EXHIBIT 4.1
SECOND AMENDMENT, dated as of June 3, 1999 (this "Amendment"), to the
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Amended and Restated Credit Agreement dated as of July 21, 1995 and amended by
the First Amendment thereto, dated as of May 28, 1997 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among YORK
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INTERNATIONAL CORPORATION, a Delaware corporation (the "Company"), the several
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banks and other financial institutions from time to time parties thereto
(collectively, the "Banks"; individually a "Bank") and CANADIAN IMPERIAL BANK OF
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COMMERCE, acting through its New York Agency, as agent for the Banks thereunder
(in such capacity, the "Agent").
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W I T N E S S E T H :
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WHEREAS, the Company, the Banks and the Agent are parties to the
Credit Agreement;
WHEREAS, the Company, the Agent and the Banks desire to amend the
Credit Agreement in the manner provided for herein;
NOW THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are
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defined in the Credit Agreement and used herein as defined terms are so used as
so defined. Unless otherwise indicated, all Section, subsection and Schedule
references are to the Credit Agreement.
2. Amendments to Subsection 1.1. (a) Subsection 1.1 of the Credit
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Agreement is hereby amended by deleting the definition of "Consolidated EBIT"
contained therein in its entirety and inserting in lieu thereof the following
definition:
"'Consolidated EBIT': for any period, Consolidated Net Income for
such period (excluding, however, (a) any gains from the sale or other
disposition of assets (other than sales of inventory in the ordinary course
of business), (b) the effect of non-recurring restructuring charges in an
amount not to exceed $50,000,000 incurred prior to December 31, 1999 in
connection with the acquisition by the Company of Sabroe Refrigeration A/S
and the integration of the operations of Sabroe Refrigeration A/S with
those of the Company and its Subsidiaries, and (c) any other extraordinary
or non-recurring gains), before deduction for income taxes and Consolidated
Interest Expense, determined in accordance with GAAP."
(b) Subsection 1.1 of the Credit Agreement is hereby further amended
by deleting the definition of "Indebtedness" contained therein in its entirety
and inserting in lieu thereof the following definition:
"'Indebtedness': of any Person at any date, (a) all indebtedness
of such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices) or which is evidenced by a note, bond, debenture or similar
instrument, (b) all obligations of such Person under Financing Leases, (c)
all obligations of such Person in respect of acceptances issued or created
for the account of such Person, (d) the portion of the cash purchase price
related to the purchase of accounts receivable from such Person (including,
without limitation, in the case of the Company, the cash proceeds received
from time to time from the sale of the Company's accounts receivable) that
shall not have been recovered by the purchaser thereof (excluding up to
$75,000,000 of receivables owing by foreign obligors that are sold by the
Company and its Subsidiaries) and (e) all liabilities secured by any Lien
on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof (the amount of
such liabilities referred to in this clause (e) being deemed to be in an
amount equal to the lesser of the amount secured by such Lien and the fair
market value of the assets subject to such Lien (as determined in good
faith by the Company))."
(c) Subsection 1.1 of the Credit Agreement is hereby further amended
by deleting the definition of "Reportable Event" contained therein in its
entirety and inserting in lieu thereof the following definition:
"'Reportable Event': any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .22, .23, .25, .27 or .28 of PBGC Reg.
(S) 4043."
3. Amendment to Subsection 3.1. Subsection 3.1 of the Credit
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Agreement is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following new subsection:
"3.1 Facility, Utilization and Administrative Agent's Fees'. (a)
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The Company agrees to pay to the Agent for the account of each Bank a fee
(the "Facility Fee") based upon the average daily amount of the Commitment
of such Bank (whether or not used) at a rate per annum determined in
accordance with the Pricing Grid based upon the Senior Debt Rating in
effect from time to time, payable quarterly in arrears on the last Business
Day of each March, June, September and December and on the Termination Date
or such earlier date as the Commitments shall terminate as provided herein,
commencing on the first of such dates to occur after the date hereof.
(b) The Company agrees to pay to the Agent for the account of each
Bank a fee (the "Utilization Fee") based upon the average daily amount of
the outstanding Loans at a rate per annum determined in accordance with the
Pricing Grid based upon the Senior Debt Rating in effect from time to time,
when and for as long as the aggregate outstanding principal amount of the
Loans exceeds 33% of the aggregate amount of the Commitments. The
Utilization Fee shall be payable quarterly in arrears on the last Business
Day of each March, June, September and December and on the Termination
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Date or such earlier date as the Commitments shall terminate as provided
herein, commencing on the first of such dates to occur after the date
hereof.
(c) Changes (whether increases or decreases thereof) in the rate for
Facility Fees and Utilization Fees based upon a change in the Senior Debt
Rating shall take effect on the first Business Day following the date of
any such change in the Senior Debt Rating.
(d) The Company agrees to pay to the Agent the fees in the amounts
and on the dates previously agreed to in writing by the Company and the
Agent."
4. Amendment to Subsection 4.13. Subsection 4.13 of the Credit
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Agreement is hereby amended by deleting the amount "$1,000,000" contained
therein and substituting in lieu thereof the amount "$10,000,000."
5. Amendment to Subsection 7.2(b). Subsection 7.2(b) of the Credit
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Agreement is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following new subsection:
"(b) Indebtedness of any Foreign Subsidiary;"
6. Amendments to Subsection 7.3. (a) Subsection 7.3(i) of the
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Credit Agreement is hereby amended by deleting the word "and" immediately
following the semicolon at the end of such subsection.
(b) Subsection 7.3(j) of the Credit Agreement is hereby amended by
deleting the period at the end of such subsection and replacing it with the
following text:
"; and"
(c) Subsection 7.3 of the Credit Agreement is hereby amended by adding
at the end of such subsection the following new clause (k):
"(k) Liens not otherwise permitted by this subsection 7.3 securing
obligations in an aggregate amount not to exceed 5% of Consolidated Net
Worth."
7. Amendment to Subsection 7.4. Subsection 7.4 of the Credit
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Agreement is hereby amended by deleting the words "or make any material change
in its present method of conducting business," from the first sentence thereof.
8. Amendments to Section 8. (a) Section 8 of the Credit Agreement is
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hereby amended by deleting the amount "$5,000,000" contained in clauses (e), (g)
and (h) of such Section 8 and substituting in each instance in lieu thereof the
amount "$20,000,000."
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(b) Section 8 of the Credit Agreement is hereby amended by deleting
clause (c) of such Section in its entirety and substituting in lieu thereof the
following new clause:
"(c) The Company shall default in the observance or performance of any
agreement contained in Section 7; or"
(c) Section 8 of the Credit Agreement is hereby amended by deleting
clause (f) of such Section in its entirety and substituting in lieu thereof the
following new clause:
"(f) (i) The Company or any of its material Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or the Company or any of its
material Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Company or any
of its material Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company or any of its material
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) the Company or any of its material Subsidiaries shall take any action
in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Company or any of its material Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or"
9. Amendment to Subsection 10.6(b). Subsection 10.6(b) of the Credit
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Agreement is hereby amended by deleting the period at the end of the first
sentence of such subsection and adding in lieu thereof the following proviso:
"; provided, however, that no Participant shall have any right to
approve any amendment or waiver of any provision of this Agreement or any
Note except to the extent it would reduce the principal of or interest on
any advance hereunder or any fees payable hereunder or postpone any date
fixed for any payment hereunder."
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10. Amendment to Annex A. Annex A to the Credit Agreement is hereby
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amended by deleting such Annex in its entirety and substituting in lieu thereof
a new Annex to read in its entirety as set forth on Annex A attached hereto.
11. Representations and Warranties. On and as of the date hereof and
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after giving effect to this Amendment and the transactions contemplated hereby,
the Company hereby confirms, reaffirms and restates the representations and
warranties set forth in Section 4 of the Credit Agreement, except to the extent
that such representations and warranties expressly relate to a specific earlier
date in which case the Company hereby confirms, reaffirms and restates such
representations and warranties as of such earlier date, provided that the
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references to the Credit Agreement in such representations and warranties shall
be deemed to refer to the Credit Agreement as in effect prior to the date hereof
and as amended pursuant to this Amendment.
12. Effectiveness. This Amendment shall become effective upon
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satisfaction of each of the following conditions (the date on which all such
conditions are first satisfied is referred to herein as the "Effective Date"):
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(a) receipt by the Agent of counterparts of this Amendment duly
executed and delivered by the Company and the Required Banks; and
(b) the closing of the credit facilities contemplated by that certain
364-Day Revolving Credit Agreement, dated as of June 3, 1999 among the
Company, the Agent, as Administrative Agent thereunder, and the several
lenders party thereto shall have occurred or the Agent shall be reasonably
satisfied that such closing shall occur concurrently with the closing of
the transactions contemplated by this Amendment.
13. Continuing Effect; No Other Amendments. Except as expressly
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amended hereby, all of the terms and provisions of the Credit Agreement are and
shall remain in full force and effect. The amendments provided for herein are
limited to the specific sections of the Credit Agreement specified herein and
shall not constitute amendments of, or an indication of the Agent's or the
Banks' willingness to amend, any other provisions of the Credit Agreement or the
same sections for any other date or time period (whether or not such other
provisions or compliance with such sections for another date or time period are
affected by the circumstances addressed in this Amendment).
14. Expenses. The Company agrees to pay and reimburse the Agent for
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all its reasonable costs and out-of-pocket expenses incurred in connection with
the preparation and delivery of this Amendment, including, without limitation,
the reasonable fees and disbursements of counsel to the Agent.
15. Counterparts. This Amendment may be executed by one or more of
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the parties to this Amendment on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Amendment signed by all the parties
shall be lodged with the Company and the Agent.
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16. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
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THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective duly authorized officers as of the
date first above written.
YORK INTERNATIONAL CORPORATION
By:________________________________
Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY, as Agent
By:_______________________________
Title:
CIBC, INC.
By:________________________________
Title:
BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By:________________________________
Title:
By:________________________________
Title:
BANK OF AMERICA NT & SA
By:________________________________
Title:
THE CHASE MANHATTAN BANK
By:________________________________
Title:
CITIBANK, N.A.
By:________________________________
Title:
COMMERZBANK AKTIENGESELLSCHAFT, NEW
YORK AND GRAND CAYMAN BRANCHES
By:________________________________
Title:
By:_______________________________
Title:
CORESTATES BANK, N.A.
By:________________________________
Title:
BANK AUSTRIA CREDITANSTALT
By:________________________________
Title:
CREDIT SUISSE FIRST BOSTON
(formerly known as Credit Suisse)
By:________________________________
Title:
By:________________________________
Title:
THE FIRST NATIONAL BANK OF BOSTON
By:________________________________
Title:
FMB BANK
By:________________________________
Title:
HSBC BANK USA
By:________________________________
Title:
LTCB TRUST COMPANY
By:________________________________
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By:________________________________
Title:
NATIONAL WESTMINSTER BANK PLC
By:________________________________
Title:
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By:________________________________
Title:
NATIONSBANK OF NORTH CAROLINA, N.A.
By:________________________________
Title:
PNC BANK, NATIONAL ASSOCIATION
By:________________________________
Title:
WESTPAC BANKING CORPORATION
By:________________________________
Title:
Annex A
Pricing Grid for York International Corporation
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(basis points per annum)
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Level I Level II Level III Level IV
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Basis for
Pricing If the Company's If the Company's If the Company's If the Company's
Senior Debt Rating/1/ is Senior Debt Rating is Senior Debt Rating is Senior Debt Rating is
A-/A3 or higher, then BBB+/Baa1, then BBB/Baa2, then BBB-/Baa3, then
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Facility Fee 8.00 10.00 12.50 15.00
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Eurodollar Loan 34.00 45.00 57.50 75.00
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Alternate Base
Rate Loan 0.00 0.00 0.00 0.00
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Letter of
Credit Risk
Participation
Fee 42.00 55.00 70.00 90.00
Utilization Fee 8.00 10.00 10.00 20.00
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Level V
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If the Company's Senior Debt Rating
is less thab BBB-/Baa3, then
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Facility Fee 25.00
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Eurodollar Loan 87.50
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Alternate Base
Rate Loan 0.00
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Letter of
Credit Risk
Participation
Fee 112.50
Utilization Fee 25.00
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/1/ Unless otherwise indicated, in the event of a single split rating, the
lower rating shall apply. In the event of a multiple split rating, the
applicable rating shall be one level higher than the lower rating.
