Exhibit 4
FIRST AMENDMENT
Dated as of November 13, 1995
to
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 25, 1994
THIS FIRST AMENDMENT ("Amendment") dated as of
November 13, 1995 is entered into by and among
Harnischfeger Industries, Inc. (the "Borrower"),
the "Lenders" party to the Credit Agreement
referred to below and Chemical Bank, as agent for
the Lenders (the "Agent").
PRELIMINARY STATEMENTS:
A. The Borrower, the Lenders and the
Agent are parties to that certain Amended and
Restated Credit Agreement dated as of November
25,1994 (the "Credit Agreement"). Terms used
herein, unless otherwise defined herein, shall
have the meanings set forth in the Credit
Agreement; and
B. The Borrower, the Lenders and the
Agent wish to amend certain provisions of the
Credit Agreement on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for good and valuable
consideration the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree
as follows:
SECTION 1. Amendments to the Credit
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Agreement. The Credit Agreement is, effective the
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date hereof subject to the satisfaction of the
conditions precedent set forth in Section 2 below,
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hereby amended as follows:
1.1 The defined term "Scheduled
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Expiration Date" contained in Section 1.01 of the
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Credit Agreement is amended to change the date set
forth therein from November 17, 1998 to November
17, 2000.
1.2 Section 2.02 of the Credit
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Agreement is amended to delete subsection (f)
thereof in its entirety.
1.3 Section 5.02 of the Credit
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Agreement is amended to delete clause (vii) of
subsection (f) thereof and to substitute the
following therefor:
(vii) Liens (A) in connection with asset based
financing arranged by any captive
finance Subsidiary; (B) securing letters
of credit obtained in the ordinary
course of business by any foreign
Subsidiary so long as such Liens cover
only properties of such foreign
Subsidiary; or (C) on any deposit,
investment or other
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depository account of a foreign Subsidiary to
secure Indebtedness of one or more other foreign
Subsidiaries; provided, that the sum of the
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obligations secured by Liens described in sub-clauses
(A), (B) and (C) above shall not exceed
$130,000,000 or 20% of Consolidated Net Worth,
whichever is greater.
SECTION 2. Conditions Precedent. The
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Amendment shall become effective and be deemed
effective as of the date first above written upon
receipt by the Agent of counterparts of this
Amendment, executed by the Borrower, each of the
Lenders and the Agent.
SECTION 3. Representations and
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Warranties of the Borrower.
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3.1 Upon the effectiveness of this
Amendment, the Borrower hereby reaffirms the
representations and warranties of the Borrower
contained in Section 4.01 (other than
representations and warranties which expressly
speak only as of a different date) in the Credit
Agreement to the extent the same are not modified
hereby and agrees that all such representations
and warranties shall be true and complete in all
material respects on and as of the effective date
of this Amendment.
3.2 The Borrower hereby represents and
warrants that this Amendment constitutes a legal,
valid and binding obligation of the Borrower
enforceable against the Borrower in accordance
with its terms (except to the extent limited by
bankruptcy, reorganization, insolvency, moratorium
and other similar laws of general application
relating to or affecting the enforcement of
creditors' rights generally or by general
equitable principles).
SECTION 4. Reference to and Effect on
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the Credit Agreement.
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4.1 Upon the effectiveness of this
Amendment, each reference in the Credit Agreement
to "this Agreement","hereunder", "hereof",
"herein", "hereby" or words of like import shall
mean and be a reference to the Credit Agreement as
modified hereby, and each reference to the Credit
Agreement in any other document, instrument or
agreement executed and/or delivered in connection
with the Credit Agreement shall mean and be a
reference to the Credit Agreement as modified
hereby.
4.2 The execution, delivery and
effectiveness of this Amendment shall not operate
as a waiver of any right, power or remedy of any
Lender or Agent under the Credit Agreement, the
Notes or any other document, instrument or
agreement executed in connection therewith, nor
constitute a waiver of any provision contained
therein, except as specifically set forth herein.
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SECTION 5. Execution in Counterparts. This
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Amendment may be executed in any number of
counterparts and by different parties hereto in
separate counterparts, each of which when so
executed and delivered shall be deemed to be an
original and all of which taken together shall
constitute but one and the same instrument.
SECTION 6. Headings. Section headings
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in this Amendment are included herein for
convenience or reference only and shall not
constitute a part of this Amendment for any other
purpose.
SECTION 7. GOVERNING LAW. THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be executed by their
respective officers thereto duly authorized as of
the date first written above.
HARNISCHFEGER INDUSTRIES, INC.,
as the Borrower
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Vice President and
Treasurer
CHEMICAL BANK,
as Agent and as Lender
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice-President
THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Agent
ROYAL BANK OF CANADA,
as a Lender
By: /s/ Xxxxxx XxxXxxxxx
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Name: Xxxxxx XxxXxxxxx
Title: Manager
