FIFTH AMENDMENT
TO
AMENDED AND RESTATED LOAN AGREEMENT
FIFTH AMENDMENT,
dated as of March 31, 2008 (this “Amendment
”), to the Amended and Restated Loan Agreement dated as of
August 13, 2002 (the “ Agreement ”), among
FURMANITE LIMITED (the “ Borrower ”), FURMANITE
WORLDWIDE, INC. (“ Holding ”), the financial
institutions from time to time party thereto (the “
Banks ”) and BANK OF SCOTLAND, as Agent for the Banks
(in such capacity, the “ Agent ”).
WHEREAS, the
Borrower and Holding have requested that Furmanite International
Finance Limited, a company organized under the laws of England and
a wholly owned Subsidiary of Holding (“ FIFL ”),
be permitted to make borrowings under the Agreement (the
“Transaction”);
WHEREAS, the
Borrower and Holding have also requested that several other
amendments be made to the Agreement;
WHEREAS, subject
to the terms and conditions set forth herein, the Agent has agreed
to permit FIFL to make borrowings under the agreement and the
parties have agreed to amend the Agreement as set forth
herein;
NOW, THEREFORE, it
is agreed:
Section 1.
Definitions . Terms used in this Amendment which are defined
in the Agreement shall have the meanings specified therein (unless
otherwise defined herein).
Section 2.
Amendments . Upon the Amendment Effective Date (as defined
in Section 3 below):
2.1 The
Loans . Section 2.1(b) of the Agreement is amended by
deleting Section 2.1(b) in its entirety and substituting, in
lieu thereof, the following Section 2.1(b):
(b) Subject to the
terms and conditions set forth herein, each Bank severally agrees
at any time and from time to time during the Commitment Period to
make loans to the Borrower or FIFL (each a “ Revolving
Credit Loan ” and collectively, the “Revolving
Credit Loans” ) up to its Revolving Credit Loan
Commitment; provided that , on the date of the making
of any Revolving Credit Loan (and after giving effect thereto), the
aggregate principal amount of Revolving Credit Loans outstanding on
such date (plus the aggregate amount (or Dollar Equivalent thereof)
of all LC Obligations on such date) shall not exceed the Total
Revolving Credit Loan Commitment then in effect. During the
Commitment Period, the Borrower or FIFL may utilize the Revolving
Credit Loan Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part without premium or penalty (except
as otherwise provided by Section 3-11), and reborrowing, all
in accordance with the terms and conditions hereof. Revolving
Credit Loans shall be made from each Bank pro rata on
the basis of the Revolving Credit Loan
Commitment of
such Bank. Except as otherwise provided in this Agreement or the
Notes, the Borrower and FIFL promise to pay to the Banks all
outstanding Revolving Credit Loans on the Maturity Date together
with accrued interest thereon determined in accordance with the
terms of this Agreement or the Notes and as shown in records made
in accordance with manual, computerized, electronic or other
record-keeping systems used from time to time by the
Banks.
2.2 Notice of
Borrowing . Section 2.1(e) of the Agreement is
amended by deleting Section 2.1(e) in its entirety and
substituting, in lieu thereof, the following
Section 2.1(e):
(e) The amounts
payable by the Borrower and FIFL at any time hereunder and under
the Notes to each Bank shall be a separate and independent debt and
(subject to the provisions of Section 9) each Bank shall be
entitled to protect and enforce its rights arising out of this
Agreement and its Notes (or either of them), and it shall not be
necessary for any other Bank or the Agent to consent to, or be
joined as an additional party in, any proceedings for such
purposes, it being understood (x) that no Bank (other than the
Agent) may seek to realize upon any security or Collateral nor seek
to enforce any Guarantee Agreement or other Security Document or
the obligations of any Person under any of the other Loan Documents
without the consent of the Required Banks and (y) that such
rights and remedies may be exercised by the Agent for the benefit
of the Banks upon the terms of such Loan Documents and this
Agreement and (z) the Banks shall be entitled to enforce their
respective claims in respect of the Revolving Credit Loans under
this Agreement or the Notes and any defect, defence to
enforceability, limitation, imperfection or invalidity of the Notes
shall not impair or restrict the right of the Banks to enforce
their respective claims in respect of the Revolving Credit Loans
under this Agreement or affect the enforceability of this Agreement
and the Borrower and FIFL hereby irrevocably and unconditionally
agree to indemnify and keep indemnified the Banks against any loss
or liability arising from any defect, defence to enforceability,
limitation, imperfection or invalidity of the Notes or any
unenforceability of this Agreement arising therefrom.
2.3 Notice of
Borrowing . Section 2.2(a) of the Agreement is amended by
deleting Section 2.2(a) in its entirety and substituting, in lieu
thereof, the following Section 2.2(a):
(a) The Borrower,
for itself or as agent for FIFL, shall give at least four Business
Days’ prior written notice (a “ Notice of
Borrowing” ) to the Agent of the date (which shall be a
Business Day during the Commitment Period) of each proposed
borrowing hereunder (the “ Borrowing Date ”).
Such notice shall specify (subject to the provisions of this
Agreement) (i) the Borrowing Date, (ii) the total amount
of the proposed borrowing, expressed in Dollars, which shall be in
a minimum amount of $500,000 if a Base Rate (US) Loan and $500,000
if a Libor Loan (or, if greater, in integral multiples of $100,000
in each case) provided that the aggregate principal
amount of such borrowing must equal or be less than the Unutilized
Revolving Commitments (after giving effect to all other Notices of
Borrowings for Revolving Credit Loans and Issuance Requests pending
at such time) at such time, (iii) whether such borrowing is by the
Borrower or FIFL (iv) the Type of Loan which such borrowing
will initially be, (v) whether such Loan will be a Libor Loan
or a Base Rate (US) Loan and, if a Libor Loan,
2
the requested
Interest Period therefor, (vi) [intentionally deleted], and (vii)
[intentionally deleted]. Notwithstanding the foregoing, however,
Base Rate (US) Loans may be made upon two Business Days’
telephone notice, Closing Office Time, by the Borrower to the Agent
(confirmed as soon as possible thereafter in writing). Unless
otherwise agreed to by the Agent and the Borrower, the Notice of
Borrowing for all Loans after the Closing Date shall be
substantially in the form of Exhibit A hereto.
2.4 The
Notes. Exhibit B to the Agreement is amended by deleting
said Exhibit B and substituting, in lieu thereof,
Exhibit B attached to this Amendment. Section 2.3 of the
Agreement is amended by deleting Section 2.3 in its entirety
and substituting, in lieu thereof, the following
Section 2.3:
(a) The
obligations of the Borrower and, FIFL to pay the principal of, and
interest on, the Revolving Credit Loans of each Bank shall be
ev
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