Exhibit 4(b)
FOURTH AMENDMENT TO LOAN INSTRUMENTS
THIS FOURTH AMENDMENT TO LOAN INSTRUMENTS (the "Fourth Amendment") is dated
as of this ____ day of December, 1994 by and among GDC ENGINEERING, INC., a
Louisiana corporation ("Borrower"), XXXXXXXX X. XXXXXXXX in her capacity as
trustee (the "Trustee") of the testamentary trust for the benefit of Xxxxx
Xxxxxxxx, Sharif Xxxxxx Xxxxxxxx and Xxxxxx-Xxxxx Xxxxxxxx (the "Trust") created
by the Last Will and Testament of Hameed Xxxxx Xxxxxxxx dated March 20, 1988
(the "Will"), which Will was probated in THE SUCCESSION OF HAMEED XXXXX
XXXXXXXX, PROBATE NO. 56829, NINETEENTH JUDICIAL DISTRICT, PARISH OF EAST BATON
ROUGE, STATE OF LOUISIANA (the "Succession"), XXXXXXXX XXXXXX XXXXXXXX, one and
the same as Xxxxxxxx X. Xxxxxxxx, individually and in her capacity as
usufructuary under the Will, a person of the full age of majority and a resident
of Baton Rouge Parish, Louisiana ("X. Xxxxxxxx") (each of Borrower, the Trustee,
the Succession and X. Xxxxxxxx are sometimes hereinafter referred to
individually as an "Obligor" and collectively as the "Obligors"), and GREYHOUND
FINANCIAL CORPORATION, a Delaware Corporation ("Lender").
WHEREAS, there is in effect a Loan Agreement dated December 30, 1992
between Borrower and Lender, as amended by Amendment to Loan Instruments dated
June 30, 1993 among Obligors and Lender, Second Amendment to Loan Instruments
dated October 26, 1993 among Obligors and Lender, Third Amendment to Loan
Instruments dated April 1, 1994 among Obligors and Lender (collectively,
together with this Fourth Amendment, the "Loan Agreement"), pursuant to which
Lender committed to loan to Borrower an amount not to exceed the principal sum
of $4,900,000 to refinance existing debt of Borrower and $4,000,000 to fund
certain capital expenditures (the "Loan");
WHEREAS, the Loan is evidenced by the Loan Agreement and a promissory note
dated December 30, 1992 from Borrower payable to Lender in the principal sum of
$8,900,000 (the "Note"), and secured by, among others, a Security Agreement and
Shareholder Pledge Agreement dated December 30, 1992 from the Succession and X.
Xxxxxxxx in favor of Lender and a Subordination and Stand-By Agreement dated
December 30, 1992 among the Succession, X. Xxxxxxxx, Borrower and Lender;
WHEREAS, the $4,000,000 commitment to fund certain capital expenditures
expired unused;
WHEREAS, Borrower has requested Lender's consent to the sale of all of the
Borrower BCI Capital Stock owned by Borrower to the existing BCI management;
WHEREAS, Lender has agreed to consent to the sale of all of the Borrower
BCI Capital Stock owned by Borrower to the existing BCI management, upon the
terms and conditions contained herein;
WHEREAS, the administration of the Succession has been completed and
Judgement of Possession was signed in the Succession on October 4, 1994, a copy
of which is attached hereto
as Exhibit A and incorporated herein by this reference, which said Judgment of
Possession recognizes certain rights and puts the legatees under the Will in
possession of the assets of the Succession;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Obligors and Lender,
intending to be legally bound, agree as follows:
1. Definitions. Except as otherwise defined herein, all capitalized
-----------
terms used herein shall have the meanings ascribed thereto in the Loan
Agreement.
2. Recitals. The Recitals set forth above are true and accurate and are
--------
incorporated herein by this reference.
3. Amounts Outstanding. Obligors hereby acknowledge and agree that (a)
-------------------
as of November 1, 1994, the principal amount of the Loan outstanding is
$____________ and there is no accrued and unpaid interest, and (b) as of the
date of execution hereof by Obligors, there are no defenses, claims or offsets
to payment of such principal amount and the other indebtedness evidenced by the
Note.
4. Loan Agreement Definitions. The definitions of, and references to,
--------------------------
"Assignment of Interest Hedge Contract" and "Interest Hedge Contract" in Section
1.1 of the Loan Agreement are hereby deleted in their entirety and the
definitions of "Operating Cash Flow" and "Working Capital Loan" is hereby
deleted in its entirety and the following is inserted therefor:
Operating Cash Flow: for any period, the net income of
-------------------
Borrower for such period:
(i) plus the sum of the following, to the extent
deducted in determining net income for such period:
(A) interest paid or accrued on Indebtedness,
including, without limitation, interest on Capitalized
Leases that is imputed in accordance with GAAP;
(B) Depreciation and amortization of assets; and
(C) extraordinary losses from sales or
dispositions of Property outside of the normal course
of Borrower's Business;
(ii) minus the sum of the following, to the extent
-----
included in determining net income for such period:
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(A) all payments made by Borrower during such
period with respect to Capital Expenditures, other than
Subsequent Advance Expenditures;
(B) extraordinary gains from sales or
dispositions of Property outside the ordinary course of
Borrower's Business; and
(C) for purposes of Excess Cash Flow payments
pursuant to Section 2.9.2 hereof only, fifty percent
(50%) of all payments received by Borrower from
Occidental Chemical Corporation or its successors or
assigns ("Oxy Chem") pursuant to that certain agreement
dated September 21 and 28, 1994 between Borrower and
Oxy Chem, a copy of which is attached hereto as EXHIBIT
2.9.2 and incorporated herein by this reference.
Working Capital Loan: shall mean a revolving loan to be made by
--------------------
Working Capital Lender to Borrower in an amount of not less than
$750,000.
5. Additional Defined Terms. Section 1.1 of the Original Loan Agreement
------------------------
is hereby amended by adding the following definitions in the appropriate
alphabetical order:
Approved BCI Sale: shall mean a sale, transfer conveyance or
-----------------
assignment of all or substantially all of the assets of BCI or
all or substantially all of the Borrower BCI Capital Stock owned
by Borrower to the existing BCI management, which is consummated
on or before December 31, 1994 and which results in the receipt
by Borrower of a net sales amount of not less than $45,000.00.
Annual Site Inspection Expenses: shall mean all costs and
-------------------------------
expenses incurred by Lender with respect to Lender's annual
inspections of the Business premises (all locations) by Lender or
a representative of Lender pursuant to Section 6.2 hereof, but
not to exceed $2,500 per year.
6. Prepayments. Subsection 2.9.2 of the Loan Agreement is hereby
-----------
amended to add the following:
(E) PROCEEDS FROM AN APPROVED BCI SALE. Upon the
----------------------------------
consummation of an Approved BCI Sale, Borrower shall pay to
Lender $45,000, which shall be applied as a prepayment of the
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Principal Balance of the Loan.
7. Interest Hedge Contract. Subsection 4.2.1 of the Loan Agreement is
-----------------------
hereby deleted in its entirety and the following is inserted therefor:
4.2.1 INTENTIONALLY DELETED.
8. Annual Statements. Section 6.3.3 of the Loan Agreement is hereby
-----------------
amended to add the following:
As soon as available and in any event within 120 days after the
end of each calendar year, Borrower shall cause X. Xxxxxxxx to,
and X. Xxxxxxxx shall, provide to Lender a personal financial
statement as of December 31 of the immediately prior calendar
year, in a form and with a certification satisfactory to Lender,
and a true, correct and complete copy of X. Xxxxxxxx'x Federal
tax return, as filed, for the immediately prior calendar year.
9. Interest Hedge Contract. Section 6.17 of the Loan Agreement is hereby
-----------------------
deleted in its entirety and the following is inserted therefor:
6.17 INTENTIONALLY DELETED.
10. Appraisal. Section 6 of the Loan Agreement is hereby amended to add
---------
the following:
6.18 APPRAISAL. On or prior to December 15, 1994,
---------
Borrower, at Borrower's sole cost and expense, shall provide
Lender with an appraisal conducted by an appraiser acceptable to
Lender, which appraisal shall reflect a net orderly liquidation
value of Borrower's environmental and remediation machinery and
equipment and a fair market value of Borrower's rotary kiln
incineration system, more particularly described as item 102 ER
on page 20 of the GDC Engineering, Inc. Appraisal dated December
7, 1992.
6.19 GUARANTY. X. Xxxxxxxx shall execute and deliver to
--------
Lender a continuing guaranty in the form attached hereto as Exhibit
-------
6.19 and incorporated herein by this reference (the "X. Xxxxxxxx
----
Guaranty"), together with an opinion of counsel as to the
enforceability of the X. Xxxxxxxx Guaranty in form and substance
and from counsel satisfactory to Lender.
11. Sale or Transfer of Assets. Section 7.9 of the Loan Agreement is
--------------------------
hereby deleted in its entirety and the following is inserted therefor:
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7.9 Sell, lease, assign, transfer or otherwise dispose of any
Property except Borrower may dispose of (i) inventory in the
ordinary course of business, (ii) Property which is not material
to or necessary for the continued operation of Borrower's
Business, (iii) items of equipment which promptly are replaced
with new items of equipment of like function and comparable value
to those of equipment when the same were new, and (iv) the assets
or Capital Stock of BCI pursuant to an Approved BCI Sale;
provided, however, that in the event of an Approved BCI Sale,
Borrower shall pay to Lender $45,000, which Lender shall apply to
the Loan in accordance with subsection 2.9.2(e) hereof. As soon
as practicable after Lender's receipt of such funds, Lender shall
release its lien on the BCI assets more particularly described on
pages 11 and 12 of the GDC Engineering, Inc. Appraisal dated
December 7, 1992.
12. Fees. Article X of the Loan Agreement is hereby amended to add the
----
following:
10.3 Site Inspection Expense. Upon demand, Borrower agrees to
-----------------------
pay to Lender the Annual Site Inspection Expenses with respect to
inspections as provided for in Section 6.2 hereof.
13. Notices. Section 11.1 of the Loan Agreement with respect to the copy
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of notices to Lender is hereby deleted in its entirety and the following
inserted therefor:
Copy to: Greyhound Financial Corporation
Dial Xxxxx/Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Vice President, Law
Telecopy No.: (000) 000-0000
and
Greyhound Financial Corporation
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
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and
Xxxxxxxxx Xxxxx
Xxx Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxx X. Xxxxxx
Telecopy No.: (000) 000-0000
14. Representations, Acknowledgments, and Agreements of Obligors. As
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material inducements to Lender to enter into this Fourth Amendment, and
acknowledging Lender's reliance upon the truth and accuracy thereof, Borrower,
with respect to subsections (a), (b), (d), (g), (j) and (n), the Trustee with
respect to subsections (c), (e), (h) and (k) and X. Xxxxxxxx, individually and
as usufructuary under the Will, with respect to subsections (f), (i) (l) and
(n), represent, warrant and covenant that:
(a) Borrower is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Louisiana.
(b) This Fourth Amendment has been duly authorized by all necessary
corporate action and has been duly executed and delivered by an authorized
officer of Borrower, and the Fourth Amendment constitutes a legal, valid and
binding agreement enforceable against Borrower in accordance with its terms;
(c) This Fourth Amendment, the X. Xxxxxxxx Guaranty and the Pledge
Agreement have been duly authorized by all necessary action and have been duly
executed and delivered by the authorized Trustee of the Trust, and the Fourth
Amendment, the X. Xxxxxxxx Guaranty and the Pledge Agreement constitute legal,
valid and binding agreements enforceable against the Trust in accordance with
their terms;
(d) As of the date hereof, Borrower is not the subject of a pending
bankruptcy proceeding and Borrower is not aware of any threatened bankruptcy
proceeding against Borrower nor is Borrower presently contemplating filing such
a proceeding;
(e) As of the date hereof, the Trustee is not the subject of a pending
bankruptcy proceeding and the Trustee is not aware of any threatened bankruptcy
proceeding against the Trust nor is the Trustee presently contemplating filing
such a proceeding;
(f) As of the date hereof, X. Xxxxxxxx is not the subject of a pending
bankruptcy proceeding and X. Xxxxxxxx is not aware of any threatened bankruptcy
proceeding against her nor is X. Xxxxxxxx presently contemplating filing such a
proceeding;
(g) Except as disclosed to Lender in Exhibit 5.8.A hereof, there are
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no lawsuits pending or threatened against Borrower, or instituted by Borrower in
which the party defendant has counterclaimed against Borrower;
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(h) There are no lawsuits pending or threatened against the Trust, or
instituted by the Trust in which the party defendant has counterclaimed against
the Trust;
(i) There are no lawsuits pending or threatened against X. Xxxxxxxx,
or instituted by X. Xxxxxxxx in which the party defendant has counterclaimed
against X. Xxxxxxxx;
(j) The execution and delivery of this Fourth Amendment and any other
instruments executed and delivered to Lender concurrently herewith, and the full
and complete performance of the provisions hereof will not result in any breach
of, or constitute a default under, or result in the creation of any lien, charge
or encumbrance upon any property or assets of Borrower under any indenture,
mortgage, deed of trust, bank loan or credit agreement or other instrument to
which Borrower is a party or by which Borrower is bound;
(k) The execution and delivery of this Fourth Amendment and any other
instruments executed and delivered to Lender concurrently herewith, and the full
and complete performance of the provisions hereof will not result in any breach
of, or constitute a default under, or result in the creation of any lien, charge
or encumbrance upon any property or assets of the Trust under any indenture,
mortgage, deed of trust, bank loan or credit agreement or other instrument to
which the Trust is a party or by which the Trust is bound;
(l) This Fourth Amendment, the X. Xxxxxxxx Guaranty and the Pledge
Agreement have been duly executed and delivered by X. Xxxxxxxx, individually.
The execution and delivery of this Fourth Amendment and any other instruments
executed and delivered to Lender concurrently herewith, and the full and
complete performance of the provisions hereof will not result in any breach of,
or constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of X. Xxxxxxxx under any indenture,
mortgage, deed of trust, bank loan or credit agreement or other instrument to
which X. Xxxxxxxx is a party or by which X. Xxxxxxxx is bound;
(m) This Fourth Amendment, the X. Xxxxxxxx Guaranty and the Pledge
Agreement have been duly authorized by all necessary action and have been duly
executed and delivered by X. Xxxxxxxx, as usufructuary under the Will, and the
Fourth Amendment, the X. Xxxxxxxx Guaranty and the Pledge Agreement constitute
legal, valid and binding agreements enforceable against X. Xxxxxxxx, as
usufructuary under the Will, in accordance with their terms;
(n) Borrower has all requisite corporate power and corporate authority
and all necessary licenses, governmental authorizations and permits, including,
without limitation, all licenses, authorizations and permits required for the
operation of Borrower's business under all Environmental Laws.
15. No Misrepresentation. Each Obligor respectively represents, warrants
---------------------
and covenants that no representation or warranty made by said Obligor and
contained herein or in the other Loan Instruments, and no certificate,
information or report furnished or to be furnished by said Obligor in connection
with any of the Loan Instruments or any of the transactions contemplated hereby
or thereby, contains or will contain a misstatement of material fact, or omits
or will omit to state a material fact required to be stated in order to make the
statements contained
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herein or therein not misleading in the light of the circumstances under which
such statements were made. There is no fact known or reasonably foreseen by said
Obligor that will materially adversely affect said Obligor or her or its
respective financial conditions, operations, Property, business, prospects,
profits or the ability of said Obligor to consummate the transactions and
perform her or its obligations pursuant to the Loan Instruments that has not
expressly been disclosed to Lender in writing.
16. Reaffirmation of Security Interest. Obligors hereby confirm and agree
----------------------------------
that Lender's Security Interests, and Lender's lien priority, in all of the
Collateral previously pledged, assigned, transferred or granted to Lender shall
continue to secure the payment and performance of Obligors' obligations
following the execution, delivery and effectiveness of this Fourth Amendment and
the documents, instruments and agreements contemplated hereby and thereby.
17. No Waiver of Defaults. This Fourth Amendment is not a waiver of any
---------------------
future default of Obligors or a release or relinquishment of any Lien, Security
Interest, rights or remedies securing payment and performance of Obligors'
obligations or the enforcement thereof. Such Liens, Security Interests, rights
and remedies are hereby ratified, confirmed, preserved, renewed and extended by
Obligors in all respects.
18. Release.
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(a) Each Obligor and her or its officers, directors, shareholders,
employees, predecessors, personal representatives, executors, executrixes,
heirs, successors and assigns, each hereby fully release, remise and forever
discharge Lender and all past and present officers, directors, agents,
employees, servants, partners, shareholders, attorneys and managers of Lender,
and all of their respective heirs, personal representatives, predecessors,
successors and assigns, for, from and against any and all claims, demands,
causes of action, controversies, offsets, obligations, losses, damages, and
liabilities of every kind and character whatsoever, including without limitation
any action, omission, misrepresentation or other basis of liability founded
either in tort or contract and the duties arising thereunder that said Obligor,
or any of her or its respective predecessors, successors and assigns, or any one
or more of them, has had in the past, or now has, whether known or unknown,
whether currently existing or hereafter asserted, relating in any manner to, or
arising from or in connection with, the indebtedness evidenced by the Note, any
negotiations, loan administration, exercise of rights and remedies, payment,
offset with respect to, or other matter relating to such indebtedness, any
Collateral securing payment and performance of such indebtedness, or any matter
preliminary to the execution and delivery by Obligors and Lender of this Fourth
Amendment, or any statement, action, omission or conduct of Lender or any of its
officers, directors, agents, employees, servants, partners, shareholders,
attorneys and managers relating in any manner to such indebtedness, Collateral
or this Fourth Amendment; provided, however, that the foregoing release and
discharge shall not apply to the obligations of Lender expressly set forth in
this Fourth Amendment or first arising after the date of this Fourth Amendment.
(b) Obligors acknowledge and agree that Lender's commitment to advance
the Remaining Portion has expired unused by Borrower, and Lender is not, and
shall not be, obligated in any way to continue or undertake any loan, financing
or other credit arrangement with Obligors, including, without limitation, any
renewal of the indebtedness evidenced by the
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Note, beyond the maturity date thereof as set forth therein.
19. Modifications. No amendment, modification, change, waiver, release or
-------------
discharge hereof or hereunder shall be effective unless evidenced by an
instrument in writing signed by the party against whom enforcement is sought.
20. Severability. If any provision hereof is invalid or unenforceable,
------------
the other provisions hereof shall remain in full force and effect and shall be
liberally construed in favor of Lender in order to effectuate the other
provisions hereof.
21. Binding Nature. The provisions of this Fourth Amendment shall be
--------------
binding upon, and inure to the benefit of, the respective successors and assigns
(including without limitation, any receiver, debtor in possession or trustee in
bankruptcy) of Lender and any of Obligors.
22. APPLICABLE LAW. THE OBLIGATIONS OF OBLIGORS HEREUNDER, UNDER THE LOAN
--------------
AGREEMENT, AS MODIFIED HEREBY, AND UNDER THE OTHER LOAN INSTRUMENTS, ARE TO BE
PERFORMED IN, AND THIS FOURTH AMENDMENT IS, AND THE LOAN AGREEMENT AND OTHER
LOAN INSTRUMENTS HAVE BEEN, EXECUTED, DELIVERED AND ACCEPTED IN, AND THIS FOURTH
AMENDMENT, THE LOAN AGREEMENT, AS MODIFIED HEREBY, AND THE OTHER LOAN
INSTRUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS AND DECISIONS OF, THE STATE OF ARIZONA (WITHOUT REGARD FOR ITS CONFLICTS OF
LAW PRINCIPLES), AND BY EXECUTION HEREOF OBLIGORS AND LENDER EACH AGREE THAT
SUCH LAWS AND DECISIONS OF THE STATE OF ARIZONA SHALL GOVERN THIS FOURTH
AMENDMENT, THE LOAN AGREEMENT, AS MODIFIED HEREBY, AND THE OTHER LOAN
INSTRUMENTS, NOTWITHSTANDING THE FACT THAT THERE MAY BE OTHER JURISDICTIONS
WHICH MAY BEAR A REASONABLE RELATIONSHIP TO THE TRANSACTIONS CONTEMPLATED
HEREBY; PROVIDED, HOWEVER, THAT WITH RESPECT TO PROCEDURAL AND SUBSTANTIVE
MATTERS RELATING ONLY TO THE CREATION, PERFECTION AND ENFORCEMENT BY LENDER OF
ITS RIGHTS AND REMEDIES AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL LOCATED
IN ANY STATE OTHER THAN ARIZONA, SUCH MATTERS SHALL BE GOVERNED BY THE LAWS OF
THE STATE IN WHICH SUCH PROPERTY IS LOCATED.
23. JURISDICTION AND VENUE. OBLIGORS HEREBY AGREE THAT ALL ACTIONS OR
----------------------
PROCEEDINGS INITIATED BY OBLIGORS, OR ANY OF THEM, AND ARISING DIRECTLY OR
INDIRECTLY OUT OF THE LOAN INSTRUMENTS SHALL BE LITIGATED IN THE SUPERIOR COURT
OF ARIZONA, MARICOPA COUNTY DIVISION, OR THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA OR, IF LENDER INITIATES SUCH ACTION, IN ADDITION TO THE
FOREGOING COURTS, ANY COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION, TO THE
EXTENT SUCH COURT HAS JURISDICTION. OBLIGORS HEREBY EXPRESSLY SUBMIT AND
CONSENT IN ADVANCE TO SUCH JURISDIC-
-9-
TION IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN ANY OF SUCH COURTS, AND
HEREBY WAIVE PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OF
PAPERS ISSUED THEREIN, AND AGREE THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR
OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
OBLIGORS, OR ANY OF THEM, AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT
PURSUANT TO THE LOAN AGREEMENT. OBLIGORS EACH WAIVE ANY CLAIM THAT PHOENIX,
ARIZONA OR THE DISTRICT OF ARIZONA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM
BASED ON LACK OF VENUE. SHOULD OBLIGORS, OR ANY OF THEM, AFTER BEING SO SERVED,
FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED
WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF, SUCH
BORROWER(S) SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE
ENTERED BY LENDER AGAINST SUCH BORROWER(S) AS DEMANDED OR PRAYED FOR IN SUCH
SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM FOR
OBLIGORS SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE
ENFORCEMENT, BY LENDER, OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE
TAKING, BY LENDER, OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
JURISDICTION, AND OBLIGORS HEREBY WAIVE THE RIGHT TO COLLATERALLY ATTACK ANY
SUCH JUDGMENT OR ACTION.
24. WAIVER OF RIGHT TO JURY TRIAL. LENDER AND OBLIGORS ACKNOWLEDGE AND
-----------------------------
AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER ANY OF THE LOAN INSTRUMENTS OR
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED THEREBY WOULD BE BASED UPON
DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES AGREE THAT ANY
LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY SHALL BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
25. Amendment. This Fourth Amendment and the other Loan Instruments
---------
executed prior or pursuant hereto constitute the entire agreement between the
parties hereto with respect to the transactions contemplated hereby or thereby
and supersede any prior agreements, whether written or oral, relating to the
subject matter hereof. Except as specifically amended herein, the Loan
Agreement shall remain in full force and effect. In the event of any conflict
between the terms and provisions of this Fourth Amendment and the terms and
provisions of the Loan Agreement, the terms and provisions of this Fourth
Amendment shall govern and prevail. Nothing contained in this Fourth Amendment
is intended to or shall be construed as relieving any person or entity, whether
a party to this Fourth Amendment, or not, of any of such person's or entity's
obligations to Lender.
26. All Loan Instruments. Each of the other Loan Instruments is
--------------------
amended so that any reference therein to a definition or agreement amended
hereby shall be deemed to be a reference to such definition or agreement, as
applicable, as amended hereby.
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27. Effectiveness. This Fourth Amendment shall not become effective unless
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and until:
(a) Delivery of Documents: The applicable Obligor has delivered to
---------------------
Lender the following, each of which shall be in form and content satisfactory to
Lender:
(1) this Fourth Amendment;
(2) a corporate resolution and incumbency certificate of Borrower
authorizing the execution and delivery of this Fourth Amendment;
(3) evidence of X. Xxxxxxxx'x authority to execute and deliver
this Fourth Amendment on behalf of the Trust;
(4) the X. Xxxxxxxx Guaranty;
(5) a Security Agreement and Shareholder Pledge Agreement (the
"Pledge Agreement"), together with assignments separate from certificate in
blank, and all certificates evidencing the shares of capital stock pledged, from
Trustee and X. Xxxxxxxx, individually and as usufructuary under the Will;
(6) an opinion of counsel satisfactory to Lender; and
(7) such other documents and instruments as Lender may require.
(b) Payment of Fees. Borrower shall have paid or reimbursed
---------------
Lender for Lender's attorneys' fees and costs incurred in connection with this
Fourth Amendment.
[THE REMAINDER OF THIS PAGE
IS LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this Fourth Amendment is executed as of the date first
above written.
LENDER:
GREYHOUND FINANCIAL
CORPORATION, a Delaware corporation
By:_______________________________________
Name: Xxxx X. Xxxx
-------------------------------------
Title: Vice President
-----------------------------------
OBLIGORS:
GDC ENGINEERING, INC., a Louisiana
corporation
By:_______________________________________
Name:_____________________________________
Title:____________________________________
__________________________________________
TRUST FOR THE BENEFIT OF XXXXX XXXXXXXX,
SHARIF XXXXXX XXXXXXXX AND XXXXXX-XXXXX
XXXXXXXX, CREATED BY THE LAST WILL AND
TESTAMENT OF HAMEED XXXXX XXXXXXXX DATED
MARCH 20, 1988, APPEARING THROUGH AND
REPRESENTED BY ITS DULY QUALIFIED TRUSTEE,
XXXXXXXX X. XXXXXXXX
__________________________________________
XXXXXXXX XXXXXX XXXXXXXX, individually and
as Usufructuary under the Last Will and
Testament of Hameed Xxxxx Xxxxxxxx dated
March 20, 1988
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EXHIBIT 5.8.A
PENDING LITIGATION
The following are all the actions, suits, arbitration proceedings or claims
pending or threatened against or maintained by Borrower in which the party
defendant has counterclaimed against Borrower:
1. R. Xxxx Xxxxx, et al v. GDC Engineering, Inc., et al., Docket No.
-----------------------------------------------------
93-967-B- MS, United States District Court, Middle District of
Louisiana.
2. EEOC claim filed against Borrower by Xxxxx X. Xxxx, claiming violation
of the Age Discrimination Act.
3. EEOC claim filed against Borrower by Xxxxxx St. Romain, alleging
violation of the Americans With Disability Act.
4. EEOC claim filed against Borrower by Xxxxx XxXxxxxx alleging racial
discrimination.
The following are all the actions, suits, arbitration proceedings or claims
pending or threatened against or maintained by the Succession in which the party
defendant has counterclaims against the Succession.
NONE.
The following are all the actions, suits, arbitration proceedings or claims
pending or threatened against or maintained by X. Xxxxxxxx in which the party
defendant has counterclaimed against X. Xxxxxxxx.
NONE.
EXHIBIT 6.19
CONTINUING GUARANTY
THIS CONTINUING GUARANTY (the "Guaranty") is made as of December ___, 1994
by XXXXXXXX X. XXXXXXXX, in her capacity as trustee of the testamentary trust
for the benefit of Xxxxx Xxxxxxxx, Sharif Xxxxxx Xxxxxxxx and Xxxxxx-Xxxxx
Xxxxxxxx (the "Trust") created by the Last Will and Testament of Hameed Xxxxx
Xxxxxxxx dated March 20, 1988 (the "Will"), which Will was probated in The
Succession of Hameed Xxxxx Xxxxxxxx, Probate No. 56829, Nineteenth Judicial
District, Parish of East Baton Rouge, State of Louisiana, and XXXXXXXX XXXXXX
XXXXXXXX, one and the same as Xxxxxxxx X. Xxxxxxxx, individually and in her
capacity as usufructuary under the Will, a person of the full age of majority
and a resident of Baton Rouge Parish, Louisiana (collectively, "Guarantor"), in
favor of GREYHOUND FINANCIAL CORPORATION, a Delaware corporation ("Lender").
WHEREAS, there is in effect a Loan Agreement dated December 30, 1992
between GDC Engineering, Inc., a Louisiana corporation ("Borrower"), and Lender,
as amended by Amendment to Loan Instruments dated June 30, 1993 among Borrower,
The Succession of Hameed Xxxxx Xxxxxxxx, Probate No. 56829, Nineteenth Judicial
District, Parish of East Baton Rouge, State of Louisiana, appearing through and
represented by its duly qualified executrix, Xxxxxxxx Xxxxxx Xxxxxxxx (the
"Succession"), Guarantor (each of Borrower, the Succession, the hereinafter
defined Trustee and Guarantor are sometimes hereinafter referred to individually
as an "Obligor" and collectively as the "Obligors") and Lender (the "First
Amendment"), Second Amendment to Loan Instruments dated October 26, 1993 among
Obligors and Lender (the "Second Amendment"), Third Amendment to Loan
Instruments dated April 1, 1994 among Obligors and Lender (the "Third
Amendment") and Fourth Amendment to Loan Instruments of even date herewith among
the Borrower, Guarantor,individually, as Trustee under the Last Will and
Testament of Hameed Xxxxx Xxxxxxxx dated March 20, 1988 (the "Will") and as
usufructuary under the Will, and Lender (the "Fourth Amendment and, together
with the First Amendment, Second Amendment and Third Amendment, the "Loan
Agreement"), pursuant to which Lender committed to loan to Borrower an amount
not to exceed the principal sum of $4,900,000 to refinance existing debt of
Borrower and $4,000,000 to fund certain capital expenditures (the "Loan"). All
capitalized terms used in this Guaranty but not otherwise defined herein shall
have the meanings ascribed thereto in the Loan Agreement;
WHEREAS, the Loan is evidenced by the Loan Agreement and a promissory note
dated December 30, 1992 from Borrower payable to Lender in the principal sum of
$8,900,000 (the "Note"), and secured by, among others, a Security Agreement and
Shareholder Pledge Agreement dated December 30, 1992 from the Succession and
Guarantor in favor of Lender and a Subordination and Stand-By Agreement dated
December 30, 1992 among the Succession, Guarantor, Borrower and Lender;
WHEREAS, the $4,000,000 commitment to fund certain capital expenditures
expired unused;
WHEREAS, Borrower desires to sell all or substantially all of the assets or
capital stock of BCI, which sale requires the consent of Lender pursuant to the
Loan Instruments;
WHEREAS, Guarantor owns or controls 100% of the issued and outstanding
capital stock of Borrower and, accordingly, Guarantor has a direct financial
interest in inducing Lender to consent to the Approved BCI Sale (as defined in
the Fourth Amendment);
WHEREAS, one of the conditions precedent to the obligation of Lender to
consent to Approved BCI Sale is the execution by Guarantor of this Guaranty and
the performance by Guarantor of her obligations hereunder.
NOW, THEREFORE, in order to induce Lender to modify the Loan in accordance
with the terms and provisions set forth in the Fourth Amendment and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby agrees as follows:
1. Definitions. Except as otherwise defined herein, all capitalized
-----------
terms used herein and in the recitals above shall have the meanings ascribed
thereto in the Loan Instruments.
2. Guaranty of Payment and Performance. Guarantor hereby unconditionally
-----------------------------------
and irrevocably guaranties to Lender the punctual payment and performance when
due, whether at stated maturity or by acceleration or otherwise, of Borrower's
Obligations (the obligations and liabilities of Guarantor hereunder and under
the Shareholder Pledge Agreement and the Shareholder Subordination Agreement and
any other instruments or agreements previously, concurrently or hereafter
executed and delivered by Guarantor in favor of Lender are sometimes hereinafter
referred to as the "Guarantor Obligations"). Guarantor agrees that this
Guaranty is a present and continuing guaranty of payment and not of
collectability, and that Lender shall not be required to prosecute collection,
enforcement or other remedies against Borrower, any other guarantor of
Borrower's Obligations or any other Person, or to enforce or resort to any of
the Collateral or other rights or remedies pertaining thereto, before calling on
Guarantor for payment. Guarantor agrees that if, for any reason, either
Borrower, any other Obligor or any other guarantor of Borrower's Obligations
shall fail or be unable to pay, punctually and fully, any of Borrower's
Obligations, Guarantor shall pay such obligations to Lender in full immediately
upon demand. Guarantor agrees that one or more successive actions may be brought
against Guarantor, as often as Lender deems advisable, until all of Guarantor's
Obligations and/or Borrower's Obligations are paid and performed in full.
Guarantor hereby further unconditionally guarantees to Lender the punctual and
faithful performance by Borrower of all duties, agreements and obligations of
Borrower contained in the Loan Instruments.
3. Continuing Guaranty. Guarantor agrees that the obligations of
-------------------
Guarantor pursuant to Section 1 above and any other provision of any of the Loan
---------
Instruments shall be primary obligations, shall not be subject to any
counterclaim, set-off, abatement, deferment or defense based upon any claim that
Guarantor may have against Lender, Borrower, any other guarantor of Borrower's
Obligations or any other Person, and shall remain in full force and effect
without regard to, and shall not be released, discharged or affected in any way
by, any circumstance or condition (whether or not Guarantor shall have any
knowledge thereof) including, without
-2-
limitation:
(a) any lack of validity or enforceability of any of the Loan
Instruments;
(b) any termination, amendment, modification or other change in any
of the Loan Instruments;
(c) any furnishing, exchange, substitution or release of any
Collateral, including, without limitation, any furnishing, exchange,
substitution or release of any Collateral which may be effected pursuant to
the terms of Section 7.9 of the Loan Agreement, or any failure to perfect
-----------
any Lien in any of the Collateral;
(d) any failure, omission or delay on the part of Borrower,
Guarantor, any other guarantor of Borrower's Obligations or Lender to
conform or comply with any term of any of the Loan Instruments or any
failure of Lender to give notice of any Incipient Default or Event of
Default;
(e) any waiver, compromise, release, settlement or extension of time
of payment or performance or observance of any of the obligations or
agreements contained in any of the Loan Instruments;
(f) any action or inaction by Lender under or in respect of any of
the Loan Instruments, any failure, lack of diligence, omission or delay on
the part of Lender to enforce, assert or exercise any right, power or
remedy conferred upon Lender in any of the Loan Instruments, or any other
action or inaction on the part of Lender;
(g) any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the benefit of
creditors, composition, receivership, liquidation, marshalling of assets
and liabilities or similar events or proceedings with respect to Borrower,
Guarantor or any other guarantor of Borrower's Obligations, as applicable,
or any of their respective Property or creditors, or any action taken by
any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of Borrower, Guarantor or any other
guarantor of Borrower's Obligations into or with any Person, or any sale,
lease or transfer of any of the assets of Borrower, Guarantor or any other
guarantor of Borrower's Obligations to any other Person;
(i) any change in the ownership of the capital stock of Borrower or
any other guarantor of Borrower's Obligations or any change in the
relationship between Borrower, Guarantor or any other guarantor of
Borrower's Obligations, or any termination of any such relationship;
(j) to the extent permitted by law, any release or discharge by
operation of law of Borrower, Guarantor or any other guarantor of
Borrower's Obligations from any obligation or agreement contained in any of
the Loan Instruments; or
-3-
(k) to the extent permitted by law, any other occurrence,
circumstance, happening or event, whether similar or dissimilar to the
foregoing and whether foreseen or unforeseen, which otherwise might
constitute a legal or equitable defense or discharge of the liabilities of
a guarantor or surety or which otherwise might limit recourse against
Borrower or Guarantor.
4. Waivers. Guarantor unconditionally waives (i) notice of any of the
-------
matters referred to in Section 2 above, (ii) all notices which may be required
---------
by statute, rule of law or otherwise, now or hereafter in effect, to preserve
intact any rights against Guarantor, including, without limitation, any demand,
presentment and protest, proof of notice of non-payment under any of the Loan
Instruments and notice of any Incipient Default or any Event of Default or any
failure on the part of Borrower, Guarantor or any other guarantor of Borrower's
Obligations to perform or comply with any covenant, agreement, term or condition
of any of the Loan Instruments, (iii) any right to the enforcement, assertion or
exercise against Borrower, Guarantor or any other guarantor of Borrower's
Obligations of any right or remedy conferred under any of the Loan Instruments,
(iv) any requirement of diligence on the part of any Person, (v) any requirement
to exhaust any remedies or to mitigate the damages resulting from any default
under any of the Loan Instruments, (vi) any notice of any sale, transfer or
other disposition of any right, title or interest of Lender under any of the
Loan Instruments, and (vii) the benefit of all principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms of this
Guaranty, including without limitation any right to exhaustion of any security
for the Note prior to any action hereunder or any requirement that Lender
relinquish any lien or security interest in any collateral prior to commencing
an action hereunder or after obtaining a judgment hereunder until payment and
performance of all of the obligations and liabilities under the Note and Loan
Instruments have been satisfied in full, and the provisions of Arizona Revised
Statutes, Sections 12-1566, 12-1641 et seq., 33-814, 44-142 and 16 Arizona
------
Revised Statutes, Rules of Civil Procedure, Rule 17(f), and Guarantor agrees
that its obligations shall not be affected by any circumstances, whether or not
referred to herein, which might otherwise constitute a legal or equitable
discharge of a guarantor or surety.
5. Reinstatement. The obligations of Guarantor pursuant to this Guaranty
-------------
shall continue to be effective or automatically be reinstated, as the case may
be, if at any time payment of any of Borrower's Obligations or Guarantor's
Obligations is rescinded or otherwise must be restored or returned by Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
Guarantor, Borrower or any other guarantor of Borrower's Obligations or
otherwise, all as though such payment had not been made.
6. Successors and Assigns. This Guaranty shall inure to the benefit of
----------------------
Lender, its successors and assigns. This Guaranty shall be binding on Guarantor
and her successors and assigns, heirs and personal representatives, and shall
continue in full force and effect until all of Borrower's Obligations and
Guarantor's Obligations are paid and performed in full.
7. No Waiver of Rights. No delay or failure on the part of Lender to
-------------------
exercise any right, power or privilege under this Guaranty or any of the other
Loan Instruments shall operate as a waiver thereof, and no single or partial
exercise of any right, power or privilege shall preclude any other or
-4-
further exercise thereof or the exercise of any other power or right, or be
deemed to establish a custom or course of dealing or performance between the
parties hereto. The rights and remedies provided herein are cumulative and not
exclusive of any rights or remedies provided by law. No notice to or demand on
Guarantor in any case shall entitle Guarantor to any other or further notice or
demand in the same, similar or other circumstance.
8. Modification. The terms of this Guaranty may be waived, discharged,
------------
or terminated only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. No
amendment, modification, waiver or other change of any of the terms of this
Guaranty shall be effective without the prior written consent of Lender.
9. Costs and Expenses. Guarantor agrees to pay on demand all costs and
------------------
expenses incurred by or on behalf of Lender (including, without limitation,
expenses and attorneys' fees) in enforcing Borrower's Obligations or Guarantor's
Obligations.
10. Joinder. Guarantor agrees that any action to enforce this Guaranty
-------
may be brought against Guarantor without any reimbursement or joinder of
Borrower or any other guarantor of Borrower's Obligations in such action.
11. Severability. If any provision of this Guaranty is deemed to be
------------
invalid by reason of the operation of any law, or by reason of the
interpretation placed thereon by any court or other Governmental Body, this
Guaranty shall be construed as not containing such provision and the invalidity
of such provision shall not affect the validity of any other provision hereof,
and any and all other provisions hereof which otherwise are lawful and valid
shall remain in full force and effect.
12. JURISDICTION. GUARANTOR HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS
------------
INITIATED BY GUARANTOR AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS GUARANTY
OR ANY OR ALL OF THE OTHER LOAN INSTRUMENTS TO WHICH GUARANTOR IS A PARTY SHALL
BE LITIGATED IN THE SUPERIOR COURT OF ARIZONA, MARICOPA COUNTY DIVISION, OR THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA, OR, IF LENDER
INITIATES SUCH ACTION, IN ADDITION TO THE FOREGOING COURTS, ANY COURT IN WHICH
LENDER SHALL INITIATE OR REMOVE SUCH ACTION, TO THE EXTENT SUCH COURT OTHERWISE
HAS JURISDICTION. GUARANTOR HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN OR REMOVED BY LENDER
TO ANY OF SUCH COURTS, AND HEREBY AGREES THAT PERSONAL SERVICE OF THE SUMMONS
AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN, MAY BE MADE IN THE
MANNER PROVIDED BELOW, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR
OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED IN
THE MANNER SET FORTH IN SECTION 17 BELOW. GUARANTOR WAIVES ANY CLAIM THAT
----------
PHOENIX, ARIZONA OR THE DISTRICT OF ARIZONA IS AN INCONVENIENT FORUM OR AN
IMPROPER FORUM BASED ON LACK OF VENUE. SHOULD GUARANTOR, AFTER BEING SO SERVED,
FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED
WITHIN THE PERIOD OF TIME PRESCRIBED BY LAW
-5-
AFTER THE MAILING THEREOF, GUARANTOR SHALL BE DEEMED IN DEFAULT AND AN ORDER
AND/OR JUDGMENT MAY BE ENTERED BY LENDER AGAINST GUARANTOR AS DEMANDED OR PRAYED
FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM
FOR GUARANTOR SET FORTH IN THIS SECTION 12 SHALL NOT BE DEEMED TO PRECLUDE THE
----------
ENFORCEMENT BY LENDER OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING
BY LENDER OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
JURISDICTION.
______________________
GUARANTOR'S INITIALS
13. APPLICABLE LAW. THIS GUARANTY SHALL BE GOVERNED AS TO VALIDITY,
--------------
INTERPRETATION, EFFECT AND IN ALL OTHER RESPECTS BY LAWS AND DECISIONS OF THE
STATE OF ARIZONA. FOR PURPOSES OF THIS SECTION 13, THIS GUARANTY SHALL BE
-----------
DEEMED TO BE PERFORMED AND MADE IN THE STATE OF ARIZONA.
14. WAIVER OF RIGHT TO JURY TRIAL. GUARANTOR ACKNOWLEDGES AND AGREES THAT
-----------------------------
ANY CONTROVERSY WHICH MAY ARISE UNDER THIS GUARANTY WOULD BE BASED UPON
DIFFICULT AND COMPLEX ISSUES AND THEREFORE, GUARANTOR AGREES THAT ANY COURT
PROCEEDING ARISING OUT OF ANY SUCH CONTROVERSY WILL BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
______________________
GUARANTOR'S INITIALS
15. WAIVER OF RIGHTS AGAINST BORROWER. NOTWITHSTANDING ANYTHING TO THE
---------------------------------
CONTRARY WHICH MAY BE CONTAINED HEREIN, GUARANTOR HEREBY UNCONDITIONALLY AND
IRREVOCABLY AGREES THAT SHE (I) WILL NOT AT ANY TIME ASSERT AGAINST BORROWER ANY
RIGHT OR CLAIM, AT LAW OR IN EQUITY, TO INDEMNIFICATION, REIMBURSEMENT,
CONTRIBUTION, RESTITUTION OR PAYMENT FOR OR WITH RESPECT TO ANY AND ALL AMOUNTS
GUARANTOR MAY PAY OR BE OBLIGATED TO PAY TO LENDER, INCLUDING, WITHOUT
LIMITATION, BORROWER'S OBLIGATIONS, GUARANTOR'S OBLIGATIONS AND ANY AND ALL
OTHER OBLIGATIONS WHICH GUARANTOR MAY PERFORM, SATISFY OR DISCHARGE, UNDER OR
WITH RESPECT TO THIS GUARANTY, AND (II) WAIVES AND RELEASES ALL SUCH RIGHTS AND
CLAIMS, AT LAW OR IN EQUITY, TO INDEMNIFICATION, REIMBURSEMENT, CONTRIBUTION,
RESTITUTION OR PAYMENT WHICH GUARANTOR MAY HAVE NOW OR AT ANY TIME AGAINST
BORROWER. GUARANTOR FURTHER UNCONDITIONALLY AND IRREVOCABLY AGREES THAT SHE
SHALL HAVE NO RIGHT OF SUBROGATION, AND WAIVES ANY RIGHT TO ENFORCE ANY REMEDY
WHICH LENDER NOW HAS OR HEREAFTER MAY HAVE AGAINST BORROWER AND WAIVES ANY
DEFENSE BASED UPON AN ELECTION OF REMEDIES BY LENDER, WHICH DESTROYS OR
-6-
OTHERWISE IMPAIRS ANY SUBROGATION RIGHTS OF GUARANTOR AND/OR THE RIGHT OF
GUARANTOR TO PROCEED AGAINST BORROWER FOR REIMBURSEMENT.
16. TIME OF THE ESSENCE. TIME FOR THE PERFORMANCE OF GUARANTOR'S
-------------------
OBLIGATIONS UNDER THIS GUARANTY IS OF THE ESSENCE.
17. Notices. All notices and writing to Guarantor under this Guaranty
-------
shall be in writing and shall be (i) delivered in person or (ii) mailed, postage
prepaid, either by registered or certified mail, return receipt requested, or by
overnight express carrier, addressed in each case as follows:
Guarantor: Xxxxxxxx X. Xxxxxxxx
GDC Engineering Inc.
000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Telecopy No: (000) 000-0000
With a Copy To: Xxxx Xxxxxx
Taylor, Porter, Xxxxxx & Xxxxxxxx, L.L.P.
Premier Bank Building, 8th Floor
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Telecopy No: (000) 000-0000
or to any other address as Guarantor shall designate in a written notice to
Lender. All notices sent pursuant to the terms of this Section 18 shall be
----------
deemed received (i) if personally delivered, then on the date of delivery, (ii)
if sent by overnight, express carrier, on the next Business Day immediately
following the day sent, or (iii) if sent by registered or certified mail, on the
earlier of the fifth Business Day following the day sent or when actually
received.
18. Financial Statements. As soon as available and in any event within
--------------------
120 days after the end of each calendar year, Guarantor shall provide to Lender
a personal financial statement as of December 31 of the immediately prior
calendar year, in a form and with a certification satisfactory to Lender, and a
true, correct and complete copy of Guarantor's Federal tax return, as filed, for
the immediately prior calendar year.
-7-
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed as of
the date first above written.
______________________________________
TRUST FOR THE BENEFIT OF XXXXX XXXXXXXX,
SHARIF XXXXXX XXXXXXXX AND XXXXXX-XXXXX
XXXXXXXX, CREATED BY THE LAST WILL AND
TESTAMENT OF HAMEED XXXXX XXXXXXXX DATED
MARCH 20, 1988, APPEARING THROUGH AND
REPRESENTED BY ITS DULY QUALIFIED
TRUSTEE, XXXXXXXX X. XXXXXXXX
______________________________________
XXXXXXXX XXXXXX XXXXXXXX, individually
and as Usufructuary under the Last Will
and Testament of Hameed Xxxxx Xxxxxxxx
dated March 20, 1988
-8-
CONSENT
The undersigned, the beneficiaries of the testamentary trust for the
benefit of Xxxxx Xxxxxxxx, Sharif Xxxxxx Xxxxxxxx and Xxxxxx-Xxxxx Xxxxxxxx
created by the Last Will and Testament of Hameed Xxxxx Xxxxxxxx dated March 20,
1988, which Will was probated in The Succession of Hameed Xxxxx Xxxxxxxx,
Probate No. 56829, Nineteenth Judicial District, Parish of East Baton Rouge,
State of Louisiana, hereby consent to the execution, delivery and performance of
this Guaranty by the Trustee on behalf of the Trust and agree that the assets of
the Trust shall be liable for the obligations of the Trust, as Guarantor under
this Guaranty.
Dated: December __, 1994.
_________________________________
Sharif Xxxxxx Xxxxxxxx
_________________________________
Xxxxx Xxxxxxxx
_________________________________
Xxxxxx-Xxxxx Xxxxxxxx
-9-
FIFTH AMENDMENT TO LOAN INSTRUMENTS
THIS FIFTH AMENDMENT TO LOAN INSTRUMENTS (the "Fifth Amendment") is dated
as of this ____ day of March, 1995 by and among GDC ENGINEERING, INC., a
Louisiana corporation ("Borrower"), XXXXXXXX X. XXXXXXXX in her capacity as
trustee (the "Trustee") of the testamentary trust for the benefit of Xxxxx
Xxxxxxxx, Sharif Xxxxxx Xxxxxxxx and Xxxxxx-Xxxxx Xxxxxxxx (the "Trust") created
by the Last Will and Testament of Hameed Xxxxx Xxxxxxxx dated March 20, 1988
(the "Will"), which Will was probated in THE SUCCESSION OF HAMEED XXXXX
XXXXXXXX, PROBATE NO. 56829, NINETEENTH JUDICIAL DISTRICT, PARISH OF EAST BATON
ROUGE, STATE OF LOUISIANA (the "Succession"), XXXXXXXX XXXXXX XXXXXXXX, one and
the same as Xxxxxxxx X. Xxxxxxxx, individually and in her capacity as
usufructuary under the Will, a person of the full age of majority and a resident
of Baton Rouge Parish, Louisiana ("X. Xxxxxxxx") (each of Borrower, the Trustee,
the Succession and X. Xxxxxxxx are sometimes hereinafter referred to
individually as an "Obligor" and collectively as the "Obligors"), and FINOVA
CAPITAL CORPORATION, a Delaware Corporation, formerly known as Greyhound
Financial Corporation ("Lender").
WHEREAS, there is in effect a Loan Agreement dated December 30, 1992
between Borrower and Lender, as amended by Amendment to Loan Instruments dated
June 30, 1993 among Obligors and Lender, Second Amendment to Loan Instruments
dated October 26, 1993 among Obligors and Lender, Third Amendment to Loan
Instruments dated April 1, 1994 among Obligors and Lender and Fourth Amendment
to Loan Instruments dated December 30, 1994 among Obligors and Lender
(collectively, together with this Fifth Amendment, the "Loan Agreement"),
pursuant to which Lender committed to loan to Borrower an amount not to exceed
the principal sum of $4,900,000 to refinance existing debt of Borrower and
$4,000,000 to fund certain capital expenditures (the "Loan");
WHEREAS, Obligors have requested that Lender modify the financial covenant
with respect to Accounts Receivable Turnover;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Obligors and Lender,
intending to be legally bound, agree as follows:
1. Definitions. Except as otherwise defined herein, all capitalized
-----------
terms used herein shall have the meanings ascribed thereto in the Loan
Agreement.
2. Recitals. The Recitals set forth above are true and accurate and are
--------
incorporated herein by this reference.
3. Amounts Outstanding. Obligors hereby acknowledge and agree that (a)
-------------------
as of February 2, 1995, the principal amount of the Loan outstanding is
$3,445,843.55 and the accrued and unpaid interest is $1,165.40, and (b) as of
the date of execution hereof by Obligors,
there are no defenses, claims or offsets to payment of such principal amount and
the other indebtedness evidenced by the Note.
4. Accounts Receivable Turnover. Section 7.20 of the Loan Agreement is
----------------------------
hereby deleted in its entirety and the following inserted therefor:
7.20 Accounts Receivable Turnover. Commencing
----------------------------
Quarter Period with the Four ending November 30, 1994,
permit the Accounts Receivable Turnover for the Four
Quarter Periods ending February 28, May 31 and August
31 to be greater than 45 days, or permit the Accounts
Receivable Turnover for the Four Quarter Period ending
November 30 to be greater than 60 days.
5. Annual Statements. Section 6.3.3 of the Loan Agreement is hereby
-----------------
amended to add the following:
Notwithstanding anything to the contrary contained
herein, the Basic Financial Statements and the
statements of Operating Cash Flow and Excess Cash Flow
for Borrower's fiscal year end November 30, 1994 only,
shall be delivered to Lender as soon as available, but
in no event later than 120 days after the close of
Borrower's fiscal year.
6. Notices. Section 11.1 of the Loan Agreement with respect to the
-------
notices to Lender is hereby deleted in its entirety and the following inserted
therefor:
FINOVA Capital Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Vice President, Operations Management
Telecopy No.: (000) 000-0000
Copy to: FINOVA Capital Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Vice President, Law
Telecopy No.: (000) 000-0000
and
-2-
FINOVA Capital Corporation
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
and
Xxxxxxxxx Xxxxx
Xxx Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxx X. Xxxxxx
Telecopy No.: (000) 000-0000
7. Release. Each Obligor and her or its officers, directors,
-------
shareholders, employees, predecessors, personal representatives, executors,
executrixes, heirs, successors and assigns, each hereby fully release, remise
and forever discharge Lender and all past and present officers, directors,
agents, employees, servants, partners, shareholders, attorneys and managers of
Lender, and all of their respective heirs, personal representatives,
predecessors, successors and assigns, for, from and against any and all claims,
demands, causes of action, controversies, offsets, obligations, losses, damages,
and liabilities of every kind and character whatsoever, including without
limitation any action, omission, misrepresentation or other basis of liability
founded either in tort or contract and the duties arising thereunder that said
Obligor, or any of her or its respective predecessors, successors and assigns,
or any one or more of them, has had in the past, or now has, whether known or
unknown, whether currently existing or hereafter asserted, relating in any
manner to, or arising from or in connection with, the indebtedness evidenced by
the Note, any negotiations, loan administration, exercise of rights and
remedies, payment, offset with respect to, or other matter relating to such
indebtedness, any Collateral securing payment and performance of such
indebtedness, or any matter preliminary to the execution and delivery by
Obligors and Lender of this Fifth Amendment, or any statement, action, omission
or conduct of Lender or any of its officers, directors, agents, employees,
servants, partners, shareholders, attorneys and managers relating in any manner
to such indebtedness, Collateral or this Fifth Amendment; provided, however,
that the foregoing release and discharge shall not apply to the obligations of
Lender expressly set forth in this Fifth Amendment or first arising after the
date of this Fifth Amendment.
8. Modifications. No amendment, modification, change, waiver, release or
-------------
discharge hereof or hereunder shall be effective unless evidenced by an
instrument in writing signed by the party against whom enforcement is sought.
9. Severability. If any provision hereof is invalid or unenforceable,
------------
the other provisions hereof shall remain in full force and effect and shall be
liberally construed in favor of Lender in order to effectuate the other
provisions hereof.
-3-
10. Binding Nature. The provisions of this Fifth Amendment shall be
--------------
binding upon, and inure to the benefit of, the respective successors and assigns
(including without limitation, any receiver, debtor in possession or trustee in
bankruptcy) of Lender and any of Obligors.
11. APPLICABLE LAW. THE OBLIGATIONS OF OBLIGORS HEREUNDER, UNDER THE LOAN
--------------
AGREEMENT, AS MODIFIED HEREBY, AND UNDER THE OTHER LOAN INSTRUMENTS, ARE TO BE
PERFORMED IN, AND THIS FIFTH AMENDMENT IS, AND THE LOAN AGREEMENT AND OTHER LOAN
INSTRUMENTS HAVE BEEN, EXECUTED, DELIVERED AND ACCEPTED IN, AND THIS FIFTH
AMENDMENT, THE LOAN AGREEMENT, AS MODIFIED HEREBY, AND THE OTHER LOAN
INSTRUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS AND DECISIONS OF, THE STATE OF ARIZONA (WITHOUT REGARD FOR ITS CONFLICTS OF
LAW PRINCIPLES), AND BY EXECUTION HEREOF OBLIGORS AND LENDER EACH AGREE THAT
SUCH LAWS AND DECISIONS OF THE STATE OF ARIZONA SHALL GOVERN THIS FIFTH
AMENDMENT, THE LOAN AGREEMENT, AS MODIFIED HEREBY, AND THE OTHER LOAN
INSTRUMENTS, NOTWITHSTANDING THE FACT THAT THERE MAY BE OTHER JURISDICTIONS
WHICH MAY BEAR A REASONABLE RELATIONSHIP TO THE TRANSACTIONS CONTEMPLATED
HEREBY; PROVIDED, HOWEVER, THAT WITH RESPECT TO PROCEDURAL AND SUBSTANTIVE
MATTERS RELATING ONLY TO THE CREATION, PERFECTION AND ENFORCEMENT BY LENDER OF
ITS RIGHTS AND REMEDIES AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL LOCATED
IN ANY STATE OTHER THAN ARIZONA, SUCH MATTERS SHALL BE GOVERNED BY THE LAWS OF
THE STATE IN WHICH SUCH PROPERTY IS LOCATED.
12. JURISDICTION AND VENUE. OBLIGORS HEREBY AGREE THAT ALL ACTIONS OR
----------------------
PROCEEDINGS INITIATED BY OBLIGORS, OR ANY OF THEM, AND ARISING DIRECTLY OR
INDIRECTLY OUT OF THE LOAN INSTRUMENTS SHALL BE LITIGATED IN THE SUPERIOR COURT
OF ARIZONA, MARICOPA COUNTY DIVISION, OR THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA OR, IF LENDER INITIATES SUCH ACTION, IN ADDITION TO THE
FOREGOING COURTS, ANY COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION, TO THE
EXTENT SUCH COURT HAS JURISDICTION. OBLIGORS HEREBY EXPRESSLY SUBMIT AND CONSENT
IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER
IN ANY OF SUCH COURTS, AND HEREBY WAIVE PERSONAL SERVICE OF THE SUMMONS AND
COMPLAINT, OR OTHER PROCESS OF PAPERS ISSUED THEREIN, AND AGREE THAT SERVICE OF
SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO OBLIGORS, OR ANY OF THEM, AT THE ADDRESS TO WHICH
NOTICES ARE TO BE SENT PURSUANT TO THE LOAN AGREEMENT. OBLIGORS EACH WAIVE ANY
CLAIM THAT PHOENIX, ARIZONA OR THE DISTRICT OF ARIZONA IS AN INCONVENIENT FORUM
OR AN IMPROPER FORUM BASED ON LACK OF VENUE. SHOULD OBLIGORS, OR ANY OF THEM,
AFTER BEING SO
-4-
SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO
SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF,
SUCH BORROWER(S) SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE
ENTERED BY LENDER AGAINST SUCH BORROWER(S) AS DEMANDED OR PRAYED FOR IN SUCH
SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM FOR
OBLIGORS SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE
ENFORCEMENT, BY LENDER, OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE
TAKING, BY LENDER, OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
JURISDICTION, AND OBLIGORS HEREBY WAIVE THE RIGHT TO COLLATERALLY ATTACK ANY
SUCH JUDGMENT OR ACTION.
13. WAIVER OF RIGHT TO JURY TRIAL. LENDER AND OBLIGORS ACKNOWLEDGE AND
-----------------------------
AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER ANY OF THE LOAN INSTRUMENTS OR
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED THEREBY WOULD BE BASED UPON
DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES AGREE THAT ANY LAWSUIT
ARISING OUT OF ANY SUCH CONTROVERSY SHALL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
14. Amendment. This Fifth Amendment and the other Loan Instruments
---------
executed prior or pursuant hereto constitute the entire agreement between the
parties hereto with respect to the transactions contemplated hereby or thereby
and supersede any prior agreements, whether written or oral, relating to the
subject matter hereof. Except as specifically amended herein, the Loan Agreement
shall remain in full force and effect. In the event of any conflict between the
terms and provisions of this Fifth Amendment and the terms and provisions of the
Loan Agreement, the terms and provisions of this Fifth Amendment shall govern
and prevail. Nothing contained in this Fifth Amendment is intended to or shall
be construed as relieving any person or entity, whether a party to this Fifth
Amendment, or not, of any of such person's or entity's obligations to Lender.
15. Effectiveness. This Fifth Amendment shall not become effective unless
-------------
and until Borrower shall have paid to the Persons entitled thereto the following
fees and expenses:
(1) Lender's attorneys' fees and costs incurred in connection
with this Fifth Amendment.
(2) an administration fee of $500 to Lender in connection with
the documentation of this Fifth Amendment.
-5-
IN WITNESS WHEREOF, this Fifth Amendment is executed as of the date first
above written.
LENDER:
FINOVA CAPITAL CORPORATION, a
Delaware corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
OBLIGORS:
GDC ENGINEERING, INC., a Louisiana
corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
TRUST FOR THE BENEFIT OF XXXXX XXXXXXXX,
SHARIF XXXXXX XXXXXXXX AND XXXXXX-XXXXX
XXXXXXXX, CREATED BY THE LAST WILL AND
TESTAMENT OF HAMEED XXXXX XXXXXXXX DATED
MARCH 20, 1988, APPEARING THROUGH AND
REPRESENTED BY ITS DULY QUALIFIED TRUSTEE,
XXXXXXXX X. XXXXXXXX
___________________________________________
XXXXXXXX XXXXXX XXXXXXXX,
individually and as Usufructuary under the
Last Will and Testament of Hameed Xxxxx
Xxxxxxxx dated March 20, 1988
-6-
Exhibit 4(b)
SIXTH AMENDMENT TO LOAN INSTRUMENTS
THIS SIXTH AMENDMENT TO LOAN INSTRUMENTS (the "Sixth Amendment") is
dated as of this 15th day of March, 1996 by and among GDC ENVIRO-SOLUTIONS,
INC., a Louisiana corporation, f/k/a GDC Engineering Inc. ("Borrower"), XXXXXXXX
X. XXXXXXXX in her capacity as trustee of the testamentary trust for the benefit
of Xxxxx Xxxxxxxx, Sharif Xxxxxx Xxxxxxxx and Xxxxxx-Xxxxx Xxxxxxxx (the
"Trust") created by the Last Will and Testament of Hameed Xxxxx Xxxxxxxx dated
March 20, 1988, and individually (collectively, "Xxxxxxxx X. Xxxxxxxx"), GDC
HOLDINGS CORPORATION, a Louisiana corporation ("Holdings"), and FINOVA CAPITAL
CORPORATION, a Delaware Corporation, f/k/a Greyhound Financial Corporation
("Lender").
WHEREAS, there is in effect a Loan Agreement dated December 30, 1992
between Borrower and Lender, as amended by Amendment to Loan Instruments dated
June 30, 1993 among Borrower, Xxxxxxxx X. Xxxxxxxx and Lender, Second Amendment
to Loan Instruments dated October 26, 1993 among Borrower, Xxxxxxxx X. Xxxxxxxx
and Lender, Third Amendment to Loan Instruments dated April 1, 1994 among
Borrower, Xxxxxxxx X. Xxxxxxxx and Lender, Fourth Amendment to Loan Instruments
dated December 30, 1994 among Borrower, Xxxxxxxx X. Xxxxxxxx and Lender and
Fifth Amendment to Loan Instruments dated March 10, 1995 among Borrower,
Xxxxxxxx X. Xxxxxxxx and Lender (collectively, together with this Sixth
Amendment, the "Loan Agreement"), pursuant to which Lender committed to loan to
Borrower an amount not to exceed the principal sum of $4,900,000 to refinance
existing debt of Borrower and $4,000,000 to fund certain capital expenditures
(the "Loan");
WHEREAS, Xxxxxxxx X. Xxxxxxxx gifted 527,969 shares of her Borrower
Capital Stock to Xxxxx Xxxxxxxx and Xxxxx Xxxxxxxx pledged to Lender all of the
Borrower Capital Stock now owned or hereafter acquired by Xxxxx Xxxxxxxx to
secure the payment and performance of the obligations of Borrower to Lender;
WHEREAS, Borrower sold 394,160 shares of the issued Borrower Capital
Stock to Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx pledged to Lender all of the
Borrower Capital Stock now owned or hereafter acquired by Xxxxx X. Xxxxxx to
secure the payment and performance of the obligations of Borrower to Lender;
WHEREAS, Borrower issued to Xxxxx X. Xxxxxxxxxx two (2) 1995 Class A
Warrants (Nos. 1 and 2) for the purchase of 50,000 shares each of the Borrower
Capital Stock and Borrower issued to B. Xxx Xxxxxx four (4) 1995 Class A
Warrants (Nos. 3, 4, 5 and 6) for the purchase of 50,000 shares each of the
Borrower Capital Stock (collectively, the "Warrants");
WHEREAS, Xxxxxxxx X. Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxx X. Xxxxxx, B. Xxx
Xxxxxx, and Xxxxx X. Xxxxxxxxxx (collectively, the "Individual Pledgors")
executed and delivered to Lender that certain Security Agreement and Shareholder
Pledge Agreement dated August 21, 1995 (the "Individual Pledge Agreement") and
delivered to Lender all of the issued and outstanding Borrower Capital Stock;
WHEREAS, Lender timely and properly delivered the notice of exercise of the
payment of Excess Cash Flow pursuant to Section 2.9.2 of the Loan Agreement, for
the period ending November 30, 1994;
WHEREAS, the Individual Pledgors, Borrower and Holdings desire to (a)
exchange all of the Borrower Capital Stock for all of the capital stock of
Holdings pursuant to Section 351 of the Internal Revenue Code of 1986, as
amended (the "GDC/Holdings Stock Exchange"), (b) exchange the Warrants for
warrants for the capital stock of Holdings, (c) cause Holdings to guarantee to
Lender the payment and performance of the obligations of Borrower on a limited
recourse basis (the "Holdings Guaranty") and pledge all of the Borrower Capital
Stock to secure the payment and performance of the obligations of Borrower and
Holdings (the "Holdings Pledge Agreement"), and (d) engage in certain other
transactions as more fully described herein;
WHEREAS, the GDC/Holdings Stock Exchange and such other transactions
require the consent of Lender and waiver by Lender of certain of the provisions
of the Loan Agreement and Loan Instruments;
WHEREAS, in consideration of the agreements of Lender contained herein,
Borrower will pay Lender a Profit Participation Fee of $500,000 and a
Restructure Fee of $300,000, which is based upon calculation of the Profit
Participation Fee as a Call as of August 31, 1995; and
WHEREAS, Borrower desires that Lender provide a new equipment facility in
an amount not to exceed $850,000 for acquisition of equipment in connection with
the IT Contract and any other Advance Contracts approved by Lender;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Borrower, Xxxxxxxx X.
Xxxxxxxx and Lender, intending to be legally bound, agree as follows:
1. Definitions. Except as otherwise defined herein, all capitalized
-----------
terms used herein and in the Recitals above shall have the meanings ascribed
thereto in the Loan Agreement.
2. Recitals. The Recitals set forth above are true and accurate and are
--------
incorporated herein by this reference.
3. Amounts Outstanding. Borrower, Holdings and Xxxxxxxx X. Xxxxxxxx
-------------------
hereby acknowledge and agree that (a) as of, and including, February 29, 1996,
the principal amount of the Loan outstanding is $2,766,327.63 and the accrued
and unpaid interest is $25,087.06, and (b) as of the date of execution hereof by
Borrower, Holdings and Xxxxxxxx X. Xxxxxxxx, there are no defenses, claims or
offsets to payment of such principal amount and the other indebtedness evidenced
by the Note.
4. Representations, Warranties, Acknowledgments and Agreements. As
-----------------------------------------------------------
material inducements to Lender to enter into this Sixth Amendment, and
acknowledging Lender's reliance
-2-
upon the truth and accuracy thereof, Borrower with respect to subsections (a)
through (e), Holdings with respect to subsections (f) through (j), Xxxxxxxx X.
Xxxxxxxx, as trustee with respect to subsections (k) through (n), and Xxxxxxxx
X. Xxxxxxxx, individually, with respect to subsections (o) through (q),
represent, warrant and covenant that:
(a) Borrower is a corporation, duly organized, validly existing and
in good standing under the laws of the State of Louisiana.
(b) This Sixth Amendment has been duly authorized by all necessary
corporate action and has been duly executed and delivered by an authorized
officer of Borrower, and the Sixth Amendment constitutes a legal, valid and
binding agreement enforceable against Borrower in accordance with its terms;
(c) As of the date hereof, Borrower is not the subject of a pending
bankruptcy proceeding and Borrower is not aware of any threatened bankruptcy
proceeding against Borrower nor is Borrower presently contemplating filing such
a proceeding;
(d) Except as disclosed in EXHIBIT 5.8.A hereof, there are no
lawsuits pending or threatened against Borrower, or instituted by Borrower in
which the party defendant has counterclaimed against Borrower;
(e) The execution and delivery of this Sixth Amendment and any other
instruments executed and delivered to Lender concurrently herewith, and the full
and complete performance of the provisions hereof will not result in any breach
of, or constitute a default under, or result in the creation of any lien, charge
or encumbrance upon any property or assets of Borrower under any indenture,
mortgage, deed of trust, bank loan or credit agreement or other instrument to
which Borrower is a party or by which Borrower is bound;
(f) Holdings is a corporation, duly organized, validly existing and
in good standing under the laws of the State of Louisiana.
(g) This Sixth Amendment, the Holdings Guaranty and the Holdings
Pledge Agreement have been duly authorized by all necessary corporate action and
have been duly executed and delivered by an authorized officer of Holdings, and
the Sixth Amendment, the Holdings Guaranty and the Holding Pledge Agreement
constitute legal, valid and binding agreements enforceable against Holdings in
accordance with their terms;
(h) As of the date hereof, Holdings is not the subject of a pending
bankruptcy proceeding and Holdings is not aware of any threatened bankruptcy
proceeding against Holdings nor is Holdings presently contemplating filing such
a proceeding;
(i) There are no lawsuits pending or threatened against Holdings, or
instituted by Holdings in which the party defendant has counterclaimed against
Holdings;
(j) The execution and delivery of this Sixth Amendment and any other
instruments executed and delivered to Lender concurrently herewith, and the full
and complete
-3-
performance of the provisions hereof will not result in any breach of, or
constitute a default under, or result in the creation of any lien, except as
created under the Holdings Pledge Agreement, charge or encumbrance upon any
property or assets of Holdings under any indenture, mortgage, deed of trust,
bank loan or credit agreement or other instrument to which Holdings is a party
or by which Holdings is bound;
(k) This Sixth Amendment has been duly authorized by all necessary
action and has been duly executed and delivered by the authorized trustee of the
Trust, and the Sixth Amendment constitutes a legal, valid and binding agreement
enforceable against the Trust in accordance with its terms;
(l) As of the date hereof, the trustee is not the subject of a
pending bankruptcy proceeding and the trustee is not aware of any threatened
bankruptcy proceeding against the Trust nor is the trustee presently
contemplating filing such a proceeding;
(m) There are no lawsuits pending or threatened against the Trust,
or instituted by the Trust in which the party defendant has counterclaimed
against the Trust;
(n) The execution and delivery of this Sixth Amendment and any
other instruments executed and delivered to Lender concurrently herewith, and
the full and complete performance of the provisions hereof will not result in
any breach of, or constitute a default under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of the Trust under any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
instrument to which the Trust is a party or by which the Trust is bound;
(o) As of the date hereof, Xxxxxxxx X. Xxxxxxxx is not the subject of
a pending bankruptcy proceeding and Xxxxxxxx X. Xxxxxxxx is not aware of any
threatened bankruptcy proceeding against her nor is Xxxxxxxx X. Xxxxxxxx
presently contemplating filing such a proceeding;
(p) There are no lawsuits pending or threatened against Xxxxxxxx X.
Xxxxxxxx, or instituted by Xxxxxxxx X. Xxxxxxxx in which the party defendant has
counterclaimed against Xxxxxxxx X. Xxxxxxxx;
(q) The execution and delivery of this Sixth Amendment and any other
instruments executed and delivered to Lender concurrently herewith, and the full
and complete performance of the provisions hereof will not result in any breach
of, or constitute a default under, or result in the creation of any lien, charge
or encumbrance upon any property or assets of Xxxxxxxx X. Xxxxxxxx under any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
instrument to which Xxxxxxxx X. Xxxxxxxx is a party or by which Xxxxxxxx X.
Xxxxxxxx is bound;
5. No Misrepresentation. Borrower, Holdings and Xxxxxxxx X. Xxxxxxxx
---------------------
severally on its or her own behalf, and not jointly, represent, warrant and
covenant as follows: that no representation or warranty made by Borrower,
Holdings or Xxxxxxxx X. Xxxxxxxx and contained herein or in the other Loan
Instruments, and no certificate, information or report furnished or to
-4-
be furnished by Borrower, Holdings or Xxxxxxxx X. Xxxxxxxx in connection with
any of the Loan Instruments or any of the transactions contemplated hereby or
thereby, contains or will contain a misstatement of material fact, or omits or
will omit to state a material fact required to be stated in order to make the
statements contained herein or therein not misleading in the light of the
circumstances under which such statements were made; and there is no fact known
or reasonably foreseen by Borrower, Holdings or Xxxxxxxx X. Xxxxxxxx that will
materially adversely affect Borrower, Holdings or Xxxxxxxx X. Xxxxxxxx or its or
their respective financial conditions, operations, Property, business,
prospects, profits or the ability of Borrower, Holdings or Xxxxxxxx X. Xxxxxxxx
to consummate the transactions and perform its or their obligations pursuant to
the Loan Instruments that has not expressly been disclosed to Lender in writing.
Xxxxxxxx X. Xxxxxxxx shall not be liable for any misrepresentations made by any
other Person after the release of the X. Xxxxxxxx Guaranty.
6. Reaffirmation of Security Interest. Except for the Security Interests
----------------------------------
arising from the Individual Pledge Agreement, which was terminated immediately
prior to the execution of this Agreement, Borrower and Xxxxxxxx X. Xxxxxxxx
hereby confirm and agree that Lender's Security Interests, and Lender's lien
priority, in all of the Collateral previously pledged, assigned, transferred or
granted to Lender shall continue to secure the payment and performance of
Borrower's obligations following the execution, delivery and effectiveness of
this Sixth Amendment and the documents, instruments and agreements contemplated
hereby and thereby.
7. Waiver of Certain Defaults; No Waiver of Other Defaults. Except as
-------------------------------------------------------
expressly provided herein, this Sixth Amendment is not a waiver of any present
or future default of Borrower or a release or relinquishment of any Lien,
Security Interest, rights or remedies securing payment and performance of
Borrower's obligations or the enforcement thereof, except as specifically
provided herein. Such Liens, Security Interests, rights and remedies are hereby
ratified, confirmed, preserved, renewed and extended by Borrower and Xxxxxxxx X.
Xxxxxxxx in all respects, except as expressly provided herein. Notwithstanding
this Section 7, Lender hereby waives all of the events of default listed on
SCHEDULE 7 hereto (collectively, the "Permitted Defaults," and individually, a
"Permitted Default"); provided, however, this waiver shall not constitute a
waiver of any other default not known to Lender or reasonably contemplated by
Lender in connection with the transactions contemplated by this Sixth Amendment.
8. Release. Borrower, Holdings and Xxxxxxxx X. Xxxxxxxx and its and
-------
their officers, directors, shareholders, employees, predecessors, personal
representatives, executors, executrixes, trustees, heirs, successors and
assigns, each hereby fully release, remise and forever discharge Lender and all
past and present officers, directors, agents, employees, servants, partners,
shareholders, attorneys and managers of Lender, and all of their respective
heirs, personal representatives, predecessors, successors and assigns, for, from
and against any and all claims, demands, causes of action, controversies,
offsets, obligations, losses, damages, and liabilities of every kind and
character whatsoever, including, without limitation, any action, omission,
misrepresentation or other basis of liability founded either in tort or contract
and the duties arising thereunder that Borrower, Holdings or Xxxxxxxx X.
Xxxxxxxx, or any of its or their respective predecessors, successors and
assigns, or any one or more of them, has had in the past, or now has, whether
known or unknown, whether currently existing or hereafter asserted, relating in
any manner to, or arising from or in connection with, the indebtedness evidenced
by the Note, any negotiations, loan administration, exercise of rights and
remedies, payment, offset
-5-
with respect to, or other matter relating to such indebtedness, any Collateral
securing payment and performance of such indebtedness, or any matter preliminary
to the execution and delivery by Borrower, Holdings and Xxxxxxxx X. Xxxxxxxx and
Lender of this Sixth Amendment, or any statement, action, omission or conduct of
Lender or any of its officers, directors, agents, employees, servants, partners,
shareholders, attorneys and managers relating in any manner to such
indebtedness, Collateral or this Sixth Amendment; provided, however, that the
foregoing release and discharge shall not apply to the obligations of Lender
expressly set forth in this Sixth Amendment or first arising after the date of
this Sixth Amendment.
9. Effectiveness. This Sixth Amendment shall not become effective unless
-------------
and until Lender shall have received the following documents and instruments,
all in form and substance satisfactory to Lender and duly executed by the
Persons required to do so, and Borrower shall have paid to the Persons entitled
thereto the following fees and expenses:
(a) This Sixth Amendment.
(b) A Limited Recourse Continuing Guaranty from Holdings in the form
attached hereto as Exhibit "A" and incorporated herein by this reference (the
-----------
"Holdings Guaranty").
(c) A Security Agreement and Shareholder Pledge Agreement from
Holdings in the form attached hereto as Exhibit "B" and incorporated herein by
-----------
this reference (the "Holdings Pledge Agreement").
(d) The original stock certificates evidencing all of the issued and
outstanding capital stock of Borrower, together with assignments separate from
certificate or stock powers, executed in blank by Holdings.
(e) First Amendment to Continuing Guaranty between X. Xxxxxxxx and
Lender.
(f) Any Uniform Commercial Code financing statements or filings or
notices required under applicable law to (i) reflect Borrower's name change and
(ii) properly perfect Lender's Security Interests arising from the Holdings
Pledge Agreement.
(g) Uniform Commercial Code financing statements or filings or
notices required under applicable law to perfect Lender's security interest in
inventory located in Mississippi and South Carolina.
(h) Evidence of Key Man Life Insurance in the amount of $1,000,000
insuring the life of Xxxxxxxx and $500,000 insuring the life of Xxxx, and
Assignments of such Key Man Life Insurance to Lender, in form and substance
satisfactory to Lender, executed by Borrower and the insurance company(s).
(i) Evidence of all property and liability insurance required in
connection with the Loan Instruments.
-6-
(j) A certificate from Borrower's environmental consultant that (s)he
has searched the public databases and DK Industries, Inc. has not been named as
a "Potentially Responsible Party" with respect to any federal Superfund site.
(k) Financial statements of Xxxxxxxx X. Xxxxxxxx, individually and as
trustee of the Trust prepared as of May 31, 1995, together with a certificate
from Xxxxxxxx X. Xxxxxxxx certifying that the financial statements fairly
present her financial position as of such date and that there have been no
material adverse changes in her financial statements or net worth since May 31,
1995.
(l) An officers' certificate and incumbency certificate from
Borrower, together with corporate resolutions of Borrower authorizing the
transactions contemplated by this Sixth Amendment.
(m) An officers' certificate and incumbency certificate from
Holdings, together with corporate resolutions of Holdings authorizing the
GDC/Holdings Stock Exchange and the execution and delivery of this Sixth
Amendment, the Holdings Guaranty and the Holdings Pledge Agreement.
(n) Attorneys' opinion letters from counsel to Borrower, Xxxxxxxx
X. Xxxxxxxx and Holdings.
(o) Evidence satisfactory to Lender that after giving effect to any
transaction costs and other expenses in connection with this Sixth Amendment,
including, without limitation, any brokerage fees or other commissions, and all
borrowings which are outstanding thereunder, the amount which is available for
borrowing under the Working Capital Loan equals or exceeds $150,000.
(p) Consents to the Sixth Amendment from the Working Capital Lender
or Working Capital Lender Substitution, if applicable, and LSC, Louisiana Seed
Capital Fund Limited Partnership and Louisiana Economic Development Corporation.
(q) $100,000, in immediately available funds, as partial payment of
the Restructure Fee, which shall be deemed to be fully earned and non-refundable
upon execution of this Sixth Amendment.
(r) Accrued and unpaid interest on the Loan to, but not including,
March 1, 1996.
(s) Lender's attorneys' fees and costs incurred in connection with
this Sixth Amendment in immediately available funds, including, without
limitation, UCC searches and key employee background searches.
(t) A fully executed copy of the IT Contract in form and substance
satisfactory to Lender.
-7-
(u) Such other documents and instruments as Lender shall reasonably
request.
10. Release of Individual Pledge Agreement. Immediately prior to the
--------------------------------------
execution of this Sixth Amendment, the Individual Pledge Agreement was
terminated, notwithstanding anything to the contrary in Section 8 of the
Individual Pledge Agreement, but subject to Section 11.3 of the Loan Agreement,
and Lender delivered to Borrower the original stock certificates evidencing the
Borrower Capital Stock issued in favor of the Individual Pledgors and any
original assignments or stock powers executed by the Individual Pledgors in
Lender's possession.
11. Loan Agreement Definitions. (a) The definitions of "Accountants",
--------------------------
"Advance Contracts", "Borrower's Obligations", "Contract Equipment", "Initial
Advance", "Interest Rate", "Key Man Life Insurance", "Obligors", "Operating Cash
Flow", "Principals", "Remaining Portion", "Shareholders", "Shareholder Pledge
Agreement" and "Subordinated Debt" in Section 1.1 of the Loan Agreement are
hereby deleted in their entirety and the following inserted therefor:
Accountants: Any so-called "Big 6" public accounting
-----------
firm,Xxxx & Associates or any other independent certified
public accounting firm selected by Borrower and satisfactory
to Lender.
Advance Contracts: The IT Contract and any other
-----------------
contracts requiring acquisition of Contract Equipment and
approved by Lender.
Borrower's Obligations: (i) any and all Indebtedness
----------------------
due or to become due, now existing or hereafter arising, of
Borrower to Lender pursuant to the terms of this Loan
Agreement or any other Loan Instrument, including, without
limitation, the Profit Participation Fee, the Restructure
Fee, the Maintenance Fee for the current calendar year and
all prior calendar years during the term of the Loan, and
the Termination Fee, and (ii) the performance of the
covenants of Borrower contained in the Loan Instruments.
Contract Equipment: Any equipment required in
------------------
connection with the IT Contract and any other Advance
Contracts.
Initial Advance: $4,900,000 of the proceeds of the Loan
---------------
disbursed on or about December 30, 1992, with a current
outstanding principal balance of $2,766,327.63 as of March
15, 1996.
Interest Rate: a per annum rate of interest equal to
-------------
the Base Rate, plus 250 basis points.
-8-
Key Man Life Insurance: each of the policies of key man
----------------------
life insurance issued in favor of Borrower and insuring the
lives of Xxxxxxxx and Xxxx, or Xxxxx X. Xxxxxx, each of
which policies of insurance shall be (i) in an amount of (A)
$1,000,000 with respect to Xxxxxxxx, and (B) $500,000 with
respect to Xxxx, or (C) $2,000,000 with respect to Xxxxx X.
Xxxxxx, (ii) issued by an insurer and otherwise in form and
content satisfactory to Lender and (iii) assigned to Lender
pursuant to the applicable Assignment of Key Man Life
Insurance.
Obligors: Borrower and, subject to Section 3.3,
-------- -----------
Xxxxxxxx X. Xxxxxxxx in her capacity as trustee (the
"Trustee") of the testamentary trust for the benefit of
Xxxxx Xxxxxxxx, Sharif Xxxxxx Xxxxxxxx and Xxxxxx-Xxxxx
Xxxxxxxx (the "Trust"), and individually.
Operating Cash Flow: for any period, the net income of
-------------------
Borrower for such period:
(i) plus the sum of the following, to the extent
deducted in determining net income for such period:
(A) interest paid or accrued on
Indebtedness, including, without limitation,
interest on Capitalized Leases that is imputed in
accordance with GAAP;
(B) Depreciation and amortization of assets;
(C) extraordinary losses from sales or
dispositions of Property outside of the normal
course of Borrower's Business; and
(D) any special charges, extraordinary
charges or non-recurring charges;
(ii) minus the sum of the following, to the extent
-----
included in determining net income for such period:
(A) all payments made by Borrower during such
period with respect to Capital Expenditures, other
than Subsequent Advance Expenditures;
-9-
(B) extraordinary gains from sales or
dispositions of Property outside of the normal
course of Borrower's Business and all
extraordinary non-cash gains; and
(C) dividends or distributions declared or
paid or deemed paid pursuant to Section 7.5
hereof; and
(D) for purposes of Excess Cash Flow payments
pursuant to Section 2.9.2 hereof only, fifty
percent (50%) of all cancellation/termination fees
received by Borrower from Occidental Chemical
Corporation or its successors or assigns ("Oxy
Chem") in connection with that certain agreement
dated September 21 and 28, 1994 between Borrower
and Oxy Chem, a copy of which is attached hereto
as EXHIBIT 2.9.2 and incorporated herein by this
reference.
Principals: collectively, Xxxxxxxx X. Xxxxxxxx, Tarek
----------
Xxxxxxxx and Xxxxx X. Xxxxxx.
Remaining Portion: An amount not to exceed $850,000.
-----------------
Shareholder: Holdings.
-----------
Shareholder Pledge Agreement: A Security Agreement and
----------------------------
Shareholder Pledge Agreement executed by Holdings in favor
of Lender in form acceptable to Lender, pursuant to which
Lender is granted a Lien on all of the Borrower Capital
Stock.
Subordinated Debt: collectively, the LSC Indebtedness,
-----------------
the Shareholder Indebtedness and the New Subordinated
Indebtedness.
and (b) Section 1.1 of the Loan Agreement is are hereby amended to add the
following definitions:
Base Price: the invoice cost of any Contract Equipment
----------
(after adjustment for applicable discounts or allowances),
less tax, destination charges, freight, delivery charges,
set-up costs, testing costs, accessories or add-ons and any
other additional charges above the base price of the
Contract Equipment.
-10-
Holdings: GDC Holdings Corporation, a Louisiana
--------
corporation, and its permitted successors and assigns.
IT Contract: That certain Subcontract Agreement dated
-----------
March 1 and 11, 1996 between Borrower and IT Corporation
with respect to the American Creosote contract.
Net Income: For any period, the net income (or loss) of
----------
Borrower for such period.
New Subordinated Indebtedness: Any Indebtedness for
-----------------------------
Borrowed Money incurred after the date of the Sixth
Amendment owing by Borrower to any Person, except for
refinancing of existing Indebtedness for Borrowed Money.
Orderly Liquidation Value: The estimated gross cash
-------------------------
dollar amount derived from the sale of the assets, given
limited time to find a purchaser or purchasers, and
considering a completed sale of all assets. No guarantees or
warranties are made as to condition, and purchasers are
responsible for removal of the purchased assets at their own
risk and expense. Orderly Liquidation Value allows only
limited time for market exposure, and also considers the
physical condition, quantity, difficulty of removal, as well
as the overall marketability of the asset group. No
consideration is given to additional value that might be
obtained because of product line, equipment in place, going
operation or other elements of value that could or might be
produced at liquidation, but could not be reasonably
assumed.
Public Company: DK Industries, Inc. or another company
--------------
satisfactory to Lender with a class of equity securities
registered under Section 12(b) or 12(g) of the 1934 Act, and
subject to the periodic reporting requirements set forth in
Section 13 of the 1934 Act.
Restructure Fee: $300,000.
---------------
Specially Manufactured Equipment: Contract Equipment
--------------------------------
(a) with a Base Price equal to or in excess of $40,000 and
(b)(i) which will not be delivered to Borrower within 28
days after the first Subsequent Advance for such Contract
Equipment or (ii) requires multiple Subsequent Advances for
such Contract Equipment.
1934 Act: The Securities Exchange Act of 1934, as
--------
amended.
-11-
12. Time Periods. Section 1.2 of the Loan Agreement is hereby
------------
deleted in its entirety and the following inserted therefor:
1.2 TIME PERIODS. In this Loan Agreement and the
other Loan Instruments, in the computation of periods
of time from a specified date to a later specified
date, (i) the word "from" means "from and including,"
(ii) the words "to" and "until" each mean "to, but
excluding" and (iii) the words "through," "end of" and
"expiration" each mean "through and including." Unless
otherwise specified, all references in this Loan
Agreement and the other Loan Instruments to a (i)
"month" shall be deemed to refer to a calendar month,
(ii) "quarter" shall be deemed to refer to the period
from (A) the first day of such Person's fiscal year
through the end of the third month of such Person's
fiscal year, (B) the first day of the fourth month of
such Person's fiscal year through the last day of the
sixth month of such Person's fiscal year, (C) the first
day of the seventh month of such Person's fiscal year
through the last day of the ninth month of such
Person's fiscal year, or (D) the first day of the tenth
month of such Person's fiscal year through the last day
of such Person's fiscal year, and (iii) "year" shall be
deemed to refer to a period from the first day of such
Person's fiscal year through the last day of such
Person's fiscal year.
13. Loan. Section 2.1 of the Loan Agreement is hereby
----
deleted in its entirety and the following inserted therefor:
2.1 LOAN. The Loan shall consist of a term loan in an
----
amount not to exceed $3,616,327.63.
14. Remaining Portion - Subsequent Advances. (a) Section
---------------------------------------
2.2.2(a) of the Loan Agreement is hereby deleted in its entirety and the
following inserted therefor:
(A) PURPOSES. The proceeds of the Remaining
--------
Portion shall be utilized to acquire Contract Equipment
in connection with the IT Contract and any Advance
Contract approved by Lender.
(b) Section 2.2(b)(i), (ii), (iii) and (iv) of the Loan Agreement are hereby
deleted in their entirety and the following inserted therefor:
(I) NO DEFAULT. No Event of Default or
----------
Incipient Default shall exist or be created as a result
of the making of any such Subsequent Advance.
-12-
(II) REQUEST FOR ADVANCE; INFORMATION. Not less
--------------------------------
than 7 days prior to each anticipated Subsequent
Advance, Borrower shall deliver to Lender a written
request for a Subsequent Advance, which shall be
accompanied by such documents as Lender may request and
evidence satisfactory to Lender that (A) the aggregate
amount of all Subsequent Advances (including the then
requested Subsequent Advance) do not exceed, in the
aggregate, $850,000, (B) Borrower has paid, or will
contemporaneously with the first Subsequent Advance for
each item of Contract Equipment will pay, the
difference between the contract price for the Contract
Equipment and the Base Price, (C) the amount of the
requested Subsequent Advance to acquire the Contract
Equipment (together with any prior Subsequent Advances
used to acquire such Contract Equipment) does not
exceed, in the aggregate, 80% of the Base Price of such
Contract Equipment, (D) title to all Contract Equipment
(except the Specially Manufactured Equipment) purchased
previously with Subsequent Advances is owned by
Borrower, the purchase price for all Contract Equipment
(except the Specially Manufactured Equipment) purchased
previously with Subsequent Advances has been fully
paid, and all Contract Equipment (except the Specially
Manufactured Equipment) purchased previously with
Subsequent Advances is in the possession of Borrower,
(E) with respect to Specially Manufactured Equipment,
(1) the Specially Manufactured Equipment is
identifiable collateral, (2) title to the Specially
Manufactured Equipment has been transferred to
Borrower, subject only to the vendor's purchase money
security interest for the remainder of the contract
price, (3) the vendor's secured lender(s) and the
landlord(s) of the premises where the Specially
Manufactured Equipment is manufactured, assembled or
stored have waived any lien rights with respect to the
Specially Manufactured Equipment, and (4) the vendor
has agreed to deliver the Specially Manufactured
Equipment to a location designated by Lender upon
receipt of a notice of default and payment of the
remainder of the contract price for the Specially
Manufactured Equipment, and (F) none of the Contract
Equipment is goods covered by a certificate of title or
goods which are not covered by a certificate of title
but are mobile and are of a type normally used in more
than one jurisdiction, such as motor vehicles,
trailers, rolling stock, airplanes, shipping
containers, road building and construction machinery
and commercial harvesting machinery and the like.
Notwithstanding anything to the contrary in clause (D)
----------
above, Borrower may, at any time, have requested and/or
received Subsequent Advances of up to $150,000 for
Contract Equipment (including Specially Manufactured
Equipment designated by Borrower in writing) which is
not yet titled to, and/or not yet in the
-13-
possession of, the Borrower and, provided further,
Contract Equipment titled to, and in the possession of,
the Borrower, but not yet paid for in full shall be
considered perfected if the only condition to
perfection is payment of the Base Price (which, at
Lender's discretion, may be paid directly to the
vendor).
(III) AVAILABILITY; FREQUENCY. No Subsequent
-----------------------
Advance shall be made after December 31, 1996. Each
such Subsequent Advance shall be in an amount not less
than $100,000.
(IV) SATISFACTION OF LENDER. Before any Subsequent
----------------------
Advance is made there shall be delivered to Lender, and
Lender must be satisfied with (A) an analysis which
demonstrates that of each of the Advance Contracts can
be performed profitably by Borrower, (B) the
performance record, including payment history, safety
and delivery of services, of all parties to the Advance
Contracts and (C) the anticipated warranty terms
provided by each manufacturer of any portion of the
Contract Equipment. Lender waives satisfaction of
Clause (B) with respect to the IT Contract.
----------
and (c) Sections 2.2(c) and 2.2(d) of the Loan Agreement are hereby deleted in
their entirety.
15. Payment of Principal and Interest. Section 2.5 of the Loan
---------------------------------
Agreement is hereby deleted in its entirety and the following inserted therefor:
2.5 PAYMENTS OF PRINCIPAL AND INTEREST. The
----------------------------------
principal and interest of the Loan shall be repaid in
one (1) interest only installment on March 1, 1996 and
59 successive monthly installments of principal and
interest, commencing on the first business day of April
1996. The first 58 of such installments shall be in an
amount equal to (a) interest in arrears calculated at
the Interest Rate or the Default Interest Rate, as
applicable, and (b) a principal component in an amount
equal to the sum of the following: (i) the principal
portion of a seven-year level mortgage amortization
schedule, calculated upon the Interest Rate which is in
effect on February 1, 1996 and the principal balance of
the Loan which is outstanding on February 2, 1996
(after application of invoice due February 1, 1996)
plus (ii) with respect to each Subsequent Advance, the
principal portion of a seven-year level mortgage
amortization schedule, calculated upon the Interest
Rate which is in effect on the applicable Subsequent
Advance Date and the amount of such Subsequent Advance.
All remaining principal, including the principal amount
of all Subsequent Advances, and any accrued interest
and other sums which are due and owing
-14-
pursuant to the Loan Instruments, shall be paid in full on the first
business day of February 2001.
16. Subsequent Advance Fee. Section 2.8.1(b) of the Loan
----------------------
Agreement is hereby deleted in its entirety.
17. Maintenance Fee. Section 2.8.2 of the Loan Agreement is hereby deleted
---------------
in its entirety and the following inserted therefor:
2.8.2 MAINTENANCE FEE. On or before December 31,
---------------
1993, December 31, 1994 and December 31, 1995, Borrower
shall pay to Lender an annual maintenance fee of $35,000. On
or before December 31, 1996 and on or before December 31 of
each year (or partial year) thereafter during which the Loan
is outstanding (or upon payment or prepayment of the Loan in
full), Borrower shall pay to Lender an annual maintenance
fee (the "Maintenance Fee") equal to $100,000. Such
Maintenance Fee shall be deemed to be earned on January 1 of
each calendar year, whether or not the Loan is paid in full
prior to December 31 of such calendar year and is not
subject to proration in the event of payment or prepayment
of the Loan in full, whether by payment of the Loan at
maturity, by optional prepayment or by acceleration after an
Event of default. Lender acknowledges receipt of the
Maintenance Fee for calendar years 1993, 1994 and 1995.
Notwithstanding the foregoing, if the Loan is timely paid at
maturity, the Maintenance Fee for the last year of the
scheduled term of the Loan shall be prorated based upon the
actual number of days the Loan is outstanding in such year
and a 360 day year.
18. Profit Participation Fee. Section 2.8.3 of the Loan Agreement is
------------------------
hereby deleted in its entirety and the following inserted therefor:
2.8.3 PROFIT PARTICIPATION FEE. As an additional
------------------------
inducement to Lender to make the Loan, Borrower agrees to
pay to Lender a profit participation fee (the "Profit
Participation Fee") of $500,000, which shall be deemed to be
fully earned upon the effectiveness of the Sixth Amendment
to Loan Instruments dated March 15, 1996 (the "Sixth
Amendment") and which shall be payable upon the earlier of
full prepayment of the Loan, whether by optional prepayment
or acceleration after an Event of default, or the following
dates:
-15-
Date Amount
============================================================
September 30, 1996 $100,000
------------------------------------------------------------
October 31, 1996 $100,000
------------------------------------------------------------
November 30, 1996 $100,000
------------------------------------------------------------
December 15, 1996 $200,000
============================================================
Borrower or Holdings shall provide Lender with a copy
of any private placement memorandum for the Private
Placement, documents evidencing or describing the Public
Company Merger given to shareholders or prospective
investors or any final prospectus in connection with any
equity offering by Public Company as soon as available. Upon
the written request of Lender, Borrower and Holdings shall
use reasonable good faith efforts to permit Lender to
convert all or any portion of the Profit Participation Fee
for stock, options and/or warrants in Holdings or the Public
Company, as the case may be, for the same price and on the
same terms and conditions as such stock, options and/or
warrants are being offered to other prospective investors or
stockholders at the time of the Private Placement and/or
equity offering, as the case may be, provided that the
aggregate amount of stock, options and/or warrants purchased
by Lender shall be less than ten percent (10%) of the issued
and outstanding stock of Holdings or Public Company (but
excluding any stock issued for unexercised options or
warrants), and, provided further, that the minimum
conversion amount for any offering shall be $100,000 and any
conversion amount in excess thereof shall be in increments
of $25,000. The cost of the stock, options and/or warrants
acquired by Lender in such conversion(s) shall be applied
against the Profit Participation Fee in the inverse order of
payment of the Profit Participation Fee.
19. Fees. Section 2.8 of the Loan Agreement is hereby amended to add the
----
following:
2.8.4 RESTRUCTURE FEE. As an additional inducement to
---------------
Lender to enter into the Sixth Amendment and in
consideration of the modifications and agreements of Lender
contained therein, Borrower agrees to pay to Lender the
Restructure Fee, which shall be deemed to be fully earned
upon the effectiveness of the Sixth Amendment and which
shall be payable upon the earlier of full prepayment of the
Loan, whether by optional prepayment or acceleration after
an Event of default, or the following dates:
-16-
============================================================
Date Amount
------------------------------------------------------------
Upon the effectiveness of the $100,000
Sixth Amendment
------------------------------------------------------------
May 31, 1996 $100,000
------------------------------------------------------------
July 31, 1996 $100,000
============================================================
2.8.5 APPLICATION OF CASH TO PROFIT PARTICIPATION FEE
-----------------------------------------------
AND RESTRUCTURE FEE. Except as otherwise provided in the
-------------------
last sentence of this Section 2.8.5, in the event that
Public Company, Borrower or Holdings receives any cash from
any source, including, without limitation, sale of stock,
debentures, options or warrants, sale of assets, and loans,
within seven (7) days thereafter, Borrower shall pay to
Lender an amount equal to twenty percent (20%) multiplied by
the amount of cash received by Public Company, Borrower
and/or Holdings to be applied toward the scheduled payments
of the Profit Participation Fee and the Restructure Fee in
the inverse order of maturity, but in no event more than the
then remaining balance of the Profit Participation Fee and
Restructure Fee. Notwithstanding anything to the contrary
contained above, cash from operations, Permitted Payments,
conversion of existing debt to equity and refinancings of
existing debt to the extent of such existing debt are
specifically excluded from the Borrower's payment obligation
above.
2.8.6 TERMINATION FEE. In consideration of the making
---------------
of the Loan by Lender to Borrower, Borrower agrees that upon
any partial or full prepayment of the Loan, whether by
optional prepayment or acceleration after an Event of
Default, in addition to the principal prepayment, all
accrued and unpaid interest on such prepayment, and upon a
full prepayment, the Maintenance Fee for the current
calendar year and all prior calendar years during the term
of the Loan, the Restructure Fee and the Profit
Participation Fee, Borrower shall pay to Lender a
termination fee (the "Termination Fee") equal to three
percent (3%) of the principal amount prepaid if such
prepayment occurs on or prior to January 1, 1998, and two
percent (2%) of the principal amount prepaid if such
prepayment occurs after January 1, 1998.
20. Excess Cash Flow Payments. Section 2.9.2(a) of the Loan Agreement is
-------------------------
hereby deleted in its entirety and the following inserted therefor:
(a) EXCESS CASH FLOW PAYMENTS. Until the Loan is paid
-------------------------
in full, for the years ending November 30, 1993 and
-17-
November 30, 1994, Borrower shall pay to Lender 50% of the
Excess Cash Flow for such years, and until the Loan is paid
in full, for each year commencing with the year ending
September 30, 1995, Borrower shall pay to Lender 25% of the
Excess Cash Flow for such year, provided in each case Lender
has delivered a notice to Borrower prior to the expiration
of 30 days after the later to occur of the date (i) upon
which Borrower is required to deliver to Lender the Basic
Financial Statements for such year pursuant to subsection
6.3.3 or (ii) of actual receipt of the Basic Financial
Statements for such year pursuant to subsection 6.3.3. Any
such payment received pursuant to the provisions of this
subparagraph (a) shall be applied to Borrower's Obligations
as described in subparagraph (c) of this subsection 2.9.2.
Lender acknowledges receipt of the Excess Cash Flow payment
for the year ending November 30, 1993. Borrower acknowledges
timely and proper delivery and receipt of the notice
demanding payment of the Excess Cash Flow for the year
ending November 30, 1994. Lender and Borrower agree that the
amount of the Excess Cash Flow for the year ending November
30, 1994 is $119,735. Lender and Borrower agree that the
Excess Cash Flow payment for the year ending November 30,
1994 and, if exercised, the Excess Cash Flow payment for the
year ending September 30, 1995, shall not be due and payable
until March 31, 1997. Borrower's obligation to pay the
Excess Cash Flow payments required in this Section 2.9.2
shall terminate and be of no further force or effect (i) for
the years ending November 30, 1994, September 30, 1995
(based upon the 10-month Basic Financial Statements for the
period ending September 30, 1995) and September 30, 1996,
if, on or prior to March 31, 1997, and (ii) for all years
ending on September 30, 1997 or later, if on or before
September 30 of such year, (a) Borrower delivers to Lender a
current appraisal of the Collateral prepared by an Appraiser
satisfactory to Lender and otherwise in form and substance
satisfactory to Lender with an Orderly Liquidation Value of
the Collateral equal to or exceeding eighty percent (80%) of
the then outstanding principal balance of the Loan plus any
Subsequent Advances which Lender is committed to advance,
but has not yet disbursed (the "OLV Appraisal") and (b) at
the time of delivery of the appraisal, no monetary Event of
Default has occurred and is continuing. Any such appraisal
shall be deemed "current" for up to six (6) months after the
effective date of the appraisal. Excess cash flow payments
required to be paid by Lender shall not be subject to the
Termination Fee in Section 2.8.6 above and not be included
in calculating the debt service payments to Lender in
connection with subsequent Excess Cash Flow payment
calculations.
-18-
21. Involuntary Prepayment. Section 2.9.3 of the Loan Agreement is hereby
----------------------
deleted in its entirety and the following inserted therefor:
2.9.3 INVOLUNTARY PREPAYMENT. Notwithstanding anything
----------------------
to the contrary contained herein, it is the intent of the
parties to this Agreement, that the Profit Participation
Fee, the Restructure Fee, the Maintenance Fee for the
current calendar year and all prior calendar years during
the term of the Loan, and the Termination Fee, shall be
payable upon any involuntary prepayment of the Loan,
including, without limitation, any involuntary prepayment
due to an acceleration of the Loan by Lender upon the
occurrence of an Event of Default, except for Excess Cash
Flow payments required by Lender.
22. Note and Security. Article III of the Loan Agreement is hereby amended
-----------------
to add the following:
3.3 X. XXXXXXXX GUARANTEE. Borrower's Obligations shall
---------------------
be secured by the X. Xxxxxxxx Guarantee. The X. Xxxxxxxx
Guarantee shall be terminated and of no further force or
effect upon the occurrence or non-occurrence of all of the
following: (a) Lender's receipt of aggregate payments of
$500,000 of the Profit Participation Fee and/or the
Restructure Fee in good funds, (b) all scheduled principal
and interest payments to the date of Lender's receipt of the
last payment required under clause (a) above have been made,
----------
(c)(i) there is no then currently effective written notice
of an Event of Default, or then currently effective written
notice of an Incipient Default, on the date of Lender's
receipt of the last payment required under clause (a) above,
----------
or (ii) if there is a then currently effective written
notice of an Event of Default, or a then currently effective
written notice of an Incipient Default, on the date of
Lender's receipt of the last payment required under clause
------
(a) above, if Lender does not accelerate the Indebtedness
---
within 30 days thereafter, and (d) the Shareholder
Indebtedness has, or will concurrently be, converted into
equity of Borrower, Holdings or Public Company. Upon the
written request of Borrower or X. Xxxxxxxx, Lender shall
confirm in writing whether or not the X. Xxxxxxxx Guarantee
has been terminated.
3.4 PUBLIC COMPANY GUARANTY. In the event that the
-----------------------
Public Company Merger (as defined herein) is consummated,
Public Company shall execute and deliver to Lender the
Public Company Guaranty (as defined herein). If, prior to
the execution and delivery of the Public Company Guaranty or
at any time thereafter, Borrower delivers to Lender the OLV
Appraisal and at the time of delivery of the OLV Appraisal,
no monetary Event of
-19-
Default has occurred and is continuing, the obligation of
Public Company to provide the Public Company Guaranty shall
terminate or, if the Public Company Guaranty has been
delivered to Lender, the Public Company Guaranty shall be
terminated and of no further force or effect.
23. Restrictions. Section 5.3.2 of the Loan Agreement is hereby deleted in
------------
its entirety and the following inserted therefor:
5.3.2 RESTRICTIONS. (i) Except for the Holdings Pledge
-------------
Agreement and normal and customary restrictions on "change
of control" in credit facilities, Borrower is not a party
to, and has no knowledge of, any agreement restricting the
transfer of any shares of Borrower Capital Stock, and (ii)
except as described in EXHIBIT 5.3.1, has no outstanding
stock or securities convertible into or exchangeable or
exercisable for any shares of Borrower Capital Stock or
other equity interests in Borrower, or any rights to
subscribe for or to purchase, or any options for the
purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or
claims of any character relating to, any of the shares of
the Borrower Capital Stock or any securities convertible
into or exchangeable or exercisable for any shares of the
Borrower Capital Stock or other equity interests of
Borrower. Borrower is not required to file, and Borrower has
not filed, pursuant to Section 12 of the Act, a registration
statement relating to any class of debt or equity
securities.
24. Facility Sites. Section 5.5.3 of the Loan Agreement is hereby deleted
--------------
in its entirety and the following inserted therefor:
5.5.3 FACILITY SITES. There is set forth in EXHIBIT
--------------
5.5.3 the locations of all inventory, equipment, goods and
principal places of business presently used in the operation
of Borrower's Business which provide revenues to Borrower in
excess of $25,000. None of such locations shall be changed
without the prior written consent of Lender and no portion
of the Collateral having value in excess of $25,000 shall be
removed to any state other than the states of Texas,
Louisiana, New York, Mississippi and South Carolina unless,
within 30 days after the removal thereof, Borrower delivers
to Lender written notice of such removal, which notice shall
(i) describe the Collateral which has been so removed and
(ii) set forth the address to which such Collateral shall be
removed.
25. Monthly Statements. Section 6.3.1 of the Loan Agreement is hereby
------------------
deleted in its entirety and the following inserted therefor:
-20-
6.3.1 MONTHLY STATEMENTS. As soon as available and in
------------------
any event within 30 days after the end of each month a (i)
copy of Borrower's (A) balance sheet as of the end of such
month and (B) statements of operations, Operating Cash Flow,
and Excess Cash Flow for such month and for the period from
the beginning of the current year through the end of such
month setting forth in each case in comparative form the
corresponding figures for the corresponding period in the
preceding year, and (ii) report on the aggregate revenues
and gross margins achieved by Borrower on each contract
pursuant to which Borrower is to provide services consisting
primarily of either environmental engineering or waste
remediation, all in reasonable detail, containing such
information as Lender may require, and certified as complete
and correct (subject to normal year-end adjustments) by the
President or Chief Financial Officer.
26. Holdings Financial Statements. Section 6.3 of the Loan Agreement is
-----------------------------
hereby amended to add the following:
6.3.13 HOLDINGS FINANCIAL STATEMENTS.
-----------------------------
(a) As soon as available and in any event within 45
days after the end of each quarter, a copy of the
consolidated and consolidating (a) balance sheet of Holdings
as of the end of such quarter and (b) statements of income
and operations, cash flow and shareholders' equity
(collectively, the "Holdings Financial Statements"), setting
forth in each case in comparative form the corresponding
figures for the preceding quarter, if any, all in reasonable
detail. Each of the Holdings Financial Statements shall be
(x) prepared by Holdings and (y) accompanied by a
certificate from the President or Chief Financial Officer of
Holdings certifying that such Holdings Financial Statements
were prepared in accordance with GAAP, fairly present the
financial position of Holdings as of the dates indicated
therein and the results of operations of Holdings for the
periods indicated therein, and there is no Event of Default
or Incipient Default that has occurred and is continuing as
of the date of such certification, or if an Event of Default
or Incipient Default has occurred and is continuing,
specifying such Event of Default or Incipient Default and
the proposed action to remedy same.
(b) As soon as available and in any event within 120
days after the close of each year, a copy of the Holdings
Financial Statements, setting forth in each case in
comparative form the corresponding figures for the preceding
year, if any, all in reasonable detail. Each of the annual
Holdings Financial
-21-
Statements shall be (x) prepared by Holdings, (y)
accompanied by a certificate from the President or Chief
Financial Officer of Holdings certifying that such Holdings
Financial Statements were prepared in accordance with GAAP,
fairly present the financial position of Holdings as of the
dates indicated therein and the results of operations of
Holdings for the periods indicated therein, and there is no
Event of Default or Incipient Default that has occurred and
is continuing as of the date of such certification, or if an
Event of Default or Incipient Default has occurred and is
continuing, specifying such Event of Default or Incipient
Default and the proposed action to remedy same.
6.3.14 PUBLIC COMPANY FINANCIAL STATEMENTS.
-----------------------------------
(a) In the event that the Public Company Merger (as
defined herein) is consummated and for so long as the Public
Company Guaranty (as defined herein) is in effect, within 5
days after filing with the Securities Exchange Commission,
but in no event later than 30 days after the due date for
filing with the Securities Exchange Commission, as such due
date may be extended, cause Public Company to provide to
Lender copies of all 10-Q, 10-K and 8-K Reports filed or
required to be filed with the Securities Exchange
Commission. The annual financial statements of Public
Company (the "Public Company Financial Statements") shall be
accompanied by an opinion of the Accountants, which shall be
(I) unqualified as to going concern and scope of the audit
and (II) state that (1) the examination by the Accountants
in connection with the annual Public Company Financial
Statements has been made in accordance with generally
accepted auditing standards and, accordingly, included such
tests of the accounting records and such other procedures as
were considered necessary under the circumstances, (2) such
Public Company Financial Statements fairly present the
financial position and results of operation of Public
Company and (3) such Public Company Financial Statements
have been prepared in accordance with GAAP and that such
GAAP in accordance with which such Public Company Financial
Statements were prepared are consistent with those applied
in prior periods.
27. Insurance. Section 6.6 of the Loan Agreement is hereby amended to add
---------
the following:
As soon as practicable, but in no event later than thirty
(30) days after the effectiveness of the Sixth Amendment,
Borrower shall deliver to Lender evidence of Key Man Life
Insurance for Xxxxx X. Xxxxxx in the amount of $2,000,000
naming Borrower as
-22-
beneficiary, together with the applicable Assignment of Key
Man Life Insurance. Upon acceptance by Lender of the Key Man
Life Insurance for Xxxxx X. Xxxxxx, together with the
applicable Assignment of Key Man Life Insurance, Borrower
may terminate the Key Man Life Insurance for Xxxxxxxx and/or
Xxxx.
28. Borrowings. Section 7.1 of the Loan Agreement is hereby deleted in its
----------
entirety and the following inserted therefor:
7.1 BORROWING. Create, incur, assume or suffer to
---------
exist any liability for Indebtedness for Borrowed Money
except (i) Borrower's Obligations, (ii) the Working Capital
Debt, (iii) the Subordinated Debt and (iv) the Ally
Obligations; provided, however, the portion of the
Subordinated Debt constituting New Subordinated Indebtedness
shall not exceed $750,000 at any time, and prior to Borrower
incurring New Subordinated Indebtedness, the lender of the
New Subordinated Indebtedness shall execute and deliver to
Lender a subordination agreement in a form acceptable to
Lender, which subordination agreement shall only permit
scheduled principal and/or interest payments to the lender
on the last day of any month provided that no monetary Event
of Default has occurred and is continuing and, after giving
effect to such principal and/or interest payment, Borrower
would be in compliance with all financial covenants in this
Loan Agreement. The Shareholder Indebtedness shall be
converted to equity in Borrower, Holdings or the Public
Company as a condition precedent to Lender's release of the
X. Xxxxxxxx Guaranty.
29. Merger and Acquisition. Section 7.3 of the Loan Agreement is hereby
----------------------
deleted in its entirety and the following inserted therefor:
7.3 Merger and Acquisition. Consolidate with or merge
----------------------
with or into any Person or acquire directly or indirectly all of
the capital stock, equity interests or Property of any Person,
except for the merger of 3E Corporation of Louisiana with and
into Borrower with Borrower being the surviving corporation or
the acquisition of all or substantially all of the assets of 3E
Corporation of Louisiana by Borrower subject to an asset purchase
agreement satisfactory to Lender.
30. Dividends and Purchase of Stock. Section 7.5 of the Loan Agreement is
-------------------------------
hereby deleted in its entirety and the following inserted therefor:
7.5 Dividends and Purchase of Stock. Declare or pay
-------------------------------
any dividends with respect to the Borrower Capital Stock or
apply any of its Property to the purchase, redemption or other
retirement
-23-
of, or set apart any sum for the payment of, or make any
distribution by reduction of capital or otherwise in respect
of, any of the shares of the Borrower Capital Stock;
provided, however, Borrower may pay dividends or make
distributions in respect of the shares of the Borrower
Capital Stock or otherwise transfer cash or other assets or
property to Holdings during Borrower's fiscal year 1996 only
(collectively, "Permitted Payments"), regardless of the form
of such Permitted Payments, if ALL of the following
conditions are satisfied: (a) the aggregate amount of such
Permitted Payments shall not exceed $200,000, (d) Permitted
Payments may not be made more frequently than once per month
and shall be made effective as of the last day of such
month, (e) Permitted Payments shall not exceed in any one
month $50,000, (f) no Event of Default shall have occurred
and be continuing pursuant to Section 8.1.1 hereof with
respect to scheduled principal and interest payments, the
Profit Participation Fee or the Restructure Fee only.
31. Investments, Loans, etc. Section 7.7 of the Loan Agreement is hereby
-----------------------
amended to add the following:
7.7.4 PERMITTED PAYMENTS TO HOLDINGS. Permitted
------------------------------
Payments satisfying all of the terms and conditions in
Section 7.5.
32. Fundamental Business Changes. Section 7.8 of the Loan
----------------------------
Agreement is hereby deleted in its entirety and the following inserted therefor:
7.8 FUNDAMENTAL BUSINESS CHANGES. (a) Engage in any
----------------------------
business other than Borrower's Business or change Borrower's
fiscal year, except, upon written notice to Lender, (i)
Borrower may change its fiscal year-end from November 30 to
September 30, (ii) subject to subsection 7.8(b) below,
Borrower may acquire the property commonly known as 000
Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxx (the "Headquarters
Property") "subject to" or assume the obligations and
liabilities of the mortgagor(s) under a first lien to a
Person who is not an Affiliate in an amount not to exceed
$436,500 encumbering the Headquarters Property and under the
second mortgage in favor of Xxxxxxxx X. Xxxxxxxx encumbering
the Headquarters Property (the "Second Mortgage"), and (iii)
Borrower may engage in the development and utilization of
bioremediation techniques for treating organic and inorganic
wastes, provided that within 60 days after the consummation
of the Public Company Merger, Borrower shall assign, and
Public Company, or a subsidiary of Public Company other than
Borrower, shall assume, all right, title, interest,
obligations and liabilities of Borrower, and NBL
Technologies, Inc. ("NBL") and Xxx Xxxxxxxxx shall release
Borrower from such obligations and
-24-
liabilities, under that certain Facilities, Technology and
Production Lease dated July 1, 1995 between NBL and
Borrower, and the Employment Agreement dated July 1, 1995
between Borrower and Xxx Xxxxxxxxx
(b) As conditions precedent to Borrower's acquisition
of the Headquarters Property, Borrower shall, or shall cause
Xxxxxxxx X. Xxxxxxxx to, deliver to Lender the following:
(i) A Standstill Agreement executed by
Xxxxxxxx X. Xxxxxxxx with respect to the
Second Mortgage, in form and substance
satisfactory to Lender.
(ii) A mortgage in favor of Lender
encumbering the Headquarters Property
executed and acknowledged by Borrower, in
form and substance satisfactory to Lender,
together with evidence in the form of title
insurance or an attorneys' abstract and
opinion as to the validity and priority of
the mortgage, subject only to monetary liens
for current taxes and governmental
assessments, a first lien to a Person who is
not an Affiliate in an amount not to exceed
$436,500 and the Second Mortgage in an amount
not to exceed $450,000.
(iii) A copy of the promissory note
secured by the Second Mortgage and the Second
Mortgage, certified as a true, complete and
correct copy of the original documents by
Xxxxxxxx X. Xxxxxxxx and Borrower.
(iii) A copy of the promissory note
secured by the first lien mortgage and the
first lien mortgage, certified as a true,
complete and correct copy of the original
documents by Xxxxxxxx X. Xxxxxxxx and
Borrower.
(iv) A current (no earlier than six
months prior to the conveyance date) phase 1
environmental site assessment prepared by
Borrower's environmental consultant in
accordance with the Standard Practice for
Environmental Site Assessments: Phase 1
Environmental Site Assessment Process
(Designation: E 1527 - 93), as
-25-
approved by the American Society for Testing
and Materials on March 15, 1993, with respect
to the Headquarters Property, concluding that
the assessment has revealed no evidence of
recognized environmental conditions in
connection with the Headquarters Property or
otherwise satisfactory to Lender.
33. Capital Expenditures. Section 7.14 of the Loan Agreement is hereby
--------------------
deleted in its entirety and the following inserted therefor:
7.14 CAPITAL EXPENDITURES. Make or incur obligations
--------------------
for Capital Expenditures during any year, including, without
limitation, expenditures with respect to Permitted Senior
Indebtedness, of the aggregate amount thereof, individually
or in the aggregate, would exceed $350,000 in any such year
(including the portion of the cost of any Contract Equipment
not paid from Subsequent Advance Expenditures), except that
during the period from the Closing Date through December 31,
1996, the limitation set forth in this Section 7.15 shall be
in addition to any Subsequent Advance Expenditures.
Notwithstanding anything to the contrary contained herein,
during the period from the effectiveness of the Sixth
Amendment until the one year anniversary of the
effectiveness of the Sixth Amendment, Borrower may make or
incur obligations for Capital Expenditures (which are fully
paid within such one year period) in an amount equal to the
amount of Subordinated Debt actually incurred after the
effectiveness of the Sixth Amendment (excluding Subordinated
Debt incurred to refinance existing Subordinated Debt and
any portion of the New Subordinated Debt paid to Lender
pursuant to Section 2.8.5), provided that the holder of such
-------------
Subordinated Debt executes and delivers a subordination
agreement in form and substance satisfactory to Lender and
which includes a subordination of any purchase money
security interest in the Collateral. The Shareholder
Indebtedness may not be refinanced.
34. Transactions with Affiliates. Section 7.15 of the Loan Agreement is
----------------------------
hereby deleted in its entirety and the following inserted therefor:
7.15 TRANSACTIONS WITH AFFILIATES. Unless Lender has a
----------------------------
currently effective Public Company Guaranty, sell, lease,
assign, transfer or otherwise dispose of any Property to any
Affiliate of Borrower, any Principal or any Shareholder,
lease Property, render or receive services or purchase
assets from any such Affiliate, Principal or Shareholder or
otherwise enter into any contractual relationship with any
Affiliate of Borrower, any Principal or any Shareholder,
-26-
except Borrower may consummate the transactions specifically
contemplated by this Agreement and the Sixth Amendment and
otherwise lease Property, render or receive services or
purchase assets from any such Affiliate, Principal or
Shareholder provided each such transaction is on terms and
conditions no less favorable to Borrower than those terms
and conditions which would have been obtained in an arm's
length transaction consummated with a Person who is not an
Affiliate, Principal or Shareholder. Any payments or other
remuneration in any form made by Borrower to or for the
benefit of Holdings during Borrower's fiscal year 1996 and
on or after the date of the Sixth Amendment shall be a
Permitted Payment and shall be subject to the terms and
conditions in Section 7.5. Notwithstanding anything to the
contrary contained herein, Borrower may only pay to Xxxxxxxx
X. Xxxxxxxx the first two (2) installment payments, in the
aggregate amount not to exceed $50,000, under the promissory
note or other evidence of indebtedness of Borrower to
Xxxxxxxx X. Xxxxxxxx secured by the Headquarters Property.
Nothing in this Section is intended to modify the existing
obligations of Borrower under the lease of the Headquarters
Property.
35. Minimum Operating Cash Flow. Section 7.18 of the Loan Agreement is
---------------------------
hereby deleted in its entirety and the following inserted therefor:
7.18 MINIMUM OPERATING CASH FLOW. Permit Operating Cash
---------------------------
Flow for the Four Quarter Period ending on the last day of
each fiscal quarter of Borrower beginning with the fiscal
quarter ending June 30, 1996 to be less than the product of
(A) the Senior Debt Service for the applicable Four Quarter
Period multiplied by (B) 1.1 for the Four Quarter Period
ending June 30, 1996; 1.25 for the Four Quarter Period
ending September 30, 1996; and 1.4 for the Four Quarter
Period ending December 31, 1996 and for each Four Quarter
Period thereafter.
36. Accounts Receivable Turnover. Section 7.20 of the Loan Agreement is
----------------------------
hereby deleted in its entirety and the following inserted therefor:
7.20 ACCOUNTS RECEIVABLE TURNOVER. Permit the Accounts
----------------------------
Receivable Turnover (excluding Accounts Receivable arising
from the IT Contract) for the Four Quarter Periods ending on
the last day of each of the first 3 fiscal quarters of
Borrower's fiscal year to be greater than 45 days, permit
the Accounts Receivable Turnover for the Accounts Receivable
arising from the IT Contract only for the Four Quarter
Periods ending on the last day of each of the first 3 fiscal
quarters of Borrower's fiscal year to be greater than 60
days, or permit the Accounts Receivable
-27-
Turnover for the Four Quarter Period ending on the last day
of Borrower's fiscal year to be greater than 60 days
(including Accounts Receivable arising from the IT
Contract).
37. Total Debt Service. Section 7.22 of the Loan Agreement is hereby
------------------
deleted in its entirety and the following inserted therefor:
7.22 TOTAL DEBT SERVICE. Permit Operating Cash Flow for the Four
------------------
Quarter Period ending on the last day of each fiscal quarter
of Borrower beginning with the fiscal quarter ending June
30, 1996 to be less than the product of (A) Total Debt
Service the for applicable Four Quarter Period, multiplied
by (B) 1.0 for the Four Quarter Period ending June 30, 1996;
1.1 for the Four Quarter Period ending September 30, 1996;
and 1.15 for the Four Quarter Period ending December 31,
1996 and for each Four Quarter Period thereafter.
38. Availability - Working Capital Loan. Section 7.23 of the Loan
-----------------------------------
Agreement is hereby deleted in its entirety and the following inserted therefor:
7.23 WORKING CAPITAL LOAN. At any time, permit total
--------------------
Working Capital Debt to exceed 90% of Eligible Accounts
Receivable, without regard to the maximum amount of Working
Capital Debt.
39. Limitations on Business Activities of Holdings. Section 7 of the Loan
----------------------------------------------
Agreement is hereby amended to add the following:
7.24 LIMITATIONS ON BUSINESS ACTIVITIES OF HOLDINGS.
----------------------------------------------
Permit Holdings to undertake, and Holdings shall not
undertake, any business operations except those business
operations necessary and normally associated with a holding
company, and Holdings shall not consolidate with or merge
with or into any Person, or acquire directly or indirectly
all or substantially all of the capital stock, equity
interests or Property of another Person, except Holdings may
(a) consummate a private placement for a minimum of $500,000
pursuant to a private placement memorandum (the "Private
Placement"), (b) consummate the transactions described in
that certain letter of intent dated September 7, 1995
between Holdings and DK Industries, Inc., as amended by
First Amendment to Letter of Intent dated October 5, 1995
and proposed amendment described in letter dated October 7,
1995 from Xxxxxx Xxxxxxx to Xxxxxxx X. Xxxxxxxxxxx (the
"Public Company Merger"), provided that DK Industries, Inc.
or its successor executes and delivers to Lender a
Continuing Guaranty substantially in the form attached
hereto as EXHIBIT
-28-
7.24 and incorporated herein by this reference (the "Public
Company Guaranty"), (c) consummate the transactions
described in that certain Option Agreement for Purchase of
Stock dated September 25, 1995 between Xxx Xxxxxxxxx and
Holdings, (d) consummate the transactions described in that
certain GDC/3E Acquisition Agreement dated August 21, 1995
between 3E Corporation of Louisiana and Holdings, (e)
consummate the transactions described in that certain
Agreement to Purchase and Sell dated October 16, 1995
between Xxxxxxxx X. Xxxxxxxx and Holdings, (f) consummate
the transactions described in that certain GDC Holdings
Corporation Debt Acquisition Agreement dated October 8, 1995
among Xxxxxxxx X. Xxxxxxxx, Borrower and Holdings, provided
that Holdings immediately thereafter contributes the
Subordinated Indebtedness to Borrower for cancellation, (g)
obtain funds to make and make loans constituting New
Subordinated Indebtedness to Borrower upon the terms and
conditions contained in this Loan Agreement, and (h)
guarantee obligations of Borrower (collectively, the
"Permitted Holdings Transactions"). The Permitted Holdings
Transactions are permitted by Lender on the express
condition that such Permitted Holdings Transactions are
consummated substantially in accordance with the terms,
conditions and provisions described in the referenced
agreements. Any material modification, amendment or waiver
of the terms, conditions or provisions of any such agreement
shall require the prior written consent of Lender.
40. Bankruptcy, etc.. Section 8.1.5 of the Loan Agreement is hereby
----------------
delated in its entirety and the following inserted therefor:
8.1.5 BANKRUPTCY, ETC.
----------------
(a) If Borrower or Holdings shall (i) file, or
consent by answer or otherwise, to the filing against
Borrower or Holdings of a petition for relief or
reorganization or arrangement or any other petition in
bankruptcy or insolvency under the laws of any jurisdiction,
(ii) make an assignment for the benefit of creditors, (iii)
consent to the appointment of a custodian, receiver, trustee
or other officer with similar powers for Borrower or
Holdings, or for any substantial part of the Property owned
by Borrower or Holdings, or (iv) be adjudicated insolvent.
(b) If any Governmental Body of competent
jurisdiction shall enter an order appointing, without
consent of Borrower or Holdings, a custodian, receiver,
trustee or other officer with similar powers with respect to
Borrower or Holdings, or with respect to any substantial
part of the Property belonging to
-29-
Borrower or Holdings, or if an order for relief shall be
entered in any case or proceeding for liquidation or
reorganization or otherwise to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or
ordering the dissolution, winding-up or liquidation of
Borrower or Holdings, or if any petition for any such relief
shall be filed against Borrower or Holdings and such
petition shall not be dismissed or stayed within 30 days.
41. Notices. Section 11.1 of the Loan Agreement with respect to the
-------
notices to Borrower is hereby deleted in its entirety and the following inserted
therefor:
GDC Enviro-Solutions, Inc.
000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx, CEO
Attn: Xx. Xxxxxx X. Xxxxxx, Secretary
Telecopy No: (000) 000-0000
With a Copy To: Xxxxxx X. Xxxxxxx, Esq.
Bearman, Xxxxxxxxx & Xxxxxxx, P.C.
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Telecopy No: (000) 000-0000
42. Exhibits. EXHIBITS 1.1(D), 1.1(E), 5.3.1, 5.5.3, 5.8.A AND 7.6 to the
--------
Loan Agreement are hereby deleted in their entirety and replaced by EXHIBITS
1.1(D), 1.1(E) 5.3.1, 5.5.3, 5.8.A AND 7.6 attached hereto, which are
incorporated in the Loan Agreement by this reference.
43. Modifications. No amendment, modification, change, waiver, release or
-------------
discharge hereof or hereunder shall be effective unless evidenced by an
instrument in writing signed by the party against whom enforcement is sought.
44. Severability. If any provision hereof is invalid or unenforceable,
------------
the other provisions hereof shall remain in full force and effect and shall be
liberally construed in favor of Lender in order to effectuate the other
provisions hereof.
45. Counterparts. This Sixth Amendment may be executed in one or more
------------
counterparts, each of which shall be deemed an original instrument and all of
which combined shall constitute one and the same instrument.
46. Binding Nature. The provisions of this Sixth Amendment shall be
--------------
binding upon, and inure to the benefit of, the respective successors and assigns
(including without limitation, any receiver, debtor in possession or trustee in
bankruptcy) of Lender, Borrower and Xxxxxxxx X. Xxxxxxxx.
-30-
47. Fraudulent Conveyance and Preference. In the event there is a final,
------------------------------------
non-appealable action in any bankruptcy or insolvency proceeding ordering
recovery, or compelling the return, of all or a portion of the Restructure Fee
or the Profit Participation Fee, whether by fraudulent transfer, preference
action or otherwise, the deferral and contingent waiver or the waiver of the
Excess Cash Flow payments and the modification of the Profit Participation Fee
provision in Section 2.8.3 of the Loan Agreement, shall, immediately and without
notice or the taking of any other action, be null and void, and without effect,
and to the extent necessary, all rights of Lender shall be restored and
reinstated and may be immediately enforced and pursued as if the revisions to
Sections 2.8.3 and 2.9.2(a) of the Agreement had not been made. Notwithstanding
the foregoing, upon compliance with the provisions of Section 3.3 hereof, the
release of the X. Xxxxxxxx Guarantee shall be final and not subject to
restoration or reinstatement.
48. APPLICABLE LAW. THE OBLIGATIONS OF BORROWER AND XXXXXXXX X. XXXXXXXX
--------------
HEREUNDER, UNDER THE LOAN AGREEMENT, AS MODIFIED HEREBY, AND UNDER THE OTHER
LOAN INSTRUMENTS, ARE TO BE PERFORMED IN, AND THIS SIXTH AMENDMENT IS, AND THE
LOAN AGREEMENT AND OTHER LOAN INSTRUMENTS HAVE BEEN, EXECUTED, DELIVERED AND
ACCEPTED IN, AND THIS SIXTH AMENDMENT, THE LOAN AGREEMENT, AS MODIFIED HEREBY,
AND THE OTHER LOAN INSTRUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS AND DECISIONS OF, THE STATE OF ARIZONA (WITHOUT
REGARD FOR ITS CONFLICTS OF LAW PRINCIPLES), AND BY EXECUTION HEREOF BORROWER
AND XXXXXXXX X. XXXXXXXX AND LENDER EACH AGREE THAT SUCH LAWS AND DECISIONS OF
THE STATE OF ARIZONA SHALL GOVERN THIS SIXTH AMENDMENT, THE LOAN AGREEMENT, AS
MODIFIED HEREBY, AND THE OTHER LOAN INSTRUMENTS, NOTWITHSTANDING THE FACT THAT
THERE MAY BE OTHER JURISDICTIONS WHICH MAY BEAR A REASONABLE RELATIONSHIP TO THE
TRANSACTIONS CONTEMPLATED HEREBY; PROVIDED, HOWEVER, THAT WITH RESPECT TO
PROCEDURAL AND SUBSTANTIVE MATTERS RELATING ONLY TO THE CREATION, PERFECTION AND
ENFORCEMENT BY LENDER OF ITS RIGHTS AND REMEDIES AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL LOCATED IN ANY STATE OTHER THAN ARIZONA, SUCH MATTERS SHALL
BE GOVERNED BY THE LAWS OF THE STATE IN WHICH SUCH PROPERTY IS LOCATED.
_____________ _______________ ___________ ____________
initial initial initial initial
49. JURISDICTION AND VENUE. BORROWER AND XXXXXXXX X. XXXXXXXX HEREBY
----------------------
AGREE THAT ALL ACTIONS OR PROCEEDINGS INITIATED BY BORROWER OR XXXXXXXX X.
XXXXXXXX, OR ANY OF THEM, AND ARISING DIRECTLY OR INDIRECTLY OUT OF THE LOAN
INSTRUMENTS SHALL BE LITIGATED IN THE SUPERIOR COURT OF ARIZONA, MARICOPA COUNTY
DIVISION, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
-31-
ARIZONA OR, IF LENDER INITIATES SUCH ACTION, IN ADDITION TO THE FOREGOING
COURTS, ANY COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION, TO THE EXTENT SUCH
COURT HAS JURISDICTION. BORROWER AND XXXXXXXX X. XXXXXXXX HEREBY EXPRESSLY
SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED BY LENDER IN ANY OF SUCH COURTS, AND HEREBY WAIVE PERSONAL SERVICE OF
THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OF PAPERS ISSUED THEREIN, AND AGREE
THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO BORROWER OR XXXXXXXX X.
XXXXXXXX AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT TO BORROWER PURSUANT TO
THE LOAN AGREEMENT. BORROWER AND XXXXXXXX X. XXXXXXXX EACH WAIVE ANY CLAIM THAT
PHOENIX, ARIZONA OR THE DISTRICT OF ARIZONA IS AN INCONVENIENT FORUM OR AN
IMPROPER FORUM BASED ON LACK OF VENUE. SHOULD BORROWER OR XXXXXXXX X. XXXXXXXX,
OR ANY OF THEM, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS,
COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY
LAW AFTER THE MAILING THEREOF, SUCH BORROWER(S) SHALL BE DEEMED IN DEFAULT AND
AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY LENDER AGAINST SUCH BORROWER(S) AS
DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE
EXCLUSIVE CHOICE OF FORUM FOR BORROWER AND XXXXXXXX X. XXXXXXXX SET FORTH IN
THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT, BY LENDER, OF ANY
JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING, BY LENDER, OF ANY ACTION TO
ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND BORROWER AND
XXXXXXXX X. XXXXXXXX HEREBY WAIVE THE RIGHT TO COLLATERALLY ATTACK ANY SUCH
JUDGMENT OR ACTION.
___________ ___________ ____________ ______________
initial initial initial initial
50. WAIVER OF RIGHT TO JURY TRIAL. LENDER, BORROWER AND XXXXXXXX X.
-----------------------------
XXXXXXXX ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER ANY OF
THE LOAN INSTRUMENTS OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED THEREBY
WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES
AGREE THAT ANY LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY SHALL BE TRIED IN A
COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
_____________ ______________ ___________ ______________
initial initial initial initial
-32-
51. Amendment. This Sixth Amendment and the other Loan Instruments
---------
executed prior or pursuant hereto constitute the entire agreement between the
parties hereto with respect to the transactions contemplated hereby or thereby
and supersede any prior agreements, whether written or oral, relating to the
subject matter hereof. Except as specifically amended herein, the Loan Agreement
shall remain in full force and effect. In the event of any conflict between the
terms and provisions of this Sixth Amendment and the terms and provisions of the
Loan Agreement, the terms and provisions of this Sixth Amendment shall govern
and prevail. Nothing contained in this Sixth Amendment is intended to or shall
be construed as relieving any person or entity, whether a party to this Sixth
Amendment, or not, of any of such person's or entity's obligations to Lender.
52. All Loan Instruments. Each of the other Loan Instruments is amended
--------------------
so that any reference therein to a definition or agreement amended hereby shall
be deemed to be a reference to such definition or agreement, as applicable, as
amended hereby.
[THE REMAINDER OF THIS PAGE
IS LEFT INTENTIONALLY BLANK]
-33-
IN WITNESS WHEREOF, this Sixth Amendment is executed as of the date first
above written.
LENDER:
FINOVA CAPITAL CORPORATION, a
Delaware corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
BORROWER:
GDC ENVIRO-SOLUTIONS, INC., a
Louisiana corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
____________________________________________
XXXXXXXX X. XXXXXXXX, AS TRUSTEE FOR THE
BENEFIT OF XXXXX XXXXXXXX, SHARIF XXXXXX
XXXXXXXX AND XXXXXX-XXXXX XXXXXXXX, CREATED
BY THE LAST WILL AND TESTAMENT OF HAMEED
XXXXX XXXXXXXX DATED MARCH 20, 1988
____________________________________________
XXXXXXXX XXXXXX XXXXXXXX,
individually
HOLDINGS:
GDC HOLDINGS CORPORATION, a
Louisiana corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
-00-
XXXXX XXXXXXXXX TO LOAN INSTRUMENTS
GDC ENVIRO-SOLUTIONS, INC., BORROWER
FINOVA CAPITAL CORPORATION, LENDER
EXHIBIT 1.1(D)
GDC ENVIRO-SOLUTIONS, INC. - LIST OF SHAREHOLDERS
GDC Holdings Corporation 3,814,160 shares
SIXTH AMENDMENT TO LOAN INSTRUMENTS
GDC ENVIRO-SOLUTIONS, INC., BORROWER
FINOVA CAPITAL CORPORATION, LENDER
EXHIBIT 1.1(E)
DESCRIPTION OF SHAREHOLDER INDEBTEDNESS
BEFORE GDC/HOLDINGS STOCK EXCHANGE:
Principal Amount* Date Holder
---------------- ---- ------
$ 700 April 23, 1991 Xxxxxxxx Xxxxxxxx, as Trustee
676,825 June 19, 1991 Xxxxxxxx Xxxxxxxx, as Trustee
72,000 August 14, 1991 Xxxxxxxx Xxxxxxxx, as Trustee
21,000 November 14, 1991 Xxxxxxxx Xxxxxxxx, as Trustee
137,212 December 18, 1992 Xxxxxxxx Xxxxxxxx, Individually
8,000 September 16, 1991 Xxxxxxxx Xxxxxxxx, As Trustee
--------
$915,737
*plus accrued interest
AFTER GDC/HOLDINGS STOCK EXCHANGE:
NONE
SIXTH AMENDMENT TO LOAN INSTRUMENTS
GDC ENVIRO-SOLUTIONS, INC., BORROWER
FINOVA CAPITAL CORPORATION, LENDER
EXHIBIT 5.3.1
DESCRIPTION OF CAPITALIZATION OF BORROWER
Authorized Shares - 5,000,000 shares no par value common stock
BEFORE GDC/HOLDINGS STOCK EXCHANGE:
No. of Shares Issued Holder
-------------------- ------
2,111,874 X. Xxxxxxxx
000,000 Xxxxxxxx Trust
527,969 Xxxxx Xxxxxxxx
394,160 Xxxxx X. Xxxxxx
-----------
Total 3,814,160
No. of Warrants Issued
----------------------
200,000 B. Xxx Xxxxxx
100,000 Xxxxx X. Xxxxxxxxxx
-----------
Total 300,000
NOTE: IN CONNECTION WITH THE GDC/HOLDINGS STOCK EXCHANGE, THE SHAREHOLDER
INDEBTEDNESS WILL BE CONVERTED TO 932,512 WARRANTS FOR THE BORROWER CAPITAL
STOCK AND 574,488 SHARES OF THE BORROWER CAPITAL STOCK, WHICH WILL THEN BE
CONVERTED TO WARRANTS AND/OR STOCK OF HOLDINGS.
AFTER GDC/HOLDINGS STOCK EXCHANGE:
No. of Shares Issued Holder
-------------------- ------
3,814,160 GDC Holdings Corporation
No. of Warrants Issued
----------------------
None N/A
SIXTH AMENDMENT TO LOAN INSTRUMENTS
GDC ENVIRO-SOLUTIONS, INC., BORROWER
FINOVA CAPITAL CORPORATION, LENDER
EXHIBIT 5.5.3
BORROWER'S CHIEF EXECUTIVE OFFICE AND OTHER PLACES OF BUSINESS
(EXCLUDING JOB SITES)
CHIEF EXECUTIVE OFFICE:
GDC Enviro-Solutions, Inc.
000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
OTHER OFFICE:
Sales Office (Xxxxxx Xxxx)
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
STATES IN WHICH QUALIFIED TO DO BUSINESS:
Louisiana (state of incorporation)
Mississippi
New York
Texas
South Carolina
SIXTH AMENDMENT TO LOAN INSTRUMENTS
GDC ENVIRO-SOLUTIONS, INC., BORROWER
FINOVA CAPITAL CORPORATION, LENDER
EXHIBIT 5.8.A
PENDING OR THREATENED LITIGATION
The following are all the actions, suits, arbitration proceedings or claims
pending or threatened against GDC:
1.R. Xxxx Xxxxx, et al v. GDC Engineering, Inc., et al, Docket No. 93-967-
B-MS, United States District Court, Middle District of Louisiana,
alleging personal injury of an employee of BCI Environmental
Construction, Inc.
2.EEOC claim filed against GDC Engineering, Inc. by Xxxxx XxXxxxxx alleging
racial discrimination.
3.Xxxxx Xxxx Xxxxxxxxxx, et al v. Rubicon, Inc., GDC Engineering, Inc., et
al. Docket No. 54,657, 00xx Xxxxxxxx Xxxxxxxx Xxxxx, Xxxxxx of
Ascension, State of Louisiana, alleging damages, including punitive
damages for personal injury to an employee of GDC Engineering Inc.
0.Xxxxxx Arab, et al v. Thermal Process Systems, Inc., Docket No. 54,450,
00xx Xxxxxxxx Xxxxxxxx Xxxxx, Xxxxxx of Ascension, State of Louisiana,
alleging damages for personal injury to an employee of GDC
Engineering, Inc.
5.EEOC Claim filed against GDC by Xxxxxx Manual alleging age and gender
discrimination.
6.Xxxxxx X. Xxxxx v. Pala Interstate, Inc., ABC Insurance Co., Shell Oil,
and GDC Engineering Inc. Docket No. 44,340-C, 00xx Xxxxxxxx Xxxxxxxx
Xxxxx, Xxxxxx of St. Xxxxxxx, State of Louisiana, alleging damages,
including punitive damages, for personal injury while employed by GDC
Engineering, Inc.
SIXTH AMENDMENT TO LOAN INSTRUMENTS
GDC ENVIRO-SOLUTIONS, INC., BORROWER
FINOVA CAPITAL CORPORATION, LENDER
EXHIBIT 7.6
DESCRIPTION OF PERMITTED COMPENSATION
DATE OF
EMPLOYMENT
OFFICERS AGREEMENT ANNUAL SALARY
-------- --------- -------------
Xxxxxxxx X. Xxxxxxxx September 1, 1995 $150,000
Xxxxx Xxxxxxxx September 14, 1994 $100,580
Xxxxx X. Xxxxxx December 16, 1994 $130,000
Amended July 15, 1995
and August 21, 1995
Xxxxxx X. Xxxxxx, Xx. September 14, 1995 $ 85,580
Xxx Xxxx March 4, 1993 $ 104,418 increased
by COLA annually
(1) Does not include value of other benefits which are described in the
Employment Agreements, copies of which have been provided to Lender.
SIXTH AMENDMENT TO LOAN INSTRUMENTS
GDC ENVIRO-SOLUTIONS, INC., BORROWER
FINOVA CAPITAL CORPORATION, LENDER
SCHEDULE 7
COVENANT WAIVERS
1. Change of name to GDC Enviro-Solutions, Inc and Amendment to Bylaws to
create office of Chief Executive Officer (Section 7.11).
2. Execution and performance of Employment Agreements listed in Exhibit 7.6 of
Sixth Amendment (Sections 7.6 and 7.15).
3. Execution and performance of Agreement listed in Sections 32 and 39 of
Sixth Amendment (Sections 7.7, 7.8, 7.12 and 7.15).
4. Amendment or termination of any Shareholders' Agreements and Issuance of
shares to Xxxxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxx, transfer of shares to
Xxxxx Xxxxxxxx, issuance of Warrants (but not shares) to Xxxxxxxx X.
Xxxxxxxx, B. Xxx Xxxxxx and Xxxxx X. Xxxxxxxxxx, and execution of
Subscription Agreement for GDC/Holdings Stock Exchange and any changes of
control relating thereto or from the Private Placement or the Public
Company Merger (Sections 7.13 and 7.16 and Pledge Agreement).
5. Execution of Spectrum Consulting Agreement and amendments (Sections 7.4,
7.8 and 7.12). The Spectrum Consulting Agreement was subsequently
terminated.
6. Execution of the Facilities, Technology and Production Lease dated July 1,
1995 between NBL and Borrower, and the Employment Agreement dated July 1,
1995 between Borrower and Xxx Xxxxxxxxx, and the performance of the
obligations of Borrower thereunder (Sections 7.4, 7.7, 7.8, and 7.12).
7. Execution of Letter of Intent with DK Industries, Inc. (Section 7.3).
8. Voting of shares by Existing GDC Shareholders after any Incipient Default
or Event Of Default has occurred (Pledge Agreement).
9. Failure to provide Notices of Defaults and Adverse Events (Section 6.3.8(b)
and (c)).
10. Non-monetary defaults under agreements with Working Capital Lender (Section
6.16).
11. Delay in payment of Excess Cash Flow for year ended November 30, 1994
pending amendment of Loan Agreement (Section 6.13).
12. Late submission of Financial Statements and other information (Section
6.3).
13. Non-monetary defaults under agreements with LSC and Ally (Section 6.5).
14. Late Certifications regarding environmental matters (Section 6.9).
15. Temporary advance to officer of Borrower (subsequently repaid) (Section
7.7.3)
16. Failure to comply with financial standards and have required minimum
availability (Sections 7.18, 7.19, 7.20, 7.21, 7.22 and 7.23).
17. Extension of Lease for additional 5 years if acquisition does not occur
(Sections 7.15 and 7.16).
18. Failure to deliver financial statements of Xxxxxxxx X. Xxxxxxxx (Guaranty
and Loan Amendment).
19. Liens existing on February 16, 1996 (Section 7.2).
20. Possible failure to comply with Excess Cash Flow limitation with respect to
monthly payments to Louisiana Seed Capital Fund Limited Partnership and
Louisiana Economic Development Corporation (LSC Intercreditor Agreement,
Section 3.2(a)).
21. Breach of any representation or warranty relating to any matter listed
above or otherwise expressly waived in the Sixth Amendment (Section 8.1.3).
NOTE: Unless otherwise noted, references in parentheses are to Section numbers
of existing Loan Agreement with FINOVA Capital Corporation.
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