AMENDMENT NO. 3 TO
AMENDED AND RESTATED LOAN AGREEMENT
AMENDMENT dated as of June 27, 1997 among FURMANITE PLC (formerly KANEB
UK PLC), a company incorporated under the laws of England and Wales (registered
number 2530049) (the "Borrower"), KANEB INTERNATIONAL INC., a Delaware
corporation ("Holding"), the financial institutions which are party to the Loan
Agreement hereinafter referred to (each a "Bank" and collectively, the "Banks"),
and BANK OF SCOTLAND, as agent for the Banks under such Loan Agreement (in such
capacity, the "Agent"), to the AMENDED AND RESTATED LOAN AGREEMENT dated as of
May 3, 1991 (as amended by an amendment thereto dated as of December 7, 1994,
and as further amended by an amendment thereto dated as of July 15, 1996, the
"Loan Agreement") among the Borrower, Holding, the Banks and the Agent.
W I T N E S S E T H :
WHEREAS, the Borrower and Holding have advised the Agent and the Banks
that they desire to enter into and consummate the Australian Transaction (as
defined below) and the Norwegian Transaction (as defined below);
WHEREAS, the Borrower and Holding have requested that the Revolving
Credit Loan Commitment be increased to $25,000,000 and that the Banks make
$5,475,047.86 in new term loans under the Loan Agreement;
WHEREAS, the Australian Transaction (the "Australian Transaction")
involves the following: (i) the establishment by Holding of Furmanite Offshore
Services Inc., a direct and wholly-owned Subsidiary of Holding incorporated
under the laws of the State of Delaware ("FOSI"); (ii) the establishment by FOSI
of Denon Pty Ltd. (ACN 078 420 112), a corporation incorporated under the laws
of Australia ("F-Australia"); (iii) the borrowing by F-Australia of A$5.0
million from BOS International (Australia) Limited ("BOS Australia"); (iv) the
lending by Holding to FOSI of A$1.1 million (the "Holding/FOSI (Australia)
Advance"); (v) the contribution of A$1.0 million by FOSI to the capital of
F-Australia; (vi) the lending by the Borrower of $5,475,047.86 million to
Holding (the "Borrower/Holding (Australia) Advance"); (vii) the acquisition by
F-Australia of certain assets from Furmanite Australia Pty Limited (ACN 004 792
312) (the "Australian Seller") for A$6.1 million pursuant to the Australian
Acquisition Agreement; (viii) the acquisition by Holding of certain intangible
assets from the Australian Seller for A$2.5 million pursuant to the Australian
Acquisition Agreement; (x) the issuance by the Issuer of a Letter of Credit for
the account of the Borrower in favor of BOS Australia in a Stated Amount of
A$5.0 million; (xi) the establishment by FOSI of V&P Engineering Ltd.
(AK/860-863), a corporation incorporated and the laws of New Zealand and "F-New
Zealand"; (xii) the contribution of A$100,000 by FOSI to the capital of F-New
Zealand and (xiii) the acquisition by Holding and F-New Zealand of certain
assets for A$300,000 pursuant to the New Zealand Acquisition Agreement;
WHEREAS, the Norwegian Transaction (the "Norwegian Transaction")
involves the following: (i) the establishment by FOSI of Furmanite Holding AS, a
corporation organized under the laws of Norway ("Norway Holdings"); (ii) the
establishment by Norway Holdings of Furmanite Norse Services AS, a corporation
organized under the laws of Norway ("Norway Opco"); (iii) the borrowing by
Holding from the Borrower of NOK4.0 million (the "Borrower/Holding (Norway)
Advance"), and on-lending by Holding to FOSI of NOK4.0 million (the
"Holding/FOSI (Norway) Advance"), and the contribution by FOSI to the capital of
Norway Holdings of NOK4.0 million; (iv) the borrowing by the Borrower under the
Agreement of the Dollar Equivalent of NOK4.0 million; (vi) the borrowing by
Norway Holdings of NOK17.0 million from Christiania Bank og Kreditkasse ASA
("Christiania"); (vi) the issuance by the Issuer of a Letter of Credit for the
account of the Borrower for the benefit of Christiania in a Stated Amount of
NOK17,700,000 million; (vii) the lending by Norway Holdings of NOK9.0 million to
Norway Opco (the "Norway Holding/Norway Opco Advance"); (viii) the purchase by
Norway Opco of certain assets from Norse Services AS pursuant to the Norwegian
Acquisition Agreement for NOK9.0 million; (ix) the purchase by Norway Holdings
from KOSI of 100% of the stock of Furmanite AS for NOK12.0 million in cash and
NOK2.0 million in the form of a promissory note; and (x) the purchase by Norway
Opco of all of the outstanding shares of Xxxxx Norge AS pursuant to the
Norwegian Acquisition Agreement;
WHEREAS, certain of the foregoing transactions and parts thereof are
prohibited by the Loan Agreement;
WHEREAS, Holding and the Borrower have asked the Agent and the Banks to
execute this Amendment and, subject to the terms and conditions contained
herein, the Agent and the Banks are amenable to doing so;
NOW, THEREFORE, it is agreed:
1. Definitions.
(1) All the terms used herein which are defined in the Loan Agreement
(including, to the extent any such terms are to be amended by this
Amendment, as if such terms were already amended by this Amendment,
unless the context shall indicate otherwise) shall have the same
meanings when used herein unless otherwise defined herein. All
references to Sections in this Amendment shall be deemed references to
Sections in the Loan Agreement unless otherwise specified.
(2) As used in this Amendment, the following terms shall have the
following meanings:
"A$" shall mean the lawful currency of Australia.
"NOK" shall mean the lawful currency of Norway.
2. Effect of Amendment. As used in the Loan Agreement (including all Exhibits
thereto), the Notes and the other Loan Documents and all other instruments and
documents executed in connection with any of the foregoing, on and subsequent to
the Amendment Closing Date (as hereafter defined), any reference to the Loan
Agreement shall mean the Loan Agreement as amended hereby.
3. Defined Terms.
(1) Annex I to the Loan Agreement is hereby amended by adding the
following paragraphs thereto in the appropriate alphabetical place:
"A$" shall mean the lawful currency of Australia.
"Australian Acquisition Agreement" shall mean the Asset
Purchase Agreement among Furmanite Australia Pty Ltd., Sierra Nominees
Pty Ltd., Crestside Pty Ltd., Xxxxxxx Xxxxxx Blackhouse, Xxxxxx Xxxxxxx
and F-Australia dated as of June 30, 1997.
"Australian Transaction" shall mean (i) the establishment by
FOSI of F-Australia; (ii) the borrowing by F-Australia of A$5.0 million
from BOS Australia; (iii) the lending by Holding to FOSI of A$1.1
million (the "Holding/FOSI (Australia) Advance"); (iv) the contribution
of A$1.1 million by FOSI to the capital of F-Australia; (v) the lending
by the Borrower of $5,475,047.86 million to Holding (the
"Borrower/Holding (Australia) Advance"); (vi) the acquisition by
F-Australia of certain assets from Furmanite Australia Pty Limited (ACN
004 792 312) (the "Australian Seller") for A$6.1 million pursuant to
the Australian Acquisition Agreement; (vii) the acquisition by Holding
of certain intangible assets from the Australian Seller for A$2.5
million pursuant to the Australian Acquisition Agreement; (viii) the
issuance by the Issuer of a Letter of Credit for the account of the
Borrower in favor of BOS Australia in a Stated Amount of A$5.0 million;
(ix) the establishment by FOSI of F-New Zealand; (x) the contribution
of A$100,000 by FOSI to the capital of F-New Zealand and (xi) the
acquisition by Holding and F-New Zealand of certain assets for
A$300,000 pursuant to the New Zealand Acquisition Agreement;
"Borrower/Holding (Australia) Advance" - as defined in
"Australian Transaction".
"Borrower/Holding/ (Norway) Advance" - as defined in
"Norwegian Transaction"
"BOS Australia" shall mean BOS International (Australia)
Limited.
"BOS Australia Advances" - shall mean the loans in the
aggregate principal amount of approximately A$5,000,000 made by BOS
Australia pursuant to the BOS Australia Loan Documents.
"BOS Australia L/C" shall mean the letter of credit that may
issued by the Issuer in favor of BOS Australia pursuant to Section
2A.1(f) in the Stated Amount of A$5.0 million in connection with the
Australian Transaction.
"BOS Australia Loan Documents" shall mean the A$ Revolving
Loan Facility between BOS Australia and F-Australia, dated June 27,
1997 and security agreements and other agreements, documents and
instruments related thereto executed by F-Australia on or about the
NTAD.
"Christiania" shall mean Christiania Bank og Kreditkasse ASA.
"Christiania Advance" shall mean the loan in the principal
amount of NOK17,000,000 which may made by Christiania pursuant to the
Christiania Loan Documents.
"Christiania L/C" shall mean the letter of credit that may be
issued by the Issuer pursuant to Section 2A.1(f) in favor of
Christiania in the Stated Amount of NOK17,700,000 in connection with
the Norwegian Transaction.
"Christiania Loan Documents" shall mean the letter agreement
between Christiania and Furmanite Holding AS dated May 23, 1997
relating to the borrowing by Norway Holdings of NOK17,000,000 and all
agreements, documents, notes and other instruments entered into
pursuant thereto or in connection therewith on or about the Norwegian
Closing Date.
"F-Australia" shall mean Denon Pty Ltd., a corporation
organized under the laws of Australia.
"F-New Zealand" shall mean V&P Engineering Ltd., a corporation
organized under the laws of New Zealand.
"Holding/FOSI (Australia) Advance" - as defined in "Australian
Transaction".
"Holding/FOSI (Norway) Advance" - as defined in "Norwegian
Transaction".
"New Third Amendment" shall mean the amendment to the
Agreement (as then in effect) designated as Amendment No. 3 to Amended
and Restated Loan Agreement and dated as of June 27, 1997.
"New Third Amendment Date" shall have the same meaning as the
term "Amendment Closing Date" in the New Third Amendment.
"New Zealand Acquisition Agreement" - shall mean the Asset
Purchase Agreement among Furmanite V&P Engineering Ltd., Furmanite
Australia Pty. Ltd., and F-New Zealand dated as of June 30, 1997.
"1997 Intercompany Notes" - Section 8.3(xxii).
"1997 Term Loans" - Section 2.4A.
"1997 Term Note" shall mean a promissory note of the Borrower
substantially in the form of Exhibit T-1 to the New Third Amendment as
such Note may be from time to time amended, supplemented, restated or
otherwise modified.
"NOK" shall mean the lawful currency of Norway.
"Norway Holdings" shall mean Furmanite Holdings AS, a
corporation organized under the laws of Norway.
"Norway Holdings/KOSI Note" - as defined in "Norwegian
Transaction".
"Norway Holdings/Norway Opco Advance" - as defined in
"Norwegian Transaction".
"Norway Opco" shall mean Furmanite Norse Services AS, a
corporation organized under the laws of Norway.
"Norwegian Closing Date" - the date on which (i) all
conditions set forth in Section 23 of the NTA are satisfied and (ii)
the Christiania Advance is made.
"Norwegian Acquisition Agreement" shall mean the Asset
Purchase Agreement between Norse Services AS and Norway Opco in the
form of the draft therof dated June 18, 1997.
"Norwegian Transaction" shall mean (i) the establishment by
FOSI of Norway Holdings; (ii) the establishment by Norway Holdings of
Norway Opco; (iii) the borrowing by Holding from the Borrower of NOK4.0
million (the "Borrower/Holding (Norway) Advance"), and on-lending by
Holding to FOSI of NOK4.0 million (the "Holding/FOSI (Norway)
Advance"), and the contribution by FOSI to the capital of Norway
Holdings of NOK4.0 million; (iv) the borrowing by the Borrower under
the Agreement of the Dollar Equivalent of NOK4.0 million; (vi) the
borrowing by Norway Holdings of NOK17.0 million from Christiania; (vi)
the issuance by the Issuer of the Christiania L/C in a Stated Amount of
NOK17,700,000 million; (vii) the lending by Norway Holdings of NOK9.0
million to Norway Opco (the "Norway Holding/Norway Opco Advance");
(viii) the purchase by Norway Opco of certain assets from Norse
Services AS pursuant to the Norwegian Acquisition Agreement for NOK9.0
million; (ix) the purchase by Norway Holdings from KOSI of 100% of the
stock of Furmanite AS for NOK12.0 million in cash and NOK2.0 million in
the form of a promissory note (the "Norway Holding/KOSI Note"); and (x)
the purchase by Norway Opco of all of the outstanding shares of Xxxxx
Norge AS pursuant to the Norwegian Acquisition Agreement.
"NTA" - shall mean the New Third Amendment.
"NTAD" shall mean the New Third Amendment Date.
"Transactions" shall mean, individually and collectively, the
Australian Transaction and the Norwegian Transaction.
(2) The following defined terms in Annex I are hereby amended to read
in their entirety as follows:
"Base Rate (US) Differential" shall mean, from and after the
NTAD, 0.25%; provided that from and after the date subsequent to the
NTAD of delivery to the Agent of a certificate of Holding's chief
financial officer which states that (and provides calculations (using
the calculation method set forth in Section 8.22, but including 100% of
Long-Term Debt in such calculations) in form and substance satisfactory
to the Agent evidencing that) the ratio of Long-Term Debt of the
Consolidated Group at the end of the most recently completed four
fiscal quarter period to EBITDA of the Consolidated Group (as so
calculated) for such four fiscal quarter period was less than 2.5 to
1.0, Base Rate (US) Differential shall mean 0%, if and only if on the
date of delivery of such certificate and on the date of the last such
completed fiscal quarter, no Default or Event of Default exists.
"Commitments" shall mean each Term Loan Commitment, each 1997
Term Loan Commitment and each Revolving Credit Loan Commitment.
"Eurocurrency Differential" shall mean, from and after the
NTAD, 1.25%; provided that from and after the date subsequent to the
NTAD of delivery to the Agent of a certificate of Holding's chief
financial officer which states that (and provides calculations (using
the calculation method set forth in Section 8.22, but including 100% of
Long-Term Debt in such calculations) in form and substance satisfactory
to the Agent evidencing that) the ratio of Long-Term Debt of the
Consolidated Group at the end of the most recently completed four
fiscal quarter period to EBITDA of the Consolidated Group (as so
calculated) for such four fiscal quarter period was less than 2.5 to
1.0, Eurocurrency Differential shall mean 1.0%, if and only if on the
date of delivery of such certificate and on the date of the last such
completed fiscal quarter, no Default or Event of Default exits.
"Determination Date" shall mean the last Business Day of each
calendar quarter and, for purposes of Section 2.5(a), each such other
date or dates on which the Agent shall notify the Borrower that it has
calculated the Dollar Equivalent of the LC Obligations.
"Note" shall mean a Term Note, a Revolving Credit Note or a
1997 Term Note, and Notes shall mean Term Notes, Revolving Credit Notes
and 1997 Term Notes.
"Specified Percentage" shall mean (a) with respect to the
Stated Amount of the Xxxxxxxx XX, .75% (b) with respect to all other
Letters of Credit other than the BOS (Australia) Letter of Credit, the
Eurocurrency Differential then applicable with respect to LIBOR Loans,
and (c) with respect to the BOS (Australia) Letter of Credit, 0%.
"Term Loan" shall mean a Term Loan (as defined in Section
2.1(a)) and, for all purposes other than Section 2.1, 2.3 or 2.4(a), a
1997 Term Loan.
(3) The following defined terms in Annex I are hereby amended as
follows:
"Foreign Guarantor": to insert Denon Pty Limited and V&P
Engineering Ltd. and, after the occurrence of the Norwegian Closing
Date (unless excused pursuant to Section 23 of the NTA), Furmanite
Holdings AS and Furmanite Norse Services AS.
"Guarantee Agreements": to add the following at the end
thereof:
"Guarantee Agreements" shall also include each guaranty
delivered by any Subsidiary of Holdings or the Borrower pursuant to the
New Second Amendment or the New Third Amendment.
"Loan Party": to add the words "or FOSI" at the end thereof.
"Security Agreement": to add the following at the end thereof:
"Security Agreements" shall also include each security
agreement delivered pursuant to the New Third Amendment.
"Significant Subsidiary": to add the following at the end
thereof:
Notwithstanding anything to the contrary contained in this
Agreement or any other Loan Document (including, without
limitation, the definition of "Insignificant Subsidiary" in
this Annex I), (i) each of FOSI and F-Australia shall be a
Significant Subsidiary for so long as it is a Subsidiary of
Borrower or Holding; (ii) each of Norway Holdings and Norway
Opco shall be a Significant Subsidiary for so long as it is a
Subsidiary of Borrower or Holding, except that neither such
Subsidiary shall be a Significant Subsidiary for purposes of
Section 7.20 unless it shall have executed and delivered a
Guaranty Agreement, Security Agreement and Pledge Agreement
satisfactory to the Agent.
4. Section 2.3. The first sentence of Section 2.3(b) is hereby amended to read
as follows:
"The Term Note of each Bank shall be substantially in the form
of Exhibit P-1 to the New First Amendment and the Revolving Credit Note
of each Bank shall be substantially in the form of Exhibit RC-I to the
New Third Amendment."
5. Section 2.4A. A new Section, Section 2.4A, is added to the Loan Agreement,
immediately after Section 2.4 of the Loan Agreement, as follows:
"Section 2.4A. 1997 Term Loans. (a) Subject to the terms and
conditions set forth herein, on the NTAD each Bank severally agrees to
make a term loan to the Borrower (each a "1997 Term Loan") in the
amount set forth opposite its name under on Schedule 2.1 hereto under
the heading "1997 Term Loan Commitment" (for each Bank, its "1997 Term
Loan Commitment" and collectively for all Banks, the "1997 Term Loan
Commitments"). The borrowing from the Banks pursuant to this Section
2.4A shall be (1) in a single advance, (2) in an aggregate principal
amount not to exceed $5,475,047.86 and (3) made from each Bank pro rata
on the basis of the 1997 Term Loan Commitment of each Bank.
(b) The Banks shall not be required to make the 1997 Term
Loans unless such Loans are made, in accordance with the provisions of
this Agreement, on or prior to June 30, 1997 (or such later date as the
Agent agrees to in writing).
(c) The Borrower shall give telephonic (confirmed on the same
date by telecopier or otherwise in writing) or written notice to the
Agent of the proposed borrowing of the 1997 Term Loans hereunder, which
notice shall specify the proposed Borrowing Date (which shall be a
Business Day); the total amount of the proposed borrowing; and shall be
given no later than 9:00 a.m., Closing Office Time on the proposed
Borrowing Date.
(d) (i) The Borrower's obligation to pay the principal of, and
interest on, the 1997 Term Loan of each Bank shall be evidenced by a
1997 Term Note payable to the order of such Bank.
(ii) The 1997 Term Note of each Bank shall be in
substantially the form of:
Exhibit T-1 to the New Third Amendment and be in an original
principal amount equal to such Bank's 1997 Term Loan
Commitment and shall be secured by the Security Documents.
(e) The Borrower shall repay the 1997 Term Loans on the last
Business Day of each month indicated below (each such date, a "1997
Term Loan Repayment Date") by the amount indicated along side each such
Repayment Date:
Last Business Day of Amount
December 1997 $300,000
June 1998 $300,000
December 1998 $300,000
June 1999 $300,000
December 1999 $300,000
June 2000 $300,000
December 2000 $675,047.86
June 2001 $1,500,000
December 2001 $1,500,000
On each 1997 Term Loan Repayment Date, an aggregate principal
amount of the 1997 Term Loans equal to the amount required to be paid
on such date shall mature and become due and payable. If for any reason
the Borrower borrows less than the full amount to the 1997 Term Loan
Commitment, amounts not borrowed will be deducted from the amount of
the 1997 Term Loan due at final maturity and thereafter from the
installments due on the 1997 Term Loans pursuant to this Section 2.4(e)
in inverse order of maturity.
(f) All amounts applied to the 1997 Term Loans under this
Section 2.4A and the other provisions of this Agreement shall be
applied ratably to the 1997 Term Loans then outstanding and shall be
applied first to the portion of principal thereof payable at final
maturity and thereafter to the installments due on the 1997 Term Loans
pursuant to Section 2.4A(e) in inverse order of maturity.
(g) Amounts prepaid pursuant to this Section 2.4(A) may not be
reborrowed. All prepayments received by the Agent pursuant to this
Section 2.4A or pursuant to the other provisions Sections 2.5, 2.6 and
2.7 shall be distributed by the Agent in accordance with the provisions
of Section 5.3."
(h) The proceeds of the 1997 Term Loans will be used by the
Borrower solely to make the Borrower/Holding Australia Advance, and
used by Holding solely to consummate the Australian Transaction.
6. Section 2A. Section 2A of the Loan Agreement is amended by inserting therein
a new Section 2A.1(f) as follows:
"(f) (i) Notwithstanding any provision of this Section 2A.1 to
the contrary, the Borrower shall be permitted to request (by way of an
Issuance Request) that the Issuer issue the BOS Australia L/C, and,
subject to the terms and conditions of this Agreement (including,
without limitation, Section 6A and Section 2A but excluding Section
2A.1(b)(iv)), on the NTAD the Issuer shall issue the BOS Australia L/C,
and such letter of credit shall constitute a Letter of Credit for all
purposes of this Agreement; provided, however, that (i) all
reimbursements under Section 2A.4 for amounts disbursed under the BOS
Australia L/C shall be made in Dollars, in the Dollar Equivalent of
each disbursement thereunder, (ii) unpaid Reimbursement Obligations
thereunder pursuant to the fourth sentence of Section 2A.4 shall be
converted into Dollars and (iii) all Deemed Disbursements shall be
deemed to have been made in A$ and reimbursements in respect thereof
under Section 2A.6 shall be made in A$.
(ii) Notwithstanding any provision of this Section 2A.1
to the contrary, the Borrower shall be permitted to request (by way of
an Issuance Request) that the Issuer issue the Christiania L/C and,
subject to the terms and conditions of this Agreement (including,
without limitation, Section 6A and Section 2A but excluding Section
2A.1(b)(iv)), on the Norwegian Closing Date, provided that such date
occurs on or prior to July 31, 1997, the Issuer shall issue the
Christiania L/C, and such letter of credit shall constitute a Letter of
Credit for all purposes of this Agreement; provided, however, that (i)
all reimbursements under Section 2A.4 for amounts disbursed under the
Christiania L/C shall be made in Dollars, in the Dollar Equivalent of
each disbursement thereunder, (ii) unpaid Reimbursement Obligations
thereunder pursuant to the fourth sentence of Section 2A.4 shall be
converted into Dollars and (iii) all Deemed Disbursements shall be
deemed to have been made in NOK and reimbursements in respect thereof
under Section 2A.6 shall be made in NOK."
7. Section 4.1. Section 4.1 is amended by deleting the percentage A2 of 1% and
replacing such percentage with A0.35%".
8. Sections 4.7 and 4.8. Section 4 is amended by adding the following after
Section 4.6 therein:
"4.7 Continuation Fee. The Borrower agrees to pay to the Agent
on the NTAD (for the account of the Banks party to this Agreement on
NTAD) a non-refundable continuation fee of $100,000. The Borrower's
obligation to pay this fee is an obligation of the Borrower under the
Agreement and is secured by the Security Documents and entitled to the
benefits of the Guarantee Agreements.
"4.8 Amendment Fee. The Borrower agrees to pay to the Agent on
the NTAD (for the account of the Banks party to this Agreement on the
NTAD), a non-refundable facility amendment fee of $35,000. The
Borrower's obligation to pay this fee is an obligation of the Borrower
under this Agreement and is secured by the Security Documents and
entitled to the benefits of the Guarantee Agreement."
9. Section 8.1. Section 8.1(b) is amended and restated in full as follows:
"(b) Holding will not enter into any business or activity
other than its ownership of the capital stock of the Borrower, FAI,
FOSI, KOSI and its ownership and licensing to its Subsidiaries of
intellectual property rights and, to the extent Holding's board of
directors directs, its participation in the management and business of
the Borrower, FAI, FOSI and KOSI."
10. Section 8.2. Section 8.2 is amended by adding a new subclause (j) at the end
thereof, as follows:
"(j) and Liens by Furmanite Australia in favor of BOS
Australia pursuant to the BOS Australia Loan Documents until all BOS
Australia Advances are paid in full;"
11. Section 8.3. Section 8.3 is amended by adding new clauses (xx), (xxi) and
(xxii) to the end thereof as follows:
"and
(xx) indebtedness of Furmanite Australia to BOS Australia
consisting of the BOS Australia Advances;
(xxi) provided that the Norwegian Closing Date occurs on or
prior to July 31, 1997 unsecured indebtedness of
Norway Holdings to Christiania consisting of the
Christiania Advance; and
(xxii) the following intercompany indebtedness: (A)(i) the
Holding/FOSI (Australia) Advance, and (ii) the
Borrower/Holding (Australia) Advance; and (B)
provided that the Norwegian Closing Date occurs on or
prior to July 31, 1997, (i) the Borrower/Holding
(Norway) Advance; (ii) the Holding/FOSI (Norway)
Advance, (iii) the Norway Holdings/Norway Opco
Advance, and (iv) the Norway Holdings/FOSI Note;
provided, that each such indebtedness referred to in
clause (A) and (B) above is evidenced by an
intercompany note in the form of Exhibit IC-I to the
New Third Amendment (all such notes, the "1997
Intercompany Notes") which is pledged to the Agent
pursuant to the Security Documents."
12. Section 8.5. Section 8.5 of the Loan Agreement is amended by adding the
following at the end of the first proviso to such Section (after clause (f) of
such proviso):
"and, provided, further, that the Borrower, Holding and their
respective subsidiaries may make the advances referred to in clause
(xxii) of Section 8.3 to the extent permitted by said clause (xxii)."
13. Section 8.12. Section 8.12(a) of the Loan Agreement is amended by adding,
following clause (iv) thereof, the following clause:
"or (v) provided that the Norwegian Closing Date occurs on or
prior to July 31, 1997 the sale by KOSI to Norway Holdings of 100% of
the capital stock of Furmanite AS in connection with the consummation
of the Norwegian Transaction, on the terms provided in the definition
thereof;"
14. Section 8.13. The chart in Section 8.13 is amended to read in its entirety
as follows:
Calendar Year Amount
------------- ------
1993 $3,000,000
1994 3,560,000
1995 5,000,000
1996 5,000,000
1997 6,000,000
1998 6,000,000
1999 6,000,000
2000 6,000,000
2001 6,000,000
15. Section 8.10. Section 8.10 of the Loan Agreement is amended by adding the
following clause at the end thereof:
"provided that, (i) Holding, F-Australia and F-New Zealand
shall be permitted to purchase assets pursuant to the Australian
Acquisition Agreement provided that such purchases are made
substantially in accordance with the terms of the Australian
Acquisition Agreement and for consideration not in excess of that set
forth in the definition of "Australian Transaction", and (ii) Norway
Holdings and Norway Opco shall be permitted to purchase assets pursuant
to the Norwegian Acquisition Agreement, provided that (A) the Norwegian
Closing Date occurs on or prior to July 31, 1997, and (B) such
purchases are made substantially in accordance with the terms of the
Norwegian Acquisition Agreement and for consideration not in excess of
that set forth in the definition of "Norwegian Transaction"."
16. Section 8.27. Section 8.27 is amended by inserting after the words "the Tax
Allocation Agreement," in the third line thereof, the following words: "the
Christiania Loan Documents, the BOS (Australia) Loan Documents, the Australian
Acquisition Agreement, the New Zealand Acquisition Agreement the Norwegian
Acquisition Agreement".
17. Consents. In reliance on the agreements and the accuracy of the
representations and warranties of Borrower and Holding contained elsewhere in
this Amendment, (i) the Agent and the Banks hereby consent, for purposes of
Section 8.12(b) and Section 8.14 of the Loan Agreement, to (A) the organization
by Holding of FOSI and (B) the organization by FOSI of F-Australia and F-New
Zealand; (ii) provided that the Norwegian Closing Date occurs on or prior to
July 31, 1997, the Agent and the Banks hereby consent to the organization by
FOSI of Norway Holdings, to the organization by Norway Holdings of Norway Opco
and to the acquisition by Norway Opco of Xxxxx Norge AS pursuant to the
Norwegian Acquisition Agreement; and (iii) the Agent and Required Banks hereby
consent to the change of Holding's name to Furmanite Worldwide Inc. (it being
agreed by the Borrower and Holding that from and after the date of such name
change, each reference to Holding in the Agreement and each other Loan Document
shall (unless the context otherwise requires in order to provide the Agent and
Banks with the intended benefits thereof) be deemed to refer to Holding with its
name so changed).
18. Section 10.5.Section 10.5 of the Loan Agreement is hereby amended by adding
the following as clause (h) at the end thereof:
"(h) On and after the Amendment Closing Date, Holding will own
100% of the issued and outstanding shares of capital stock of FOSI and
FOSI will own 100% of the issued and outstanding shares of capital
stock of F-Australia and of F-New Zealand. On and after the Norwegian
Closing Date, FOSI will own 100% of the issued and outstanding shares
of capital stock of Norway Holdings, Norway Holdings will own 100% of
the issued and outstanding shares of capital stock of Norway Opco and
Furmanite AS, and Norway Opco will own 100% of the issued and
outstanding shares of capital stock of Xxxxx Norge AS."
19. Schedules. Schedule 2.1 to this Amendment is hereby deemed to be Schedule
2.1 to the Agreement.
20. Representations. To induce the Agent and the Banks to enter into this
Amendment and to grant the consent contained herein, Holding and the Borrower
hereby jointly and severally represent and warrant to the Banks and the Agent as
follows (which representations and warranties shall survive the execution,
delivery and effectiveness of this Amendment):
(1) The execution and delivery by each Credit Party (to the
extent it is party thereto) of this Amendment, the Confirming Consent,
the Notes being delivered on the NTAD, and all other amendments and
agreements being delivered on the NTAD or pursuant thereto and such
Person's performance of such Loan Documents and the Agreement as
amended by this Amendment and the consummation of the transactions
contemplated under this Amendment and such other Loan Documents and the
use of the proceeds of the Loans have been duly authorized by all
necessary corporate and stockholder action.
(2) This Amendment, the Agreement as amended by this
Amendment, the Confirming Consent, the US Pledge Agreement as amended
by Amendment No. 3 thereof and the Notes being delivered on the NTAD
and all other amendments and agreements delivered on the NTAD or
pursuant thereto are the legal, valid and binding obligations of the
Credit Parties party thereto, enforceable in accordance with their
respective terms subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization and similar laws affecting the
enforcement of creditors' rights generally and to general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(3) The Security Documents secure or guarantee, as the case
may be, all Loans whether made before, on or after the NTAD. No
amendments need to be made in any of the Security Documents, nor does
any action need to be taken, to effectuate the provisions of the
preceding sentence.
(4) The priority of all Liens in favor of the Agent and the
Banks under the Security Documents (whether in respect of Loans made
before, on or after the NTAD) shall be the same as the priority of all
Liens immediately prior to the NTAD with respect to Loans outstanding
immediately prior to the NTAD.
(5) No Default or Event of Default exists.
(6) All representations and warranties contained in the
Agreement and in the other Loan Documents or otherwise made by the
Borrower or any other Credit Party in connection with any of the
foregoing are true and correct in all material respects with the same
effect as though such representations and warranties were now being
made.
21. Effectiveness. This Amendment shall become effective when and as of the date
(the "Amendment Closing Date") that each of the following conditions have been
fulfilled to the satisfaction of the Agent (or waived by the Agent). The first
date on which all of the following conditions have been so satisfied (or so
waived) is herein referred to as the "Amendment Closing Date". If the Amendment
Closing Date shall not have occurred by the close of business (New York time) on
July 1, 1997 (or such later date as may be specified to by the Agent in
writing), this Amendment shall be deemed rescinded, null and void:
(1) The Borrower, Holding, and the Banks shall have executed a
copy hereof and delivered the same to the Agent at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (Attention: Xxxx Xxxxx) or, in the case of the
Banks, shall have given to the Agent written notice (actually received)
that the same has been signed and is being sent to the Agent.
(2) The Borrower, KSI, FAI, FOSI, each UK Guarantor and each
Foreign Guarantor shall have each executed a confirming consent,
substantially in the form of Annex A hereto or otherwise satisfactory
to the Agent (each, a "Confirming Consent"), and delivered the same to
the Agent.
(3) There shall have been delivered to the Agent a certificate
of an authorized officer and of the secretary of each of the Borrower,
Holding, F-Australia, F-New Zealand and FOSI, with respect to the
various transactions referred to herein, along with resolutions
authorizing the same, specimen signatures and incumbency certificates,
in form and substance satisfactory to the Agent, certified copies of
the Charter Documents of each such Person (other than the Borrower) and
a short form and long-form good-standing certificate of FOSI, which in
each case, shall be satisfactory to the Agent in all respects.
(4) The Borrower shall have delivered the 1997 Term Note and
the Revolving Credit Note in the form of Exhibit RC-1 hereto to the
Agent.
(5) Amendment No. 3 to the Pledge Agreement (adding, inter
alia FOSI as a Pledgor and referring to the pledge of stock of
F-Australia, F-New Zealand and FOSI and to the 1997 Intercompany Notes)
along with such shares of stock with accompanying stock powers endorsed
in blank and such 1997 Intercompany Notes, endorsed in blank, shall
have been delivered to the Agent.
(6) FOSI shall have executed and delivered to the Agent the
Security Agreement in the form of Exhibit S-1 hereto.
(7) Guaranty Agreements in the form of Exhibit G-1 hereto,
shall have been executed and delivered to the Agent by each of FOSI,
F-Australia and F-New Zealand.
(8) Each of F-Australia, F-New Zealand and FOSI shall have
appointed CT Corporation Systems, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx as
their agent for service of process.
(9) Borrower and Holding shall have delivered to the Agent
copies, certified by an officer of Holding, of the Australian
Acquisition Agreement, the New Zealand Acquisition Agreement and the
BOS Australia Loan Documents, and evidence satisfactory to the Agent
that the Australian Transaction shall have been consummated
substantially in accordance with the definition thereof, the Australian
Acquisition Agreement and the New Zealand Acquisition Agreement and
that no material provision of either such Acquisition Agreement shall
have been amended or waived by any party thereto (other than the
sellers, in the case of a waiver).
(10) The Borrower shall have requested the making of the 1997
Term Loans and the conditions of Section 6A of the Agreement shall have
been satisfied with respect thereto on such date (after giving effect
to the amendments and consent contained herein).
(11) Holding and the Borrower shall have delivered to the
Agent:
(a) a legal opinion from Xxxxxxx Xxxxxx, Esq., counsel for the
Credit Parties (or other counsel satisfactory to the Agent),
covering (x) the matters set forth in Annex B hereto, and (y)
such other matters as the Agent or any Bank shall reasonably
request;
(b) a legal opinion of Messrs. Xxxxxxx Xxxxx, UK Counsel for the
Credit Parties, covering (x) the matters set forth in Annex C
hereto and (y) such other matters as the Agent or any Bank
shall reasonably request; and
(c) a legal opinion of Messrs. Coors, Chambers, Westgarth,
Australian counsel for the Credit Parties, covering (x) the
matters set forth on Annex D hereto and (y) such other matters
as the Agent or any Bank shall reasonably request.
(12) The continuation fee referred to in Section 4.7 of the
Agreement and the Amendment fee referred to in Section 4.8 of the
Agreement shall have been paid to the Agent.
(13) The Borrower's shall have delivered a solvency
certificate in the form of Exhibit SC-1 hereto to the Agent.
All agreements, documents, and other instruments required to be
delivered to the Agent pursuant to this Section 21 shall be in form and
substance satisfactory to the Agent.
22. Post-Closing Obligations. To induce the Agent and the Banks to enter into
this Amendment and to grant the consent contained herein, Holding and the
Borrower hereby jointly and severally agree to deliver (or cause to be
delivered) to the Agent (unless the Agent shall have agreed otherwise in
writing):
(1) on or before July 10, 1997 (or such later date as the
Agent shall have consented to in writing), the items listed below:
(a) Such Form UCC-1 financing statements executed by FOSI and
Holding as Agent shall request;
(b) Evidence of all recordations necessary or requested by Agent
to perfect security interests granted by F-Australia and F-New
Zealand to BOS Australia;
(c) Such agreements, instruments, documents and papers as the
Agent may reasonably request to evidence the security interest
in all intellectual property acquired by Holding pursuant to
the Australian Transaction in form appropriate for recordation
in the U.S. Patent and Trademark Office (if applicable) and
such other offices as the Agent shall designate, executed by
Holding; and
(d) A confirming consent (in form acceptable to the Agent)
executed by Furmanite East Asia Limited and Furmanite SA.
(e) An acceptance by CT Corporations Systems, satisfactory to the
Agent, of its appointments as agent for service of process of
FOSI, F-Australia and F-New Zealand.
(f) 100% of the issued and outstanding shares of capital stock of
Norway Holdings along with stock powers duly executed in
blank, unless the Borrower delivers an opinion of Norwegian
counsel to the Borrower to the effect that the pledge by FOSI
of such shares of capital stock would violate Norwegian law;
(g) To the extent any filings or actions not referred to in clause
(A) above are required or, in the reasonable opinion of Agent,
desirable, as a result of this Amendment or with respect to
the transactions contemplated hereby, evidence that all such
filings and all other actions with respect to the Liens or
maintenance of the priority or perfection thereof created by
the Security Documents (including, without limitation, any
notations on the books and records of any Credit Party or any
public register and whether in respect of Loans or other
extensions of credit made before, on or after the NTAD), have
been taken or made;
(h) Charter Documents of F-Australia and F-New Zealand and officer
and secretary certificates thereof (to the extent not provided
pursuant to Section 21), satisfactory to the Agent;
(i) Originals of the 1997 Intercompany Notes in form satisfactory
to the Agent and share certificates of F-Australia and F-New
Zealand (to the extent not provided pursuant to Section 21;
(j) An opinion of UK counsel to Holding satisfactory to the Agent
supplementing the opinion by such counsel previously
delivered;
(2) On or before July 3, 1997, (A) copies of all filings made
by Holding with the Secretary of State of Delaware with respect to the
change of name of Holding to Furmanite Worldwide, Inc. and (B) a
certificate, reasonably satisfactory to the Agent, of a senior officer
of the Borrower and Holding to the effect set forth in Section 21
(i)[and (c) to the extent not delivered pursuant to Section 21(m), the
solvency certificate referred to therein].
(3) On or before August 15, 1997 (or such later date as the
Agent may in writing specify), an amendment and restatement of the Loan
Agreement as prepared by the Agent, which takes account of this and
prior amendments and includes such conforming changes as are required
by the Agent and other changes as may be agreed upon between the
parties.
The failure by the Borrower or Holding to comply with any of
the provisions of this Section on or before such date (or such later
date as the Agent shall have consented to in writing) shall be an Event
of Default (without any "grace period") as fully as if same were set
forth in full in Section 9 of the Loan Agreement.
(4) Conditions to Extensions of Credit for the Norwegian
Transaction. The Banks shall not be required to make any Loans in
connection with the Norwegian Transaction and the Issuer shall not be
required to issue the Christiania LC unless, at the time of the making
of such Loan or the issuing of such letter of credit, the following
conditions shall have been satisfied (waived in writing by the Required
Banks):
(a) All conditions set forth in Section 6A of the Loan
Agreement shall be satisfied;
(b) There shall have been delivered to the Agent a
certificate of an authorized officer and of the
secretary of each of the Borrower, Norway Holdings,
Norway Opco and FOSI with respect to the various
credit events relating to the Norwegian Transaction
and the other aspects of the Norwegian Transaction,
along with resolutions authorizing the same, specimen
signatures and incumbency certificates, in form and
substance satisfactory to the Agent, and certified
copies of the Charter Documents of Norway Holdings
and Norway Opco;
(c) Norway Holdings and Norway Opco shall have executed
and delivered to the Agent a Security Agreement in
form of Exhibit S-1 hereto (with such modifications
as are required by Norwegian law) unless the Borrower
shall have delivered an opinion of Norwegian counsel
that no such agreement may be delivered by such
Person under Norwegian law, notwithstanding
modification of the form of such agreement and Norway
Holdings, the Borrower and Holding (and such other
Persons as the Agent shall require) shall have
executed an amendment to the Pledge Agreement
pursuant to which Norway Holding becomes a party
thereto and pledges and delivers to the Agent 100% of
the outstanding shares of stock of Norway Opco (along
with stock powers endorsed in blank) unless the
Borrower shall have delivered an opinion of Norwegian
counsel that no such agreement may be delivered by
such Person under Norwegian law, notwithstanding
modification of the form of such agreement ;
(d) Norway Holdings and Norway Opco shall have executed
and delivered to the Agent Guaranty Agreements in the
form of Exhibit __ hereto (with such modifications as
are required by Norwegian law) unless the Borrower
shall have delivered an opinion of Norwegian counsel
that no such agreement may be delivered by such
Person under Norwegian law, notwithstanding
modification of the form of such agreement, and
appointed CT Corporation Systems, 0000 Xxxxxxxx, as
their agent for service of process and shall have
delivered to the Agent CT Corporation Systems'
acceptance of such appointment;
(e) Borrower and Holding shall have delivered to the
Agent copies, certified by an officer of Holding, of
the Norwegian Acquisition Agreement and the
Christiania Loan Documents and evidence satisfactory
to the Agent that the Norwegian Transaction shall
have been consummated substantially in accordance
with the definition thereof and the Norwegian
Acquisition Agreement and that no provision of such
Acquisition Agreement shall have been amended, or
waived by any Loan Party or Subsidiary thereof, along
with a certificate of a senior officer of the
Borrower and Holding to such effect;
(f) Holding and Borrower shall have delivered to the
Agent a legal opinion of Norwegian counsel to the
Borrower, covering such matters as the Agent or any
Bank shall reasonably request;
(g) Holding and Borrower shall have delivered to the
Agent evidence of all recordations necessary or
requested by the Agent to perfect security interests
granted by Norway Holding and Norway Opco (if such
interests are granted); and
(h) Holding and the Borrower shall have delivered or
caused to be delivered such other agreements,
instruments and documents as are reasonably requested
by the Agent.
All agreements, documents and other instruments required to be
delivered to the Agent pursuant to this Section 23 shall be in form and
substance satisfactory to the Agent.
(5) Limited Nature of Amendments. The amendments, waivers (if
any) and consents (if any) set forth herein are limited precisely as
written and shall not be deemed to (a) be a consent to any waiver of,
or modification of, any other term or condition of the Loan Agreement
or any of the documents referred to therein or (b) prejudice any right
or rights which the Banks or the Agent may now have or may have in the
future under or in connection with the Loan Agreement or any of the
documents referred to therein. Except as expressly amended hereby, the
terms and provisions of the Loan Agreement shall remain in full force
and effect.
(6) Integration. THIS AMENDMENT, THE LOAN AGREEMENT (AS
AMENDED BY THIS AMENDMENT) AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE MATTERS
COVERED HEREBY AND THEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
(7) Governing Law. THIS AMENDMENT, INCLUDING THE VALIDITY
THEREOF AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
(8) Counterparts. This Amendment may be executed in any number
of counterparts by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all the counterparts shall together constitute one and
the same instrument. Telecopied signatures hereto shall be of the same
force and effect as an original of a manually signed copy.
(9) Headings. The descriptive headings of the various
provisions of this Amendment are inserted for convenience of reference
only and shall not be deemed to affect the meaning or construction of
any of the provisions hereof.
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.
BANK OF SCOTLAND,
individually and as Agent
By: //s//
FURMANITE PLC
(formerly KANEB UK plc)
By: //s//
KANEB INTERNATIONAL INC.
By: //s//
AMENDMENT NO. 4 TO
AMENDED AND RESTATED LOAN AGREEMENT
AMENDMENT dated as of December 15, 1997 among FURMANITE PLC (formerly
KANEB UK PLC), a company incorporated under the laws of England and Wales
(registered number 2530049) (the "Borrower"), FURMANITE WORLDWIDE INC. (formerly
KANEB INTERNATIONAL INC.), a Delaware corporation ("Holding"), the financial
institutions which are party to the Loan Agreement hereinafter referred to (each
a "Bank" and collectively, the "Banks"), and BANK OF SCOTLAND, as agent for the
Banks under such Loan Agreement (in such capacity, the "Agent"), to the AMENDED
AND RESTATED LOAN AGREEMENT dated as of May 3, 1991 (as amended by an amendments
thereto dated as of December 7, 1994, July 15, 1996, and June 27, 1997, the
"Loan Agreement") among the Borrower, Holding, the Banks and the Agent.
W I T N E S S E T H :
WHEREAS, the Borrower and Holding have advised the Agent and the Banks
that they desire that KOSI, or after the KOSI/FOSI Merger, FOSI, sell the shares
of stock of Furmanite AS owned by it to Furmanite Holding A/S ("Norway
Holdings");
WHEREAS, in connection with such sale, the Borrower and Holding desire
that Norway Holdings borrow NOK 10,000,000 from Christiania Bank og Kreditkasse
ASA ("Christiania") and that Bank of Scotland issue a Letter of Credit in a
stated amount of NOK10,225,000 in favor of Christiana;
WHEREAS, the Norwegian Transaction (as defined in Amendment No. 3 to
Amended and Restated Loan Agreement dated as of June 27, 1997 ("Amendment No.
3")) did not occur;
WHEREAS, the Borrower and Holding desire to amend certain references
and provisions that were added to the Loan Agreement by Amendment No. 3;
WHEREAS, the Borrower and Holding have advised the Agent and the Banks
that KOSI and FOSI desire to enter into a merger transaction whereby KOSI would
be merged into FOSI;
WHEREAS, certain of the foregoing transactions and parts thereof are
prohibited by the Loan Agreement unless permitted by this Amendment;
WHEREAS, Holding and the Borrower have asked the Agent and the Banks to
execute this Amendment and, subject to the terms and conditions contained
herein, the Agent and the Banks are amenable to doing so;
NOW, THEREFORE, it is agreed:
23. Definitions.
(1) All the terms used herein which are defined in the Loan
Agreement (including, to the extent any such terms are to be amended by
this Amendment, as if such terms were already amended by this
Amendment, unless the context shall indicate otherwise) shall have the
same meanings when used herein unless otherwise defined herein. All
references to Sections in this Amendment shall be deemed references to
Sections in the Loan Agreement unless otherwise specified.
(2) As used in this Amendment, the term "NOK" shall mean the
lawful currency of Norway.
24. Effect of Amendment. As used in the Loan Agreement (including all Exhibits
thereto), the Notes and the other Loan Documents and all other instruments and
documents executed in connection with any of the foregoing, on and subsequent to
the applicable effectiveness date set forth herein any reference to the Loan
Agreement shall mean the Loan Agreement as amended hereby.
25. Defined Terms.
(1) Annex I to the Loan Agreement is hereby amended by adding
the following paragraphs thereto in the appropriate alphabetical place:
(a) "FOSI" shall mean Furmanite Offshore Services, Inc., a wholly
owned subsidiary of Holding incorporated under the laws of
Delaware.
(b) "Furmanite AS Closing Date" shall mean the date on which each
of the following has been satisfied (i) all aspects of
Furmanite AS Transaction shall have occurred; and (ii) all
conditions set forth in Section 21 of the NFTA shall have been
satisfied or waived by the Agent.
(c) "Furmanite AS Transaction" shall mean (i) the establishment by
FOSI of Norway Holdings; (ii)the contribution by FOSI to the
capital of Norway Holdings of NOK4.0 million from the proceeds
of the Holding/FOSI (Australia) Advance; (iii) the borrowing
by Norway Holdings of the Christiania Advance; (iv) the
issuance by the Issuer of the Christiania L/C in a Stated
Amount of NOK10,225,000 million; and (v) the purchase by
Norway Holdings from KOSI, or if after the KOSI/FOSI merger,
FOSI, of 100% of the stock of Furmanite AS for NOK14.0 million
in cash.
(d) "KOSI/FOSI Merger" shall have the meaning assigned to such
term in Section 18(b) of the NFTA.
(e) "New Fourth Amendment" shall mean the amendment to the
Agreement (as then in effect) designated as Amendment No. 4 to
Amended and Restated Loan Agreement and dated as of December
15, 1997.
(f) "New Fourth Amendment Date" shall have the same meaning as the
term AAmendment Final Closing Date" in the New Fourth
Amendment.
(g) "NFTA" - shall mean the New Fourth Amendment.
(h) "NFTAD" shall mean the New Fourth Amendment Date.
(2) The following defined terms in Annex I are hereby amended
to read in their entirety as follows:
(a) "Australian Transaction" shall mean (i) the establishment by
FOSI of F-Australia; (ii) the borrowing by F-Australia of
A$5.0 million from BOS Australia; (iii) the lending by Holding
to FOSI of $1,380,068 (the AHolding/FOSI (Australia)
Advance"); (iv) the contribution of A$1,000,000 by FOSI to the
capital of F-Australia; (v) the lending by the Borrower of
,1,961,257 to Holding (the ABorrower/Holding (Australia)
Advance"); (vi) the acquisition by F-Australia of certain
assets from Furmanite Australia Pty Limited (ACN 004 792 312)
(the "Australian Seller") for A$6.1 million pursuant to the
Australian Acquisition Agreement; (vii) the acquisition by
Holding of certain intangible assets from the Australian
Seller for A$2.5 million pursuant to the Australian
Acquisition Agreement; (viii) the issuance by the Issuer of a
Letter of Credit for the account of the Borrower in favor of
BOS Australia in a Stated Amount of A$5.0 million; (ix) the
establishment by FOSI of F-New Zealand; (x) the contribution
of A$100,000 by FOSI to the capital of F-New Zealand and (xi)
the acquisition by Holding and F-New Zealand of certain assets
for A$300,000 pursuant to the New Zealand Acquisition
Agreement;
(b) "Christiania Advance" shall mean an unsecured loan to Norway
Holdings in a principal amount not exceeding NOK10,000,000
which may made by Christiania pursuant to the Christiania Loan
Documents.
(c) "Christiania L/C" shall mean the letter of credit that may be
issued by the Issuer pursuant to Section 2A.1(f) in favor of
Christiania in the Stated Amount of NOK10,225,000 million in
connection with the Furmanite AS Transaction.
(d) "Christiania Loan Documents" shall mean the letter agreement
between Christiania and Norway Holdings dated November 17,
1997 relating to the borrowing by Norway Holdings of up to
NOK10,000,000 and all agreements, documents, notes and other
instruments entered into pursuant thereto or in connection
therewith which were delivered to the Agent pursuant to
Section 21(d)(i)(B) of the New Fourth Amendment.
(e) "Combined Group" shall mean, collectively, the Borrower, KOSI,
FOSI and their respective Subsidiaries, on a consolidated
basis.
(f) "Loan Parties": shall mean, individually and collectively,
Holding, the Borrower, Furmanite, each Subsidiary of
Furmanite, KOSI, each Subsidiary of KOSI, FOSI and each
Subsidiary of FOSI.
(3) The following defined terms in Annex I are amended as
follows:
(a) "Consolidated Group": to add the word "FOSI," after the word
"Furmanite" therein.
(b) "Significant Subsidiary": (x) to add the word "or FOSI" after
the word "KOSI" in the clause (b) thereof; and (y) to restate
the final sentence thereof in its entirety as follows:
Notwithstanding anything to the contrary contained in this
Agreement or any other Loan Document (including, without
limitation, the definition of "Insignificant Subsidiary" in
this Annex I) each of F-Australia and Norway Holdings shall be
a Significant Subsidiary for so long as it is a Subsidiary of
Borrower or Holding, except that no such company shall be a
Significant Subsidiary for purposes of Section 7.20 unless it
shall have executed and delivered a Guarantee Agreement,
Security Agreement, Pledge Agreement (or supplement or
amendment thereto) satisfactory to the Agent and such other
agreements and instruments as are required in accordance with
such Section.
(4) The defined terms "Borrower/Holding (Norway) Advance",
"Norway Holdings/Norway Opco Advance" and "Holding/FOSI (Norway)
Advance" are deleted from Annex I.
(5) Section 2.4A. Section 2.4A is amended by restating Section
2.4A(h) as follows:
"(h) The proceeds of the 1997 Term Loans will be used by the
Borrower to make the Borrower/Holding (Australia) Advance and
for general corporate purposes, and the proceeds of the
Borrower/Holding (Australia) Advance will be used by Holding
solely to consummate the Australian Transaction and to make
the Holding/FOSI (Australia) Advance."
(6) Section 2A.
(1) Section 2A of the Loan Agreement is amended by
restating Section 2A.1(f)(ii) as follows:
"(ii) Notwithstanding any provision of this Section
2A.1 to the contrary, the Borrower shall be permitted
to request (by way of an Issuance Request) that the
Issuer issue the Christiania L/C in the form of
Exhibit A to the New Fourth Amendment and, subject to
the terms and conditions of this Agreement
(including, without limitation, Section 6A and
Section 2A but excluding Section 2A.1(b)(iv)), on or
promptly after all conditions (other than the
issuance of such Letter of Credit) to the Furmanite
AS Closing Date shall have been satisfied (or
waived), provided that such date occurs on or prior
to December 31, 1997, the Issuer shall issue the
Christiania L/C, and such letter of credit shall
constitute a Letter of Credit for all purposes of
this Agreement; provided, however, that (i) all
reimbursements under Section 2A.4 for amounts
disbursed under the Christiania L/C shall be made in
Dollars, in the Dollar Equivalent of each
disbursement thereunder, (ii) unpaid Reimbursement
Obligations thereunder pursuant to the fourth
sentence of Section 2A.4 shall be converted into
Dollars, (iii) all Deemed Disbursements shall be
deemed to have been made in NOK and reimbursements in
respect thereof under Section 2A.6 shall be made in
NOK, and (iv) in the event that the Christiania L/C
is issued without Borrower having submitted any
Issuance Request therefor, Borrower shall nonetheless
be deemed to have submitted an Issuance Request for
the issuance thereof."
(2) Section 2A to the Loan Agreement is further amended
by inserting the following subsection as a new
subsection 2A.1(g):
"(g) Notwithstanding any other provision of this
Section 2A.1 to the contrary, (i) the BOS Australia
L/C may be issued in support of the obligations of
BOS Australia under the BOS Australia Loan Documents;
and (ii) the Christiania L/C may be issued in support
of the obligations of Norway Holdings under the
Christiania Loan Documents."
(3) Section 2A of the Loan Agreement further is amended
by inserting the number "(i)" after the words
"Notwithstanding the foregoing" in the final sentence
of Section 2A.3(a) thereof, and deleting the period
at the end of such sentence and inserting the
following at the end of such sentence:
"and (ii) the Letter of Credit fee with respect to
the Christiania L/C (other than the aforesaid $500
fee) may be paid by the Borrower quarterly in
advance, on the NFTAD and every three months
thereafter, and, if so paid, shall be based on the
Stated Amount of the Christiania L/C on the NFTAD and
on the quarterly date that such fee is required to be
paid."
(7) Section 7.11. Section 7.11 of the Loan Agreement is
amended by inserting the words "or FOSI" after the word "KSI" therein.
(8) Section 7.19. Section 7.19 is amended by
(a) replacing the Dollar amount "$500,000" in Subsection (a)
thereof with the Dollar amount "$1,000,000";
(b) replacing the Dollar amount "$100,000" in clause (b) thereof
with the Dollar amount "$500,000"; and
(c) adding a new subsection (c) thereto as follows:
"(c) Holding shall cause FOSI to pay dividends to
Holding, semiannually within 20 days after the end of each
fiscal half-year of FOSI, in an aggregate amount so that the
aggregate amount of cash and cash equivalents retained by FOSI
after payment of such dividend does not exceed $500,000;
provided, that nothing contained herein shall require FOSI to
pay dividends to Holding if and to the extent that FOSI is
prohibited by statute from doing so."
(9) Section 7.20. Section 7.20(b) is amended by deleting the
words "Borrower and of KOSI" each time they appear therein and
inserting, in each such place in lieu of such words, the words
"Borrower, of KOSI and of FOSI".
(10) Section 8.1. Section 8.1 is amended by adding a new
subsection (d) thereto as follows:
"(d) FOSI will not enter into any business or activity other
than its ownership of the capital stock of Foreign
Subsidiaries."
(11) Section 8.3. Section 8.3 is amended by restating new
clauses (xxi) and (xxii) as follows therewith:
"(xxi) provided that the Furmanite AS Closing Date occurs on
or prior to December 31, 1997, unsecured indebtedness of
Norway Holdings to Christiania consisting of the Christiania
Advance;" and
"(xxii) the following intercompany indebtedness: (i) the
Holding/FOSI (Australia) Advance, and (ii) the
Borrower/Holding (Australia) Advance; provided, that each such
Advance is evidenced by a subordinated intercompany note in
form and substance satisfactory to the Agent (such notes,
collectively, the "1997 Intercompany Notes") each of which is
pledged to the Agent pursuant to the Security Documents; and
provided further that if the Furmanite AS Closing Date does
not occur on or prior to December 31, 1997, FOSI shall
promptly repay to Holding the portion of the Holding/FOSI
(Australia) Advance (equal to NOK 4,000,000) intended to be
used by FOSI in connection with the Furmanite AS Transaction;
(12) Section 8.5. Section 8.5 of the Loan Agreement is amended
by:
(a) restating the proviso (which was added to Section 8.5 by the
New Third Amendment) at the end of the first proviso to such
Section as follows:
"and, provided further, that the Borrower and Holding shall be
permitted to make the applicable advances referred to in
clause (xxii) of Section 8.3;" and
"inserting the words "FOSI, Subsidiaries of FOSI," after the
words "thereunder to" in clause (d) of the fourth proviso to
Section 8.5 (relating to the CMA Account);
(13) Section 8.10. Section 8.10 of the Loan Agreement is
amended by deleting all of clause (ii) to the proviso at the end
thereof and deleting the word "and" appearing immediately prior to said
clause (ii).
(14) Section 8.12. Section 8.12(a) of the Loan Agreement is
amended by deleting the existing clause (v) thereto and replacing said
clause with the following clause:
"or (v) provided that the Furmanite AS Closing Date occurs on
or prior to December 31, 1997, the sale by KOSI, or if after
the KOSI/FOSI Merger, FOSI, to Norway Holdings of 100% of the
capital stock of Furmanite AS in connection with the
consummation of the Furmanite AS Transaction on the terms
provided in the definition thereof;"
(15) Section 10.1. Section 10.1(a) is amended by adding the
word AFOSI," after the word "KOSI" in the second sentence thereof.
(16) Section 10.5. Section 10.5(h) of the Loan Agreement is
hereby restated as follows:
"(h) On and after the NTA, Holding will own 100% of the issued
and outstanding shares of capital stock of FOSI and FOSI will
own 100% of the issued and outstanding shares of capital stock
of F-Australia and F-New Zealand. On and after the Furmanite
AS Closing Date, FOSI will own 100% of the issued and
outstanding shares of capital stock of Norway Holdings, and
Norway Holdings will own 100% of the issued and outstanding
shares of capital stock of Furmanite AS."
(17) Section 10.11. Section 10.11 is amended by adding the
words "and (vi) FOSI" after the words "(v) KOSI" in subsection (d)
thereof.
(18) Section 10.20. Section 10.20 of the Loan Agreement is
amended by (i) inserting in the first sentence thereof after the words
"all Subsidiaries of KOSI that are not Significant Subsidiaries," the
words "and all Subsidiaries of FOSI that are not Significant
Subsidiaries"; and (ii) inserting in the second sentence thereof, after
the words "all Subsidiaries of KOSI that are not Significant
Subsidiaries", the words "and for all Subsidiaries of FOSI that are not
Significant Subsidiaries".
(19) Consents.
(1) In reliance on the agreements and the accuracy of the
representations and warranties of Borrower and Holding
contained elsewhere in this Amendment, and provided that the
Furmanite AS Closing Date occurs on or prior to December 31,
1997, (x) the Agent and the Banks hereby consent (i) for
purposes of Section 8.12(b) and Section 8.14 of the Loan
Agreement to the organization by FOSI of Norway Holdings and
to the contribution by FOSI of NOK 4.0 million to the capital
of Norway Holdings and (ii) for purposes of any provisions of
the Security Documents executed by KOSI (and if such sale
occurs after the KOSI/FOSI Merger, by FOSI) which are
analogous to Section 8.12(a) of the Loan Agreement, to the
sale by KOSI or, if after the KOSI/FOSI merger, by FOSI, of
the stock of Furmanite AS pursuant to the Furmanite AS
Transaction; and (y) the Agent and the Banks hereby release
from the lien of the U.S. Pledge Agreement the shares of stock
of Furmanite AS pledged thereunder, such release being made
without representation or warranty by, or recourse to, the
Agent or any Bank.
(2) (i) In reliance on the agreements and the accuracy of the
representations and warranties contained in clause (ii) below
and elsewhere in this Amendment, and provided that (x) the
merger of KOSI into FOSI (the "KOSI/FOSI Merger") pursuant to
the Merger Agreement (as defined below) becomes effective on
or prior to December 31, 1997 and (y) on or prior to the
effectiveness of the KOSI/FOSI Merger the conditions to this
consent set forth in clause (iii) below are satisfied, the
Agent and the Banks hereby consent, for purposes of Sections
7.6, 7.13, 8.8, 8.9(a), 8.10., 8.11(a) and 8.12(a) of the Loan
Agreement, and those provisions of the Security Documents
executed by Holding, KOSI or FOSI analogous to those Sections
of the Loan Agreement specified above, to the KOSI/FOSI
Merger.
(ii) In addition to the other agreements, representations and
warranties of Borrower and Holding contained elsewhere in this
Amendment, to induce the Agent and the Banks to enter into
this Amendment and grant the consents contained herein, the
Borrower and Holding hereby jointly and severally represent
and warrant to, and agree for the benefit of, the Agent and
the Banks that (x) upon the effectiveness of the KOSI/FOSI
Merger, (A) FOSI will possess all of the properties, rights,
powers and privileges of KOSI; (B) FOSI will be subject to all
of the debts, obligations and liabilities of KOSI and will
have acquired all of KOSI's properties subject to all Liens
thereon created by KOSI in favor of the Agent and the Banks,
which Liens shall be first priority perfected Liens which
secure the Obligations as fully as they had immediately prior
to the effectiveness of the KOSI/FOSI Merger; (C) all
representations and warranties set forth in this Amendment,
the Agreement and the other Loan Documents will be true and
correct as if made on such date of effectiveness (with all
references in the representations and warranties contained in
this Agreement to the NFTAD being deemed, for these purposes,
to include a reference to such merger effectiveness date); (y)
on or prior to the effectiveness of the KOSI/FOSI Merger, each
of the Borrower, Holding, KOSI, FOSI, each Subsidiary of KOSI
immediately prior to the KOSI/FOSI Merger and each other
Credit Party shall have taken such action as is necessary to
ensure that FOSI is possessed of all of the properties,
rights, powers and privileges of KOSI, and bound by all of the
debts, obligations and liabilities of KOSI, and that all
property that had been property of KOSI remains subject to
existing Liens in favor of the Agent and the Banks, and (z)
the Borrower, Holding, KOSI, FOSI, each Subsidiary of KOSI
(immediately prior to the merger) and each other Credit Party
shall take all other action, and execute and/or deliver all
agreements, instruments and other documents, necessary or
reasonably requested by the Agent to give effect to the
foregoing;
(iii) It shall be a condition precedent to the effectiveness
of the consent set forth in subsection 18(b)(i) above that on
or prior to the effectiveness of the KOSI/FOSI Merger there
shall have been delivered to the Agent each of the following:
(1) a copy of the merger agreement between KOSI and FOSI
(the "Merger Agreement"), certified by senior
officers of each of KOSI and FOSI as being a complete
and true copy, which merger agreement shall be
satisfactory in all respects to the Agent and the
Banks;
(2) an acknowledgment by FOSI, satisfactory to the Agent,
that upon effectiveness of the KOSI/FOSI Merger, all
property which had been owned by KOSI immediately
prior to the merger will be owned by FOSI subject to
existing Liens in favor of the Agent and the Banks;
(3) a legal opinion from Xxxxxx, Xxxxxx-Xxxxxx & Xxxxxx,
British Virgin Islands ("BVI") counsel to the
Borrower and Holding, satisfactory to the Agent, to
the effect set forth on Exhibit D hereto and covering
such other matters as the Agent shall reasonably
request;
(4) a legal opinion from Xxxxxxx Xxxxxx, Esq., counsel to
the Credit Parties, with respect to the KOSI/FOSI
Merger, in form and substance satisfactory to the
Agent;
(5) Undated stock powers, satisfactory to the Agent, duly
executed in blank by FOSI with respect to the shares
of stock and other equity interests of each company
that immediately prior to the merger was a Subsidiary
of KOSI;
(6) A certificate from a senior officer of Borrower,
dated the merger effective date, that all
representations and warranties set forth in Section
18(b)(ii) and Section 19 of this Agreement are true
and correct as of such date as though such
representations and warranties had been made at and
as of such time; and
(7) Such other agreements, instruments and documents as
the Agent may reasonably request in connection with
the merger.
(20) Representations. To induce the Agent and the Banks to enter into this
Amendment and to grant the consents contained herein, Holding and the Borrower
hereby jointly and severally represent and warrant to the Banks and the Agent as
follows (which representations and warranties are made as of the date hereof, as
of the date the Merger Agreement is executed, as of the date of effectiveness of
the KOSI/FOSI Merger and as of the Amendment Final Closing Date, and shall
survive the execution, delivery and effectiveness of this Amendment):
(A) The execution and delivery by each Credit Party (to the
extent it is party thereto) of this Amendment, and all other amendments
and agreements being delivered on the NFTAD or pursuant thereto and
such Person's performance of such Loan Documents and the Agreement as
amended by this Amendment and the consummation of the transactions
contemplated under this Amendment and such other Loan Documents have
been duly authorized by all necessary corporate and stockholder action.
(B) This Amendment, the Agreement as amended by this
Amendment, the U.S. Pledge Agreement as amended by Amendment No. 4
thereof, and all other amendments and agreements delivered on the NFTAD
or pursuant thereto are the legal, valid and binding obligations of the
Credit Parties party thereto, enforceable in accordance with their
respective terms subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization and similar laws affecting the
enforcement of creditors' rights generally and to general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(C) The Security Documents secure or guarantee, as the case
may be, all Loans and Letters of Credit whether made or issued before,
on or after the NFTAD. No amendments need to be made in any of the
Security Documents, nor does any action need to be taken, to effectuate
the provisions of the preceding sentence.
(D) The priority of all Liens in favor of the Agent and the
Banks under the Security Documents (whether in respect of Loans or
Letters of Credit made or issued before, on or after the NFTAD) shall
be the same as the priority of all Liens immediately prior to the NFTAD
with respect to Loans and Letters of Credit outstanding immediately
prior to the NFTAD.
(E) No Default or Event of Default exists.
(F) All representations and warranties contained in the
Agreement and in the other Loan Documents or otherwise made by the
Borrower or any other Credit Party in connection with any of the
foregoing are true and correct in all material respects with the same
effect as though such representations and warranties were now being
made.
(G) The Borrower confirms that it requested the issuance of
the BOS (Australia) L/C in the form attached as Exhibit B hereto and
reaffirms all of its obligations to reimburse the Issuer for all
drawings thereunder and all of its other obligations under Section 2.4A
of the Loan Agreement with respect thereto.
(H) The chief executive office of Holding is located at 0000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxxxxxx, Xxxxx 00000. The major executive
office of the Borrower in the United States is located at 0000 Xxxxx
Xxxxxxx Xxxxxxxxxx, Xxxxxxxxxx, Xxxxx, 00000.
(21) Effectiveness of Section 18(b) and Related Sections. Sections 1, 2, 3(a),
3(b)(i), 3(b)(v), 3(b)(vi), 4, 6-9, 12-14, 16,17, 18(b), 19, 22(b), 22(c), and
24-28 of this Amendment shall become effective on and as of the date that the
Borrower, Holding and the Banks shall have executed a copy of this Amendment and
delivered the same to the Agent at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(Attention: Xxxx Xxxxx) or, in the case of the Banks, shall have given to the
Agent written notice (actually received) that the same has been signed and is
being sent to the Agent.
(22) Effectiveness of Other Sections of this Agreement. The Sections of this
Amendment which have not become effective pursuant to Section 20 hereof shall
become effective when and as of the date that each of the following conditions
have been fulfilled to the satisfaction of the Agent (or waived by the Agent).
The first date on which all of the following conditions have been so satisfied
(or so waived) is herein referred to as the "Amendment Final Closing Date". If
the Amendment Final Closing Date shall not have occurred by the close of
business (New York time) on December 31, 1997 (or such later date as may be
specified to by the Agent in writing), the Sections of this Amendment which
shall not have become effective pursuant to Section 20 hereof shall be deemed
rescinded, null and void.
(A) [Intentionally omitted]
(B) There shall have been delivered to the Agent a certificate
of an authorized officer and of the secretary of each of the Borrower,
Holding, KOSI, FOSI and Norway Holdings, with respect to the various
transactions referred to herein, along with resolutions authorizing the
same, specimen signatures and incumbency certificates, in form and
substance satisfactory to the Agent, and certified copies of the
Charter Documents of Norway Holdings, which in each case shall be
satisfactory to the Agent in all respects.
(C) The Borrower shall have delivered to the Agent Amendment
No. 4 to Pledge Agreement (referring, inter alia to the pledge of stock
of Norway Holdings) in the form of Exhibit E hereto executed by all
Loan Parties party thereto.
(E) The Borrower shall have delivered to the Agent (i) copies
of (A) the agreement between KOSI or FOSI and Norway Holdings regarding
the transfer of the Furmanite AS shares to Norway Holdings in the form
of Exhibit C hereto (the "Furmanite AS Share Sale Agreement"), and (B)
the Christiana Loan Documents in the form of Exhibit F hereto, in each
case, certified as true and complete by an authorized officer of the
Borrower, (ii) evidence satisfactory to the Agent (including a
certificate of a senior officer of Borrower to such effect) that the
Furmanite AS Transaction shall have been consummated substantially in
accordance with the definition thereof and the Furmanite AS Share Sale
Agreement and (iii) a certificate of a senior officer of Borrower that
the representations and warranties set forth in Section 19 hereof are
true and correct as of the Amendment Final Closing Date, as though such
representations and warranties had been made at and as of such time.
(F) Holding and the Borrower shall have delivered to the
Agent:
(1) a legal opinion (the "Norway Opinion") from Advokat
Xxxxxx Xxxxxxxx, Norwegian counsel for the Credit
Parties (or other counsel satisfactory to the Agent),
covering the matters previously agreed to by the
Agent and the Borrower; and
(2) a legal opinion from Xxxxxxx Xxxxxx, Esq., counsel to
the Credit Parties, covering the matters previously
agreed to by the Agent and the Borrower;
(G) [Intentionally deleted]
(H) Norway Holdings shall have executed and delivered to the
Agent a Security Agreement, Guarantee and amendment to the U.S. Pledge
Agreement (with respect to the shares of Furmanite AS)(in each case, in
form and substance satisfactory to the Agent) unless, in any such case,
the Norway Opinion advises that the execution of such agreement would
be unlawful under the laws of Norway;
(I) Holding shall have delivered to Agent stock powers duly
executed in blank by Holding (under its current name (Furmanite
Worldwide, Inc.)) with respect to the shares of stock of the Borrower,
FAI, KOSI (unless the KOSI/FOSI Merger shall have occurred) and FOSI;
and endorsements duly executed in blank by Holding (under its current
name (Furmanite Worldwide, Inc.)) with respect to all notes pledged by
Holding to the Agent;
(J) Norway Holdings shall have appointed CT Corporation
Systems, 0000 Xxxxxxxx, as its agent for service of process and shall
have delivered to the Agent CT Corporation Systems' acceptance of such
appointment; and
(K) Holding and the Borrower shall have delivered or caused
to be delivered such other agreements, instruments and documents as are
reasonably requested by the Agent.
All agreements, documents, and other instruments required to
be delivered to the Agent pursuant to this Section 21 shall be in form
and substance satisfactory to the Agent.
(23) Post-Closing Obligations. Holding and the Borrower hereby jointly and
severally agree to deliver (or cause to be delivered):
(A) to the Agent (unless the Agent shall have agreed otherwise
in writing) on or before the day which is 30 days after the
consummation of the Furmanite AS Transaction, all stock certificates
issued by Norway Holding to FOSI, accompanied by stock powers, duly
executed in blank;
(B) to the Agent (unless the Agent shall have agreed otherwise
in writing), on or before January 31, 1998, the following in form and
substance satisfactory to the Agent:
(1) amendments (and filings and recordations applicable
thereto) required by the Agent of such Pledge
Agreements, Security Agreements, Security Documents
and Foreign Guarantees as are specified by the Agent;
and
(2) certified copies of resolutions adopted by each
Credit Party with respect to such Credit Party's
execution and delivery of the Confirming Consent
delivered in connection with the New Third Amendment;
and
(3) to the Agent (unless the Agent shall have agreed
otherwise in writing) within 30 days following the
effectiveness of the KOSI/FOSI Merger, certificates,
satisfactory to the Agent, (i) from a senior officer
of each company that immediately prior to the merger
was a Subsidiary of KOSI, to the effect that such
Subsidiary has noted on its books and records,
including, without limitation, its stock register,
(A) the KOSI/FOSI Merger and the change in ownership
of its stock and other equity interests resulting
therefrom and (B) the pledge by FOSI, as surviving
corporation of the merger, to the Agent and the Banks
of all stock and other equity interests in such
Subsidiary and (ii) from a senior officer of each
company the pledge of the stock of which by KOSI to
the Agent is noted in any public register, a
certificate that such public register reflects the
pledge of such stock by FOSI as successor to KOSI to
the Agent;
(4) to the Agent on or before the day which is 30 days
after the consumation of the Furmanite AS
Transaction, evidence satisfactory to the Agent, of
all recordation and other actions (including, without
limitation, any notations on the books and records of
any Credit Party or other Persons or any public
register and whether in respect of Loans or other
extensions of credit made before, on or after the
NFTAD) necessary or requested by Agent to perfect
security interest granted by FOSI and KOSI and the
security interest (if any) granted by Norway
Holdings, to the Agent and the Banks, or to maintain
the perfection or priority thereof;
The failure by the Borrower or Holding to comply with the
provisions of this Section on or before such applicable date (or such
later date as the Agent shall have consented to in writing) shall be an
Event of Default (without any "grace period") as fully as if same were
set forth in full in Section 9 of the Loan Agreement.
(24) Waiver. The Agent hereby waives (i) the requirement set forth in Section
22(ii)(c) of the New Third Amendment that the solvency certificate referred to
therein be delivered to the Agent, and (ii) the requirement set forth in Section
22(iii) of the New Third Amendment that an amended and restated Loan Agreement
be delivered to the Agent.
(25) Limited Nature of Amendments. The amendments, waivers (if any) and consents
(if any) set forth herein are limited precisely as written and shall not be
deemed to (a) be a consent to any waiver of, or modification of, any other term
or condition of the Loan Agreement or any of the documents referred to therein
or (b) prejudice any right or rights which the Banks or the Agent may now have
or may have in the future under or in connection with the Loan Agreement or any
of the documents referred to therein. Except as expressly amended hereby, the
terms and provisions of the Loan Agreement shall remain in full force and
effect.
(26) Integration.
(A) THIS AMENDMENT, THE LOAN AGREEMENT (AS AMENDED BY THIS
AMENDMENT) AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES HERETO WITH RESPECT TO THE MATTERS COVERED HEREBY AND
THEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
(B) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
(27) Governing Law. THIS AMENDMENT, INCLUDING THE VALIDITY THEREOF AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(28) Counterparts. This Amendment may be executed in any number of counterparts
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all the counterparts shall
together constitute one and the same instrument. Telecopied signatures hereto
shall be of the same force and effect as an original of a manually signed copy.
(29) Headings. The descriptive headings of the various provisions of this
Amendment are inserted for convenience of reference only and shall not be deemed
to affect the meaning or construction of any of the provisions hereof.
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.
BANK OF SCOTLAND,
individually and as Agent
By: //s//
FURMANITE PLC
(formerly KANEB UK plc)
By: //s//
FURMANITE WORLDWIDE INC., (formerly KANEB INTERNATIONAL INC.)
By: //s//
