EXHIBIT 4.10
CONFORMED COPY
AMENDMENT AGREEMENT
DECEMBER 10, 1996
RELATING TO A
DIVIDEND RIGHTS AGREEMENT
DATED 19 JUNE 1995
BETWEEN
YORK INTERNATIONAL CORPORATION
AND
NATIONAL WESTMINSTER BANK PLC
▇▇▇▇▇▇▇▇ Chance
London
THIS AMENDMENT AGREEMENT is made the 10th day of December 1996.
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 HRB 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; and
(D) It has been agreed that the Dividend Rights Agreement shall be 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 in the Schedule hereto and each of the parties hereto shall be
bound by the terms and conditions thereof accordingly.
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.
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SCHEDULE
AMENDMENTS TO THE DIVIDEND RIGHTS AGREEMENT
1. CLAUSE 1.1 OF THE DIVIDEND RIGHTS AGREEMENT (INTERPRETATION)
1.1 The definition of Funded Debt shall be deleted and replaced by the
following:
""FUNDED DEBT" means all Indebtedness of YIC and its Subsidiaries and
all Guarantee Obligations of YIC and its Subsidiaries in respect of
Indebtedness of persons other than YIC and its Subsidiaries Provided
that, for the purposes of Clause 5.3(i)(b) Funded Debt shall not
include letters of credit with a face amount not exceeding $35,000,000
in the aggregate, appropriate reserves for which have been provided in
the books and records of YIC."
1.2 Paragraph (d) of the definition of Indebtedness shall be deleted and
replaced by the following:
"(d) the portion of the cash purchase price related to the
purchase of accounts receivable from such person (including,
without limitation, in the case of YIC, the cash proceeds
received from time to time from the sale of YIC's accounts
receivable) that shall not have been recovered by the
purchaser thereof and"
1.3 The definition of "ACCOUNTS RECEIVABLE FINANCING" shall be deleted.
2. CLAUSE 5 OF THE DIVIDEND RIGHTS AGREEMENT (COVENANTS AND UNDERTAKINGS OF
YIC)
2.1 Clause 5.1(iii) shall be deleted and replaced by the following:
"(iii) PAYMENT OF OBLIGATIONS
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, all its obligations of
whatever nature, except (a) where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and
reserves in conformity with US GAAP with respect thereto have been
provided on the books of YIC or its Subsidiaries, as the case may be,
or (b) where the failure to do so would not, in the aggregate, have a
Material Adverse Effect."
2.2 In Clause 5.3(ii)(c) the figure of "$50,000,000" shall be deleted and
replaced by "$100,000,000".
2.3 In Clause 5.3(iii) a new paragraph (j) shall be inserted, reading as
follows:
"(j) Encumbrances on not more than 20% of the voting stock of any
Foreign Subsidiaries securing Indebtedness of YIC or any
Foreign Subsidiaries in an aggregate amount at any one time
outstanding for YIC and all Foreign Subsidiaries not to
exceed 15% of Consolidated Net Worth".
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2.4 In Clause 5.3(iv) the following paragraphs (c) and (d) shall be
added:
"(c) any Subsidiary the then aggregate book value of the assets of
which is less than $25,000,000 may do or undergo any of the
fundamental changes subject to this Clause 5.3(iv); and
(d) any wholly-owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets in connection
with an investment in a joint venture permitted by Clause
5.3(v)(c)."
2.5 Clause 5.3(v)(c) shall be deleted and replaced by:
"(c) acquisitions of any business from any person (whether
pursuant to an acquisition of stock, assets, a business unit
or otherwise), investments in joint ventures to conduct any
business and other equity investments in other persons,
Provided that no such acquisition or investment shall be
permitted if such business, joint venture or other person is
engaged in a business other than a business of the same
general type as now conducted by YIC and its Subsidiaries;
3. SCHEDULE 6 OF THE DIVIDEND RIGHTS AGREEMENT (COMPLIANCE CERTIFICATE)
Schedule 6 shall be deleted and replaced by:
" SCHEDULE 6
COMPLIANCE CERTIFICATE
To: National Westminster Bank Plc
Re: York International Corporation
Dividend Rights Agreement dated 19 June 1995
Gentlemen:
This Compliance Certificate is being delivered pursuant to Clause
5.1(ii)(a) and (b) of the Dividend Rights Agreement dated 19 June 1995 (the
"AGREEMENT") between York International Corporation ("YIC"), a Delaware
corporation and National Westminster Bank Plc ("NWB") as amended by the
amendment agreement dated [ ] 1996 made between YIC and NWB.
Capitalised terms used herein without definition shall have the meanings
assigned as such terms in Clause 1.1 of the Agreement.
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YIC hereby certifies, represents and warrants that as of__________________
(the "COMPUTATION DATE"):
(a) Interest Coverage was __________:1, as computed on Attachment 1 hereto.
The minimum Interest Coverage required pursuant to Clause 5.3(i)(a) of
the Agreement on the Computation Date is 3:1.
(b) The Funded Debt to capital was _________:1, as computed on Attachment 2
hereto.
The maximum Funded Debt to Total Capital ratio permitted pursuant to
Clause 5.3(i)(b) of the Agreement is 0.60:1.
(c) The aggregate amount of Indebtedness for borrowed money of Subsidiaries
other than Foreign Subsidiaries was $_______.
The maximum aggregate amount of Indebtedness for borrowed money of
Subsidiaries other than Foreign Subsidiaries permitted pursuant to
Clause 5.3(ii)(c) of the Agreement is $100,000,000.
(d) No Structural Failure or Primary Event has occurred and is continuing.
IN WITNESS WHEREOF, YIC has caused this Certificate to be executed and
delivered by its duly authorised officer of this ______ day of ___________,
19_____.
YORK INTERNATIONAL CORPORATION
By: ____________________________
Title: ______________
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ATTACHMENT 1
INTEREST COVERAGE
=============================================================================================
PREVIOUS
APPLICABLE CURRENT TOTAL
1. CONSOLIDATED EBIT QUARTERS PERIOD QUARTER
---------------------------------------------------------------------------------------------
Consolidated Net Income $_________ $_________ $_________
Plus: income taxes $_________ $_________ $_________
Plus: consolidated interest expense $_________ $_________ $_________
SUBTOTAL: $_________ $_________ $_________
Less: gains from the sale or other $_________ $_________ $________
disposition of assets (other
than the sales of inventory in
the ordinary course of business)
and any other extraordinary or
non-recurring gains
TOTAL:
$_________ $_________
---------------------------------------------------------------------------------------------
2. CONSOLIDATED INTEREST EXPENSE
---------------------------------------------------------------------------------------------
3. Interest Coverage: _______:1 _______:1 _______:1
(item 1 divided by item 2)
---------------------------------------------------------------------------------------------
Minimum Interest
Coverage
----------------
3.00
=============================================================================================
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ATTACHMENT 2
FUNDED DEBT TO TOTAL CAPITAL
US$
1. FUNDED DEBT
CIBC Agented Revolver (July 21, 1995 Agreement)
All other indebtedness for borrowed money, etc.
Financing Leases
Acceptances
Receivable sales
Liabilities secured by Liens
Guarantee Obligations
TOTAL: __________
2. CONSOLIDATED NET WORTH
3. TOTAL CAPITAL
(item 1 plus item 2)
4 Funded Debt to Total Capital
(item 1 divided by item 3) ________:1
MAXIMUM RATIO ALLOWABLE PER COVENANT
0.60 to 1.00
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SIGNATURE PAGE
YORK INTERNATIONAL CORPORATION
December 10, 1996
By: /S/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
TREASURER
NATIONAL WESTMINSTER BANK PLC
By: /S/ ▇▇▇▇▇▇▇ ▇ ▇ ▇▇▇
ASSISTANT DIRECTOR
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