{"id":41030,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/forbearance-and-extension-agreement-and-modification-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"forbearance-and-extension-agreement-and-modification-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/forbearance-and-extension-agreement-and-modification-agreement.html","title":{"rendered":"Forbearance and Extension Agreement and Modification Agreement &#8211; Comerica Bank and Boots &#038; Coots International Well Control Inc."},"content":{"rendered":"<pre>             THIRD AMENDMENT TO FORBEARANCE AND EXTENSION AGREEMENT\n                           AND MODIFICATION AGREEMENT\n\n         This Third Amendment to Forbearance and Extension Agreement and\nModification Agreement (the \"AMENDMENT\") by and among the undersigned entities\nidentified as Bank and Obligors is entered into effective this 31st day of July,\n2000 (the \"AMENDMENT EFFECTIVE DATE\").\n\n                                    RECITALS:\n\n         WHEREAS, Bank and Obligors are parties to a Forbearance and Extension\nAgreement dated as of May 31, 2000, as amended by the First Amendment to\nForbearance and Extension Agreement dated as of June 15, 2000 and as amended by\nthe Second Amendment to Forbearance and Extension Agreement dated as of June 30,\n2000 (the \"Forbearance Agreement\"); and\n\n         WHEREAS, Bank and Obligors have agreed, on the terms and conditions\nherein set forth, that the Forbearance Agreement be amended in certain respects:\n\n         NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND\nSUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, IT IS AGREED:\n\n         1. Definitions. Terms used herein which are defined in the Forbearance\nAgreement shall have the same meanings when used herein unless otherwise\nprovided herein.\n\n         2. Amendments to Forbearance Agreement. On and after the Amendment\nEffective Date, the Forbearance Agreement shall be amended as follows:\n\n         (a) Paragraph 1 of the Forbearance Agreement is hereby amended to read\nin its entirety as follows:\n\n                  1. At the specific request of the Obligors, Bank hereby agrees\n         to forbear from exercising any remedy available to Bank upon the\n         occurrence of any Event of Default or Default (as such terms are\n         defined in the Loan Agreement described and identified on SCHEDULE 1\n         hereof, as are all defined terms used herein unless otherwise\n         specifically defined herein) existing as of the date hereof under the\n         Loan Documents (described and identified on SCHEDULE 1 hereto) until\n         the earlier of (a) a Triggering Event (hereinafter defined) or (b)\n         August 31, 2000 (the earlier of which to occur is herein referred to as\n         the Termination Date).\n\n         (b) Paragraph 2 of the Forbearance Agreement is hereby amended to read\nin its entirety as follows:\n\n                  2. Without in any way waiving any existing Event of Default\n         and at the request of the Obligors, Bank hereby agrees to extend the\n         Maturity Date of the Obligations from July 31, 2000 to the earlier of\n         August 31, 2000 or the occurrence of a Triggering Event.\n\n         3. Amendments to Loan Documents. As a material inducement to Bank to\nenter into this Amendment each of the Obligors, notwithstanding anything to the\ncontrary contained in any Loan Document, hereby agree that effective as of the\nAmendment Effective Date:\n\nTHIRD AMENDMENT TO FORBEARANCE AND EXTENSION AGREEMENT\nAND MODIFICATION AGREEMENT - Page 1\n\n   2\n\n\n                  (a) the interest rate payable with respect to the Loans shall\n         be equal to the lesser of the Ceiling Rate or the Base Rate plus three\n         and one-half percent (3.5%);\n\n                  (b) on the Termination Date, Obligors shall pay to Bank a\n         $50,000 Forbearance Fee (herein so called) plus the $50,000 Forbearance\n         Fee previously due and not paid by Obligors pursuant to a prior\n         forbearance for a total of $100,000;\n\n                  (c) Eligible Accounts and Eligible Inventory shall not include\n         any Accounts or Inventory of any Foreign Subsidiary, including but not\n         limited to Baylor Company Limited;\n\n                  (d) the Bank shall immediately engage appraisers acceptable to\n         Obligors to provide a new appraisal for the machinery and equipment at\n         Baylor Company Limited. From and after the receipt by Bank of such\n         appraisal the Eligible Equipment component of the Borrowing Base shall\n         be the lesser of the amount reflected in the existing appraisal or the\n         amount reflected in the new appraisal; and\n\n                  (e) Obligors shall provide on or before August 3, 2000, August\n         10, 2000, August 17, 2000, August 24, 2000 and August 31, 2000 a\n         rolling forecast of twelve week cash requirements for the next twelve\n         weeks.\n\n         4. No Reliance by Others. None of the provisions of this Amendment\nshall inure to the benefit of Obligors or any Person other than Bank;\nconsequently, Obligors shall not be, and no Person other than the Bank shall be,\nentitled to rely upon or raise as a claim or defense, in any manner whatsoever,\nthe failure of Bank to comply with the provisions of this Amendment. Bank shall\nnot incur any liability to Obligors or any other Person for any act or omission\nof the other.\n\n         5. Limitations. The amendments set forth herein are limited precisely\nas written and shall not be deemed to (a) be a consent to, or waiver or\nmodification of, any other term or condition of the Forbearance Agreement, the\nLoan Agreement or any of the other Loan Documents, or (b) except as expressly\nset forth herein, prejudice any right or rights which the Bank may now have or\nmay have in the future under or in connection with the Forbearance Agreement,\nthe Loan Agreement, the Loan Documents or any of the other documents referred to\ntherein. Except as expressly modified hereby or by express written amendments\nthereof, the terms and provisions of the Forbearance Agreement, the Loan\nAgreement, the Notes, and any other Loan Documents or any other documents or\ninstruments executed in connection with any of the foregoing are and shall\nremain in full force and effect. In the event of a conflict between this\nAmendment and any of the foregoing documents, the terms of this Amendment shall\nbe controlling. The representations and warranties made in each Loan Document\nare true and correct in all material respects on and as of the Amendment\nEffective Date.\n\n         6. Representations and Warranties of the Obligors. To induce the Bank\nto execute and deliver this Amendment (which representations shall survive the\nexecution and delivery of this Amendment), the Obligors represent and warrant to\nthe Bank that:\n\n                  (a) this Amendment has been duly authorized, executed and\n         delivered by it and this Amendment constitutes the legal, valid and\n         binding obligation, contract and agreement of the Obligors enforceable\n         against them in accordance with its terms, except as enforcement may be\n         limited by bankruptcy, insolvency, reorganization, moratorium or\n         similar laws or equitable principles relating to or limiting creditors'\n         rights generally;\n\nTHIRD AMENDMENT TO FORBEARANCE AND EXTENSION AGREEMENT\nAND MODIFICATION AGREEMENT - Page 2\n\n   3\n\n\n                  (b) the Forbearance Agreement, as amended by this Amendment,\n         constitutes the legal, valid and binding obligation, contract and\n         agreement of the Obligors enforceable against them in accordance with\n         its respective terms, except as enforcement may be limited by\n         bankruptcy, insolvency, reorganization, moratorium or similar laws or\n         equitable principles relating to or limiting creditors' rights\n         generally; and\n\n                  (c) the execution, delivery and performance by the Obligors of\n         this Amendment (i) has been duly authorized by all requisite corporate\n         action, (ii) does not require the consent or approval of any\n         governmental or regulatory body or agency, and (iii) will not (A)\n         violate (1) any provision of law, statute, rule or regulation or its\n         certificate of incorporation or bylaws, (2) any order of any court or\n         any rule, regulation or order of any other agency or government binding\n         upon it, or (3) any provision of any material indenture, agreement or\n         other instrument to which it is a party or by which its properties or\n         assets are or may be bound, including, without limitation, the\n         Subordinated Note and Warrant Purchase Agreement dated as of July 23,\n         1998 in the principal amount of $30,000,000 for 11.28% Senior\n         Subordinated Notes due July 23, 2006 and Common Stock Purchase\n         Warrants, or (B) result in a breach or constitute (along or with due\n         notice or lapse of time or both) a default under any indenture,\n         agreement or other instrument referred to in clause (iii)(A)(3) of this\n         Section 4(c).\n\n         7. Conditions to Effectiveness of This Amendment. This Amendment shall\nnot become effective until, and shall become effective when, each and every one\nof the following conditions shall have been satisfied:\n\n                  (a) pay to Bank all accrued fees and expenses incurred by\n         Bank's advisors with respect to the Events of Default under the Loan\n         Documents accruing since July 11, 2000, specifically being $20,430.49\n         to Bank to reimburse it for such amounts due Munsch Hardt Kopf &amp; Harr,\n         P.C. and E&amp;Y Restructuring, L.L.C. Such $20,430.49 shall be payable\n         upon execution of this Amendment;\n\n                  (b) Obligors shall have delivered to Bank by August 4, 2000, a\n         Borrowing Base Certificate dated effective as of July 31, 2000;\n\n                  (c) executed counterparts of this Amendment, duly executed by\n         the Obligors and the Bank, shall have been delivered to the Bank;\n\n                  (d) Obligors shall execute and deliver to Bank a Full Release\n         and Covenant Not to Sue (the \"RELEASE\") in the form of ANNEX 1 attached\n         hereto;\n\n                  (f) Obligors shall cause their counsel, Fuqua &amp; Keim, L.L.P.,\n         to deliver to them an opinion upon which Bank can rely opining as to\n         the enforceability of this Amendment and the Release together with all\n         documents and agreements executed in connection therewith in the form\n         of ANNEX 2; and\n\n                  (g) the representations and warranties of the Obligors set\n         forth in Section 5 hereof are true and correct on and with respect to\n         the date hereof.\n\nTHIRD AMENDMENT TO FORBEARANCE AND EXTENSION AGREEMENT\nAND MODIFICATION AGREEMENT - Page 3\n\n   4\n\n         Upon receipt of all of the foregoing, this Amendment shall become\neffective.\n\n         8. Payment of Expenses. The Obligors agree, whether or not the\ntransactions hereby contemplated shall be consummated, to reimburse and save the\nBank harmless from and against liability for the payment of all reasonable\nsubstantiated out-of-pocket costs and expenses arising in connection with the\npreparation, execution, delivery, amendment, modification, waiver and\nenforcement of, or the preservation of any rights under this Amendment,\nincluding, without limitation, the reasonable fees and expenses of any local or\nother counsel for Bank, and all stamp taxes (including interest and penalties,\nif any), recording taxes and fees, filing taxes and fees, and other charges\nwhich may be payable in respect of, or in respect of any modification of, the\nForbearance and Extension Agreement, the Loan Agreement and the other Loan\nDocuments. The provisions of this Section shall survive the termination of the\nForbearance and Extension Agreement and the repayment of the Loans.\n\n         9. Governing Law. This Amendment and the rights and obligations of the\nparties hereunder and under the Forbearance Agreement shall be construed in\naccordance with and be governed by the laws of the State of Texas and the United\nStates of America.\n\n         10. Descriptive Headings, etc. The descriptive headings of the several\nSections of this Amendment are inserted for convenience only and shall not be\ndeemed to affect the meaning or construction of any of the provisions hereof.\n\n         11. Entire Agreement. This Amendment and the documents referred to\nherein represent the entire understanding of the parties hereto regarding the\nsubject matter hereof and supersede all prior and contemporaneous oral and\nwritten agreements of the parties hereto with respect to the subject matter\nhereof.\n\n         12. Counterparts. This Amendment may be executed in any number of\ncounterparts and by different parties on separate counterparts and all of such\ncounterparts shall together constitute one and the same instrument. Complete\nsets of counterparts shall be lodged with the Obligors and the Bank.\n\n         13. Amended Definitions. As used in the Forbearance Agreement\n(including all annexes thereto) and all other instruments and documents executed\nin connection therewith, on and subsequent to the Amendment Effective Date, the\nterm \"Agreement\" shall mean the Forbearance Agreement as amended by this\nAmendment.\n\n         This Amendment is executed effective as of the date referenced above by\nduly authorized representatives of each of the entities signatory hereto.\n\nTHIRD AMENDMENT TO FORBEARANCE AND EXTENSION AGREEMENT\nAND MODIFICATION AGREEMENT - Page 4\n\n   5\n\n\n                                      BANK:\n\n                                      COMERICA BANK-TEXAS,\n                                      a Texas banking association\n\n\n                                      By:\n                                         ---------------------------------------\n                                      Name:\n                                           -------------------------------------\n                                      Title:\n                                            ------------------------------------\n\n                                      OBLIGORS:\n\n                                      BOOTS &amp; COOTS INTERNATIONAL WELL\n                                      CONTROL, INC., a Delaware corporation\n\n\n                                      By:\n                                          --------------------------------------\n                                      Name: LARRY H. RAMMING\n                                           -------------------------------------\n                                      Title: CHAIRMAN AND CEO\n                                             -----------------------------------\n\n                                      ABASCO, INC.,\n                                      a Texas corporation\n\n\n                                      By:\n                                         ---------------------------------------\n                                      Name: LARRY H. RAMMING\n                                           -------------------------------------\n                                      Title: CHAIRMAN AND CEO\n                                             -----------------------------------\n\n\n                                      BAYLOR COMPANY,\n                                      a Texas corporation\n\n\n                                      By:\n                                         ---------------------------------------\n                                      Name: LARRY H. RAMMING\n                                           -------------------------------------\n                                      Title: CHAIRMAN AND CEO\n                                            ------------------------------------\n\n                                      BAYLOR COMPANY LIMITED,\n                                      a company organized under the laws of\n                                      England and Wales\n\n\n                                      By:\n                                        ----------------------------------------\n                                      Name: LARRY H. RAMMING\n                                            ------------------------------------\n                                      Title: CHAIRMAN AND CEO\n                                            ------------------------------------\n\n\nTHIRD AMENDMENT TO FORBEARANCE AND EXTENSION AGREEMENT\nAND MODIFICATION AGREEMENT - Page 5\n\n   6\n\n\nBAYLOR CONTROLS, INC.,\na Texas corporation\n\n\nBy:\n   -------------------------------\nName: LARRY H. RAMMING\n     -----------------------------\nTitle: CHAIRMAN AND CEO\n      ----------------------------\n\nBAYLOR ELECTRONICS, INC.,\na Texas corporation\n\n\nBy:\n   -------------------------------        \nName: LARRY H. RAMMING\n     -----------------------------\nTitle: CHAIRMAN AND CEO\n      ----------------------------\n\nBOOTS &amp; COOTS\/IWC DE VENEZUELA, S.A.,\na company organized under the laws\nof Venezuela\n\n\nBy:\n    ------------------------------\nName: LARRY H. RAMMING\n     -----------------------------\nTitle: CHAIRMAN AND CEO\n      ----------------------------\n\nBOOTS &amp; COOTS OVERSEAS, LTD.,\na company organized under the laws \nof the British Virgin Islands\n\n\nBy:\n   -------------------------------\nName: LARRY H. RAMMING\n     -----------------------------\nTitle: CHAIRMAN AND CEO\n      ----------------------------\n\nBOOTS &amp; COOTS SPECIAL SERVICES, INC.,\na Texas corporation\n\n\nBy:\n   -------------------------------\nName: LARRY H. RAMMING\n     -----------------------------\nTitle: CHAIRMAN AND CEO\n      ----------------------------\n\n\nTHIRD AMENDMENT TO FORBEARANCE AND EXTENSION AGREEMENT\nAND MODIFICATION AGREEMENT - Page 6\n\n   7\n\n                                      ELMAGCO, INC.,\n                                      a Delaware corporation\n\n\n                                      By:\n                                         ---------------------------------------\n                                      Name: LARRY H. RAMMING\n                                           -------------------------------------\n                                      Title: CHAIRMAN AND CEO\n                                            ------------------------------------\n\n\n                                      HELL FIGHTERS, INC.,\n                                      a Texas corporation\n\n\n                                      By:\n                                         ---------------------------------------\n                                      Name: LARRY H. RAMMING\n                                           -------------------------------------\n                                      Title: CHAIRMAN AND CEO\n                                            ------------------------------------\n\n                                      INTERNATIONAL TOOL &amp; SUPPLY DE VENEZUELA\n                                      S.A., a company organized under the laws \n                                      of Venezuela\n\n\n                                      By:\n                                         ---------------------------------------\n                                      Name: LARRY H. RAMMING\n                                           -------------------------------------\n                                      Title: CHAIRMAN AND CEO\n                                            ------------------------------------\n\n                                      INTERNATIONAL TOOL &amp; SUPPLY PERU,\n                                      a company organized under the laws of Peru\n\n\n                                      By:\n                                        ----------------------------------------\n                                      Name: LARRY H. RAMMING\n                                           -------------------------------------\n                                      Title: CHAIRMAN AND CEO\n                                            ------------------------------------\n\n                                      INTERNATIONAL TOOL &amp; SUPPLY UK,\n                                      a company organized under the laws of \n                                      England and Wales\n\n\n                                      By:\n                                        ----------------------------------------\n                                      Name: LARRY H. RAMMING\n                                           -------------------------------------\n                                      Title: CHAIRMAN AND CEO\n                                            ------------------------------------\n\nTHIRD AMENDMENT TO FORBEARANCE AND EXTENSION AGREEMENT\nAND MODIFICATION AGREEMENT - Page 7\n\n   8\n\nINTERNATIONAL WELL CONTROL SERVICES,\nLTD., a company organized under the \nlaws of the Cayman Islands\n\nBy:\n   -------------------------------\nName: LARRY H. RAMMING\n     -----------------------------\nTitle: CHAIRMAN AND CEO\n      ----------------------------\n\n\n\nIWC ENGINEERING, INC.,\na Texas corporation\n\n\nBy:\n   -------------------------------   \nName: LARRY H. RAMMING\n     -----------------------------\nTitle: CHAIRMAN AND CEO\n      ----------------------------\n\nIWC SERVICES, INC.,\na Texas corporation\n\n\nBy:\n   -------------------------------\nName: LARRY H. RAMMING\n     -----------------------------\nTitle: CHAIRMAN AND CEO\n      ----------------------------\n\nSCHOTTEL, INC.,\na Delaware corporation\n\n\nBy:\n   -------------------------------\nName: LARRY H. RAMMING\n     -----------------------------\nTitle: CHAIRMAN AND CEO\n      ----------------------------\n\n\n\n\nTHIRD AMENDMENT TO FORBEARANCE AND EXTENSION AGREEMENT\nAND MODIFICATION AGREEMENT - Page 8\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6924,7154],"corporate_contracts_industries":[9415,9413],"corporate_contracts_types":[9560,9567],"class_list":["post-41030","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-boots---coots-international-well-control-inc","corporate_contracts_companies-comerica-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-energy__services","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41030","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41030"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41030"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41030"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41030"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}