NINTH AMENDMENT TO LOAN AGREEMENT
This Ninth Amendment To Loan Agreement ("Amendment") effective as of May 1,
2002 (the "Amendment Effective Date") is made and entered into by and among
Boots & Xxxxx International Well Control, Inc., a Delaware corporation (the
"Borrower"); the financial institutions and other persons (each, together with
its successors and assigns, a "Lender" and collectively, the "Lenders") from
time to time a party to the Loan Agreement (as hereinafter defined), and
Specialty Finance Fund I, LLC, a Delaware limited liability company
("Specialty"), as successor to Comerica Bank-Texas, a Texas banking association
("Comerica"), as agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Agent").
RECITALS:
Whereas, the Borrower, the Lenders, and the Agent are parties to a Loan
Agreement dated as of October 28, 1998, as amended from time to time, (as
amended, the "Loan Agreement");
Whereas, Effective of even date herewith, the Lenders have assigned a
participation interest in and to the Loan Agreement to Xxxxxx X. Xxxxxxx and
Xxxxx X. Xxxxx, who pursuant to such Assignment is a Lender under the Loan
Agreement; and
Whereas, the Borrower, the Lenders and the Agent have agreed, on the terms
and conditions herein set forth, that the Loan Agreement be amended in certain
respects;
Now, Therefore, For Good and valuable consideration, including the mutual
agreements of the parties hereto, the receipt and sufficiency of which is hereby
acknowledged, it is agreed as follows:
Section 1. Definitions. Terms used herein which are defined in the
Loan Agreement shall have the same meanings when used herein unless otherwise
provided herein.
Section 2. Amendments to Section 1.1 of Loan Agreement. On and after
the Amendment Effective Date, the Loan Agreement shall be amended as follows:
(a) The definition of "Borrowing Base" set forth in Section 1.1 of the
Loan Agreement is hereby amended to read in its entirety as follows:
"Borrowing Base" means, as at any date, the amount of the Borrowing
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Base as established by the Lenders from time to time in their sole
discretion and until further notice by Lenders to Borrower, for the period
from the Amendment Effective Date the Borrowing base is hereby established
to be $2,000,000.00. On the First Borrowing Base Reduction Date, the
Borrowing Base is reduced and is hereby established to be $1,250,000.00.
For the period after the Second Borrowing Base Reduction Date through the
Maturity Date, the Borrowing Base is reduced further and is hereby
established to be $1,000,000.00.
(b) A new definition of "First Borrowing Base Reduction Date" is
hereby added to the Loan agreement as follows:
"First Borrowing Base Reduction Date" means July 9, 2002; or in the
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event Borrower exercises the option to extend such date as provided in
Section 3.2, October 9, 2002.
(c) A new definition of "Second Borrowing Base Reduction Date" is
hereby added to the Loan Agreement as follows:
"Second Borrowing Base Reduction Date" means July 25, 2002; or in the
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event Borrower exercises the option to extend such date as provided in
Section 3.2, October 25, 2002
Section 3. Amendment to Section 3.2(b)of the Loan Agreement. Section
3.2(b) of the Loan Agreement is hereby amended to read in its entirety as
follows:
"(b) Borrowing Base" Borrower shall from time to time on demand by
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Agent prepay the Revolving Loans (or provide Cover for Letter of Credit
Liabilities) in such amounts as shall be necessary so that at all times the
aggregate outstanding amount of all Revolving Loan Obligations shall be less
than or equal to the Maximum Revolving Loan Available Amount. Notwithstanding
the foregoing, Borrower is hereby granted an option to extend the First
Borrowing Base Reduction Date until October 9, 2002 by giving the Agent and the
Lenders written notice of such election prior to July 9, 2002 and paying a fee
of (i) $9,844.00; and (ii) by the issuance of one hundred thousand (100,000)
shares of the authorized common stock of Borrower, delivered in the name of the
Lenders, or as the Lenders shall otherwise agree. Furthermore, Borrower is
hereby granted an option to extend the Second Borrowing Base Reduction Date
until October 25, 2002 by giving the Agent and the Lenders written notice of
such election prior to July 24, 2002 and paying a fee of (i) $3,281.00; and (ii)
by the issuance of thirty three thousand three hundred and thirty four (33,334)
shares of the authorized common stock of Borrower, delivered in the name of the
Lenders, or as the Lenders shall otherwise agree."
Section 4. No Reliance by Others. None of the provisions of this
Amendment shall inure to the benefit of Borrower or any other Obligor or any
Person other than Lenders and Agent; consequently, neither Borrower or any other
Obligor shall be, and no Person other than the Lenders and Agent shall be,
entitled to rely upon or raise as a claim or defense, in any manner whatsoever,
the failure of Lenders and Agent to comply with the provisions of this
Amendment. Neither the Agent nor any Lender shall incur any liability to
Borrower or any other Obligor or any other Person for any act or omission of the
other.
Section 5. Limitations. The amendments set forth herein are limited
precisely as written and shall not be deemed to (a) be a consent to, or waiver
or modification of, any other term or condition of the Loan Agreement or any of
the other Loan Documents, or (b) except as expressly set forth herein, prejudice
any right or rights which the Lenders may now have or may have in the future
under or in connection with the Loan Agreement, the Loan Documents or any of the
other documents referred to therein. Except as expressly modified hereby or by
express written amendments thereof, the terms and provisions of the Loan
Agreement, the Notes, and any other Loan Documents or any other documents or
instruments executed in connection with any of the foregoing are and shall
remain in full force and effect. In the event of a conflict between this
Amendment and any of the foregoing documents, the terms of this Amendment shall
be controlling. The representations and warranties made in each Loan Document
are true and correct in all material respects on and as of the Amendment
Effective Date.
Section 6. Representations and Warranties. (a) To induce the Agent and
the Lenders to execute and deliver this Amendment (which representations shall
survive the execution and delivery of this Amendment), the Borrower represents
and warrants to the Agent and the Lenders that:
(i) this Amendment has been duly authorized, executed and delivered by
it and this Amendment constitutes the legal, valid and binding obligation,
contract and agreement of the Borrower enforceable against it in accordance
with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors' rights generally;
(ii) the Loan Agreement, as amended by this Amendment, constitutes the
legal, valid and binding obligation, contract and agreement of the Borrower
enforceable against it in accordance with its respective terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or limiting
creditors' rights generally; and
(iii) the execution, delivery and performance by the Borrower of this
Amendment (1) has been duly authorized by all requisite corporate action,
(2) does not require the consent or approval of any governmental or
regulatory body or agency, and (iii) will not (A) violate (x) any provision
of law, statute, rule or regulation or its certificate of incorporation or
bylaws, (y) any order of any court or any rule, regulation or order of any
other agency or government binding upon it, or (z) any provision of any
material indenture, agreement or other instrument to which it is a party or
by which its properties or assets are or may be bound, including, without
limitation, that certain Subordinated Note Restructuring Agreement dated as
of December 28, 2000 between the Borrower and The Prudential Insurance
Company of America (the "Subordinated Note Restructuring Agreement"), or
(B) result in a breach or constitute (along or with due notice or lapse of
time or both) a default under any indenture, agreement or other instrument
referred to in clause (3)(A)(z) of this Section 6(a)(iii).
Section 7. Conditions to Effectiveness of This Amendment. This
Amendment shall not become effective until, and shall become effective when,
each and every one of the following conditions shall have been satisfied on the
Effective Date:
(a) executed counterparts of this Amendment, duly executed by the
Borrower, the Agent and the Lenders, shall have been delivered to the
Lenders;
(b) the Agent shall have received a copy of the resolutions of the
Board of Directors of the Borrower authorizing the execution, delivery and
performance by the Borrower of this Amendment in the form annexed hereto as
Exhibit A;
(c) the representations and warranties of the Borrower set forth in
Section 6 hereof are true and correct on and with respect to the date
hereof; and
(d) the Borrower shall pay fees as consideration for the benefits it
receives under this Amendment equal to (i) $7,500.00; (ii) thirty three
thousand three hundred thirty four (33,334) shares of the authorized common
stock of Borrower delivered in the name of the Assignee Lenders, or as the
Lenders shall otherwise agree, both of the foregoing being due on the
Amendment Effective Date; and (iii) $3,281.00 due on the Second Borrowing
Base Reduction Date.
Upon receipt of all of the foregoing, this Amendment shall become
effective.
Section 8. Waiver of Prior Events of Default, Etc. Upon satisfaction
of the conditions set forth in Section 6, each and every Default or Event of
Default arising under the Loan Agreement or under any document executed or
delivered in connection with the Loan Agreement, existing prior to the Effective
Date shall be hereby and forever waived by the Agent and the Lenders.
Section 9. Payment of Expenses. The Borrower agrees, whether or not
the transactions hereby contemplated shall be consummated, to reimburse and save
the Agent harmless from and against liability for the payment of all reasonable
substantiated out-of-pocket costs and expenses arising in connection with the
preparation, execution, delivery, amendment, modification, waiver and
enforcement of, or the preservation of any rights under this Amendment, and any
other any local or other counsel for Agent, and all stamp taxes (including
interest and penalties, if any), recording taxes and fees, filing taxes and
fees, and other charges which may be payable in respect of, or in respect of any
modification of, the Loan Agreement and the other Loan Documents. The
provisions of this Section shall survive the termination of the Loan Agreement
and the repayment of the Loans.
Section10. Governing Law. This Amendment and the rights and
obligations of the parties hereunder and under the Loan Agreement shall be
construed in accordance with and be governed by the laws of the State of Texas
and the United States of America.
Section 11. Descriptive Headings, etc. The descriptive headings of the
several Sections of this Amendment are inserted for convenience only and shall
not be deemed to affect the meaning or construction of any of the provisions
hereof.
Section 12. Entire Agreement. This Amendment and the documents
referred to herein represent the entire understanding of the parties hereto
regarding the subject matter hereof and supersede all prior and contemporaneous
oral and written agreements of the parties hereto with respect to the subject
matter hereof, including, without limitation, any commitment letters regarding
the transactions contemplated by this Amendment.
Section 13. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties on separate counterparts and all of
such counterparts shall together constitute one and the same instrument.
Complete sets of counterparts shall be lodged with the Borrower and the Agent.
Section 14. Amended Definitions. As used in the Loan Agreement
(including all Exhibits thereto) and all other instruments and documents
executed in connection therewith, on and subsequent to the Amendment Effective
Date the term (i) "Agreement" shall mean the Loan Agreement as amended by this
Amendment, and (ii) references to any and all other Loan Documents shall mean
such documents as amended as contemplated hereby.
In Witness Whereof, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the date first above written.
Notice pursuant to Tex. Bus. & Comm. Code Sec.26.02
This Amendment and all other Loan Documents executed by any of the parties
before or substantially contemporaneously with the execution hereof together
constitute a written Loan Agreement and represent the final agreement between
the parties between the parties and may not be contradicted by evidence or
prior, contemporaneous or subsequent oral agreements of the parties. There are
no unwritten oral agreements between the parties.
Boots & Xxxxx International Well
Control, Inc., a Delaware corporation
By:
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Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
Specialty Finance Fund I, LLC, a Delaware limited
liability Borrower (as successor to Comerica
Bank-Texas, a Texas banking association) as
Agent and as a Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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XXXXXXX XXXXXX
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XXXXXXX XXXXXX. AS A LENDER
XXXXXX X. XXXXXXX
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XXXXXX X. XXXXXXX, AS A LENDER
XXXXX X. XXXXX
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XXXXX X. XXXXX, AS A LENDER
The undersigned hereby join in this Amendment to evidence their consent to
execution by Borrower of this Amendment, to confirm that each Loan Document now
or previously executed by the undersigned applies and shall continue to apply to
the Loan Agreement, as amended hereby, to acknowledge that without such consent
and confirmation. Lenders would not execute this Amendment and to join in the
notice pursuant to Tex. Bus. & Comm. Code Sec.26.02 set forth above.
ABASCO, INC.,
a Texas corporation
By:
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Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
Boots & Xxxxx Special Services, Inc.,
a Texas corporation
By:
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Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
Elmagco, Inc.,
a Delaware corporation
By:
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Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
Hell Fighters, Inc.,
a Texas corporation
By:
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Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
IWC Engineering, Inc.,
a Texas corporation
By:
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Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
IWC Services, Inc.,
a Texas corporation
By:
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Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
FORM OF RESOLUTIONS
Exhibit A
