EXHIBIT 4.9
AMENDMENT NO. 2 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO RECEIVABLES PURCHASE AGREEMENT (this
"Amendment") dated as of May 19, 2003, is entered into among YORK RECEIVABLES
FUNDING LLC (the "Seller"), YORK INTERNATIONAL CORPORATION, as initial servicer
(in such capacity, together with its successors and permitted assigns in such
capacity, the "Servicer"), THE MEMBERS OF THE VARIOUS PURCHASER GROUPS FROM TIME
TO TIME PARTY THERETO (the "Purchaser Groups"), and PNC BANK, NATIONAL
ASSOCIATION, as Administrator (the "Administrator").
RECITALS
The Seller, the Servicer, the Purchaser Groups and Administrator are
parties to the Receivables Purchase Agreement dated as of December 21, 2001 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Agreement"); and
The parties hereto desire to amend the Agreement as hereinafter set
forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms that are used herein
without definition and that are defined in Exhibit I to the Agreement shall have
the same meanings herein as therein defined.
2. Amendments to the Agreement.
2.1 Section 1.7 is hereby amended and restated in its
entirety as the following:
(a) If any Purchaser Agent, Purchaser, Liquidity
Provider, the Administrator or any other Program Support
Provider or any of their respective Affiliates (each an
"Affected Person") reasonably determines that the existence of
or compliance with: (i) any law or regulation or generally
accepted accounting standard or any change therein or in the
interpretation or application thereof, in each case adopted,
issued or occurring after the date hereof, or (ii) any
request, guideline or directive from any central bank or other
Governmental Authority (whether or not having the force of
law) issued or occurring after the date of this Agreement,
affects or would affect the amount of capital required or
expected to be maintained by such Affected Person, and such
Affected Person determines that the amount of such capital is
increased by or based upon the existence of any commitment to
make purchases of (or otherwise to maintain the investment in)
Pool Receivables related to this Agreement or any related
liquidity facility, credit enhancement facility or other
commitments of the same type, then, upon demand by such
Affected Person (with a copy to the Administrator), the Seller
shall promptly pay to
the Administrator, for the account of such Affected Person,
from time to time as specified by such Affected Person,
additional amounts sufficient to compensate such Affected
Person for both increased costs and maintenance of bargained
for yield in the light of such circumstances, to the extent
that such Affected Person reasonably determines such increase
in capital to be allocable to the existence of any of such
commitments. A certificate as to such amounts submitted to the
Seller and the Administrator by such Affected Person shall be
conclusive and binding for all purposes, absent manifest
error.
(b) If, due to either: (i) the introduction of
or any change in or in the interpretation of any law,
regulation or generally accepted accounting standard or (ii)
compliance with any guideline or request from any central bank
or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to any
Affected Person of agreeing to purchase or purchasing, or
maintaining the ownership of, the Purchased Interest or any
portion thereof in respect of which Discount is computed by
reference to the Euro-Rate, then, upon demand by such Affected
Person, the Seller shall promptly pay to such Affected Person,
from time to time as specified by such Affected Person,
additional amounts sufficient to compensate such Affected
Person for both increased costs and maintenance of bargained
for yield. A certificate as to such amounts submitted to the
Seller and the Administrator by such Affected Person shall be
conclusive and binding for all purposes, absent manifest
error.
(c) If such increased costs affect the related
Affected Person's portfolio of financing transactions, such
Affected Person shall use reasonable averaging and attribution
methods to allocate such increased costs to the transactions
contemplated by this Agreement.
(d) Each Affected Person will notify Seller and
the applicable Purchaser Agent promptly after it has received
official notice of any event which will entitle such Affected
Person to such additional amounts as compensation pursuant to
this Section 1.7. Such additional amounts shall accrue from
the date as to which such Affected Person becomes subject to
such additional costs as a result of such event (or if such
notice of such event is not given to Seller by such Affected
Person within 90 days after such Affected Person received such
official notice of such event, from the date which is 90 days
prior to the date such notice is given to Seller by such
Affected Person).
For avoidance of doubt any increase in cost and/or
reduction in yield caused by regulatory capital allocation
adjustments due to Financial Accounting Standards Board's
Interpretation 46 (or any future statement or interpretation
issued by the Financial Accounting Standards Board or any
successor thereto) shall be covered by this Section 1.7.
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2.2 Section 6.5 of the Agreement is hereby amended by
labeling the existing paragraph as "(a)" and adding the following
clause (b) in its entirety as follows:
(b) Notwithstanding any provisions contained in
this Agreement to the contrary, no Conduit Purchaser shall or
shall be obligated to, pay any amount, if any, payable by it
pursuant to this Agreement or any other Transaction Document
unless (i) such Conduit Purchaser has received funds which may
be used to make such payment and which funds are not required
to repay the Notes when due and (ii) after giving effect to
such payment, either (x) such Conduit Purchaser could issue
Notes to refinance all outstanding Notes (assuming such
outstanding Notes matured at such time) in accordance with the
program documents governing such Conduit Purchaser's
securitization program or (y) all Notes are paid in full. Any
amount which such Conduit Purchaser does not pay pursuant to
the operation of the preceding sentence shall not constitute a
claim (as defined in Section 101 of the Bankruptcy Code)
against or company obligation of such Conduit Purchaser for
any such insufficiency unless and until such Conduit Purchaser
satisfies the provisions of clauses (i) and (ii) above. The
provisions of this paragraph shall survive any termination of
this Agreement.
2.3 The following defined terms are hereby added to
Exhibit I to the Agreement, as alphabetically appropriate.
"UPG Cash Discount Reserve" means, at any time, the
greater of (a) the balance as of the end of the most recent
Fiscal Month of reserves or liabilities maintained on the
books and records of the Unitary Products Group segment of
York or the Servicer in the ordinary course of business
according to policies consistently applied and reported on the
Information Package related to, or in anticipation of, cash
discounts affecting the Receivables; or (b) the highest amount
of credits issued in any Fiscal Month over the immediately
preceding three Fiscal Months related to such cash discounts
credits.
"UPG Price Discount Matrix Reserve" means, at any
time, the greater of (a) the balance as of the end of the most
recent Fiscal Month of reserves or liabilities maintained on
the books and records of the Unitary Products Group segment of
York or the Servicer in the ordinary course of business
according to policies consistently applied and reported on the
Information Package related to, or in anticipation of, price
discounts affecting the Receivables; or (b) the actual amount
of credits issued against Receivables in the most recent
Fiscal Month related to such pricing discounts.
"UPG Co-op Advertising Reserve" means, at any time,
the greater of (a) the balance as of the beginning of the most
recent Fiscal Month of reserves or liabilities maintained on
the books and records of the Unitary
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Products Group segment of York or the Servicer in the ordinary
course of business according to policies consistently applied
and reported on the Information Package related to, or in
anticipation of, co-op advertising programs affecting the
Receivables; or (b) the amount of credits issued in the most
recent Fiscal Month related to such co-op advertising
programs.
"UPG Volume Rebates Reserve" means, at any time, an
amount equal to the sum of (A) an amount equal to the product
of (x) 0.50 and (y) the balance as of the beginning of the
most recent Fiscal Month of reserves or liabilities maintained
on the books and records of the Unitary Products Group segment
of York or the Servicer in the ordinary course of business
according to policies consistently applied and reported on the
Information Package related to, or in anticipation of, volume
rebates affecting the Receivables; and (B) the amount of
credits issued in the most recent Fiscal Month related to such
volume rebates (if current month credits are less than or
equal to $0, then credits issued in the Fiscal Month that is
one month prior to the current Fiscal Month).
"York Refrigeration Group Rebate Reserve" means, at
any time, the greater of (a) the balance as of the beginning
of the most recent Fiscal Month of reserves or liabilities
maintained on the books and records of the York Refrigeration
Group segment of York or the Servicer in the ordinary course
of business according to policies consistently applied and
reported on the Information Package related to, or in
anticipation of, rebate programs affecting the Receivables; or
(b) the amount of credits issued in the most recent Fiscal
Month related to such rebate programs.
2.4 The definition of "Adverse Claim" set forth in
Exhibit I to the Agreement is hereby amended by adding the phrase "or
the federal government with respect to any Receivable described in
clause (a)(ii)(B) of the definition of "Eligible Receivable."
2.5 Clause (d) of the definition of "Concentration
Percentage" set forth in Exhibit I to the Agreement is hereby amended
by deleting the percentage "4.0%" therein and substituting the
percentage "5.0%" therefor.
2.6 Clause (a) of the definition of "Default Ratio" set
forth in Exhibit I to the Agreement is hereby amended by inserting the
phrase "(other than any Receivable the Obligor of which is an Affiliate
of any Originator)" immediately following the phrase "Defaulted
Receivables" therein.
2.7 Clause (b)(i) and (b)(ii) of the definition of
"Default Ratio" set forth in Exhibit I to the Agreement is hereby
amended by inserting the phrase "(other than any sales made to an
Obligor which is an Affiliate of any Originator)" immediately following
the phrase "the Originators" therein.
2.8 Clause (a) of the definition of "Delinquency Ratio"
set forth in Exhibit I to the Agreement is hereby amended by inserting
the phrase "(other than any Receivable the
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Obligor of which is an Affiliate of any Originator)" immediately
following the phrase "Delinquent Receivables" therein.
2.9 Clause (b) of the definition of "Delinquency Ratio"
set forth in Exhibit I to the Agreement is hereby amended by inserting
the phrase "(other than any Receivable the Obligor of which is an
Affiliate of any Originator)" immediately following the phrase "Pool
Receivables" therein.
2.10 The definition of "Dilution Ratio" set forth in
Exhibit I to the Agreement is hereby amended and restated in its
entirety as follows:
"Dilution Ratio" means the ratio (expressed as a
percentage and rounded to the nearest 1/100th of 1%, with
5/1000th of 1% rounded upward), computed as of the last day of
each Fiscal Month by dividing: (a) the aggregate amount of
payments made or owed by the Seller pursuant to Section
1.4(e)(i) of the Agreement during such Fiscal Month excluding
payments related to Ineligible Elimination Amounts,
Specifically Reserved Dilution Amount and amounts reported as
non-dilutive credits and rebills on the Information Package,
by (b) (i) if such Fiscal Month is March, June, September or
December, the aggregate credit sales made by the Originators
during the Fiscal Month that is one month prior to such Fiscal
Month plus 0.25 times the aggregate credit sales made by the
Originators during the Fiscal Month that is two months prior
to such Fiscal Month, (ii) if such Fiscal Month is January,
April, July or October, the aggregate credit sales made by the
Originators during the Fiscal Month that is one month prior to
such Fiscal Month times 0.80, and (iii) if such Fiscal Month
is February, May, August or November, the aggregate credit
sales made by the Originators during the Fiscal Month that is
one month prior to such Fiscal Month.
2.11 Clause (a) of the definition of "Dilution Reserve
Percentage" set forth in Exhibit I to the Agreement is hereby amended
by deleting the percentage "6.0%" therein and substituting the
percentage "10.0%" therefor.
2.12 The definition of "DHR" set forth in the definition
of "Dilution Reserve Percentage" set forth in Exhibit I to the
Agreement is hereby amended and restated in its entirety as follows:
DHR = the "Dilution Horizon Ratio," which shall be equal to
the aggregate credit sales made by the Originators
(other than sales to Obligors which are Affiliates of
any Originator) during the two preceding Fiscal
Months divided by the Net Receivables Pool Balance as
of the last day of most recent Fiscal Month;
provided, however, if the Servicer has a rating of at
least BBB- from Standard & Poor's and Baa3 from
Xxxxx'x, the "Dilution Horizon Ratio" shall be equal
to (i) the aggregate credit sales made by the
Originators
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(other than sales to Obligors which are Affiliates of
any Originator) during the preceding Fiscal Month
plus (ii) 50% of the aggregate credit sales made by
the Originators (other than sales to Obligors which
are Affiliates of any Originator) during the
penultimate Fiscal Month.
2.13 Clause (a) of the definition of "Eligible Receivable"
set forth in Exhibit I to the Agreement is hereby amended in its
entirety to read as follows:
(a) the Obligor of which is (i) a United States resident;
provided, however, if (A) the Obligor of such Receivable is an
Eligible Foreign Obligor, (B) such Receivable results from
goods and services sold in and performed in and/or shipped
from the United States by the applicable Originator and (C)
payment for such goods and services is denominated and payable
only in U.S. dollars in the United States and payable to such
Originator at a Lock-Box Bank and subject to a Lock-Box
Agreement, such Receivable shall be deemed to satisfy the
requirements of this clause (a)(i) to the extent that the sum
of the Outstanding Balance of such Receivables satisfying the
requirements set forth in clauses (a)(i)(A) through (C) does
not exceed 5.00% of the aggregate Outstanding Balance of all
other Eligible Receivables; (ii) not a government or a
governmental subdivision, affiliate or agency; provided,
however, that if the Obligor of such Receivable is (A) a state
or local government or a governmental subdivision, affiliate
or agency thereof as to which the Seller shall have provided
evidence (including opinions or memorandum of counsel)
satisfactory to the Administrator that the Receivables of such
state or local government Obligor are not subject to any
limitations on assignment similar in any respect to the
Federal Assignment of Claims Act, such Receivable shall be
deemed to satisfy the requirements of this clause (a)(ii)(A)
to the extent that the sum of the Outstanding Balance of such
Receivables is less than or equal to 5.00% of the aggregate
Outstanding Balance of all other Eligible Receivables, at such
time as determined, without giving effect to this proviso or
the proviso to clause (a)(i); or (B) a federal government or a
governmental subdivision, affiliate or agency thereof, such
Receivable shall be deemed to satisfy the requirements of this
clause (a)(ii) to the extent that the sum of the aggregate
Outstanding Balance of such Receivables is less than or equal
to 2.50% of all other Eligible Receivables at such time as
determined, without giving effect to this proviso or the
proviso to clause (a)(i); (iii) not subject to any action of
the type described in paragraph (f) of Exhibit V to the
Agreement; and (iv) not an Affiliate of York,
2.14 The following definition is hereby added to Exhibit I
to the Agreement as alphabetically appropriate:
"Eligible Foreign Obligor" means an Obligor which is
a resident of Canada; provided, however, that Canada shall be
a member of the
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Organisation for Economic Co-operation and Development (or any
successor organization) and have a short-term foreign currency
rating (or, if such Obligor does not have such a short-term
rating, a long-term foreign currency rating) of at least "A-1"
(or "A+") by Standard & Poor's and "P-1" (or "A1") by Xxxxx'x.
2.15 Clauses (a)(i) and (a)(ii) of the definition of "Loss
Horizon" set forth in Exhibit I to the Agreement are hereby amended by
adding the phrase "(other than sales made to an Obligor which is an
Affiliate of any Originator)" immediately following the phrase "credit
sales" therein.
2.16 The definition of "Specifically Reserved Dilution
Amount" set forth in Exhibit I to the Agreement is hereby amended and
restated in its entirety as follows:
"Specifically Reserved Dilution Amount" means, at any
time, the sum of (A) the greater of (i) the UPG Cash Discount
Reserve and (ii) an amount equal to the product of (x) 0.008
and (y) the aggregate credit sales made by the Unitary
Products Group segment of York in the most recent Fiscal
Month; (B) the greater of (i) the UPG Co-op Advertising
Reserve and (ii) an amount equal to the product of (x) 0.01
and (y) the aggregate credit sales made by the Unitary
Products Group segment of York in the most recent Fiscal
Month; (C) the greater of (i) the UPG Volume Rebates Reserve
and (ii) an amount equal to the product of (x) .002 and (y)
the aggregate credit sales made by the Unitary Products Group
segment of York in the most recent Fiscal Month; (D) the
greater of (i) the York Refrigeration Group Rebate Reserve and
(ii) an amount equal to the product of (x) 0.0225 and (y) the
aggregate credit sales made by the York Refrigeration Group
segment of York in the most recent Fiscal Month; and (E) the
UPG Price Discount Matrix Reserve; it being understood that in
each case, such other factor as reasonably determined by York
with the consent of the Purchasers, the Purchaser Agents and
the Administrator may be used in lieu of the specific factor
stated herein.
2.17 Paragraph (g) of Exhibit V to the Agreement is hereby
amended by deleting the percentage "4.75%" therein and substituting the
percentage "7.25%" therefor.
2.18 Schedule II to the Agreement is hereby amended and
restated in its entirety as set forth in Annex A attached hereto.
3. Representations and Warranties. Each of the Seller and the
Servicer hereby represents and warrants to the Administrator and each member of
the various Purchaser Groups from time to time party thereto as follows:
(a) Representations and Warranties. Except as expressly
disclosed in the waiver letter dated as of the date hereof, the
representations and warranties contained in Exhibit III of the
Agreement are true and correct as of the date hereof (unless stated to
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relate solely to an earlier date, in which case such representations or
warranties were true and correct as of such earlier date); provided,
that the Seller and the Servicer are hereby confirming only their own
respective representations and warranties contained in Exhibit III of
the Agreement.
(b) Enforceability. The execution and delivery by each of
the Seller and the Servicer of this Amendment, and the performance of
each of its obligations under this Amendment and the Agreement, as
amended hereby, are within each of its organizational powers and have
been duly authorized by all necessary organizational action on each of
its parts. This Amendment and the Agreement, as amended hereby, are
each of the Seller's and the Servicer's valid and legally binding
obligations, enforceable in accordance with its terms.
(c) No Default. Except as expressly disclosed in the
waiver letter dated as of the date hereof, both before and immediately
after giving effect to this Amendment and the transactions contemplated
hereby, no Termination Event or Unmatured Termination Event exists or
shall exist.
4. Effect of Amendment. All provisions of the Agreement, as
expressly amended and modified by this Amendment, shall remain in full force and
effect. After this Amendment becomes effective, all references in the Agreement
(or in any other Transaction Document) to "this Agreement", "hereof", "herein"
or words of similar effect referring to the Agreement shall be deemed to be
references to the Agreement as amended by this Amendment. This Amendment shall
not be deemed, either expressly or impliedly, to waive, amend or supplement any
provision of the Agreement other than as set forth herein.
5. Effectiveness. This Amendment shall become effective as of the
date hereof upon receipt by the Administrator of counterparts of this Amendment
(whether by facsimile or otherwise) executed by each of the other parties
hereto, in form and substance satisfactory to the Administrator in its sole
discretion.
6. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute but one and the same instrument.
7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of New York
(without regard to any otherwise applicable principles of conflicts of law).
8. Section Headings. The various headings of this Amendment are
included for convenience only and shall not affect the meaning or interpretation
of this Amendment, the Agreement or any provision hereof or thereof.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
YORK RECEIVABLES FUNDING LLC
By: _______________________________
Name: _____________________________
Title: ____________________________
YORK INTERNATIONAL CORPORATION,
as Servicer
By: _______________________________
Name: _____________________________
Title: ____________________________
Amendment Xx. 0 xx XXX (Xxxx)
X-0
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By: _______________________________
Name: _____________________________
Title: ____________________________
MARKET STREET FUNDING CORPORATION,
as a Conduit Purchaser and a
Related Committed Purchaser
By: _______________________________
Name: _____________________________
Title: ____________________________
Amendment No. 2 to RPA (York)
X-0
XXXXXXX XXXXXX FUNDING CORP., as a
Conduit Purchaser and a Related
Committed Purchaser
By: _______________________________
Name: _____________________________
Title: ____________________________
Amendment Xx. 0 xx XXX (Xxxx)
X-0
PNC BANK, NATIONAL ASSOCIATION,
as Market Street Purchaser Agent
By: _______________________________
Name: _____________________________
Title: ____________________________
Amendment Xx. 0 xx XXX (Xxxx)
X-0
THE BANK OF NOVA SCOTIA,
as Liberty Street Purchaser Agent
By: _______________________________
Name: _____________________________
Title: ____________________________
Amendment Xx. 0 xx XXX (Xxxx)
X-0
