EXHIBIT 10.13
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Third Amendment"), dated as of August 15, 2000, is between INDUSTRIAL HOLDINGS,
INC. ("Borrower"), and COMERICA BANK-TEXAS ("Agent").
RECITALS:
A. Borrower Banks and Agent have entered into that certain
Amended and Restated Credit Agreement (the "Agreement") dated as of June 17,
1999.
B. Pursuant to the Agreement, Guarantors executed that certain
Amended and Restated Guaranty Agreement (the "Guaranty") dated as of June 17,
1999 which guaranteed to Agent the payment and performance of the Obligations.
C. Borrower, Banks and Agent have previously amended the
Agreement and now desire to amend the Agreement a third time 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 Third Amendment, to the
extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby.
ARTICLE II
AMENDMENTS
2.1 AMENDMENT TO ARTICLE II. Section 2.8 is hereby amended by adding a
new section (d) thereto to read as follows:
(d) In return for the Banks' agreeing to enter into the Third
Amendment, the Borrower agrees to pay a fee in the amount of
FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00). TWENTY-FIVE
THOUSAND AND NO/100 DOLLARS ($25,000.00) of the fee is payable
contemporaneous with the execution of this Third Amendment.
The remaining TWENTY-FIVE THOUSAND AND NO/100 DOLLARS
($25,000.00) shall be due and payable on September 22, 2000.
In the event that, as of the close of business on September
22, 2000, the Borrower has complied with the requirements of
both Subsections 11.1(p) and 11.1(v) hereof, then the Banks
shall not be entitled to enforce payment of the remaining
TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) fee and
the Borrower shall be relieved of its obligation to pay that
remaining portion of the fee.
2.2 AMENDMENT TO ARTICLE X. Section 10.11, which was added to the
Agreement by the Second Amendment, is hereby revised by deleting the Section
10.11 in its entirety and replacing it with the following:
Section 10.11 EXPENDITURES. The Borrower shall not make or
incur, and will not permit any Subsidiary to make or incur, Capital
Expenditures, including Capital Lease Obligations, in excess of
$5,500,000.00 for the calendar year 2000. In calculating Capital
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Expenditures, the Borrower shall not include Capital Expenditures made
by its subsidiary, Blastco Services Company.
2.3 AMENDMENT TO ARTICLE XI. The following Subsections of Article XI
are hereby amended by deleting the current provisions, which were added by the
Second Amendment to the Agreement, in their entirety and replacing them with the
following:
Section 11.1(p). Should the Borrower fail to obtain prior to
October 23, 2000 new equity and/or debt in a form and substance
acceptable to the Banks and its debt subordinate in a fashion
acceptable to Banks, in the aggregate principal amount of ONE MILLION
FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($1,500,000.00).
Section 11.1(v). Should the Borrower fail to obtain by October
23, 2000 a default waiver from Xxxxxx Financial, Inc., in form and
substance acceptable to the Banks, waiving all of the current defaults
by the Borrower to Xxxxxx Financial, Inc.
ARTICLE III
CONDITIONS PRECEDENT
3.1 CONDITIONS. The effectiveness of this Third 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 Third 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 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 certified by the
Secretary or an Assistant Secretary of Borrower;
(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 Third 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) Except for as described on Exhibit "A" hereto no Event of Default
shall have occurred and be continuing and no event or condition shall have
occurred that with the giving of notice or lapse of time or
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both would be an Event of Default.
(d) 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.
(e) The Borrower shall have reimbursed the Agent for fees and expenses
paid or the fees and expenses of the Agent incurred, in connection with the
Second Amendment to the Agreement and this Third 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 Third
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 Third
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 those listed on Exhibit "A", has 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
set forth on Exhibit "A", Borrower is in full compliance with all covenants and
agreements contained in the Agreement as amended hereby.
ARTICLE V
5.1 SWING LINE. The Banks acknowledge that certain disagreements have
existed over the Agent's operation of the Swing Line. The Banks further
acknowledge and agree that those disagreements are hereby resolved and all
claims relating to the Agent's prior operation of the Swing Line are hereby
released.
ARTICLE VI
MISCELLANEOUS
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Third 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 Bank or any closing shall affect the representations and
warranties or the right of Banks to rely upon them.
6.2 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.
6.3 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 Third Amendment and the other
Loan Documents executed pursuant hereto and any and all amendments,
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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.
6.4 SEVERABILITY. Any provision of this Third Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Third Amendment and the effect thereof
shall be confined to the provision so held to be invalid or unenforceable.
6.5 APPLICABLE LAW. This Third 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.
6.6 SUCCESSORS AND ASSIGNS. This Third Amendment is binding upon and
shall inure to the benefit of the Banks 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 Banks.
6.7 COUNTERPARTS. This Third 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.
6.8 EFFECT OF WAIVER. No consent or waiver, express or implied, by the
Banks 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.
6.9 HEADINGS. The headings, captions, and arrangements used in this
Third Amendment are for convenience only and shall not affect the interpretation
of this Third Amendment.
6.10 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 Third Amendment or any of the
other Loan Documents or to the transactions contemplated hereby.
6.11 ENTIRE AGREEMENT. THIS THIRD AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS THIRD
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.
Executed as of the date first written above.
BORROWER:
INDUSTRIAL HOLDINGS, INC., a Texas corporation
By:
-------------------------------
Xxxxxxx X. Xxxxx
President & Chief Executive Officer
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ADDRESS FOR NOTICES:
Industrial Holdings, Inc.
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
Fax No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xx. Xxxxxxx X. Xxxx
AGENT:
COMERICA BANK-TEXAS
By:
---------------------------------
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: Mr. Xxxx Xxx
MC 6507
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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BANKS:
Commitment: COMERICA BANK-TEXAS
$27,272,727.28
By:
--------------------------------
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: Mr. Xxxx Xxx
MC 6507
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
LENDING OFFICE FOR BASE RATE ADVANCES
Comerica Bank
0000 Xxxx Xxxxxxxxxxx
Xxxxxx, Xxxxx 00000
Commitment: HIBERNIA NATIONAL BANK
$9,090,909.09
By:
-------------------------------
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
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Guarantors hereby consent and agree to this Third 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:
A & B Bolt and Supply, Inc., a Louisiana corporation
The Xxx Group, Inc., a Texas corporation
Xxx Machinery Sales, Inc., a Texas corporation d/b/a
Xxx/Paul's Machine/Sales
Xxx Machinery Movers, Inc., a Texas corporation
d/b/a Ideal Products
USC Holdings, Inc., a Texas corporation
(f/k/a U.S. Crating, Inc.)
First Texas Credit Corporation, a Texas corporation
Xxxxxxxx Engineering Company, 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 Supply, 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:
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
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EXHIBIT "A"
Existing Events of Default
The Borrower warrants that if is presently in default of only the
following provisions of the Agreement:
1. Failure to pay when due $15,000,000.00 owing to EnSerCo.
2. Failure to comply with Section __ (requiring ____________________) and
Section __ (requiring _______________________) of the Borrower's
agreement with Xxxxxx Financial, Inc.
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