EXHIBIT 10.9
1996 FORM 10-K
EIGHTH AMENDMENT TO
CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT dated
as of May 17th, 1996, amends and supplements the Credit Agreement dated as
of December 14, 1994, as amended (the "Credit Agreement") between 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. Definition 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 Eighth Amendment to Credit Agreement.
2. Amendments.
(a) Subsection (a) of the definition of "Debt Service
Coverage Ratio" contained in section 1 of the Credit Agreement is amended to
read as follows:
(a) Net Earnings plus interest expenses plus
depreciation, amortization and similar noncash charges (including noncash
charges incurred with respect to compensation paid in stock, or options to
acquire stock, of the Company) plus foreign currency translation loss to
the extent deducted in determining Net Earnings minus foreign currency
translation gain to the extent included in determining Net Earnings minus
$1,000,000 minus the greater of (i) total capital expenditures minus
capital expenditures financed by Foreign Subsidiaries and (ii) $2,500,000;
and
(b) The definition of "Debt Service Coverage Ratio" contained
in section 1 of the Credit Agreement is amended by inserting the following
proviso at the end of such definition:
; provided, however, that in computing the Debt Service Coverage Ratio on
March 31, June 30 and September 30, 1996, the current maturities of the
Funded Debt of Bucyrus Europe Holdings Limited shall be disregarded.
(c) The definition of "Final Issuance Date" in section 1 of
the Credit Agreement is amended by deleting "April 30, 1997" and inserting
"April 30, 1998" in its place.
(d) The definition of "Revolving Note Maturity Date" in
section 1 of the Credit Agreement is amended by deleting "December 31, 1996" and
inserting "April 30, 1998" in its place.
(e) The table in section 2.1(b) of the Credit Agreement is
amended by deleting "December 31, 1996" and inserting "Revolving Note Maturity
Date" in its place.
(f) The table in section 2.2(a)(ii) of the Credit Agreement
is amended by deleting "December 31, 1996" and inserting "Revolving Note
Maturity Date" in its place.
(g) The second sentence of section 2.8 of the Credit
Agreement is amended by deleting "April 30, 1998" and inserting "April 30, 1999"
in its place.
(h) Section 5.2 of the Credit Agreement is amended in its
entirety to read as follows:
5.2 Interim Financial Statements. Furnish to the Bank
within 30 days after the end of each month (a) a balance sheet of the
Company as of the end of such month and related statements of income,
retained earnings and cash flows for the period from the beginning of the
fiscal year to the end of such month, prepared in the manner set forth in
section 5.1 hereof for the annual statements certified, subject to audit
and normal year-end adjustments, by an authorized financial officer of the
Company, (b) a computation showing whether the Company is in compliance
with the financial covenant contained in section 6.10, (c) a statement, in
such detail as the Bank may reasonably request, of the Guaranties of the
Company of obligations of Domestic Subsidiaries and Foreign Subsidiaries
and (d) the certificate of an authorized financial officer to the effect
that there exists no Default or Event of Default or, if any Default or
Event of Default exists, specifying the nature thereof, the period of
existence thereof and what action the Company proposes to take with
respect thereto.
3. Closing Conditions. This Eighth Amendment to Credit Agreement
shall be effective upon its execution and delivery by the Company and the Bank.
4. Representations and Warranties. The Company represents and
warrants to the Bank that:
(a) The execution and delivery of this Eighth Amendment are
within the Company's corporate power and corporate authority, have been duly
authorized by all necessary corporate 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 certification 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, 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 Eighth Amendment to Credit Agreement and no Default or Event of
Default has occurred and is continuing.
5. Waiver. The Bank hereby waives the failure by the Company to
comply with the Debt Service Coverage Ratio required under section 6.10 of the
Credit Agreement as of December 31, 1995. This waiver does not extent to any
other Default or Event of Default under the Credit Agreement and is not a waiver
of any violation of section 6.10 of the Credit Agreement which may occur after
December 31, 1995.
6. Costs and Expenses. The Company agreements 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 Eighth Amendment and the
consummation of the transactions contemplated hereby.
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-ERIE COMPANY
BY /s/Xxxxx X. Xxxxxx
Its Interim CFO
