EXHIBIT 10.1
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT FACILITY AGREEMENT
This THIRD AMENDMENT TO SECOND
AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT (“
Amendment ”) is made effective as of the 3
rd day
of August, 2007 (the “ Amendment Effective Date
”), by and between LENNOX INTERNATIONAL INC., a Delaware
corporation (the “ Borrower ”), BANK OF
AMERICA, N.A. (“ Bank of America ”), as
Administrative Agent for the Lenders (in such capacity, the “
Administrative Agent ”), and the Lenders which
are parties hereto.
W I T
N E S S E T H :
WHEREAS, the Borrower on July 8,
2005 entered into that certain Second Amended and Restated
Revolving Credit Facility Agreement, as amended by that certain
First Amendment to Second Amended and Restated Revolving Credit
Facility Agreement, dated as of August 17, 2006, and as
further amended by that certain Second Amendment to Second Amended
and Restated Revolving Credit Facility Agreement, dated as of
January 11, 2007 (as the same may be further amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”), with the
Administrative Agent and the Lenders governing the loans described
therein (collectively, the “ Loan
”);
WHEREAS, to evidence the Loan, the
Borrower executed certain promissory notes (collectively, the
“ Notes ”) dated of even date with the
Credit Agreement and made payable to the order of certain of the
Lenders;
WHEREAS, the Credit Agreement, the
Guaranty, the Notes and all other documents, agreements,
certificates and instruments representing, evidencing or securing
the Loan are collectively referred to herein as the “
Loan Documents ”;
WHEREAS, the Borrower and each of the
Guarantors have requested that the Administrative Agent and the
Lenders acknowledge and consent in all respects to (a) the
execution, delivery and performance by the Borrower and the
Guarantors of a three hundred sixty-four day unsecured credit
facility with Bank of America, N.A. as administrative agent,
pursuant to which the Borrower may obtain revolving credit loans in
the aggregate principal amount not to exceed $300,000,000 at any
time outstanding for the purpose of repurchasing issued and
outstanding shares of its common stock (the “ Bridge
Credit Agreement ”), (b) the execution, delivery
and performance by the Guarantors of a guaranty agreement
unconditionally and irrevocably guaranteeing the prompt and
complete payment and performance of all of the obligations of the
Borrower under the Bridge Credit Agreement (the “
Bridge Guaranty ”), and (c) the
consummation of the transactions contemplated pursuant to the
Bridge Credit Agreement and the Bridge Guaranty and such other
documents, agreements, instruments and certificates executed in
connection with the Bridge Credit Agreement and the Bridge Guaranty
(the documents and agreements referred to in clauses (a) –
(c) above are collectively referred to hereinafter as the “
Bridge Transaction Documents ”);
WHEREAS, the Administrative Agent and
the Lenders have agreed to consent to the Bridge Transaction
Documents and the consummation of the transactions contemplated
thereby and amend the Credit Agreement for the purpose of providing
the Borrower with the ability to repurchase an additional amount of
its issued and outstanding common stock upon the terms and
conditions set forth herein.
NOW, THEREFORE, for and in
consideration of the premises and the mutual covenants and
agreements contained herein and in the Credit Agreement, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows.
ARTICLE I.
Definitions and References
1.1 Terms Defined in the Credit
Agreement . Unless the context otherwise requires or unless
otherwise expressly defined herein, the terms defined in the Credit
Agreement shall have the same meanings whenever used in this
Amendment.
ARTICLE II.
Amendments to Credit Agreement
2.1 Defined Terms .
Section 1.01 of the Credit Agreement is hereby amended
by adding thereto the following defined term in its appropriate
alphabetical order:
“‘ Bridge Credit
Facility ’ means a three-hundred sixty-four day revolving
credit facility with Bank of America, N.A., as administrative
agent, in an aggregate principal amount not to exceed $300,000,000
at any time outstanding for the purpose of repurchasing issued and
outstanding shares of the Borrower’s common
stock.”
2.2 Section 3.12 .
Section 3.12 of the Credit Agreement is hereby amended
in its entirety to read as follows:
“Section 3.12. Use of
Proceeds . The Borrower will apply the proceeds of the Loans to
refinance existing indebtedness, for capital expenditures, to make
acquisitions, for working capital and for other general corporate
purposes, including, without limitation, the repurchase of issued
and outstanding shares of its common stock. The Letters of Credit
shall be issued to support transactions of the Borrower and the
Subsidiaries entered into in the ordinary course of
business.”
2.3 Section 3.15 .
Section 3.15 of the Credit Agreement is hereby amended
in its entirety to read as follows:
“Section 3.15. Margin
Regulations; Investment Company Act .
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(a) No
part of the proceeds of any Borrowing or drawing under any Letter
of Credit, and no other extensions of credit hereunder, will be
used for any purpose that violates the provisions of Regulations T,
U, or X of the Board. Following the application of the proceeds of
each Borrowing or drawing under each Letter of Credit, not more
than 25% of the value of the assets subject to the restrictions of
Section 5.13 (either of the Borrower only or of the
Borrower and its Subsidiaries on a consolidated basis) will be
margin stock.
(b) If
requested by any Lender or the Administrative Agent, the Borrower
will execute and furnish to the Administrative Agent and each
Lender a FR Form G-3 or FR Form U-1, as applicable, referred
to in Regulation U of the Board.
(c)
Neither the Borrower nor any Subsidiary is subject to regulation
under the Investment Company Act of 1940, as amended.”
2.4 Section 5.12 .
Section 5.12 of the Credit Agreement is hereby amended
by (i) deleting the word “and” located at the end
of clause (p) thereof, (ii) deleting the period located
at the end of clause (q) thereof and substituting in lieu
thereof the phrase “; and”, and (iii) adding to
the end thereof a new clause (r) that reads as follows:
“(r) Indebtedness of the
Borrower and any Guarantee thereof by any Subsidiary (other than
the Insurance Subsidiary) under the Bridge Credit
Facility.”
2.5 Section 5.13 .
Section 5.13 of the Credit Agreement is hereby amended
by (i) adding to the end of the second parenthetical located
in the lead in to Section 5.13 the phrase “but
excluding any shares of the Borrower’s common stock
repurchased by the Borrower” and (ii) adding the
following sentence to the end of Section 5.13 :
“For the avoidance of doubt, any issued and outstanding
common stock of the Borrower repurchased by the Borrower is not
deemed to be any property or asset of the Borrower for purposes of
this Section 5.13 , and therefore, is not subject to
the restrictions contained in this Section 5.13
.”
2.6 Section 5.14 .
Section 5.14 of the Credit Agreement is hereby amended
in its entirety to read as follows:
“ Restricted Payments .
The Borrower will not, and will not permit any of its Subsidiaries
to declare or make, or incur any liability to declare or make, any
Restricted Payment, except: (a) Subsidiaries may declare and
pay dividends ratably with respect to the Equity Interests they
have issued and (b) the Borrower may declare and pay dividends
and repurchase shares of its common stock during any fiscal quarter
as long as on the date of determination:
(i) no Default or Event of Default
exists or would result therefrom; and
(ii) the sum of (A) the amount
of the dividends or repurchases proposed to be made in such fiscal
quarter, plus (B) the aggregate amount of the
3
dividends and
repurchases previously made by the Borrower in the same fiscal
quarter, and (C) the aggregate amount of all dividends and
repurchases made in the prior three fiscal quarters does not exceed
an amount equal to the greater of (1) fifty percent
(50%) of Consolidated Net Income (calculated for the four fiscal
quarters then most recently ended prior to the date of
determination) or (2) $40,000,000;
provided
, however , that in addition to the share repurchases
permitted by clause (b)(ii) above, the Borrower may make additional
repurchases of its issued and outstanding common stock in an
aggregate amount not to exceed the sum of (1) fifty percent
(50%) of the principal amount of the Subordinated Notes converted
into common stock of the Borrower on or prior to October 6,
2005, plus (2) on or after August 17, 2006,
$550,000,000.”
2.7 Section 5.15 .
Subpart (c) of Section 5.15 of the Credit
Agreement is hereby amended in its entirety to read as
follows:
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