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EXHIBIT 10.2
FIRST AMENDMENT TO FORBEARANCE AND AMENDMENT AGREEMENT
THIS FIRST AMENDMENT TO FORBEARANCE AND AMENDMENT AGREEMENT (the "First
Amendment"), dated as of September 30, 2001, is between INDUSTRIAL HOLDINGS,
INC., a Texas corporation (the "Borrower"), a group of affiliated business
entities of the Borrower as set forth on the execution page of this First
Amendment (collectively the "Guarantors"), and COMERICA BANK-TEXAS (the
"Agent"), NATIONAL BANK OF CANADA, a Canadian chartered bank, HIBERNIA NATIONAL
BANK, a national banking association and COMERICA BANK-TEXAS, a Texas banking
association (collectively the "Lenders") and it amends that certain Forbearance
and Amendment Agreement more fully described below.
RECITALS:
A. Borrower, Guarantors, Lenders, and the Agent have entered into that
certain Forbearance and Amendment Agreement (the "Agreement") dated as of August
31, 2001.
B. Borrower, Guarantors, Lenders and Agent now desire to amend the
Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
1.1 Definitions. Capitalized terms used in this First Amendment, to the
extent not otherwise defined herein, shall have the same meanings as in the
Agreement. The following definition is revised by deleting that currently
appears in the definition section and replacing it with what follows:
"FORBEARANCE PERIOD" shall mean the period commencing on the
Effective Date and continuing until 5:00 p.m., Houston, Texas
time on October 5, 2001 unless extended until October 31, 2001
pursuant to the provisions of Section 2 hereof, but subject to
earlier termination pursuant to the terms and provisions of
this Agreement.
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AND AMENDMENT AGREEMENT
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ARTICLE II
Amendments
2.1 Amendment to Section 2. Section 2 "Forbearance by Lenders" is
hereby revised by deleting what currently appears at Section 2 and replacing it
with the following:
FORBEARANCE BY LENDERS. Subject to the terms of this Agreement
and so long as no Termination Event shall have occurred,
Lenders hereby agree to forbear until 5:00 p.m., Houston,
Texas time on October 5, 2001, from exercising their rights
and remedies arising as a result of the occurrence of the
Specified Defaults. Notwithstanding the foregoing, the
forbearance granted by Lenders pursuant hereto shall not
constitute and shall not be deemed to constitute a waiver of
any of the Specified Defaults or of any other default under
the Loan Papers.
NOTWITHSTANDING THE FOREGOING, provided that the Borrower
timely presents evidence, satisfactory to each of the Lenders,
that, prior to 5:00 P.M. Houston time October 5, 2001: (i) it
has entered into Definitive Disposition Agreements (herein so
called), containing no due diligence contingencies (nor any
other contingencies which, in the discretion of the Lenders,
constitute unusual pre-conditions to closing and funding on
transactions such as those described in the Definitive
Disposition Agreements), for the disposition of each member of
the EPG Group and Xxxxxx with bona fide third party purchasers
that are financially capable of completing the acquisition of
each such entities by not later than October 31, 2001; and
(ii) in connection with the Definitive Disposition Agreements
covering Xxx Machinery Movers, Inc., OF Acquisition, L.P. and
Philform, Inc. if the proposed purchaser is the SMS Group,
L.L.C. and SMS Properties, L.L.C. the Borrower shall have
received non-refundable, commercially reasonable cash escrow
deposits and in addition (i) the Lenders have received,
reviewed and approved, prior to their becoming effective, the
terms of each of the Definitive Disposition Agreements (or the
Borrower's obligation under any Definitive Disposition
Agreements are made expressly subject to the Lenders'
approval) where (y) Subsidiaries are disposing of assets, or
(z) Subsidiaries are being sold; (ii) the Borrower is then in
full compliance with the terms of the Merger Agreement; (iii)
no amendment to the Merger Agreement has diminished or delayed
the proceeds to be received thereunder by the Lenders and (iv)
each of the Lenders acknowledges in writing that each of the
above preconditions have been met, then, and only then, shall
the Forbearance Period be extended through and including 5:00
p.m. Houston time, October 31, 2001, or such earlier date a
Termination Event Occurs.
At 5:00 p.m., Houston, Texas time October 5, 2001, or, in the
case the Forbearance Period is extended, at 5:00 p.m.,
Houston, Texas time
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AND AMENDMENT AGREEMENT
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October 31, 2001, the Forbearance Period shall terminate
automatically without further act or action by Lenders, and
Lenders shall be entitled to exercise any and all rights and
remedies available under the Loan Papers and this Agreement,
at law, in equity, or otherwise without any further lapse of
time, expiration of applicable grace periods, or requirements
of notice, all of which are hereby expressly waived by
Borrower and each Guarantor.
2.2 Amendment to Section 6. Section 6 "Fees" is hereby revised by
deleting what currently appears at Section 6 and replacing it with the
following:
FEES. The Borrower acknowledges that, as a result of the
amendment to Article II, Section 2.8 of the Credit Agreement
made in the Fifth Amendment, the Borrower is currently
obligated to pay the Agent for the benefit of the Lenders a
fee of $300,000.00 (the "5th Amendment Fee"). The Borrower
acknowledges that the 5th Amendment Fee has not been paid. The
5th Amendment Fee shall be due and payable on the earliest to
occur of the following: (i) a Termination Event; (ii) the end
of the Forbearance Period; (iii) the date the Borrower closes
the sale of any member of, or the assets of any member of, its
"EPG Group;" or (iv) the date of the closing of the merger
pursuant to the Merger Agreement. The Borrower also agrees
that, in the event that the Indebtedness is not repaid in full
by the close of business on November 1, 2001, it will owe the
Agent, for the benefit of the Lenders, an additional fee of
$100,000.00, which fee shall be due and payable in full on
November 1, 2001.
ARTICLE III
Conditions Precedent
3.1 Conditions. The effectiveness of this First Amendment is subject to
the satisfaction of the following conditions precedent:
(a) Agent shall have received all of the following, each dated
(unless otherwise indicated) the date of this First Amendment, in form
and substance satisfactory to Agent:
(1) Resolutions. Resolutions of the Board of
Directors of Borrower certified by its Secretary or an
Assistant Secretary which authorize the execution, delivery,
and performance by Borrower and each Guarantor of this
Amendment and the other Loan Documents to which Borrower and
each Guarantor is or is to be a party hereunder;
(2) Incumbency Certificate. A certificate of
incumbency certified by the Secretary or an Assistant
Secretary of Borrower and each Guarantor certifying the names
of the officers of Borrower and each Guarantor authorized to
sign this Amendment and each of the other Loan Documents to
which Borrower and each
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AND AMENDMENT AGREEMENT
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Guarantor is or is to be a party hereunder (including the
certificates contemplated herein) together with specimen
signatures of such officers;
(3) Bylaws. The bylaws of Borrower and each Guarantor
certified by the Secretary or an Assistant Secretary of
Borrower or Guarantor;
(4) Governmental Certificates. Certificates of the
appropriate government officials of the state of incorporation
of Borrower and each Guarantor as to the existence and good
standing of Borrower and each Guarantor, each dated within ten
(10) days prior to the date of this First Amendment; and
(5) Additional Information. Agent shall have received
such additional documents, instruments and information as
Agent or its legal counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.,
may request.
(b) The representations and warranties contained herein and in
all other Loan Documents, as amended hereby, shall be true and correct
as of the date hereof as if made on the date hereof;
(c) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments, and other legal matters incident thereto shall be
satisfactory to Agent and its legal counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx
P.C.
(d) The Borrower shall have reimbursed the Agent for fees and
expenses paid or the fees and expenses of the Agent incurred, in
connection with this First Amendment to the Agreement including, but
not limited to, the fees and expenses of the Agent's counsel.
ARTICLE IV
Ratifications, Representations and Warranties
4.1 Ratifications. The terms and provisions set forth in this First
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement are ratified and confirmed
and shall continue in full force and effect. Borrower and Agent agree that the
Agreement as amended hereby shall continue to be legal, valid, binding and
enforceable in accordance with its terms.
4.2 Representations and Warranties. Borrower hereby represents and
warrants to Agent that (i) the execution, delivery and performance of this First
Amendment and any and all other Loan Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of Borrower and will not violate the articles of incorporation or
bylaws of Borrower, (ii) the representations and warranties contained in the
Agreement, as amended hereby, and any other Loan Document are true and correct
on and as of the date hereof as though made on and as of the date hereof, (iii)
no Event of Default, other than
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AND AMENDMENT AGREEMENT
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those described in the Agreement have occurred and is continuing and no event or
condition has occurred that with the giving of notice or lapse of time or both
would be an Event of Default, and (iv) other than as described in the Agreement,
Borrower is in full compliance with all covenants and agreements contained in
the Agreement as amended hereby.
ARTICLE V
Miscellaneous
5.1 Survival of Representations and Warranties. All representations and
warranties made in this First Amendment or any other Loan Document including any
Loan Document furnished in connection with this Amendment shall survive the
execution and delivery of this Amendment and the other Loan Documents, and no
investigation by any Lender or any closing shall affect the representations and
warranties or the right of Lenders to rely upon them.
5.2 Reference to Agreement. Each of the Loan Documents, including the
Agreement and any and all other agreements, documents, or instruments now or
hereafter executed and delivered pursuant to the terms hereof or pursuant to the
terms of the Agreement as amended hereby, are hereby amended so that any
reference in such Loan Documents to the Agreement shall mean a reference to the
Agreement as amended hereby.
5.3 Expenses of Agent. As provided in the Agreement, Borrower agrees to
pay on demand all costs and expenses incurred by Agent in connection with the
preparation, negotiation, and execution of this First Amendment and the other
Loan Documents executed pursuant hereto and any and all amendments,
modifications, and supplements thereto, including without limitation the costs
and fees of Agent's legal counsel, and all costs and expenses incurred by Agent
in connection with the enforcement or preservation of any rights under the
Agreement, as amended hereby, or any other Loan Document, including without
limitation the costs and fees of Agent's legal counsel.
5.4 Severability. Any provision of this First Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this First Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
5.5 Applicable Law. This First Amendment and all other Loan Documents
executed pursuant hereto shall be deemed to have been made and to be performable
in Dallas, Dallas County, Texas and shall be governed by and construed in
accordance with the laws of the State of Texas.
5.6 Successors and Assigns. This First Amendment is binding upon and
shall inure to the benefit of the Lenders and Borrower and their respective
successors and assigns, except Borrower may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of the
Lenders.
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5.7 Counterparts. This First Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
5.8 Effect of Waiver. No consent or waiver, express or implied, by the
Lenders to or for any breach of or deviation from any covenant, condition or
duty by Borrower or Guarantor shall be deemed a consent or waiver to or of any
other breach of the same or any other covenant, condition or duty.
5.9 Headings. The headings, captions, and arrangements used in this
First Amendment are for convenience only and shall not affect the interpretation
of this First Amendment.
5.10 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 this First Amendment or any of the
other Loan Documents or to the transactions contemplated hereby.
5.11 RELEASE AND COVENANT NOT TO XXX. THE BORROWER (IN ITS OWN RIGHT
AND ON BEHALF OF ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT
CONTRACTORS, ATTORNEYS AND AGENTS) AND GUARANTORS (IN THEIR OWN RIGHT AND ON
BEHALF OF THEIR RESPECTIVE ATTORNEYS AND AGENTS) (THE "RELEASING PARTIES")
JOINTLY AND SEVERALLY RELEASE, ACQUIT, AND FOREVER DISCHARGE THE LENDERS AND
THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS,
ATTORNEYS AND AGENTS, AND ATTORNEYS (THE "RELEASED PARTIES"), TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, FROM ANY AND ALL ACTS AND
OMISSIONS OF THE RELEASED PARTIES, AND FROM ANY AND ALL CLAIMS, CAUSES OF
ACTION, COUNTERCLAIMS, DEMANDS, CONTROVERSIES, COSTS, DEBTS, SUMS OF MONEY,
ACCOUNTS, RECKONINGS, BONDS, BILLS, DAMAGES, OBLIGATIONS, LIABILITIES,
OBJECTIONS, AND EXECUTIONS OF ANY NATURE, TYPE, OR DESCRIPTION WHICH THE
RELEASING PARTIES HAVE AGAINST THE RELEASED PARTIES, INCLUDING, BUT NOT LIMITED
TO, NEGLIGENCE, GROSS NEGLIGENCE, USURY, FRAUD, DECEIT, MISREPRESENTATION,
CONSPIRACY, UNCONSCIONABILITY, DURESS, ECONOMIC DURESS, DEFAMATION, CONTROL,
INTERFERENCE WITH CONTRACTUAL AND BUSINESS RELATIONSHIPS, CONFLICTS OF INTEREST,
MISUSE OF INSIDER INFORMATION, CONCEALMENT, DISCLOSURE, SECRECY, MISUSE OF
COLLATERAL, WRONGFUL RELEASE OF COLLATERAL, FAILURE TO INSPECT, ENVIRONMENTAL
DUE DILIGENCE, NEGLIGENT LOAN PROCESSING AND ADMINISTRATION, WRONGFUL SETOFF,
VIOLATIONS OF STATUTES AND REGULATIONS OF GOVERNMENTAL ENTITIES,
INSTRUMENTALITIES AND AGENCIES (BOTH CIVIL AND CRIMINAL), RACKETEERING
ACTIVITIES, SECURITIES AND ANTITRUST LAWS VIOLATIONS, TYING ARRANGEMENTS,
DECEPTIVE TRADE PRACTICES,
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BREACH OR ABUSE OF ANY ALLEGED FIDUCIARY DUTY, BREACH OF ANY ALLEGED SPECIAL
RELATIONSHIP, COURSE OF CONDUCT OR DEALING, ALLEGED OBLIGATION OF FAIR DEALING,
ALLEGED OBLIGATION OF GOOD FAITH, AND ALLEGED OBLIGATION OF GOOD FAITH AND FAIR
DEALING, WHETHER OR NOT IN CONNECTION WITH OR RELATED TO THE AGREEMENT OR THE
NOTES OR VARIOUS SECURITY DOCUMENTS, GUARANTIES AND ANY AND ALL DOCUMENTS
RELATED THERETO (THE "LOAN PAPERS") OR THIS AGREEMENT, AT LAW OR IN EQUITY, IN
CONTRACT IN TORT, OR OTHERWISE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED (THE
"RELEASED CLAIMS"). THE RELEASING PARTIES FURTHER AGREE TO LIMIT ANY DAMAGES
THEY MAY SEEK IN CONNECTION WITH ANY CLAIM OR CAUSE OF ACTION, IF ANY, TO
EXCLUDE ALL PUNITIVE AND EXEMPLARY DAMAGES, DAMAGES ATTRIBUTABLE TO LOST PROFITS
OR OPPORTUNITY, DAMAGES ATTRIBUTABLE TO MENTAL ANGUISH, AND DAMAGES ATTRIBUTABLE
TO PAIN AND SUFFERING, AND THE RELEASING PARTIES DO HEREBY WAIVE AND RELEASE ALL
SUCH DAMAGES WITH RESPECT TO ANY AND ALL CLAIMS OR CAUSES OF ACTION WHICH MAY
ARISE AT ANY TIME AGAINST ANY OF THE RELEASED PARTIES. THE RELEASING PARTIES
REPRESENT AND WARRANT THAT NO FACTS NOW EXIST WHICH COULD PRESENTLY OR IN THE
FUTURE COULD SUPPORT THE ASSERTION OF ANY OF THE RELEASED CLAIMS AGAINST THE
RELEASED PARTIES. THE RELEASING PARTIES FURTHER COVENANT NOT TO XXX THE RELEASED
PARTIES ON ACCOUNT OF ANY OF THE RELEASED CLAIMS, AND EXPRESSLY WAIVE ANY AND
ALL DEFENSES THEY MAY HAVE IN CONNECTION WITH THEIR DEBTS AND OBLIGATIONS UNDER
THE LOAN PAPERS AND THIS AGREEMENT. THIS PARAGRAPH IS IN ADDITION TO AND SHALL
NOT IN ANY WAY LIMIT ANY OTHER RELEASE, COVENANT NOT TO XXX, OR WAIVER BY THE
RELEASING PARTIES IN FAVOR OF THE RELEASED PARTIES.
ACCEPTANCE OF EACH ADVANCE MADE AFTER THE DATE HEREOF SHALL CONSTITUTE
A RATIFICATION, ADOPTION AND CONFIRMATION BY THE RELEASING PARTIES OF THE
FOREGOING GENERAL RELEASE OF RELEASED CLAIMS THAT ARE BASED IN WHOLE OR IN PART
ON FACTS, WHETHER OR NOT NOW KNOWN OR UNKNOWN, EXISTING ON OR PRIOR TO THE DATE
OF RECEIPT OF ANY SUCH ADVANCE.
5.12 ENTIRE AGREEMENT. THIS FIRST AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS FIRST
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
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5.13 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO
ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE
ACTIONS OF THE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, OR
ENFORCEMENT THEREOF.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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AND AMENDMENT AGREEMENT
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Executed as of September 30, 2001.
BORROWER:
INDUSTRIAL HOLDINGS, INC.,
a Texas corporation
By: /s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
President & Chief Executive Officer
Address for Notices:
Industrial Holdings, Inc.
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
Fax No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xx. Xxxxxx X. Xxxx
AGENT:
COMERICA BANK-TEXAS,
a Texas banking association
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Vice President
Address for Notices:
Comerica Bank - Texas
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxxx
MC 6510
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AND AMENDMENT AGREEMENT
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With a copy to:
Comerica Bank - Texas
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
MC 6510
LENDERS:
COMERICA BANK-TEXAS
a Texas banking association
By: /s/ XXXXX X. XXXX
----------------------------------------
Xxxxx X. Xxxx
Vice President
Address for Notices:
Comerica Bank - Texas
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxxx
MC 6510
With a copy to:
Comerica Bank - Texas
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
MC 6510
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AND AMENDMENT AGREEMENT
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HIBERNIA NATIONAL BANK
a national banking association
By: /s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx
Vice President
Address for Notices:
Hibernia National Bank
000 Xxxxxx Xxxxxx., 00xx Xx.
Xxx Xxxxxxx, Xxxxxxxxx 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxxx
NATIONAL BANK OF CANADA,
a Canadian charter bank
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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AND AMENDMENT AGREEMENT
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Address for Notices:
National Bank of Canada
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxxxxxxx Xxxxxxxxx
With a copy to:
National Bank of Canada
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Fax No.:
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Telephone No.:
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Attention:
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Guarantors hereby consent and agree to this First Amendment and agree
that the Guaranty shall remain in full force and effect and shall continue to be
the legal, valid and binding obligation of Guarantors enforceable against
Guarantors in accordance with its terms.
GUARANTORS:
The Xxx Group, Inc., a Texas corporation
Xxx Machinery Movers, Inc., a Texas corporation
d/b/a Ideal Products
First Texas Credit Corporation, a Texas corporation
Xxxxxxxx Metal Forming, Inc., a Texas corporation
Pipeline Valve Specialty, Inc., a Texas corporation
(f/k/a Industrial Municipal Supply Company)
Bolt Manufacturing Co., Inc., a Texas corporation,
d/b/a Xxxxxx Bolt Manufacturing Co., Inc.
LSS-Lone Star-Houston, Inc., a Texas corporation
American Rivet Company, Inc., an Illinois
corporation
Manifold Valve Services, Inc., a Delaware
corporation, d/b/a Xxxxxx Equipment & Supply
Company
Philform, Inc., a Michigan corporation
GHX, Incorporated, a Texas corporation
Regal Machine Tool, Inc., a Texas corporation, f/k/a
Xxx Machine Tool, Inc.
WHIR Acquisition, Inc., a Texas corporation, d/b/a
Ameritech Fastener Manufacturing
Xxxxxx Pump and Services, Inc., a Louisiana
corporation
GHX, Incorporated of Louisiana, a Louisiana
corporation
Xxxxxx Industries, Inc., a Delaware corporation
United Wellhead Services, Inc., a Texas corporation
By:
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Name:
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Chief Executive Officer
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AND AMENDMENT AGREEMENT
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