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FIRST AMENDMENT TO CREDIT AGREEMENT
Dated as of May 13, 1998
Between
INTERNATIONAL COMFORT PRODUCTS CORPORATION (CANADA)
(formerly known as Inter-City Products Corporation (Canada))
as Borrower and Loan Party
and
▇.▇. ▇▇▇▇▇▇▇▇ SUPPLY LIMITED,
as Loan Party
and
LENDER OR LENDERS NAMED IN
THE CREDIT AGREEMENT
as Lenders
and
GENERAL ELECTRIC CAPITAL CANADA INC.
as Agent
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FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement dated as of May 13, 1998 (this
"FIRST AMENDMENT") between INTERNATIONAL COMFORT PRODUCTS CORPORATION
(CANADA) (formerly known as Inter-City Products Corporation (Canada)), a
Canada Corporation ("BORROWER"), ▇.▇. ▇▇▇▇▇▇▇▇ SUPPLY LIMITED, an Ontario
corporation, ("MCDONALD"), each of the lenders listed on the signature pages
hereof or which pursuant to Section 10.2 of the Credit Agreement becomes a
"Lender" (each, a "LENDER", and, collectively, "LENDERS"), and GENERAL
ELECTRIC CAPITAL CANADA INC., a Canada corporation, as agent hereunder for
Lenders (in such capacity, together with its successors in such capacity,
"AGENT").
RECITALS
A. Borrower, McDonald, Agent and the Lender are parties to a Credit
Agreement dated as of December 19, 1996 (the "ORIGINAL CREDIT AGREEMENT".
B. The Borrower has requested that Agent and Lender amend the Original
Credit Agreement in order to permit certain Restricted Payments by Borrower
to the Borrower's holding body corporate, ICP.
C. Agent and Lender have agreed to grant the Borrower's request and amend
the Original Credit Agreement for the purpose described in Recital B of this
First Amendment upon the terms and conditions set out in this First
Amendment.
FOR VALUE RECEIVED, the parties agree as follows:
SECTION 1 -- INTERPRETATION
1.1 DEFINITIONS. In addition to the defined terms appearing above,
capitalized terms used in this First Amendment have (unless otherwise
provided elsewhere in this First Amendment) the meanings given to them in the
Original Credit Agreement (as amended, restated, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT").
1.2 INCORPORATION INTO ORIGINAL CREDIT AGREEMENT. The Original Credit
Agreement and this First Amendment shall henceforth be read together and
shall have the effect as if all the provisions of such agreements were
contained in one instrument.
1.3 SECTION TITLES. The Section titles and Table of Contents contained
in this First Amendment are and shall be without substantive meaning or
content of any kind whatsoeverand are not a part of this First Amendment.
1.4 INTREPRETATION. Except as otherwise provided for herein, the rules
of construction set forth in Annex A of the Credit Agreement shall govern the
interpretation of this First Amending Agreement. References to Sections
contained in the text of this First Amendment, unless otherwise indicated,
are references to the Credit Agreement.
SECTION 2 -- REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATONS AND WARRANTIES. To induce Agent and Lender to enter
into this First Amendment, Borrower makes the following representations and
warranties to Agent and Lender with respect to itself and McDonald, and
McDonald makes the following representations and warranties to Agent and
Lender, which representations and warranties shall continue to be effective
as of and after the Effective Date and shall be continuously made until the
Termination Date:
(1) the execution, delivery and performance by each Loan Party of
this First Amendment are within the corporate powers of the
applicable Loan Party, have been duly authorized by all
necessary corporate and shareholder action, are not in
contravention of any provision of any Loan Partys articles,
certificate of incorporation, bylaws or other organizational
documents, will not violate any Applicable Laws, will not
conflict with or result in the breach or termination of,
constitute a default under or accelerate any performance
required by any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which any Loan Party is a party
or by which any Loan Party or any of its property is bound, will
not result in the creation or imposition of any Lien upon any of
the property of any Loan Party; and do not require the consent
or approval of any Governmental Body or any other Person;
(2) this First Amendment has been duly authorized, executed and
delivered by each Loan Party and this First Amendment and the
Original Credit Agreement, as amended by this First Amendment,
constitute legal, valid and binding obligations of each Loan
Party, enforceable against each Loan Party in accordance with
their terms, subject to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors rights generally; and
(3) after giving effect to this First Amendment, no Default or Event
of Default shall have occurred and be continuing.
2.2 REPRESENTATIONS AND WARRANTIES IN CREDIT AGREEMENT. The Loan
Partiesrepresent and warrant that the representations and warranties
contained in the Credit Agreement are or were correct on the dates made or
deemed to be made.
SECTION 3 -- CONDITIONS PRECEDENT
3.1 CONDITIONS TO THE EFFECTIVENESS OF THE FIRST AMENDMENT. This First
Amendment shall become effective on the date upon which the following
conditions have been fulfilled to the satisfaction of the Agent (the
"EFFECTIVE DATE"):
(1) this First Amendment or counterparts thereof shall have been
duly executed by, and delivered to, each Loan Party, Agent and
Lender;
(2) the Agent shall have received copies of and be satisfied with
the form and substance of the the following:
i. a true and correct copy of the ICP Holdings Offering
Memorandum; and
ii. a true and correct copy of the provisions of any
agreement binding upon ICP which restricts or could
potentially restrict any payment of funds by ICP by way
of investment, loan or otherwise to the Borrower.
SECTION 4 -- AMENDMENTS
4.1 AMENDMENTS TO SECTION 6.15 - RESTRICTED PAYMENTS. On and after the
Effective Date, Section 6.15 is amended and restated as follows:
6.15 RESTRICTED PAYMENTS. No Loan Party shall make any Restricted
Payment to any Person, other than:
(a) Restricted Payments to Affiliates who are individuals and
serve as directors, officers or employees of any Loan Party
consisting of reasonable compensation or indemnification of
such Affiliates in the ordinary course and consistent with
past practice and Applicable Laws;
(b) after receipt by Agent of the audited consolidated financial
statements of Borrower referred to in ANNEX E for a Fiscal
Year of Borrower and a certificate of the Director of Finance
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of Borrower satisfactory to Agent certifying that no Default
or Event of Default has occurred that is continuing or would
occur as a result of any proposed Restricted Payment and
certifying in reasonable detail the Borrower's compliance on
a pro-forma basis with the financial covenants in Annex G
after making the proposed Restricted Payment, Restricted
Payments by Borrower to ICP not exceeding in the aggregate
the lesser of: (i) the EBITDA of Borrower for such Fiscal
Year based on such audited financial statements, and (ii) the
aggregate of the mandatory scheduled semi-annual interest
payments of ICP Holdings pursuant to the ICP Holdings Notes
during the Fiscal Year of Borrower following such Fiscal
Year; provided that, no Default or Event of Default has
occurred that is continuing or would result from any
Restricted Payment and Borrowing Availability immediately
after making any Restricted Payment would not be less than
CDN$1,500,000.
(d) payments by Borrower to ▇▇▇▇▇▇▇ on account of the ▇▇▇▇▇▇▇
Indebtedness to the extent permitted by the ▇▇▇▇▇▇▇
Postponement, Subordination and Assignment Agreement; and
(e) payments by any Loan Party on account of any other
Indebtedness (not mentioned above) of that Loan Party to the
extent permitted under Section 6.3.
SECTION 5 -- AMENDMENTS TO ANNEXES TO CREDIT AGREEMENT
5.1 AMENDMENTS TO SECTION 1 OF ANNEX A - DEFINITIONS; RULES OF
CONSTRUCTION.
(1) INSERTION OF DEFINITION - "ICP HOLDINGS". On and after the Effective
Date, the definition of "ICP HOLDINGS" is inserted into Annex A to the
Original Credit Agreement immediately after the definition of "ICP (USA)
Acknowledgment and Consent" as follows:
ICP HOLDINGS means International Comfort Products Holdings, Inc., a
wholly owned subsidiary of ICP.
(2) INSERTION OF DEFINITION -- "ICP HOLDINGS NOTES". On and after the
Effective Date, the definition of "ICP HOLDINGS NOTES" is inserted into Annex
A to the Original Credit Agreement immediately after the definition of "ICP
Holdings" as follows:
ICP HOLDINGS NOTES means the senior notes and the exchange notes
issued in exchange therefore, due 2008, in the original aggregate
principal amount of USD$150,000,000 and in a maximum aggregate
principal amount of USD$225,000,000, bearing interest at the rate of
8.625% per annum, unconditionally guaranteed on a senior basis by
ICP, issued or to be issued under the ICP Holdings Offering
Memorandum.
(3) INSERTION OF DEFINITION -- "ICP HOLDINGS OFFERING MEMORANDUM". On
and after the Effective Date, the definition of "ICP HOLDINGS OFFERING
MEMORANDUM" is inserted into Annex A to the Original Credit Agreement
immediately after the definition of "ICP Holdings" Notes as follows:
ICP HOLDINGS OFFERING MEMORANDUM means the Final Offering Memorandum
of ICP Holdings dated May 8, 1998 pursuant to which the ICP Notes
have been or will be issued.
SECTION 6 -- REAFFIRMATION OF GUARANTEES AND OTHER LOAN DOCUMENTS
6.1 REAFFIRMATION. The Borrower and each of the Loan Parties acknowledge
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and agree that all of the Loan Documents executed and delivered pursuant to
the Original Credit Agreement remain in full force and effect and hereby
reaffirm all of the terms thereof.
SECTION 7 MISCELLANEOUS
7.1 AMENDMENT OF ORIGINAL CREDIT AGREEMENT. The Original Credit
Agreement has not been amended or otherwise modified in any respect except
pursuant to this First Amendment, and the Original Credit Agreement,
asamended by this First Amendment, is in full force and effect.
7.2 REMEDIES. The rights and remedies of Agent and Lender under this
First Amendment shall be cumulative and nonexclusive of any other rights and
remedies which Agent or any Lender may have under any other agreement,
including the Loan Documents, by operation of law or otherwise. Recourse to
the Collateral shall not be required.
7.3 SEVERABILITY. Wherever possible, each provision of this First
Amendment shall be interpreted in such manner as to be effective and valid
under Applicable Laws, but if any provision of this First Amendment shall be
prohibited by or invalid under Applicable Laws, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this First Amendment.
7.4 ENUREMENT. This First Amendment shall be binding upon and shall
enure to the benefit of, each Loan Party, Agent and Lender and their
respective successors and the assigns, transferees and endorsees of Agent and
any Lender. Nothing in this First Amendment, express or implied, shall give
to any Person, other than the parties hereto and their successors and assigns
hereunder, any benefit or any legal or equitable right, remedy or claim under
this First Amendment.
7.5 FURTHER ASSURANCES. Each Loan Party shall, from time to time, upon
each request by Agent, and Agent and Lender shall, from time to time, upon
each request by any Loan Partyto Agent, at the Loan Party's cost and expense
in each case, make, do, execute, or cause to be made, done or executed, all
such further and other lawful acts, documents and assurances whatsoever which
Agent or Loan Party, respectively, reasonably determines may be necessary in
order to give effect to the provisions, purpose and intent of this First
Amendment and to complete the transactions contemplated by this First
Amendment.
7.6 GOVERNING LAW. Except as otherwise provided in any of the Loan
Documents, in all respects, including all matters of construction, validity
and performance, this First Amendment and the obligations arising hereunder
shall be governed by, and construed and enforced in accordance with, the laws
of the Province of Ontario applicable to contracts made and performed in such
Province, and any laws of Canada applicable therein. Each Loan Party hereby
consents and agrees that the courts located in the Province of Ontario shall
have non-exclusive jurisdiction to hear and determine any claims or disputes
between such Loan Party, Agent and Lender pertaining to this First Amendment
or to any matter arising out of or relating to this First Amendment; PROVIDED
that nothing in this First Amendment shall be deemed to or shall operate to
preclude Agent from bringing suit or taking other legal action in any other
jurisdiction to realize on the Collateral or any other security for the
obligations or to enforce a judgment or other court order in favour of Agent.
Each Loan Party expressly submits and consents in advance to such
jurisdiction in any action or suit commenced in any such court and each Loan
Party hereby waives any objection which such Loan Party may have based upon
lack of personal jurisdiction, improper venue or forum non conveniens and
hereby consents to the granting of such legal or equitable relief as is
deemed appropriate by such court. Each Loan Party hereby waives personal
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service of process issued in any such action or suit and agrees that service
of process may be made by registered or certified mail addressed to such Loan
Party at the address set forth in Section 11.10 of the Credit Agreement and
that service so made shall be deemed completed upon the earlier of Borrower'
actual receipt thereof or three Business Days after deposit in the Canadian
mail, proper postage prepaid; PROVIDED, however, that if service of a process
has been made by mail and before the third Business Day after mailing there
is a discontinuance or interruption of regular postal service so that such
service of process cannot be reasonably expected to be completed within three
Business Days after mailing, such service of process shall be deemed to have
been completed upon the Loan Party' actual receipt thereof.
7.7 LOAN DOCUMENTS. For greater certainty, this First Amendment
constitutes a Loan Document.
7.8 COUNTERPARTS. This First Amendment may be executed in any number of
separate counterparts which, collectively, shall constitute one First
Amendment.
IN WITNESS WHEREOF the parties have executed this First Amendment as of
the date first written above.
INTERNATIONAL COMFORT PRODUCTS
CORPORATION (CANADA)
By:
-----------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇▇▇ SUPPLY LIMITED
By:
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Name:
Title:
GENERAL ELECTRIC CAPITAL CANADA
INC., as Agent
By:
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Name:
Title:
GENERAL ELECTRIC CAPITAL CANADA
INC., as Lender
By:
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Name:
Title:
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