Exhibit 4.10
FOURTH AMENDMENT TO AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT
FOURTH AMENDMENT TO AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT,
dated as of December 22, 1999 (this "Amendment"), among York International
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Corporation ("York"), Asset Securitization Cooperative Corporation ("ASCC") and
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Canadian Imperial Bank of Commerce ("CIBC"). Unless otherwise defined herein,
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the capitalized terms used herein shall have the meanings assigned to them in
the Receivables Sale Agreement referred to below.
WHEREAS, York, ASCC and CIBC are party to that certain Amended and
Restated Receivables Sale Agreement, dated as of March 26, 1997, as amended (as
so amended, the "Receivables Sale Agreement"), pursuant to which York, as
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seller, has sold to ASCC Ownership Interests in certain Receivables generated by
York and in the Seller's Interest;
WHEREAS, the parties hereto wish to amend the Receivables Sale
Agreement in the manner and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS.
"Effective Date" means the first date on which (i) each of the parties
hereto shall have executed and delivered one or more counterparts of this
Amendment, (ii) ASCC shall have received a fee equal to $15,000, and (iii) the
conditions precedent set forth in Section 3 have been satisfied.
SECTION 2. AMENDMENTS OF THE RECEIVABLES SALE AGREEMENT.
(a) Amendment of Article I.
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(i) The definition "Aggregate Investment" is hereby deleted in its
entirety.
(ii) Clause (ii) of the definition "Default Ratio" is hereby
amended to read in its entirety as follows:
(ii) the aggregate outstanding balance of all Receivables of
such Division that were unpaid for more than 60 days and less
than 91 days, in the case of the York Divisions, or for more
than 90 days, in the case of Bristol, past the dates on which
they were due as of the end of the month most recently
completed, and
(iii) Clause (1) of the definition "Defaulted Receivable" is
hereby amended by inserting the words "or the York Division, as the case
may be," after the word "Division".
(iv) Clause (2) of the definition "Dilutions" is hereby amended by
inserting the words "or the York Division, as the case may be," after
the word "Division".
(v) Clause (6) of the definition "Eligible Receivable" is hereby
amended by inserting the words "or the York Division, as the case may
be" after the word "Division".
(vi) Clause (18) of the definition "Eligible Receivable" is hereby
amended by inserting the words "or the York Division, as the case may
be," after the word "Division".
(vii) Clause (19) of the definition "Eligible Receivable" is
hereby amended by inserting the words "or the York Division, as the case
may be" after the word "Division".
(viii) The definition "Division" is hereby amended to read in its
entirety as follows:
"Division" means the York Divisions (in the aggregate) and,
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for the purposes of this Agreement, Bristol. Each reference in
this Agreement to a Division, insofar as such reference is to
Bristol, shall, where appropriate, be deemed to be a reference to
the Seller as the owner of the Seller's Interest.
(ix) Clause (1) of the definition "Eligible Receivable" is hereby
amended by deleting the number "91" contained therein and substituting
in replacement thereof the number "60".
(x) Clause (2)(a) of the definition "Eligible Receivable" is hereby
amended by deleting the number "30" contained therein and substituting
in replacement thereof the number "90".
(xi) Clause (2)(b) of the definition "Eligible Receivable" is
hereby amended to read in its entirety as follows:
(b) if such Receivable was generated by UPG, within 360 days
after the billing date thereof, provided, that, if such
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Receivable is required to be paid in full on a date greater than
180 days after the billing date thereof, the payment of the
outstanding balance thereof is insured under an insurance policy
acceptable to the Purchaser issued by an insurance provider whose
claims-paying ability is rated at least AA by Standard & Poor's
or the equivalent thereof by a nationally recognized rating
agency acceptable to the Purchaser and with respect to which the
Purchaser is named as loss payee thereof
(xii) The definition "Foreign Concentration Limit" is hereby
amended to read in its entirety as follows:
"Foreign Concentration Limit" means, with respect to all
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Receivables owing to the York Divisions from all Obligors which
are not U.S. residents or Canadian residents, an amount equal to
the lesser of (x) 10% of the Investment at the time of
determination of the Foreign Concentration Limit and (y)
$17,500,000, reduced by the lesser of (i) the "Foreign
Concentration Limit" (as defined in the Transfer Agreement) and
(ii) the outstanding balance of all Foreign Receivables in the
"Receivables Pool" (as defined in the Transfer Agreement);
provided, that the Purchaser may, at any time and from time to
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time in its sole discretion, reduce or increase the Foreign
Concentration Limit effective immediately upon the delivery of a
notice to the Seller.
(xiii) Clause (y) of the definition "Historical Default Ratio" is
hereby amended to read in its entirety as follows:
(y) the aggregate outstanding balance of all Receivables of such
Division that were unpaid for more than 60 days and less than 91
days, in the case of the York Divisions, or for more than 90
days, in the case of Bristol, past the dates on which they were
due as at the end of each such full fiscal month of the Seller by
(xiv) The definition "Overextended Division" is hereby deleted in
its entirety.
(xv) The definition "Purchase Limit" is hereby amended to read in
its entirety as follows:
"Purchase Limit" means, at any time of determination, for
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all Divisions in the aggregate, an amount equal to $175,000,000.
(xvi) Clause (i) of the definition "Receivables Pool" is hereby
amended to read in its entirety as follows:
(i) with respect to the York Divisions, the aggregation of each
then outstanding Receivable of the York Divisions with respect to
which the Purchaser has purchased an Ownership Interest and
(xvii) Clause (A) of paragraph (2) of the definition "Reserve" is
hereby amended to read in its entirety as follows:
(A) Receivables of such Division which, as at the end of each
such month, were unpaid for more than 60 days and less than 91
days, in the case of the York Divisions, or for more than 90
days, in the case of Bristol, past the date on which they were
due and
(xviii) Paragraph (4) of the definition "Reserve" is hereby
amended by deleting the percentage "4.28%" contained therein and
substituting in replacement thereof the percentage "4.31%" and by
amending clause (b) to read in its entirety as follows:
(b) (i) .5833 with respect to the York Divisions and (ii) .2833
with respect to Bristol.
(xix) The definition "Selling Division" is hereby deleted in its
entirety.
(xx) The definition "Standard Concentration Limit" is hereby
amended to read in its entirety as follows:
"Standard Concentration Limit" means, (i) with respect to
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all of the Receivables of any Division owing from a single
Obligor (except for an Obligor listed on Exhibit A) together with
Receivables owing from its Affiliates or subsidiaries, an amount
equal to the lesser of (i) 3% of the Investment at the time of
determination of the Standard Concentration Limit and (ii)
$5,250,000; provided, that the Purchaser may, at any time in its
discretion, reduce or increase the Standard Concentration Limit
for any Obligor through the delivery of a notice to the Seller.
(xxi) The definition "Unutilized Purchase Limit" is hereby amended
by deleting the dollar amount "$150,000,000" and substituting in
replacement thereof the dollar amount "$175,000,000".
(xxii) Article I of the Receivables Sale Agreement is hereby
amended by adding the following definition in proper alphabetical
sequence:
"York Divisions" means each of Applied, UPG and Xxxxx.
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(b) Amendment of Article III.
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(i) Section 3.1(a) is hereby amended to read in its entirety as
follows:
(a) When the Purchaser accepts an offer from the Seller to
purchase an interest in (i) Receivables of the York Divisions or
(ii) the Seller's Interest, the Purchaser shall have acquired, in
exchange for the purchase price paid, an undivided percentage
ownership interest in (i) the Receivables Pool of the York
Divisions and any Collections relating thereto or (ii) the
Seller's Interest, as the case may be. Each such undivided
percentage interest of the Purchaser shall be referred to in this
Agreement as an "Ownership Interest". The Ownership Interest
with respect to the Receivables Pool of the York Divisions shall
at any time, except as provided in paragraphs (b) and (c) of this
Section, be equal to the following fraction (expressed as a
percentage):
(ii) The term "R" in Section 3.1(a) is hereby amended by deleting
the words "such Division" and substituting in replacement thereof the
words "the York Divisions".
(iii) Clause (I) of the term "ER" in Section 3.1(a) is hereby
amended by deleting the words "each Division (other than Bristol)" and
substituting in replacement thereof the words "the York Divisions".
(iv) Clauses (iv) and (v) of the term "ER" in Section 3.1(a) is
hereby amended to read in its entirety as follows:
(iv) with respect to Eligible Receivables generated by Applied,
the positive result of (A) the aggregate amount by which the
outstanding balance of all such Eligible Receivables not required
to be paid in full until a date between thirty-one days and
ninety days, inclusive, after the billing date thereof exceeds
the product of (1) 5% and (2) the Investment at such time, less
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(B) the amount, if any, determined in clause (i) hereof with
respect to each Obligor described therein which is an Obligor of
a Receivable described in this clause; (v) with respect to
Eligible Receivables generated by UPG, the positive result of (A)
the aggregate amount by which the outstanding balance of all such
Eligible Receivables not required to be paid in full until a date
between sixty-one days and one hundred eighty days, inclusive,
after the billing date thereof exceeds the product of (1) 10% and
(2) the Investment at such time, less (B) the amount, if any,
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determined in clause (i) hereof with respect to each Obligor
described therein which is an Obligor of a Receivable described
in this clause; and (vi) with respect to Eligible Receivables
generated by UPG, the positive result of (A) the aggregate amount
by which the outstanding balance of all such Eligible Receivables
not required to be paid in full until a date between one hundred
eighty-one days and three hundred and sixty days, inclusive,
after the billing date thereof exceeds the product of (1) 15% and
(2) the Investment at such time, less (B) the amount, if any,
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determined in clause (i) hereof with respect to each Obligor
described therein which is an Obligor of a Receivable described
in this clause;
(v) Clause (i) of the last paragraph of Section 3.1(a) is hereby
amended to read in its entirety as follows:
(i) with respect to the York Divisions, the value of Investment
with respect to the Receivables Pool of the York Divisions,
Reserve with respect to the York Divisions, Eligible Receivables
(as so reduced) in such Receivables Pool, Standard Concentration
Limit or Special Concentration Limit with respect to any Obligor,
Foreign Concentration Limit, Government Concentration Limit or
Dilution Percentage with respect to the York Divisions and
(vi) Section 3.1(b) is hereby amended to read in its entirety as
follows:
(b) During any period when the Investment is being reduced,
the Ownership Interest in both the Receivables of the York
Divisions and the Seller's Interest will remain fixed at the
percentage in effect as of the date immediately preceding the
commencement of that period and the Purchaser shall cease
acquiring an interest in any such Receivables, Seller's Interest
or Collections thereon arising during such period.
(vii) Section 3.1(c) is hereby amended by deleting the words "each
Division" in the first and second sentences thereof and substituting in
replacement thereof the words "the York Divisions".
(viii) Section 3.1(e) is hereby amended by deleting the words "all
Receivables Pools of the Divisions" and substituting in replacement
thereof the words "the Receivables Pool of the York Divisions".
(ix) Section 3.2 is hereby amended to read in its entirety as
follows:
Section 3.2 Frequency of Determining Ownership Interest.
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The Collection Agent shall determine or be deemed to determine
the Ownership Interest in the Receivables Pool of the York
Divisions and the Seller's Interest daily, and shall report it to
the Servicing Agent at the following times only:
(a) on the date of an Initial Purchase from the Seller;
(b) on each Settlement Date;
(c) on the date of an Incremental Purchase from the Seller;
(d) on the Business Day immediately preceding any period during
which the Investment is being reduced;
(e) on the Business Day on which the ceases being reduced;
(f) when the Collection Agent has reason to believe that the
Maximum Ownership Interest has been exceeded; and
(g) at the request of the Purchaser.
(x) Section 3.3 is hereby amended to read in its entirety as
follows:
Section 3.3 Maximum Ownership Interest.
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(a) If, on any day (after giving effect to Collections and
the generation of new Receivables with respect to the Receivables
Pool of the
York Divisions on such day), the Ownership Interest
in such Receivables Pool would exceed the Maximum Ownership
Interest, the Purchaser shall cease making Reinvestment Purchases
and the Collection Agent shall remit to the Purchaser on a daily
basis all Collections attributable to such Ownership Interest
(net of amounts distributed or to be distributed pursuant to
Sections 7.2.2(a) and 7.2(b)(i)) as a reduction to its Investment
until the Purchaser has received an amount sufficient to reduce
such Ownership Interest to the Maximum Ownership Interest. The
Seller shall remit to the Purchaser in reduction of its
Investment any payment made by the Purchaser to the Seller on
account of Reinvestment Purchases to the extent the Ownership
Interest exceeded the Maximum Ownership Interest at the time the
Seller received any such Reinvestment Purchase payment.
(b) If, on any day (after giving effect to Collections and
the increase in the Seller's "Investment" (as defined in the
Transfer Agreement) in Bristol's Receivables pursuant to the
Transfer Agreement), the Ownership Interest with respect to the
Seller's Interest would exceed the Maximum Ownership Interest,
the Purchaser shall cease making Reinvestment Purchases and the
Collection Agent shall remit to the Purchaser on a daily basis
all Collections attributable to such Ownership Interest (net of
amounts distributed or to be distributed pursuant to Sections
7.2.2(a) and 7.2(b)(i)) as a reduction to its Investment until
the Purchaser has received an amount sufficient to reduce such
Ownership Interest to the Maximum Ownership Interest. The Seller
shall remit to the Purchaser in reduction of its Investment any
payment made by the Purchaser to the Seller on account of
Reinvestment Purchases to the extent the Ownership Interest
exceeded the Maximum Ownership Interest at the time the Seller
received any such Reinvestment Purchase payment.
(c) Amendment of Article IV.
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(i) Section 4.1(a) is hereby amended by deleting the words "(other
than Incremental Purchases deemed made pursuant to Section 3.3(a))" in
clause (i) thereof.
(ii) Section 4.1(b) is hereby amended by to read in its entirety as
follows:
(b) for a Reinvestment Purchase in Eligible Receivables or
in the Seller's Interest, the positive result of (i) the product
of (A) the dollar amount of the Collections received on account
of Pool Receivables of the related Division on the date of such
Purchase and (B) the Ownership Interest with respect to such
Division on that date, less (ii) any fees payable under Section
7.2.2(b)(i);
provided, that the payment of any amount described in (a) or (b)
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above would not cause (and such amount shall be reduced so as not
to cause) either:
(1) the Investment to exceed the Purchase Limit for all
Divisions in the aggregate; or
(2) the Ownership Interest in the Receivables Pool of the
York Divisions to exceed the Maximum Ownership
Interest.
(d) Amendment of Article V.
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(i) Section 5.2.1 is hereby amended by deleting the words "with
respect to any Division" contained in the first line of the last
paragraph thereof.
(e) Amendment of Article VI.
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(i) Section 6.2(a) is hereby amended by deleting the words ", the
Division which generated the Receivables which are the subject of the
Purchase" contained in the second sentence thereof.
(ii) Section 6.2(b) is hereby amended by deleting clause (ii) in
its entirety and renumbering clause (iii) as clause (ii).
(iii) Section 6.4 is hereby amended to read in its entirety as
follows:
Section 6.4 Condition Precedent to all Incremental
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Purchases. Before the Purchaser will consider making an
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Incremental Purchase, the Servicing Agent shall have received, on
or prior to the date of such Incremental Purchase, all
Receivables Activity Reports required to be delivered at or prior
to such date.
(f) Amendment of Article VII.
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(i) Section 7.1 is hereby amended by deleting the words "with
respect to any Division" in paragraphs (c) and (d) thereof.
(ii) Section 7.2.2(b)(ii) is hereby amended to read in its entirety
as follows:
(ii) second,
(A) if Reinvestment Purchases have been suspended, all
remaining Collections will be paid to the
Purchaser as a return of its Investment; or
(B) if Reinvestment Purchases have not been suspended,
all remaining Collections will be paid to the
Seller for a Reinvestment Purchase.
(g) Amendment of Article VIII.
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(i) Clause (vi) of Section 8.2.1(a) is hereby amended to read in
its entirety as follows:
(vi) on any Settlement Date, the Average Maturity with respect to
the Receivables Pool of the York Divisions exceeds 131 days
or the Receivables Pool of Bristol exceeds 80 days;
(h) Amendment of Article X.
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(i) Section 10.1(i) is hereby amended by deleting the words "each
of the Divisions" and substituting in replacement thereof the words "the
York Divisions".
(ii) Section 10.1(k) is hereby amended by deleting the words "each
Division" and substituting in replacement thereof the words "the York
Divisions".
(iii) Section 10.3(f) is hereby amended by deleting the words "a
Division" at the end thereof and substituting in replacement thereof the
words "the York Divisions".
(iv) Section 10.3(g) is hereby amended by deleting the dollar
amount "$20,000,000" and substituting in replacement thereof the dollar
amount "$17,500,000".
SECTION 3. CONDITIONS PRECEDENT
The occurrence of the Effective Date shall be subject to the
conditions precedent that ASCC and CIBC shall have received the following, each
dated such date, and in form and substance, satisfactory to ASCC and CIBC:
(i) A certificate of the Secretary or an Assistant Secretary of
York certifying as to (1) the incumbency and signatures of its officers
authorized to sign this Amendment and the other agreements and documents
to be delivered by it hereunder, (2) its charter (attached and
appropriately certified by the Secretary of State of its jurisdiction of
incorporation) and by-laws, and (3) the resolutions of its Board of
Directors, authorizing this Amendment and the other agreements and
documents to be delivered by it hereunder and the transactions
contemplated hereby.
(ii) A certificate of the chief administrative officer or treasurer
of York to the effect that, after giving effect to the transactions
contemplated by this Amendment, (i) the representations and warranties
contained in Section 9.1 of the Receivables Sale Agreement will be
correct on and as of the Effective Date as though made by York on and as
of the Effective Date, provided that all references in such
representations and warranties to Receivables Sale Agreement shall be
deemed to refer to the Receivables Sale Agreement as amended hereby, and
(ii) no event has occurred and is continuing, or would result from the
transactions contemplated hereby, that constitutes an event described in
Section 8.2.1(a) of the Receivables Sale Agreement or that would
constitute such an event but for the requirement that notice be given or
time elapse or both.
(iii) Such other certificates, documents and opinions as ASCC or
CIBC may reasonably request.
SECTION 4. CONDITION SUBSEQUENT
(a) York shall, not later than December 28, 1999, deliver to ASCC and
CIBC, a favorable opinion of counsel for York, in form and substance
satisfactory to ASCC and CIBC.
(b) The failure of the Seller to comply with the provisions of this
Section 4 shall constitute the occurrence of an event under Section 8.2.1(a) of
the Receivables Sale Agreement with the same force and effect as if such
provisions were set forth therein, and shall entitle ASCC and CIBC to exercise
any and all remedies described in the Receivables Sale Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
York hereby represents and warrants as follows:
(i) It is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and is
duly qualified in good standing as a foreign corporation in each
jurisdiction where the failure to be so qualified could materially
adversely affect its ability to perform its obligations hereunder or under
the Receivables Sale Agreement (as amended hereby).
(ii) The execution and delivery by it of this Amendment and the
performance by it of this Amendment and the Receivables Sale Agreement (as
amended hereby) are within its corporate powers, have been duly authorized
by all necessary corporate action, do not contravene (1) its charter or by-
laws or (2) any law or contractual restriction binding on or affecting it,
and do not and will not result in or require the creation of any lien upon
or with respect to any of its properties. This Amendment has been duly
executed and delivered by it.
(iii) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution and delivery by it of this Amendment or the
performance by it of this Amendment or the Receivables Sale Agreement (as
amended hereby).
(iv) This Amendment and the Receivables Sale Agreement (as amended
hereby) constitute legal, valid and binding obligations, enforceable
against it in accordance with their respective terms.
(v) There is no pending or, to its knowledge, threatened action or
proceeding affecting it or any of its subsidiaries before any court,
governmental agency or arbitrator, which could reasonably be expected to
materially adversely affect (1) its financial condition or operations, or
(2) its ability to perform its obligations under this Amendment or the
Receivables Sale Agreement (as amended hereby), or which could affect the
legality, validity or enforceability of the Receivables Sale Agreement (as
amended hereby).
SECTION 6. EXPENSES.
York agrees to pay on demand all costs and expenses incurred in
connection with the preparation, execution, delivery, enforcement and
administration of this Amendment and the other documents and agreements to be
delivered hereunder, including, without limitation, the reasonable fees and
disbursements of counsel to ASCC and CIBC.
SECTION 7. EXECUTION IN COUNTERPARTS.
This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original, and all of
which counterparts, when taken together, shall constitute but one and the same
agreement.
SECTION 8. GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. SEVERABILITY OF PROVISIONS.
Any provision of this Amendment which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
SECTION 10. CAPTIONS.
The captions in this Amendment are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
SECTION 11. AGREEMENTS TO REMAIN IN FULL FORCE AND EFFECT.
(a) This Amendment shall be deemed to be an amendment to the
Receivables Sale Agreement. All references in the Receivables Sale Agreement to
the term "Aggregate Investment" shall be deemed to be "Investment". All
references to the Receivables Sale Agreement in any other agreements or document
shall on and after the Effective Date be deemed to refer to the Receivables Sale
Agreement as amended hereby.
(b) Except as herein amended, all terms, provisions and conditions of
the Receivables Sale Agreement and all documents executed in connection
therewith shall continue in full force and effect and shall remain enforceable
and binding in accordance with their terms.
SECTION 12. NO PROCEEDINGS.
Each of the parties hereto hereby agrees that it will not institute
against, or join any other person, firm, corporation or other entity in
instituting against, ASCC any bankruptcy, reorganization, insolvency or similar
proceeding.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
YORK INTERNATIONAL CORPORATION
By: ____________________________
Name:
Title:
ASSET SECURITIZATION COOPERATIVE CORPORATION
By: ____________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By: ____________________________
Authorized Signatory
