Exhibit 4.10
AMENDMENT AGREEMENT
relating to a
DIVIDEND RIGHTS AGREEMENT
dated 19 June 1995 as amended by an Amendment Agreement dated 10 December 1996
BETWEEN
YORK INTERNATIONAL CORPORATION
and
NATIONAL WESTMINSTER BANK PLC
THIS AMENDMENT AGREEMENT is made the eleventh day of February 1998
BETWEEN:
(1) YORK INTERNATIONAL CORPORATION ("YIC", which expression shall include its
successors and assigns permitted under the Dividend Rights Agreement (as
defined below)), a corporation organised under the laws of Delaware, USA
whose principal office and effective seat of management is at ▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇; and
(2) NATIONAL WESTMINSTER BANK PLC ("NWB" which expression shall include its
successors and assigns permitted under the Dividend Rights Agreement (as
defined below)), a public limited company duly organised under the laws of
England whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
WHEREAS
(A) York International Holding GmbH (registered number FM 5518 Mannheim), a
German limited company with its registered office at ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-
▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("YIH GmbH") is a subsidiary of YIC with
an issued share capital comprising the Ordinary Share, the Class A
Preference Share and the Class B Preference Share;
(B) YIC is the registered owner of the Ordinary Share and the Class A
Preference Share following the conversion of part of the Ordinary Share
into the Class A Preference Share;
(C) By a dividend rights agreement dated 19 June 1995 and made between YIC and
NWB (the "Dividend Rights Agreement") YIC transferred to NWB the dividend
rights with respect to the Class A Preference Share;
(D) By an Amendment Agreement dated 10 December 1996 and made between YIC and
NWB the Dividend Rights Agreement was amended on the terms and subject to
the conditions set out therein; and
(E) It has been agreed that the Dividend Rights Agreement shall be further
amended on the terms and subject to the conditions hereof.
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
1.1 Terms defined in the Dividend Rights Agreement shall, unless otherwise
defined herein, or unless the context otherwise requires, bear the same
meaning when used in this Agreement.
1.2 In this Agreement, any reference to a "Clause" or "Schedule" shall, subject
to any contrary indication, be construed as a reference to a Clause hereof
or a Schedule hereto.
1.3 Clause and Schedule headings are for ease of reference only.
2. Amendments to the Dividend Rights Agreement
The parties hereto expressly agree that the Dividend Rights Agreement
shall, as at the date hereof, be amended so that it shall be read and
construed for all purposes so as to include the amendments set out hereto
and each of the parties hereto shall be bound by the terms and conditions
thereof accordingly:-
2.1 Amendment to sub-clause 5.3(i)(a)
Sub-clause 5.3 (i)(a) of the Dividend Rights Agreement is hereby amended by
deleting such sub-clause in its entirety and substituting in lieu thereof
the following new sub-clause:
(a) Interest Coverage. Permit the ratio of (i) Consolidated EBIT to (ii)
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Consolidated Interest Expense for any period of four consecutive
fiscal quarters ending on the last day of any fiscal quarter to be
less than 2.50:1.
2.2 Amendment to sub-clause 5.3(ii)(c)
Sub-clause 5.3(ii)(c) of the Dividend Rights Agreement is hereby amended by
deleting such subclause in its entirety and substituting in lieu thereof
the following new sub-clause:
(c) Indebtedness for borrowed money of any Domestic Subsidiary, provided
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that the aggregate amount of all such Indebtedness (other than
Indebtedness permitted by paragraphs (a) or (d) of this Clause 5.3(ii))
of all such Domestic Subsidiaries shall not exceed $200,000,000 at any
one time outstanding.
2.3 Amendment to sub-clause 5.3(iii)(f)
Sub-clause 5.3(iii)(f) of the Dividend Rights Agreement is hereby amended
by deleting such sub-clause in its entirety and substituting in lieu
thereof the following new sub-clause:
(f) Encumbrances 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 YIC or any Foreign Subsidiary in an aggregate
amount at any one time outstanding for YIC and all Foreign
Subsidiaries not to exceed 35% of Consolidated Net Worth.
2.4 Amendment to Schedule 2, Clause 8
Clause 8 of Schedule 2 of the Dividend Rights Agreement is hereby amended
by deleting the amount "$5,000,000" contained in clause (b)(i) and
substituting in lieu thereof the amount "$10,000,000".
3. Continuity and Further Assurance
3.1 The provisions of the Dividend Rights Agreement shall, save as amended
hereby, continue in full force and effect.
3.2 YIC shall, at its own expense, do all such acts and things and execute all
such documents as shall reasonably be considered necessary or desirable to
give full effect to the amendments effected or to be effected pursuant to
this Agreement.
4. Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which, when so
executed and delivered, shall be an original but all the counterparts shall
together constitute but one and the same instrument.
5. Law
This Agreement shall be governed by and construed in accordance with
English Law.
6. Jurisdiction
Clause 24 of the Dividend Rights Agreement shall be imported into this
Agreement save that, when read in the context of this Agreement, all
references to "the Transaction Documents" shall be replaced by "this
Agreement" and read accordingly.
7. Waivers of Jury Trial
YIC and NWB hereby irrevocably and unconditionally waive trial by jury in
any legal action or proceeding relating to this Agreement and for any
counterclaim therein.
8. Costs and Expenses
YIC shall pay NWB on demand for all reasonable expenses incurred by NWB in
connection with the negotiation, preparation, execution and delivery of
this Agreement.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
YORK INTERNATIONAL CORPORATION
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Treasurer
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NATIONAL WESTMINSTER BANK PLC
By: /S/ ▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Corporate Manager North America
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