1
EXHIBIT 4.5
LIMITED WAIVER
REGARDING DISPOSITION OF CERTAIN ASSETS
AND
CERTAIN FINANCIAL COVENANTS
This LIMITED WAIVER REGARDING DISPOSITION OF CERTAIN ASSETS AND CERTAIN
FINANCIAL COVENANTS is made and entered into as of September 30, 1999 (this
"Waiver"), among (a) ITEQ, INC., a Delaware corporation (the "Borrower"), (b)
THE GUARANTORS signatories hereto as guarantors, (c) BANKBOSTON, N.A., a
national banking association having its principal place of business at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (acting in its individual capacity,
"BKB"), and the other lending institutions which become parties to the Credit
Agreement defined below (together with BKB, the "Banks"), (d) DEUTSCHE BANK AG,
as documentation agent (the "Documentation Agent"), and (e) BANKBOSTON, N.A., as
agent for the Banks (acting in such capacity, the "Agent"). Capitalized terms
used herein without definition shall have the meanings assigned to such terms in
the Credit Agreement defined below.
WHEREAS, the Borrower, the Guarantors, the Banks, the Documentation
Agent and the Agent have entered into that certain Revolving Credit Agreement,
dated as of October 28, 1997 (as amended and in effect from time to time, the
"Credit Agreement"), pursuant to which the Banks have extended credit to the
Borrower on the terms set forth therein;
WHEREAS, the Borrower wishes to cause assets comprising the Clinton
Plant, the Provo Plant and the Birmingham Plant (each as defined herein) to be
sold and has requested certain limited waivers under the Credit Agreement to
permit such sales and to release the Agent's and the Banks' security interests
therein;
WHEREAS, the Borrower has requested certain additional limited waivers
under the Credit Agreement with respect to certain financial covenants contained
in the Credit Agreement;
WHEREAS, the Banks, the Documentation Agent and the Agent have agreed
to make certain limited waivers under the Credit Agreement 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. DEFINITIONS. The following terms when used herein or in any
other Loan Document shall have the meanings set forth below:
Birmingham Plant. The premises described on Exhibit A attached hereto
and all of the fixtures, equipment and other goods of the Borrower or any of its
2
2
Subsidiaries that used to comprise the tank manufacturing facility formerly
operated at such premises and that are located at such premises and are to be
sold pursuant to the Birmingham Sale Agreement, exclusive of equipment and other
goods that have been, or, prior to the Birmingham Sale, will be, transferred to
one or more other facilities of the Borrower or any of its Subsidiaries.
Birmingham Sale. The sale by the Borrower or its Subsidiaries of the
Birmingham Plant pursuant hereto and pursuant to the Birmingham Sale Agreement.
Birmingham Sale Agreement. The Purchase and Sale Agreement in form and
substance satisfactory to the Agent pursuant to which the Borrower or its
Subsidiaries sell the Birmingham Plant.
Clinton Plant. All of the equipment and other goods of the Borrower or
any of its Subsidiaries comprising the tank manufacturing facility located at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ consisting of equipment and other goods
located at such premises that are to be sold pursuant to the Clinton Sale
Agreement and that have been used as part of such facility, provided, however,
that the Clinton Plant shall not include those assets listed on Exhibit B
hereto.
Clinton Sale. The sale by the Borrower or its Subsidiaries of the
Clinton Plant pursuant hereto and pursuant to the Clinton Sale Agreement.
Clinton Sale Agreement. The sale agreement in form and substance
satisfactory to the Agent pursuant to which the Borrower or its Subsidiaries
sell the Clinton Plant.
Provo Plant. The premises described on Exhibit C attached hereto and
all of the fixtures, equipment and other goods of the Borrower or any of its
Subsidiaries comprising the tank manufacturing facility located at such premises
and any other assets of the Borrower or any of its Subsidiaries used exclusively
to operate such tank manufacturing facility, in each case that are to be sold
pursuant to the Provo Sale Agreement.
Provo Sale. The sale by the Borrower or its Subsidiaries of the Provo
Plant pursuant hereto and pursuant to the Provo Sale Agreement.
Provo Sale Agreement. The sale agreement in form and substance
satisfactory to the Agent pursuant to which the Borrower or its Subsidiaries
sell the Provo Plant.
Subject Plants. The Birmingham Plant, the Clinton Plant and the Provo
Plant.
3
3
Subject Sales. The Birmingham Sale, the Clinton Sale and the Provo
Sale.
Subject Sale Agreements. The Birmingham Sale Agreement, the Clinton
Sale Agreement and the Provo Sale Agreement.
SECTION 2. LIMITED WAIVERS UNDER THE CREDIT AGREEMENT.
SECTION 2.1. LIMITED WAIVER UNDER SECTION 7.4 OF THE CREDIT AGREEMENT.
Under Section 7.4 of the Credit Agreement the Borrower may not and may
not permit any of its Subsidiaries to dispose of assets other than such
disposals which consist of the sale of equipment in the ordinary course of
business. The Borrower has requested the Agent and the Banks to consent to
the Subject Sales. The Banks and the Agent hereby consent to the Subject Sales
and to the release by the Agent of all liens and security interests held by the
Agent for the benefit of the Banks and the Agent on assets comprising the
Subject Plants that are sold pursuant to the applicable Subject Sales, and the
Banks and the Agent hereby waive Section 7.4 of the Credit Agreement to the
extent that Section 7.4 prohibits the Subject Sales, provided, however, for each
Subject Sale, each of the following conditions applicable to such Subject Sale
are satisfied:
(a) the net cash proceeds received by the Borrower or any of
its Subsidiaries in consideration (i) for the Birmingham Sale shall not
be less than $1,100,000, (ii) for the Clinton Sale shall not be less
than $2,160,000 and (iii) for the Provo Sale shall not be less than
$1,500,000;
(b) any net cash proceeds of any Subject Sale received by the
Borrower or any of its Subsidiaries shall, concurrently with the
completion of such Subject Sale, be paid to the Agent for application
to repay the Revolving Credit Loans outstanding;
(c) (i) the Total Commitment shall be permanently and
automatically reduced by an amount equal to the net cash proceeds of
any Subject Sale simultaneously with such Subject Sale and the dollar
figure set forth in the tenth line of Section 2.1 of the Credit
Agreement shall be simultaneously and automatically reduced to reflect
such reduction in the Total Commitment, (ii) the dollar figure
immediately before the words "at any time on or subsequent to the
effective date of the Sixth Amendment hereto" in Section 2.1 of the
Credit Agreement (such dollar figure referred to herein as the "Loan
Sublimit") shall be permanently and automatically reduced by an amount
equal to the net cash proceeds of the Birmingham Sale simultaneously
with the Birmingham Sale and (iii) the Loan Sublimit shall be
permanently and automatically reduced by an amount equal to the net
cash proceeds of the Provo Sale simultaneously with the Provo Sale;
4
4
(d) the Agent shall be satisfied that any noncash proceeds of
such Subject Sale, including, without limitation, deferred purchase
price promissory notes, shall at all times be subject to a first
priority perfected security interest, free of encumbrances other than
Permitted Liens, in favor of the Banks and the Agent, with arrangements
being in place, satisfactory to the Agent, for the Agent to have
possession or control, at the time of completion of any Subject Sale,
of any noncash proceeds for which perfection of the Agent's security
interest therein must be by possession or control;
(e) prior to any Subject Sale other than the Birmingham Sale,
the Banks shall have received and shall be satisfied with the results
of appraisals and valuations by professional appraisers and valuation
experts, engaged by the Borrower or any of its Subsidiaries and
satisfactory to the Banks, to support the sales price reflected in the
applicable Subject Sale Agreement;
(f) prior to any Subject Sale, the Agent shall have received
and be satisfied with any agreements or other documentation related to
such Subject Sale, including, without limitation, the applicable
Subject Sale Agreement;
(g) the Subject Sale (i) for the Birmingham Sale shall occur
on or prior to December 31, 1999, (ii) for the Clinton Sale shall occur
on or prior to October 15, 1999 and (iii) for the Provo Sale shall
occur on or prior to December 31, 1999; and
(h) after otherwise giving effect to this Waiver, no Default
or Event of Default shall have occurred and shall be continuing at the
time of such Subject Sale or would occur as a result thereof.
As used in this Section 2.1 of this Waiver, the term "net cash proceeds" of any
Subject Sale means gross cash proceeds of such Subject Sale, net of reasonable
direct transaction costs, such as broker's fees, transfer taxes and professional
fees and expenses incurred on account of such Subject Sale.
5
5
SECTION 2.2. LIMITED WAIVER UNDER SECTION 8.3 OF THE CREDIT AGREEMENT.
The Banks and the Agent hereby waive Section 8.3 of the Credit
Agreement as Section 8.3 applies as of the end of the fiscal quarter ended
September 30, 1999 (but not as Section 8.3 applies for any other period),
provided that each of the Monthly EBITDA Conditions (as defined herein) is
satisfied.
SECTION 2.3. LIMITED WAIVER UNDER SECTION 8.6 OF THE CREDIT AGREEMENT.
The Banks and the Agent hereby waive Section 8.6 of the Credit
Agreement as Section 8.6 applies to the fiscal quarter ending September 30, 1999
(but not as Section 8.6 applies for any other period); provided, however, that:
(a) the sum of EBITDA plus noncash losses incurred in connection with
the Clinton Sale is greater than or equal to (i) $0 for the month of September,
1999, (ii) $0 for the month of October, 1999, (iii) $100,000 for the month of
November, 1999 and (iv) $100,000 for the month of December, 1999 (such
requirements related to minimum EBITDA for the months of September, October,
November and December collectively referred to herein as the "Monthly EBITDA
Conditions"); and
(b) (i) on or before October 25, 1999, the Borrower shall, in
accordance with Section 6.4(c) of the Credit Agreement, deliver a Compliance
Certificate demonstrating compliance with this Section 2.3 as it applies as of
the end of September, 1999, (ii) on or before November 25, 1999, the Borrower
shall, in accordance with Section 6.4(c) of the Credit Agreement, deliver a
Compliance Certificate demonstrating compliance with this Section 2.3 as it
applies as of the end of October, 1999, (iii) on or before December 25, 1999,
the Borrower shall, in accordance with Section 6.4(c) of the Credit Agreement,
deliver a Compliance Certificate demonstrating compliance with this Section 2.3
as it applies as of the end of November, 1999, (iv) on or before January 25,
1999, the Borrower shall, in accordance with Section 6.4(c) of the Credit
Agreement, deliver a Compliance Certificate demonstrating compliance with this
Section 2.3 as it applies as of the end of December, 1999.
SECTION 2.4. LIMITED WAIVER UNDER SECTION 8.7 OF THE CREDIT AGREEMENT.
The Banks and the Agent hereby waive Section 8.7 of the Credit
Agreement as Section 8.7 applies for the period from August 30, 1999 through
October 30, 1999 (but not for any other period, including any period commencing
on or after October 31, 1999); provided that on or before November 25, 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 October 31, 1999; provided further that
each of the Monthly EBITDA Conditions is satisfied.
6
6
SECTION 3. AGREEMENT WITH RESPECT TO SECTION 3.1(a) OF THE CREDIT
AGREEMENT.
Section 3.1(a) of the Credit Agreement is hereby amended by replacing
the dollar figure in the eleventh line thereof with the dollar figure
"$5,000,000".
SECTION 4. WAIVER FEE. The Borrower hereby agrees to pay to the Agent,
for the account of each Bank that executes this Waiver, a waiver fee of $150,000
(such amount referred to herein as the "Waiver Fee"), such Waiver Fee to be
shared pro rata by the Banks that execute this Waiver in accordance with their
Commitments. The Waiver Fee shall be nonrefundable and fully earned as of the
date hereof, and half of such fee (being equal to the amount of $75,000 and
referred to herein as the "Upfront Portion of the Waiver Fee") shall be payable
to the Agent, for the respective accounts of such Banks, on the date hereof and
the remaining half of such fee (being equal to the amount of $75,000) shall be
payable to the Agent, for the respective accounts of such Banks, on November 1,
1999.
SECTION 5. CONDITIONS TO EFFECTIVENESS. This Waiver shall become
effective as of the date hereof, provided that the following conditions shall
have been satisfied on or prior to October 1, 1999:
SECTION 5.1. LOAN DOCUMENTS. Each of this Waiver and all
related documents shall have been duly executed and delivered by the
respective parties thereto, shall be in full force and effect and shall
be in form and substance reasonably satisfactory to the Agent.
SECTION 5.2. CORPORATE ACTION. All corporate action necessary
for the valid execution, delivery and performance by the Borrower and
each Guarantor of this Waiver, and each of the related documents to
which it is or is to become a party, shall have been duly and
effectively taken, and evidence thereof reasonably satisfactory to the
Agent shall have been provided to the Agent.
SECTION 5.3. PROCEEDINGS AND DOCUMENTS. All proceedings in
connection with the transactions contemplated by this Waiver and all
other documents incident hereto shall be reasonably satisfactory in
substance and in form to the Banks and to the Agent.
SECTION 5.4. COSTS AND EXPENSES. The Borrower shall have
reimbursed the Agent for the amount of the fees and expenses of ▇▇▇▇▇▇▇
▇▇▇▇ LLP ("BDLLP"), special counsel to the Agent, for services rendered
to the Agent in connection with the Credit Agreement, to the extent
that copies of invoices therefor have been presented to the Borrower.
The Borrower shall have deposited the sum of $50,000 with
PricewaterhouseCoopers LLC ("PWC) in payment of BDLLP's obligation to
provide a retainer to PWC in such amount in connection with BDLLP's
engagement of PWC as financial advisor to BDLLP.
7
7
SECTION 5.5. WAIVER FEE. The Borrower shall have paid the
Upfront Portion of the Waiver Fee to the Agent for the account of the
Banks that execute this Waiver.
SECTION 6. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Banks and the Agent as follows:
(a) REPRESENTATIONS AND WARRANTIES IN CREDIT AGREEMENT. Each
of the representations and warranties of the Borrower contained in the
Credit Agreement as modified hereby or in any document or instrument
delivered pursuant to or in connection with the Credit Agreement as
modified 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 Waiver,
no Default or Event of Default has occurred and is continuing.
(b) AUTHORITY, NO CONFLICTS, ETC. The execution, delivery and
performance of this Waiver and the transactions contemplated hereby (i)
are within the corporate authority of the Borrower and the Guarantors,
(ii) have been duly authorized by all necessary corporate proceedings,
(iii) do not conflict with or result in any material breach or
contravention of any provision of law, statute, rule or regulation to
which the Borrower or any Guarantor is subject or any judgment, order,
writ, injunction, license or permit applicable to the Borrower or
Guarantors so as to materially adversely affect the assets, business or
any activity of the Borrower or Guarantors, and (iv) do not conflict
with any provision of the corporate charter or bylaws of the Borrower
or Guarantors or any agreement or other instrument binding upon them.
The execution, delivery and performance of this Waiver will result in
valid and legally binding obligations of the Borrower and Guarantors
enforceable against each in accordance with the respective terms and
provisions hereof.
SECTION 7. BANK GROUP FINANCIAL CONSULTANT. The Borrower and the
Guarantors agree that, in connection with BDLLP's representation of the Agent on
matters relating to the Credit Agreement and the other Loan Documents, BDLLP may
retain and continue to retain PWC as financial consultant to, among other
things, make visits to, and discuss financial and operational matters with, the
Borrower and its Subsidiaries and to advise the Agent and the Banks as to the
Borrower's and its Subsidiaries' business, operations and financial condition
insofar as such matters relate to the Borrower's and its Subsidiaries'
performance and future ability to perform under the Loan Documents. PWC shall
not be limited in the frequency of visits to the facilities of the Borrower and
its Subsidiaries. The Borrower shall, and shall cause each of its Subsidiaries
to, cooperate with PWC and
8
8
provide PWC with all information reasonably requested by PWC in connection with
its engagement by BDLLP. The Borrower and the Guarantors acknowledge that,
pursuant to Section 15 of the Credit Agreement, the fees and expenses of PWC are
for the account of the Borrower.
SECTION 8. BANK GROUP AGREEMENT. Each of the Banks (a) authorizes BDLLP
to engage PWC as special financial advisor to BDLLP in connection with BDLLP's
representation of the Agent on matters relating to the Credit Agreement and the
other Loan Documents and (b) agree to indemnify each of BDLLP and PWC and their
respective personnel from, and to hold each of BDLLP and PWC and their
respective personnel harmless against any and all claims, liabilities, costs and
expenses relating to the services that PWC renders in connection with such
engagement, except to the extent finally determined to have resulted from the
willful misconduct or fraudulent behavior of BDLLP or (as the case may be) PWC
relating to such services. Each of BDLLP and PWC may rely upon the provisions
contained in this Section 8 although not a party to this Waiver.
SECTION 9. RATIFICATION, ETC. Except as expressly modified hereby, the
Credit Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. This Waiver and the Credit Agreement
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 in effect after the effectiveness of this Waiver. This Waiver is a
Loan Document.
SECTION 10. RELEASE. In order to induce the Agent and the Banks to
enter into this Waiver, each of the Borrower and the Guarantors acknowledges and
agrees that: (i) neither the Borrower nor any Guarantor has any claim or cause
of action against the Agent or any Bank (or any of its respective directors,
officers, employees or agents); (ii) neither the Borrower nor any Guarantor has
any offset right, counterclaim or defense of any kind against any of their
respective obligations, indebtedness or liabilities to the Agent or any Bank;
and (iii) each of the Agent and the Banks has heretofore properly performed and
satisfied in a timely manner all of its obligations to the Borrower and each
Guarantor. The Borrower and the Guarantors wish to eliminate any possibility
that any past conditions, acts, omissions, events, circumstances or matters
would impair or otherwise adversely affect any of the Agent's and the Banks'
rights, interests, contracts, collateral security or remedies. Therefore, each
of the Borrower and the Guarantors unconditionally releases, waives and forever
discharges (A) any and all liabilities, obligations, duties, promises or
indebtedness of any kind of the Agent or any Bank to either the Borrower and any
Guarantor, except the obligations to be performed by the Agent or any Bank on or
after the date hereof as expressly stated in this Waiver, the Credit Agreement
and the other Loan Documents, and (B) all claims, offsets, causes of action,
suits or defenses of any kind whatsoever (if any), whether arising at law or in
equity, whether known or unknown, which the Borrower or any
9
9
Guarantor might otherwise have against the Agent, any Bank or any of its
directors, officers, employees or agents, in either case (A) or (B), on account
of any past or presently existing condition, act, omission, event, contract,
liability, obligation, indebtedness, claim, cause of action, defense,
circumstance or matter of any kind.
SECTION 11. INDEMNIFICATION. The Borrower hereby agrees to indemnify
the Banks and their affiliates and to hold the Agent, the Banks and their
respective affiliates harmless from and against any loss, cost or expense
incurred or sustained by the Agent, the Banks or their respective affiliates in
providing payroll, collection, disbursement and other cash management services
to the Borrower, the Guarantors and their respective Subsidiaries. The parties
hereto further hereby agree that such indemnification obligations shall be
Obligations.
SECTION 12. COUNTERPARTS. This Waiver may be executed in any number of
counterparts, which together shall constitute one instrument.
SECTION 13. GOVERNING LAW. THIS WAIVER SHALL BE A CONTRACT UNDER THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, SHALL FOR ALL PURPOSES BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF SAID JURISDICTION,
WITHOUT REFERENCE TO CONFLICTS OF LAW, AND IS INTENDED TO TAKE EFFECT AS A
SEALED INSTRUMENT.
10
IN WITNESS WHEREOF, the parties hereto have executed this Waiver as an
instrument under seal to be effective as of the date first above written.
THE BORROWER:
-------------
ITEQ, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
11
THE GUARANTORS:
---------------
ITEQ MANAGEMENT COMPANY
EXELL, INC. (a Delaware corporation which is
successor by merger to EXELL. INC., a Texas
corporation)
ITEQ TANK SERVICES, INC. (successor by
merger to HMT TANK SERVICE, INC.)
RELIABLE STEEL, INC.
AIR-CURE DYNAMICS, INC.
AMEREX INDUSTRIES, INC.
▇▇▇▇▇▇▇▇, 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
▇▇▇▇▇-MINNEAPOLIS TANK &
FABRICATING CO., successor by merger to
HMT, INC., HMT SENTRY SYSTEMS, INC.
and TRUSCO TANK, INC.)
▇▇▇▇▇▇ MANUFACTURING CO., INC.
(f/k/a ▇▇▇▇▇▇ HOLDING COMPANY,
successor by merger to ▇▇▇▇▇▇ TANK &
MFG. CO., INC., ▇▇▇▇▇▇ TANK
INTERNATIONAL, INC., ▇▇▇▇▇▇ POWER,
INC., and ▇▇▇▇▇▇ TANK & VESSEL, INC.)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
12
THE LENDERS:
------------
BANKBOSTON, N.A.,
individually and as Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
DEUTSCHE BANK AG,
individually and as Documentation Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
BANK OF SCOTLAND
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
BANK ONE, TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇
▇▇▇▇▇▇▇ (▇/▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
COMERICA BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Manager
HIBERNIA NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., (f/k/a NationsBank, N.A.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, III
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, III
Title: Managing Director
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
14
CHASE BANK TEXAS, NATIONAL ASSOCIATION
(f/k/a Texas Commerce Bank, N.A.)
By: /s/ ▇▇▇▇▇ ▇. Shilcutt
-----------------------------------
Name: ▇▇▇▇▇ ▇. Shilcutt
Title: Vice President
15
Exhibit A
---------
All that real estate in Jefferson County, Alabama, described as follows:
Lot 2, according to the General American Transportation Subdivision, as
recorded in Map Book 99, Page 16, in the Probate Office of Jefferson County,
Alabama.
16
Exhibit B
---------
1. Office furniture on the second floor of the office building
2. Leased copiers and computers
3. In-process material in and around the shop
4. Crane rails
5. Water fountains in the shop
6. Infrared heaters in the shop
7. Electric forklift
8. ▇▇▇▇ truck tractor
9. Scale
10. Lot of shelves
11. Ohmstead field service equipment
12. Field Erect Equipment
17
Exhibit C
---------
All that real estate in Utah County, Utah, described as follows:
Commencing at a point in the Southerly right of way line of a road, which
point of beginning is West along the section line (record bearing and basis of
bearings being North 89 deg. 33' 59" West) 1055.2 feet and South (measured
bearing being South 0 deg. 26' 01" West) 21.8 feet from the North quarter
corner of Section 34, Township 6 South, Range 2 East, Salt Lake Base and
Meridian; thence with said road line South 86 deg. 52' East (measured bearing
being South 86 deg. 25' 59" East) 182 feet to a point in the Westerly right of
way line of Denver and Rio Grande Western Railroad; thence South 37 deg. 33'
East (measured bearing being South 37 deg. 06' 59") along said right of way line
2038 feet to the North line of a road; thence with said road line South 71 deg.
19' West (measured bearing being South 71 deg. 45' 01" West) 150.4 feet
(measured distance being 145.2 feet); thence continuing on said road line North
87 deg. 48' West (measured bearing being North 87 deg. 21' 59" West) 259.7 feet
(measured distance being 265.57 feet) to the Easterly right of way line of the
Union Pacific Railroad; thence with said right of way line North 38 deg. 36'
West (measured bearing being North 38 deg. 09' 59" West) 1608 feet to the East
line of a road; thence with said road line North 2 deg. 09' 59" West) 1608 feet
to the East line of a road; thence with said road line North 2 deg. 28" West
(measured bearing being North 2 deg. 01' 59" West) 405.8 feet to the place of
beginning.