EXHIBIT 10.12
1996 FORM 10-K
ELEVENTH AMENDMENT
TO CREDIT AGREEMENT
THIS ELEVENTH AMENDMENT TO CREDIT AGREEMENT, dated as of December 31,
1996, amends and supplements the Credit Agreement dated as of December 14, 1994,
as amended (the "Credit Agreement"), between BUCYRUS INTERNATIONAL, INC. (f/k/a
Bucyrus-Erie Company) (the "Company") and BANK ONE, MILWAUKEE, NATIONAL
ASSOCIATION (the "Bank").
RECITAL
The Company and the Bank desire to amend and supplement the Credit
Agreement as provided below:
AGREEMENTS
In consideration of the promises and agreements set forth in the
Credit Agreement as amended hereby, the Company and the Bank agree as follows:
1. Definitions and References. Capitalized terms not defined
herein have the meanings assigned in the Credit Agreement. Upon the fulfillment
of the conditions set forth in section 3 below, all references to the Credit
Agreement contained in the Loan Documents shall mean the Credit Agreement as
amended by this Eleventh Amendment to Credit Agreement.
2. Amendments.
(a) Section 2.16(b)(iv)(a) of the Credit Agreement is amended
by deleting "$250,000" and replacing it with "$25,000".
(b) Section 2.6(b)(iv)(b) of the Credit Agreement is amended
by inserting the following sentence at the end of such section:
The Company shall furnish to the Bank, within 21 days after the end of
each month, a certificate as to the value of the work-in-process inventory
comprising Project No. 4 and of the Qualified Collahuasi Accounts as of
the last date of the preceding month.
(c) The first sentence of section 2.16(b)(iv)(c) of the
Credit Agreement is amended to read as follows:
The Company shall provide written or telephonic notice (and if telephonic,
confirmed in writing promptly thereafter) of a requested borrowing by 1:00
PM, Milwaukee time, on the date of the requested advance, specifying the
amount thereof.
(d) Section 2.16(b)(iv)(e) of the Credit Agreement is amended
to read as follows:
(e) Interest Rate: Prior to maturity, the outstanding
principal balance of Project Financing Note No. 4, to the extent comprised
of Reference Rate Loans, shall bear interest at the Reference Rate plus
1/4 of one percent (and such rate shall change on each day on which the
Reference Rate changes) and, to the extent comprised of Libor Rate Loans,
shall bear interest at the adjusted Libor Rate during the applicable Loan
Period with the applicable Libor Margin being 2.75%. After maturity, the
unpaid principal balance of Project Financing Note No. 4 and all accrued
interest shall bear interest at the Reference Rate in effect from time to
time plus 2.25%.
(e) The parenthetical contained in the first sentence of
section 2.16(b)(iv)(f) is amended to read as follows:
(provided, however, that [a] during the period from May 20, 1996 to
Maturity Date, 1996 the commitment fee shall be calculated using 3/8 of 1%
per year and [b] thereafter, until the first to occur of (i) the date on
which the outstanding principal balance of Project Financing Note No. 4
equals or exceeds $7,000,000, (ii) the date on which a Collahuasi Project
Letter of Credit is issued by the Bank or (iii) the date on which an
outstanding Letter of Credit becomes a Collahuasi Project Letter of Credit
pursuant to section 2.17 below, the commitment fee shall be calculated
using 3/8 of 1% per year)
(f) The definition of "Minimum Project Financing Reserve"
contained in section 2.16(b)(iv)(h) of the Credit Agreement is amended to read
as follows:
"Minimum Project Financing Reserve" means (a) $0 at all
times that the outstanding principal balance of Project Financing Note
No. 4 is less than $7,000,000 and (b) $5,000,000 at all other times.
(g) Section 6.11 of the Credit Agreement is amended by
deleting the phrase "prior to July 1, 1996" and replacing it with "prior to the
date the Bank's commitment to provide Project Financing under section
2.16(b)(iv) has expired and Project Financing Note No. 4 has been paid in
full (unless the prior written consent of the Bank and The Bank of Nova
Scotia is obtained)".
3. Closing Conditions. This Eleventh Amendment to Credit
Agreement shall be effective upon its execution and delivery by the Company and
the Bank and the receipt by the Bank of:
(a) written consent of The Bank of Nova Scotia to the
execution and delivery of this Eleventh Amendment by the Bank; and
(b) such other documents as the Bank may reasonably request
relating hereto.
4. Representations and Warranties. The Company represents and
warrants to the Bank that:
(a) The execution and delivery of this Eleventh Amendment are
within the Company's corporate power and corporate authority, have been duly
authorized by all necessary corporation action on the part of the Company, are
not in violation of any existing law, rule or regulation of any governmental
agency or authority, any order or decision of any court, the Certificate of
Incorporation or By-Laws of the Company or the terms of any agreement,
restriction or undertaking to which the Company is a party or by which it is
bound and do not require the approval or consent of the shareholders of the
Company, any governmental body agency or authority or any other person or
entity.
(b) The representations and warranties set forth in section 3
of the Credit Agreement are true and correct in all material respects as of the
date of this Eleventh Amendment and no Default or Event of Default has occurred
and is continuing.
5. Costs and Expenses. The Company agrees to pay all costs and
expenses (including reasonable attorneys' fees) paid or incurred by the Bank in
connection with the execution and delivery of this Eleventh Amendment.
6. Effective Date. Upon fulfillment of the conditions set forth
in section 3, this Eleventh Amendment shall be effective as if entered into on
May 20, 1996.
7. Full Force and Effect. The Company and the Bank confirm that
the Credit Agreement, as amended hereby remains in full force and effect.
BANK ONE, MILWAUKEE,
NATIONAL ASSOCIATION
BY /s/Xxxxxxx X. Xxxx VP
Xxxxxxx X. Xxxx, Vice President
BUCYRUS INTERNATIONAL, INC.
BY /s/X. X. Xxxxxxx
Its Assistant Treasurer