EXHIBIT 10.10(d)
FORM 10-Q
QUARTER ENDED SEPTEMBER 30, 2003
AMENDMENT NO. 3
TO
LOAN AND SECURITY AGREEMENT
AND WAIVER
THIS AMENDMENT NO. 3 (this "Amendment and Waiver") is entered
into as of November 13, 2003, 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"), BUCYRUS HOLDINGS, LLC, a limited
liability company organized under the laws of the State of Delaware
("Holdings") (Holdings and Bucyrus Canada, each a "Guarantor" and
collectively, the "Guarantors"), the financial institutions which are now or
which hereafter become a party hereto (each a "Lender" and collectively, the
"Lenders"), GMAC COMMERCIAL FINANCE LLC (successor-in-interest to GMAC
BUSINESS CREDIT, LLC), a limited liability company organized under the laws
of the State of Delaware ("GMACCF"), as agent for Lenders (GMACCF, in such
capacity, the "Agent") and BANK ONE, WISCONSIN ("BOW"), as syndication agent
for Lenders (BOW, in such capacity, the "Syndication Agent").
BACKGROUND
Borrowers, Guarantors, Agent, Syndication Agent and Lenders are
parties to a Loan and Security Agreement dated as of March 7, 2002 (as
amended by Amendment No. 1 to Loan and Security Agreement dated as of
December 31, 2002, Amendment No. 2 to Loan and Security Agreement dated as
of January 9, 2003, a letter amendment dated as of December 31, 2002, and as
hereafter 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 GMACCF, as a Lender, to make available
to Borrowers an additional credit facility, consisting of a $7,400,000
Incremental Term Loan. Proceeds of the Incremental Term Loan shall be
utilized by Borrowers to pay interest due on the Senior Unsecured Note held
by Holdings in March 2004 and September 2004. In addition, Loan Parties have
requested certain waivers and amendments to the Loan Agreement 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. Amendment to Loan Agreement. Subject to satisfaction of
the conditions precedent set forth in Section 4 below, the Loan Agreement is
amended as follows:
(a) All references in the Loan Agreement to "GMAC
BUSINESS CREDIT, LLC" shall read "GMAC COMMERCIAL FINANCE LLC" and all
reference in the Loan Agreement to "GMACBC" shall read "GMACCF".
(b) Section 1.2 of the Loan Agreement is amended by
deleting the defined term "Senior Unsecured Debt Payments" and by inserting
the following defined terms in their appropriate alphabetical order:
"Amendment 3" shall mean Amendment No. 3 to this
Agreement and Waiver dated as of November 13, 2003.
"Amendment 3 Closing Date" shall mean the date upon
which all of the conditions precedent to the
effectiveness to Amendment 3 have been satisfied.
"Collateral Sharing Agreement" shall mean the
Collateral Sharing Agreement among Agent and Lenders
dated as of November 13, 2003.
"Contract Rate" shall have the meaning set forth in
Section 3.1 of this Agreement.
"Incremental Term Loan" shall have the meaning set
forth in Section 2.3(A) of this Agreement.
"Incremental Term Loan Rate" shall mean an interest
rate per annum equal to (a) the sum of the Base Rate
plus one and one-half percent (1.50%) with respect
to that portion of the Incremental Term Loan which
consists of Domestic Rate Loans (b) the sum of the
Eurodollar Rate plus two and one-half percent
(2.50%) with respect to that portion of the
Incremental Term Loan which consists of Eurodollar
Rate Loans.
(c) The following defined terms in Section 1.2 are
amended in their entirety to provide as follows:
"Advances" shall mean and include the Revolving
Advances, Swingline Loans, Letters of Credit and the
Incremental Term Loans.
"Committed Percentage" of any Lender for particular
types of Advances shall mean the percentage set
forth below such Lender's name on Schedule 1 of
Amendment No. 3 as same may be adjusted upon any
assignment by a Lender pursuant to Section 17.3(b)
hereof.
"Commitments" shall mean, as to any Lender, its
obligation to make particular types of Advances
(including participating in Letters of Credit) in an
aggregate amount not to exceed at any one time the
outstanding amount set forth below such Lender's
name on Schedule 1 to Amendment 3, as same may be
adjusted in accordance with this Agreement.
"Deferral Agreement" shall mean the Amended and
Restated Interest Deferral Agreement, in form and
substance satisfactory to Agent, pursuant to which
Holdings agrees to defer, except to the extent
provided therein, the receipt of interest on not
less than $75,600,000 in principal amount of the
Senior Unsecured Note (less any portion thereof sold
by Holdings in accordance with the provisions of
such Amended and Restated Interest Deferral
Agreement), until repayment in full of the
Obligations in cash and termination of this
Agreement.
"Fee Letter" shall mean, severally and collectively,
(a) the fee letter dated the Closing Date between
Loan Parties and GMACCF in connection with this
Agreement, as amended and restated on the Amendment
2 Closing Date, (b) each fee letter dated the
Amendment 2 Closing Date between Loan Parties and
each of the other Lenders then party to this
Agreement, and (c) the fee letter dated the
Amendment 3 Closing Date between Loan Parties and
GMACCF.
"Fixed Charges" means for Loan Parties on a
Consolidated Basis, for any period, the sum of (i)
all Senior Debt Payments net of interest income
during such period (excluding interest paid to
Holdings on the Senior Unsecured Note in accordance
with the Deferral Agreement), plus (ii) all income
or franchise taxes paid in cash during such period
net of tax refunds received in cash, plus (iii) all
"earnout" payments made in cash during such period
as required pursuant to the Asset Sale Agreement
dated March 31, 1999 between Bucyrus Canada
Acquisition, Ltd. and Bennett & Emmott (1986) Ltd.
"Majority Lenders" shall mean Lenders holding at
least fifty-one percent (51%) of the Revolving
Advances, Swingline Loans and Letters of Credit and,
if no such Advances are outstanding, shall mean
Lenders holding fifty-one percent (51%) of the
Commitment Percentages relating to Revolving
Advances.
"Required Lenders" shall mean Lenders holding at
least sixty-six and two-thirds percent (66-2/3%) of
the Revolving Advances, Swingline Loans and Letters
of Credit and, if no such Advances are outstanding,
shall mean Lenders holding sixty-six and two-thirds
percent (66-2/3%) of the Commitment Percentages
relating to Revolving Advances.
"Revolving Advances" shall mean Advances made
pursuant to Section 2.1(a) of this Agreement.
"Undrawn Availability" at a particular date shall
mean an amount equal to (a) the lesser of (i) the
Formula Amount or (ii) the Maximum Revolving Advance
Amount, minus (b) the sum of (i) the outstanding
amount of Advances (other than the Incremental Term
Loan), plus (ii) all amounts due and owing to
Borrowers' trade creditors beyond normal trade
terms, except to the extent the past due amount is
consistent with past practices, plus (iii) fees and
expenses for which Borrowers are liable to Agent and
the Lenders but which have not been paid or charged
to Borrowers' Account.
(d) Section 2.2(d) of the Loan Agreement is amended by
amending the last sentence thereof in its entirety to provide as follows:
"After giving effect to each such conversion from a
Domestic Rate Loan to a Eurodollar Rate Loan, and to
the making of the Incremental Term Loan, there shall
not be outstanding more than (x) six (6) Eurodollar
Rate Loans, in the aggregate, with respect to
Revolving Advances, and (y) one (1) Eurodollar Rate
Loan with respect to each drawdown of the
Incremental Term Loan.
(e) (i) Section 2.3 is hereby amended by adding "(other
than the Incremental Term Loan)" after "Advances" in the fourth line thereof,
and (ii) new Section 2.3(A) is hereby added to the Loan Agreement as follows:
2.3(A) Incremental Term Loan. Subject to the terms
and conditions of this Agreement, GMACCF, severally
and not jointly with any other Lender, shall make
loans to Borrowers in the aggregate sum of
$7,400,000 ("incremental Term Loan"). The first
$3,700,000 of the Incremental Term Loan shall be
advanced on the date in March 2004 on which interest
is due on the Senior Unsecured Note and the second
$3,700,000 of the Incremental Term Loan shall be
advanced on the date in September 2004 on which
interest is due on the Senior Unsecured Note. The
outstanding principal amount of the Incremental Term
Loan shall be payable on the Termination Date. The
Incremental Term Loan shall be evidenced by a
secured promissory note ("Incremental Term Loan
Note"), substantially in the form attached to
Amendment 3 as Exhibit 2.3(A). The Incremental Term
Loan shall be secured by the Collateral (subject to
the provisions of the Collateral Sharing Agreement)
and by a first priority lien upon the bank account
of Holdings into which Bucyrus shall pay the March,
2004 and September, 2004 interest payments on the
Senior Unsecured Note held by Bucyrus, such bank
account to be subject to a blocked account agreement
between the applicable bank and Agent for the
benefit of the Lenders having Incremental Term Loan
Commitments, in form and substance satisfactory to
Agent.
(f) Section 2.5(a) of the Loan Agreement is hereby
amended and restated in its entirety to provide as follows:
"(a) The Advances shall be due and payable in full
on the Termination Date, subject to earlier
prepayment as herein provided."
(g) Section 2.6 of the Loan Agreement is hereby amended
and restated in its entirety to provide as follows:
"2.6. Repayment of Excess Advances. The aggregate
balance of Revolving Advances, Swingline Loans and
Letters of Credit outstanding at any time in excess
of the maximum aggregate amount of such Advances
permitted hereunder shall be immediately due and
payable without the necessity of a demand, at the
Payment Office, whether or not a Default or Event of
Default has occurred.
(h) Section 2.12(a) of the Loan Agreement is hereby
amended and restated in its entirety to provide as follows:
"(a) Each borrowing of Advances shall be advanced
according to the applicable Commitment Percentages
of Lender."
(i) Section 2.12(c)((ii) of the Loan Agreement is hereby
amended and restated in its entirety to provide as follows:
"(ii) each Lender shall be entitled to earn interest
at the applicable Contract Rate on outstanding
Advances which it has funded."
(j) Section 2.13(a) of the Loan Agreement is amended by
amending the last sentence thereof by adding the following proviso at the end
thereof:
"; provided, however, in no event shall such
repayments be applied to the Incremental Term Loan
unless all Revolving Advances and Swingline Loans
have been paid in full and all Obligations with
respect to the outstanding Letters of Credit have
been cash collateralized."
(k) Section 2.14 of the Loan Agreement is hereby amended
by adding the following immediately at the end thereof:
Borrowers shall apply the proceeds of the initial
$3,700,000 drawdown of the Incremental Term Loan to
pay interest due on March 15, 2004 on that portion
of the Senior Unsecured Note held by Holdings as of
the Amendment 3 Closing Date, and the second
$3,700,000 drawdown of the Incremental Term Loan to
pay interest due on September 15, 2004 on that
portion of the Secured Unsecured Note held by
Holdings as of the Amendment 3 Closing Date.
(l) Section 3.1 of the Loan Agreement is hereby amended
and restated in its entirety as follows:
3.1 Interest. Interest on Advances shall be
payable to Agent for the benefit of Lenders in
arrears on the first day of each month with respect
to Domestic Rate Loans and, with respect to
Eurodollar Rate Loans, at the end of each Interest
Period or, for Eurodollar Rate Loans with an
Interest Period in excess of three months, at the
earlier of (a) each three months on the anniversary
date of the commencement of such Eurodollar Rate
Loan or (b) the end of the Interest Period.
Interest shall be calculated based upon the
assumption that Revolving Advances and Swingline
Loans are first advanced against the Supplemental
Amount. Interest charges shall be computed on the
actual principal amount of Advances (other than
Letters of Credit) outstanding during the month at
a rate per annum equal to (i) with respect to
Revolving Advances, the applicable Revolving
Interest Rate, and (ii) with respect to the
Incremental Term Loan, the Incremental Term Loan
Rate (as applicable, the "Contract Rate").
Whenever, subsequent to the date of this Agreement,
the Base Rate is increased or decreased, the
applicable Contract Rate shall be similarly changed
without notice or demand of any kind by an amount
equal to the amount of such change in the Base Rate
during the time such change or changes remain in
effect. Upon and after the occurrence of an Event
of Default, and during the continuation thereof,
Agent may, and at the direction of Required Lenders
shall, increase the interest rate so that the
Obligations shall then bear interest at the
applicable Contract Rate plus two (2%) percent per
annum the "Default Rate").
(m) Section 3.5 of the Loan Agreement is hereby amended
by deleting "Revolving Interest Rate" and inserting "Contract Rate" in its
place and stead.
(n) Section 6.6 of the Loan Agreement is hereby amended
by inserting after "subordination arrangement" and before "in favor of" the
phrase "(including the Deferral Agreement)".
(o) Section 6.8(a) of the Loan Agreement is hereby
amended by deleting all references to "$26,500,000" and inserting
"$28,000,000" in their place and stead.
(p) Section 7.1(b) of the Loan Agreement is hereby
amended by adding at the end thereof "or in the Deferral Agreement; provided,
however, Holdings shall deposit any proceeds from any sale of Senior
Unsecured Notes into a bank account which is subject to a block account
arrangement in form and substance satisfactory to Agent for the benefit of
the Lenders".
(q) Section 7.10(b) is hereby amended by (i) deleting
"$1,500,000" and inserting "$1,600,000" in it place and stead and, (ii)
adding at the end of clause (b) the following:
"may pay in 2003 up to $725,000 of management fees
which were payable in 2002 but which were not paid
in 2002 and"
(r) New Section 8.3 is hereby added to the Loan Agreement
which provides as follows:
"8.3. Conditions to Incremental Term Loan. The
agreement of GMACCF to fund each drawdown of
$3,700,000 under the Incremental Term Loan is
subject to the satisfaction of the conditions set
forth in Section 8.2 at the time of each requested
drawdown, and (y) receipt by Agent of a blocked
account agreement in form and substance satisfactory
to Agent with respect to the bank account to which
Bucyrus is directed by Holdings to remit the March
2004 and September 2004 interest payments on the
Senior Unsecured Notes held by Holdings at the time
of such interest payments, pursuant to which Agent
obtains a first priority security interest in such
bank account for the benefit of Lenders having
Incremental Term Loan Commitments, it being
understood that no such payment of the March 2004 or
the September 2004 interest may be made to Holdings
unless it has directed Bucyrus to remit such payment
to the bank account which is controlled by the block
account agreement."
(s) Section 15.18 of the Loan Agreement is hereby amended
by adding an additional sentence at the end thereof which provides as
follows:
"Payments received from Guarantors pursuant to this
Article XV shall be applied in accordance with Section
11.2 of this Agreement."
(t) Section 17.2(b) of the Loan Agreement is amended by
adding the following sentence at the end thereof:
"Notwithstanding anything to the contrary set forth above,
no supplemental agreement shall, without the consent of
each Lender having an interest in the Incremental Term
Loan, increase the Revolving Interest Rate or any fees
payable to Lenders who have Commitments to fund Revolving
Advances."
(u) Section 17.6(A) is hereby amended by amending the
notice provision for Hahn & Hessen LLP in its entirety to provide as follows:
"with a copy to: Hahn & Hessen LLP
488 Madison Avenue
New York, New York 10022
Attention: Steven J. Seif, Esq.
Telephone: (212) 488-7370
Telecopier: (212) 488-7400"
3. Waiver and Consent.
(a) Subject to satisfaction of the conditions precedent set
forth in Section 4 below, Agent and Required Lenders waive the mandatory
reduction of the Supplemental Amount under Section 2.13(b) of the Loan
Agreement solely with respect to the fiscal year commencing January 1, 2003.
(b) To induce GMACCF to make available to Bucyrus the
Incremental Term Loan and to induce Lenders to consent to the ability of
Bucyrus to pay interest to Holdings on the Senior Unsecured Notes held by
Bucyrus, Buyers and Holdings are entering into the Deferral Agreement (as
defined on the Amendment 3 Closing Date).
4. Conditions of Effectiveness. This Amendment and Waiver
shall become effective upon satisfaction of the following conditions
precedent:
(a) Agent shall have received six (6) copies of this
Amendment and Waiver duly executed by Borrowers, Guarantors and Lenders;
(b) GMACCF shall have received a fee letter dated the
Amendment 3 Closing Date between the Loan Parties and GMACCF together with
payment of the fees referred to therein.
(c) Agent shall have received, for the prorata benefit
of Lenders with Commitments to fund Revolving Advances, an amendment fee
equal to $95,000, which shall be charged to Borrowers' Account;
(d) Borrowers shall have executed and delivered to GMACCF
the Incremental Term Note, in the form annexed hereto as Exhibit 2.3(A),
properly completed with respect to the applicable amount and date;
(e) Bucyrus, Holdings and BNY Midwest Trust Company, as
successor to Harris Bank and Trust, shall have executed and delivered to
Agent an Amended and Restated Interest Payment Deferral Agreement, in the
form annexed hereto as Exhibit A, setting forth the agreement of the parties
thereto, Agent and the Lenders with respect to payment of interest on that
portion of the Senior Unsecured Note which is held by Holdings and Holdings
shall have executed the side letter in favor of GMACCF relating to the
Amended and Restated Interest Payment Deferral Agreement;
(f) Agent shall have received four (4) copies of the
Collateral Sharing Agreement in substantially the form of Exhibit 1 to this
Amendment and Waiver, duly executed by Agent and Lenders;
(g) Agent shall have received Secretary's Certificates
from each Loan Party authorizing the execution, delivery and performance of
Amendment No. 3 and the Amended and Restated Interest Payment Deferral
Agreement in form and substance acceptable to Agent; and
(h) Agent shall have received opinions of counsel from
counsel to each Loan Party in form and substance satisfactory to Agent.
5. Representations and Warranties. Each Loan Party hereby
represents and warrants as follows:
(a) This Amendment and Waiver, and the Loan Agreement,
as amended hereby, constitute legal, valid and binding obligations of each
Loan Party and are enforceable against each Loan Party in accordance with
their respective terms.
(b) Upon the effectiveness of this Amendment and Waiver,
each Loan Party hereby reaffirms all covenants, representations and
warranties made in the Loan Agreement to the extent the same are not amended
hereby, and agrees 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 and Waiver.
(d) No Loan Party 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, except as specifically set forth in Section 3 hereof,
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 and Waiver 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 and Waiver
are included herein for convenience of reference only and shall not
constitute a part of this Amendment and Waiver for any other purpose.
9. Counterparts; Facsimile. This Amendment and Waiver 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 and Waiver has been duly
executed as of the day and year first written above.
BUCYRUS INTERNATIONAL, INC.
By: /s/C. R. Mackus
Name: C. R. Mackus
Title: V.P. Finance & Secretary
MINSERCO, INC.
By: /s/C. R. Mackus
Name: C. R. Mackus
Title: V.P. Finance
BOONVILLE MINING SERVICES, INC.
By: /s/C. R. Mackus
Name: C. R. Mackus
Title: V.P. Finance
BUCYRUS CANADA LIMITED
(as Guarantor)
By: /s/C. R. Mackus
Name: C. R. Mackus
Title: V.P.
BUCYRUS HOLDINGS, LLC
(as Guarantor)
By: /s/T. C. Rogers
Name: Theodore C. Rogers
Title:
GMAC COMMERCIAL FINANCE LLC,
(successor-in-interest to GMAC BUSINESS
CREDIT, LLC), as a Lender and as Agent
By: /s/Frank A. Chiovari
Name: Frank A. Chiovari
Title: Director
BANK ONE, WISCONSIN
By: /s/Mark P. Bruss
Name: Mark P. Bruss
Title: First Vice President
MARINE BANK
By: /s/William E. Shaw
Name: William E. Shaw
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/Dusko Marinovic
Name: Dusko Marinovic
Title: Vice President
SCHEDULE 1
Commitment of Lenders
GMAC COMMERCIAL FINANCE, LLC
Revolving Advance Commitment $35,000,000
Revolving Advance Commitment Percentage 46.0527%
Incremental Term Loan Commitment $7,400,000
Incremental Term Loan Commitment Percentage 100%
BANK ONE, WISCONSIN
Revolving Advance Commitment $20,000,000
Revolving Advance Commitment Percentage 26.3158%
Incremental Term Loan Commitment -0-
Incremental Term Loan Commitment Percentage -0-
MARINE BANK
Revolving Advance Commitment $6,000,000
Revolving Advance Commitment Percentage 7.894%
Incremental Term Loan Commitment -0-
Incremental Term Loan Commitment Percentage -0-
LASALLE BANK NATIONAL ASSOCIATION
Revolving Advance Commitment $15,000,000
Revolving Advance Commitment Percentage 19.7368%
Incremental Term Loan Commitment -0-
Incremental Term Loan Commitment Percentage -0-
Exhibit A
AMENDED AND RESTATED INTEREST PAYMENT DEFERRAL
THIS AMENDED AND RESTATED INTEREST PAYMENT DEFERRAL (this "Amended and
Restated Deferral") is entered into as of November 13, 2003 by and between
Bucyrus International, Inc. a Delaware Corporation (the "Company"), Bucyrus
Holdings, LLC, a Delaware limited liability company ("Holdings"), and BNY
Midwest Trust Company, an Illinois trust company, as successor to Harris
Trust and Savings Bank, (the "Trustee"). Capitalized terms used but not
defined herein shall have the respective meanings given them in the
Indenture, dated as of September 24, 1997, among the Company, the Guarantors
party thereto and the Trustee (the "Indenture") governing the 9-3/4% Senior
Notes due 2007 issued by the Company (the "Notes").
WHEREAS, Holdings is a holder of Notes in the aggregate principal
amount of approximately $75 million (the "Holdings Notes"); and
WHEREAS, it is a condition to the effectiveness of Amendment No. 3 to
the Loan and Security Agreement (the "Loan Agreement Amendment"), dated as
of November 13, 2003, among the Company, the other Loan Parties thereto, the
financial institutions party thereto, and GMAC Commercial Finance LLC
(successor-in-interest to GMAC Business Credit, LLC) that Holdings agree to
defer interest payments on, and to not transfer, other than as expressly
permitted hereunder, the Holdings Notes as provided herein; and
WHEREAS, the Company and Holdings will each benefit from the Loan
Agreement Amendment becoming effective; and
WHEREAS, Holdings desires, except as expressly permitted hereunder, to
defer the payment of interest on the Holdings Notes by the Company, and to
agree not to transfer the Holdings Notes, all on the terms and conditions set
forth herein.
NOW THEREFORE, in consideration of the premises set forth herein and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Interest Payment Deferral. In accordance with Section 6.7 of the
Indenture, Holdings hereby agrees to defer, and consents to the deferral of,
the payment of interest (other than interest occurring prior to July 1, 2000)
by the Company on the Holdings Notes to Holdings (as a Holder) during the
period beginning on July 1, 2000 and ending on the later to occur of (a) the
date (the "Payoff Date") on which all of the Obligations (as defined in the
Loan Agreement) are paid in full, the Commitments (as defined in the Loan
Agreement) have expired and all Letters of Credit (as defined in the Loan
Agreement) have terminated or expire, or (b) March 15, 2005 (the "Deferral
Period")' provided, however, that interest on the Holdings Notes shall
continue to accrue during the Deferral Period, and provided, further, that
the Deferral Period shall end prior to March 15, 2005 at Holdings' option,
which option may be exercised only after the Payoff Date. Notwithstanding
the foregoing, the Company may pay regularly scheduled payments of interest
on the Holdings Notes to Holdings commencing March, 2004, provided, however,
if at any time or from time to time the Company has received written
notification from GMAC Commercial Finance LLC ("Agent") of the occurrence of
an "Event of Default" under the Loan and Security Agreement dated as of March
7, 2002 among Company, Holdings, the other borrowers and guarantors thereto,
and Agent and the other lenders thereto (the "Loan Agreement"), then payment
of interest is to be deferred until Agent delivers written confirmation of
the cure or waiver of the applicable Event of Default.
2. Forbearance. Each of Holdings and the Trustee hereby agrees that it
shall refrain from taking any action against the Company under the Indenture
in connection with the deferral of payment of interest on the Holdings Notes
during the Deferral Period.
3. Transfer of Holdings Notes. Holdings may sell, assign, transfer or
otherwise dispose of any interest in the Holdings Notes during the Deferral
Period, provided, however, if at any time or from time to time Holdings has
received written notice from Agent that an Event of Default has occurred
under the Loan Agreement, then no further sales, assignments, transfers or
other dispositions may be made by Holdings until Agent delivers written
confirmation of the cure or waiver of the applicable Event of Default;
provided, further, Holdings shall maintain the proceeds from such sales,
assignments, transfers or other dispositions in a bank account which is the
subject of a blocked account arrangement in form and substance satisfactory
to Agent, all as required by the Loan Agreement Amendment.
4. Amendment. This Deferral may not be amended without the prior written
consent of each of the parties hereto.
5. Governing Law. This Deferral shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to
applicable principles of conflict of laws to the extent that the application
of the laws of another jurisdiction would be required thereby.
6. Counterparts. This Deferral may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
7. Severability. In case any provision in this Deferral shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
8. Assignment. All agreements of the Trustee, Holdings and the Company
hereto shall bind each of their respective successors and assigns, whether
so expressed or not.
IN WITNESS WHEREOF, the parties hereto have caused this Deferral
to be duly executed as of the day and year first above written.
BUCYRUS INTERNATIONAL, INC.
By: /s/C. R. Mackus
Name: C. R. Mackus
Title: V.P. Finance & Secretary
BUCYRUS HOLDINGS LLC
By: /s/T. C. Rogers
Name: T. C. Rogers
Title:
BNY MIDWEST TRUST COMPANY,
as successor to Harris Trust And Savings Bank
By: /s/Roxane Ellwanger
Name: Roxane Ellwanger
Title: Assistant Vice President