EXHIBIT 10.2
FIRST AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT FACILITY
AGREEMENT (the "Amendment"), dated as of August 27, 2004 is among LENNOX
INTERNATIONAL INC., a Delaware corporation (the "Borrower"), the lenders party
hereto, and JPMORGAN CHASE BANK, as administrative agent (the "Administrative
Agent").
RECITALS:
The Borrower, the Administrative Agent, and the lenders party thereto have
entered into that certain Amended and Restated Revolving Credit Facility
Agreement dated as of September 11, 2003 (as amended or otherwise modified from
time to time, the "Agreement"). The Borrower has requested that the
Administrative Agent and the Lenders amend certain provisions of the Agreement.
Subject to satisfaction of the conditions set forth herein, the Administrative
Agent and the Lenders party hereto are willing to amend the Agreement as herein
set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows effective as of the
date hereof unless otherwise indicated:
ARTICLE I.
Definitions
Section 1.1. Definitions. Capitalized terms used in this Amendment, to the
extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby.
ARTICLE II.
Amendments
Section 2.1. Amendment to Section 1.01 [Defined Terms]. The definition of
the term "Senior Financial Officer" contained in Section 1.01 of the Agreement
is amended to read as follows:
"Senior Financial Officer" means the chief financial officer,
principal accounting officer, treasurer, assistant treasurer, or
controller of the Borrower; provided that any executive vice president,
the treasurer, any assistant treasurer, or the corporate controller of
Borrower is authorized by Borrower to execute and deliver any Borrowing
Request.
Section 2.2. Amendment to Section 2.19 [Letters of Credit]. The reference
to "$100,000,000" in the last sentence of clause (a) of Section 2.19 of the
Agreement is amended to read "$125,000,000".
Section 2.3. Amendment to Section 5.23 [Investments, Loans, Advances,
Guarantees and Acquisitions]. Section 5.23 of the Agreement is amended as
follows: (i) the "and" at the end of clause (j) is deleted; (ii) the "." at the
end of subclause (v) of clause (k) is deleted and replaced with "; and" and
(iii) the following clause (l) is added to the end of Section 5.23.
(l) promissory notes payable to Service Experts, Inc. or any of its
Subsidiaries received in connection with the sale of their assets;
provided that (i) the applicable asset sale is permitted under the terms
of Section 5.11 and (ii) the aggregate
FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT FACILITY
AGREEMENT, Page 1
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Dollar Equivalent of the principal amount outstanding under all such
promissory notes does not exceed $20,000,000 at any time.
ARTICLE III.
Conditions Precedent
Section 3.1. Conditions. The effectiveness of Article II of this Amendment
is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received, each in form and
substance reasonably satisfactory to the Administrative Agent, the following:
(i) this Amendment duly executed by the Borrower, the Guarantors and
the Required Lenders;
(ii) evidence that all Persons who have the benefit of the
provisions similar or substantially similar to the terms of Section 5.06 of the
Agreement (including the holders of the notes under the Senior Note Purchase
Agreements) shall have agree to amendments to their respective documents on the
same terms as the amendments contemplated hereby; and
(iii) such additional documentation and information as the
Administrative Agent or its legal counsel, Jenkens & Xxxxxxxxx, a Professional
Corporation, may request;
(b) The representations and warranties contained herein and in all other
Loan Documents, as amended hereby, shall be true and correct in all material
respects as of the date hereof as if made on the date hereof, except for such
representations and warranties limited by their terms to a specific date;
(c) No Default or Event of Default shall exist; and
(d) All proceedings taken in connection with the transactions
contemplated by this Amendment and all documentation and other legal matters
incident thereto shall be satisfactory to the Administrative Agent and its legal
counsel, Jenkens & Xxxxxxxxx, a Professional Corporation.
ARTICLE IV.
Miscellaneous
Section 4.1. Ratifications. Except as expressly modified and superseded by
this Amendment, the terms and provisions of the Agreement and the other Loan
Documents are ratified and confirmed and shall continue in full force and
effect. The Borrower, the Administrative Agent and lenders party hereto agree
that the Agreement as amended hereby and the other Loan Documents shall continue
to be legal, valid, binding and enforceable in accordance with their respective
terms. For all matters arising prior to the effective date of this Amendment,
the Agreement (as unmodified by this Amendment) shall control.
Section 4.2. Representations and Warranties; Release. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders as follows:
(a) no Default or Event of Default exists and (b) the representations and
warranties set forth in the Loan Documents are true and correct on and as of the
date hereof with the same effect as though made on and as of such date except
with respect to any representations and warranties limited by their terms to a
specific date. IN ADDITION, TO INDUCE THE ADMINISTRATIVE AGENT AND THE LENDERS
TO AGREE TO THE TERMS OF
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THIS AMENDMENT, THE BORROWER AND EACH GUARANTOR (BY ITS EXECUTION BELOW)
REPRESENTS AND WARRANTS THAT AS OF THE DATE OF ITS EXECUTION OF THIS AMENDMENT
THERE ARE NO CLAIMS OR OFFSETS AGAINST OR RIGHTS OF RECOUPMENT WITH RESPECT TO
OR DEFENSES OR COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS AND IN
ACCORDANCE THEREWITH IT:
(A) WAIVER. WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS, RIGHTS OF
RECOUPMENT, DEFENSES OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR
TO THE DATE OF ITS EXECUTION OF THIS AMENDMENT AND
(B) RELEASE. RELEASES AND DISCHARGES THE ADMINISTRATIVE AGENT AND
THE LENDERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
SHAREHOLDERS, AFFILIATES AND ATTORNEYS (COLLECTIVELY THE "RELEASED PARTIES")
FROM ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS, RIGHTS, CAUSES
OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED, IN LAW OR EQUITY, WHICH THE BORROWER OR ANY GUARANTOR EVER HAD, NOW
HAS, CLAIMS TO HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE
DATE HEREOF AND FROM OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
Section 4.3. Survival of Representations and Warranties. All
representations and warranties made in this Amendment shall survive the
execution and delivery of this Amendment, and no investigation by Administrative
Agent or any Lender or any closing shall affect the representations and
warranties or the right of the Administrative Agent or any Lender to rely upon
them.
Section 4.4. Reference to Agreement. Each of the Loan Documents, including
the Agreement and any and all other agreements, documents, or instruments now or
hereafter executed and delivered pursuant to the terms hereof or pursuant to the
terms of the Agreement as amended hereby, are hereby amended so that any
reference in such Loan Documents to the Agreement shall mean a reference to the
Agreement as amended hereby.
Section 4.5. Severability. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 4.6. Applicable Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and the applicable
laws of the United States of America.
Section 4.7. Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Administrative Agent, each Lender, the
Borrower, each Guarantor and their respective successors and assigns, except
neither Borrower nor any Guarantor may assign or transfer any of its rights or
obligations hereunder without the prior written consent of the Lenders.
Section 4.8. Counterparts. This Amendment may be executed in one or more
counterparts and on telecopy counterparts, each of which when so executed shall
be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
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Section 4.9. Effect of Waiver. No consent or waiver, express or implied,
by the Administrative Agent or any Lender to or for any breach of or deviation
from any covenant, condition or duty by the Borrower or any Guarantor shall be
deemed a consent or waiver to or of any other breach of the same or any other
covenant, condition or duty.
Section 4.10. Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 4.11. ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
Section 4.12. Required Lenders. The Agreement may be modified as provided
in this Amendment with the agreement of the Required Lenders which means Lenders
having fifty-one percent (51%) of the sum of the Total Commitment (such
percentage applicable to a Lender, herein such Lender's "Required Lender
Percentage"). For purposes of determining the effectiveness of this Amendment,
each Lender's Required Lender Percentage is set forth on Schedule 4.12 hereto.
Executed as of the date first written above.
LENNOX INTERNATIONAL INC.
By:_________________________________
Name:____________________________
Title:___________________________
JPMORGAN CHASE BANK, formerly The
Chase Manhattan Bank, as successor
in interest by merger to Chase Bank
of Texas, National Association,
individually as Lender, an Issuing
Bank, Swingline Lender, and as
Administrative Agent
By:_________________________________
Xxxxx X. Xxxxxx
Vice President
THE BANK OF NOVA SCOTIA
By:_________________________________
Name:____________________________
Title:___________________________
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THE BANK OF TOKYO-MITSUBISHI, LTD.
By:_________________________________
Name:____________________________
Title:___________________________
XXXXX FARGO BANK, N.A. (successor by
consolidation to Xxxxx Fargo Bank
Texas, N.A.)
By:_________________________________
Name:____________________________
Title:___________________________
BANK OF TEXAS, N.A.
By:_________________________________
Name:____________________________
Title:___________________________
BANK ONE, NA (successor by merger to
Bank One, Texas, N.A)
By:_________________________________
Name:____________________________
Title:___________________________
GUARANTY BANK
By:_________________________________
Name:____________________________
Title:___________________________
U.S. BANK NATIONAL ASSOCIATION
By:_________________________________
Name:____________________________
Title:___________________________
COMPASS BANK
By:_________________________________
Name:____________________________
Title:___________________________
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AGREEMENT, Page 5
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FIRST AMERICAN BANK, SSB
By:_________________________________
Name:____________________________
Title:___________________________
THE NORTHERN TRUST COMPANY
By:_________________________________
Name:____________________________
Title:___________________________
SOUTHWEST BANK OF TEXAS, N.A.
By:_________________________________
Name:____________________________
Title:___________________________
FLEET NATIONAL BANK
By:_________________________________
Name:____________________________
Title:___________________________
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Guarantor Consent
Each of the undersigned Guarantors: (i) consents and agrees to this
Amendment, including, without limitation, Section 4.2, and (ii) agrees that the
Loan Documents to which it is a party shall remain in full force and effect and
shall continue to be the legal, valid and binding obligations of such Guarantor
enforceable against it in accordance with their respective terms.
GUARANTORS:
LENNOX INDUSTRIES INC.
XXXXXXXXX AIR CONDITIONING INC.
EXCEL COMFORT SYSTEMS INC.
SERVICE EXPERTS INC.
LENNOX GLOBAL LTD.
LGL EUROPE HOLDING CO.
LGL AUSTRALIA (US) INC.
By:_________________________________
Name:____________________________
Title:___________________________
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SCHEDULE 4.12
to
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT FACILITY AGREEMENT
Required Lenders
LENDERS AGREEING TO FIRST AMENDMENT
(INSERT % FROM PRIOR COLUMN IF LENDER
REQUIRED LENDER SIGNS AMENDMENT THEN TOTAL % IN THIS
LENDER PERCENTAGE HELD COLUMN)
------------------------------------ --------------- -------------------------------------
JPMorgan Chase Bank 11.111111111% 11.000000000%
The Bank of Nova Scotia 11.000000000% 11.111111111%
The Bank of Tokyo - Mitsubishi, Ltd. 11.111111111%
Xxxxx Fargo Bank, N.A. 11.111111111% 11.111111111%
Bank of Texas, N.A. 8.888888889% 8.888888889%
Bank One, N.A. 6.666666667% 6.666666667%
Guaranty Bank 6.666666667% 6.666666667%
U.S. Bank National Association 6.666666667% 6.666666667%
Compass Bank 4.444444444% 4.444444444%
First American Bank, SSB 4.444444444% 4.444444444%
The Northern Trust Company 4.444444444% 4.444444444%
Southwest Bank of Texas, N.A. 4.444444444% 4.444444444%
Fleet National Bank 8.888888889% 8.888888889%
------------ ------------
TOTAL 100.00% 88.89%
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SCHEDULE 4.12, Solo Page
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