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EXHIBIT 10.12
AMENDMENT NO. 1 TO FIRST AMENDED AND RESTATED LOAN AGREEMENT
AMENDMENT dated as of December 7, 1994 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
Agreement hereinafter referred to (each a "Bank" and collectively, the
"Banks"), and BANK OF SCOTLAND, as agent for the Banks under such Agreement (in
such capacity, the "Agent"), to the AMENDED AND RESTATED LOAN AGREEMENT dated
as of May 3, 1991 (the "Agreement") among the Borrower, Holding, the Banks and
the Agent.
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the aggregate amount of Revolving
Credit Loans available to be made under the Loan Agreement be increased from
$16,000,000 to $20,228,790.10;
WHEREAS, the Borrower has requested that the maturity date of the Term
Loans and Revolving Credit Loans (and the period during which Revolving Credit
Loan Commitments are to be available to the Borrower) be extended from the last
Business Day of March 1998 to the last Business Day of December 2001;
WHEREAS, in connection with the foregoing, the Borrower has requested that
a variety of other amendments also be made to the Agreement;
WHEREAS, the Banks are willing to enter into the foregoing amendments on
the terms and conditions set forth herein; and
WHEREAS, the Banks and the Borrower are amenable to BOS (x) purchasing all
of GiroCredit's interests as a Bank under the Agreement and the other Loan
Documents and (y) repurchasing AIB's participating interest in BOS's Loans and
Commitments, so that, immediately upon the effectiveness of this Amendment, BOS
shall be the sole Bank;
NOW, THEREFORE, it is agreed:
1. Definitions. All the terms used herein which are defined in the
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) 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 Agreement unless otherwise specified.
2. Effect of Amendment. As used in the 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 New First Amendment Date, any reference to the Agreement shall mean the
Agreement as amended hereby.
3. Defined Terms. (a) Annex I to the Agreement is hereby amended by adding
the following paragraphs thereto in the appropriate alphabetical place:
"Adjusted Term Loan Amount" - Section 2.6(b).
"New First Amendment" shall mean the amendment to the Agreement (as
then in effect) designated as Amendment No. 1 and dated as of December 7,
1994.
"New First Amendment Date" shall have the same meaning as the term
"Amendment Date" in the New First Amendment.
"NFAD" shall mean the New First Amendment Date.
"NFAD Banks" shall mean the Banks party to the Agreement on the NFAD
after giving effect to the effectiveness of the New First Amendment.
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"Payout Date" shall mean the earliest date on which:
(x) the outstanding principal amount of the Loans is zero; and
(y) the Total Revolving Credit Loan Commitment has (i) been reduced
to zero, (ii) otherwise terminated in full, or has been reduced to an
amount equal to or less than the amount of the LC Obligations then
outstanding.
(b) 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 New
First Amendment Date, 0.750%; provided however that, on and after the
first day of any calendar month occurring during the period set forth in
the first column below (but not for any day in any subsequent period),
"Base Rate (US) Differential" shall mean the percentage set forth opposite
such period in the second column below:
Period Percentage
------ ----------
1995 0.625%
1996-1997 0.500%
1998-2001 0.250%
if, and only if, however, on the last day of the immediately preceding
calendar month (x) all principal, interest and other payments required to
be made under the Agreement on such date have been made, and (y) no
Default or Event of Default exists.
"Commitment Period" shall mean the period from the Closing Date to
and including the last Business Day of December 2001, or such earlier date
as the Revolving Credit Loan Commitments shall terminate as provided in
the Loan Agreement.
"Eurocurrency Differential" shall mean, from and after the New First
Amendment Date:
(A) for so long as any Term Loans are outstanding, 1.750%; provided
however that, on and after the first day of any calendar month occurring
during the period set forth in the first column below (but not for any day
in any subsequent period), "Eurocurrency Differential" shall mean the
percentage set forth opposite such period in the second column below:
Period Percentage
------ ----------
1995 1.625%
1996-1997 1.500%
1998-2001 1.250%
if, and only if, however, on the last day of the immediately preceding
calendar month (x) all principal, interest and other payments required to
be made under the Agreement on such date have been made, and (y) no
Default or Event of Default exists; and
(B) when no Term Loans are outstanding, 1.0%.
"Specified Percentage" shall mean (a) with respect to the Stated
Amount of the Xxxxxxxx XX, 1%, and (b) with respect to all other Letters
of Credit, the Eurocurrency Differential then applicable with respect to
Libor Loans.
(c) The following defined terms in Annex I are hereby amended as follows:
"Closing Office": to change "380 Madison Avenue" therein to "565 Fifth
Avenue".
"Foreign Guarantor": to delete the following name(s) therein: Furmanite
Iberica SA; Furmanite Reparacoes Industriais Lda; and Oy Suomen Metalock AB.
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"Long-Term Debt": the reference to "April 1, 1998" in clause (i)(z)
thereof is hereby amended to "January 1, 2002".
"Revolving Credit Note": to change "Exhibit O-2" therein to "Exhibit P-2".
"Term Note": to change "Exhibit O-1" therein to "Exhibit P-1".
4. Introductory Paragraph. The introductory paragraph of the Agreement is
hereby amended by deleting "the banking institutions listed on the signature
pages hereof" therein and inserting "the financial institutions from time to
time party hereto" in its place.
5. Section 2.1. Section 2.1(a) is hereby amended by deleting "(after
giving effect to the events occurring on or prior to the Amendment Effective
Date)" therein and inserting "(after giving effect to the events occurring on
or prior to the New First Amendment Date)" in its place.
6. Section 2.3. Section 2.3(b) is hereby amended to read in its entirety
as follows:
"(b) The Term Note and Revolving Credit Note of each Bank shall be
substantially in the form of Exhibit P-1 and Exhibit P-2, respectively, to
the New First Amendment. The Term Notes and the Revolving Credit Notes are
entitled to the benefits of this Agreement and shall be secured by the
Security Documents."
7. Section 2.4(a). Section 2.4(a) is hereby amended to read in its
entirety as follows:
"(a) The Borrower shall repay the Term Loans on the last Business Day
of each month indicated below (each such date, a "Repayment Date") by the
amount indicated alongside each such Repayment Date below:
Last Business Day of Amount
--------------------- ------
June 1995 $ 700,000
December 1995 $ 700,000
June 1996 $ 700,000
December 1996 $ 700,000
June 1997 $ 700,000
December 1997 $ 700,000
June 1998 $ 700,000
December 1998 $ 700,000
June 1999 $ 700,000
December 1999 $ 700,000
June 2000 $ 700,000
December 2000 $ 700,000
June 2001 $ 700,000
December 2001 $671,209.90
On each Repayment Date, an aggregate principal amount of the Term Loans
equal to the amount required to be paid on such date shall mature and
become due and payable."
8. Section 2.4(b). (a) The third sentence (i.e., the one starting "All
amounts applied ") of Section 2.4(b) is hereby amended to read in its entirety
as follows:
"With respect to each payment of Term Loans required by this Section
2.4(b), (x) 80% of all amounts to be so applied shall be applied ratably
to the unpaid principal amount of the Term Loans then outstanding and to
the installments due thereon pursuant to Section 2.4(a) in inverse order
of maturity, and (y) 20% of all amounts to be so applied shall be applied
ratably to the unpaid principal amount of the Term Loans then outstanding
and to the installments due thereon pursuant to Section 2.4(a) in direct
order of maturity."
(b) Clause (iii) of Section 2.4(b) is hereby amended by deleting the first
word thereof, "Prepayments", and inserting "Subject to the provisions of the
third sentence of Section 2.4(b), prepayments" in its place.
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9. Section 2.5(b). Section 2.5(b) is hereby amended to read in its
entirety as follows:
"(b) If any Revolving Credit Loans are then outstanding, the
then-unpaid principal amount of the Revolving Credit Loans shall be
payable in full on the last Business Day of December 2001."
10. Section 2.6. (a) The existing text of Section 2.6 (exclusive of its
heading) is hereby denominated clause (a).
(b) The following is hereby added as clause (b) to Section 2.6):
"(b) Notwithstanding the foregoing or anything to the contrary
contained in this Agreement, Borrower hereby agrees that if the Payout
Date occurs on or prior to December 7, 1997, then no later than five
Business Days after the Payout Date, Borrower shall pay to the Agent on
behalf of the NFAD Banks a non-refundable amount (in addition to all other
amounts payable by Borrower to the Agent and the Banks under the Loan
Documents) equal to the sum of (x) $202,288 plus (y) 1% of the Adjusted
Term Loan Amount. As used herein, "Adjusted Term Loan Amount" shall mean
(x) $9,771,210 less (y) the aggregate amount of Term Loans paid, on
Repayment Dates after November 1, 1994, pursuant to Section 2.4(a)."
11. Section 4. (a) The first sentence of Section 4.2 is hereby amended to
read in its entirety as follows:
"The Borrower agrees to pay to the Agent for its own account a
non-refundable $50,000 per annum fee (the "Agent's Fees"), such fee to be
paid on May 3, 1995 and thereafter annually in advance on May 3 of each
year so long as any Loans, LC Obligations, Revolving Credit Loan
Commitments or Letters of Credit are outstanding; the Borrower and the
Agent acknowledge that the comparable fee that was payable on May 3, 1994
pursuant to this Section 4.2 prior to its amendment on the New First
Amendment Date has been paid in full."
(b) Section 4 is hereby further amended by adding the following after
Section 4.5 therein:
"4.6 Continuation Fee. The Borrower agrees to pay to the Agent (for
and on behalf of the NFAD Banks) on December 8, 1996, if the Payout Date
shall not have previously occurred, a continuation fee of $150,000. The
Borrower's obligation (if applicable) 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 Agreements."
12. Section 5. Clause (f) of Section 5.3 is hereby amended to read in its
entirety as follows: "(f) if in respect of fees pursuant to Section 4.5 or
amounts payable pursuant to Section 2.6(b), to the NFAD Bank, notwithstanding
anything to the contrary that may be contained elsewhere in this Section 5.3;".
13. Section 6A. (a) Clause (b) of Section 6A.1 of the Loan Agreement is
hereby amended by deleting "and 6.20(b)(vii) (and in Section 7.18, if, as and
after the conditions specified therein have been met) shall be satisfied"
therein and inserting "6.20(b)(vii) of this Agreement (and in Section 7.18
hereof, if, as and after the conditions specified therein have been met) and in
Section 19.6 of the New First Amendment shall be satisfied" in its place.
(b) Clause (c) of Section 6A.1 of the Loan Agreement is hereby amended as
follows:
(i) by deleting the reference to "6.15," therein;
(ii) by deleting ", 12.14.2 and 12.14.4(e) shall" therein and
inserting "and 12.14.4(e) of this Agreement and Section 19.4(b) of the New
First Amendment shall" in its place.
(c) Clause (d) of Section 6A.1 of the Loan Agreement is hereby amended by
deleting "12.14.7" at the end thereof and inserting "12.14.7 of this Agreement
or Section 19.7 of the New First Amendment" in its place.
14. Section 7.1. The reference to "Fiscal Year 1998" in Section 7.1(i) is
hereby deleted and
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"Fiscal Year 2001" inserted in its place.
15. (a) Section 8.13. The chart is Section 8.13 is hereby amended to read
in its entirety as follows:
"Calendar Year Amount
------------- -----------
1993 3,000,000
1994 3,500,000
1995 5,000,000
1996 5,000,000
1997 5,000,000
1998 5,000,000
1999 5,000,000
2000 5,000,000
2001 5,000,000"
(b) Section 12.3. Section 12.3(a) is hereby amended by adding the
following at the end thereof: "Notwithstanding anything to the contrary set
forth above in this Section 12.3, legal fees directly related to the
preparation of the New First Amendment and incurred by the Agent or BOS prior
to the New First Amendment Date shall not be reimbursable to the Agent or BOS
by the Borrower."
16. Schedules; Exhibits. (a) Schedule 2.1. Schedule 2.1 to this Amendment
is hereby deemed to be Schedule 2.1 to the Agreement.
(b) Exhibit K. Exhibit K (form of Transfer Supplement) to the Agreement is
hereby amended by (x) denominating the existing Section 3 thereof as Section
3(a), (y) denominating the existing clauses (a), (b) and (c) in said Section
3(a) as clauses (i), (ii) and (iii), respectively, and (z) adding the following
immediately after Section 3(a)(iii) as Section 3(b):
"(b) The Transferor Bank hereby also represents and warrants to the
Purchasing Bank that (x) Transferor Bank is the legal and beneficial owner
of the interests being assigned by it hereunder, (y) Transferor Bank has
not pledged, assigned or otherwise transferred its interest in the Loans,
Notes, participations in Letters of Credit or other rights being
transferred by Transferor Bank hereunder, or any portion of any of the
foregoing, and (z) to the best of Transferor Bank's knowledge, such
interests are free and clear of any adverse claim."
17. Representations. Each of the Borrower and Holding hereby represent and
warrant (which representations and warranties shall survive the Amendment Date)
that, after giving effect to the provisions of this Amendment:
(a) The execution and delivery by each Credit Party (to the extent it is
party thereto) of this Amendment, the Confirming Consent and the Notes being
delivered on the NFAD, 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.
(b) This Amendment, the Agreement as amended by this Amendment, the
Confirming Consent and the Notes being delivered on the NFAD 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 whether made before, on or after the New First Amendment Date. 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 made before, on or after
the New First Amendment Date) shall be the same as the priority of all Liens
immediately prior to the NFAD with respect to Loans outstanding immediately
prior to the NFAD.
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(e) No Default or Event of Default exists.
(f) The following entities (x) are no longer in existence (whether under
the specified name or another name) or (y) if still in existence, are no longer
owned, directly or indirectly, by Holding or Borrower:
Furmanite Iberica SA;
Furmanite Reparacoes Industriais Lda;
Oy Suomen Metalock AB;
Furmanite Engineering Ltd.;
Silk Engineering (Derby) Ltd.;
Xxx Xxxxxxxx Ltd.;
Furmanite Shap Ltd.;
Furmanite Xxxxxx Ltd.; and
Aero Precision and General Engineering (Carlisle) Ltd.
(g) 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.
18. 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 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 Agreement or
any of the documents referred to therein. Except as expressly amended hereby,
the terms and provisions of the Agreement shall remain in full force and
effect.
19. Effectiveness. This Amendment shall become effective when and as of
the date (the "Amendment 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 December 15, 1994 (or such later date as is agreed to by the Agent and the
Borrower in writing), this Amendment shall be deemed rescinded, null and void.
19.1 Signed Copies. 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: Xxxxx Xxxxxx) 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.
19.2 Consents. The Borrower, KSI, FAI, KOSI, 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.
19.3 Assignment of Certain Notes. (a) Each of the Banks other than BOS
shall have transferred and assigned all of their interests in the Agreement,
their respective Notes, the other Loan Documents and their respective
Commitments to BOS pursuant to a Transfer Supplement or other documentation
satisfactory in form and substance to such Bank and BOS.
(b) Pursuant to documentation in form and substance satisfactory to AIB
and BOS, AIB shall have assigned and transferred back to BOS the participation
interests in BOS's Loans, Commitments and LC Obligations that BOS had
previously assigned and transferred to AIB.
(c) If and to the extent required, the Borrower hereby consents to the
transfers and assignments to BOS referred to in clauses (a) and (b) of this
Section. If and to the extent either such transfer and assignment would
otherwise be prohibited by the terms of Section 12.4 of the Agreement or
otherwise, the parties hereto nonetheless consent to such transfers and
assignments (and waive compliance with any such limiting or contrary
provisions).
(d) In consideration for the foregoing transfers and assignments, BOS
shall have paid to the relevant transferors such amounts as they have agreed
upon in writing as payment in full for same.
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19.4 Notes. (a) GiroCredit Bank shall have returned to the Borrower the
promissory notes that were issued to it on the Amendment Effective Date (i.e.,
in July 1993).
(b) BOS shall have returned to the Borrower the promissory notes that were
issued to it on the Amendment Effective Date and received in exchange therefor
an appropriately completed, substitute Term Note (substantially in the form of
Exhibit P-1 hereto) and an appropriately completed Revolving Credit Note
(substantially in the form of Exhibit P-2 hereto), each dated the Closing Date
(or such other date agreed to by the Agent and the Borrower) and duly executed
by the Borrower.
19.5 Officer's Certificate; Additional Loans. (a) If the Amendment Closing
Date occurs other than on December 7, 1994, there shall have been delivered to
the Agent a certificate of an authorized officer of the Borrower certifying, as
of the Amendment Date, compliance with the conditions of Sections 19.6 and
19.8(ii) hereof and to the effect that the representations contained in Section
17 hereof are true and correct on such date.
(b) If the Borrower shall have requested that any Revolving Credit Loans
be made on the Amendment Date, 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 (if any) waivers and consents contained herein and
the other transactions occurring on or prior to such date as contemplated by
this Section 19).
19.6 Lien Searches and Filings. .The Borrower shall have delivered to the
Agent:
(i) satisfactory Lien search requests on Form UCC-11 and analogous forms,
confirming the absence of any perfected Liens (except Permitted Liens) prior to
the Banks' Liens (except those consented to by the Agent);
(ii) to the extent any additional filings or other actions are required as
a result of this Amendment or with respect to the transactions contemplated
hereby, evidence of all filings of financing statements under the applicable
Uniform Commercial Code and all other actions (including, without limitation,
any required with respect to the Mortgage (US), the Intercompany Mortgage and
any Mortgage (UK) with respect to any Site (UK)) with respect to the Liens
created by the Security Documents as are necessary or appropriate so that 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 NFAD) shall
be the same as the priority of all Liens immediately prior to the NFAD with
respect to Loans outstanding immediately prior to the NFAD; and
(iii) To the extent that any of the searches conducted pursuant to clause
(i) of this Section 19.6 uncover any Lien not permitted by the Loan Agreement
or any Lien that could cause the representation contained in Section 17(d)
hereof to be untrue, then the Borrower shall have delivered to the Agent a
release, in form and substance satisfactory to the Agent, of all such Liens,
including properly executed UCC-3 termination statements and similar documents
under the applicable laws of other relevant jurisdictions.
19.7 Legal Opinions. Holding and KSI shall have delivered to the Agent
(with sufficient copies for each Bank) a legal opinion from Fulbright &
Xxxxxxxx, 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 request.
19.8 Fees. The following amounts shall have been paid in full:
(i) A nonrefundable facility extension fee, payable to BOS as the
sole Bank on the Amendment Date (after giving effect to the transactions
contemplated by this Amendment), in the amount and as described in a
letter between BOS and the Borrower dated November 30, 1994.
(ii) To the extent not previously paid, all interest, letter of
credit fees and commitment fees through the Amendment Date.
(iii) To the extent demand therefor has been made, such legal fees
and other expenses (through the Amendment Date) payable pursuant to the
Agreement, including legal fees of US and UK counsel for the Agent
incurred in connection with the preparation of this Amendment.
19.9 Corporate Resolutions. Borrower shall have delivered to the Agent
copies of the resolutions (with English translations, where applicable) adopted
by the boards of directors of each Credit Party, which resolutions shall (x)
authorize such entity's execution and delivery (as applicable) of this
Amendment, the Notes being delivered to
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BOS pursuant to this Section 19 and the Confirming Consents, and (y) be
accompanied by a certificate (in form satisfactory to the Agent) of the
Secretary or other appropriate officer of such entity with respect to such
resolutions.
All documents and papers required by this Section 19 shall be in form and
substance satisfactory to the Agent and shall be delivered to the Agent at such
location as the Agent may direct.
20. Possible Additional Restriction on Certain Loans. Notwithstanding
anything to the contrary contained in this Amendment, the Agreement or any
other Loan Document, if the Amendment Closing Date occurs without all the
provisions of Sections 19.6, 19.7 and 19.9 above having been satisfied because
the Agent waives compliance with one or more of the provisions of said
Sections, the Borrower hereby agrees that it shall not (until such time as such
conditions are fully met or the Agent waives such compliance in writing) be
entitled to make any borrowing of a Revolving Credit Loan, or cause any Letter
of Credit to be issued, if (any giving effect to any such borrowing or
issuance) the aggregate principal amount of Revolving Credit Loans then
outstanding (plus the aggregate amount (or Dollar Equivalent thereof) of all LC
Obligations then existing) would exceed $16,000,000.
21. Texas Statutory Language.
(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.
22. 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.
23. 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 and to the Confirming Consents shall be of the same force and
effect as an original of a manually signed copy.
24. 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, FURMANITE PLC
individually and as Agent (formerly KANEB UK plc)
By By
-------------------------- -----------------------
Xxxxxxxxx X. Xxxxxxxx Name:
Vice President Title:
GIROCREDIT BANK KANEB INTERNATIONAL INC.,
By By
-------------------------- -----------------------
Name: Xxxxxx Xxxxxxxx Name:
Title: Vice President Title:
CONSENTED TO:
ALLIED IRISH BANKS PLC
By
--------------------------
Name:
Title:
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EXHIBIT 10.12
AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN AGREEMENT
AMENDMENT dated as of July 15, 1996 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, 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 have caused Kaneb Offshore Services Inc., a directly and wholly-owned
Subsidiary of Holding incorporated in the British Virgin Islands ("KOSI"), to
establish Furmanite Singapore Pte Ltd, a corporation incorporated under the
laws of Singapore ("F-Singapore") and that they wish to cause KOSI to
contribute S$100,000 to the capital of F-Singapore in consideration of the
issuance by F-Singapore to KOSI of 100,000 shares of its common stock
(constituting 100% of F-Singapore's authorized, issued and outstanding capital
stock);
WHEREAS, the Borrower, Holding, and Furmanite East Asia Limited, a Foreign
Subsidiary organized under the laws of Hong Kong ("FEAL"), want FEAL to
transfer certain of its assets currently located in Singapore or otherwise
attributed to FEAL's Singapore division (those assets being so transferred,
collectively, the "Singapore Assets") to F-Singapore; and
WHEREAS, the foregoing transactions are prohibited by the Loan Agreement
unless the Agent and the Required Banks consent thereto;
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. (a) 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.
(b) As used in this Amendment, the following terms shall have the
following meanings:
"Incorporation Transaction" shall mean the incorporation of F-Singapore
under the laws of Singapore, and the issuance by F-Singapore to KOSI of an
additional 99,998 shares of F-Singapore's capital stock for a consideration not
in excess of S$100,000.
"Sale Transaction" shall mean the sale of the Singapore Assets by FEAL to
F-Singapore for an aggregate of S$354,599, payable S$100,000 in cash and
S$254,599 by the issuance to FEAL of the Singapore Note.
"Singapore Note" shall mean a promissory note, in form and substance
satisfactory to the Agent, issued by F-Singapore to FEAL as part of the
consideration for F-Singapore's purchase of the Singapore Assets.
"Transactions" shall mean, individually and collectively, the
Incorporation Transaction and the
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Sale Transaction.
2. Effect of Amendment. As used in the Loan Agreement (including all
Exhibits thereto), the Notes and the other Loan Documents and all other
instruments and documents executed in connection with any of the foregoing, on
and subsequent to the Amendment Closing Date (as hereafter defined), any
reference to the Loan Agreement shall mean the Loan Agreement as amended
hereby.
3. Defined Terms. (a) Annex I to the Loan Agreement is hereby amended by
adding the following paragraphs thereto in the appropriate alphabetical place:
"F-Singapore" shall mean Furmanite Singapore PTE Ltd., a wholly-owned
Subsidiary of KOSI incorporated under the laws of Singapore.
"New Second Amendment" shall mean the amendment to the Agreement (as
then in effect) designated as Amendment No. 2 and dated as of July 15,
1996.
"New Second Amendment Date" shall have the same meaning as the term
"Amendment Closing Date" in the New Second Amendment.
"NSAD" shall mean the New Second Amendment Date.
"NSAD (Post)" shall mean November 27, 1996 (or such later date as the
Agent shall have consented to in writing pursuant to the provisions of
Section 8 of the New Second Amendment).
"S$" and "Singapore Dollars" shall mean the lawful currency of
Singapore.
(b) [intentionally omitted]
(c) The following defined terms in Annex I are hereby amended as follows:
"Foreign Guarantor": to insert "Furmanite Singapore PTE Ltd."
immediately below "Furmanite East Asia Limited" therein.
"Insignificant Subsidiary": to add the following at the end thereof:
"Notwithstanding the foregoing, no Subsidiary that is deemed to be a
Significant Subsidiary pursuant to any provision of this Agreement or any
other Loan Document shall be an Insignificant Subsidiary during the time
that it is so deemed to be a Significant Subsidiary."
"Security Documents": to insert ", which document" immediately after
"hereof or thereof" in the last sentence thereof.
"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 in the definition
of "Insignificant Subsidiary" in this Annex I), each of FEAL and
F-Singapore shall be deemed to be a Significant Subsidiary for at least 24
months after the NSAD (provided, however, that it is a Subsidiary during
that time)."
4. Section 8.3. Clause (xi) of Section 8.3 is hereby amended to delete "of
this Section 8.5," therein and inserting "of this Section 8.3," in its place.
5. Section 8.5 (Waiver). The Agent and the Banks hereby consent to the
issuance of the Singapore Note to FEAL in connection with the Sale Transaction,
notwithstanding anything to the contrary contained in Section 8.5 of the Loan
Agreement.
6. Section 10.5. Section 10.5 of the Loan Agreement is hereby amended by
adding the following as clause (g) at the end thereof:
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"(g) (i) All of the capital stock of F-Singapore is (or after the
NSAD will be) owned solely by KOSI. As of the NSAD, F-Singapore's entire
authorized capital stock consists solely of 100,000 shares of common
stock, par value S$1 per share, of which (as of the NSAD and as of the
NSAD (Post)) 100,000 shares are outstanding. All of such outstanding
shares have been duly and validly issued, are fully paid and
nonassessable, are outstanding as of the NSAD and as of the NSAD Post, are
owned beneficially and of record by KOSI, and are owned free and clear of
all Liens other than Liens in favor of the Agent and the Banks pursuant to
the Security Documents.
(ii) F-Singapore does not have outstanding on the NSAD or the NSAD
(Post) any option, warrant, bonds, debentures or other right, put, call or
commitment to issue, or any obligation or commitment to purchase any of
its authorized capital stock, or any securities convertible into or
exchangeable for any of its authorized capital stock.
7. Representations. To induce the Agent and the Banks to enter into this
Amendment and to grant the waivers and 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 shall survive
the execution, delivery and effectiveness of this Amendment):
(a) [intentionally deleted]
(b) The sale of the Singapore Assets, and each of them, by FEAL to
F-Singapore pursuant to the Sale Transaction will explicitly be made subject to
the existing Liens (if any) of the Agent and the Banks in the Singapore Assets.
(c) [intentionally deleted]
(d) [intentionally deleted]
(e) The Singapore Assets are being Transferred to F-Singapore at fair
market value (as determined in good faith by the board of directors of FEAL).
(f) The Sale Transaction will be completed no later than November 27,
1996. The Borrower will notify the Agent in writing on or before November 27,
1996 whether or not the Sale Transaction has been completed.
(g) F-Singapore was incorporated under the laws of Singapore in November
1995. Prior to July 15, 1996, F-Singapore had not yet conducted any business or
incurred any liabilities (contingent or otherwise) and had no assets.
(h) The aggregate amount to be paid by F-Singapore for the Singapore
Assets will not exceed S$354,599, payable S$100,000 in cash and S$254,599 by
F-Singapore issuing the Singapore Note to FEAL.
(i) The Singapore Assets are not subject to any Liens except Permitted
Liens and the other Liens referred to in Section 8.2(g) of the Loan Agreement .
(j) FEAL's book value of the Singapore Assets as at the date hereof do
not, and as at the end of its last fiscal year did not, exceed S$515,000. The
fair market value of the Singapore Assets as at the date hereof is
approximately $354,599.
(k) The gross revenues of the Singapore division of FEAL did not, for the
period indicated in the first column below, exceed the amount listed alongside
such period in the second column below:
Period Amount
------ ------
Most Recent Full Fiscal Quarter S$ 829,000 (estimated)
Current Fiscal Year through 6/30/96 S$1,644,000 (estimated)
Last Full Fiscal Year S$4,216,000
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(l) F-Singapore has (and as of the NSAD (Post) will have) no Subsidiary.
(m) The aggregate amount paid by KOSI to F-Singapore in consideration for
the issuance to KOSI of all of F-Singapore's capital stock, together with any
other capital contributions made by KOSI to F-Singapore in connection with the
Incorporation Transaction, shall not exceed S$100,000.
(n) [intentionally deleted]
(o) Borrower has delivered to the Agent true and correct (x) balance
sheets of FEAL as at December 31, 1993, December 31,1994, December 31, 1995 and
June 30, 1996, and (y) pro forma balance sheets (after giving effect to the
Transactions) of FEAL and F-Singapore as at June 30, 1996. The balance sheets
delivered pursuant to clause (x) hereof are complete in all material respects
and fairly present the financial condition of FEAL as at the respective dates
indicated therefor. The pro forma balance sheets delivered pursuant to clause
(y) hereof are complete in all material respects and fairly present the
financial condition of FEAL and F-Singapore, respectively, on a pro forma basis
(after giving effect to the Transactions) as at June 30, 1996.
8. Conditions Subsequent. To induce the Agent and the Banks to enter into
this Amendment and to grant the waivers and consents 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), on or before November 27, 1996 (or such later date as the Agent shall
have consented to in writing), the items listed below. 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.
8.1 Amendment to Pledge Agreement. An amendment to the Pledge Agreement
previously executed by KOSI, to add to the shares covered by such pledge
agreement all of the shares issued by F-Singapore.
8.2 Stock Certificates. Duly authenticated and executed share certificates
covering all of the shares issued by F-Singapore, together with undated share
transfer forms duly executed in blank by KOSI with respect thereto.
8.3 Stock Ledger. Evidence that F-Singapore has made appropriate notations
on its stock records (to the extent appropriate under applicable law) that all
of its issued shares have been pledged to the Agent as collateral for
obligations to the Agent and the Banks.
8.4 Foreign Guaranty. A Foreign Guaranty, duly executed by F-Singapore,
substantially similar to that previously executed by FEAL (with such changes
thereto as shall have been directed, or consented to, by the Agent) .
8.5 Supporting Documents. Such information and copies of documents,
approvals (if any) and records (certified where appropriate) of corporate and
legal proceedings as the Agent may have reasonably requested relating to the
Credit Parties' entering into and performance of this Amendment and the Loan
Documents to be entered into in connection with this Amendment Such documents
(with English translations, where applicable) shall, in any event, include:
(a) certified copies of the Charter Documents of F-Singapore;
(b) certificates of authorized officers of KOSI and F-Singapore,
certifying the corporate resolutions of such entity relating to the entering
into and performance of the Loan Documents to be entered into by each such
entity in connection with this Amendment;
(c) certificates of authorized officers of KOSI and F-Singapore, with
respect to the incumbency and specimen signatures of their respective officers
or representatives authorized to execute such documents and any other documents
and papers, and to take any other action, in connection therewith;
(d) a certificate of an authorized officer of Holding and an authorized
officer of the Borrower
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certifying, as of such date on or prior to the NSAD (Post) as is specified by
the Agent, (i) compliance with the conditions of Section 8.3, 8.5 and 8.6 of
this Amendment; and (ii) that the representations and warranties contained in
Section 7 of this Amendment are true and correct as of such specified date with
the same effect as though such representations and warranties had been made at
and as of such time. . 8.6 Lien Searches. Evidence of the absence of any
perfected Liens in the Singapore Assets (except those consented to by the Agent
and except for Permitted Liens and the other Liens referred to in Section
8.2(g)).
8.7 Singapore Note. A certified copy of the Singapore Note.
All documents and papers required by this Section 8 shall be in form and
substance satisfactory to the Agent and shall be delivered to the Agent at such
location as the Agent may direct.
9. Waivers and Consents. In reliance on the accuracy of the
representations, warranties and agreements of the Borrower and Holding
contained elsewhere in this Amendment:
(a) The Agent and the Banks hereby waive the provisions of Sections 7.13,
8.9(a), 8.10 and 8.11(a) of the Loan Agreement to the extent that such sections
would prohibit the Sale Transaction.
(b) The Agent and the Banks hereby waive the provisions of Sections 7.13,
8.11(a), 8.12(b) and 8.14 of the Loan Agreement to the extent that such
sections would prohibit the Incorporation Transaction.
(c) The Agent and the Banks hereby waive those provisions of the Security
Documents executed by FEAL that are analogous to the provisions of the Loan
Agreement (if any) listed in clauses (a) and (b) above to the extent that such
provisions would prohibit the Transactions.
(d) The Agent and the Banks hereby waive the Defaults and Events of
Default existing on the date hereof and (immediately prior to the effectiveness
of this Amendment) on the Amendment Closing Date under Sections 9.2 and 9.3 of
the Loan Agreement by virtue of the Borrower's and/or Holdings and/or KOSI's
and/or F-Singapore's non-compliance with the provisions of the sections of the
Loan Agreement specified below in this Section 9(d) but only to the extent of
the non-compliance specified in this Section 9(d) under the indicated heading:
Events of Default under Section 9.2
Any statement in any certificate rendered to the Banks pursuant to
Sections 6A.3(a), 7.1(a)(ii) and 7.1(b)(1) of the Loan Agreement stating
(whether intentionally or inadvertently) that no Default or Event of
Default then existed, to the extent that the Defaults or Events of Default
then existing are being waived by this Section 9(d) or were waived by
Waiver No. 3 and Consent to the Loan Agreement, made as of September 13,
1996.
Any deemed representation made under Section 6A.3(b) being incorrect
because Defaults or Events of Default then existed, to the extent that the
Defaults or Events of Default then existing are being waived by this
Section 9(d) or were waived by Waiver No. 3 and Consent to the Loan
Agreement, made as of September 13, 1996.
Events of Default under Section 9.3
Failure to comply with the provisions of 8.12(a), 8.12(b) and 8.14 in
connection with the incorporation of F-Singapore in November 1996 and the
issuance by F-Singapore of its shares prior to the date hereof.
10. Confirmation. Borrower and Holding hereby acknowledge that, as more
fully set forth in Section 12.2 of the Loan Agreement, no provision of the Loan
Agreement or any other Loan Document may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the Agent and
the Required Banks (or, in certain instances, by the Agent and the Banks).
11. Limited Nature of Amendments. The amendments, waivers (if any) and
consents (if any) set forth
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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.
12. Effectiveness. This Amendment shall become effective when 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). The first date on which this has been done 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 November 27, 1996 (or such
later date as is agreed to by the Agent and the Borrower in writing), this
Amendment shall be deemed rescinded, null and void.
13. Texas Statutory Language. (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.
14. 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.
15. 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.
16. 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.
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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, FURMANITE PLC
individually and as Agent (formerly KANEB UK plc)
By By
-------------------------- -----------------------
Name: Name:
Title: Title:
KANEB INTERNATIONAL INC.
By
--------------------------
Name:
Title:
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