EXHIBIT 4(b)
EXECUTION COPY
AMENDMENT XX. 0 XXX XXXXXX
XXXXXXXXX XX. 0 XXX XXXXXX dated as of June 28, 2001 to the
Receivables Purchase Agreement dated as of September 12, 1995 among Bethlehem
Steel Funding, LLC ("BSF"), Bethlehem Steel Corporation ("BSC"), as Servicer,
Bethlehem Steel Credit Affiliate One, Inc. ("Credit One"), Bethlehem Steel
Credit Affiliate Two, Inc. ("Credit Two"), Xxxxxx Guaranty Trust Company of
New York (the "Administrative Agent"), as Administrative, Structuring and
Collateral Agent, and the financial institutions party thereto (the "Buyers"),
as buyers (as amended, the "Receivables Purchase Agreement").
W I T N E S S E T H :
WHEREAS, BSC has requested that the Buyers grant a certain waiver
under the Receivables Purchase Agreement, and make certain other modifications
thereto;
WHEREAS, the Buyers are willing to grant such a waiver and make such
modifications, on the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Defined Terms; References. (a) Unless otherwise
specifically defined herein, each term used herein which is defined in the
Receivables Purchase Agreement shall have the meaning assigned to such term in
the Receivables Purchase Agreement. Each reference to "hereof", "hereunder",
"herein" and "hereby" and each other similar reference and each reference to
"this Agreement" and each other similar reference contained in the Receivables
Purchase Agreement shall, after this Amendment and Waiver becomes effective,
refer to the Receivables Purchase Agreement as modified hereby.
(b) As used herein, the following additional terms have the following
meanings:
"RPA Amendment No. 4 Effective Date" has the meaning given in Section
11.
"Specified Pre-petition Accounts Payable" means Receivables owned by
BSF of which the Obligor is Harnischfeger Corp. or one of its subsidiaries,
including Joy Technologies, Inc., and that represent a pre-petition claim in
the pending
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bankruptcy proceeding of such Person under Chapter 11 of the United States
Bankruptcy Code.
Section 2. Amendments to Definitions. Section 1.1 of the Receivables
Purchase Agreement is amended as follows:
(a) The definition of "Commitment Fee" is amended by replacing ".15%"
with ".25%".
(b) The definition of "Euro-Dollar Rate" is amended by replacing
".375%" in each place where it appears with "1.000%".
(c) The definition of "Fixed CD Rate" is amended by replacing ".50%"
in each place where it appears with "1.125%".
Section 3. Amendments to Article 2 of the Receivables Purchase
Agreement. (a) Section 2.9(g) of the Receivables Purchase Agreement is amended
by replacing ".375%" with "1.000%".
(b) Section 2.2(a) and Section 2.3 of the Receivables Purchase
Agreement are amended by replacing "$20,000,000" in each place where it appears
with "$5,000,000".
Section 4. Waiver. (a) The Buyers waive (including for purposes of
Section 4.2 of the Receivables Purchase Agreement) any Potential Termination
Event or Termination Event occurring on account of BSC's entering into the
agreements attached to BSC's letter to the Administrative Agent dated June 28,
2001 or into definitive agreements substantially on the terms and conditions
set forth in the term sheets attached to such letter.
(b) BSC and BSF understand and accept that except as expressly set
forth herein, the waiver contained herein shall not constitute a waiver or
amendment of any term or condition of the Receivables Purchase Agreement or any
other Program Document and all such terms and conditions shall remain in full
force and effect and are hereby ratified and confirmed in all respects, and
that no failure or delay by the Buyers or any one of them in exercising any
right, power or privilege under any Program Document, or any other action taken
or not taken or statement made, shall operate as a waiver thereof or obligate
any Buyer to agree to an extension of the waiver provided hereby or any other
waiver under or amendment to any Program Document.
Section 5. Consent to Sale of Certain Receivables. BSC, as Servicer,
anticipates that BSF will receive a note payable in satisfaction of
substantially all of
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BSF's claims evidenced by Receivables that are Specified Pre-petition Accounts
Payable. BSC, as Servicer, and BSF propose to sell such note (when received),
without any recourse, to a Person that is not an Affiliate of BSC or BSF, for a
purchase price no less than the fair market value thereof, as determined in
good faith by BSC, as Servicer. The Buyers hereby consent to such sale, but
only on the condition that BSF, prior to entering into a definitive agreement
providing for such sale, furnishes a copy of such proposed definitive agreement
to S&P and S&P reaffirms the rating then assigned to the Buyers' Certificates.
Section 6. Program Document. The parties agree that this Amendment
and Waiver shall be considered a "Program Document" for all purposes of the
Receivables Purchase Agreement.
Section 7. Governing Law. This Amendment and Waiver shall be
governed by and construed in accordance with the laws of the State of New York.
Section 8. Counterparts. This Amendment and Waiver 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.
Section 9. Release of Bank Liability. Each of BSF and BSC, for
itself and on behalf of its affiliated entities, successors, assigns and legal
representatives (collectively, as to BSF and BSC, the "BSC Parties"), jointly
and severally releases, acquits and forever discharges the Administrative Agent
and each Buyer (collectively, the "Bank Parties"), and their respective
subsidiaries, parents, affiliates, officers, directors, employees, agents,
attorneys, successors and assigns, both present and former (collectively, the
"Banks' Affiliates") from any and all manner of actions, causes of action,
suits, debts, controversies, damages, judgments, executions, claims and demands
whatsoever, asserted or unasserted, in contract, tort, law or equity which BSF,
BSC or any other BSC Party has or may have against any of the Bank Parties
and/or the Banks' Affiliates by reason of any action, failure to act, matter or
thing whatsoever arising from or based on facts occurring prior to the date
hereof, including but not limited to any claim or defense that relates to, in
whole or in part, directly or indirectly, (i) the making or administration of
the Loans, including without limitation, any such claims and defenses based on
fraud, mistake, duress, usury or misrepresentation, or any other claim based on
so-called "lender liability theories", (ii) any covenants, agreements, duties
or obligations set forth in the Financing Documents, (iii) any actions or
omissions of any of the Bank Parties and/or the Banks' Affiliates in
connections with the initiation or continuing exercise of any right or remedy
contained in the Program Documents or at law or in equity, (iv) lost profits,
(v) loss of business opportunity, (vi) increased financing costs, (vii)
increased legal or other administrative fees, or (viii) damages to business
reputation.
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Section 10. Representations and Warranties. BSF and BSC each hereby
represents and warrants that as of the RPA Amendment No. 4 Effective Date
(after giving effect hereto):
(a) no Termination Event or Potential Termination Event will have
occurred and be continuing; and
(b) the representations and warranties set forth in Articles 5 and 7
of the Receivables Purchase Agreement and Article IV of the Purchase and Sale
Agreement, after giving effect to this Amendment and Waiver, will be true and
correct.
Section 11. Effectiveness. This Amendment and Waiver shall become
effective as of the date hereof on the date (the "RPA Amendment No. 4
Effective Date") when the Administrative Agent shall have received:
(a) from each of BSF, BSC, Credit One, Credit Two, the Administrative
Agent and the Required Buyers a counterpart hereof signed by such party or
facsimile or other written confirmation (in form satisfactory to the
Administrative Agent) that such party has signed a counterpart hereof;
(b) evidence satisfactory to it that S&P has reaffirmed the rating
assigned by it as of June 27, 2001 to the Buyer's Certificates after giving
effect to this Amendment and Waiver; and
(c) confirmation that BSC has paid all statements of Xxxxx Xxxx &
Xxxxxxxx, special counsel to the Administrative Agent, that have been rendered
to BSC at least one Business Day prior to the RPA Amendment No. 4 Effective
Date in respect of this Amendment and Waiver or other matters relating to or
arising under the Receivables Purchase Agreement;
provided that the amendments set forth in Section 2 hereof will not become
effective until the Amendment No. 4 and Waiver under the Inventory Credit
Agreement has become effective, but once so effective shall be given effect as
of the date hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver to
be duly executed as of the date first above written.
BETHLEHEM STEEL FUNDING, LLC
By: /s/ X. X. Xxxxxxxxxxx
------------------------------
Name: X. X. Xxxxxxxxxxx
Title: Authorized Agent
BETHLEHEM STEEL CORPORATION, as
Servicer
By: /s/ X. X. Xxxxxxxxxxx
------------------------------
Name: X. X. Xxxxxxxxxxx
Title: Vice Chairman & Chief
Financial Officer
BETHLEHEM STEEL CREDIT
AFFILIATE ONE, INC.
By: /s/ X. X. Xxxxxxxxxxx
------------------------------
Name: X. X. Xxxxxxxxxxx
Title: Authorized Agent
BETHLEHEM STEEL CREDIT
AFFILIATE TWO, INC.
By: /s/ X. X. Xxxxxxxxxxx
------------------------------
Name: X. X. Xxxxxxxxxxx
Title: Authorized Agent
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XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative, Structuring and Collateral
Agent
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
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BUYERS:
THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
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BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
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GENERAL ELECTRIC
CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
0
XXX XXXX XX XXX XXXX
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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FIRST UNION NATIONAL BANK
By:
------------------------------
Name:
Title:
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UBS, AG
STAMFORD BRANCH
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
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BANK ONE, N.A.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
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CITIBANK, N.A.
By: /s/
------------------------------
Name:
Title:
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SOCIETE GENERALE
By: /s/ Xxxx-Xxxxx Xxxxxxxxx
------------------------------
Name: Xxxx-Xxxxx Xxxxxxxxx
Title: Vice President
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BANK AUSTRIA
AKTIENGESELLSCHAFT
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
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SUMITOMO MITSUI
BANKING CORPORATION
By: /s/ C. Xxxxxxx Xxxxxxx
------------------------------
Name: C. Xxxxxxx Xxxxxxx
Title: Senior Vice President
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SUMMIT BANK
By:
------------------------------
Name:
Title:
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WILMINGTON TRUST
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By:
------------------------------
Name:
Title:
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