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EXHIBIT 10.37
EXECUTION COPY
SIXTH AMENDMENT dated as of May 15, 1997 (the "Agreement")
among XXXXX TECHNOLOGY CORPORATION (formerly known as Xxxxx Environmental
Technologies Corporation), BCM ENGINEERS INC., a Pennsylvania corporation, BCM
ENGINEERS INC., an Alabama corporation, XXXXXX ENVIRONMENTAL SERVICES INC., each
of the Lenders which are parties to the Loan Agreement, as hereinafter defined,
and THE CHASE MANHATTAN BANK (formerly known as Chemical Bank), as Agent for the
Lenders. This Agreement is entered into in connection with a certain Loan and
Security Agreement dated as of October 18, 1995 (as amended through the date
hereof, the "Loan Agreement") among the parties to this Agreement. Terms which
are capitalized herein and not otherwise defined shall have the meanings
ascribed to them in the Loan Agreement.
WHEREAS, the Lenders, the Agent and the Borrowers entered into
the Fifth Amendment, Waiver and Consent to the Loan Agreement, dated as of April
21, 1997 (the "Fifth Amendment"), pursuant to which, among other things, the
financial covenants contained in the Loan Agreement were revised; and
WHEREAS, the Borrowers have requested the Agent and the
Lenders to consider making additional modifications to certain of such financial
covenants and modifying certain events of default under the Fifth Amendment and
the Agent and the Lenders have so agreed, upon the terms and subject to the
conditions contained in this Agreement;
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 hereto hereby agree as follows:
SECTION 1. AMENDMENT TO LOAN AGREEMENT. The Loan Agreement is hereby amended by
deleting clause (i) of paragraph 14(o) in its entirety and by substituting the
following in lieu thereof:
"(i) Consolidated Net Income or Loss. Xxxxx
Technology and its Subsidiaries, on a consolidated basis,
shall not have, as of the end of (A)(1) the fiscal quarter
ending in December 1996, a Net Loss of greater than $800,000,
(2) the fiscal quarter ending in March, 1997, a Net Loss of
greater than $2,100,000, (3) the fiscal quarter ending in
June, 1997, a Net Loss of greater than $1,000,000 and (4) the
fiscal quarter ending in September, 1997, a Net Loss of
greater than $500,000 and (B) the fiscal month of October,
1997 and each fiscal month thereafter, a Net Loss of greater
than $100,000, provided, however, that solely for purposes of
determining compliance with this covenant only, the
calculation of the Net Loss of Xxxxx Technology and its
Subsidiaries, on a consolidated basis, as of the end of any
period of determination, shall
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exclude the aggregate amount of ESOP Dividends paid in
accordance with Section 14(1) during such period;"
SECTION 2. AMENDMENT TO FIFTH AMENDMENT. The Fifth Amendment is hereby amended
by deleting clauses (iv) and (v) of Section 8(a) thereof in their entirety, and
by substituting the following in lieu thereof:
"(iv) The Lenders shall have failed to receive on or
before June 15, 1997 the financial statements of Xxxxx
Technology and its Subsidiaries, on a consolidated basis, for
the fiscal year ending September 30, 1996, certified without
qualification;
(v) The Lenders shall have failed to receive on or
before June 15, 1997 detachable warrants, in form and
substance, and containing such terms and conditions,
satisfactory to them, to acquire on a pro rata basis, at a
nominal exercise price, that number of shares of the common
voting stock of Xxxxx Technology equal to 7.5%, on a fully
diluted basis, of such stock; or"
SECTION 3. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders and
the Agent to enter into this Agreement, Xxxxx Technology and each other Borrower
makes the following representations and warranties in favor of each of the
Lenders and the Agent (which representations and warranties shall survive the
execution and delivery of this Agreement) as of the date hereof.
(a) Xxxxx Technology and each other Borrower has the corporate
power, authority and legal right to execute, deliver and perform this Agreement,
and the instruments, agreements, documents and transactions contemplated hereby,
and has taken all actions necessary to authorize the execution, delivery and
performance of this Agreement, and the instruments, agreements, documents and
transactions contemplated hereby.
(b) No consent of any Person (including, without limitation,
shareholders or creditors of Xxxxx Technology, as the case may be) other than
the Lenders, and no consent, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority, is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement, and the instruments,
agreements, documents and transactions contemplated hereby.
(c) This Agreement has been duly executed and delivered on
behalf of Xxxxx Technology and each other Borrower by its duly authorized
officer, and constitutes the legal, valid and binding obligation of Xxxxx
Technology and each such Borrower, enforceable in accordance with its terms.
(d) Except for the failure of the Borrowers to (i) pay their
trade accounts payable and subcontractors when due, (ii) make timely payment of
their rental obligations under
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lease agreements and (iii) make timely payment of their obligations under the
Xxxxx Settlement Agreement, the Xxxxxxxx Settlement Agreement and the Mutual
Pharmaceutical Settlement Agreement, neither Xxxxx Technology nor any other
Borrower is in default under any indenture, mortgage, deed of trust, agreement
or other instrument to which it is a party or by which it may be bound. Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof or
thereof will (i) violate any law or regulation, (ii) result in or cause a
violation by Xxxxx Technology or by any other Borrower of any order or decree of
any court or government instrumentality, (iii) conflict with, or result in the
breach of, or constitute a default under, any indenture, mortgage, deed of
trust, agreement or other instrument to which Xxxxx Technology or any other
Borrower is a party or by which it may be bound, (iv) result in the creation or
imposition of any lien, charge, or encumbrance upon any of the property of Xxxxx
Technology or of any other Borrower, except in favor of the Agent for the
benefit of the Lenders, to secure the Liabilities, or (v) violate any provision
of the Articles or Certificate of Incorporation, By-Laws or any capital stock
provisions of Xxxxx Technology or of any other Borrower.
(e) No Default or Event of Default has occurred and is
continuing.
(f) Since the date of the Agent's receipt of Xxxxx
Technology's consolidated financial statements for the period ended March 31,
1997, no change or event has occurred which has had or is reasonably likely to
have a Material Adverse Effect.
(g) The recitals contained in this Agreement are true and
correct in all respects.
SECTION 4. GENERAL PROVISIONS.
(a) Except as expressly amended on the terms set forth in this
Agreement, the Loan Agreement and all other agreements, documents, instruments
and certificates executed in connection therewith, are ratified and confirmed in
all respects and shall remain in full force and effect in accordance with their
respective terms.
(b) All references in the Other Agreements to the Loan
Agreement shall mean the Loan Agreement as waived and amended as of the
effective date hereof, as amended hereby and as hereafter amended, supplemented
or modified from time to time. From and after the date hereof, all references in
the Loan Agreement to "this Agreement," "hereof," "herein," or similar terms,
shall mean and refer to the Loan Agreement as waived and amended by this
Agreement.
(c) This Agreement may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which shall
be an original and all of which shall constitute one and the same agreement.
(d) This Agreement shall be governed and controlled by the
laws of the State of New York without reference to its choice of law principles.
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(e) This Agreement shall not be effective unless and until the
Agent and each of the Lenders shall have received a fully executed counterpart
or original hereof.
(Signature Page Follows)
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IN WITNESS WHEREOF, each of the Borrowers, BCM-Alabama, the
Lenders and the Agent have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year first above
written.
XXXXX TECHNOLOGY CORPORATION, XXXXXX ENVIRONMENTAL SERVICES
INC., formerly known as
Xxxxx Environmental
Technologies Corporation By: /s/ Xxxxxxx X. Xxxxxxxx
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(Title) Vice President
By: /s/ Xxxxxx X. Xxxxxxx
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(Title) President
BCM ENGINEERS INC., THE CHASE MANHATTAN BANK, as a
a Pennsylvania corporation Lender and as Agent, formerly
known as Chemical Bank
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ X. X. Xxxx
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(Title) Vice President (Title) V.P.
BCM ENGINEERS INC., BTM CAPITAL CORPORATION,
an Alabama corporation formerly known as
BOT Financial Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Zork, Jr.
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(Title) V.P. (Title) Sr. V.P.
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