EXHIBIT 4 (1)
FOURTH AMENDMENT
THIS FOURTH AMENDMENT (this "Fourth Amendment") dated as of
April 20, 1999 is to the Amended and Restated Credit Agreement
(as previously amended, 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 in certain respects as more fully set forth below;
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. AMENDMENT. Effective on (and subject to the
occurrence of) the Fourth Amendment Effective Date (as defined
below), the Credit Agreement shall be amended as set forth below.
SECTION 1.1 ADDITION OF DEFINITION. The following
definition is added to Section 1.1 in appropriate alphabetical
sequence:
"OPERATING CONTROL means control sufficient to allow
consolidation of the controlled Person in accordance with
GAAP."
SECTION 1.2 AMENDMENT OF DEFINITIONS. The definitions of
"Adjusted EBITA" and "Subsidiary" are amended in their entirety
to read as follows, respectively:
"ADJUSTED EBITA means, for any Computation Period,
EBITA for such Computation Period LESS affiliate equity
earnings, PLUS affiliate dividends (limited to the amount of
affiliate equity earnings) PLUS, for any Computation Period
which includes the Fiscal Quarter ending January 31, 1999,
$5,340,000."
"SUBSIDIARY means, with respect to any Person, a corporation
or limited liability company (a) of which such Person and/or
its other Subsidiaries own, directly or indirectly, (i) such
number of outstanding shares as have more than 50% of the
ordinary voting power for the election of directors in the
case of a corporation or (ii) in excess of 50% of the
membership interests (including voting control) in the case
of a limited liability company, (b) organized under the laws
of Australia or a state or territory thereof and which is
otherwise a subsidiary of such Person within the meaning of
Section 9 of the Corporations Law of Australia or (c) of
which such Person and/or its other Subsidiaries has
Operating Control. Unless the context otherwise requires,
each reference to Subsidiaries herein shall be a reference
to Subsidiaries of the Company."
SECTION 1.3 AMENDMENT TO INTEREST COVERAGE COVENANT.
Section 10.6.1 is amended in its entirety to read as follows:
"10.6.1 MINIMUM INTEREST COVERAGE. Not permit
the Interest Coverage Ratio for any Computation
Period set forth below to be less than the
applicable ratio set forth below for such
Computation Period:
Computation
Period Ending Ratio
------------- -----
4/30/99 - 1/31/00 1.15 to 1
4/30/00 - 7/31/00 1.35 to 1
10/31/00 - 1/31/01 1.50 to 1
4/30/01 - 7/31/01 1.75 to 1
10/31/01 - 1/31/02 2.25 to 1
Thereafter 2.50 to l."
SECTION 1.4 AMENDMENT TO SECTION 10.11(g). Clause (g) of
Section 10.11 is amended in its entirety to read as follows:
"(g) any loan to a Person to finance the
purchase of real property, personal property,
services or equipment from the Company or any
Subsidiary; PROVIDED that (i) if such loan exceeds a
Dollar Equivalent amount of U.S.$200,000, the Company
or such Subsidiary shall retain a first Lien on any
property or equipment sold to the extent permitted
under applicable law, (ii) the aggregate principal
amount of all such loans to any Person and its
affiliates outstanding at any time shall not exceed a
Dollar Equivalent amount of U.S.$5,000,000 and (iii)
the aggregate principal amount
of all such loans outstanding at any time shall not
exceed a Dollar Equivalent amount of U.S.$10,000,000;"
SECTION 1.5 AMENDMENT TO SECTION 10.11(j). Clause (j) of
Section 10.11 is amended by (i) deleting the amount "U.S.$15,000,000"
therein and (ii) substituting "U.S.$20,000,000" therefor.
SECTION 1.6 AMENDMENT TO PRICING SCHEDULE. Schedule 1.1(b)
is amended in its entirety by substituting SCHEDULE 1.1(b) hereto
therefor.
SECTION 2. EFFECTIVENESS. The amendments set forth in
SECTION 1 above shall become effective, as of the day and year
first above written, on the date (the "Fourth Amendment Effective
Date") that the Agent shall have received counterparts of this
Fourth Amendment executed by the Company and the Required Banks
and the Company shall have paid to the Agent for the respective
accounts of the applicable Banks an amendment fee of 0.15% of the
Commitment of each Bank approving this Fourth Amendment on or
prior to the Fourth Amendment Effective Date.
SECTION 3. MISCELLANEOUS.
SECTION 3.1 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 3.2 COUNTERPARTS. This Fourth Amendment may be
executed in any number of counterparts and by the different
parties on separate counterparts, and each such counterpart shall
be deemed to be an original but all such counterparts shall
together constitute one and the same Fourth Amendment.
SECTION 3.3 GOVERNING LAW. This Fourth Amendment shall be
a contract made under and governed by the internal laws of the
State of Illinois.
SECTION 3.4 SUCCESSORS AND ASSIGNS. This Fourth 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.
SECTION 3.5 CONFIRMATION OF COMMITMENT REDUCTION SCHEDULE.
The Company and the Banks acknowledge and agree that, after
giving effect to the voluntary reduction of the Aggregate
Commitment to $80,000,000 by the Company on April 15, 1999, the
remaining scheduled reductions of the Aggregate Commitment are as
set forth on ATTACHMENT 1 hereto.
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
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Managing Director
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Managing Director
MERCANTILE BANK, as Co-Agent and
as a Bank
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Senior Vice President
--------------------------------
MICHIGAN NATIONAL BANK, as Co-Agent
and as a Bank
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Title: Commercial Relationship Manager
--------------------------------
THE BANK OF NOVA SCOTIA
By: /s/ F. C. H. Xxxxx
-----------------------------------
Title: Senior Manager Loan Operations
--------------------------------
SOCIETE GENERALE - CHICAGO BRANCH
By:
-----------------------------------
Title:
--------------------------------
SCHEDULE 1.1(b)
PRICING SCHEDULE
The Margin, the Facility Fee Rate and the LC Fee Rate (for
the applicable type of Letter of Credit) shall be determined
based on the applicable Debt to Capitalization Ratio as set forth
below.
LC Fee Rate - LC Fee Rate -
Debt to Facility Financial Non-Financial
Capitalization Ratio Margin Fee Rate Letters of Credit Letters of Credit
-------------------- ------ -------- ----------------- -----------------
Less than or equal 0.500% 0.250% 0.500% 0.125%
to 0.3 to 1
Greater than 0.30 0.700% 0.300% 0.700% 0.200%
to 1 but less than
0.45 to 1
Equal to or greater 0.875% 0.375% 0.875% 0.250%
than 0.45 to 1
Effective on the Fourth Amendment Effective Date (as defined
in the Fourth Amendment to this Agreement), the Margin shall be
0.7%, the Facility Fee Rate shall be 0.3%, the LC Fee Rate for
Financial Letters of Credit shall be 0.7% and the LC Fee Rate for
Non-Financial Letters of Credit shall be 0.2% (it being
understood that prior to such date the Margin shall be based on
this SCHEDULE 1.1(b) as in effect prior to the effectiveness of
such Fourth Amendment). Each of the foregoing shall be adjusted,
to the extent applicable, 45 days (or, in the case of the last
Fiscal Quarter of any Fiscal Year, 90 days) after the end of each
Fiscal Quarter beginning with the Fiscal Quarter ending April 30,
1999 based on the Debt to Capitalization Ratio as of the last day
of such Fiscal Quarter; PROVIDED that if the Company fails to
deliver the financial statements required by SECTION 10.1.1 or
10.1.2, as applicable, by the due date therefor, the Margin, the
Facility Fee Rate and the LC Fee Rate (for each type of Letter of
Credit) that would apply if the Debt to Capitalization Ratio were
greater than 0.45 to 1 shall apply from such due date until such
financial statements are delivered.
REMAINING SCHEDULED COMMITMENT REDUCTIONS
Commitment Aggregate
Reduction Commitment
Date Reduced to:
---------- -----------
July 31, 2000 $78,000,000
October 31, 2000 $74,500,000
January 31, 2001 $71,000,000
April 30, 2001 $67,500,000
July 31, 2001 $64,000,000
October 31, 2001 $60,500,000
January 31, 2002 $57,000,000
April 30, 2002 $53,500,000
July 31, 2002 $ 0
