AMENDMENT NO. 4 TO AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 10.1
AMENDMENT NO. 4 TO AMENDED AND RESTATED LOAN AGREEMENT
This AMENDMENT NO. 4 AMENDED AND RESTATED LOAN AGREEMENT (this “Agreement”) is entered and
effective as of March 31, 2009, by and among Xxxxx Xxxxxxxxxxx Company, a Delaware corporation
(“Borrower”) and Bank of America, N.A. (as successor to LaSalle Bank National Association) (“Bank
of America”), as Administrative Agent (“Administrative Agent”), and Bank of America and the other
lenders a party hereto comprising the Required Lenders.
Recitals:
| A. | Borrower, Administrative Agent and Lenders are party to that certain Amended and Restated Loan Agreement dated as of September 28, 2005, as amended by Amendment No. 1 to Amended and Restated Loan Agreement, dated as of June 16, 2006, as amended by Amendment No. 2 to Amended and Restated Loan Agreement, dated as of November 20, 2006, as amended by Amendment No. 3 to Amended and Restated Loan Agreement, dated as of October 15, 2007 but effective as of August 28, 2007 (as amended from time to time, the “Loan Agreement”). | |
| B. | Administrative Agent, the Required Lenders and Borrower have agreed to the provisions set forth herein on the terms and conditions contained herein. |
Agreement
Therefore, in consideration of the mutual agreements herein and other sufficient
consideration, the receipt of which is hereby acknowledged, Borrower, Administrative Agent and the
Required Lenders hereby agree as follows:
1. Definitions. All references to the “Agreement” or the “Loan Agreement” in the Loan Agreement, any of the other
Loan Documents, and in this Agreement shall be deemed to be references to the Loan Agreement as it
may be amended, restated, extended, renewed, replaced, or otherwise modified from time to time.
Capitalized terms used and not otherwise defined herein have the meanings given them in the Loan
Agreement.
2. Effectiveness of Agreement. This Agreement shall become effective as of the date first written above, but only if this
Agreement has been executed by Borrower, Administrative Agent and the Required Lenders, and only if
all of the documents listed on Exhibit A to this Agreement have been delivered and, as
applicable, executed, each in form and substance satisfactory to Administrative Agent and the
Required Lenders.
3. Amendment. For all periods from and after the date of this Agreement, the Loan Agreement is amended as
follows:
3.1. Accounting Terms.
Section 2.5 of the Loan Agreement is deleted and replaced with the following:
“2.5. Accounting Terms. Unless the context otherwise requires, accounting terms herein
that are not defined herein shall be determined under GAAP. All financial measurements
contemplated hereunder respecting Borrower shall be made and calculated for Borrower and all
of its now existing or later acquired, created or organized Subsidiaries, if any, on a
consolidated and consolidating basis in accordance with GAAP unless expressly provided
otherwise herein.
For all purposes of this Agreement, including, without limitation,
calculating Total Funded Indebtedness, Priority Indebtedness, Indebtedness and all defined
terms in Section 14 of this Agreement, and for purposes of determining compliance with the
covenants contained in Section 14 of this Agreement, any election by the Borrower to measure
an item of Indebtedness using fair value (as permitted by Statement of Financial Accounting
Standards No. 159 or any similar accounting standard, as amended or replaced from time to
time) shall be disregarded, and such calculation or determination shall be made as if any
such election had not been made.”
3.2. Indebtedness. Section 13.2.6 of the Loan Agreement is deleted and replaced with the following:
“13.2.6. Indebtedness, including the Seller Earn Out and Hedge Obligations, disclosed on
section 10.18 of the Disclosure Schedule, provided, however, the Indebtedness (other than
Hedge Obligations (including new Hedge Obligations and increases thereof subject to the next
sentence) and Indebtedness (including new Indebtedness and increases thereof) permitted by
the terms of Section 13.1.6) disclosed thereon may not be increased above the amounts
existing on the Effective Date. Notwithstanding the foregoing, the Borrower shall not, and
shall not permit any Subsidiary to, enter into or be bound by any Hedging Obligations with
respect to commodities other than Hedging Obligations by the Borrower or a Subsidiary
Guarantor with respect to PDP Reserves of the Borrower and its Subsidiaries; provided that
the notional volumes for all such Hedging Obligations permitted by this sentence shall not
at any time exceed (I) for the period from and including April 1, 2009 through and including
April 30, 2010, 125% of the reasonably anticipated projected production over the following
12-month period from PDP Reserves of the Borrower and its Subsidiaries, and (II) for all
other periods, 75% of the reasonably anticipated projected production over the following
12-month period from PDP Reserves of the Borrower and its Subsidiaries. For purposes of
this paragraph, “PDP Reserves” shall mean “proved developed producing reserves” as defined
by the Board of Directors of the Society for Petroleum Engineers (SPE) Inc.”
4. Representations and Warranties of Borrower. Borrower hereby represents and warrants to Administrative Agent and the Lenders that (i) Borrower’s
execution of this Agreement has been duly authorized by all requisite action of Borrower; (ii) no
consents are necessary from any third parties for Borrower’s execution, delivery or performance of
this Agreement, (iii) this Agreement, the Loan Agreement, and each of the other Loan Documents,
constitute the legal, valid and binding obligations of Borrower enforceable against Borrower in
accordance with their terms, except to the extent that the enforceability thereof against Borrower
may be limited by bankruptcy, insolvency or other laws affecting the enforceability of creditors
rights generally or by equity principles of general application, (iv) all of the representations
and warranties contained in Section 10 of the Loan Agreement are true and correct with the same
force and effect as if made on and as of the date of this Agreement, (v) after giving effect to
this Agreement, there is no Existing Default, (vi) since September 28, 2005, there has been no
change in the financial condition or business operations of Borrower or any other Covered Person
which could reasonably be expected to result in a Material Adverse Effect, (vii) there are no
proceedings of any kind, pending or threatened against Borrower or any other Covered Person, which
could reasonably be expected to result in a Material Adverse Effect, and (viii) there are no
Security Interests with respect to the Borrower or its assets, except for Permitted Security
Interests.
5. Effect of Agreement. The execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any
right, power or remedy of Administrative Agent or any Lender under the Loan Agreement or any of the
other Loan Documents, nor constitute a waiver of any provision of the Loan Agreement, any of the
other Loan Documents or any existing Default or Event of Default, nor, except as
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set forth in Section 3 above, be or be construed or deemed to be, an amendment or modification of any provision
of the Loan Agreement or the other Loan Documents.
6. Reaffirmation. Borrower hereby represents, warrants, acknowledges and confirms that (i) the Loan Agreement and the
other Loan Documents remain in full force and effect, (ii) Borrower has no defenses to its
obligations under the Loan Agreement and the other Loan Documents, and (iii) Borrower has no claim
against Administrative Agent or any Lender arising from or in connection with the Loan Agreement or
the other Loan Documents and hereby waives, releases and discharges forever any claims the Borrower
may have against Administrative Agent or any Lender arising on or prior to the date hereof.
7. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Illinois without
giving effect to choice or conflicts of law principles thereunder.
8. Section Titles. The section titles in this Agreement are for convenience of reference only and shall not be
construed so as to modify any provisions of this Agreement.
9. Counterparts; Facsimile Transmissions. This Agreement may be executed in one or more counterparts and on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signatures to this Agreement may be given by facsimile or other electronic
transmission, and such signatures shall be fully binding on the party sending the same.
10. Patriot Act Notice. Administrative Agent, each Lender and Bank of America (for itself and not on behalf of any other
party) hereby notifies each Borrower, each Guarantor, each other Covered Person and each of their
Subsidiaries that, pursuant to the requirements of the USA Patriot Act, Title III of Pub. L.
107-56, signed into law October 26, 2001 (the “Act”), it is required to obtain, verify and record
information that identifies each Borrower, each Guarantor, each other Covered Person and each of
their Subsidiaries, which information includes the name and address of the Borrower, each
Guarantor, each other Covered Person and each of their Subsidiaries and other information that will
allow Administrative Agent, such Lender or Bank of America, as applicable, to identify the
Borrower, each Guarantor, each other Covered Person and each of their Subsidiaries in accordance
with the Act.
11. Incorporation By Reference. Administrative Agent, the Lenders and Borrower hereby agree that all of the terms of the Loan
Documents are incorporated in and made a part of this Agreement by this reference.
12. Statutory Notice — Insurance.
The following notice is given pursuant to Section 10 of the Collateral Protection Act set forth in
Chapter 815 Section 180/1 of the Illinois Compiled Statutes (1996); nothing contained in such
notice shall be deemed to limit or modify the terms of the Loan Documents:
UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR AGREEMENT WITH US, WE
MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT OUR INTERESTS IN YOUR COLLATERAL. THIS
INSURANCE MAY, BUT NEED NOT, PROTECT YOUR INTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT
PAY ANY CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION WITH THE
COLLATERAL. YOU MAY LATER CANCEL ANY INSURANCE PURCHASED BY US, BUT ONLY AFTER PROVIDING
EVIDENCE THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY OUR AGREEMENT. IF WE PURCHASE
INSURANCE FOR THE COLLATERAL, YOU WILL BE RESPONSIBLE FOR THE
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COSTS OF THAT INSURANCE, INCLUDING THE INSURANCE PREMIUM, INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN CONNECTION
WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR
EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL
OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF
INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.
13. Statutory Notice — Oral Commitments. Nothing contained in the following notice shall be deemed to limit or modify the terms of the Loan
Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING
REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO
PROTECT YOU (BORROWER) AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE
IN WRITING TO MODIFY IT.
Borrower acknowledges that there are no other agreements between Administrative Agent, Lenders, and
Borrower, oral or written, concerning the subject matter of the Loan Documents, and that all prior
agreements concerning the same subject matter, including any proposal or commitment letter, are
merged into the Loan Documents and thereby extinguished.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the date first above written.
| XXXXX XXXXXXXXXXX COMPANY, a Delaware corporation |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, Senior Vice President — Finance | ||||
| BANK OF AMERICA, N.A. (as successor to LaSalle Bank National Association), as a Lender |
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| Name: | /s/ Xxxxxx X. Xxxxx | |||
| Title: VP | ||||
| BANK OF AMERICA, N.A. (as successor to LaSalle Bank National Association), as Administrative Agent |
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| Name: | /s/ Xxxxxx X. Xxxxx | |||
| Title: VP | ||||
| NATIONAL CITY BANK, as successor by merger to National City Bank of Indiana, as a Lender |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXX X.X., as a Lender |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Managing Director | |||
| THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, as a Lender |
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| By: | /s/ BL | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| M&I XXXXXXXX & ILSLEY BANK, as a Lender |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | AVP | |||
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| M&I XXXXXXXX & XXXXXX BANK, as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | VP | |||
| FIRST BANK, as a Lender |
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| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Executive Vice President | |||
| ALLIED IRISH BANKS, P.L.C., as a Lender |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
{end of signatures}
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UNCONDITIONAL REAFFIRMATION OF GUARANTY
This Unconditional Reaffirmation of Guaranty to Amendment No. 4 to Amended and Restated Loan
Agreement is executed by each of the undersigned (individually, and collectively, and jointly and
severally, “Guarantor”) and is dated as of March 31, 2009 (this “Reaffirmation”). Each Guarantor
acknowledges and consents to all changes, terms and provisions set forth in the foregoing Amendment
No. 4 to Amended and Restated Loan Agreement among the Borrower, Administrative Agent, and the
Lenders of even date with this Reaffirmation (“Amendment No. 4”) and agrees that all such changes
are in the best interests of the Borrower and Guarantor. In consideration of the financial
accommodations granted and which may hereafter be granted to the Borrower by Administrative Agent
and the Lenders, in consideration of Administrative Agent’s, the Issuing Lender’s and the Lenders’
reliance on each Unlimited Guaranty executed by each Guarantor in favor of the Administrative Agent
for the benefit of the Administrative Agent and the Lenders and the other Loan Documents to which
Guarantor is a party, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, each Guarantor, irrevocably and unconditionally reaffirms each
Unlimited Guaranty and the other Loan Documents to which it is a party and its continuing guarantee
of the payment and performance of all current and future Loan Obligations. Guarantor agrees that
the validity and enforceability of each Unlimited Guaranty and the other Loan Documents to which it
is a party is not and shall not be affected in any way or manner by any of the changes, terms and
provisions set forth in Amendment No. 4.
Each Guarantor hereby acknowledges and confirms that (i) each Unlimited Guaranty and each
other Loan Documents to which it is a party is in full force and effect, (ii) such Guarantor has no
defenses to its obligations under each Unlimited Guaranty and the other Loan Documents to which it
is a party, and (iii) such Guarantor has no claim against Administrative Agent, the Issuing Lender
or any Lender arising from or in connection with the Loan Agreement or the other Loan Documents,
and such Guarantor hereby releases and waives and discharges forever any such claims it may have
against Administrative Agent, the Issuing Lender or any Lender arising from or in connection with
the Loan Agreement, each Unlimited Guaranty or the other Loan Documents.
Each Guarantor hereby represents and warrants to Administrative Agent, the Issuing Lender and
each Lender as of the date hereof that (i) this Reaffirmation has been duly authorized by such
Guarantor’s governing body, members or shareholders, as the case may be, (ii) no consents are
necessary from any third person for such Guarantor’s execution, delivery or performance of this
Reaffirmation which have not been obtained, and (iii) this Reaffirmation and all other Loan
Documents to which it is a party constitutes the legal, valid and binding obligation of such
Guarantor enforceable against such Guarantor in accordance with its terms except as the enforcement
thereof may be limited by bankruptcy, insolvency or other laws related to creditors rights
generally or by the application of equity principles.
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| XXXXXX BROS. DRILLING COMPANY, a Utah corporation XXXXXXXXXXX XXXXXX CORPORATION, a Delaware corporation INTERNATIONAL DIRECTIONAL SERVICES, LLC, a Delaware limited liability company LAYNE TEXAS, INCORPORATED, a Delaware corporation MID-CONTINENT DRILLING COMPANY, a Delaware corporation SHAWNEE OIL & GAS, L.L.C., a Delaware limited liability company XXXXX-XXXXXXX INCORPORATED, a Louisiana corporation VIBRATION TECHNOLOGY, INC., a Delaware corporation LAYNE ENERGY, INC., a Delaware corporation LAYNE ENERGY CHERRYVALE, LLC, a Delaware limited liability company LAYNE ENERGY CHERRYVALE PIPELINE, LLC, a Delaware limited liability company LAYNE ENERGY XXXXXX, LLC, a Delaware limited liability company LAYNE ENERGY XXXXXX PIPELINE, LLC, a Delaware limited liability company WINDSOR RESOURCES, LLC, a Delaware limited liability company, formerly known as Layne Energy Illinois, LLC, WINDSOR RESOURCES PIPELINE, LLC, a Delaware limited liability company, formerly known as Layne Energy Illinois Pipeline, LLC LAYNE ENERGY MARKETING, LLC, a Delaware limited liability company LAYNE ENERGY OPERATING, LLC, a Delaware limited liability company |
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| LAYNE ENERGY OSAGE, LLC, a Delaware limited liability company LAYNE ENERGY PIPELINE, LLC, a Delaware limited liability company LAYNE ENERGY PRODUCTION, LLC, a Delaware limited liability company LAYNE ENERGY RESOURCES, INC., a Delaware corporation LAYNE ENERGY SYCAMORE, LLC, a Delaware limited liability company LAYNE ENERGY SYCAMORE PIPELINE, LLC, a Delaware limited liability company LAYNE WATER DEVELOPMENT AND STORAGE, LLC, a Delaware limited liability company CHERRYVALE PIPELINE, LLC, a Kansas limited liability company XXXXXXXX, INC., an Indiana corporation INLINER TECHNOLOGIES, LLC, an Indiana limited liability company LINER PRODUCTS, LLC, an Indiana limited liability company XXXXXXXX INLINER, LLC, an Indiana limited liability company XXXXXXXX TRANSPORT CO., an Indiana corporation COLLECTOR XXXXX INTERNATIONAL, INC., an Ohio corporation INTERNATIONAL WATER CONSULTANTS, INC., an Ohio corporation INLINER AMERICAN, INC., a Delaware corporation formerly known as American Water Services Underground Infrastructure, Inc. |
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| MAG CON, INC., a Louisiana corporation XXXXXXX CONSTRUCTION CO., INC., a Florida corporation |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| LAYNE DRILLING PTY LTD, an Australian company XXXXX XXXXXXXXXXX AUSTRALIA PTY LTD, an Australian company XXXXXXX MINING SERVICES PTY LTD, an Australian company SMS HOLDINGS PTY LTD, an Australian company WEST AFRICAN HOLDINGS PTY LTD, an Australian company WEST AFRICAN DRILLING SERVICES PTY LTD, an Australian company WEST AFRICAN DRILLING SERVICES (NO. 2) PTY LTD, an Australian company XXXXXXX MINING SERVICES (BOTSWANA) PTY LTD., a Botswana, Africa entity, formerly known as Xxxxxxxxx (Pty) Ltd. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Director | |||
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Exhibit A
Documents and Requirements
| 1. | Amendment No. 4 to Amended and Restated Loan Agreement. | |
| 2. | Reaffirmation of Guaranty. | |
| 3. | Amendment to Master Shelf Agreement for the Term Indebtedness. |
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