Exhibit 4.2
THIRD AMENDMENT TO
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AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
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THIS THIRD AMENDMENT TO AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT,
dated as of September 28, 1999 (this "Agreement") is among YORK INTERNATIONAL
CORPORATION, a Delaware corporation (together with its successors and permitted
assigns, "Seller" and "Collection Agent"), ASSET SECURITIZATION COOPERATIVE
CORPORATION, a California cooperative corporation (together with its successors
and permitted assigns, "Purchaser") and CANADIAN IMPERIAL BANK OF COMMERCE,
acting through certain offices in the United States of America as the servicing
agent for the Purchaser hereunder (in such capacity, and together with any
replacement therefor, the "Servicing Agent")
W I T N E S S E T H:
WHEREAS, Seller and Collection Agent, Purchaser, and Servicing Agent are
parties to that certain Amended and Restated Receivables Sale Agreement dated as
of March 26, 1997 (as amended from time to time, the "Original Receivables Sale
Agreement"; capitalized terms not otherwise defined herein shall have the
definitions provided therefor in the Original Receivables Sale Agreement), which
was amended by that certain First Amendment to Amended and Restated Receivables
Sale Letter Agreement dated as of February 25, 1999 (the "First Amendment to
Receivables Sale Agreement")), and was further amended by that certain Second
Amendment to Amended and Restated Receivables Sale Agreement dated as of August
31, 1999 (the "Second Amendment to Receivables Sale Agreement" and together with
the Original Receivables Sale Agreement and the First Amendment to Receivables
Sale Agreement, the "Receivables Sale Agreement") and to certain other Sale
Documents executed in connection with the Receivables Sale Agreement;
WHEREAS, Seller and Collection Agent, Purchaser and Servicing Agent have
agreed to increase the receivables purchase facility of the Receivables Sale
Agreement from one hundred and twenty million dollars ($120,000,000) to one
hundred and fifty million dollars ($150,000,000) and to change the pricing
structure of the receivable purchase facility; and
WHEREAS, the parties wish to further amend the Receivables Sale Agreement
as provided herein:
NOW, THEREFORE, the parties agree as follows:
1. Amendments to the Receivables Sale Agreement. The Receivables Sale
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Agreement is hereby amended as follows:
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(a) The definition of "Purchase Limit" in Article I of the Receivables Sale
Agreement is hereby deleted, in its entirety, and replaced with the following:
"Purchase Limit" means at any time of determination, for all Divisions
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in the aggregate, not to exceed a total amount of one hundred and fifty
million dollars ($150,000,000), and for each Division individually, the
respective amount set forth below:
Applied $90,000,000
Bristol $50,000,000
UPG $90,000,000
Xxxxx $10,000,000
(b) The definition of "Unutilized Purchase Limit" in Article I of the
Receivables Sale Agreement is hereby deleted, in its entirety, and replaced with
the following:
"Unutilized Purchase Limit" means, at any time of determination, an
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amount equal to the positive result of the (x) $150,000,000 minus (y) the
Aggregate Investment at such time of determination.
(c) Section 5.2.2 of the Receivables Sale Agreement is hereby deleted, in
its entirety, and replaced with the following:
"Section 5.2.2 Purchase Premium. A Purchase Premium equal to .25%
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per annum."
(d) Section 5.5 of the Receivables Sale Agreement is hereby deleted, in its
entirety, and replaced with the following:
"Section 5.5 Unutilized Purchase Limit Fee. The Seller shall pay to
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the Purchaser an annual fee (the "Unutilized Purchase Limit Fee") equal to
.15% of the daily average Unutilized Purchase Limit. The Unutilized
Purchase Limit Fee shall be payable in arrears on each Settlement Date and
on the date on which the Ownership Interests are reduced to zero in
accordance with Section 3.1(c)."
2. Representations and Warranties. To induce Purchaser and Servicing
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Agent to enter into this Agreement, Seller and Collection Agent represents and
warrants to Purchaser and Servicing Agent that the execution, delivery and
performance by Seller and Collection Agent of this Agreement are within its
corporate power, have been duly authorized by all necessary corporate action and
do not and will not contravene or conflict with any provision of law applicable
to Seller and Collection Agent, the Certificate of Incorporation or By-laws of
Seller
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and Collection Agent, or any order, judgment or decree of any court or other
agency of government or any contractual obligation binding upon Seller and
Collection Agent; and the Receivables Sale Agreement as amended as of the date
hereof is the legal, valid and binding obligation of Seller and Collection Agent
enforceable against Seller and Collection Agent in accordance with its terms.
3. Ratification and Confirmation. Except as otherwise amended pursuant to
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this Agreement, all other provisions of the Receivables Sale Agreement are
hereby ratified and confirmed in all respects and are and shall continue to be
enforceable against the Seller and the Collection Agent.
4. Conditions to Effectiveness. Seller and Collection Agent will have
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satisfied the following conditions before this Agreement will become effective:
(a) Execution and delivery of this Agreement; and
(b) Execution and delivery of a Secretary's Certificate (1) confirming
that the persons set forth in the Secretary's Certificate dated March 26, 1997
(the "Initial Closing Date"), who were signatories of the Seller as of the
Initial Closing Date remain duly authorized signatories as of the date of
execution of this Agreement, or to the extent that new signatories who have
authority to execute and deliver this Agreement have been added, the names,
titles and signatures of such new signatories and (2) confirming that no
amendments have occurred to the Certificate of Incorporation, By-laws or
Resolutions of the Seller since the Secretary's Certificate was delivered on the
Initial Closing Date, or to the extent any such amendments have occurred,
attaching such amendments.
5. Miscellaneous.
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(a) Captions. Section captions used in this Agreement are for
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convenience only, and shall not affect the construction of this Agreement.
(b) Governing Law. This Agreement shall be a contract made under and
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governed by the laws of the State of New York, without regard to conflict of
laws principals. Whenever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
(c) Counterparts. This Agreement may be executed in any number of
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counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same Agreement.
(d) Successors and Assigns. This Agreement shall be binding upon
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Seller and Collection Agent, Purchaser and Servicing Agent and their respective
successors and assigns, and shall inure to the sole benefit of Seller and
Collection Agent, Purchaser, and Servicing Agent and their respective successors
and assigns.
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(e) References. Any reference to the Receivables Sale Agreement
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contained in any notice, request, certificate, or other document executed
concurrently with or after the execution and delivery of this Agreement shall be
deemed to include this Agreement unless the context shall otherwise require.
(f) Continued Effectiveness. The Receivables Sale Agreement as
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amended hereby and each of the other Sale Documents remains in full force and
effect.
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Delivered at Chicago, Illinois, as of the day and year first above written.
YORK INTERNATIONAL CORPORATION, as Seller
By:____________________________
Name Printed: _________________
Title:_________________________
YORK INTERNATIONAL CORPORATION, as
Collection Agent
By:____________________________
Name Printed: _________________
Title:_________________________
CANADIAN IMPERIAL BANK OF COMMERCE, as
Servicing Agent
By:____________________________
Name Printed: _________________
Title: Authorized Signatory
ASSET SECURITIZATION COOPERATIVE
CORPORATION, as Purchaser
By:____________________________
Name Printed:__________________
Title:_________________________
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