EXHIBIT 10.2
Execution Copy
AMENDMENT NO. 1
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of September 11, 2003
THIS AMENDMENT NO. 1 ("Amendment") is entered into as of
September 11, 2003 by and among LPAC Corp. II (the "Seller"), Lennox Industries
Inc. (the "Servicer"), Jupiter Securitization Corporation ("Jupiter"), the
Financial Institutions party hereto and Bank One, NA, as Agent (the "Agent").
PRELIMINARY STATEMENT
A. The Seller, the Servicer, Jupiter, the Financial
Institutions and the Agent are parties to that certain Receivables Purchase
Agreement dated as of June 27, 2003 (as the same may be further amended,
restated, supplemented or otherwise modified from time to time, the "Purchase
Agreement"). Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Purchase Agreement.
B. The Seller, the Servicer, Jupiter, the Financial
Institutions and the Agent have agreed to amend the Purchase Agreement on the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth
above, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments. Effective as of the date hereof
and subject to the satisfaction of the conditions precedent set forth in Section
2 below, the Purchase Agreement is hereby amended as follows:
(a) Section 7.1(b)(ii)(A)(1) of the Purchase Agreement is
amended to delete the amount "$10,000,000" appearing therein and replace such
amount with "$5,000,000".
(b) Section 9.1 of the Purchase Agreement is amended to
delete paragraph (c) thereof in its entirety and replace it with the following:
"(c) Failure of Seller to pay any Indebtedness when
due (after the passage of any applicable notice and grace period) or
the failure of Servicer, any Originator or Lennox International to pay
Indebtedness when due (after the passage of any applicable notice and
grace period) in excess of $10,000,000; or the default (after the
passage of any applicable notice and grace period) by any Seller Party,
any Originator or Lennox International in the performance of any term,
provision or condition contained in any agreement under which any such
Indebtedness was created or is governed, the effect of which is to
cause, or to permit the holder or holders of such Indebtedness to
cause, such Indebtedness to become due prior to its stated maturity,
provided that, in the case of the Credit Agreement, such default has
not been waived by the Required Lenders; or any
such Indebtedness of any Seller Party, any Originator or Lennox
International shall be declared to be due and payable or required to be
prepaid (other than by a regularly scheduled payment) prior to the date
of maturity thereof."
(c) Section 9.1 of the Purchase Agreement is amended to
delete paragraph (h) thereof in its entirety and replace it with the following:
"(h) (i) One or more final judgments for the payment of money
shall be entered against Seller or (ii) one or more final judgments for
the payment of money in an amount in excess of $5,000,000, individually
or in the aggregate, shall be entered against the Servicer, Lennox
International or any Originator on claims not covered by insurance or
as to which the insurance carrier has denied its responsibility, and
such judgment shall continue unsatisfied and in effect for sixty (60)
consecutive days without a stay of execution."
(d) Section 9.1 of the Purchase Agreement is amended to
delete paragraph (l) in its entirety and replace it with the following:
"(l) Lennox International shall fail to comply with
the financial covenants set forth on Exhibit XIV hereto; provided that
the Agent and the Purchasers hereby agree to amend or waive the
financial covenants set forth on Exhibit XIV to conform to any
amendment or waiver of Section 5.15 of the Credit Agreement if Bank One
as lender under the Credit Agreement has agreed to such amendment or
waiver."
(e) Exhibit I to the Purchase Agreement is amended to
delete the definitions of "Credit Agreement", "Debt to Adjusted EBITDA Ratio",
"Level One Enhancement Period" and "Level Two Enhancement Period" in their
entirety and replace them with the following:
"Credit Agreement" means that certain Amended and Restated
Revolving Credit Facility Agreement dated as of September 11, 2003
among Lennox International Inc., each of the lenders parties thereto,
JPMorgan Chase Bank, as administrative agent, and Bank of Nova Scotia,
The Bank of Tokyo-Mitsubishi, Ltd. and Wells Fargo Bank Texas, N.A., as
co-documentation agents, as such agreement is in effect on September
11, 2003, without giving effect to any amendment, modification or
waiver.
"Debt to Adjusted EBITDA Ratio" means, as of the end of any
fiscal quarter, the ratio expressed as a percentage, equal to the ratio
of Consolidated Indebtedness to Adjusted EBITDA calculated as of the
end of such fiscal quarter in accordance with paragraph (b) of Exhibit
XIV. Capitalized terms used in this definition shall have the meanings
ascribed to them in Exhibit XIV.
"Level One Enhancement Period" means any period during which
the Debt to Adjusted EBITDA Ratio is less than or equal to 3.0 to 1.0.
"Level Two Enhancement Period" means any period during which
the Debt to Adjusted EBITDA Ratio is greater than 3.0 to 1.0.
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(f) Exhibit I to the Purchase Agreement is amended to add
the following defined term thereto in the proper alphabetical order:
"Required Lenders" means, at any time, Lenders having
Commitments under the Credit Agreement representing at least 66 2/3% of
the Total Commitment or, for purposes of acceleration pursuant to
Article 6 of the Credit Agreement, Lenders holding Loans or
participation interests in Loans representing at least 66 2/3% of the
aggregate principal amount of the Loans outstanding. Capitalized terms
used in this definition shall have the meanings ascribed to them in the
Credit Agreement.
(g) Exhibit XI to the Purchase Agreement is amended to
delete the account number "51 - 14810" appearing therein and replace it with
"59-48118".
(h) The Purchase Agreement is amended to add a new
Exhibit XIV thereto attached hereto as Exhibit A.
SECTION 2. Conditions Precedent. This Amendment shall
become effective and be deemed effective, as of the date first above written,
upon receipt by the Agent of four (4) copies of this Amendment duly executed by
each of the parties hereto.
SECTION 3. Covenants, Representations and Warranties of
the Seller and the Servicer.
(a) Upon the effectiveness of this Amendment, each of the
Seller and the Servicer hereby reaffirms all covenants, representations and
warranties made by it in the Purchase Agreement, as amended, and agrees that all
such covenants, representations and warranties shall be deemed to have been
re-made as of the effective date of this Amendment.
(b) Each of the Seller and the Servicer hereby represents
and warrants as to itself (i) that this Amendment constitutes the legal, valid
and binding obligation of such party enforceable against such party in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general principles of equity
which may limit the availability of equitable remedies and (ii) upon the
effectiveness of this Amendment, that no event shall have occurred and be
continuing which constitutes an Amortization Event or a Potential Amortization
Event.
SECTION 4. Fees, Costs, Expenses and Taxes. Without
limiting the rights of the Agent and the Purchasers set forth in the Purchase
Agreement and the Fee Letter, the Seller agrees to pay on demand all reasonable
fees and out-of-pocket expenses of counsel for the Agent and the Purchasers
incurred in connection with the preparation, execution and delivery of this
Amendment and the other instruments and documents to be delivered in connection
herewith and with respect to advising the Agent and the Purchasers as to their
rights and responsibilities hereunder and thereunder.
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SECTION 5. Reference to and Effect on the Purchase
Agreement.
(a) Upon the effectiveness of this Amendment, each
reference in the Purchase Agreement to "this Agreement," "hereunder," "hereof,"
"herein," "hereby" or words of like import shall mean and be a reference to the
Purchase Agreement as amended hereby, and each reference to the Purchase
Agreement in any other document, instrument or agreement executed and/or
delivered in connection with the Purchase Agreement shall mean and be a
reference to the Purchase Agreement as amended hereby.
(b) Except as specifically amended hereby, the Purchase
Agreement and other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and effect and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of any
Purchaser or the Agent under the Purchase Agreement or any of the other
Transaction Documents, nor constitute a waiver of any provision contained
therein.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
ILLINOIS (INCLUDING, BUT NOT LIMITED TO, 735 ILCS SECTION 105/5-1 ET. SEQ., BUT
OTHERWISE WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS).
SECTION 7. Execution in Counterparts. This Amendment
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
SECTION 8. Headings. Section headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed on the date first set forth above by their respective
officers thereto duly authorized, to be effective as hereinabove provided.
LPAC CORP. II, as Seller
By:_______________________
Name:
Title:
LENNOX INDUSTRIES INC., as Servicer
By:_______________________
Name:
Title:
Signature Page to Amendment No. 1 to Receivables Purchase Agreement
JUPITER SECURITIZATION CORPORATION
By:________________________________
Name: Maureen Marcon
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Financial Institution and as Agent
By:________________________________
Name: Maureen Marcon
Title: Director, Capital Markets
Signature Page to Amendment No. 1 to Receivables Purchase Agreement
EXHIBIT A
TO AMENDMENT
New Exhibit XIV to Purchase Agreement.
Attached.