Exhibit 10.3
AMENDMENT NO. 3
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 (this "Amendment") is entered into as of
October 18, 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 make certain amendments to
the Loan Agreement as set forth below, 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 3 below, the Loan Agreement is hereby amended as
follows:
(a) Section 7.8 of the Loan Agreement is amended and restated in its
entirety as follows:
"7.8. Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness for Money Borrowed of any Loan Party except in respect
of (i) Indebtedness to the Lenders; (ii) Indebtedness incurred
consisting of Canadian Intercompany Advances and Foreign Subsidiary
Advances permitted under Section 7.5 hereof; (iii) Indebtedness
consisting of the deferred purchase price of property or services or
other purchase money debt in a principal amount not to exceed
$5,000,000 in the aggregate at any time outstanding, (iv)
Indebtedness with respect to Capital Leases, (v) Indebtedness
outstanding on the Closing Date and set forth on Schedule 7.8, (vi)
any extension, renewal, refinancing, in whole or in part, of
Indebtedness described in the foregoing clauses (ii) through (v),
provided that the principal amount of such Indebtedness shall not be
increased unless such increased Indebtedness is otherwise permitted
hereunder and the terms of such Indebtedness are not more onerous on
the relevant Loan Party than the terms in effect as to the
Indebtedness being refinanced and (vii) additional Indebtedness in
an amount not in excess of $5,000,000 at any time outstanding.
(b) Schedule 7.3 of the Loan Agreement is amended by inserting new
paragraphs 8 and 9 at the end thereof, to read as follows:
"8. Pursuant to a Parent Corporation Guarantee, the form of which
was delivered to Agent on October 3, 2006, Bucryus
International, Inc. has guaranteed obligations of Bucyrus
(Australia) Pty. Ltd. to Anglo Coal (Contracting) Pty. Ltd. as
Agent for the Capricorn Coal Developments Joint Venture.
9. Pursuant to a Corporate Guarantee and Indemnity, the form of
which was delivered to Agent on October 12, 2006, Bucryus
International, Inc. has guaranteed obligations of Bucyrus
(Australia) Pty. Ltd. to Australia and New Zealand Banking
Group Limited ABN 11 005 357 522.
3. 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 the Required Revolving Lenders and consented and
agreed to by Guarantor; and
(b) Agent shall have received true and correct copies of the
documents referred to in the amendment to Schedule 7.3 above (including the
underlying contracts being guaranteed), and 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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/ John F. Bosbous
-----------------------------------------
Name: J. F. Bosbous
Title: Treasurer
MINSERCO, INC.
By: /s/ John F. Bosbous
----------------------------------------
Name: J. F. Bosbous
Title: Treasurer
BOONVILLE MINING SERVICES, INC.
By: /s/ C. R. Mackus
-----------------------------------------
Name: C. R. Mackus
Title: V.P. Finance, Treasurer
and Secretary
GMAC COMMERCIAL FINANCE LLC,
as Agent and Lender
By: /s/ Joseph Skaferowsky
-----------------------------------------
Name: Joseph Skaferowsky
Title: Director
Commitment Percentage: 33.3333%
Commitment: $66,666,666.67
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Lender
By: /s/ Jane W. Mezera
-----------------------------------------
Name: Jane W. Mezera
Title: Vice President
Commitment Percentage: 33.3333
Commitment: $66,666,666.66
LASALLE BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ D. Marinovic
-----------------------------------------
Name: Dusko Marinovic
Title: Vice President
Commitment Percentage: 33.3333%
Commitment: $66,666,666.67
CONSENTED AND AGREED TO:
/s/ C. R. Mackus
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BUCYRUS CANADA LIMITED