-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, R5HhkhU/eWAyB9/8RdpCiIPzbD+WwNa4ZuMpwvqxF7KW03VdTjr0FjND0VJGax91 jhHARezgHX5L/nQOAU3vXA== 0000950116-98-002205.txt : 19981116 0000950116-98-002205.hdr.sgml : 19981116 ACCESSION NUMBER: 0000950116-98-002205 CONFORMED SUBMISSION TYPE: 10QSB PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19980930 FILED AS OF DATE: 19981113 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ASTREX INC CENTRAL INDEX KEY: 0000008038 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-ELECTRONIC PARTS & EQUIPMENT, NEC [5065] IRS NUMBER: 131930803 STATE OF INCORPORATION: NY FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 10QSB SEC ACT: SEC FILE NUMBER: 001-04530 FILM NUMBER: 98747450 BUSINESS ADDRESS: STREET 1: 205 EXPRESS ST CITY: PLAINVIEW STATE: NY ZIP: 11803 BUSINESS PHONE: 5164331700 MAIL ADDRESS: STREET 1: 205 EXPRESS STREET CITY: PLAINVIEW STATE: NY ZIP: 11803 10QSB 1 U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-QSB (Mark One) [ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934. For the quarterly period ended September 30, 1998 ------------------------------------------------- OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ______________________to________________________ Commission file number 1-4530 ------ ASTREX, INC. (Exact name of small business issuer as specified in its charter) Delaware 13-1930803 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 205 Express Street, Plainview, New York 11803 (Address of principal executive offices) (516) 433-1700 (Issuer's telephone number, including area code) - -------------------------------------------------------------------------------- (Former name, former address and former fiscal year, if changed since last report) Check whether the issuer (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No --- --- APPLICABLE ONLY TO CORPORATE ISSUERS State the number of shares outstanding of each of the registrant's classes of common stock, as of the latest practicable date. As of November 9, 1998 common shares outstanding were 5,659,277. INDEX Page No. PART I: - ------- Financial Statements: Consolidated Balance Sheets September 30, 1998 (unaudited) and March 31, 1998 ............... 1 Consolidated Statements of Income (unaudited) Six months and three months ended September 30, 1998 and 1997 ... 2 Consolidated Statements of Cash Flows (unaudited) Six months ended September 30, 1998 and 1997 .................... 3 Notes to Consolidated Financial Statements (unaudited) .......... 4 Management's Discussion and Analysis or Plan of Operations ...............5-6 PART II: - -------- Other Information and Signatures ......................................... 7 PART I - Financial Information ASTREX, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS
September 30, 1998 March 31, 1998 (Unaudited) ------------------ -------------- (000) Omitted Current Assets: Cash $2 $2 Accounts receivable (net of allowance for doubtful accounts of $79 at June 30, 1998 and at March 31, 1998) 1,547 1,502 Inventory 3,514 3,383 Prepaid expenses and other current assets 110 62 -------- -------- Total current assets 5,173 4,949 Property, plant and equipment at cost (net of accumulated depreciation of $394 at September 30, 1998 and $349 at March 31, 1998) 732 772 Investments 350 50 -------- -------- Total Assets $6,255 $5,771 ======== ======== Current Liabilities: Accounts payable 759 985 Accrued liabilities 399 334 Current portion of capital lease obligation 48 48 -------- -------- Total current liabilities 1,206 1,367 -------- -------- Capital lease obligation 54 78 Loans payable 1,524 1,200 -------- -------- 2,784 2,645 Shareholders' Equity: Preferred Stock, Series A - issued, none - - Preferred Stock, Series B - issued, none - - Common Stock - par value $.01 per share; authorized, 15,000,000 shares; issued 6,572,863 shares at September 30, 1998 and issued 5,372,863 shares at March 31, 1998 66 54 Additional paid-in capital 3,908 3,620 Accumulated deficit (227) (269) -------- -------- 3,747 3,405 Less: treasury stock, at cost (913,586 shares) (265) (265) Less: deferred compensation (11) (14) -------- -------- Total shareholders' equity 3,471 3,126 -------- -------- Total liabilities and shareholders' equity $6,255 $5,771 ======== ========
See accompanying notes to unaudited consolidated financial statements. 1 ASTREX, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (Unaudited)
SIX MONTHS ENDED THREE MONTHS ENDED SEPTEMBER 30, SEPTEMBER 30, 1998 1997 1998 1997 -------------------------------------------- -------------------------------------------- (000) Omitted (000) Omitted Net sales $6,783 $7,787 $3,367 $3,824 Cost of sales 5,193 5,987 2,600 2,954 -------- -------- -------- -------- Gross profit 1,590 1,800 767 870 Selling, general and administrative expenses 1,481 1,487 748 721 -------- -------- -------- -------- Income from operations 109 313 19 149 Interest expense 57 65 30 27 -------- -------- -------- -------- Income before provision for income taxes 52 248 (11) 122 Provision for income taxes 11 11 6 4 -------- -------- -------- -------- Net income $41 $237 ($17) $118 ======== ======== ======== ======== Per share data for the three months ended September 30, 1998 and 1997 are as follows: Weighted average number of common shares outstanding: Basic 4,838,252 5,240,363 5,344,168 5,240,363 ========= ========= ========= ========= Diluted 4,970,752 5,375,363 5,476,668 5,375,363 ========= ========= ========= ========= Net income per share: Basic $0.01 $0.04 $0.00 $0.02 ========= ========= ========= ========= Diluted $0.01 $0.04 $0.00 $0.02 ========= ========= ========= =========
See accompanying notes to unaudited consolidated financial statements. 2 ASTREX, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
FOR THE SIX MONTHS ENDED SEPTEMBER 30, 1998 1997 -------------------------------------- (000) Omitted Cash Flows From Operating Activities: Net income $41 $237 Adjustments to reconcile net income to net cash (used in) provided by operating activities: Depreciation and amortization 45 51 Stock compensation 4 4 Changes in assets and liabilities: Increase in accounts receivable, net (45) (52) Increase in prepaid expenses and other current assets (49) (26) (Increase) decrease in inventory (132) 437 Decrease in accounts payable (226) (221) Increase (decrease) in accrued liabilities 67 (131) -------- --------- Net cash (used in) provided by operating activities (295) 299 -------- --------- Cash flows used in investing activities: L/T Investment (Enigma) (300) 0 Capital expenditures (5) (17) -------- --------- Net cash used in investing activities (305) (17) -------- --------- Cash flows from financing activities: Proceeds from Common Stock issuance 300 0 Principal payments under capital lease obligations (24) (21) Proceeds from (repayments of) loans payable, net 324 (226) -------- --------- Net cash provided by (used in) financing activities 600 (247) -------- --------- Net increase in cash for the three months ended September 30 0 35 Cash - beginning of period 2 2 -------- --------- Cash - end of period $2 $37 ======== ========
See accompanying notes to unaudited consolidated financial statements. 3 ASTREX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS UNAUDITED FINANCIAL STATEMENTS - ------------------------------ In the opinion of the Company, the accompanying unaudited consolidated financial statements contain all adjustments (consisting only of normal recurring accruals) necessary to present fairly its financial position as of September 30, 1998. The results of operations and cash flows for the six month period ended September 30, 1998 and 1997 are not necessarily indicative of the results to be expected for the full year. In the opinion of management, the information in this interim report for the six months ended September 30, 1998 and 1997 presents fairly the Company's financial position consistent with the Company's accounting practices and principles used in interim reports. Accordingly, certain items included in these statements are based upon best estimates, particularly cost of goods sold. For the six month and three month periods ended September 30, 1998 and 1997 these costs have principally been determined by utilizing perpetual inventory records. The calculation of the actual cost of goods sold amount is predicated upon a physical inventory taken only at the end of each fiscal year. As discussed in greater detail in Item 5 of Part II hereof, on July 20, 1998 the Company entered into an agreement to purchase an 8% equity interest in Enigma Energy Company, L.L.C. together with an option to purchase the remaining equity in that entity in late 1998 or early 1999. The Company funded the $300,000 purchase price through the private placement of 1,200,000 unregistered shares of it's Common Stock with its Chairman of the Board and members of his family at twenty-five cents per share. 4 ASTREX, INC. AND SUBSIDIARIES MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS RESULTS OF OPERATIONS Net income for the six months ended September 30, 1998 was approximately $41,000, a decrease of $196,000 from the same period last fiscal year. This decrease is principally the result of lower sales. Sales decreased by approximately $1,000,000, or 12.8%, for the six months and approximately $ 457,000 for the three months ended September 30, 1998, from the comparable six and three month period in 1997, respectively. This decrease is the result of generally weak market conditions along with the Company's decision not to continue accepting certain large low margin orders, as it had through its T.F. Cushing subsidiary, in the six month period ending September 30, 1997. Gross profit percentages remained constant at approximately 23% for the six months and three months ended September 30, 1998 from the comparable period in 1997. Selling, general and administrative expenses decreased slightly by approximately $6,000, or .4%, for the six months and increased by approximately $27,000 or 4% for the three months ended September 30, 1998 from the comparable previous six month and three month period in 1997, in spite of the decrease in sales and commission expense. This increase is primarily the result of additional expenses associated with the implementation and certification of ISO 9002 and marginal increases in selling and administrative salaries in the quarter ended September 30, 1998. ISO 9002 is a globally recognized certifiable series of standards for implementing and managing a quality system in order to ensure a quality product. The Company has made this investment to increase its marketability in both the United States and internationally. Interest expense decreased approximately $8,000 for the six months ended September 30, 1998 and increased $3,000 for the three months ended September 30, 1998, from the previous comparable six month and three month period in 1997. This decrease is due primarily to lower interest rates for the three months ended June 30, 1998, as a result of the new lending agreement dated July 9, 1997, as discussed further under "Liquidity and Capital Resources". The increase in the three month period from July 1 through September 30, 1998 from the prior comparible three month period in 1997 was primarily the result of an increase in borrowings due to the reduction in sales. 5 ASTREX, INC. AND SUBSIDIARIES MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS LIQUIDITY AND CAPITAL RESOURCES The Company used $324,000 in cash from its increased line of credit to purchase inventory and pay down accounts payable. At September 30, 1998, the Company had working capital of $3,967,000 and its stockholders' equity was $3,471,000. The Company believes that its present working capital, cash generated from operations and amounts available under the new loan agreement will be sufficient to meet its cash needs during the next year. The Company's principal credit facility is a line of credit ("Line") measured by its inventory and receivables and secured by substantially all of the Company's assets including a negative pledge of (i.e. that the Company will not otherwise mortgage to any other person) its Plainview office/warehouse facility. On September 30, 1998 the Company owed approximately $1,524,000 on the Line. On July 9, 1997, the Company changed its secured lender. The terms of the new secured lending arrangement (expiring in July 1999) were substantially the same as the previous arrangement except that (i) the lender is a commercial bank, and (ii) the interest rate is appreciably lower. The Company's relationship with its new and previous secured lenders is and was satisfactory. The change in secured lenders was voluntarily made by the Company in order to obtain a lower interest rate. On August 31, 1998 the Company amended its agreement dated July 9, 1997 to increase its maximum availability under its credit line, subject to sufficient supporting inventory and receivables, from $2,500,000 to $3,500,000. In addition, the Company lowered its interest rate by .5% and extended the agreement until July 7, 2000. The Company believes that the new secured lending arrangement will be adequate for the foreseeable future. As discussed in greater detail in Item 5 of Part II hereof, on July 20, 1998 the Company entered into an agreement with Enigma Energy Company, L.L.C. the funds for which were secured through a private placement of the Company's Common stock. Under the agreement the Company purchased an 8% equity interest in Enigma together with an option to purchase the remaining equity in that entity in late 1998 or early 1999. In order to have funds available to exercise that option, should it so elect, the Company is presently contemplating, among other considerations, a future, substantially non transferable, rights offering to be made solely to shareholders. OTHER MATTERS The Company has completed its assessment of its internal systems and has determined them to be year 2000 compliant. Currently, the Company's major suppliers are either year 2000 compliant or expect to be by April 1999. Management believes that the consequences of the change to the year 2000 should not have a material impact on the Company's ability to do business, results of operations, or financial condition. See "Cautionary Language Regarding Future Looking Statements" in Part II, Item 5 "Other Information". 6 PART II - OTHER INFORMATION Item 2 (c). Changes in Securities On July 15, 1998 the Company sold 1,200,000 unregistered shares of Common Stock through a private placement (pursuant to Section 4(2) of the Securities and Exchange Act of 1933) to its Chairman of the Board and members of his family at twenty-five cents per share or $300,000. If the Company does not make a rights offering of registered shares to substancially all shareholders on similar terms in 1998 then the Company will have the option of repurchasing those privately placed shares. ( This information was disclosed in Item 5 of the Company's June 30, 1998 Form 10-QSB.) Item 5. Other Information On July 20, 1998 the Company entered into an agreement with Enigma Energy Company, L.L.C. ("Enigma") and its members to purchase an 8% equity interest in Enigma with an option ("Option") to purchase the remaining equity interest in late 1998 or early 1999. While the Company has no prior experience in the oil and gas industry it believes that the industry at this time offers the Company a sound business opportunity and that Enigma may be a good entry vehicle. Enigma Energy Company L.L.C. is a closely held Dallas, Texas producer of natural gas and oil. It owns the working interests in several leases located in Panola County Texas, which include six producing wells, two `shut in' wells, and several potential well sites. In addition, it owns interests in two other producing wells. The purchase price for the 8% equity interest in Enigma and the Option was $300,000. These funds were secured by the Company through the sale of shares of its common stock in a private placement. The Option: The Option grants the Company the right to purchase the remaining 92% of Enigma during late 1998 or early 1999 after the Company has had an opportunity to further evaluate Enigma's properties. There can be no assurance at this time that the Company will in fact elect to exercise the Option and it is quite possible that it will not. If the Company elects to exercise the Option the exercise price will be $1,200,000 plus a "back-end" payment of the Company's Common Stock to be measured, valued and paid in the summer of 1999. Subject to adjustment the amount of shares to be paid in the summer of 1999 will equal $2,800,000 `adjusted book value'. However, depending upon an optional valuation of the Enigma properties in the summer of 1999 that amount could be reduced to as little as zero (i.e. no stock to be issued) or increase by as much as 15%. The net effect of this "back-end" payment could be to give Enigma equity holders (other then the Company) approximately 40% of the Company's then outstanding Common Stock. In order to have funds available to exercise the Option, should it so elect, the Company is presently contemplating, among other considerations, a future, substantially non transferable, rights offering to be made solely to shareholders. 7 If the Company elects to exercise the Option then to a significant extent it would also be in the business of finding and producing oil and natural gas. In that event it presently anticipates that this business and the Company's present business would be independently managed under the Board of Directors. Enigma's financial and corporate records would be maintained at the Company's Plainview headquarters but otherwise it would be anticipated that Enigma would continue under it's present management and contract well operator. In addition it would be anticipated that two or three present Enigma equity holders would join the Company's Board of Directors. If the Company elects not to exercise the Option, as may quite possibly be the case, it will continue to own the just purchased 8% equity interest in Enigma and to the extent any funds have been raised pursuant to a rights offering or otherwise, those funds will be retained for working capital purposes, including future possible acquisitions. The Private Placement: The Company funded the $300,000 purchase price through the private placement of 1,200,000 unregistered shares of it's Common Stock with it's Chairman of the Board and members of his family at twenty-five cents per share. If the Company does not make a rights offering of registered shares to substantially all shareholders on similar terms in November 1998 then the Company will have the option of repurchasing those privately placed shares. Cautionary Language Regarding Future Looking Statements. This Item 5 and 'Management's Discussion and Analysis or Plan of Operations' earlier herein contains forward looking statements that involve risks and uncertainties, including those relating to a future Company decision or ability to (or not to) exercise the Option, to commence or complete a rights offering, or to repurchase the stock sold in the private placement and those relating to the value of Enigma's oil and gas properties or future drilling of and production from the same or to be year 2000 compliant. Other potential risks and uncertainties include, among others, the competitive nature of the Company's current business, the risks of, the sometime speculative nature of, and the competetive nature of the oil and gas business and the facts that if the Company elects not to exercise the Option it will hold only a minority interest in Enigma, a closely-held, non-publicly traded limited liability company and if the Company elects to exercise the Option it will be entering a business in which it has no prior experience. More information about some of the many potential factors which could affect the Company's business and financial results is included in the Company's Annual Report on Form 10-KSB for the year ended March 31, 1998, including (without limitation) under the captions "Description of Business", "Description of Property" and "Management's Discussion and Analysis or Plan of Operation," which is on file with the Securities and Exchange Commission (http://www.sec.gov). 8 Item 6. Exhibits and Reports on Form 8-K. (A) Exhibits --------
Previously Filed and Incorporated Exhibit Description by reference or Filed Herewith - ------- ----------- ------------------------------ 3 (a) Certificate of Incorporation of Astrex, Inc., as amended Filed as Exhibit 3(a) to the Form (a Delaware corporation) 10-QSB of the Company for the quarter ended September 30, 1997 3 (b) By-Laws of Astrex, Inc., as amended Filed as Exhibit 3(b) to the Form 10-QSB of the Company for the quarter ended September 30, 1996 10(a) Purchase and Option Agreement between Astrex, Inc., Enigma Filed as Exhibit 10(a) to the Form Energy Company and Members dated June 6, 1998 10-QSB of the Company for the quarter ended June 30, 1998 10(b) Subscription and Stock Purchase Agreement between Astrex, Filed as Exhibit 10(b) to the Form Inc. and John C. and Elizabeth S. Loring dated July 15, 1998 10-QSB of the Company for the quarter ended June 30, 1998 10(c) Amended and Restated Revolving Credit Promissory Note Filed herewith between Astrex,Inc. and Fleet National Bank dated August 31, 1998 10(d) Amendment No. 1 to Credit and Security Agreement between Filed herewith Astrex, Inc. and Fleet National Bank dated August 31, 1998 10(e) Guaranty Confirmation Agreement between T.F. Cushing, Inc. Filed herewith and Avest, Inc. and Fleet National Bank dated August 31, 1998 27 Financial Data Schedule Filed herewith
(B) Reports on Form 8-K: None 9 SIGNATURES In accordance with the requirements of Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf, thereunto duly authorized. ASTREX, INC. Date: November 10, 1998 By: s/ Michael McGuire ------------------ ------------------ Michael McGuire Director, President and Chief Executive Officer CHIEF FINANCIAL OFFICER OF ASTREX, INC. Date: November 10, 1998 s/ Lori A. Sarnataro ------------------ ------------------------- Lori A. Sarnataro Chief Financial Officer 10 EX-10.C 2 EXHIBIT 10(C) EXHIBIT 10(c) ------------- AMENDED AND RESTATED REVOLVING CREDIT PROMISSORY NOTE $3,500,000.00 Stamford, Connecticut August 13, 1998 FOR VALUE RECEIVED, ASTREX, INC., a Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to the order of Fleet National Bank (the "Lender" or "Bank"), at the office of the Lender located at One Landmark Square, Stamford, Connecticut, or such other office as the holder hereof may designate, in lawful money of the United States and in immediately available funds, the principal sum of Three Million Five Hundred Thousand Dollars ($3,500,000.00) or, if less, the aggregate unpaid amount of all Revolving Credit Loans (as defined in the Credit and Security Agreement referred to below) made by the Lender to the Borrower pursuant to the Credit and Security Agreement, together with interest thereon as provided for below. All capitalized terms unless defined herein shall have the meanings assigned to them in the Credit and Security Agreement. 1. Payment of Principal. Borrower shall pay the outstanding principal balance of each Revolving Credit Loan in full on the Revolving Credit Maturity Date. 2. Interest Rate; Payment of Interest. Borrower shall pay interest on the aggregate unpaid principal balance of the Revolving Credit Loans outstanding from time to time at the applicable rate or rates set forth in Credit and Security Agreement, dated July 9, 1997 between the Borrower, T.F. Cushing, Inc. and the Lender, as amended, supplemented or otherwise modified from time to time (the "Credit and Security Agreement"). Interest shall be payable, in arrears, and on each Revolving Credit Interest Payment Date and shall also be payable on the Revolving Credit Maturity Date. Anything contained in this Note to the contrary notwithstanding, during any period in which an Event of Default is continuing, the interest rate hereunder shall, at the option of the Lender, be increased to the Revolving Credit Default Rate, and all interest accruing at such rate shall be payable upon demand by the Lender. Interest shall commence to accrue on the date hereof and shall continue to accrue until all principal hereof is paid in full (whether before or after maturity or judgment). Interest under this Note shall be computed on the basis of a year of three hundred sixty (360) days and the actual number of days elapsed. 3. Optional and Mandatory Prepayments. Optional and mandatory prepayments of the Revolving Credit Loans shall be made in accordance with Section 1.7 of the Credit and Security Agreement. 4. Expenses. Borrower shall pay or reimburse the Lender, on demand, for all costs and expenses, including, but not limited to, the reasonable fees and disbursements of legal counsel, appraisers, accountants and other experts employed by the Lender, incurred in the administration, preservation, defense, protection, or collection or other enforcement of this Note or in foreclosing or otherwise enforcing any security interest securing the payment of this Note or in sustaining or protecting the lien or priority of any such security interest, or in attempting to do any of the foregoing. -2- 5. Credit and Security Agreement; Lender's Records. This Note evidences Revolving Credit Loans under, and has been executed and delivered by the Borrower in accordance with, the terms and conditions of the Credit and Security Agreement, which Credit and Security Agreement, among other things, contains provisions with respect to prepayment (optional and mandatory), and the acceleration of the unpaid principal of, and accrued and unpaid interest on the Revolving Credit Loans upon the occurrence and at any time during the continuance of any Event of Default. The Lender is entitled to the benefits of the Credit and Security Agreement and the other Financing Documents and may enforce the covenants and other agreements of the Borrower contained therein, and the Lender may exercise the respective rights, remedies and powers provided for thereby or otherwise available in respect thereof, all in accordance with the respective terms thereof. The records of the Lender shall be prima facie evidence of the Revolving Credit Loans, any accrued interest thereon and all principal and interest payments made in respect thereof; provided, that no failure of the Lender to timely record any transaction, or any error therein, shall in any way affect or impair any liability or other obligation of the Borrower to the Lender. 6. Certain Waivers. Borrower and any indorser hereof or any other party hereto or any guarantor hereof (collectively, the "Obligors") and each of them (i) waive(s) presentment, diligence, protest, demand, notice of demand, notice of acceptance or reliance, notice of non-payment, notice of dishonor, notice of protest and all other notices to parties in connection with the delivery, acceptance, performance, default or enforcement of this Note, any indorsement or guaranty of this Note, or any collateral or other security; (ii) consent(s) to any and all delays, extensions, renewals or other modifications of this Note, any other Financing Document or the debt(s) or collateral evidenced hereby or thereby or any waivers of any term hereof or thereof, any release, surrender, taking of additional, substitution, exchange, failure to perfect or record any interest in, failure to preserve or realize upon, failure to lawfully dispose of, or any other impairment of, any collateral or other security, or any other failure to act by the Lender or any other forbearance or indulgence shown by the Lender, from time to time and in one or more instances (without notice to or assent from any of the Obligors) and agree(s) that none of the foregoing shall release, discharge or otherwise impair any of their liabilities; (iii) agree(s) that the full or partial release or discharge of any Obligor(s) shall not release, discharge or otherwise impair the liabilities of any other Obligor(s); and (iv) waive(s) any defenses based on suretyship or impairment of collateral. 7 Commercial Transaction; Jury Waiver. (a) THE BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A "COMMERCIAL TRANSACTION" WITHIN THE MEANING OF CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, AND THAT ANY MONIES, PROPERTY OR SERVICES WHICH ARE THE SUBJECT OF SUCH TRANSACTION ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES. THE BORROWER HEREBY WAIVES ANY RIGHT WHICH BORROWER MIGHT HAVE TO A NOTICE AND A HEARING, UNDER SECTIONS 52-278a-52-278g, INCLUSIVE, OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, OR OTHER APPLICABLE FEDERAL OR STATE LAW, IN THE EVENT THE LENDER (OR ITS SUCCESSORS OR ASSIGNS) SEEKS ANY PREJUDGMENT REMEDY IN CONNECTION WITH THIS NOTE, THE CREDIT AND SECURITY AGREEMENT OR ANY OTHER FINANCING DOCUMENT. -3- (b) THE BORROWER HEREBY KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY AND THE RIGHT THERETO IN ANY ACTION OR PROCEEDING OF ANY KIND, ARISING UNDER OR OUT OF, OR OTHERWISE RELATED TO OR OTHERWISE CONNECTED WITH THIS NOTE OR ANY OTHER FINANCING DOCUMENT. 8. Binding Nature. This Note shall bind the Borrower and Borrower's successors and assigns and shall inure to the benefit of the Lender and its successors and assigns. The term "Lender" as used herein shall include, in addition to the Lender, any successors, indorsees, or other assignees of Lender and shall also include any other holder of this Note. Any transferee of this Note shall have the rights of a holder in due course under Article 3 of the Connecticut Uniform Commercial Code if the transferee took rights under this Note in good faith for value and without notice of a claim or defense. 9. Governing Law. This Note shall be governed by, and construed and interpreted in accordance with the laws the State of Connecticut, without regard to its rules pertaining to conflicts of laws thereunder. 10. Amended and Restated Note. This Note (i) amends and restates the Revolving Credit Promissory Note, dated July 9, 1997, from the Borrower to the Lender (the "Existing Note"), (ii) evidences, in addition to any Revolving Credit Loans made by the Lender on or after the date hereof, any Revolving Credit Loans outstanding as of the date hereof and previously evidenced by the Existing Note and (iii) and is a modification with respect to, and does not constitute a novation of, any such outstanding Revolving Credit Loans. Anything contained herein to the contrary notwithstanding, and in addition to, and not in limitation of, any other obligations of the Borrower hereunder, the Borrower shall pay to the Lender in accordance with the Credit and Security Agreement any unpaid interest which has accrued under the Existing Note, as of the date hereof, on any outstanding Revolving Credit Loans. -4- IN WITNESS WHEREOF, the Borrower has executed and delivered this Note as of the day and year first written above. WITNESS: ASTREX, INC. /s/ Lori A. Sarnataro By: /s/ Michael McGuire - ------------------------ ---------------------------- Name: Lori A. Sarnataro Name: Michael McGuire Title: President EX-10.D 3 EXHIBIT 10(D) EXHIBIT 10(d) AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT AMENDMENT NO. 1 to CREDIT AND SECURITY AGREEMENT, dated as of August 31, 1998, by and between ASTREX, INC. ("Borrower") T.F. CUSHING, INC ("TFCI") and FLEET NATIONAL BANK (the "Lender" or "Bank"). WITNESSETH: WHEREAS, the Borrower, TFCI and the Bank executed and delivered a certain Credit and Security Agreement, dated as of July 9, 1997 (the "Credit Agreement"); and WHEREAS, the Credit Agreement provides for, among other things, a $2,500,000 revolving credit facility; and WHEREAS, the Borrower and if TFCI have requested that the Lender increase the amount of such revolving credit facility from $2.5 million to $3.5 million; and WHEREAS, the Borrower has also requested that (i) the pricing on the LIBOR Revolving Credit Portions under the Credit Agreement be decreased from the LIBOR Rate plus two percent per annum to the LIBOR Rate plus one and one-half percent per annum and (ii) the Revolving Credit Maturity Date and Revolving Credit Loan Termination Date be extended from July 9, 1999 to July 7, 2000; and WHEREAS, the Lender has agreed to such request provided that, among other conditions precedent, (a) (i) the Borrower and TFCI execute and deliver (i) this Amendment No. 1, and (ii) the Borrower executes and delivers a $3,500,000 Amended and Restated Revolving Credit Promissory Note in the form of Exhibit A attached hereto and hereby made a part hereof (the "1998 Note") and (b) TFCI and Avest (as defined in the Credit Agreement) execute and deliver a Guaranty Confirmation Agreement. NOW THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower and the Lender hereby agree as follows: -2- PART I. AMENDMENTS TO THE CREDIT AGREEMENT Section 1. Section 1.3 of the Credit Agreement is hereby amended by deleting the phrase "revolving credit promissory note" and inserting in lieu thereof the phrase "amended and restated revolving credit promissory note". Section 2. Section 1.4 of the Credit Agreement is hereby amended by deleting the phrase "(ii) two percent (2%) (i.e., 200 basis points)" and inserting in lieu thereof the phrase "(ii) one and one-half percent (1 1/2%) (i.e., 150 basis points)". Section 3. Sections 2.3 and 2.4 of the Credit Agreement are hereby amended by deleting the date "March 31, 1997" and inserting in lieu thereof the date "March 31, 1998". Section 4. (a) Section 3.2(a) of the Credit Agreement is hereby clarified by adding a closed parenthesis at the end of the first sentence thereof. (b) Section 8.5(a) of the Credit Agreement is hereby clarified by deleting the word "not" in the fourth line thereof. Section 5. Section 8.6 of the Credit Agreement is hereby amended by deleting the phrase "Attention: Irene Marcic" and inserting in lieu thereof the phrase "Attention: Michael McGuire". Section 6. The definition of the term Borrowing Base contained in Appendix A to the Credit Agreement is hereby amended by deleting the phrase "Exhibit C" and inserting in lieu thereof the phrase "Exhibit B". Section 7. The definition of the term "Financial Statements" in such Appendix A is hereby amended and restated to read in its entirety as follows: "Financial Statements": the consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 1997 and the related statements of operations, stockholder's equity and cash flows of the Borrower and such Subsidiaries for the fiscal year then ended, and the accompanying footnotes together with the report thereon, dated the date thereof, by KPMG Peat Marwick LLP, independent public accountants, and the consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 1998 and the related statements of operations, stockholder's equity and cash flows of the Borrower and such Subsidiaries for the fiscal year then ended, and the accompanying footnotes together with the report thereon, dated the date thereof, by KPMG Peat Marwick LLP, independent public accountants. -3- Section 8. The definition of the term "Liabilities" contained in such Appendix A is hereby and restated to read in its entirety as follows: "Liabilities": as of any date, shall mean, without duplication, (i) all indebtedness, obligations and liabilities of the Borrower and/or its Subsidiaries which would be reflected as liabilities on a balance sheet, as of such date, of the Borrower and/or any of its Subsidiaries and prepared in accordance with GAAP, or would be noted or presented in any footnote thereto, and including without limitation any Indebtedness of the Borrower or any of its Subsidiaries and (ii) all obligations, indebtedness and other liabilities of any other Person secured by any Lien on any assets or other properties of the Borrower and/or any of its Subsidiaries. Section 9. The definition of the term "Receivables" in such Appendix A is hereby clarified by deleting the word "Borrower" each time it appears and inserting in lieu thereof (in each such instance) the phrase "Borrower or TFCI, as the case may be" Section 10. The definition of the term "Revolving Credit Loan" and "Revolving Credit Loans" in such Appendix A is hereby clarified by deleting the phrase "Libor Loans and Prime Rate Loans made pursuant to the Credit Agreement" and inserting in lieu thereof "any and all Loans consisting of part of the Prime Rate Revolving Credit Portion or part of the LIBOR Revolving Credit Portion". Section 11. The definition of the term "Revolving Credit Loan Termination Date" is hereby amended by deleting the date "July 9, 1999" and inserting in lieu thereof the date "July 7, 2000". Section 12. The definition of the term "Revolving Credit Maturity Date" is hereby amended by deleting the date "July 9, 1999" and inserting in lieu thereof the date "July 7, 2000". Section 13. The definition of the term Revolving Credit Maximum Amount in such Appendix A is hereby amended by deleting the phrase "(i) Two Million Five Hundred Thousand Dollars ($2,500,000) or" and inserting in lieu thereof the phrase "(i) Three Million Five Hundred Thousand Dollars ($3,500,000) or". Section 14. Exhibit A to the Credit Agreement is hereby amended and restated to read in its entirety as set forth in Exhibit A attached hereto and made a part hereof and Exhibit A attached hereto shall be and become, for all purposes, Exhibit A to the Credit Agreement. -4- PART II. CONDITIONS PRECEDENT ----------------------------- Section 15. The Lender's agreement to enter into the amendments set forth in this Amendment is contingent upon the following conditions precedent being satisfied by the Borrower: (a) The Borrower and TFCI shall execute and deliver this Amendment the Borrower shall execute and deliver the 1998 Note and the Borrower and TFCI shall execute and deliver such other documents as the Bank may reasonably require. (b) TFCI and Avest shall execute and deliver a Guaranty Confirmation Agreement in form and substance reasonably satisfactory to the Lender. (c) Each of the Borrower and TFCI shall cause the delivery of a certificate of its corporate secretary or assistant secretary (i) certifying (and attaching) resolutions adopted by its Board of Directors authorizing the execution, delivery and performance of this Amendment, the 1998 Note (in the case of the Borrower) and all related documentation, (ii) certifying that no amendments have been made to the Borrower's or TFCI, as the case may be, certificate of incorporation or by-laws (or, if such changes have been made, attaching copies of the relevant amendment documents), and (iii) certifying as to the incumbency (and signature) of any officer of the Borrower or TFCI's, as the case may be, which executes and delivers this Amendment or (in the case of the Borrower) the 1998 Note. (e) UCC search reports are delivered to the Bank with respect to filings made against the Borrower or TFCI and good standing certificates with respect to the Borrower and TFCI are delivered to the Bank. (f) The Borrower shall pay the fees and disbursements of the Lender's legal counsel incurred in connection with this Amendment and any related documents and matters. PART III. MISCELLANEOUS ----------------------- Section 16. Pursuant to Section 1.3 of the Credit Agreement and the amendments set forth above, any reference to the term "Note" in the Credit Agreement shall mean the 1998 Note as it may be extended or otherwise amended, supplemented, or modified from time to time and also any notes (if any) given in extension, renewal, or substitution of the 1998 Note. -5- Section 17. Except as amended hereby, the Credit Agreement as originally constituted shall remain in full force and effect. Section 18. Each of the Borrower and TFCI hereby represents and warrants and covenants to the Lender that: (i) The execution, delivery and performance by the Borrower and TFCI of this Amendment, the 1998 Note (in the case of the Borrower) and any related documents have been duly authorized by all necessary corporate action on the part of the Borrower or TFCI, as the case may be, and do not violate, conflict with, or result in a breach of the certificate of incorporation or by-laws of Borrower or TFCI, as the case may be, or any agreement or instrument or court order or judgment to which Borrower or TFCI, as the case may be, is a party or which is binding upon Borrower or TFCI, as the case may be, or any of their properties. This Amendment, the 1998 Note and any related documents to which the Borrower or TFCI is a party are the respective legal, valid and binding obligations of the Borrower, or TFCI, as the case may be, enforceable in accordance with their respective terms. (ii) The Credit Agreement as amended hereby and all other Financing Documents (as defined in the Credit Agreement) to which the Borrower or TFCI, as the case may be, is a party are the respective legal, valid and binding obligations of the Borrower or TFCI, as the case may be, enforceable in accordance with their respective terms. (iii) The security interests granted by the Borrower and TFCI, pursuant to the Credit Agreement, in the Collateral (as defined in the Credit Agreement) remain in full force and effect and secure the payment and performance of all Secured Obligations (as defined in the Credit Agreement). (iv) Neither the Borrower nor TFCI, as of the date hereof, has any claim, defense, counterclaim, or right of offset against the Lender, whether relating to the Credit Agreement or otherwise. (v) All representations and warranties of the Borrower or TFCI, as the case may be, under the Credit Agreement and the other Financing Documents to which it is a party are true and correct as of the date hereof. Section 19. This Amendment (i) may be executed in any number of counterparts, each of which shall be deemed to be an original but all of which together shall be considered one instrument and (ii) shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. -6- Section 20. This Amendment shall be construed in accordance with and governed by the laws of the State of Connecticut. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the day and year first above written. ASTREX INC. By: /s/ Michael McGuire -------------------------------- Name: Michael McGuire Title: President T.F. CUSHING, INC. By: /s/ Michael McGuire -------------------------------- Name: Michael McGuire Title: President FLEET NATIONAL BANK By: /s/Anthony McKiernan -------------------------------- Name: Anthony McKiernan Title: Vice-President Amendment no.1 to Credit And Security Agreement EXHIBIT A AMENDED AND RESTATED REVOLVING CREDIT PROMISSORY NOTE $3,500,000.00 Stamford, Connecticut August 13, 1998 FOR VALUE RECEIVED, ASTREX, INC., a Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to the order of Fleet National Bank (the "Lender" or "Bank"), at the office of the Lender located at One Landmark Square, Stamford, Connecticut, or such other office as the holder hereof may designate, in lawful money of the United States and in immediately available funds, the principal sum of Three Million Five Hundred Thousand Dollars ($3,500,000.00) or, if less, the aggregate unpaid amount of all Revolving Credit Loans (as defined in the Credit and Security Agreement referred to below) made by the Lender to the Borrower pursuant to the Credit and Security Agreement, together with interest thereon as provided for below. All capitalized terms unless defined herein shall have the meanings assigned to them in the Credit and Security Agreement. 1. Payment of Principal. Borrower shall pay the outstanding principal balance of each Revolving Credit Loan in full on the Revolving Credit Maturity Date. 2. Interest Rate; Payment of Interest. Borrower shall pay interest on the aggregate unpaid principal balance of the Revolving Credit Loans outstanding from time to time at the applicable rate or rates set forth in Credit and Security Agreement, dated July 9, 1997 between the Borrower, T.F. Cushing, Inc. and the Lender, as amended, supplemented or otherwise modified from time to time (the "Credit and Security Agreement"). Interest shall be payable, in arrears, and on each Revolving Credit Interest Payment Date and shall also be payable on the Revolving Credit Maturity Date. Anything contained in this Note to the contrary notwithstanding, during any period in which an Event of Default is continuing, the interest rate hereunder shall, at the option of the Lender, be increased to the Revolving Credit Default Rate, and all interest accruing at such rate shall be payable upon demand by the Lender. Interest shall commence to accrue on the date hereof and shall continue to accrue until all principal hereof is paid in full (whether before or after maturity or judgment). Interest under this Note shall be computed on the basis of a year of three hundred sixty (360) days and the actual number of days elapsed. 3. Optional and Mandatory Prepayments. Optional and mandatory prepayments of the Revolving Credit Loans shall be made in accordance with Section 1.7 of the Credit and Security Agreement. -2- 4. Expenses. Borrower shall pay or reimburse the Lender, on demand, for all costs and expenses, including, but not limited to, the reasonable fees and disbursements of legal counsel, appraisers, accountants and other experts employed by the Lender, incurred in the administration, preservation, defense, protection, or collection or other enforcement of this Note or in foreclosing or otherwise enforcing any security interest securing the payment of this Note or in sustaining or protecting the lien or priority of any such security interest, or in attempting to do any of the foregoing. 5. Credit and Security Agreement; Lender's Records. This Note evidences Revolving Credit Loans under, and has been executed and delivered by the Borrower in accordance with, the terms and conditions of the Credit and Security Agreement, which Credit and Security Agreement, among other things, contains provisions with respect to prepayment (optional and mandatory), and the acceleration of the unpaid principal of, and accrued and unpaid interest on the Revolving Credit Loans upon the occurrence and at any time during the continuance of any Event of Default. The Lender is entitled to the benefits of the Credit and Security Agreement and the other Financing Documents and may enforce the covenants and other agreements of the Borrower contained therein, and the Lender may exercise the respective rights, remedies and powers provided for thereby or otherwise available in respect thereof, all in accordance with the respective terms thereof. The records of the Lender shall be prima facie evidence of the Revolving Credit Loans, any accrued interest thereon and all principal and interest payments made in respect thereof; provided, that no failure of the Lender to timely record any transaction, or any error therein, shall in any way affect or impair any liability or other obligation of the Borrower to the Lender. 6. Certain Waivers. Borrower and any indorser hereof or any other party hereto or any guarantor hereof (collectively, the "Obligors") and each of them (i) waive(s) presentment, diligence, protest, demand, notice of demand, notice of acceptance or reliance, notice of non-payment, notice of dishonor, notice of protest and all other notices to parties in connection with the delivery, acceptance, performance, default or enforcement of this Note, any indorsement or guaranty of this Note, or any collateral or other security; (ii) consent(s) to any and all delays, extensions, renewals or other modifications of this Note, any other Financing Document or the debt(s) or collateral evidenced hereby or thereby or any waivers of any term hereof or thereof, any release, surrender, taking of additional, substitution, exchange, failure to perfect or record any interest in, failure to preserve or realize upon, failure to lawfully dispose of, or any other impairment of, any collateral or other security, or any other failure to act by the Lender or any other forbearance or indulgence shown by the Lender, from time to time and in one or more instances (without notice to or assent from any of the Obligors) and agree(s) that none of the foregoing shall release, discharge or otherwise impair any of their liabilities; (iii) agree(s) that the full or partial release or discharge of any Obligor(s) shall not release, discharge or otherwise impair the liabilities of any other Obligor(s); and (iv) waive(s) any defenses based on suretyship or impairment of collateral. 7 Commercial Transaction; Jury Waiver. (a) THE BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A "COMMERCIAL TRANSACTION" WITHIN THE MEANING OF CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, AND THAT ANY MONIES, PROPERTY OR SERVICES WHICH ARE THE SUBJECT OF SUCH TRANSACTION ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES. THE BORROWER HEREBY WAIVES ANY RIGHT WHICH BORROWER MIGHT HAVE TO A NOTICE AND A HEARING, UNDER SECTIONS 52-278a-52-278g, INCLUSIVE, OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, OR OTHER APPLICABLE FEDERAL OR STATE LAW, IN THE EVENT THE LENDER (OR ITS SUCCESSORS OR ASSIGNS) SEEKS ANY PREJUDGMENT REMEDY IN CONNECTION WITH THIS NOTE, THE CREDIT AND SECURITY AGREEMENT OR ANY OTHER FINANCING DOCUMENT. -3- (b) THE BORROWER HEREBY KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY AND THE RIGHT THERETO IN ANY ACTION OR PROCEEDING OF ANY KIND, ARISING UNDER OR OUT OF, OR OTHERWISE RELATED TO OR OTHERWISE CONNECTED WITH THIS NOTE OR ANY OTHER FINANCING DOCUMENT. 8. Binding Nature. This Note shall bind the Borrower and Borrower's successors and assigns and shall inure to the benefit of the Lender and its successors and assigns. The term "Lender" as used herein shall include, in addition to the Lender, any successors, indorsees, or other assignees of Lender and shall also include any other holder of this Note. Any transferee of this Note shall have the rights of a holder in due course under Article 3 of the Connecticut Uniform Commercial Code if the transferee took rights under this Note in good faith for value and without notice of a claim or defense. 9. Governing Law. This Note shall be governed by, and construed and interpreted in accordance with the laws the State of Connecticut, without regard to its rules pertaining to conflicts of laws thereunder. 10. Amended and Restated Note. This Note (i) amends and restates the Revolving Credit Promissory Note, dated July 9, 1997, from the Borrower to the Lender (the "Existing Note"), (ii) evidences, in addition to any Revolving Credit Loans made by the Lender on or after the date hereof, any Revolving Credit Loans outstanding as of the date hereof and previously evidenced by the Existing Note and (iii) and is a modification with respect to, and does not constitute a novation of, any such outstanding Revolving Credit Loans. Anything contained herein to the contrary notwithstanding, and in addition to, and not in limitation of, any other obligations of the Borrower hereunder, the Borrower shall pay to the Lender in accordance with the Credit and Security Agreement any unpaid interest which has accrued under the Existing Note, as of the date hereof, on any outstanding Revolving Credit Loans. -4- IN WITNESS WHEREOF, the Borrower has executed and delivered this Note as of the day and year first written above. WITNESS: ASTREX, INC. /s/ Lori A. Sarnataro By: /s/ Michael McGuire - ------------------------------ ------------------------------- Name: Lori A. Sarnataro Name: Michael McGuire Title: President EX-10 4 EXHIBIT 10 (E) EXHIBIT 10 (e) GUARANTY CONFIRMATION AGREEMENT AGREEMENT, dated as of August 31, 1998, by and between T.F. CUSHING, INC. and AVEST, INC. (each a "Guarantor" and collectively the "Guarantors") and FLEET NATIONAL BANK (the "Bank"). R E C I T A L S Each Guarantor executed and delivered to the Bank a Guaranty Agreement, dated as of July 9, 1997 (each, a "Guaranty") pursuant to which each Guarantor absolutely and unconditionally guaranteed to the Bank the full and prompt payment and performance when due of the "Guaranteed Obligations" of ASTREX INC. (the "Borrower") to the Bank, all as set forth in more detail therein. The Bank, T.F. Cushing, Inc. and the Borrower desire to enter into a certain Amendment No. 1 dated of even or substantially even date herewith. Each Guarantor shall derive substantial benefits, financial and otherwise, from the execution and delivery of such Amendment No. 1 and any agreement or instrument executed in connection therewith (including without limitation any and all amended and restated notes). The Bank is only willing to enter into such Amendment No. 1 if, among other things, each Guarantor executes and delivers this Agreement. NOW, THEREFORE, in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency which are hereby acknowledged, and to induce the granting of any further credit by the Bank to the Borrower, the parties hereto hereby agree as follows: 1. Each Guarantor hereby represents, warrants, confirms and covenants to the bank that (i) its Guaranty remains in full force and effect, (ii) its Guaranty remains legal, valid and binding obligation of such Guarantor, enforceable in accordance with its terms, (iii) such Guarantor has no claims, counterclaims, defenses or offsets against the Bank, whether relating to its Guaranty or otherwise and (iv) pursuant to the provisions of the Guaranty of such Guarantor, the obligations of the Borrower guaranteed by the Guarantor pursuant to the Guaranty include without limitation, for the avoidance of any doubt, all principal, interest, costs, and expenses (including attorneys' fees) under the 1998 Note ( as defined in the above-referenced Amendment No. 1). Pursuant to the applicable terms and provisions set forth or to be set forth in said Amendment No. 1 (or in any other agreement or instrument) shall affect the obligations of each Guarantor under its Guaranty. 2. The execution and delivery of this Agreement (or any other confirmation (past, present, or future) shall not be construed or interpreted to create a custom or course of dealing or performance (or any duty or obligation) pursuant to which the Bank is required to obtain a confirmation or consent from the Guarantor, or to notify the Guarantor with respect to any modification or other event or circumstance. No such consent or confirmation or notice shall be necessary in connection with any such modification or other event or circumstance in order to keep the obligations of each Guarantor under its Guaranty in full force and effect, said obligations being unconditional as set forth therein. 3. No amendment, waiver or other modification of this Agreement shall be effective against a party hereto unless set forth in writing signed by such party. This Agreement may be executed in counterparts. 4. This Agreement shall (i) be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and (ii) shall be governed by and construed in accordance with the internal laws of the State of Connecticut. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the day and year first written above. T.F. CUSHING, INC. By s/ Michael McGuire ---------------------------- Its: President AVEST, INC. By s/ Michael McGuire ---------------------------- Its: President FLEET NATIONAL BANK By: s/ Anthony McKiernan ---------------------------- Its: Vice President EX-27 5 FINANCIAL DATA SCHEDULE
5 This schedule contains summary financial information extracted from the Consolidated Financial Statements at September 30, 1998 (unaudited) and is qualified in its entirety by reference to such financial statements. 1,000 6-MOS SEP-30-1998 SEP-30-1998 2 0 1,626 (79) 3,514 110 1,126 (394) 6,255 1,206 0 0 0 66 0 6,255 6,783 6,783 5,193 5,193 1,481 0 57 52 11 41 0 0 0 41 0.01 0.01
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