EXHIBIT 10.1(e)
FORM 10-K
YEAR ENDED DECEMBER 31, 1999
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT, dated as of March 14,
2000, amends and supplements the Credit Agreement dated as of September 24,
1997, as amended by the First Amendment to Credit Agreement dated as of
July 21, 1998, the Second Amendment to Credit Agreement dated as of
September 30, 1998, the Third Amendment to Credit Agreement dated as of
April 20, 1999 and the Fourth Amendment to Credit Agreement dated as of
September 30, 1999 (as so amended, the "Credit Agreement"), among BUCYRUS
INTERNATIONAL, INC., a Delaware corporation (the "Company"), the financial
institutions party thereto (the "Banks"), THE BANK OF NOVA SCOTIA, as
documentation agent, and BANK ONE, WISCONSIN, as agent for the Banks and as
letter of credit issuing bank.
RECITALS
The Company, the Banks, the Documentation Agent and the Agent
desire to amend the Credit Agreement as set forth below.
AGREEMENTS
In consideration of the promises and agreements set forth in the
Credit Agreement, as amended hereby, the parties agree as follows:
1. Definitions and References. Capitalized terms not
defined herein have the meanings ascribed to them in the Credit Agreement.
Upon the execution and delivery of this Fifth Amendment by all of the
parties hereto and the satisfaction of the conditions set forth in section
3 below, all references to the Credit Agreement set forth in the Loan
Documents shall mean the Credit Agreement as amended by this Fifth Amendment
to Credit Agreement.
2. Amendments.
(a) The defined term "Adjusted Funded Debt to EBITDA
Ratio" in Section 1.01 of the Credit Agreement is amended to read as
follows:
"Adjusted Funded Debt to EBITDA Ratio" means the
relationship, expressed as a numerical ratio, between:
(a) Adjusted Funded Debt; and
(b) EBITDA
Adjusted Funded Debt of the Company and its consolidated
Subsidiaries shall be determined based upon consolidated
financial statements of the Company and its consolidated
Subsidiaries as of the last day of the fiscal quarter. Solely
for purposes of determining the Adjusted Funded Debt to EBITDA
Ratio, EBITDA shall (a) for the fiscal quarter ending
September 30, 2000, equal EBITDA of the Company and its
consolidated Subsidiaries for such fiscal quarter multiplied by
4, (b) for the fiscal quarter ending December 31, 2000, equal
EBITDA of the Company and its consolidated Subsidiaries for the
six-month period ending on such date multiplied by 2, (c) for
the fiscal quarter ending March 31, 2001, equal EBITDA of the
Company and its consolidated Subsidiaries for the nine-month
period ending on such date multiplied by 1.33 and (d)
thereafter, shall equal EBITDA of the Company and its
consolidated Subsidiaries for the 12-month period ending on the
date of determination.
(b) The defined term "Applicable Margin" in Section 1.01
of the Credit Agreement is amended to read as follows:
"Applicable Margin" means, at all times on and after March 1,
2000:
(i) with respect to Base Rate Loans, 0.80%; and
(ii) with respect to LIBOR Rate Loans, 3.50%;
provided, however, that the Applicable Margin shall be subject to
adjustment on the date which is 45 days after the end of each fiscal
quarter, commencing with the fiscal quarter ending June 30, 2000 (each
a "Margin Adjustment Date") and the Applicable Margin shall be
determined in accordance with the following matrix:
Ratio of Adjusted
Funded Debt to Base Rate Loan LIBOR Rate Loan
EBITDA Applicable Margin Applicable Margin
Less than 2.75:1.0 0.00% 1.50%
2.75:1.0 to 3.24:1.0 0.00% 1.75%
3.25:1.0 to 3.49:1.0 0.00% 2.00%
3.50:1.0 to 3.99:1.0 0.50% 2.25%
4.00:1.0 to 4.49:1.0 0.50% 2.50%
4.50:1.0 to 4.99:1.0 0.50% 2.75%
5.00:1.0 to 5.49:1.0 0.60% 3.00%
5.50:1.0 to 5.99:1.0 0.70% 3.25%
6.00:1.0 or greater 0.80% 3.50%
Adjusted Funded Debt and EBITDA of the Company and its consolidated
Subsidiaries shall be determined in the same manner as set forth in
the defined term "Adjusted Funded Debt to EBITDA Ratio". Any change
in the Applicable Margin shall be effective on the Margin Adjustment
Date and will apply to all Loans outstanding as of such date.
(c) The final paragraph of the defined term "Fixed
Charge Coverage Ratio" in Section 1.01 of the Credit Agreement is amended
to read as follows:
all as determined for the Company and its consolidated Subsidiaries
(a) for the fiscal quarters ending September 30, 2000, December 31,
2000 and March 31, 2001, for the three-month, six-month and nine-month
periods, respectively, preceding the date of determination and (b) for
each subsequent fiscal quarter, for the twelve-month period preceding
the date of determination.
(d) The final paragraph of the defined term "Interest
Charge Coverage Ratio" in Section 1.01 of the Credit Agreement is amended
to read as follows:
all as determined for the Company and its consolidated Subsidiaries
(a) for the fiscal quarters ending September 30, 2000, December 31,
2000 and March 31, 2001, for the three-month, six-month and nine-month
periods, respectively, preceding the date of determination and (b) for
each subsequent fiscal quarter, for the twelve-month period preceding
the date of determination.
(e) The defined term "Net Worth" in Section 1.01 of the Credit
Agreement is amended to read as follows:
"Net Worth" means, for any Person as of the date of
determination, an amount (on a consolidated basis) equal to the total
assets of such Person less the total liabilities of such Person;
provided that for purposes of calculating the Net Worth of the Company
and its consolidated Subsidiaries (a) the Net Worth of Equipment
Assurance Ltd. shall not be less that $0, (b) the cumulative foreign
currency translation adjustments shall be taken into account only if
and to the extent that the negative amount thereof exceeds
($25,000,000) and (c) the following shall be disregarded: (i) the
amortization or write-off of goodwill, financing fees and other
intangible assets, (ii) severance payments paid or accrued with
respect to former employees of the Company or any of its Subsidiaries
and (iii) any gain or loss resulting from the sale or other
disposition of fixed assets.
(f) The following proviso is inserted immediately prior
to the final period in the defined term "1997 Senior Note Interest Reserve"
in Section 1.01 of the Credit Agreement:
; provided, however, that (a) on the date of the September 15, 2000
interest payment on the 1997 Senior Notes, the 1997 Senior Note
Interest Reserve will decrease to $0 and will increase on each of
September 30, 2000, October 31, 2000 and November 30, 2000 by an
amount equal to 1/3 of such interest payment and (b) on the date of
the March 15, 2001 interest payment on the 1997 Senior Notes, the 1997
Senior Note Interest Reserve will decrease to $0 and will increase on
each of March 31, 2001, April 30, 2001 and May 31, 2001 by an amount
equal to 1/3 of such interest payment
(g) Clause (a) of the defined term "Revolving
Termination Date" in Section 1.01 of the Credit Agreement is amended by
deleting the date "May 31, 2002" and inserting in its place the date "July
3, 2001".
(h) The following defined terms are inserted, in
appropriate alphabetical order, into Section 1.01 of the Credit Agreement:
"Supporting Letter of Credit" means an Irrevocable Letter
of Credit issued by a financial institution acceptable to all the
Banks naming the Agent as the beneficiary in the stated amount of
$3,000,000, and any letter of credit issued in replacement thereof or
in substitution therefor (provided that any replacement or substitute
Supporting Letter of Credit must be issued by a financial institution
and contain terms and conditions acceptable to all the Banks).
(i) Section 2.16 of the Credit Agreement is created to
read as follows:
2.16 Special LIBOR Rate Loan. Notwithstanding any
contrary provision of this Agreement, if the Agent makes a drawing
under the Supporting Letter of Credit, the Company shall be deemed to
have irrevocably requested on that day that the Banks make a LIBOR
Rate Loan in the principal amount of $3,000,000 and having an interest
period of one month (the "Special LIBOR Rate Loan"). The Banks shall,
on that day, make the Special LIBOR Rate Loan to the Company.
The Special LIBOR Rate Loan will be funded by the
conversion of Base Rate Loans. If there are less than $3,000,000 in
principal amount of Base Rate Loans then outstanding, then the LIBOR
Rate Loans with an Interest Period ending on the date closest thereto
shall be deemed prepaid in such amount as is necessary so that the
Special LIBOR Rate Loan can be made. The Company shall pay any amount
owing under Section 4.04 resulting from any such prepayment.
At the end of each Interest Period of the Special LIBOR
Rate Loan, the Special LIBOR Rate Loan shall be automatically
continued for a one-month Interest Period.
The Special LIBOR Rate Loan may not be repaid or prepaid
until such date as all other Obligations have been paid in full, the
Commitments have expired and all Letters of Credit have expired.
Except as set forth in this Section, the provisions of
this Agreement applying to LIBOR Rate Loans shall apply to the Special
LIBOR Rate Loan.
(j) Subsection 7.01(b) of the Credit Agreement is
amended to read as follows:
(b) as soon as available, but not later than 30 days
after the end of each month, a copy of the unaudited consolidated and
consolidating balance sheets of the Company and its Subsidiaries as
of the end of such month, the related consolidated and consolidating
statement of income and the related consolidated statements of
shareholders' equity and cash flows for the period commencing on the
first day and ending on the last day of such month, and certified by
a Responsible Officer as fairly presenting, in accordance with GAAP
(subject to ordinary, good faith year-end audit adjustments), the
financial position and the results of operations of the Company and
its Subsidiaries; and
(k) Subsection 7.02(a) of the Credit Agreement is
amended to read as follows:
(a) concurrently with the delivery of the financial
statements referred to in subsections 7.01(a) and (b), each of the
following executed or certified by a Responsible Officer: (i) a
Compliance Certificate; (ii) shipment/bookings/backlog report; and
(iii) a schedule of Capital Expenditures made by the Company and its
Subsidiaries during the preceding month;
(l) Subsection 7.02(c) of the Credit Agreement is
amended to read as follows:
(c) within 10 Business Days after the fifteenth and last
day of each month, a completed Borrowing Base Certificate executed by
a Responsible Officer; and
(m) Clause (c) of Section 8.06 of the Credit Agreement
is amended by inserting the following parenthetical at the end of such
clause:
(provided, however, that the Company may not pay such management fees
to AIP during the period beginning March 1, 2000 and ending on the
date the Agent receives financial statements evidencing that the
Company has satisfied the financial covenants in Section 8.16 for two
consecutive fiscal quarters and any management fees accrued during
such period shall be repaid in equal quarterly installments during the
next four fiscal quarters and, provided further, however, the Company
may reimburse an Affiliate for fees such Affiliate is required to pay
in connection with providing the Supporting Letter of Credit)
(n) Section 7.15 of the Credit Agreement is created to
read as follows:
7.15 September 2000 and March 2001 Interest Payments on 1997
Senior Notes. The Company shall furnish to the Agent, at least five
Business Days prior to the September 15, 2000 and March 15, 2001
interest payment dates on the 1997 Senior Notes (a) a projected
Borrowing Base Certificate as of September 15, 2000 or March 15, 2001,
as the case may be, which, after taking into account any new Borrowing
necessary to make such interest payment, indicates that the lesser of
(i) the combined Commitments or (ii) the Borrowing Base Amount exceeds
(iii) the sum of the Effective Amount of all outstanding Revolving
Loans and the Effective Amount of all L/C Obligations, (b) a projected
Compliance Certificate as of September 30, 2000 or March 31, 2001, as
the case may be, which contains detailed calculations which indicate
that the Company will be in compliance with all of the covenants
contained in Section 8.16 of this Agreement on such date and (c) a
certificate of a Responsible Officer stating that as of the date
thereof no Default or Event of Default exists.
The Company shall use the most recently available financial
information to prepare such projected Borrowing Base Certificate and
projected Compliance Certificate. If, after the delivery of such
certificates to the Agent, the Company becomes aware that the
information in either certificate is materially inaccurate or that a
Default or Event of Default has occurred, the Company shall
immediately so notify the Agent.
If an Event of Default exists on the due date of either the
September 15, 2000 interest payment or the March 15, 2001 interest
payment, the Company shall not use the proceeds of any Borrowings or
any funds in which the Agent has a security interest pursuant to the
Loan Documents to make such interest payment.
(o) Section 8.16 of the Credit Agreement is amended to
read as follows:
8.16 Financial Covenants.
(a) Adjusted Funded Debt to EBITDA Ratio. The Company
shall not permit the Adjusted Funded Debt to EBITDA Ratio, as of the
end of any fiscal quarter, to exceed the applicable ratio set forth
in the following table:
Fiscal Quarter
Ending Ratio
September 30, 2000 6.70:1.0
December 31, 2000 6.40:1.0
March 31, 2001 6.10:1.0
(b) Fixed Charge Coverage Ratio. The Company shall not
permit the Fixed Charge Coverage Ratio, as of the end of any fiscal
quarter, to be less than the applicable ratio set forth in the
following table:
Fiscal Quarter
Ending Ratio
September 30, 2000 1.35:1.0
December 31, 2000 1.35:1.0
March 31, 2001 1.60:1.0
(c) Interest Coverage Ratio. The Company shall not
permit the Interest Coverage Ratio, as of the end of any fiscal
quarter, to be less than the applicable ratio set forth in the
following table:
Fiscal Quarter
Ending Ratio
September 30, 2000 1.50:1.0
December 31, 2000 1.60:1.0
March 31, 2001 1.70:1.0
(d) Net Worth. The Company shall not permit Net Worth
to be less than $107,500,000 as of March 31, 2000 or the last day of
each subsequent month.
(p) Section 8.17 of the Credit Agreement is amended to
read as follows:
8.17 Capital Expenditures. The Company shall not, and
shall not permit any Subsidiary to, make any Capital Expenditures if,
as a result thereof, a Default or Event of Default would exist or if
the aggregate Capital Expenditures by the Company and its Subsidiaries
would exceed (a) $5,000,000 during the fiscal year ending December 31,
2000 or (b) $3,750,000 during the period from January 1, 2001 through
June 30, 2001, plus, in each period, Capital Expenditures funded with
the net proceeds of assets sales.
(q) Subsection 9.01(c) of the Credit Agreement is
amended to read as follows:
(c) Specific Defaults. (i) The Company fails to perform or
observe any term, covenant or agreement contained in Article VIII;
(ii) the projected Borrowing Base Certificate furnished pursuant to
Section 7.15 (as updated, if applicable) indicates that, after giving
effect to the September 15, 2000 or March 15, 2001, as the case may
be, interest payment on the 1997 Senior Notes and any Borrowing
necessary to make such payment, the lesser of [1] the combined
Commitments or [2] the Borrowing Base Amount will be less than [3] the
sum of the Effective Amount of all outstanding Revolving Loans and the
Effective Amount of all L/C Obligations or (iii) the projected
Compliance Certificate furnished pursuant to Section 7.15 (as updated,
if applicable) indicates that the Company will not be in compliance
with all of the covenants contained in Section 8.16 of this Agreement
as of September 30, 2000 or March 31, 2001, as the case may be; or
(r) Exhibit C attached to this Fifth Amendment shall
replace its predecessor attached to the Credit Agreement.
3. Limited Waiver. The Banks waive all Defaults and Events
of Default arising from the failure to the Company to comply with Sections
8.16 of the Credit Agreement prior to the date hereof. This waiver does not
apply to another other Default or Event of Default existing under the Credit
Agreement nor to any failure of the Company to comply with Section 8.16 of
the Credit Agreement after the date hereof. The Banks reserve all of their
rights and remedies with respect to all Defaults and Events of Default not
expressly waived herein.
4. Conditions to Effectiveness of Fifth Amendment. This
Fifth Amendment shall become effective upon its execution and delivery by
the Company and the Majority Banks and receipt by the Agent of the
following:
(a) An irrevocable letter of credit in the amount of
$3,000,000 issued by Bank One naming the Agent as the beneficiary, having
an expiry date of November 30, 2000 and having such drawing conditions and
other terms and conditions as are reasonably acceptable to all the Banks;
(b) a schedule, executed by a Responsible Officer,
describing, in such detail as the Banks may reasonably request, all
Indebtedness of the Company or any of its Domestic Subsidiaries;
(c) a copy, certified by the Secretary or an Assistant
Secretary of the Company, of resolutions adopted by the Board of Directors
of the Company authorizing the execution and delivery of this Fifth
Amendment, an incumbency certificate containing the true signatures of the
officers of the Company authorized by such resolutions to execute this Fifth
Amendment on behalf of the Company and such other documents and instruments
as the Banks shall reasonable request relating to the transactions
contemplated by this Fifth Amendment; and
(d) a fee of $375,000 which shall be fully earned and
nonrefundable on the date of payment.
The Agent shall furnish to each Bank such Bank's Pro Rata Share
of the fee.
5. Representations and Warranties. The Company represents
and warrants to the Agent and each Bank that:
(a) The representations and warranties respecting the
Company and its properties set forth in the Loan Documents to which the
Company is a party are true and correct in all material respects after
giving effect to this Fifth Amendment;
(b) The Net Worth of the Company (after giving effect
to the revision thereto set forth in section 2 above) was not less than
$143,030,000 as of September 23, 1997 and was not less than $124,438,000 as
of December 31, 1999; and
(c) After giving effect to the limited waiver set forth
in section 3 above, no Default or Event of Default exists as of the date of
this Fifth Amendment.
6. Miscellaneous.
(a) The Company agrees to pay all costs and expenses
(including reasonable attorneys fees) paid or incurred by the Agent in
connection with this Fifth Amendment.
(b) This Fifth Amendment shall be governed by, and
construed in accordance with, the laws of the State of Wisconsin.
(c) This Fifth Amendment may be executed in any number
of separate counterparts, each of which, when so executed, shall be deemed
an original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
(d) The increase in the interest rate applicable to
Loans, and the increase in the fee with respect to Letters of Credit,
outstanding under the Credit Agreement resulting from the amendment of the
defined term "Applicable Margin" set forth above shall become effective as
of March 1, 2000 and shall apply to all Loans and Letters of Credit
outstanding on that date.
7. Full Force and Effect. The Credit Agreement, as amended
hereby, remains in full force and effect.
BUCYRUS INTERNATIONAL, INC.
BY /s/X. X. Xxxxxx
Title: CEO
BANK ONE, WISCONSIN, as Agent,
Issuing Bank and a Bank
BY /s/Xxxx Xxxxx
Title: First Vice President
THE BANK OF NOVA SCOTIA, as
Documentation Agent and a Bank
BY /s/F. C. H. Xxxxx
Title: Senior Manager Loan Operations
FIRSTAR BANK, N.A.
BY /s/X. X. Xxxxxxxxxx
Title: Vice President
FLEET CAPITAL CORPORATION
BY /s/Xxxxx Xxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL
ASSOCIATION
BY /s/Xxxxx X. Xxxxx
Title: First Vice President
BANK OF SCOTLAND
BY /s/Xxxxx Xxxxx
Title: Senior Vice President
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (a) consents to the execution and
delivery of the Fifth Amendment to Credit Agreement by the Company,
(b) reaffirms all of its obligations under the Subsidiary Guaranty dated
as of September 24, 1997 (the "Subsidiary Guaranty") from the undersigned
to and for the benefit of the "Benefited Parties" (as defined therein)
and (c) agrees that the Subsidiary Guaranty remains in full force and
effect.
Dated as of March 14, 2000.
MINSERCO, INC.
BY /s/X. X. Xxxxxx
Its V. P. Finance
BOONVILLE MINING SERVICES, INC.
BY /s/X. X. Xxxxxx
Its V. P. Finance
