EXHIBIT 10.13
Execution Copy
AMENDMENT NO. 2
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of June 25, 2004
THIS AMENDMENT NO. 2 ("Amendment") is entered into as of June 25,
2004 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 amended on September 11, 2004, and 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) Exhibit I to the Purchase Agreement is amended to delete the
definition of "Liquidity Termination Date" in its entirety and replace it with
the following:
"Liquidity Termination Date" means June 24, 2005.
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 the following:
(a) four (4) copies of this Amendment duly executed by each of the
parties hereto; and
(b) a renewal fee for the account of each Financial Institution,
which is not a Non-Renewing Financial Institution, in an aggregate amount equal
to $35,000, payable to the
Agent for the ratable benefit of such Financial Institutions based on each such
Financial Institution's Commitment.
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
any other instruments or 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.
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.
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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. 2 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. 2 to Receivables Purchase Agreement