Exhibit 10.2
CONSENT AND AMENDMENT NO. 2
TO
LOAN AND SECURITY AGREEMENT
THIS CONSENT AND AMENDMENT NO. 2 (this "Amendment") is entered into
as of September 15, 2006, by and among BUCYRUS INTERNATIONAL, INC., a
corporation organized under the laws of the State of Delaware ("Bucyrus"),
MINSERCO, INC., a corporation organized under the laws of the State of Delaware
("Minserco"), and BOONVILLE MINING SERVICES, INC., a corporation organized under
the laws of the State of Delaware ("Boonville") (Bucyrus, Minserco and
Boonville, each a "Borrower" and collectively, the "Borrowers"), BUCYRUS CANADA
LIMITED, a corporation organized under the laws of the Province of Ontario
("Bucyrus Canada" and a "Guarantor"), the financial institutions set forth on
the signature pages hereto (each a "Lender" and collectively, "Lenders"), GMAC
COMMERCIAL FINANCE LLC, a limited liability company organized under the laws of
the State of Delaware ("GMAC CF"), as administrative agent and collateral agent
for the Lenders (GMAC CF, in such capacities, the "Agent") and as sole lead
arranger, JPMORGAN CHASE BANK, N.A. as Documentation Agent, and LASALLE BANK
NATIONAL ASSOCIATION as Syndication Agent.
BACKGROUND
Borrowers, Agent and Lenders are parties to an Amended and Restated Loan
and Security Agreement dated as of May 27, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement")
pursuant to which Agent and Lenders provide Borrowers with certain financial
accommodations.
Borrowers have requested that Agent and Lenders consent to an increase in
the Maximum Revolving Advance Amount to $200,000,000, and Agent and Lenders are
willing to do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of credit
heretofore or hereafter made to or for the account of Borrowers by Agent and
Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein shall
have the meanings given to them in the Loan Agreement.
2. Consent. Subject to satisfaction of the conditions precedent set forth
in Section 4 below, each Lender hereby consents to the increase of the Maximum
Revolving Advance Amount from $135,000,000 to $200,000,000 and the increase of
its Commitment from $45,000,000 to the amount set forth below its signature to
this Amendment.
3. Amendment to Loan Agreement. Subject to satisfaction of the conditions
precedent set forth in Section 4 below, the Loan Agreement is hereby amended as
follows:
(a) Section 1.2 is amended as follows:
(i) the following defined term is amended in its entirety to
provide as follows:
"Maximum Revolving Advance Amount" shall mean $200,000,000.
4. Conditions of Effectiveness. This Amendment shall become effective upon
satisfaction of the following conditions precedent:
(a) Agent shall have received four (4) copies of this Amendment
executed by Borrowers and Lenders and consented and agreed to by Guarantor;
(b) Agent shall have received the Third Amended and Restated Notes,
in the form of Exhibit A attached hereto, duly executed and delivered by
Borrower;
(c) Each Lender shall have received an amendment fee in the amount
of $43,333.33, such amount equal to .2% of each Lender's share of the increase
of the Maximum Revolving Advance Amount.
(d) Agent shall have received such other certificates, instruments,
documents, agreements and opinions of counsel as may be required by Agent or its
counsel, each of which shall be in form and substance satisfactory to Agent and
its counsel.
5. Representations and Warranties. Each Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrowers and are enforceable
against Borrowers in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, each Borrower hereby
reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agree that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is continuing or
would exist after giving effect to this Amendment.
(d) No Borrower has any defense, counterclaim or offset with respect
to the Loan Agreement.
6. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import shall mean and be a reference to the Loan Agreement as amended
hereby.
(b) Except as specifically amended herein, the Loan Agreement, and
all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Agent or Lenders,
nor constitute a waiver of any provision of the Loan Agreement, or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
7. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
8. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
9. Counterparts; Facsimile. This Amendment may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed an original
and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
BUCYRUS INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxxx
-----------------------------------------
Name: X. X. Xxxxxxxx
Title: CEO & President
MINSERCO, INC.
By: /s/ X. X. Xxxxxxxx
-----------------------------------------
Name: X. X. Xxxxxxxx
Title: CEO, President &
Chairman of the Board
BOONVILLE MINING SERVICES, INC.
By: /s/ X. X. Xxxxxxxx
-----------------------------------------
Name: X. X. Xxxxxxxx
Title: CEO, President &
Chairman of the Board
GMAC COMMERCIAL FINANCE LLC,
as Agent and Lender
By: /s/ Xxxxxx Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Director
Commitment Percentage: 33.3333%
Commitment: $66,666,666.67
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Lender
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Commitment Percentage: 33.3333
Commitment: $66,666,666.66
LASALLE BANK NATIONAL ASSOCIATION, as Lender
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Commitment Percentage: 33.3333%
Commitment: $66,666,666.67
CONSENTED AND AGREED TO:
/s/ X. X. Xxxxxxxx
--------------------------------
BUCYRUS CANADA LIMITED
