Exhibit 10.69
AMENDMENT NO. 6 TO LOAN AGREEMENT
DATED OCTOBER 25, 1996
BY AND BETWEEN TANKNOLOGY-NDE INTERNATIONAL, INC.,
TANKNOLOGY/NDE CORPORATION,
TANKNOLOGY-NDE CONSTRUCTION SERVICES, INC.,
PROECO, INC. AND 2368692 CANADA, INC.
AND
BANK ONE, TEXAS, N.A.
This Amendment No. 6 ("Sixth Amendment") to the Loan Agreement, by and
among TANKNOLOGY-NDE INTERNATIONAL, INC. (formerly known as NDE ENVIRONMENTAL
CORPORATION) ("NDE"), a Delaware corporation, TANKNOLOGY/ NDE CORPORATION, a
Delaware corporation, PROECO, INC., a Delaware corporation, 2368692 CANADA, INC.
(formerly known as TANKNOLOGY CANADA (1988) INC.), a Canadian federal
corporation, TANKNOLOGY-NDE CONSTRUCTION SERVICES, INC., a Delaware corporation,
and OUTBOUND SERVICES, INC., a California corporation (collectively, "Borrower")
and BANK ONE, TEXAS, N.A., a national banking association (the "Bank") is
entered into this 30th day of March 1999.
W I T N E S S E T H:
WHEREAS, Borrower and Bank entered into the Loan Agreement on October 25,
1996, as amended by the First Amendment dated April 10, 1997, the Second
Amendment dated May 20, 1997, the Third Amendment dated December 23, 1997, the
Fourth Amendment dated June 26, 1998 and the Fifth Amendment dated November 5,
1998 (the "Loan Agreement");
WHEREAS, Borrower desires to increase the Revolving Commitment under the
Loan
Agreement;
WHEREAS, Borrower has requested that Bank release and terminate its
security interest in and to certain Collateral;
WHEREAS, Bank is willing to agree to the foregoing in accordance with, and
subject to, the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises herein contained, and each
intending to be legally bound hereby, the parties agree as follows:
I. Amendments to Loan Agreement.
Article I, DEFINITIONS, is amended by adding the following definitions:
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"Intangible Assets" means all the assets of Borrower that, in
accordance with GAAP, are not classified as tangible assets.
"Ryder System Note" means that certain promissory note dated May 12,
1998 executed by NDE in the face amount of $757,775.00 made payable to
the order of Ryder System.
"Sixth Amendment" means Amendment No. 6 to this Loan Agreement,
executed by Borrower and Bank on March 30, 1999.
Article I, DEFINITIONS, is amended by revising the following definitions in
their entirety to read as follows:
"Adjusted Net Worth" means Consolidated Net Worth minus Intangible
Assets plus Subordinated Debt, and outstanding principal under (i) the
OSI Unsecured Note and (ii) the Ryder System Note.
"Maximum Commitment Amount" $9,000,000.00 as of the date of the Fourth
Amendment; and $12,500,000.00 upon the satisfaction of all the
conditions under Article IV of the Sixth Amendment as acknowledged by
Bank's written notice to Borrower as specified under Article V
thereof.
"Revolving Note" means that certain promissory note in the original
face amount of $12,500,000.00 dated of even date with the Sixth
Amendment made by Borrower payable to the order of the Bank in the
form attached as Exhibit "A-1" to the Sixth Amendment, together with
all deferrals, renewals, extensions, amendments, modifications or
rearrangements thereof, which promissory note shall evidence certain
advances to the Borrower by the Bank pursuant to Section 2.01 of the
Loan Agreement.
Article V, AFFIRMATIVE COVENANTS, of the Loan Agreement is hereby amended
by revising the following section in its entirety to read as follows:
5.20 Net Worth Requirement. Maintain its Adjusted Net Worth as of
March 31, 1999, which shall not be less than $4,000,000.00 at that
time, and each calendar quarter thereafter, increasing on an annual
basis by 70% of positive annual Net Income beginning the year ending
December 31, 1999.
"Exhibit A-1," the form of Revolving Note attached to the Loan Agreement,
as amended and restated pursuant to the Third, Fourth and Fifth Amendments is
hereby replaced with Exhibit "A-1" attached to this Sixth Amendment.
"Exhibit B," the form of Compliance Certificate attached to the Loan
Agreement, as amended by the Third, Fourth and Fifth Amendments, is hereby
replaced with Exhibit "B" attached to this Sixth Amendment.
2
"Schedule 1.01(a), Collateral" attached to the Loan Agreement, as amended
by the Second, Third, Fourth, and Fifth Amendments, is hereby amended by
deleting the reference to Pledged Certificates of Deposit in subpart (b) at the
end of the section entitled "Tanknology-NDE International, Inc."
"Schedule 3.10, Collateral Documents" attached to the Loan Agreement, as
amended by the Fourth and Fifth Amendments, is hereby further amended by adding
the following information to the identified subpart:
3. Financing Statements:
Tanknology/NDE Corporation
FLORIDA: Secretary of State"
II. Conditions to the Effectiveness of the Sixth Amendment (Other than the
Increase in the Maximum Commitment Amount). As a condition to the effectiveness
of the Sixth Amendment, other than the increase in the Maximum Commitment,
Borrower has satisfied the following conditions:
A. Receipt of Amended and Restated Revolving Note, Sixth Amendment
Certificate of Compliance and other Security Documents. The Bank shall have
received the Amended and Restated Revolving Note (the form which is
attached hereto as Exhibit "A-1"), multiple counterparts of this Sixth
Amendment as requested by the Bank, the Compliance Certificate duly
executed by an authorized officer for each Borrower (the form of which is
attached hereto as Exhibit "B") and any other Security Documents Bank may
reasonably request.
B. Receipt of Certified Copy of Corporate Proceedings and Certificate
of Incumbency of Borrower. The Bank shall have received from each Borrower
copies of all resolutions of its board of directors with respect to the
transactions set forth in this Sixth Amendment and the execution of this
Sixth Amendment, such copy or copies to be certified by the Secretary or an
Assistant Secretary as being true and correct and in full force and effect
as of the date hereof. In addition, the Bank shall have received from each
Borrower a certificate of incumbency signed by the Secretary or an
Assistant Secretary setting forth (a) the names of the officers executing
this Sixth Amendment, (b) the office(s) to which such Persons have been
elected and in which they presently serve and (c) an original specimen
signature of each such person.
C. Facility Fee. As partial consideration for its agreement to the
terms of the Sixth Amendment, Bank shall have received $35,000.00 prior to
or contemporaneous with the execution of the Sixth Amendment.
3
D. Borrower's Opinion of Counsel. Bank shall have received from
counsel for Borrower a written opinion in form and substance satisfactory
to Bank covering the matters set forth on Exhibit "C" attached to the Sixth
Amendment.
E. Payment of Indebtedness. Bank shall have received written
authorization and wiring instructions (or other form of disbursement) for
the application of proceeds from the liquidation of the Certificate of
Deposit for the repayment of $3,000,000.00 of outstanding principal
indebtedness of Borrower evidenced by the Revolving Note, the Term Note or
outstanding principal due under the Subordinated Indebtedness.
III. Release of Collateral. Upon the satisfaction of all the foregoing
conditions precedent, Bank shall execute and deliver to Borrower a release and
termination of that certain Pledge of Certificate of Deposit dated May 20, 1997,
by and among NDE (then known as NDE Environmental Corporation) and Bank.
IV. Conditions to the Effectiveness of the Increase in the Maximum
Commitment Amount. As a condition to the effectiveness of the increase of the
Maximum Commitment, Borrower has satisfied the following conditions:
A. Receipt of the Certified Copy of Corporate Proceedings and
Certificate of Incumbency of DH Holdings. Bank shall have received from DH
Holdings Corp. ("DHH"), copies of all resolutions of their boards of
directors with respect to the transactions contemplated by the this Sixth
Amendment and the Second Amendment to the Intercreditor and Subordination
Agreement, such copy or copies to be certified by the Secretary or an
Assistant Secretary as being true and correct and in full force and effect
as of the date hereof. In addition, the Bank shall have received from DHH a
certificate of incumbency signed by the Secretary or an Assistant Secretary
setting forth (a) the names of the officers executing the Second Amendment
to the Intercreditor and Subordination Agreement, (b) the office(s) to
which such Persons have been elected and in which they presently serve and
(c) an original specimen signature of each such person.
B. Receipt of the Second Amendment to Intercreditor and Subordination
Agreement. Borrower, DHH and Bank shall have entered into a Second
Amendment to Intercreditor and Subordination Agreement in the form and
substance satisfactory to Bank.
C. Receipt of the Third Amended and Restated Standby Commitment.
Bank, Borrower and Proactive Partners, L.P. shall have entered into a Third
Amended and Restated Standby Commitment in the form and substance
satisfactory to Bank.
V. Written Notice to Borrower of Satisfaction of Conditions to Increase in
Maximum Commitment Amount. Upon the satisfaction of the conditions as set forth
in Article IV hereof and provided no Unmatured Event of Default or Event of
Default has occurred and is continuing, Bank shall contemporaneously provide a
letter of notice to Borrower stating "Bank One, Texas, N.A. is satisfied that
4
the conditions set forth in Article IV of the Sixth Amendment to that certain
Loan Agreement dated October 25, 1996, among the Bank and Tanknology-NDE
International, Inc. et al. have been fulfilled," whereupon the Maximum
Commitment Amount shall equal $12,500,000.00.
VI. Reaffirmation of Representations and Warranties. To induce Bank to
enter into this Sixth Amendment, Borrower hereby reaffirms, as of the date
hereof, its representations and warranties contained in Article IV of the Loan
Agreement, as amended, and in all other documents executed pursuant thereto, and
additionally represents and warrants as follows:
A. The execution and delivery of this Sixth Amendment and the
performance by Borrower of its obligations under this Sixth Amendment are
within the Borrower's corporate power, have received all necessary
governmental approval (if any shall be required), and do not and will not
contravene or conflict with any provision of law or of any agreement
binding upon the Borrower.
B. The Loan Agreement, as amended by this Sixth Amendment, represents
the legal, valid and binding obligations of Borrower, enforceable against
Borrower in accordance with its terms subject as to enforcement only to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and general
principles of equity.
C. No Event of Default or Unmatured Event of Default has occurred and
is continuing as of the date hereof.
VII. Defined Terms. Except as amended hereby, terms used herein that are
defined in the Loan Agreement shall have the same meanings herein.
VIII. Reaffirmation of Loan Agreement. This Sixth Amendment shall be deemed
to be an amendment to the Loan Agreement, and the Loan Agreement, as amended
hereby, is hereby ratified, approved and confirmed in each and every respect.
All references to the Loan Agreement herein and in any other document,
instrument, agreement or writing shall hereafter be deemed to refer to the Loan
Agreement as amended hereby.
IX. Entire Agreement. The Loan Agreement, as hereby amended, embodies the
entire agreement between Borrower and Bank, and supersedes all prior proposals,
agreements and understandings relating to the subject matter hereof. Borrower
certifies that it is relying on no representation, warranty, covenant or
agreement except for those set forth in the Loan Agreement as hereby amended and
the other documents previously executed or executed of even date herewith.
X. Governing Law. THIS SIXTH AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. This Sixth Amendment has been entered into in Xxxxxx
County, Texas, and it shall be performable for all purposes in Xxxxxx County,
5
Texas. Courts within the State of Texas shall have jurisdiction over any and all
disputes between Borrower and Bank, whether in law or equity, including, but not
limited to, any and all disputes arising out of or relating to this Sixth
Amendment or any other Loan Document; and venue in any such dispute whether in
federal or state court shall be laid in Xxxxxx County, Texas.
XI. Severability. Whenever possible each provision of this Sixth Amendment
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Sixth Amendment shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Sixth Amendment.
XII. Execution in Counterparts. This Sixth Amendment may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same agreement.
XIII. Section Captions. Section captions used in this Sixth Amendment are
for convenience of reference only, and shall not affect the construction of this
Sixth Amendment.
XIV. Successors and Assigns. This Sixth Amendment shall be binding upon the
Borrower and Bank and their respective successors and assigns, and shall inure
to the benefit of the Borrower and Bank, and the respective successors and
assigns of Bank.
XV. Non-Application of Chapter 346 of Texas Finance Code. The provisions of
Chapter 346 of the Texas Finance Code are specifically declared by the parties
hereto not to be applicable to the Loan Agreement as hereby amended or any of
the other Loan Documents or to the transactions contemplated hereby.
XVI. Notice. THIS SIXTH AMENDMENT TOGETHER WITH THE LOAN AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
6
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment to
be duly executed as of the day and year first above written.
BORROWER:
TANKNOLOGY-NDE INTERNATIONAL, INC.
(formerly known as NDE ENVIRONMENTAL
CORPORATION)
By:
Xxx Xxxxx Xxxxxxx
Chairman of the Board
TANKNOLOGY/NDE CORPORATION
By:
Xxx Xxxxx Xxxxxxx
Chairman of the Board
TANKNOLOGY-NDE CONSTRUCTION
SERVICES, INC.
By:
Xxx Xxxxx Xxxxxxx
Chairman of the Board
PROECO, INC.
By:
Xxx Xxxxx Xxxxxxx
Chairman of the Board
7
2368692 CANADA, INC. (formerly known as
TANKNOLOGY CANADA (1988) INC.)
By:
Xxx Xxxxx Xxxxxxx
President
OUTBOUND SERVICES, INC.
By:
Xxx Xxxxx Xxxxxxx
Chairman of the Board
BANK:
BANK ONE, TEXAS, N.A.
By:
Xxxx Xxxxxxx
Senior Vice President
8
EXHIBIT "A-1"
AMENDED AND RESTATED REVOLVING NOTE
$12,500,000.00 March 30, 1999
FOR VALUE RECEIVED, TANKNOLOGY-NDE INTERNATIONAL, INC. (formerly known as
NDE ENVIRONMENTAL CORPORATION) ("NDE"), a Delaware corporation, TANKNOLOGY/NDE
CORPORATION, a Delaware corporation, PROECO, INC., a Delaware corporation,
2368692 CANADA, INC. (formerly known as TANKNOLOGY CANADA (1988) INC.), a
Canadian federal corporation, TANKNOLOGY- NDE CONSTRUCTION SERVICES, INC., a
Delaware corporation, and OUTBOUND SERVICES, INC., a California corporation, all
of the foregoing having an address at 0000 Xxxxx Xxxxx, Xxxx. 000, Xxxxxx, Xxxxx
00000 (collectively, "Borrower") unconditionally promise to pay to the order of
BANK ONE, TEXAS, NATIONAL ASSOCIATION, (herein called "Bank"), at its offices at
000 Xxxxxx, Xxxxxxx, Xxxxx 00000, the principal sum of TWELVE MILLION FIVE
HUNDRED THOUSAND DOLLARS ($12,500,000.00) or, if less, the aggregate unpaid
principal amount of all Revolving Loans (as defined in the Loan Agreement) made
by the Bank to the Borrower pursuant to the Loan Agreement, as shown in the
records of the Bank, outstanding on such date.
The undersigned also promise to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Loan Agreement; provided,
however, that in no event shall such interest exceed the Maximum Rate (as
hereinafter defined).
"Maximum Rate" means the Maximum Rate of non-usurious interest permitted
from day to day by Applicable Law.
"Applicable Law" means that law in effect from time to time and applicable
to this Revolving Note which lawfully permits the charging and collection of the
highest permissible lawful, non-usurious rate of interest on this Revolving
Note. To the extent federal law permits Bank to contract for, charge or receive
a greater amount of interest, Bank will rely on federal law instead of the Texas
Finance Code for the purpose of determining the Maximum Rate. Additionally, to
the maximum extent permitted by applicable law now or hereafter in effect, Bank
may, at its option and from time to time, implement any other method of
computing the Maximum Rate under the Texas Finance Code or under other
applicable law, by giving notice, if required, to Borrower as provided by
--------------
Initial for
Identification
A-1
applicable law now or hereafter in effect. Notwithstanding anything to the
contrary contained herein or in any of the other Loan Documents, it is not the
intention of Bank to accelerate the maturity of any interest that has not
accrued at the time of such acceleration or to collect unearned interest at the
time of such acceleration.
In no event shall Chapter 346 of the Texas Finance Code (which regulates
certain revolving loan accounts and revolving tri-party accounts) apply to this
Note. To the extent that Chapter 303 of the Texas Finance Code is applicable to
this Note, the "weekly ceiling" specified in such Chapter 303 is the applicable
ceiling; provided that, if any applicable law permits greater interest, the law
permitting the greatest interest shall apply.
In no event shall the aggregate of the interest on this Note, plus any
other amounts paid in connection with the loan evidenced by this Note which
would under Applicable Law be deemed "interest," ever exceed the maximum amount
of interest which, under Applicable Law, could be lawfully charged on this Note.
The Bank and the Borrower specifically intend and agree to limit contractually
the interest payable on this Note to not more than an amount determined at the
Maximum Rate. Therefore, none of the terms of this Note or any other instruments
pertaining to or securing this Note shall ever be construed to create a contract
to pay interest at a rate in excess of the Maximum Rate, and neither the
Borrower nor any other party liable herefor shall ever be liable for interest in
excess of that determined at the Maximum Rate, and the provisions of this
paragraph shall control over all provisions of this Note or of any other
instruments pertaining to or securing this Note. If any amount of interest taken
or received by the Bank shall be in excess of the maximum amount of interest
which, under Applicable Law, could lawfully have been collected on this Note,
then the excess shall be deemed to have been the result of a mathematical error
by the parties hereto and shall be refunded promptly to the Borrower. All
amounts paid or agreed to be paid in connection with the indebtedness evidenced
by this Note which would under Applicable Law be deemed "interest" shall, to the
extent permitted by Applicable Law, be amortized, prorated, allocated and spread
throughout the full term of this Note.
This Note is the Revolving Note referred to in and is entitled to the
benefits of a certain Loan Agreement, dated as of October 25, 1996, as amended
by that First Amendment dated April 10, 1997, that Second Amendment dated May
20, 1997, that Third Amendment dated December 23, 1997, the Fourth Amendment
dated June 26, 1998, the Fifth Amendment dated November 5, 1998 and the Sixth
Amendment dated of even date herewith (as the same may be further amended,
modified, supplemented, extended, rearranged and/or restated from time to time,
the "Loan Agreement"), entered into by and among Tanknology-NDE International,
Inc., (f/k/a NDE Environmental Corporation) et al., as Borrower, and Bank One,
Texas, National Association and secured by the Collateral Documents (as such
term is defined in the Loan Agreement). Reference is hereby made to the Loan
Agreement for a statement of the prepayment rights and penalties and obligations
--------------
Initial for
Identification
A-2
of the Borrower, a description of the properties and assets mortgaged,
encumbered and assigned, the nature and extent of the security and the rights of
the parties to the Collateral Documents in respect of such security, and for a
statement of the terms and conditions under which the due date of this Note may
be accelerated. Upon the occurrence of any Event of Default as specified in the
Loan Agreement, the principal balance hereof and the interest accrued hereon may
be declared to be forthwith due and payable in accordance with the Loan
Agreement, and any indebtedness of the holder hereof to the Borrower may be
appropriated and applied hereon.
In addition to and not in limitation of the foregoing, the undersigned
further agrees, subject only to any limitation imposed by applicable law, to pay
all reasonable expenses, including reasonable attorneys' fees and legal
expenses, incurred by the holder of this Note in endeavoring to collect any
amounts payable hereunder which are not paid when due, whether by acceleration
or otherwise.
All parties hereto, whether as makers, endorsees, or otherwise, severally
waive presentment for payment, demand, protest, notice of intent to accelerate,
notice of acceleration and notice of dishonor.
This Note is issued in substitution for, and in replacement, modification,
rearrangement, renewal and extension of, but not in extinguishment of, the
outstanding principal indebtedness evidenced by that certain note of
Tanknology-NDE International, Inc. (f/k/a NDE Environmental Corporation),
Tanknology/NDE Corporation, ProEco, Inc., 2368692 Canada, Inc. (f/k/a/
Tanknology Canada (1988) Inc.) and Tanknology-NDE Construction Services, Inc.,
dated October 25, 1996, payable to the order of Bank One, Texas, N.A. in the
original principal sum of $5,000,000.00, as amended and restated by the Second,
Third, Fourth and Fifth Amendments (the "Prior Note"); it being acknowledged and
agreed by Borrower that the indebtedness evidenced by this Note consti tutes an
extension and renewal of the outstanding principal indebtedness evidenced by the
Prior Note, and that all security interests and other liens which secure the
repayment of the Prior Note shall continue to secure the indebtedness evidenced
by this Note.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE
OF TEXAS AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
A-3
EXECUTED this 30th day of March, 1999.
MAKER:
TANKNOLOGY-NDE INTERNATIONAL, INC.
(formerly known as NDE ENVIRONMENTAL
CORPORATION)
By:
Xxx Xxxxx Xxxxxxx
Chairman of the Board
TANKNOLOGY/NDE CORPORATION
By:
Xxx Xxxxx Xxxxxxx
Chairman of the Board
PROECO, INC.
By:
Xxx Xxxxx Xxxxxxx
Chairman of the Board
2368692 CANADA, INC. (formerly known as
TANKNOLOGY CANADA (1988) INC.)
By:
Xxx Xxxxx Xxxxxxx
President
A-4
TANKNOLOGY-NDE CONSTRUCTION
SERVICES, INC.
By:
Xxx Xxxxx Xxxxxxx
Chairman of the Board
OUTBOUND SERVICES, INC.
By:
Xxx Xxxxx Xxxxxxx
Chairman of the Board
A-5
EXHIBIT "B"
Compliance Certificate
I, ______________________, the _______________________ of TANKNOLOGY- NDE
INTERNATIONAL, INC. (the "Company"), pursuant to Section 5.05 of the Loan
Agreement dated as of October 25, 1996, as amended by the First Amendment dated
April 10, 1997, the Second Amendment dated May 20, 1997, the Third Amendment
dated December 23, 1997, the Fourth Amendment dated June 26, 1998, the Fifth
Amendment dated November 5, 1998 and the Sixth Amendment dated March 30, 1999 by
and among BANK ONE, TEXAS, N.A. ("Bank") and the Company et al. (the
"Agreement") do hereby certify, as of the date hereof, that to my knowledge:
1. No Event of Default (as defined in the Agreement) has occurred
and is continuing, and no Unmatured Event of Default (as defined
in the Agreement) has occurred and is continuing except for the
following events (include actions taken to cure such situations);
2. No material adverse change has occurred in the condition,
financial or otherwise, of the Company since ________________;
3. Except as otherwise stated in the Schedule, if any, attached
hereto, each of the representations and warranties of the Company
contained in Article IV of the Agreement is true and correct in
all respects; and
4. The Company's financial condition for the month ending __________
is as follows:
Financial Covenant Time Period Required Ratio Actual Ratio
================================ ============ ===================================================== ============================
(a) Adjusted Net Worth Term of Loan Not less than the Adjusted Net Worth as of 3/31/99,
which shall not be less than $4,000,000.00, and each
calendar quarter thereafter, increasing on an annual
basis by 70% of Borrower's annual Net Income (if
positive) beginning the year ending 12/31/99.
(b) Capital Expenditures Term of Loan Not more than $6,800,000 for fiscal 1998 and
$2,000,000 for each year thereafter.
(c) Debt Service Coverage Ratio Term of Loan Not less than 1.2 to 1.0
(d) Adjusted Liabilities to Term of Loan 9/30/98 - 3/31/99 not more than 2.25 to 1.0;
Adjusted Net Worth 4/1/99 - 6/30/99 not more than 2.00 to 1.0;
7/1/99 - 3/31/2000 not more than 1.75 to 1.0;
4/1/2000 - 9/30/2000 not more than 1.25 to 1.0;
and after 9/30/2000 not more than 1.0 to 1.0.
================================ ============ ===================================================== ============================
This certificate is executed this ___ day of ___________ 199__.
TANKNOLOGY-NDE INTERNATIONAL, INC.
By:
Its:
B-1
EXHIBIT "C"
Form of Opinion of Counsel for Borrower
Xxxxx & Xxxxx, L.L.P.
(1) The Borrower and the Subsidiaries are corporations duly organized,
existing, and in good standing under the Laws of their respective states of
incorporation [naming such states] and are qualified to transact business and
are in good standing in those states where the nature of business or property
owned by them requires qualification, as set forth in Schedule 4.01, attached
hereto and made a part hereof, and, to the knowledge of such counsel, are not
required to be qualified as a foreign corporation in any other jurisdiction;
(2) The Borrower has the power to execute and deliver this Sixth Amendment,
to borrow money hereunder, to grant the Collateral required hereunder, to
execute and deliver the Amended and Restated Revolving Note, and Collateral
Documents, and to perform its obligations hereunder and thereunder;
(3) All corporate actions by the Borrower and all consents and approvals of
any Persons necessary to the validity of this Sixth Amendment, the Amended and
Restated Revolving Note, the Collateral Documents, and each other document to be
delivered hereunder have been duly taken or obtained, and this Sixth Amendment,
Amended and Restated Revolving Note, and the Collateral Documents, and such
other documents do not conflict with any provision of the charter or by-laws of
the Borrower, or of any applicable Laws, or any other agreement binding the
Borrower or its property of which, after reasonable inquiry, such counsel has
knowledge; and
(4) This Sixth Amendment, the Amended and Restated Revolving Note, and
Collateral Documents to be delivered hereunder have been duly executed by, and
each is a valid and binding obligation of, the Borrower; each of the foregoing
documents is in all respects sufficient to achieve its purported function and is
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
creditors' rights generally or by general equitable principles.
C-1
