Exhibit 4.2
AMENDMENT NO. 2 TO THE
FIVE YEAR CREDIT AGREEMENT
Dated as of March 14, 2003
AMENDMENT NO. 2 TO THE FIVE YEAR CREDIT AGREEMENT among York
International Corporation, a Delaware corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders parties to the Credit
Agreement referred to below (collectively, the "Lenders") and Citibank, N.A., as
administrative agent (the "Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, JPMorgan Chase Bank (as
successor to The Chase Manhattan Bank), as syndication agent, Bank of
Tokyo-Mitsubishi Trust Company, Wachovia Bank, National Association (as
successor to First Union National Bank) and Fleet National Bank, as
documentation agents, XX Xxxxxx Securities, Inc. and Xxxxxxx Xxxxx Barney Inc.,
as joint lead arrangers and joint bookrunners, and the Agent have entered into a
Five Year Credit Agreement dated as of May 29, 2001, as amended by Amendment No.
1 dated as of May 29, 2002 (the "Credit Agreement"). Capitalized terms not
otherwise defined in this Amendment have the same meanings as specified in the
Credit Agreement.
(2) The Borrower and the Required Lenders have agreed to
amend the Credit Agreement as hereinafter set forth.
AGREEMENT:
SECTION 1. Amendments to Credit Agreement. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 2, hereby amended as follows:
(a) Section 1.01 is amended by deleting the definitions
of "Advance", "Applicable Margin", "Applicable Percentage", "Applicable
Utilization Fee", "Base Rate Advance", "Borrowing", "EBITDA", "Lenders", "Net
Worth", "Public Debt Rating" and "Unused Revolving Credit Commitment" set forth
therein and replacing them respectively, with the following new definitions
thereof:
"Advance" means a Revolving Credit Advance, a Swing Line
Advance, a Competitive Bid Advance or a Letter of Credit Advance.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
------------------------------------------------------------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Base Rate Advances Eurodollar Rate Advances
------------------------------------------------------------------------------------
Level 1
A- or A3 or above 0.000% 0.400%
------------------------------------------------------------------------------------
Xxxxx 0
BBB+ and Baa1 0.000% 0.635%
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Xxxxx 0
BBB+ or Baa1 0.000% 0.750%
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Level 4
BBB or Baa2 0.000% 1.175%
------------------------------------------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.000% 1.250%
------------------------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.000% 1.400%
------------------------------------------------------------------------------------
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
----------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
----------------------------------------------------
Level 1
A- or A3 or above 0.100%
----------------------------------------------------
Xxxxx 0
BBB+ and Baa1 0.115%
----------------------------------------------------
Level 3
BBB+ or Baa1 0.125%
----------------------------------------------------
Level 4
BBB or Baa2 0.200%
----------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.250%
----------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.400%
----------------------------------------------------
"Applicable Utilization Fee" means, as of any date that Usage
exceeds 25% of the aggregate Revolving Credit Commitments, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
-------------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Utilization Fee
-------------------------------------------------------
Level 1
A- or A3 or above 0.100%
-------------------------------------------------------
Xxxxx 0
BBB+ and Baa1 0.100%
-------------------------------------------------------
Level 3
BBB+ or Baa1 0.125%
-------------------------------------------------------
Level 4
BBB or Baa2 0.125%
-------------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.250%
-------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.350%
-------------------------------------------------------
"Base Rate Advance" means an Advance (other than a Competitive
Bid Advance) that bears interest as provided in Section 2.08(a)(i).
"Borrowing" means a Revolving Credit Borrowing, a Swing Line
Borrowing or a Competitive Bid Borrowing.
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"EBITDA" means, for any Person for any period, net income (or
net loss) plus the sum of (a) interest expense, (b) income tax expense,
(c) depreciation expense, (d) amortization expense, and (e) any
extraordinary or non-recurring losses (in the case of the Borrower and
its Subsidiaries, inclusive of losses related to restructuring charges
and operating expenses related to restructuring actions in an amount
not to exceed $103,000,000 taken not later than December 31, 2003, of
which not more than $50,000,000 shall be cash charges or expenses, and
losses related to Statement of Financial Accounting Standards No. 142
and No. 144 in an aggregate amount not to exceed $350,000,000) minus
any extraordinary or non-recurring gains, for such period in each case
determined for such Person in accordance with GAAP.
"Lenders" means the Initial Lenders, the Swing Line Bank and
each Person that shall become a party hereto pursuant to Section 8.07.
"Net Worth" means, on any date, all amounts which, in
accordance with GAAP, would be included under stockholders' equity on a
Consolidated balance sheet of the Borrower and its Subsidiaries at such
date, adjusted to exclude (x) accumulated foreign currency translation
adjustments, (y) accumulated losses related to Statement of Financial
Accounting Standards No. 142 and No. 144 in an aggregate amount not to
exceed $350,000,000 and (z) accumulated losses related to restructuring
charges and operating expenses related to restructuring actions in an
amount not to exceed $103,000,000 taken not later than December 31,
2003, of which not more than $50,000,000 shall be cash charges and
expenses.
"Public Debt Rating" means, as of any date, the rating that
has been most recently announced by either S&P or Xxxxx'x, as the case
may be, for any class of non-credit enhanced long-term senior unsecured
debt issued by the Borrower (and if either such rating agency has
issued more than one such rating, the lowest thereof). For purposes of
the foregoing, (a) if only one of S&P and Xxxxx'x shall have in effect
a Public Debt Rating, the Applicable Margin, the Applicable Percentage
and the Applicable Utilization Fee shall be determined by reference to
the available rating; (b) if neither S&P nor Xxxxx'x shall have in
effect a Public Debt Rating, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee will be set in accordance
with Level 6 under the definition of "Applicable Margin", "Applicable
Percentage" or "Applicable Utilization Fee", as the case may be; (c) if
the ratings established by S&P and Xxxxx'x shall fall within different
levels, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be based upon the higher rating unless
such ratings differ by two or more levels, in which case the applicable
level will be deemed to be one level above the lower of such levels;
(d) if any rating established by S&P or Xxxxx'x shall be changed, such
change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (e) if
S&P or Xxxxx'x shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or Xxxxx'x,
as the case may be, shall refer to the then equivalent rating by S&P or
Xxxxx'x, as the case may be.
"Unused Revolving Credit Commitment" means, with respect to
any Lender at any time, (a) such Lender's Revolving Credit Commitment
at such time minus (b) the sum of, without duplication (i) the
aggregate principal amount of all Advances (other than Competitive Bid
Advances) made by such Lender (in its capacity as a Lender) and
outstanding at such time plus (ii) such Lender's Ratable Share of (A)
the aggregate Available Amount of all Letters of Credit outstanding at
such time, (B) the aggregate amount of all Letter of Credit Advances
made by the Issuing Bank pursuant to Section 2.04(c) and outstanding at
such time, (C) the aggregate amount of all Swing Line Advances made by
the Swing Line Bank and outstanding at such time and (D) the aggregate
principal amount of all Competitive Bid Advances outstanding at such
time.
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(b) Section 1.01 is further amended by adding thereto, in
appropriate alphabetical sequence, the following definitions:
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Specified Information" has the meaning specified in Section
8.08(b).
"Swing Line Advance" means an advance made by the Swing Line
Bank pursuant to Section 2.01(c) or any other Lender by purchase from
the Swing Line Bank pursuant to Section 2.02(b).
"Swing Line Advance Maturity Date" has the meaning specified
in Section 2.02(b).
"Swing Line Bank" means Citibank.
"Swing Line Borrowing" means a Borrowing consisting of a Swing
Line Advance made by the Swing Line Bank.
"Swing Line Commitment" means with respect to the Swing Line
Bank at any time the amount set forth opposite the Swing Line Bank's
name on the signature pages hereof, as such amount may be terminated or
reduced, as the case may be, at or prior to such time pursuant to
Section 2.06.
(c) The definition of "Confidential Information" in
Section 1.01 is deleted in its entirety.
(d) Clause (b) of the definition of "Public Debt Rating"
in Section 1.01 is amended by deleting the phrase "in accordance with Level 5"
and substituting therefor the phrase "in accordance with Level 6".
(e) Section 2.01 is amended by adding to the end thereof
a new subsection (c) to read as follows:
(c) The Swing Line Advances. The Swing Line Bank agrees,
on the terms and conditions hereinafter set forth, to make Swing Line
Advances to the Borrower from time to time on any Business Day during
the period from the date hereof until the Termination Date (i) in an
aggregate amount not to exceed at any time outstanding $15,000,000 (the
"Swing Line Facility") and (ii) in an amount for each such Advance not
to exceed the Unused Revolving Credit Commitments of the Lenders
immediately prior to the making of such Advance. The Swing Line Bank
agrees to make one or more Swing Line Advances on any Business Day. No
Swing Line Advance shall be used for the purpose of funding the payment
of principal of any other Swing Line Advance. Each Swing Line Borrowing
shall be in an amount of $1,000,000 or an integral multiple thereof and
shall consist of a Base Rate Advance made by the Swing Line Bank.
Within the limits of the Swing Line Facility and within the limits
referred to in clause (ii) above, the Borrower may borrow under this
2.01(c), prepay pursuant to Section 2.10 and reborrow under this
Section 2.01(c).
(f) Section 2.02 is amended by adding immediately after
subsection (a) thereof a new subsection (b) to read as follows:
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(b) Each Swing Line Borrowing shall be made on notice,
given not later than 3:00 P.M. (New York City time) on the date of the
proposed Swing Line Borrowing by the Borrower to the Swing Line Bank
and the Agent, of which the Agent shall give prompt notice to the
Lenders. Each such notice of a Swing Line Borrowing (a "Notice of Swing
Line Borrowing") shall be by telephone, confirmed at once in writing,
or telecopier or telex, specifying therein the requested (i) date of
such Borrowing, (ii) amount of such Borrowing and (iii) maturity of
such Borrowing (which maturity shall be no later than the earlier of
(A) the fifth Business Day after the requested date of such Borrowing
and (B) the Termination Date (the "Swing Line Advance Maturity Date")).
The Swing Line Bank shall, before 5:00 P.M. (New York City time) on the
date of such Swing Line Borrowing, make such Swing Line Borrowing
available to the Agent at the Agent's Account, in same day funds. After
the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will make
such funds available to the Borrower at the Agent's address referred to
in Section 8.02. Upon written demand by the Swing Line Bank, with a
copy of such demand to the Agent, each other Lender will purchase from
the Swing Line Bank, and the Swing Line Bank shall sell and assign to
each such other Lender, such other Lender's Ratable Share of such
outstanding Swing Line Advance, by making available for the account of
its Applicable Lending Office to the Agent for the account of the Swing
Line Bank, by deposit to the Agent's Account, in same day funds, an
amount equal to its Ratable Share of such Swing Line Advance. The
Borrower hereby agrees to each such sale and assignment. Each Lender
agrees to purchase its Ratable Share of an outstanding Swing Line
Advance on (i) the Business Day on which demand therefor is made by the
Swing Line Bank, provided that notice of such demand is given not later
than 11:00 A.M. (New York City time) on such Business Day or (ii) the
first Business Day next succeeding such demand if notice of such demand
is given after such time. Upon any such assignment by the Swing Line
Bank to any other Lender of a portion of a Swing Line Advance, the
Swing Line Bank represents and warrants to such other Lender that the
Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty and
assumes no responsibility with respect to such Swing Line Advance, this
Agreement, the Notes or the Borrower. If and to the extent that any
Lender shall not have so made its Ratable Share of such Swing Line
Advance available to the Agent, such Lender agrees to pay to the Agent
forthwith on demand such amount together with interest thereon, for
each day from the date such Lender is required to have made such amount
available to the Agent until the date such amount is paid to the Agent,
at the Federal Funds Rate. If such Lender shall pay to the Agent such
amount for the account of the Swing Line Bank on any Business Day, such
amount so paid in respect of principal shall constitute a Swing Line
Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Swing Line
Advance made by the Swing Line Bank shall be reduced by such amount on
such Business Day.
(g) Section 2.02 is further amended by (i) relettering
subsections "(b)", "(c)", "(d)" and "(e)" as subsections "(c)", "(d)", "(e)" and
"(f)", respectively and (ii) by inserting immediately after the phrase "Notice
of Revolving Credit Borrowing" in subsection (c) the phrase "and Notice of Swing
Line Borrowing".
(h) Section 2.06(b) is amended by adding to the end
thereof the following sentence:
The Swing Line Facility shall be permanently reduced from time to time
on the date of each reduction in the Revolving Credit Commitments by
the amount, if any, by which the amount of the Swing Line Commitment
exceeds the Revolving Credit Facility after giving effect to such
reduction of the Revolving Credit Facility.
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(i) Section 2.07 is amended by adding to the end thereof
a new subsection (c) to read as follows:
(c) Swing Line Advances. The Borrower shall repay to the
Agent for the account of (i) the Swing Line Bank and (ii) each other
Lender which has made a Swing Line Advance by purchase from the Swing
Line Bank pursuant to Section 2.02(b) the outstanding principal amount
of each Swing Line Advance made by each of them on the Swing Line
Advance Maturity Date specified in the applicable Notice of Swing Line
Borrowing.
(j) Section 2.08(a)(i) is amended in full to read as
follows:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all times to
the sum of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time plus (z) the Applicable
Utilization Fee in effect from time to time, payable in arrears (A) in
the case of a Base Rate Advance that is not a Swing Line Advance,
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full or (B) in the case of a Base Rate Advance
that is a Swing Line Advance, on the date such Swing Line Advance shall
be paid in full.
(k) Section 2.11(a) is amended in full to read as
follows:
(a) Optional. The Borrower may, upon notice at least three
Business Days' prior to the date of such prepayment, in the case of
Eurodollar Rate Advances, and not later than 11:00 A.M. (New York City
time) on the date of such prepayment, in the case of Base Rate Advances
and Swing Line Advances, to the Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is
given the Borrower shall, prepay the outstanding principal amount of
the Revolving Credit Advances comprising part of the same Revolving
Credit Borrowing, Swing Line Advances comprising part of the same Swing
Line Borrowing or the Letter of Credit Advances in whole or ratably in
part, together with accrued interest to the date of such prepayment on
the principal amount prepaid; provided, however, that (x) each partial
prepayment shall be in an aggregate principal amount of (i) $10,000,000
or an integral multiple of $1,000,000 in excess thereof and (ii)
$1,000,000 or an integral multiple thereof in the case of Swing Line
Advances and (y) in the event of any such prepayment of a Eurodollar
Rate Advance, the Borrower shall be obligated to reimburse the Lenders
in respect thereof pursuant to Section 8.04(c).
(l) Section 2.15(a) is amended by deleting the phrase
"present or future taxes, levies, imposts" and substituting therefor the phrase
"present or future withholding taxes, including levies, imposts".
(m) Section 2.15 (b) is amended in full to read as
follows:
(b) In addition, the Borrower shall pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made
hereunder or under the Notes or any other documents to be delivered
hereunder or from the execution, delivery or registration of,
performing under, or otherwise with respect to, this Agreement or the
Notes or any other documents to be delivered hereunder, but excluding
all other United States federal taxes other than withholding taxes
(hereinafter referred to as "Other Taxes").
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(n) Section 2.16 is amended by deleting the phrase
"Revolving Credit Advances or Letter of Credit Advances" and substituting
therefor the phrase "Revolving Credit Advances, Swing Line Advances or Letter of
Credit Advances" in each place such phrase appears.
(o) Section 2.17(a) is amended by (i) deleting the phrase
"each Revolving Credit Advance and Letter of Credit Advance" and substituting
therefor the phrase "each Revolving Credit Advance, Swing Line Advance and
Letter of Credit Advance" and (ii) deleting the phrase "Revolving Credit
Advances or Letter of Credit Advances" and substituting therefor the phrase
"Revolving Credit Advances, Swing Line Advances or Letter of Credit Advances" in
each place such phrase appears.
(p) Section 3.02 is amended in full to read as follows:
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing, Each Swing Line Borrowing and Each Issuance. The
obligation of each Lender and the Swing Line Bank to make an Advance
(other than a Competitive Bid Advance and other than a Swing Line
Advance made by a Lender pursuant to Section 2.02(b)) and the
obligation of the Issuing Bank to issue a Letter of Credit, shall be
subject to the conditions precedent that the Effective Date shall have
occurred and on the date of such Revolving Credit Borrowing, such Swing
Line Borrowing or such issuance (a) the following statements shall be
true (and each of the giving of the applicable Notice of Revolving
Credit Borrowing, Notice of Swing Line Borrowing or Notice of Issuance
and the acceptance by the Borrower of the proceeds of such Revolving
Credit Borrowing, such Swing Line Borrowing or of such Letter of Credit
shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing or issuance such statements are true):
(i) the representations and warranties contained
in Section 4.01 (except, in the case of Revolving Credit
Borrowings and Swing Line Borrowings, the representations set
forth in the last sentence of subsection (e) thereof and in
subsection (f)(i) thereof) are correct on and as of such date,
before and after giving effect to such Revolving Credit
Borrowing, Swing Line Borrowing or issuance and to the
application of the proceeds therefrom, as though made on and
as of such date, and
(ii) no event has occurred and is continuing, or
would result from such Revolving Credit Borrowing, Swing Line
Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender Party through the Agent may reasonably request.
(q) Section 6.01 is amended by replacing the
parenthetical phrase "(other than Letter of Credit Advances by the Issuing Bank
or a Lender pursuant to Section 2.04(c))" with the parenthetical phrase "(other
than (x) Swing Line Advances to be made by a Lender pursuant to Section 2.02(b)
and (y) Letter of Credit Advances by the Issuing Bank or a Lender pursuant to
Section 2.04(c))" in each place such phrase appears.
(r) Section 8.01 is amended by adding to the end of the
second proviso a new clause (z) to read "and (z) no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Bank in addition to the
Lenders required above to take such action, affect the rights or obligations of
the Swing Line Bank under this Agreement".
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(s) Section 8.07(f) is amended by replacing the phrase
"Confidential Information" with the phrase "Borrower Information".
(t) Section 8.08 is amended in full to read as follows:
(a) The Borrower, the Lenders and the Agent hereby agree
that each of the Borrower, the Lenders and the Agent (and each of their
respective, and their respective affiliates', employees, officers,
directors, agents and advisors) is, and has been from the commencement
of discussions with respect to the facility established by this
Agreement (the "Facility"), permitted to disclose to any and all
Persons, without limitation of any kind, the structure and tax aspects
(as such terms are used in Internal Revenue Code Sections 6011, 6111
and 6112 and the regulations promulgated thereunder) of the Facility,
and all materials of any kind (including opinions or other tax
analyses) that are or have been provided to the Borrower, such Lender
or the Agent related to such structure and tax aspects. In this regard,
each of the Borrower, the Lenders and the Agent acknowledges and agrees
that its disclosure of the structure or tax aspects of the Facility is
not limited in any way by an express or implied understanding or
agreement, oral or written (whether or not such understanding or
agreement is legally binding). Furthermore, each of the Borrower, the
Lenders and the Agent acknowledges and agrees that it does not know or
have reason to know that its use or disclosure of information relating
to the structure or tax aspects of the Facility is limited in any other
manner (such as where the Facility is claimed to be proprietary or
exclusive) for the benefit of any other Person. To the extent that
disclosure of the structure or tax aspects of the Facility by the
Borrower, the Agent or the Lenders is limited by any existing agreement
between the Borrower and the Agent or the Lenders, such limitation is
agreed to be void ab initio and such agreement is hereby amended to
permit disclosure of the structure and tax aspects of the Facility as
provided in this paragraph (a).
(b) Subject to paragraph (a) of this Section 8.08,
neither the Agent nor any Lender may disclose to any Person any
information that the Borrower furnishes to the Agent or any Lender in a
writing designated as confidential or that is otherwise specifically
identified as being confidential (such information being referred to
collectively herein as the "Borrower Information"), except that each of
the Agent and each of the Lenders may disclose Borrower Information (i)
to its and its affiliates' employees, officers, directors, agents and
advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Borrower
Information and will expressly agree to keep such Borrower Information
confidential on substantially the same terms as provided herein), (ii)
to the extent requested by any regulatory authority, (iii) to the
extent required by applicable laws or regulations or by any subpoena or
similar legal process, (iv) to any other party to this Agreement, (v)
in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this Section 8.08, to any assignee
of or participant in, or any prospective assignee of or participant in,
any of its rights or obligations under this Agreement, (vii) to the
extent such Borrower Information (A) is or becomes generally available
to the public on a non-confidential basis other than as a result of a
breach of this Section 8.08 by the Agent or such Lender, or (B) is or
becomes available to the Agent or such Lender on a nonconfidential
basis from a source other than the Borrower and (viii) with the written
consent of the Borrower.
(u) Exhibit A-1 is replaced with Exhibit A-1 to this
Amendment.
(v) Schedule 5.02(a) is replaced with Schedule 5.02(a) to
this Amendment.
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SECTION 2. Conditions of Effectiveness. This Amendment
shall become effective as of the date first above written, provided that, on or
before March 14, 2003, the Agent shall have received counterparts of this
Amendment executed by the Borrower and the Required Lenders or, as to any of the
Lenders, advice satisfactory to the Agent that such Lender has executed this
Amendment. This Amendment is subject to the provisions of Section 8.01 of the
Credit Agreement.
SECTION 3. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware.
(b) The execution, delivery and performance by
the Borrower of this Amendment and the Credit Agreement and the Notes,
as amended hereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action and do not (i)
contravene the Borrower's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for the due
execution, delivery or performance by the Borrower of this Amendment or
the Credit Agreement and the Notes, as amended hereby.
(d) This Amendment has been duly executed and
delivered by the Borrower. This Amendment and the Credit Agreement and
the Notes, as amended hereby, are legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance with
their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
(e) There is no pending or, to the knowledge of
the Borrower, threatened action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action,
affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be reasonably expected
to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Amendment or the Credit
Agreement or the Notes, as amended hereby.
SECTION 4. Reference to and Effect on the Credit
Agreement and the Notes. (a) On and after the effectiveness of this Amendment,
each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Credit Agreement, and each
reference in the Notes to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement and the Notes, as specifically
amended by this Amendment, are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed.
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(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or the Agent under the Credit
Agreement, nor constitute a waiver of any provision of the Credit Agreement.
SECTION 5. Costs and Expenses. The Borrower agrees to
pay on demand all costs and expenses of the Agent in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of
counsel for the Agent) in accordance with the terms of Section 8.04 of the
Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. Governing Law. This Amendment shall be
governed by, and construed in accordance with, the laws 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 thereunto duly authorized,
as of the date first above written.
YORK INTERNATIONAL CORPORATION
By _______________________
Title:
ACCEPTED and AGREED:
CITIBANK, N.A., as Agent and as Lender
By_______________________
Title:
JPMORGAN CHASE BANK
By _______________________
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By _______________________
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By _______________________
Title:
FLEET NATIONAL BANK
By _______________________
Title:
NORDEA BANK FINLAND PLC
(formerly known as Xxxxxx Bank PLC)
By _______________________
Title:
By _______________________
Title:
00
XXX XXXX XX XXXX XXXXXX
By _______________________
Title:
BNP PARIBAS
By _______________________
Title:
By _______________________
Title:
DANSKE BANK
By _______________________
Title:
ING BANK
By _______________________
Title:
PNC BANK, N.A.
By _______________________
Title:
THE ROYAL BANK OF SCOTLAND PLC
By _______________________
Title:
ALLFIRST BANK
By _______________________
Title:
INTESABCI - NEW YORK BRANCH
By _______________________
Title:
00
XXX XXXX XX XXX XXXX
By _______________________
Title:
DRESDNER BANK LATEINAMERIKA AG, MIAMI AGENCY
By _______________________
Title:
13
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, YORK INTERNATIONAL
CORPORATION, a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Revolving Credit Commitment in figures] or, if less, the aggregate principal
amount of the Revolving Credit Advances, Swing Line Advances and Letter of
Credit Advances made by the Lender to the Borrower pursuant to the Five Year
Credit Agreement dated as of May 29, 2001 among the Borrower, the Lender and
certain other lenders parties thereto, and Citibank, N.A. as Agent for the
Lender and such other lenders (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance, Swing Line Advance and Letter of Credit
Advance from the date of such Revolving Credit Advance, Swing Line Advance and
Letter of Credit Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in the Credit
Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, as Agent, at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, in same day funds. Each Revolving Credit Advance, Swing Line
Advance and Letter of Credit Advance owing to the Lender by the Borrower
pursuant to the Credit Agreement, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, (i) provides for the making of Revolving
Credit Advances by the Lender to the Borrower, the making of Swing Line Advances
by the Swing Line Bank to the Borrower and the issuance of Letters of Credit by
the Issuing Bank from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned, the indebtedness
of the Borrower resulting from each such Revolving Credit Advance, each Swing
Line Advance and each Letter of Credit Advance being evidenced by this
Promissory Note and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
YORK INTERNATIONAL CORPORATION
By __________________________
Title:
14
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
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15
Schedule 5.02(a)
Liens
(i) The interest of lessors under various capital leases of
computer and other office equipment and other miscellaneous property and
equipment with an aggregate value of less than $15,000,000.
(ii) Any security interest or encumbrance on assets of the Borrower
or its Subsidiaries arising in connection with the December 1999 equipment lease
financing of the Borrower if, pursuant to FASB Interpretation No. 46,
Consolidation of Variable Interest Entities, dated January 2003, the equipment
lease financing is required to be reflected in the accounts of the Borrower.
16
