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 Layne Christensen 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.
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A.
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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”).
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B.
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Administrative Agent, the Required
Lenders and Borrower have agreed to the provisions set forth herein
on the terms and conditions contained herein.
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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:
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 constr
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