EXHIBIT 10.1(g)
FORM 10-K
YEAR ENDED DECEMBER 31, 2000
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT, dated as of
March 20, 2001, 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, the Fourth Amendment to Credit Agreement dated as
of September 30, 1999, the Fifth Amendment to Credit Agreement dated as
of March 14, 2000 and the Sixth Amendment to Credit Agreement dated as of
September 8, 2000 (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
acknowledge the following:
X. Xxxxxxxx to an Assignment and Assumption Agreement
dated as of March 20, 2001 between Firstar Bank, National Association
("Firstar") and Marine Bank, Firstar assigned all of its rights and
obligations under the Loan Documents to Marine Bank and, accordingly,
Marine Bank has become, and Firstar is no longer, a "Bank" under the Loan
Documents.
B. 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 Seventh 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 Seventh Amendment to Credit Agreement.
2. Amendments.
(a) The table in the defined term "Applicable Margin"
in Section 1.01 of the Credit Agreement is amended to read as follows:
Ratio of Adjusted
Funded Debt to Base Rate Loan LIBOR Rate Loan
EBITDA Applicable Margin Applicable Margin
Less than 2.75:1.0 0.25% 1.75%
2.75:1.0 to 3.24:1.0 0.25% 2.00%
3.25:1.0 to 3.49:1.0 0.25% 2.25%
3.50:1.0 to 3.99:1.0 0.75% 2.50%
4.00:1.0 to 4.49:1.0 0.75% 2.75%
4.50:1.0 4.99:1.0 0.75% 3.00%
5.00:1.0 to 5.49:1.0 0.85% 3.25%
5.50:1.0 to 5.99:1.0 0.95% 3.50%
6.00:1.0 or greater 1.05% 3.75%
(b) The defined term "Borrowing Base Amount" in
Section 1.01 of the Credit Agreement is amended by revising clause (f)
and adding clauses (g) and (h) to read as follows:
(f) the 1997 Senior Note Interest Reserve; minus
(g) the Warranty Expense Reserve; minus
(h) the Volume Discount Offset.
(c) The defined term "Lease/Sublease Transaction" in
Section 1.01 of the Credit Agreement is amended to read as follows:
"Lease/Sublease Transaction": means the series of
related transactions pursuant to which (a) a Person other
than an Affiliate (a "Specific Lessor") obtains a product
manufactured by the Company or a Subsidiary, or a product of
the type manufactured by the Company or a Subsidiary, by
purchasing such product from the Company, an Affiliate or, in
a transaction arranged by the Company or a Subsidiary, any
other Person, (b) the Company or a Subsidiary leases that
product from the Specific Lessor, (c) the Company or a
Subsidiary subleases that product to another Person (other
than an Affiliate) (the "Specific Customer") or enters into
an agreement under which the Company or a Subsidiary will
operate the product for the benefit of the Specific Customer
and (d) the Company or Subsidiary assigns the sublease or
other agreement with the Specific Customer to the Specific
Lessor as security for the lease.
(d) Clause (a) of the defined term "Revolving
Termination Date" in Section 1.01 of the Credit Agreement is amended by
deleting the date "July 3, 2001" and substituting the date "February 1,
2002" in its place.
(e) The following defined terms are inserted, in
appropriate alphabetical order, into Section 1.01 of the Credit
Agreement:
"Volume Discount Offset" means the aggregate amount, as of
each date of determination, of discounts for volume purchases
provided by the Company to customers which have accrued with
respect to, but not yet applied against, any of the assets of the
Company which are included in the calculation of "Borrowing Base
Amount", as determined in accordance with historical accounting
practices of the Company.
"Warranty Expense Reserve" means, on each date of
determination, an amount equal to the warranty expense incurred by
the Company and its consolidated Subsidiaries during the two
preceding fiscal quarters divided by 13
(f) The parenthetical in Section 8.06(c) of the
Credit Agreement is amended to read as follows:
(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 this Agreement is terminated, all Letters of Credit have
expired or terminated and all of the Obligations have been paid in
full)
(g) The last sentence of Section 8.10 of the Credit
Agreement is amended to read as follows:
For purposes of this subsection 8.10(d), a "Qualified Sublease" is
a sublease to a Person (other than an Affiliate), or an agreement
with a Person (other than an Affiliate) under which the product
will be operated by the Company or a Subsidiary for the benefit of
such Person, which (1) has a term not exceeding 10 years, (2) in
the case of a sublease or agreement entered into after March 20,
2001, does not contain any provision under which in a default under
the Credit Agreement or any other instrument evidencing
Indebtedness of the Company or any Subsidiary causes a default
under such sublease or agreement and (3) for purposes of
establishing the minimum rental or other payment due, has an
assumed residual value (expressed as a percentage of the product
cost) not greater than 40% at any time during the first five years,
35% at any time during the sixth year, 30% at any time during the
seventh year, 25% at any time during the eighth year, 20% at any
time during the ninth year and 15% at any time during the tenth
year.
(h) The following sentence is added at the end of
Section 8.10 of the Credit Agreement:
For purposes of determining compliance with the limitations of
subsection 8.10(d)(ii)[b], if the amount to be received by the
Company or a Subsidiary under a Qualified Sublease is not
scheduled, but is calculated based on production or some other
formula, the parties shall use the minimum amount payable to the
Company or Subsidiary under such Qualified Sublease for the
applicable period (based on the assumption that there is no default
under the Qualified Sublease; provided that if there is a default
of the Company or a Subsidiary under the Qualified Sublease which,
if not cured in the ordinary course of business, would permit the
other party to cancel such Qualified Sublease, then the minimum
amount payable shall be deemed to be $0).
(i) Subsections (a) and (d) of Section 8.16 of the
Credit Agreement are amended to read as follows:
(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 Quarters
Ending Ratio
December 31, 2000 6.40:1.0
March 31, 2001 6.10:1.0
June 30, 2001 5.90:1.0
September 30, 2001 5.50:1.0
December 31, 2001
and thereafter 5.30:1.0
(d) Net Worth. The Company shall not permit Net
Worth to be less than $150,000,000 as of the last day of any month.
(j) 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
Expenditure 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, (b) $7,500,000 during the fiscal year ending
December 31, 2001 or (c) $1,000,000 during the month of
January 2002, plus, in each period, Capital Expenditures
funded with the Net Proceeds of asset sales.
(k) Exhibits C and G attached hereto shall replace
their predecessors attached to the Credit Agreement.
3. Condition to Effectiveness of Seventh Amendment. This
Seventh Amendment shall become effective upon its execution and delivery
by the Company, the Agent and all the Banks, receipt by the Agent, for
the ratable account of the Banks, of the fee referred to in section 4
below and receipt by the Agent of 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 Seventh Amendment, an incumbency certificate containing the true
signatures of the officers of the Company authorized by such resolutions
to execute this Seventh Amendment on behalf of the Company, evidence
satisfactory to the Agent that the holder(s) of the AIP Senior Notes have
contributed the accrued interest thereon as of the date of purchase to
equity of the Company accompanied by a worksheet indicating how the
Company shall account for such capital contribution and related reduction
in accrued interest payable on its financial statements and such other
documents and instruments as the Banks shall reasonable request relating
to the transactions contemplated by this Seventh Amendment.
4. Fee. The Company agrees to pay a fee of $375,000 to
the Agent for the ratable account of the Banks. The Agent shall promptly
distribute to each Bank such Bank's Pro Rata Share of such fee. Each
Bank agrees that, if such Bank assigns, in whole or in part, its interest
in its Loans and the Loan Documents under Section 11.08 of the Credit
Agreement prior to February 1, 2002, such Bank shall, on the effective
date of such assignment, rebate to the Agent (for distribution on a
ratable basis to the remaining Banks which executed this Seventh
Amendment) an amount equal to (a) the amount of the Commitment assigned
by such Bank divided by the Commitment of such Bank on the date of this
Seventh Amendment multiplied by (b) the number of days between the
effective date of such assignment and February 1, 2002 divided by the
number of days between the date of this Seventh Amendment and February 1,
2002 multiplied by (c) the fee paid to such Bank under this section. No
rebate shall be paid in the event the Company refinances the Obligations
with a replacement credit facility. Except as provided in this section,
such fee shall be fully earned and nonrefundable.
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 Seventh Amendment; and
(b) No Default or Event of Default exists as of the
date of this Seventh 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 Seventh Amendment.
(b) This Seventh Amendment shall be governed by, and
construed in accordance with, the laws of the State of Wisconsin.
(c) This Seventh 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.
[Remainder of page intentionally left blank.]
7. Full Force and Effect. The Credit Agreement, as
amended hereby, remains in full force and effect.
BUCYRUS INTERNATIONAL, INC.
BY /s/X. X. Xxxxxxxx
Title: President & COO
BANK ONE, WISCONSIN, as Agent,
Issuing Bank and a Bank
BY /s/Xxxx X. Xxxxx
Title: First Vice President
THE BANK OF NOVA SCOTIA, as
Documentation Agent and a Bank
BY /s/F.C.H. Xxxxx
Title: F.C.H. Xxxxx
Senior Manager Loan Operations
MARINE BANK
BY /s/Xxxxxxx X. Xxxx
Title: Senior Vice President
FLEET CAPITAL CORPORATION
BY /s/Xxxxx Xxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL
ASSOCIATION
BY /s/Xxxxx X. Xxxxx
Title: Senior Vice President
BANK OF SCOTLAND
BY /s/Xxxxxx Xxxxxx
Title: Xxxxxx Xxxxxx
Vice President
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (a) consents to the execution and
delivery of the Seventh 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 19, 2001.
MINSERCO, INC.
BY /s/X. X. Xxxxxxxx
Its President & CEO
BOONVILLE MINING SERVICES, INC.
BY /s/X. X. Xxxxxxxx
Its President & CEO
