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EXHIBIT 4.4
SIXTH AMENDMENT
AND
LIMITED WAIVER
This SIXTH AMENDMENT AND LIMITED WAIVER (this "Amendment") is made and
entered into as of September 3, 1999 by and among (a) ITEQ, INC., a Delaware
corporation (the "Borrower"), (b) THE GUARANTORS, (c) BANKBOSTON, N.A., a
national banking association having its principal place of business at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (acting in its individual capacity,
"BKB"), and the other lending institutions which become parties to the Credit
Agreement defined below (collectively, the "Banks"), (d) DEUTSCHE BANK AG, as
documentation agent (the "Documentation Agent"), and (e) BANKBOSTON, N.A., as
agent for the Banks (acting in such capacity, the "Agent"). Capitalized terms
used herein without definition shall have the meanings assigned to such terms in
the Credit Agreement defined below.
WHEREAS, the Borrower, the Guarantors, the Banks, the Documentation Agent
and the Agent have entered into that certain Revolving Credit Agreement, dated
as of October 28, 1997 (as amended and in effect from time to time, the "Credit
Agreement"), pursuant to which the Banks have extended credit to the Borrower on
the terms set forth therein;
WHEREAS, the Borrower, the Guarantors, the Banks, the Documentation Agent
and the Agent have agreed to amend and waive a provision thereof as hereinafter
set forth;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
SECTION 1. AMENDMENT TO SECTION 2.1 OF THE CREDIT AGREEMENT.
Section 2.1 of the Credit Agreement is hereby amended by deleting
the last proviso of the first sentence thereof and by inserting the following
language at the end of the first sentence of such Section but before the final
period thereof:
", provided further that the outstanding amount of Revolving Credit
Loans (including Swing Line Loans) shall not exceed a maximum aggregate amount
outstanding of $109,000,000 at any time on or subsequent to the effective date
of the Sixth Amendment hereto."
SECTION 2. LIMITED WAIVER UNDER SECTION 8.7 OF THE CREDIT AGREEMENT.
The Banks and the Agent hereby agree to waive Section 8.7 of the Credit
Agreement from July 31, 1999 through August 30, 1999; provided that effective as
of August 31, 1999, the Borrower shall be required to comply with Section 8.7 of
the Credit Agreement as such covenant may apply to any point in time occurring
on or subsequent to August 31, 1999;
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provided further that on or before September 30, 1999 the Borrower shall, in
accordance with Section 6.4(c) of the Credit Agreement, deliver a Compliance
Certificate demonstrating compliance with the covenants contained in Sections 7
and 8 of the Credit Agreement, including, without limitation, Section 8.7 as it
applies on August 31, 1999.
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date which this Amendment shall have been duly executed and
delivered by the respective parties hereto.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Banks and the Agent that each of the representations and
warranties of the Borrower contained in the Credit Agreement as amended hereby
or in any document or instrument delivered pursuant to or in connection with the
Credit Agreement as amended hereby are true as of the date hereof (except to the
extent of changes resulting from transactions contemplated or permitted by the
Credit Agreement and changes occurring in the ordinary course of business which
singly or in the aggregate are not materially adverse, or to the extent that
such representations and warranties relate solely and expressly to an earlier
date) and, taking into account this Amendment, no Default or Event of Default
has occurred and is continuing.
SECTION 5. RATIFICATION, ETC. Except as expressly amended and waived
hereby, the Credit Agreement, the other Loan Documents and all documents,
instruments and agreements related thereto are hereby ratified and confirmed in
all respects and shall continue in full force and effect. The Credit Agreement,
as amended, shall hereafter be read and construed together as a single document,
and all references in the Credit Agreement, any other Loan Document or any
agreement or instrument related to the Credit Agreement shall hereafter refer to
the Credit Agreement as amended by this Amendment.
SECTION 6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, which together shall constitute one instrument.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE A CONTRACT UNDER THE LAWS
OF THE COMMONWEALTH OF MASSACHUSETTS, SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF SAID JURISDICTION, WITHOUT
REFERENCE TO CONFLICTS OF LAW, AND IS INTENDED TO TAKE EFFECT AS A SEALED
INSTRUMENT.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
an instrument under seal to be effective as of the date first above written.
THE BORROWER:
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ITEQ, INC.
By: /s/ Xxxxxxxx X. XxXxxx
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Xxxxxxxx X. XxXxxx
Chief Financial Officer
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THE GUARANTORS:
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ITEQ MANAGEMENT COMPANY
EXELL, INC. (a Delaware corporation which is
successor by merger to EXELL. INC., a Texas
corporation)
ITEQ TANK SERVICES, INC. (successor by
merger to HMT TANK SERVICE, INC.)
RELIABLE STEEL, INC.
AIR-CURE DYNAMICS, INC.
AMEREX INDUSTRIES, INC.
XXXXXXXX, INC.
INTEREL ENVIRONMENTAL
TECHNOLOGIES, INC.
ALLIED INDUSTRIES, INC.
ITEQ CONSTRUCTION SERVICES, INC.
(f/k/a HMT CONSTRUCTION SERVICES,
INC.)
ITEQ INTELLECTUAL PROPERTIES, INC.
(f/x/a AIX INTELLECTUAL PROPERTIES,
INC.)
ITEQ INVESTMENTS, INC. (f/k/a
ASTROTECH INVESTMENTS, INC.)
TEXOMA TANK COMPANY, INC.
ITEQ STORAGE SYSTEMS, INC. (f/k/a
XXXXX-MINNEAPOLIS TANK &
FABRICATING CO., successor by merger to
HMT, INC., HMT SENTRY SYSTEMS, INC.
and TRUSCO TANK, INC.)
XXXXXX MANUFACTURING CO., INC.
(f/k/a XXXXXX HOLDING COMPANY,
successor by merger to XXXXXX TANK &
MFG. CO., INC., XXXXXX TANK
INTERNATIONAL, INC., XXXXXX POWER,
INC., and XXXXXX TANK & VESSEL, INC.)
By: /s/ Xxxxxxxx X. XxXxxx
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Xxxxxxxx X. XxXxxx
Chief Financial Officer
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THE LENDERS:
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BANKBOSTON, N.A.,
individually and as Agent
By: /s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx, Director
DEUTSCHE BANK AG,
individually and as Documentation Agent
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
BANK OF SCOTLAND
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President
BANK ONE, TEXAS, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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XXXXXXX (x/x/x Xxxxxx Xxxxxxx)
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: First Vice President
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President and Manager
HIBERNIA NATIONAL BANK
By: /s/ Xxxxxxxxxxx Xxxxx
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Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
BANK OF AMERICA, N.A., (f/k/a NationsBank, N.A.)
By: /s/ Xxxxxxx X. Xxxxxxxxxxx, III
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Name: Xxxxxxx X. Xxxxxxxxxxx, III
Title: Managing Director
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx Xxxxx XxXxxxxx
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Name: Xxxxx Xxxxx XxXxxxxx
Title: Vice President
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CHASE BANK TEXAS, NATIONAL ASSOCIATION
(f/k/a Texas Commerce Bank, N.A.)
By: /s/ Xxxxx X. Shilcutt
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Name: Xxxxx X. Shilcutt
Title: Vice President
