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Exhibit 4.3
FIFTH AMENDMENT TO AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT
FIFTH AMENDMENT TO AMENDED AND RESTATED RECEIVABLES SALE
AGREEMENT, dated as of October 20, 2000 (this "Amendment"), among York
International Corporation ("York"), Asset Securitization Cooperative Corporation
("ASCC") and Canadian Imperial Bank of Commerce ("CIBC"). Unless otherwise
defined herein, the capitalized terms used herein shall have the meanings
assigned to them in the Receivables Sale Agreement referred to below.
WHEREAS, York, ASCC and CIBC are party to that certain Amended
and Restated Receivables Sale Agreement, dated as of March 26, 1997, as amended
(as so amended, the "Receivables Sale Agreement"), pursuant to which York, as
seller, has sold to ASCC Ownership Interests in certain Receivables generated by
York and in the Seller's Interest;
WHEREAS, the parties hereto wish to amend the Receivables Sale
Agreement in the manner and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants herein contained, the parties hereto agree as follows:
Section 1. Defined Terms.
"Effective Date" means the first date on which each of the
parties hereto shall have executed and delivered one or more counterparts of
this Amendment.
Section 2. Amendment of the Receivables Sale Agreement.
Clause (i) of Section 8.2.1(a) is hereby amended to read in
its entirety as follows:
(i) the Seller's long-term unsecured debt rating falls below
BBB- by Standard & Poor's or Baa3 by ▇▇▇▇▇'▇ Investors Service, Inc.;
Section 3. Representations and Warranties.
York hereby represents and warrants as follows:
(i) The execution and delivery by it of this Amendment and the
performance by it of this Amendment and the Receivables Sale Agreement (as
amended hereby) are within its corporate powers, have been duly authorized by
all necessary corporate action, do not contravene (1) its charter or by-laws or
(2) any law or contractual restriction binding on or affecting it, and do not
and will not result in or require the creation of any lien upon or with respect
to any of its properties. This Amendment has been duly executed and delivered by
it.
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(ii) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required for the due execution and delivery by it of this Amendment or the
performance by it of this Amendment or the Receivables Sale Agreement (as
amended hereby).
(iii) This Amendment and the Receivables Sale Agreement (as
amended hereby) constitute legal, valid and binding obligations, enforceable
against it in accordance with their respective terms.
(iv) There is no pending or, to its knowledge, threatened
action or proceeding affecting it or any of its subsidiaries before any court,
governmental agency or arbitrator, which could reasonably be expected to
materially adversely affect (1) its financial condition or operations, or (2)
its ability to perform its obligations under this Amendment or the Receivables
Sale Agreement (as amended hereby), or which could affect the legality, validity
or enforceability of the Receivables Sale Agreement (as amended hereby).
Section 4. Expenses.
York agrees to pay on demand all costs and expenses incurred
in connection with the preparation, execution, delivery, enforcement and
administration of this Amendment and the other documents and agreements to be
delivered hereunder, including, without limitation, the reasonable fees and
disbursements of counsel to ASCC and CIBC.
Section 5. Execution in Counterparts.
This Amendment may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original,
and all of which counterparts, when taken together, shall constitute but one and
the same agreement.
Section 6. Governing Law.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 7. Severability of Provisions.
Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 8. Captions.
The captions in this Amendment are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
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Section 9. Agreements to Remain in Full Force and Effect.
(a) This Amendment shall be deemed to be an amendment to the
Receivables Sale Agreement. All references to the Receivables Sale Agreement in
any other agreements or document shall on and after the Effective Date be deemed
to refer to the Receivables Sale Agreement as amended hereby.
(b) Except as herein amended, all terms, provisions and
conditions of the Receivables Sale Agreement and all documents executed in
connection therewith shall continue in full force and effect and shall remain
enforceable and binding in accordance with their terms.
Section 10. No Proceedings.
Each of the parties hereto hereby agrees that it will not
institute against, or join any other person, firm, corporation or other entity
in instituting against, ASCC any bankruptcy, reorganization, insolvency or
similar proceeding.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written.
YORK INTERNATIONAL CORPORATION
By:
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Name:
Title:
ASSET SECURITIZATION COOPERATIVE
CORPORATION
By:
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Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By:
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Authorized Signatory
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