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Exhibit 4.1
SECOND AMENDMENT, dated as of October 4, 2000 (this
"Amendment"), to the 364-Day Revolving Credit Agreement dated as of June 3,
1999, as amended by the First Amendment thereto, dated as of June 1, 2000 (as
the same may be further amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among YORK INTERNATIONAL CORPORATION, a Delaware
corporation (the "Company"), the several banks and other financial institutions
from time to time parties thereto (collectively, the "Banks"; individually a
"Bank") and CANADIAN IMPERIAL BANK OF COMMERCE, acting through its New York
Agency, as administrative agent for the Banks thereunder (in such capacity, the
"Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Company, the Banks and the Administrative Agent
are parties to the Credit Agreement;
WHEREAS, the Company, the Administrative 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 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 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 and the
integration of the operations of Sabroe with those of the Company and
its Subsidiaries, (c) any non-recurring charges incurred prior to July
1, 2001, in an aggregate amount not to exceed $110,000,000 in
connection with the profit enhancement initiatives announced in the
Company's earnings release for the third fiscal quarter of 2000, and
(d) any other extraordinary or non-recurring gains), before deduction
for income taxes and Consolidated Interest Expense, determined in
accordance with GAAP.
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(b) Subsection 1.1 of the Credit Agreement is hereby amended
by deleting the definition of "Consolidated Net Worth" contained
therein in its entirety and inserting in lieu thereof the following
definition:
"Consolidated Net Worth": at any particular date, all amounts
which, in accordance with GAAP, would be included under stockholders'
equity on a consolidated balance sheet of the Company and its
Subsidiaries at such date, adjusted to exclude therefrom any effects on
stockholders' equity resulting from any non-recurring charges incurred
prior to July 1, 2001, in an aggregate amount not to exceed
$110,000,000 in connection with the profit enhancement initiatives
announced in the Company's earnings release for the third fiscal
quarter of 2000.
3. Representations and Warranties. On and as of the date
hereof and 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 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.
4. Effectiveness. This Amendment shall become effective upon
satisfaction of each of the following conditions:
(a) receipt by the Administrative Agent of counterparts of
this Amendment duly executed and delivered by the Company and the
Required Banks; and
(b) the Fourth Amendment, dated as of the date hereof, to that
certain Amended and Restated Credit Agreement dated as of July 21, 1995
and amended by the First Amendment thereto, dated as of May 28, 1997,
the Second Amendment thereto, dated as of June 3, 1999, and the Third
Amendment thereto, dated as of June 1, 2000, among the Company, the
Administrative Agent, as Agent thereunder, and the several lenders
party thereto shall have become effective, or the Administrative Agent
shall be reasonably satisfied that such effectiveness shall occur
concurrently with the effectiveness of this Amendment.
5. Continuing Effect; No Other Amendments. Except as expressly
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 Administrative
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).
6. Expenses. The Company agrees to pay and reimburse the
Administrative Agent for all its reasonable costs and out-of-pocket expenses
incurred in connection with the
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preparation and delivery of this Amendment, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent.
7. Counterparts. This Amendment may be executed by one or more
of 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 Administrative Agent.
8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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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:
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Title:
BANK OF AMERICA, N.A. as Syndication Agent
and as a Bank
By:
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Title:
CITIBANK, N.A., as Documentation Agent
and as a Bank
By:
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Title:
CIBC, INC., as a Bank
By:
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Title:
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BANCA COMMERCIALE ITALIANA - NEW YORK BRANCH
By:
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Title:
FLEET NATIONAL BANK
By:
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Title:
BANK OF TOKYO - MITSUBISHI
TRUST COMPANY
By:
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Title:
BG BANK A/S
By:
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Title:
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK AND GRAND CAYMAN BRANCHES
By:
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Title:
By:
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Title:
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DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By:
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Title:
FIRST UNION NATIONAL BANK
By:
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Title:
HSBC BANK USA
By:
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Title:
NATIONAL WESTMINSTER BANK PLC
By:
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Title:
PNC BANK, NATIONAL ASSOCIATION
By:
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Title:
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BANK OF NOVA SCOTIA
By:
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Title:
THE CHASE MANHATTAN BANK
By:
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Title:
ALLFIRST BANK
By:
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Title:
MERITA BANK PLC
By:
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Title:
ING BANK NV
By:
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Title:
