EXHIBIT 10.1
THIRD AMENDMENT TO 364 DAY REVOLVING CREDIT FACILITY AGREEMENT
THIS THIRD AMENDMENT TO 364 DAY REVOLVING CREDIT FACILITY AGREEMENT (the
"Amendment"), dated as of January 22, 2002, is among LENNOX INTERNATIONAL INC.,
a Delaware corporation (the "Borrower"), each of the lenders listed as a lender
or a terminating lender on the signatures pages hereto who is a party hereto,
JPMORGAN CHASE BANK (successor in interest by merger to The Chase Manhattan
Bank), as administrative agent (in such capacity, the "Administrative Agent")
and WACHOVIA BANK, N.A., a national banking association, as syndication agent
(in such capacity, the "Syndication Agent" and together with the Administrative
Agent, herein the "Agents").
RECITALS:
A. The Borrower, the Agents, The Bank of Nova Scotia as documentation agent
and certain lenders are party to that certain 364 Day Revolving Credit Facility
Agreement dated as of January 25, 2000 (as amended by that certain First
Amendment to 364 Day Revolving Credit Facility Agreement dated as of January 22,
2001 and that certain Second Amendment to 364 Day Revolving Credit Facility
Agreement dated as of June 29, 2001, herein the "Credit Agreement").
B. The Borrower has requested that the Credit Agreement be amended to,
among other things, extend the Maturity Date. In connection with such request,
the lenders listed on the signature pages hereto under the heading "Terminating
Lenders" who are currently lenders under the Credit Agreement (individually a
"Terminating Lender" and collectively the "Terminating Lenders") desire to allow
their respective Commitments to terminate in accordance with their terms and
JPMorgan Chase Bank and Wachovia Bank, N.A. have requested that the aggregate
amount of the remaining Commitments be reduced and reallocated between them. As
of the date hereof, no loans (other than swingline loans) nor any letters of
credit are outstanding under the Credit Agreement.
C. The Borrower, the Administrative Agent, JPMorgan Chase Bank, Wachovia
Bank, N.A., and the other parties hereto have agreed to amend the Credit
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:
ARTICLE 1
Definitions
Section 1.1 Definitions. Capitalized terms used in this Amendment and
defined in the Credit Agreement, to the extent not otherwise defined herein,
shall have the same meaning as in the Credit Agreement, as amended hereby.
1
ARTICLE 2
Amendments
Section 2.1 Amendment to references to "The Chase Manhattan Bank". All
references to The Chase Manhattan Bank in the Credit Agreement are amended to
read "JPMorgan Chase Bank, successor in interest by merger to The Chase
Manhattan Bank".
Section 2.2 Additions to Section 1.01. The following definitions are added
to Section 1.01 of the Credit Agreement in proper alphabetical order:
"Increase Amount" shall have the meaning assigned to such term in
Section 2.19
"Increased Commitment Supplement" shall have the meaning assigned to
such term in Section 2.19.
"New Lender" shall have the meaning assigned to such term in Section
2.19.
Section 2.3 Amendment to the terms "Lenders" and "Maturity Date" in Section
1.01. The terms "Lenders" and "Maturity Date" contained in Section 1.01 of the
Credit Agreement are amended in their respective entireties to read as follows:
"Lenders" means the parties listed on Schedule 2.01.
"Maturity Date" shall mean April 17, 2002.
Section 2.4 Amendment of Sections 2.19, 2.20 and 2.21. Sections 2.19, 2.20
and 2.21 of the Credit Agreement are deleted therefrom (and as a result thereof,
the Borrower, the Administrative Agent and the other parties hereto agree that
both the commitment of the Swingline Lender to make Swingline Loans to the
Borrower and the commitment of the Issuing Bank to issue Letters of Credit are
terminated) and a new Section 2.19 is added to the Credit Agreement to read in
its entirety as follows:
SECTION 2.19. Increase of Commitments. By written notice sent to
the Administrative Agent (which the Administrative Agent shall
promptly distribute to the Lenders), the Borrower may request an
increase of the aggregate amount of the Commitments by an aggregate
amount determined as follows (the "Increase Amount"): (i) an aggregate
amount equal to any integral multiple of $5,000,000 and not less than
$10,000,000 and (ii) an aggregate amount not to exceed $20,000,000;
provided that (i) no Default shall have occurred and be continuing,
(ii) the aggregate amount of the Commitments shall not have been
reduced, nor shall the Borrower have given notice of any such
reduction under Section 2.09, and (iii) the aggregate amount of the
Commitments shall not previously have been increased pursuant to this
Section 2.19. If one or more of the Lenders is not willing to increase
its Commitment (no Lender having any obligation to do so), then
another one or more financial institutions, each as approved by the
Borrower and the Administrative Agent (a "New Lender"), may commit to
provide an amount equal to the aggregate amount of the requested
increase that will not be provided by the existing Lenders; provided,
that (i) the Commitment of each New Lender shall be at least
$5,000,000; (ii) the maximum number of New Lenders shall be three (3);
and (iii) prior to the increase in the Commitments hereunder in
accordance with this Section 2.19, each of JPMorgan Chase Bank and
Wachovia Bank, N.A. shall have the option to assign to such New Lender
or New Lenders at least $5,000,000 of their respective Commitment in
2
accordance with Section 8.04(b) hereto (but without giving effect to
the minimum amount required to be assigned pursuant thereto), with the
aggregate amount to be so assigned: (i) not to exceed $10,000,000;
(ii) to be allocated equally as between JPMorgan Chase and Wachovia
Bank, N.A.; and (iii) to be allocated between or among the New Lenders
on a pro rata basis based on the proposed commitments of each. When
the Lenders, or sufficient Lenders and New Lenders, have agreed to
commit to an aggregate amount equal to the Increase Amount (or such
lesser amount as the Borrower shall agree, which shall be at least
$10,000,000 and an integral multiple of $5,000,000 in excess thereof),
then: provided that no Default exists at such time or after giving
effect to the requested increase, the Borrower, the Administrative
Agent and the Lenders willing to increase their respective Commitments
and the New Lenders (if any) shall execute and deliver an Increased
Commitment Supplement (herein so called) in the form attached hereto
as Exhibit F. Notwithstanding anything in Section 8.08 to the
contrary, no other Lender shall be required to consent or agree to the
modification of this Agreement pursuant to an Increased Commitment
Supplement executed in accordance with the terms of this Section 2.19.
If all existing Lenders shall not have provided their pro rata portion
of the requested increase, on the effective date of the Increased
Commitment Supplement the Lenders who have increased their Commitment
and, if applicable, the New Lenders shall deliver immediately
available funds to the Agent and the Agent shall deliver such funds to
the other Lenders, in each case in amounts sufficient so that after
giving effect thereto, the Loans shall be held by the Lenders pro rata
according to their respective Commitments. The amounts funded under
the foregoing sentence shall be deemed an ABR Loan and a continuation
and assignment of the Loans made by the Lenders receiving such funds.
The Borrower agrees to pay each Lender receiving such funds under the
foregoing sentence any amounts due under Section 8.05(b) arising from
the payment of any Eurodollar Loan prior to the end of the Interest
Period applicable thereto resulting from such receipt of funds.
In light of the foregoing deletion of the swingline facility under the Credit
Agreement, if any Swingline Loan is outstanding on the Effective Date (hereafter
defined), then on the Effective Date when all the conditions in Section 3.1 have
been satisfied, the Borrower shall be deemed to have requested a ABR Borrowing
under the Credit Agreement from the Lenders listed on Schedule 2.01, the
proceeds of which shall be used to repay such Swingline Loans. Subject to the
terms and conditions of the Credit Agreement as amended hereby, each Lender
listed on Schedule 2.01 agrees to make an ABR Loan for such purpose. The
Borrower's failure to repay such Swingline Loans shall be an Event of Default
under the Credit Agreement.
Section 2.5 Amendment to Schedule 2.01; Expiration of Terminating
Lenders Commitments. Schedule 2.01 to the Credit Agreement is amended in
its entirety to read as set forth on Schedule 2.01 attached hereto. In
accordance with the foregoing amendment to Schedule 2.01 and the amendment
to the definition of the term "Lenders" herein, the Borrower, the
3
Administrative Agent and the other parties hereto agree and acknowledge
that: (i) the Commitment of each Terminating Lender has expired and is
therefore terminated and of no further force of effect; (ii) all references
to the "Lenders" or any "Lender" in the Credit Agreement: (i) specifically
include only JPMorgan Chase Bank and Wachovia Bank, N.A. and (ii)
specifically exclude the Terminating Lenders. Each Terminating Lender
agrees that it shall no longer be a party to the Credit Agreement and, as a
result but subject to the next sentence, the Credit Agreement may be
amended without the consent or agreement of any Terminating Lender.
However, for all matters arising prior to the effective date of this
Amendment (including, without limitation, the accrual and payment of
interest and fees and matters relating to indemnification of the Lenders),
the terms of the Credit Agreement (as unmodified by this Amendment) shall
control and are hereby ratified and confirmed by the Borrower, the
Administrative Agent and the other parties hereto.
Section 2.6 Addition of Exhibit F. Exhibit F is added to the Credit
Agreement to read as set forth on Exhibit F attached hereto.
ARTICLE 3
Conditions
Section 3.1 Conditions. The effectiveness of Article 2 of this Amendment is
subject to the satisfaction of the following conditions precedent on or before
January 22, 2002 (the "Effective Date"):
(a) The Administrative Agent shall have received: (i) a certificate as
to the good standing of the Borrower as of a recent date from such Secretary of
State; (ii) a certificate of the Secretary or an Assistant Secretary of the
Borrower dated the Effective Date and certifying (A) that the Borrower's bylaws
previously certified to the Administrative Agent under the Assistant Secretary's
Certificate dated July 29, 1999 remain in full force and effect on and as of the
Effective Date without further modifications or amendments in any respect; (B)
attached thereto is a true and complete copy of resolutions, duly adopted by the
Board of Directors authorizing the execution, delivery and performance of this
Amendment and that such resolutions have not been modified, rescinded or amended
and are in full force and effect, (C) that the Articles of Incorporation dated
January 12, 2001 previously delivered to the Administrative Agent in January
2001 remain in full force and effect on and as of the Effective Date without
further modifications or amendments in any respect; and (D) as to the incumbency
and specimen signature of each officer executing this Agreement or any other
document delivered in connection herewith on behalf of the Borrower; (iii) a
certificate of another officer of the Borrower as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to (ii) above; and (iv) such other documents as the Lenders or the
Administrative Agent, shall reasonably request.
(b) The Administrative Agent and the Lenders shall have received all
fees and other amounts due and payable on or prior to the Effective Date.
(c) The Borrower shall have paid to the Administrative Agent all
unpaid interest and fees owed under the Credit Agreement as of the Effective
Date and each Terminating Lender shall have received the repayment in full of
all outstanding principal, all accrued and unpaid interest and fees and all
other outstanding amounts, in each case which are owed to it as of the Effective
Date.
(d) All representations and warranties contained in the Credit
Agreement (as amended hereby) shall be true, correct, and complete in all
material respects except for representations specifically relating to a prior
date;
(e) No Default or Event of Default shall have occurred and be
continuing;
(f) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all other agreements, documents,
and instruments executed and/or delivered pursuant hereto, and all legal matters
incident thereto, shall be satisfactory to the Administrative Agent and its
legal counsel;
4
(g) Payment or reimbursement to the Lenders, and the Agents of all
outstanding expenses, fees and other costs incurred by, or due to, the Lenders,
and the Agents for which such entity has presented an invoice to the Borrower
prior to the Effective Date; and
(h) The Administrative Agent shall have received such additional
agreements, certificates, documents, instruments and information as the
Administrative Agent or its legal counsel may request to effect the transactions
contemplated hereby.
ARTICLE 4
Miscellaneous
Section 4.1 Ratification. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Credit Agreement and except as expressly modified and superseded by
this Amendment, the terms and provisions of the Credit Agreement and the other
documents executed pursuant thereto are ratified and confirmed and shall
continue in full force and effect. Borrower, the Agents, and the other parties
hereto agree that the Credit Agreement as amended hereby and such other
documents shall continue to be legal, valid, binding and enforceable in
accordance with their respective terms.
Section 4.2 Representations and Warranties. Borrower hereby represents and
warrants to the Agents and the Lenders as follows: (a) after giving effect to
this Amendment, no Default or Event of Default has occurred and is continuing;
and (b) after giving effect to this Amendment, the representations and
warranties set forth in the Credit Agreement 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. All representations and warranties made in this Amendment
shall survive the execution and delivery of this Amendment, and no investigation
by any Agent or any Lender or any closing shall affect the representations and
warranties or the right of Agents or any Lender to rely upon them.
Section 4.3 Reference to Credit Agreement. Each of the agreements,
documents, or instruments now or hereafter executed and delivered pursuant to
the terms of the Credit Agreement are hereby amended so that any reference in
such agreements, documents or instruments to the Credit Agreement shall mean a
reference to the Credit Agreement as amended hereby.
Section 4.4 Fees and Expenses. In accordance with the terms of Section 8.05
of the Credit Agreement, the Borrower agrees to pay all costs and expenses
incurred by all Agents in connection with the preparation, negotiation and
execution of this Amendment, including, without limitation, the costs and fees
of legal counsel.
Section 4.5 Applicable Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas.
Section 4.6 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Agents, the Lenders, the Terminating Lenders
and Borrower and their respective successors and assigns.
Section 4.7 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.
5
Section 4.8 Headings. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
Section 4.9 ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO 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 DISCUSSION OF THE
PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
Section 4.10 Required Lenders. Pursuant to Section 8.08(b) of the Credit
Agreement, the Credit Agreement may be modified as provided in this Amendment
with the agreement of the Required Lenders which means lenders party to the
Credit Agreement prior to the date hereof having sixty-six and two-thirds
percent (66-2/3%) or more of the Total Commitments (such percentage applicable
to such 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 4.10 hereto.
Executed as of the date first written above.
Borrower:
LENNOX INTERNATIONAL INC.
By:
-----------------------------------------
Richard A. Smith, Executive Vice
President and Chief Financial Officer
Agents and Lenders:
-------------------
JPMORGAN CHASE BANK, as successor in
interest by merger to The Chase Manhattan
Bank, individually as Lender, Issuing Bank,
and as Administrative Agent
By:
-----------------------------------------
Allen King
Vice President
WACHOVIA BANK, N.A., individually as a
Lender and as Syndication Agent
By:
-------------------------------------
Name:
------------------------------------
Title:
------------------------------------
6
Terminating Lenders:
UBS AG, Stamford Branch, as a Terminating
Lender
By:
Name:
-------------------------------------
Title:
-------------------------------------
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
FIRST UNION NATIONAL BANK, as a Terminating
Lender
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
THE BANK OF NOVA SCOTIA,
individually as a Terminating Lender and as
documentation agent
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
ABN AMBO BANK, N.V., as a Terminating Lender
BY:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
U.S. BANK NATIONAL ASSOCIATION (formerly
Firstar Bank N.A.), as a Terminating Lender
By:
-------------------------------------
Gregory L. Dryden, Vice President
7
ROYAL BANK OF CANADA, as a Terminating
Lender
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
THE BANK OF NEW YORK, as a Terminating
Lender
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD., as a
Terminating Lender
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
THE NORTHERN TRUST COMPANY, as a Terminating
Lender
By:
-------------------------------------
Name:
-------------------------------------
Title:
8
CONSENT OF MATERIAL RESTRICTED SUBSIDIARIES
Each Material Restricted Subsidiary: (i) consents and agrees to this
Amendment; (ii) agrees that the Subsidiary Guaranty is in full force and effect
and continues to be its legal, valid and binding obligation enforceable in
accordance with its terms; and (iii) agrees that the obligations, indebtedness
and liabilities of the Borrower arising under the Credit Agreement as amended
hereby are "Guaranteed Obligations" as defined in the Subsidiary Guaranty.
LENNOX INDUSTRIES INC.
SERVICE EXPERTS INC.
ARMSTRONG AIR CONDITIONING INC.
EXCEL COMFORT SYSTEMS INC.
By:
-----------------------------------------
Richard A. Smith, Authorized Officer for
each of the foregoing companies
9
INDEX TO SCHEDULES AND EXHIBITS
Schedule 4.10 Required Lender Percentage
Exhibit F Increased Commitment Supplement
Schedule 2.01 Commitments
SOLO
Schedule 4.10
to
Third Amendment to Credit Agreement
REQUIRED LENDER PERCENTAGE
=========================================================================================
Required Lender Lenders Agreeing to Amendment
Percentage Held (insert % from prior column if
Lender Prior to the Lender signs this Amendment then
Effective Date total percentages in this column)
=========================================================================================
The Chase Manhattan Bank 13.5385% 13.5385%
-----------------------------------------------------------------------------------------
Wachovia Bank, N.A 12.9231% 12.9231%
----------------------------------------- -----------------------------------------------
The Bank of Nova Scotia 9.2308% 9.2308%
-----------------------------------------------------------------------------------------
ABN AMRO BANK, N.V. 7.6923% 7.6923%
-----------------------------------------------------------------------------------------
First Union National Bank 12.3077% 12.3077%
-----------------------------------------------------------------------------------------
Firstar Bank N.A. 9.2308% 9.2308%
-----------------------------------------------------------------------------------------
Royal Bank of Canada 9.8462% 9.8462%
-----------------------------------------------------------------------------------------
The Bank of New York 3.0769% 3.0769%
-----------------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi, Ltd. 3.0769% 3.0769%
-----------------------------------------------------------------------------------------
The Northern Trust Company 3.6923% 3.6923%
-----------------------------------------------------------------------------------------
UBS AG, Stamford Branch 15.3846% 15.3846%
=========================================================================================
TOTAL 100.00%
=========================================================================================
SOLO
EXHIBIT F
INCREASED COMMITMENT SUPPLEMENT
This INCREASED COMMITMENT SUPPLEMENT (this "Supplement") is dated as
of ____________, ___ and entered into by and among LENNOX INTERNATIONAL INC., a
Delaware corporation (the "Borrower"), each of the banks or other lending
institutions which is a signatory hereto (the "Lenders"), JPMORGAN CHASE BANK
(successor in interest by merger to The Chase Manhattan Bank), as agent for
itself and the other Lenders (in such capacity, together with its successors in
such capacity, the "Agent"), and is made with reference to that certain 364 Day
Revolving Credit Facility Agreement dated as of January 25, 2000 (as amended,
the "Credit Agreement"), by and among the Borrower, the Administrative Agent,
and the Lenders. Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, pursuant to Section 2.19 of the Credit Agreement, the Borrower and
the Lenders are entering into this Increased Commitment Supplement to provide
for the increase of the aggregate Commitments;
WHEREAS, each Lender [party hereto and already a party to the Credit
Agreement] wishes to increase its Commitment [,and each Lender, to the extent
not already a Lender party to the Credit Agreement (herein a "New Lender"),
wishes to become a Lender party to the Credit Agreement];1
WHEREAS, the Lenders are willing to agree to supplement the Credit
Agreement in the manner provided herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. Increase in Commitments. Subject to the terms and conditions
hereof, each Lender severally agrees that its Commitment shall be increased to
[or in the case of a New Lender, shall be] the amount set forth opposite its
name on the signature pages hereof.
Section 2. [New Lenders. Each New Lender (i) confirms that it has received
a copy of the Credit Agreement, together with copies of the most recent
financial statements of the Borrower delivered under Section 5.20 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Supplement; (ii) agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Lender or any of their Affiliates and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Supplement; (iii) agrees that it will, independently and without
reliance upon the Administrative Agent, any other Lender or any of their
Affiliates and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (v) agrees that it is a
__________________
[1] Bracketed alternatives should be included if there are New Banks.
1
"Lender" under the Credit Agreement and will perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender.]
Section 3. Conditions to Effectiveness. Section 1 of this Supplement shall
become effective only upon the satisfaction of the following conditions
precedent:
(a) receipt by the Administrative Agent of an opinion of counsel
to the Borrower as to the matters referred to in Sections 3.01, 3.02,
3.03 and 3.04 of the Credit Agreement (with the term "Agreement" as
used therein meaning this Supplement for purposes of such opinion),
dated the date hereof, satisfactory in form and substance to the
Administrative Agent.
(b) receipt by the Administrative Agent of certified copies of
all corporate action taken by the Borrower to authorize the execution,
delivery and performance of this Supplement; and
(c) receipt by the Administrative Agent of a certificate of the
Secretary or an Assistant Secretary of the Borrower certifying the
names and true signatures of the officers of the Borrower authorized
to sign this Supplement and the other documents to be delivered
hereunder.
Section 4. Representations and Warranties. In order to induce the Lenders
to enter into this Supplement and to supplement the Credit Agreement in the
manner provided herein, Borrower represents and warrants to Agent and each
Lender that (a) the representations and warranties contained in Article 3 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the effective date hereof to the same extent as though
made on and as of that date and for that purpose, this Supplement shall be
deemed to be the Agreement referred to therein, and (b) no event has occurred
and is continuing or will result from the consummation of the transactions
contemplated by this Supplement that would constitute a Default.
Section 5. Effect of Supplement. The terms and provisions set forth in this
Supplement shall modify and supersede all inconsistent terms and provisions set
forth in the Credit Agreement and except as expressly modified and superseded by
this Supplement, the terms and provisions of the Credit Agreement are ratified
and confirmed and shall continue in full force and effect. The Borrower, the
Administrative Agent, and the Lenders party hereto agree that the Credit
Agreement as supplemented hereby shall continue to be legal, valid, binding and
enforceable in accordance with their respective terms. Any and all agreements,
documents, or instruments now or hereafter executed and delivered pursuant to
the terms hereof or pursuant to the terms of the Credit Agreement as
supplemented hereby, are hereby amended so that any reference in such documents
to the Agreement shall mean a reference to the Agreement as supplemented hereby.
Section 6. Applicable Law. This Supplement shall be governed by, and
construed in accordance with, the laws of the State of Texas and applicable laws
of the United States of America.
Section 7. Counterparts, Effectiveness. This Supplement may be executed in
any number of counterparts, by different parties hereto in separate counterparts
and on telecopy counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall constitute but
one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document. This Supplement (other than
the provisions of Section 1 hereof, the effectiveness of which is governed by
Section 3 hereof) shall become effective upon the execution of a counterpart
hereof by the Borrower, the Lenders and receipt by the Borrower and the
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
2
Section 8. ENTIRE AGREEMENT. THIS SUPPLEMENT EMBODIES THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDE
ANY AND ALL PREVIOUS COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF
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
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
LENNOX INTERNATIONAL INC.
By:
-----------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
New Total Commitment:
$__________________ JPMORGAN CHASE Bank (successor in interest
by merger to The Chase Manhattan Bank),
[individually as a Lender and] as the
Administrative Agent
By:
-----------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
$______________________ [Existing Lender]
By:
-----------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
$______________________ [NEW LENDER]
By:
-----------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
3
Each Material Restricted Subsidiary: (i) consents and agrees to this
Supplement; (ii) agrees that the Subsidiary Guaranty is in full force and effect
and continues to be its legal, valid and binding obligation enforceable in
accordance with its terms; and (iii) agrees that the obligations, indebtedness
and liabilities of the Borrower arising as a result of the increase in the
Commitments contemplated hereby are "Guaranteed Obligations" as defined in the
Subsidiary Guaranty.
LENNOX INTERNATIONAL INC.
SERVICE EXPERTS INC.
ARMSTRONG AIR CONDITIONING INC.
EXCEL COMFORT SYSTEMS INC.
By:
-----------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
4
Schedule 2.01
================================================================================
Lender Name Commitment as of Title
January 22,2002
================================================================================
JPMorgan Chase Bank $15,000,000.00 Administrative Agent
- --------------------------------------------------------------------------------
Wachovia Bank, N.A. $15,000,000.00 Syndication Agent
================================================================================
Total $30,000,000.00
================================================================================