.
ALLIED INDUSTRIES, INC.
ITEQ CONSTRUCTION SERVICES, INC.
(f/k/a HMT CONSTRUCTION SERVICES,
INC.)
ITEQ INTELLECTUAL PROPERTIES, INC.
(f/x/a AIX INTELLECTUAL PROPERTIES,
INC.)
ITEQ INVESTMENTS, INC. (f/k/a
ASTROTECH INVESTMENTS, INC.)
TEXOMA TANK COMPANY, INC.
ITEQ STORAGE SYSTEMS, INC. (f/k/a
XXXXX-MINNEAPOLIS TANK &
FABRICATING CO., successor by merger to
HMT, INC., HMT SENTRY SYSTEMS, INC.
and TRUSCO TANK, INC.)
XXXXXX MANUFACTURING CO., INC.
(f/k/a XXXXXX HOLDING COMPANY,
successor by merger to XXXXXX TANK &
MFG. CO., INC., XXXXXX TANK
INTERNATIONAL, INC., XXXXXX POWER,
INC., and XXXXXX TANK & VESSEL, INC.)
G.L.M. ACQUISITION, L.L.C.
By: /s/ XXXXXXX X. XXXX
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
5
THE LENDERS:
BANKBOSTON, N.A.,
individually and as Agent
By: /s/ XXXXXXXX XXXXXXX
---------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK AG,
individually and as Documentation Agent
By: /s/ JPS XXXXXXXX
---------------------------------
Name: JPS Xxxxxxxx
Title: Managing Director
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
BANK OF SCOTLAND
By: /s/ XXXXX XXXXX
---------------------------------
Name: Xxxxx Xxxxx
Title: Senior vice President
BANK ONE, TEXAS, N.A.
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
0
XXXXXXX (x/x/x Xxxxxx Xxxxxxx)
By: /s/ XXXXX XXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ XXXXX XXXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
COMERICA BANK
By: /s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ XXXXXXX XXXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President & Manager
HIBERNIA NATIONAL BANK
By: /s/ XXXXXXXXXXX XXXXX
---------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
BANK OF AMERICA, N.A. (f/k/a NationsBank, N.A.)
By: /s/ XXXXXXX X. XXXXXXXXXXX, XX
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx, XX
Title: Managing Director
7
UNION BANK OF CALIFORNIA, N.A.
By: /s/ XXXXX XXXXX XXXXXXXX
---------------------------------
Name: Xxxxx Xxxxx XxXxxxxx
Title: Vice President
CHASE BANK TEXAS, NATIONAL ASSOCIATION (f/k/a Texas Commerce Bank, N.A.)
By: /s/ XXXXX X. SHILCUTT
---------------------------------
Name: Xxxxx X. Shilcutt
Title: Vice President
