EXHIBIT 10.2
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT, dated as of June
16, 2003 (this "Amendment"), is entered into by and among LPAC CORP., as the
purchaser (the "LPAC Corp."), Lennox Industries Inc., as a seller ("Lennox"),
Armstrong Air Conditioning Inc., as a seller ("Armstrong"), Advanced Distributor
Products LLC, as a seller ("Advanced Distributor") and Heatcraft Refrigeration
Products LLC, as a seller ("Heatcraft Refrigeration"). Capitalized terms used
and not otherwise defined herein are used as defined in the Agreement (as
defined below and amended hereby).
WHEREAS, the parties hereto have entered into that certain Purchase and
Sale Agreement, dated as of June 19, 2000 (as amended by the First Amendment
dated as of June 7, 2002 and Omnibus Amendment No. 1 dated as of January 31,
2003 or as otherwise amended, supplemented or otherwise modified from time to
time, the "Agreement");
WHEREAS, pursuant to that certain Sale and Assignment Agreement (the
"Sale and Assignment Agreement"), dated as of June 16, 2003 by and between LPAC
Corp. and Armstrong, LPAC Corp. has sold all of its right title and interest to
Receivables acquired from Armstrong, together with all Related Security thereto,
to Armstrong;
WHEREAS, Armstrong shall no longer be a Seller under the Agreement;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. Amendments.
The Agreement is, as of the Amendment Effective Date defined in Section
3 hereof, and subject to the satisfaction of the conditions precedent set forth
in Section 3 hereof, hereby amended as follows:
(a) Section 1.2(c) of the Agreement is hereby amended by placing
the words (collectively, the "Originator Collateral") after the word "created,"
where it appears in the eleventh line therein.
(b) Section 5.1(k) of the Agreement is hereby amended and restated
in its entirety to read as follows:
(k) Quality of Title.
(i) This Agreement creates a valid and
continuing security interest (as defined in the applicable
UCC) in the Originator Collateral transferred by such
Originator in favor of the Administrative Agent for the
benefit of the Secured Parties, which security interest is
prior to all other Liens, and is enforceable as such as
against creditors of and purchasers from such Originator;
(ii) The Originator Collateral transferred by
such Originator hereunder constitutes "accounts" within the
meaning of the applicable UCC;
(iii) Such Originator owns and has good and
marketable title to the Original Collateral transferred by it
hereunder free and clear of any Lien, claim or encumbrance of
any Person;
(iv) Other than the security interest granted to
the Company pursuant to this Agreement, such Originator has
not pledged, assigned, sold, granted a security interest in,
or otherwise conveyed any of the Original Collateral
originated by it. Such Originator has not authorized the
filing of and is not aware of any financing statements against
it that include a description of collateral covering the
Originator Collateral transferred by it hereunder other than
any financing statement (1) in favor of it in accordance with
the Contracts, (2) in favor of the Company in accordance with
this Agreement, (3) in favor of the Administrative Agent for
the benefit of the Secured Parties in accordance with the
Receivables Purchase Agreement or in connection with any Lien
arising solely as the result of any action taken by the
Secured Parties (or any assignee thereof) or by the
Administrative Agent.
(c) Section 6.1(a) of the Agreement is hereby amended and restated
in its entirety to read as follows:
(a) Organization and Good Standing; Ownership.
Its jurisdiction of organization is correctly set forth in the
Schedule 5.1(a). It is duly organized and is a "registered
organization" as defined in the UCC under the laws of that
jurisdiction and no other state or jurisdiction, and such
jurisdiction must maintain a public record showing the
organization to have been organized. It is validly existing as
a corporation in good standing under the laws of its state of
organization, with power and authority to own its properties
and to conduct its business as such properties are presently
owned and such business is presently conducted.
(d) Section 6.3(d) of the Agreement is hereby amended and restated
in its entirety to read as follows:
(d) Change of Name; Jurisdiction of
Organization; Offices and Records. Change (i) its name as it
appears in official filings in the jurisdiction of its
organization, (ii) its status as a "registered organization"
(within the meaning of Article 9 of any applicable enactment
of the UCC), (iii) its organizational identification number,
if any, issued by its jurisdiction of organization, or (iv)
its jurisdiction of organization unless it shall have: (A)
given the Company and the
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Agents at least forty-five (45) days' prior written notice
thereof; (B) at least ten (10) days prior to such change,
delivered to the Company and the Agents all financing
statements, instruments and other documents requested by the
Agents in connection with such change or relocation and (C)
caused an opinion of counsel acceptable to the Company and the
Agents and their respective assigns to be delivered to the
Company and the Agents and such assigns that Administrative
Agent's security interest (for the benefit of the Secured
Parties) is perfected and of first priority, such opinion to
be in form and substance acceptable to the Company and the
Agents and such assigns in their sole discretion.
(e) Article IX of the Agreement is hereby deleted in its entirety.
(f) Exhibit C referred to in, and attached to the Sale Agreement
is hereby deleted and replaced in its entirety with the revised Exhibit C
attached hereto.
(g) A new Schedule 5.1(a) attached hereto is hereby added to the
Sale Agreement.
(h) Schedule 5.1(n) referred to in, and attached to, the Sale
Agreement, is hereby deleted and replaced in its entirety with the revised
Schedule 5.1(n) attached hereto.
(i) Schedule 10.2 referred to in, and attached to, the Sale
Agreement, is hereby deleted and replaced in its entirety with the revised
Schedule 10.2 attached hereto.
SECTION 2. Release and Further Assurances.
(a) Effective as of the Effective Date, all references to
Armstrong in the Agreement shall be deemed stricken and of no further force or
effect, Armstrong shall cease to be a party to the Agreement and Armstrong shall
have no further rights, duties, obligations or liabilities under the Agreement,
other than rights, duties, liabilities or obligations accruing prior to the
Amendment Effective Date; provided, however, the rights and remedies with
respect to any breach of representation and warranty made by Armstrong pursuant
to Article V and the indemnification and payment provisions of Article VII and
Section 10.6 shall be continuing and shall survive after the Amendment Effective
Date. Without limiting the generality of the foregoing, Armstrong shall have no
right or obligation to sell, transfer or assign Receivables to the Company under
the Agreement after the Amendment Effective Date. The provisions of this
Amendment shall not, however, affect any transfer, sale or assignment of
Receivables by Armstrong to the Company under the Agreement prior to the
Amendment Effective Date.
(b) Subject to the satisfaction of Section 3, Blue Ridge and the
Administrative Agent, without recourse, representation or warranty, hereby
release, waive and forever discharge any and all right, title and interest in
and to the Sold Assets and all related Liens or security interests created by
Blue Ridge or the Administrative Agent and hereby consent to the filing of such
UCC-3 termination statements and such other releases or documents as the Seller
may reasonably request so that the Seller may deliver to Armstrong good and
unencumbered title to the Sold Assets pursuant to the Sale and Assignment
Agreement.
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SECTION 3. Amendment Effective Date.
This Amendment shall become effective as of the date first above
written (the "Amendment Effective Date") on the date on which the Administrator
shall have received each of the following:
(a) a copy of this Amendment duly executed by each of the parties
hereto;
(b) a copy of the Sale and Assignment Agreement duly executed by
each of the parties thereto;
(c) payment in immediately available funds of the amount
determined to be due to the Blue Ridge and the Administrative Agent with respect
to the conveyance of the Receivables and Related Security contemplated by the
Sale and Assignment Agreement to LPAC Corp. The payment of amounts due under
this clause (e) shall be applied to the reduction of the Blue Ridge Invested
Amount and the payment of all other fees and amounts then due and owing to the
Blue Ridge and the Administrative Agent, including, without limitation, Earned
Discount, and shall not be affected by any right of setoff, counterclaim,
recoupment, defense or other right LPAC Corp. might have against the
Administrator or Blue Ridge, all of which rights are hereby expressly waived by
LPAC Corp.;
(d) a copy of the Lock-Box Agreement Termination in substantially
the form of Exhibit A hereto, duly executed by each of the parties hereto;
(e) such other agreements, instruments, certificates, opinions and
other documents as the Administrative Agent may reasonably request.
SECTION 4. Reference to and Effect on the Agreement and the Related
Documents. Upon the effectiveness of this Amendment, (i) each of the Sellers
hereby reaffirms all representations and warranties made by it in Article V of
the Agreement (as amended hereby) and agrees that all such covenants,
representations and warranties shall be deemed to have been remade as of the
effective date of this Amendment, (ii) each of the Sellers hereby represents and
warrants that the Sale Termination Date shall not have occurred and (iii) each
reference in the Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import shall mean and be, and any references to the Agreement
in any other document, instrument or agreement executed and/or delivered in
connection with the Agreement shall mean and be, a reference to the Agreement as
amended hereby.
SECTION 5. Effect. Except as otherwise amended by this Amendment, the
Agreement shall continue in full force and effect and is hereby ratified and
confirmed.
SECTION 6. Governing Law. This Amendment will be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws principles thereof (other than Section 5-1401 of
the New York General Obligations Law).
SECTION 7. Severability. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability
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of any provision hereof, and the unenforceability of one or more provisions of
this Amendment in one jurisdiction shall not have the effect of rendering such
provision or provisions unenforceable in any other jurisdiction.
SECTION 8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page by facsimile shall be effective as delivery of a
manually executed counterpart of this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
LPAC CORP.,
By:___________________________________________
Name
Title:
LENNOX INDUSTRIES INC.
By:___________________________________________
Name
Title:
ADVANCED DISTRIBUTOR PRODUCTS, LLC
By:___________________________________________
Name
Title:
HEATCRAFT REFRIGERATION PRODUCTS LLC,
By:___________________________________________
Name
Title:
ARMSTRONG AIR CONDITIONING INC.
By:___________________________________________
Name
Title:
Acknowledged and Agreed:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: ____________________________________
Name:
Title:
Exhibit A
LOCK-BOX TERMINATION
as of June 16, 2003
Bank One, NA
1717 Main Street, 3rd Floor
Dallas, TX ###-##-####
Attention: [_____________]
RE: ARMSTRONG AIR CONDITIONING INC./LPAC CORP.
Ladies and Gentlemen:
Reference is made to lock-box number 22325 (the "Lock-Box")
and account number 1065390 maintained with you (the "Account") and to (i) that
certain Lockbox Agreement (the "Lockbox Agreement") dated as of March 27, 2001
by and among Armstrong Air Conditioning Inc. ("Armstrong"), LPAC Corp. ("LPAC"),
Wachovia Bank, National Association (successor in interest to Wachovia Bank,
N.A.) (the "Administrative Agent"), and you in your capacity as lockbox bank.
In connection with that certain Second Amendment to Purchase
and Sale Agreement dated as of June 16, 2003 ("Purchase Amendment") by and among
Lennox Industries Inc., LPAC, Armstrong, Heatcraft Refrigeration Products LLC,
Advanced Distributor Products LLC and the Administrative Agent, on the date
hereof (the "Effective Date"), the Lock-Box Agreement is hereby terminated and
the Administrative Agent and LPAC hereby relinquish all right, title and
interest to the Lock-Box and the Account, including, without limitation, any
right to control and or remove any or all items from the Lock-Box and Account.
After the Effective Date, all moneys on deposit in the Account shall be held on
behalf of Armstrong and all notices, bank statements and other information
related to the Accounts and the Lock-Boxes should be delivered to Armstrong or
at such other address as may be notified to you in writing by Armstrong.
This letter agreement may be executed by the signatories
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall together constitute but one and the same letter
agreement. Delivery of an executed counterpart of a signature page to this
letter agreement by facsimile shall be effective as delivery of a manually
executed counterpart of this letter.
[signature pages to follow]
Very truly yours,
ARMSTRONG AIR CONDITIONING INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
LPAC CORP.
By:______________________________________
Name:____________________________________
Title:___________________________________
Address:
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Administrative Agent
By:______________________________________
Name:____________________________________
Title:___________________________________
Accepted and confirmed as of the date first written above:
BANK ONE, NA
as Lock-Box Bank
By:____________________________________
Title:_________________________________
Exhibit C
OFFICE LOCATION WHERE RECORDS ARE KEPT
SELLERS
Lennox Industries Inc.
2100 Lake Park Blvd.
Richardson, TX 75080-2254
400 Norris Glen Road
Etobicoke, ON, Canada M9C 1H5
Advanced Distributor Products LLC
1995 Air Industrial Park Road
Grenada, MS 38901
Heatcraft Refrigeration Products LLC
2175 West Park Place Blvd.
Stone Mountain, GA 30087
MASTER SERVICER
Lennox Industries Inc.
2100 Lake Park Blvd.
Richardson, TX 75080-2254
400 Norris Glen Road
Etobicoke, ON, Canada M9C 1H5
Schedule 5.1(a)
JURISDICTION OF ORGANIZATION
Originator Jurisdiction of Organization
Lennox Industries Inc. Iowa
Heatcraft Inc. Mississippi
Advanced Distributor Products LLC Delaware
Heatcraft Refrigeration Products LLC Delaware
Schedule 5.1(n)
TRADE NAMES
Lennox Industries Inc.
Aire-Flo Heating and Cooling
Lennox Hearth Products
Advanced Distributor Products LLC
None
Heatcraft Refrigeration Products LLC
None
Schedule 10.2
Richardson, TX 75080-2254
Attention: Scott Messel, Vice President and Treasurer
Phone No.: 972-497-6818
Facsimile No.: 972-497-6940