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EXHIBIT 10.22
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XXXXX INTERNATIONAL, INC.
FOURTH AMENDMENT
Dated as of September 30, 1999
TO
NOTE AGREEMENT
Dated as of May 21, 1996
RE: 7.24% SENIOR GUARANTEED NOTES
DUE APRIL 2, 2001
AND
7.63% SENIOR GUARANTEED NOTES
DUE APRIL 2, 2006
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THIS FOURTH AMENDMENT dated as of September 30, 1999 (the or this
"Fourth Amendment") to the several Note Agreements, each dated as of May 21,
1996 between XXXXX INTERNATIONAL, INC., a Delaware corporation (the "Company"),
and each of the institutions identified in Schedule I thereto (collectively, the
"Purchasers"), as amended by the First Amendment and Waiver dated May 5, 1997,
the Second Amendment and Waiver dated July 31, 1998, and the Third Amendment and
Waiver dated April 27, 1999, is between the Company and each of the institutions
which is a signatory to this Fourth Amendment (the "Required Noteholders").
RECITALS:
A. The Company and each of the Purchasers have heretofore entered into
separate and several Note Agreements, each dated as of May 21, 1996 (the "Note
Agreements") as amended by the First Amendment and Waiver dated May 5, 1997 (the
"First Amendment"), the Second Amendment and Waiver dated July 31, 1998 (the
"Second Amendment"), and the Third Amendment and Waiver dated April 27, 1999
(the "Third Amendment"). The Required Noteholders are the holders of at least
66-2/3% of the Company's 7.24% Senior Guaranteed Notes due April 2, 2001 in the
aggregate principal amount of $30,000,000 and the Company's 7.63% Senior
Guaranteed Notes due April 2, 2006 in the aggregate principal amount of
$20,000,000 (collectively, the "Notes") issued and sold under and pursuant to
the Note Agreements.
B. The Company and the Required Noteholders now desire to amend the
Note Agreements effective on September 30, 1999 (the "Fourth Amendment Effective
Date") in the respects, but only in the respects, hereinafter set forth.
Pursuant to Section 7.1 of the Note Agreements, the consent of the Required
Noteholders is required to amend the Note Agreements as contemplated herein.
C. Capitalized terms used herein but not otherwise defined shall have
the meanings assigned thereto in the Note Agreements.
NOW, THEREFORE, the acceptance hereof by the Required Noteholders and
the full and complete satisfaction of the conditions precedent to the
effectiveness of this Fourth Amendment set forth in Section 3.1 hereof, will
confirm the understanding of the Company and the Required Noteholders that the
Note Agreements shall be and are hereby amended in the following respects:
SECTION 1. AMENDMENTS.
SECTION 1.1. AMENDMENT OF SECTION 5.7. Section 5.7 (b) of the Existing
Note Agreements shall be and is hereby amended in its entirety so that the same
shall henceforth read as follows:
"Section 5.7. Certain Ratios.
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(b) The Company will not at any time permit the ratio of
Consolidated EBIT for the immediately preceding four fiscal quarter
period to Consolidated Interest Expense for the immediately preceding
four fiscal quarter period to be less than:
DURING THE PERIOD: RATIO
Effective Date through 1.20 to 1.00
September 30, 1999
October 1, 1999 through 1.50 to 1.00
December 31, 1999
January 1, 2000 through 2.00 to 1.00
March 31, 2000
April 1, 2000 and 2.50 to 1.00"
thereafter
Section 1.1. Interpretation of Section 5.12. The Company and the
Required Noteholders agree that the joint venture transaction between the
Company and Schlumberger Ltd., which closed on July 14, 1999, by which
Schlumberger contributed its non-United States Drilling fluids assets and
operations together with cash and obtained a 40% interest in the joint venture
formed between Schlumberger Ltd. and M-I L.L.C., a wholly-owned subsidiary of
the Company, is not an asset sale or other transaction subject to the
limitations of Section 5.12 of the Note Agreement.
(b) The following definitions shall be and are hereby added to Section
8.1 of the Existing Note Agreements in their alphabetical order:
""Fourth Amendment" shall mean the Fourth Amendment dated as of
September 30, 1999 to the Note Agreement entered into by the Company
and the Required Noteholders."
""Fourth Amendment Effective Date" shall mean September 30, 1999."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to each of you that all of
the representations and warranties set forth in Exhibit A attached hereto are
true and correct as of the date of acceptance set forth on the signature pages
to this Fourth Amendment and are incorporated herein by reference with the same
force and effect as though herein set forth in full.
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SECTION 3. MISCELLANEOUS.
SECTION 3.1. This Fourth Amendment shall become effective and binding
upon the Company and the holders of the Notes on the Fourth Amendment Effective
Date upon the acceptance hereof by the Required Noteholders in the space below
and upon the satisfaction in full of the following conditions:
(a) each of their holders of the Notes shall have received a
certificate dated the date of acceptance set forth on the signature pages to
this Fourth Amendment, signed by the President or a Vice-President of the
Company, the truth and accuracy of which shall be a condition to their
obligations under this Fourth Amendment to the effect that: (1) the
representations and warranties of the Company set forth in Exhibit A attached
hereto are true and correct on and with respect to the Fourth Amendment
Effective Date and (2) no Default or Event of Default has occurred and is then
continuing, after giving effect to the amendments set forth herein;
(b) the holders of the Notes shall have received, in form and substance
reasonably satisfactory to such holders and their special counsel, such
documents and evidence with respect to the Company as such holders may
reasonably request in order to establish the existence and good standing of the
Company and the authorization, execution and delivery of the Fourth Amendment;
(c) the holders of the Notes shall have received an opinion of counsel
from counsel to the Company covering the matters set forth in clause (b) of this
Section 3.1 and such other matters relating to the Fourth Amendment as the
holders of the Notes may reasonably request;
(d) ACQCO shall have consented to the execution and delivery of this
Fourth Amendment and the holders of the Notes shall have received a true,
correct and complete originally executed copy thereof; and
(e) any consents or approvals from any holder or holders of any
outstanding Security of the Company or ACQCO and any amendments of agreements
pursuant to which any Securities may have been issued which shall be necessary
to permit the consummation of the transactions contemplated hereby shall have
been obtained and all such consents or amendments shall be reasonably
satisfactory in form and substance to the holders of the Notes and their special
counsel and such holders and their special counsel shall have received true,
correct and complete copies of such executed consents and amendments.
SECTION 3.2. The Company agrees to pay all reasonable fees and expenses
of the holders of the Notes and their special counsel in connection with the
preparation, execution and delivery of this Fourth Amendment.
SECTION 3.3. Whenever in any certificate, letter, notice or other
instrument reference is made to the Note Agreements, such reference without more
shall include reference to this Fourth Amendment.
SECTION 3.4. Except as modified and expressly amended by the Fourth
Amendment, the Note Agreements and the Notes are in all respects ratified,
confirmed and approved on all of the terms, provisions and conditions thereof
shall be and remain in full force and effect, including
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(without limitation), Section 9.10, 9.11 and 9.13 of the Note Agreements. The
descriptive headings of the various Sections or parts of this Fourth Amendment
are for convenience only and shall not affect the meaning or construction of any
of the provisions hereof.
SECTION 3.5. This Fourth Amendment may be executed and delivered in any
number of counterparts, each of such counterparts constituting an original, but
all together only one Fourth Amendment.
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XXXXX INTERNATIONAL, INC.
By: /s/ XXXXXXXX X. XXXXXX
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Its Senior Vice President, Chief
Financial Officer and Treasurer
By: /s/ XXXX X. XXXXXX
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Its Senior Vice President - Administration,
General Counsel and Secretary
Xxxxx International, Inc. - Fourth Amendment To Note Agreement
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PRINCIPAL LIFE
INSURANCE COMPANY
BY: PRINCIPAL CAPITAL
MANAGEMENT LLC,
A DELAWARE LIMITED LIABILITY
COMPANY
ITS AUTHORIZED SIGNATORY
By: /s/ XXX X. XXXXX, Counsel
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By: /s/ XXXXX X. XXXXXXX, Counsel
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AGREED TO AND ACCEPTED
THIS 30th DAY OF SEPTEMBER, 1999:
Xxxxx International, Inc. - Fourth Amendment To Note Agreement
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XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By: /s/ XXXXXX XXXXX, XX.
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Its Senior Investment Officer
AGREED TO AND ACCEPTED
THIS 30th DAY OF SEPTEMBER, 1999:
Xxxxx International, Inc. - Fourth Amendment To Note Agreement
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XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: /s/ XXXXXX XXXXX, XX.
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Its Authorized Officer
AGREED TO AND ACCEPTED
THIS 30th DAY OF SEPTEMBER, 1999:
Xxxxx International, Inc. - Fourth Amendment To Note Agreement
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IDS CERTIFICATE COMPANY
By:
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Its
AGREED TO AND ACCEPTED
THIS 30th DAY OF SEPTEMBER, 1999:
Xxxxx International, Inc. - Fourth Amendment To Note Agreement
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MELLON BANK, N.A., SOLELY IN ITS
CAPACITY AS TRUSTEE FOR THE LONG-TERM
INVESTMENT TRUST, (AS DIRECTED BY XXXX
XXXXXXX MUTUAL LIFE INSURANCE
COMPANY), AND NOT IN ITS INDIVIDUAL
CAPACITY
By: /s/ XXXXXX XXXXX
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Its Authorized Signatory
AGREED TO AND ACCEPTED
THIS 30th DAY OF SEPTEMBER, 1999:
Xxxxx International, Inc. - Fourth Amendment To Note Agreement
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THE MARITIME LIFE ASSURANCE
COMPANY
By: /s/ XXXXXX X. XXXXXXX
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Its Vice President, Private Placements
By: /s/ XXXXX X. XXXXXX
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Its Senior Vice President
Chief Investment Officer
AGREED TO AND ACCEPTED
THIS 30th DAY OF SEPTEMBER, 1999:
Xxxxx International, Inc. - Fourth Amendment To Note Agreement
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EXHIBIT A
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to you as follows:
1. Corporate Organization and Authority. The Company and each
Subsidiary
(a) is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and
has not commenced any proceedings to dissolve;
(b) has all requisite power and authority and all necessary
licenses and permits to own and operate its properties and to carry on
its business as now conducted and as presently proposed to be
conducted; and
(c) is duly licensed or qualified and is in good standing as a
foreign corporation in each jurisdiction wherein the nature of this
business transacted by it or the nature of the property owned or leased
by it makes such licensing or qualification necessary, except for such
jurisdictions wherein the failure to be so licensed or qualified would
not have a Material Adverse Effect.
2. Full Disclosure. Neither the Fourth Amendment nor any other written
statement furnished by the Company to you in connection with the negotiation of
the Fourth Amendment, contain any untrue statement of a material fact or omit a
material fact necessary to make the statement contained therein or herein not
misleading. There is no fact peculiar to the Company which the Company has not
disclosed to you in writing which materially affects adversely nor, so far as
the Company can now foresee, will materially affect adversely the properties,
business, prospects, profits or condition (financial or otherwise) of the
Company or the ability of the Company to enter into and perform the Fourth
Amendment.
3. Transactions Legal and Authorized. The execution and delivery of the
Fourth Amendment
(a) are within the corporate powers of the Company;
(b) will not violate any material provisions of any law or any
order of any court or governmental authority or agency and will not
conflict with or result in any breach of any of the terms, conditions
of provisions of, or constitute a default under, the Certificate of
Incorporation of By-laws of the Company or any loan agreement,
indenture or other agreement or instrument to which the Company will be
a party or by which it may be bound on the Fourth Amendment Effective
Date or result in the imposition of any Lien on any property of the
Company; and
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(c) have been duly authorized by proper corporate action on
the part of the Company (no action by the stockholders of the Company
being required by law, by the Certificate of Incorporation or the
By-laws of the Company or otherwise), executed and delivered by the
Company and the Fourth Amendment constitutes the legal, valid and
binding obligation, contract and agreement of the Company enforceable
in accordance with its terms.
4. Pending Litigation. There are no proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company in any
court or before any governmental authority or arbitration board or tribunal
which, if adversely determined, could in the aggregate have a material adverse
effect on the properties, business, prospects, profits or condition (financial
or otherwise) of the Company and its Subsidiaries. The Company is not in default
with respect to any order of any court or governmental authority or arbitration
board or tribunal.
5. No Defaults. Neither the Company nor any Subsidiary is in default
(a) in the payment of principal or interest on any Indebtedness for borrowed
money (b) under any instrument or instruments or agreements under and subject to
which any Indebtedness for borrowed money has been issued, and no event has
occurred and is continuing under the provisions of any such instrument or
agreement which with the lapse of time or the giving of notice, or both, would
constitute an event of default thereunder. Neither the Company nor any
Subsidiary is in violation of any term of any agreement, charter instrument,
regulation or other instrument to which it is a party or by which it may be
bound which violation would in the aggregate have a material adverse effect on
the business or the financial condition of the Company.
6. Consents. No approval, consent or withholding of objection on the
part of any regulatory body, state, Federal or local, is necessary in connection
with the execution and delivery by the Company of the Fourth Amendment or
compliance by the Company with any of the provisions thereof. All approval sand
consents required from any other Person for the due execution and delivery by
the Company of the Fourth Amendment and compliance by the Company with any of
the provisions thereof have been obtained and are in full force and effect.
7. Compliance with Law. Neither the Company nor any Subsidiary (a) is
in violation of any law, ordinance, franchise, governmental rule or regulation
to which it is subject; or (b) has failed to obtain any license, permit,
franchise or other governmental authorization necessary to the ownership of its
property or to the conduct of its business, which violation or failure to obtain
would, individually or in the aggregate, materially adversely affect the
business, prospects, profits, properties or condition (financial or otherwise)
of the Company and its Subsidiaries, taken as a whole, or impair the ability of
the Company to perform its obligations contained in the Fourth Amendment.
Neither the Company nor any Subsidiary is in default with respect to any order
of any court or governmental authority or arbitration board or tribunal.
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CONFIRMATION OF GUARANTY AGREEMENT
Xxxxx International Acquisition Corp. (the "GUARANTOR") pursuant to
that certain Guaranty Agreement dated as of March 1, 1994 (the "GUARANTY"),
which has been executed and delivered by the Guarantor to the Noteholders (as
defined in the Guaranty), hereby agrees that its liabilities thereunder and the
Security Documents to which such Guarantor is a party are and shall remain
enforceable against such Guarantor in accordance with their terms, and are, and
shall continue to be, in full force and effect and shall not be reduced,
altered, limited, lessened or in any way affected by the execution and delivery
of the Fourth Amendment to Note Agreement dated as of even date herewith and to
which this Confirmation of Guaranty Agreement is attached, executed by the
Company (as defined in the Fourth Amendment) and the Required Noteholders (as
defined in the Fourth Amendment), and are hereby confirmed and ratified in all
respects.
WITNESS THE EXECUTION HEREOF, effective as of the 30th day of
September, 1999.
XXXXX INTERNATIONAL ACQUISITION CORP.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
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Title: Sr. VP-Admin., General Counsel & Sec.
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