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EXHIBIT 10(12.1)
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EXHIBIT 10(12.1)
FIRST AMENDMENT
THIS FIRST AMENDMENT (this "First Amendment") dated as of December 5,
1997 is to the Amended and Restated Credit Agreement (the "Credit Agreement")
dated as of July 25, 1997 among XXXXX XXXXXXXXXXX COMPANY (the "Company"), XXXXX
XXXXXXXXXXX AUSTRALIA PTY LIMITED ("Layne Australia"), various financial
institutions and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Agent (in such capacity, the "Agent"). Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement
which provides for (i) the Banks to make U.S. Loans to the Company from time to
time, (ii) the Australian Banks to make Australian Loans to Xxxxx Australia from
time to time, and (iii) the Issuer to issue Letters of Credit for the account of
the Company (or jointly for the account of the Company and any Subsidiary) from
time to time and for the Banks to purchase participations therein; and
WHEREAS, the parties hereto desire to amend the Credit Agreement to add
two additional financial institutions as Australian Banks;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. NEW AUSTRALIAN BANKS. Effective on and as of the First
Amendment Effective Date (as defined below), each of Bank of New Zealand
Australia, A Division of National Australia Bank Limited ACN 004 044 937 and
Societe Generale Australia Limited ACN 002 093 021 shall be added as a party to
the Credit Agreement as an Australian Bank with an Australian Percentage as set
forth on Schedule 1.1(a) to the Credit Agreement, as amended hereby, and shall
have all of the rights and obligations of an Australian Bank under the Credit
Agreement, as amended hereby. The address for each new Australian Bank is set
forth below its signature hereto.
SECTION 2. AMENDMENT. Effective on (and subject to the occurrence of)
the First Amendment Effective Date, the Credit Agreement shall be amended as set
forth in SECTIONS 2.1 AND 2.2 below.
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SECTION 2.1 SECTION 1. The definition of "Note" in Section 1 of the
Credit Agreement is hereby amended by deleting the language "Section 3.1"
therein and substituting therefor the language "Section 3.2".
SECTION 2.2 SECTION 3. Section 3 of the Credit Agreement is hereby
amended in its entirety to read as follows:
SECTION 3 NOTES AND LOAN ACCOUNTS.
3.1 LOAN ACCOUNT. The Loans made by each Bank shall be
evidenced by one or more accounts or records maintained by such Bank in
the ordinary course of business. The accounts or records maintained by
the Agent and each Bank shall be rebuttable presumptive evidence of the
amount of the Loans made by the Banks to the Borrowers, and the
interest and payments thereon. Any failure so to record or any error in
so recording shall not, however, limit or otherwise affect the
obligation of the applicable Borrower hereunder to pay any amount owing
with respect to any Loan.
3.2 NOTES. Upon the request of any Bank made through the
Agent (and in the case of Australian Loans, so long as the issuance of
such Note shall not result in the imposition of any stamp, withholding
or other tax), the Loans made by such Bank to either Borrower may be
evidenced by a promissory note (as amended, supplemented, replaced or
otherwise modified from time to time, individually each a "Note" and
collectively for all Banks the "Notes") substantially in the form of
EXHIBIT A, instead of loan accounts. Each such Bank shall endorse on
the schedules annexed to the applicable Note the date, amount and
maturity of each applicable Loan made by it and the amount of each
payment of principal made by such Borrower with respect thereto. Each
such Bank is irrevocably authorized by such Borrower to endorse the
applicable Note and each such Bank's record shall be conclusive absent
demonstrable error; PROVIDED, HOWEVER, that the failure of a Bank to
make, or an error in making, a notation on any Note with respect to any
Loan shall not limit or otherwise affect the obligations of the such
Borrower hereunder or under such Note to such Bank.
SECTION 2.3 Schedule 1.1(a). Schedule 1.1(a) to the Credit Agreement is
amended in its entirety to read in the form of SCHEDULE 1.1(a) hereto.
SECTION 3. EFFECTIVENESS. The provisions set forth in SECTIONS 1 and 2
above shall become effective, as of the day and year first above written, on
such date (the "First Amendment Effective Date") that the Agent shall have
received counterparts of this First Amendment executed by the parties hereto.
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SECTION 4. MISCELLANEOUS.
SECTION 4.1 CONTINUING EFFECTIVENESS, ETC. As herein amended, the
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects.
SECTION 4.2 COUNTERPARTS. This First Amendment may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart be deemed to be an original but all such counterparts
shall together constitute one and the same First Amendment.
SECTION 4.3 GOVERNING LAW. This First Amendment shall be a contract
made under and governed by the internal laws of the State of Illinois.
SECTION 4.4 SUCCESSORS AND ASSIGNS. This First Amendment shall be
binding upon the Company, Xxxxx Australia, the Banks and the Agent and their
respective successors and assigns, and shall inure to the benefit of the
Company, Xxxxx Australia, the Banks and the Agent and the successors and assigns
of the Banks and the Agent.
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Delivered at Chicago, Illinois, as of the day and year first above
written.
XXXXX XXXXXXXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Title: Vice President-Finance
------------------------------------------
XXXXX XXXXXXXXXXX AUSTRALIA PTY LIMITED
ACN 078 167 610
By: /s/ X. X. Xxxxxxx
---------------------------------------------
Title: Director
------------------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as Agent
By: /s/ X. X. Xxxxxxxxx
---------------------------------------------
Managing Director
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Bank
By: /s/ X. X. Xxxxxxxxx
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Managing Director
BA AUSTRALIA LIMITED ACN 000 000 000
By: /s/ X. X. Xxxxxxxxx
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Attorney in Fact
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MERCANTILE BANK, as Co-Agent and
as a Bank
By: /s/ Xxxxx Xxxxx
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Title: Corporate Banking Officer
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MICHIGAN NATIONAL BANK, as Co-Agent and as a Bank
By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Title: Commercial Relationship Manager
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BANK OF NEW ZEALAND AUSTRALIA, A
DIVISION OF NATIONAL AUSTRALIA BANK
LIMITED ACN 004 044 937
By: /s/ Xxxx Xxxxxxx
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Title: Head of Business Banking
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Xxxxx 0, 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Xxxxxxxxx
Attention: Xxxxxx Xxxxxxxxx
Facsimile: (61) (00) 0000-0000
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Xxxxx
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Title: Senior Manager Loan Operations
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SOCIETE GENERALE - CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxx
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Title: Vice President
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SOCIETE GENERALE AUSTRALIA LIMITED
ACN 002 093 021
By: /s/ Xxxxxxx Xxxxxxx
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Title: Managing Director
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000 Xxxxxx Xxxxxx
Xxxxxx XXX
Xxxxxxxxx
Attention: Xxxxxx Xxxxx du Monteil
Facsimile: 612 9235 3941
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SCHEDULE 1.1(A)
COMMITMENT LIMITS AND PERCENTAGES
Amount of Australian
Name of Bank Commitment Percentage Percentage
------------ ---------- ---------- ----------
Bank of America National U.S.$25,000,000 25.0% N/A
Trust and Savings Association
BA Australia Limited* N/A N/A 40%
Mercantile Bank U.S.$20,000,000 20.0% N/A
Michigan National Bank U.S.$20,000,000 20.0% N/A
Bank of New Zealand Australia, N/A N/A 32%
A Division of National
Australia Bank Limited*
The Bank of Nova Scotia U.S.$17,500,000 17.5% N/A
Societe Generale-Chicago U.S.$17,500,000 17.5% N/A
Branch
Societe Generale Australia N/A N/A 28%
Limited*
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TOTALS U.S.$100,000,000 100% 100%
* Designated as an Australian Bank by the Bank listed immediately above such
Australian Bank.
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