EXECUTION COPY EXHIBIT 4.5
FIRST AMENDMENT, dated as of May 28, 1997 (this "Amendment"), to the
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Amended and Restated Credit Agreement dated as of July 21, 1995 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
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among YORK INTERNATIONAL CORPORATION, a Delaware corporation (the "Company"),
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the several banks and other financial institutions from time to time parties
thereto (collectively, the "Banks"; individually a "Bank") and CANADIAN IMPERIAL
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BANK OF COMMERCE, acting through its New York Agency ("CIBC-NYA"), as agent for
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the Banks thereunder (in such capacity, the "Agent").
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W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company, the Banks and the Agent are parties to the
Credit Agreement;
WHEREAS, the Company has requested that the Banks amend the Credit
Agreement in the manner provided for herein;
WHEREAS, the Agent and the Banks are willing to agree to the requested
amendments, but only upon the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises, 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. Amendment to Schedule I. Schedule I to the Credit Agreement is
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hereby amended by deleting such Schedule in its entirety and substituting in
lieu thereof a new Schedule to read in its entirety as set forth on Schedule I
attached hereto.
3. Amendment to Subsection 1.1. Subsection 1.1 of the Credit
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Agreement is hereby amended by deleting the definition of "Termination Date"
contained therein in its entirety and inserting in lieu thereof the following
definition:
"'Termination Date': July 31, 2002."
4. Amendment to Subsection 4.6. Subsection 4.6 of the Credit
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Agreement is hereby amended by deleting the amount "$5,000,000" contained in
clause (b)(i) of such subsection and substituting in lieu thereof the amount
"$10,000,000."
5. Amendment to Subsection 7.1(a). Subsection 7.1(a) of the Credit
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Agreement is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the
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following new subsection:
(a) Interest Coverage. Permit the ratio of (i) Consolidated EBIT to
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(ii) Consolidated Interest Expense for any period of four consecutive
fiscal quarters ending on the last day of any fiscal quarter ending on or
after December 31, 1993 to be less than 2.50:1.
6. Amendment to Subsection 7.2(c). Subsection 7.2(c) 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:
(c) Indebtedness for borrowed money of any Domestic Subsidiary,
provided that the aggregate amount of all such Indebtedness (other than
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Indebtedness permitted by clause (a) or (d) of this subsection 7.2) of all
such Domestic Subsidiaries shall not exceed $200,000,000 at any one time
outstanding; and
7. Amendment to Subsection 7.3(j). Subsection 7.3(j) 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:
(j) Liens on any Capital Stock which is not Voting Stock, and on not
more than 20% of the Voting Stock, of any Foreign Subsidiary securing
Indebtedness of the Company or any Foreign Subsidiary in an aggregate
amount at any one time outstanding for the Company and all Foreign
Subsidiaries not to exceed 35% of Consolidated Net Worth.
8. 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.
9. 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 mutatis mutandis,
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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 references to the Credit Agreement in such representations and
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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.
10. 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 Banks;
(b) receipt by the Agent, for the account of each Bank, of a Note and
a Bid Loan Note conforming to the requirements of the Credit Agreement (as
amended pursuant to this Amendment) and executed by a duly authorized
officer of the Company;
(c) receipt by the Agent of resolutions, in form and substance
satisfactory to the Agent, of the Board of Directors of the Company, with a
counterpart for each Bank, authorizing (i) the execution and delivery by
the Company of this Amendment, the Notes and the Bid Loan Notes delivered
pursuant to Section 9(b) of this Amendment and subsections 2.2 and 2.4(f)
of the Credit Agreement and the performance by the Company of its
obligations under the Credit Agreement (as amended by this Amendment) and
said Notes and (ii) the borrowings by the Company under the Credit
Agreement (as amended by this Amendment), certified by the Secretary or an
Assistant Secretary of the Company as of the Effective Date, which
certificate shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded and shall be in form and
substance satisfactory to the Agent; and
(d) receipt by the Agent of the executed legal opinions of Xxxxxxx,
Xxxxxxx and Xxxxxx, counsel to the Company, and Xxxx X. Xxxxx, Esq.,
General Counsel of the Company, with a counterpart for each Bank, each in
form and substance satisfactory to the Agent.
11. 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 subsections 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 subsections for any other date or time period (whether or not such other
provisions or compliance with such subsections for another date or time period
are affected by the circumstances addressed in this Amendment).
12. 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.
13. 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
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the parties shall be lodged with the Company and the Agent.
14. 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:
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Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY, as Agent
By:
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Title:
CIBC INC.
By:
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Title:
BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By:
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Title:
By:
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Title:
BANK OF AMERICA ILLINOIS
By:
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Title:
THE CHASE MANHATTAN BANK
By:
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Title:
5
CITIBANK, N.A.
By:
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Title:
COMMERZBANK AKTIENGESELLSCHAFT, NEW
YORK BRANCH
By:
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Title:
By:
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Title:
CORESTATES BANK, N.A.
By:
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Title:
CREDITANSTALT--BANKVEREIN
By:
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Title:
CREDIT SUISSE FIRST BOSTON
(formerly known as Credit Suisse)
By:
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Title:
By:
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Title:
THE FIRST NATIONAL BANK OF BOSTON
By:
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Title:
6
THE FIRST NATIONAL BANK OF MARYLAND
By:
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Title:
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
By:
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Title:
LTCB TRUST COMPANY
By:
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Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By:
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Title:
NATIONAL WESTMINSTER BANK PLC
By:
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Title:
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By:
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Title:
NATIONSBANK OF NORTH CAROLINA, N.A.
By:
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Title:
PNC BANK, NATIONAL ASSOCIATION
By:
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Title:
7
WESTPAC BANKING CORPORATION
By:
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Title:
Schedule I
BANKS AND COMMITMENTS
Bank Commitment Percentage
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CIBC, Inc. $ 50,000,000 10.00000000%
PNC Bank, National Association 50,000,000 10.00000000%
Bank of America Illinois 43,750,000 8.75000000%
The Chase Manhattan Bank 43,750,000 8.00000000%
NationsBank of North Carolina, N.A. 43,750,000 8.00000000%
Citibank, N.A. 37,500,000 7.50000000%
CoreStates Bank, N.A. 31,250,000 6.25000000%
Credit Suisse First Boston 31,250,000 6.25000000%
National Westminster Bank PLC 21,250,000 4.25000000%
The First National Bank of Maryland 20,000,000 4.00000000%
Commerzbank Aktiengesellschaft, New York Branch 18,750,000 3.75000000%
Xxxxxx Guaranty Trust Company of New York 18,750,000 3.75000000%
Banca Commerciale Italiana 15,000,000 3.00000000%
Creditanstalt--Bankverein 15,000,000 3.00000000%
The First National Bank of Boston 15,000,000 3.00000000%
The HongKong and Shanghai Banking Corporation
Limited 15,000,000 3.00000000%
LTCB Trust Company 15,000,000 3.00000000%
Westpac Banking Corporation 15,000,000 3.000000000%
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TOTAL $500,000,000 100.00000000%
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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 If the If the If the
Company's Company's Company's Company's
Senior Debt Senior Senior Senior
Rating is Debt Debt Debt
equal to or Rating is Rating is Rating is
better than equal to equal to equal to
A-, then BBB+, then BBB, then BBB-, then
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Facility Fee 7.50 9.00 12.50 15.00
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Eurodollar Loan 15.00 16.00 20.00 25.00
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Alternate Base Rate Loan 0.00 0.00 0.00 0.00
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Letter of Credit Risk 22.50 25.00 32.50 40.00
Participation Fee
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