Exhibit 4.2
AMENDMENT NO. 1 TO THE
FIVE YEAR CREDIT AGREEMENT
Dated as of May 29, 2002
AMENDMENT NO. 1 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 (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) The definition of "Applicable Margin" in Section 1.01 is
amended by deleting from the grid opposite Level 4 the figure "0.875%"
and substituting therefor the figure "1.050%".
(b) The definition of "EBITDA" in Section 1.01 is amended in
full to read as follows:
"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 (inclusive of 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.
(c) The definition of "Net Worth" in Section 1.01 is amended
in full to read as follows:
"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 and (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.
(d) Section 1.03 is amended in full to read as follows:
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements of the Borrower as of December 31, 2001, as modified by the
Borrower's adoption of Statement of Financial Accounting Standards No. 142 and
No. 144 ("GAAP").
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written, provided that, on or before May
29, 2002, 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.
(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.
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:
THE BANK OF NOVA SCOTIA
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:
THE BANK OF NEW YORK
By_______________________
Title:
DRESDNER BANK LATEINAMERIKA AG, MIAMI AGENCY
By_______________________
Title:
