EXECUTION COPY
SECOND AMENDMENT, CONSENT AND WAIVER
TO
SUBORDINATED NOTE RESTRUCTURING AGREEMENT
Second Amendment, Consent and Waiver (this "Amendment"), effective as
of June 29, 2002, to the Subordinated Note Restructuring Agreement, dated as of
December 28, 2000 (as amended to the date hereof, the "Restructuring
Agreement"), among Boots & Xxxxx International Well Control Inc., a Delaware
corporation, (the "Company") and The Prudential Insurance Company of America
("Prudential"), as amended by the Amendment, Consent and Waiver dated as of
March 29, 2002 among the Company and Prudential (the "First Amendment").
Capitalized terms used herein but not defined herein are used as defined in the
Restructuring Agreement.
W i t n e s s e t h:
Whereas, the Company and Prudential are party to the Restructuring
Agreement pursuant to which Prudential agreed to cancel and terminate certain
11.28% Notes and the Warrant in consideration for the Company's fulfillment of
its obligations set forth in the Restructuring Agreement and the issuance by the
Company of Replacement Notes, the Replacement Warrant, the New Warrant, and the
Preferred Stock;
Whereas, the Company has notified Prudential that the Company may not
be in compliance with certain financial covenants under Sections 7.1(a) and
7.1(b) of the Restructuring Agreement (collectively, the "Specified Covenants")
for the twelve month period ended June 30, 2002 (the "Specified Period"), which
would constitute Events of Default pursuant to Section 8.1(xviii) of the
Restructuring Agreement if not waived or deemed cured as provided therein (such
Events of Default, the "Prospective Events of Default");
Whereas, the Company has requested that Prudential waive the
Prospective Events of Default and compliance with the Specified Covenants for
the Specified Period, to, effective the satisfaction of the conditions set forth
in Section 2 hereof date hereof and (b) amend Sections 1.2, 7.3(a), 7.3(b) and
11 of the Restructuring Agreement as set forth herein; and
Whereas, Prudential agrees, subject to the limitations and conditions
set forth herein, to (a) waive the Prospective Events of Default and compliance
with the Specified Covenants for the Specified Period and (b) amend the
Restructuring Agreement as set forth herein.
Now, Therefore, in consideration of the premises and the covenants and
obligations contained herein the parties hereto agree as follows:
SECTION 1. CONSENT AND WAIVER
(a) Effective as of the date hereof, subject to the satisfaction (or
due waiver) of the conditions set forth in Section 3 (Conditions to the
Continued Effectiveness of this Amendment) hereof, Prudential hereby waives the
following:
(i) the Prospective Events of Default; provided, however, that
the waiver set forth in this clause (i) shall not excuse any failure to comply
after the date hereof with the Restructuring Agreement as amended hereby; and
(ii) compliance for the Specified Period with the Specified
Covenants.
SECTION 2. AMENDMENTS TO THE RESTRUCTURING AGREEMENT
The Restructuring Agreement is, effective as of the date hereof and subject
to the satisfaction (or due waiver) of the conditions set forth in Section 3
(Conditions to the Continued Effectiveness of this Amendment) hereof, hereby
amended as follows:
(a) AMENDMENTS TO SECTION 6 (AFFIRMATIVE COVENANTS)
(i) Section 6.2 (Financial Statements) of the Restructuring Agreement
is hereby amended by:
(1) deleting the "and" at the end of clause (ix);
(2) removing the "(x)" in clause (x) and replacing it with
"(xi)";
(3) inserting the following new clause (x) immediately following
clause (ix):
"(x) by not later than 4:30 p.m. Eastern time, Tuesday, September 17,
2002 and continuing by the same time for each Tuesday thereafter, a detailed
report in electronic form projecting the Company's consolidated cash flow for
the 13 weeks following the date of such report; and".
SECTION 3. CONDITIONS TO THE CONTINUED EFFECTIVENESS OF THIS AMENDMENT
This Amendment shall be effective as of the date hereof, provided that
each of the following conditions shall have been satisfied by the Company on or
before the date specified below (the "Termination Date") or duly waived by
Prudential:
(a) on or before August 30, 2002:
(i) First Waiver Fee. In partial consideration of this Amendment,
Prudential shall have received the sum of $18,333 in immediately available funds
by wire transfer to the following account (the "Wiring Account"):
Bank of New York
New York, NY
Account Name: Prudential Managed Account
ABA #000-00-000
Acct. #000-0000-000
(ii) Certain Documents. Prudential shall have received each of the
following, each dated on or before the Termination Date (unless otherwise agreed
by Prudential), in form and substance satisfactory to Prudential:
(1) this Amendment, duly executed by the Company and each domestic
subsidiary of the Company, with the exception of ITS Supply Corporation,
(collectively, the "Domestic Subsidiaries");
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(2) a subordinated note in the aggregate principal amount of
$76,111.83 from the Company, in form and substance acceptable to Prudential, for
the payment of certain outstanding legal fees which the Company is required to
pay to Prudential pursuant to the Restructuring Agreement;
(3) a certificate of the Secretary or an Assistant Secretary of the
Company certifying the names and true signatures of each officer of the Company
who has been authorized to execute and deliver this Amendment or other document
required hereunder to be executed and delivered by or on behalf of the Company;
and
(iii) such additional documentation as Prudential may reasonably
require.
(b) on or before September 30, 2002:
(i) Second Waiver Fee. In partial consideration of this Amendment,
Prudential shall have received the sum of $100,000 in immediately available
funds by wire transfer to the Wiring Account.
(c) Corporate and Other Proceedings. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection with the
transactions contemplated by this Amendment shall be satisfactory in all
respects to Prudential;
(d) Representations and Warranties. Each of the representations and
warranties contained in Article 9 (Representations, Covenants and Warranties) of
the Restructuring Agreement, the other Note Documents or in any certificate,
document or financial or other statement furnished at any time under or in
connection therewith are true and correct in all material respects on and as of
the date hereof and the Termination Date, in each case as if made on and as of
such date and except to the extent that such representations and warranties
specifically relate to a specific date, in which case such representations and
warranties shall be true and correct in all material respects as of such
specific date; provided, however, that references therein to the "Agreement"
shall be deemed to refer to the Restructuring Agreement as amended by the First
Amendment, this Amendment and after giving effect to the consents and waivers
set forth herein;
(e) No Default or Event of Default. After giving effect to this Amendment,
no Default or Event of Default (except for those that may have been duly waived)
shall have occurred and be continuing, either on the date hereof or on the
Termination Date; and
(f) No Litigation. No litigation shall have been commenced against any
Transaction Party, either on the date hereof or the Termination Date, seeking to
restraint or enjoin (whether temporarily, preliminarily or permanently) the
performance of any action by any Transaction Party required or contemplated by
this Amendment or the Restructuring Agreement or any Note Document, in either
case as amended hereby.
SECTION 4. REPRESENTATIONS AND WARRANTIES
On and as of the date hereof, after giving effect to this Amendment,
the Company hereby represents and warrants to Prudential as follows:
(a) this Amendment has been duly authorized, executed and delivered by
the Company and each Domestic Subsidiary of the Company and constitutes a legal,
valid and binding obligation of the Company and each Domestic Subsidiary of the
Company, enforceable against the Company and each Domestic Subsidiary of the
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Company in accordance with its terms and the Restructuring Agreement as amended
by this Amendment and constitutes the legal, valid and binding obligation of the
Company and each Domestic Subsidiary of the Company, enforceable against the
Company and each Domestic Subsidiary of the Company in accordance with its
terms;
(b) each of the representations and warranties contained in Article 9
(Representations, Covenants and Warranties) of the Restructuring Agreement, the
other Note Documents or in any certificate, document or financial or other
statement furnished at any time under or in connection therewith are true and
correct in all material respects on and as of the date hereof, in each case as
if made on and as of such date and except to the extent that such
representations and warranties specifically relate to a specific date, in which
case such representations and warranties shall be true and correct in all
material respects as of such specific date; provided, however, that references
therein to the "Agreement" shall be deemed to refer to the Restructuring
Agreement as amended hereby and after giving effect to the consents and waivers
set forth herein;
(c) no Default or Event of Default has occurred and is continuing
(except for those that are duly waived); and
(d) no litigation has been commenced against any Transaction Party
seeking to restraint or enjoin (whether temporarily, preliminarily or
permanently) the performance of any action by any Transaction Party required or
contemplated by this Amendment, the Restructuring Agreement or any Note
Document, in each case as amended hereby (if applicable).
SECTION 5. RELEASE
In further consideration for Prudential's execution of this Agreement,
the Company and each other Transaction Party hereby release Prudential and its
respective Affiliates, officers, employees, directors, agents and advisors
(collectively, the "Releasees") from any and all claims, demands, liabilities,
responsibilities, disputes, causes of action (whether at law or equity) and
obligations of any nature whatsoever, whether liquidated or unliquidated, known
or unknown, matured or unmatured, fixed or contingent that any of the
Transaction Parties may have against any Releasee and that arise from or relate
to the Obligations, any Note Document or any document, dealing or other matter
in connection with any of the Note Documents, and any third party liable in
whole or in part for any of the Obligations, in each case to the extent arising
(a) on or prior to the date hereof or the Termination Date or (b) out of, or
relating to, actions, dealings or other matters occurring on or prior the date
hereof or the Termination Date (including, without limitation, any actions or
inactions of any Releasee prior to the date hereof or the Termination Date).
SECTION 6. REFERENCE TO THE EFFECT ON THE NOTE DOCUMENTS
(a) As of the date hereof, each reference in the Restructuring
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like
import, and each reference in the other Note Documents to the Restructuring
Agreement (including, without limitation, by means of words like "thereunder",
"thereof" and words of like import), shall mean and be a reference to the
Restructuring Agreement as amended hereby, and this Amendment and the
Restructuring Agreement shall be read together and construed as a single
instrument. Each of the table of contents and lists of Exhibits and Schedules of
the Restructuring Agreement shall be amended to reflect the changes made in this
Amendment as of the date hereof.
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(b) Except as expressly amended hereby or specifically waived above,
all of the terms and provisions of the Restructuring Agreement (including the
Affirmative and Negative Covenants set forth therein) and all other Note
Documents are and shall remain in full force and effect and are hereby ratified
and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of Prudential under any of the Note Documents, nor constitute a
waiver or amendment of any other provision of any of the Note Documents or for
any purpose except as expressly set forth herein.
(d) This Amendment is a Note Document.
SECTION 7. CONSENT OF DOMESTIC SUBSIDIARIES
Each Domestic Subsidiary of the Company hereby consents to this
Amendment and agrees that the terms hereof shall not affect in any way its
obligations and liabilities under the Note Documents (as amended and otherwise
expressly modified hereby), all of which obligations and liabilities shall
remain in full force and effect and each of which is hereby reaffirmed (as
amended and otherwise expressly modified hereby).
SECTION 8. EXECUTION IN COUNTERPARTS
This Amendment may be executed in any number of counterparts and by
different parties in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are attached to the same document. Delivery of an executed counterpart by
telecopy shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 9. GOVERNING LAW
This Amendment shall be governed by and construed in accordance with
the law of the State of New York.
SECTION 10. SECTION TITLES
The section titles contained in this Amendment are and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of the agreement between the parties hereto, except when used to reference a
section. Any reference to the number of a clause, sub-clause or subsection of
any Note Document immediately followed by a reference in parenthesis to the
title of the section of such Note Document containing such clause, sub-clause or
subsection is a reference to such clause, sub-clause or subsection and not to
the entire section; provided, however, that, in case of direct conflict between
the reference to the title and the reference to the number of such section, the
reference to the title shall govern absent manifest error. If any reference to
the number of a section (but not to any clause, sub-clause or subsection
thereof) of any Note Document is followed immediately by a reference in
parenthesis to the title of a section of any Note Document, the title reference
shall govern in case of direct conflict absent manifest error.
SECTION 11. NOTICES
All communications and notices hereunder shall be given as provided in the
Restructuring Agreement or, as the case may be, the Subordinated Guaranty
Agreement.
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SECTION 12. SEVERABILITY
The fact that any term or provision of this Agreement is held invalid,
illegal or unenforceable as to any person in any situation in any jurisdiction
shall not affect the validity, enforceability or legality of the remaining terms
or provisions hereof or the validity, enforceability or legality of such
offending term or provision in any other situation or jurisdiction or as applied
to any person
SECTION 13. SUCCESSORS
The terms of this Amendment shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
SECTION 14. WAIVER OF JURY TRIAL
Each of the parties hereto irrevocably waives trial by jury in any
action or proceeding with respect to this Amendment or any other Note Document.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers and general partners thereunto duly
authorized on August 19, 2002, effective as of the date first written above.
Boots & Xxxxx International Well Control, Inc.,
By:
-----------------------------------
Name:
Title:
The Prudential Insurance Company of America,
By:
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Name:
Title:
Acknowledged and Agreed on
August 19, 2002 to be effective as of
June 29, 2002 by:
Domestic Subsidiaries:
Abasco, Inc.
By:
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Name:
Title:
Boots & Xxxxx Special Services, Inc.
By:
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Name:
Title:
Elmagco, Inc.
By:
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Name:
Title:
Hell Fighters, Inc.
By:
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Name:
Title:
[Signature Page to Second amendment, Consent and Waiver to Subordinated Note
Restructuring Agreement]
IWC Engineering, Inc.
By:
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Name:
Title:
IWC Services, Inc.
By:
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Name:
Title:
[Signature Page to Second amendment, Consent and Waiver to Subordinated Note
Restructuring Agreement]
