EXHIBIT 10.9
EXECUTION COPY
FOURTH AMENDMENT AND LIMITED WAIVER
TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS FOURTH AMENDMENT AND LIMITED WAIVER TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT (this "AMENDMENT"), dated as of August 20 2002,
is entered into by and among LPAC Corp., a Delaware corporation (the "Seller")
as seller, Lennox Industries Inc., an Iowa corporation ("Lennox"), as master
servicer, Blue Ridge Asset Funding Corporation, a Delaware corporation ("Blue
Ridge"), as purchaser, and Wachovia Bank, National Association (f/k/a Wachovia
Bank, N.A.), a national banking association (the "Administrative Agent") as
administrative agent. Capitalized terms used and not otherwise defined herein
are used as defined in the Agreement defined below.
WHEREAS, the parties hereto have entered into that certain Amended and
Restated Receivables Purchase Agreement, dated as of March 23, 2001 (as amended,
supplemented or otherwise modified through the date hereof, the "Agreement");
WHEREAS, pursuant to that certain Sale and Assignment Agreement (the
"Sale and Assignment Agreement"), dated as of August 20, 2002 by and between the
Seller and Heatcraft Inc. ("Heatcraft"), the Seller has simultaneously herewith
sold all of its right, title and interest to Receivables originated by Heatcraft
and arising in connection with the sale of goods or the rendering of services by
the Heat Transfer division of Heatcraft, together with all Related Security
thereto (collectively, the "Sold Assets"), to Heatcraft;
WHEREAS, in connection the sale of the Sold Assets, the parties hereto
desire to amend the Agreement in certain respects as provided herein;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1.1 LIMITED WAIVER.
Pursuant to Section 7.3(a) of the Agreement, the Seller may not, except
as otherwise provided therein and in the other Transaction Documents, sell,
assign (by operation of law or otherwise) or otherwise dispose of, or create any
Lien (other than Permitted Liens) upon or with respect to, any Pool Receivable
or any Related Asset, or any interest therein, or any account to which any
Collections of any Pool Receivable are sent, or any right to receive income or
proceeds from or in respect of any of the foregoing (except, prior to the
execution of Lock-Box Agreements, set-off rights of any bank at which any such
account is maintained). The Seller hereby requests a waiver of, and the
Administrative Agent and the Purchaser hereby agree to waive, compliance with
Section 7.3(a) solely to the extent necessary to consummate the sale of the Sold
Assets to Heatcraft pursuant to the Sale and Assignment Agreement, including the
release of all right, title and interest of the Seller and Heatcraft in account
number 00000000, lockbox number 92207, maintained at The Northern Trust Company,
Chicago Illinois.
SECTION 1.2 AMENDMENT.
The Agreement is, as of the Effective Date defined in Section 1.5
hereof, and subject to the satisfaction of the conditions precedent set forth in
Section 1.5 hereof, hereby amended as follows:
The definition of "Receivable" in Appendix A to the Agreement is hereby
amended and restated in its entirety to read as follows:
Receivable: Any right to payment from a Person (other than an
Affiliate), whether constituting an account, chattel paper,
instrument or general intangible and includes the right to
payment of any interest or finance charges and other amounts
with respect thereto but excluding any right to payment from a
Person arising in connection with the sale of goods or the
rendering of services by the Heat Transfer division of
Heatcraft Inc.
SECTION 1.3 CERTIFICATION. Each Seller Party herby certifies that:
(a) Each of the representations and warranties made by it in Article VI
of the Agreement, as amended hereby, are true and correct as of the Effective
Date of this Amendment; and
(h) No Liquidation Event or Unmatured Liquidation Event, has occurred
and is continuing as of the Effective Date of this Amendment.
SECTION 1.4 RELEASE.
Subject to the satisfaction of Section 1.5(c), the Purchaser and the
Administrative Agent 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 and hereby agree to execute and deliver UCC-3 partial
releases or such other documents as the Seller may reasonably request (including
the UCC-3 financing statements attached hereto as Exhibit B) so that the Seller
may deliver to Heatcraft good and unencumbered title to the Sold Assets pursuant
to the Sale and Assignment Agreement.
SECTION 1.5 EFFECTIVE DATE. This Amendment shall become effective as of
the date first above written (the "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) an Information Package, dated as of August 8, 2002;
(c) payment in immediately available funds of the amount determined to
be due to the Purchaser and the Administrative Agent pursuant to the Information
Package delivered in clause (b) above with respect to the conveyance of the
Receivables and Related Security contemplated by the Sale and Assignment
Agreement by the Seller. The payment of amounts due under this
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clause (c) shall be applied to the reduction of the Invested Amount and the
payment of all other fees and amounts then due and owing to the Purchaser 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 the Seller might have against the Administrative Agent or the
Purchaser, all of which rights are hereby expressly waived by the Seller;
(d) payment of all legal fees and other expenses incurred in connection
with this Amendment;
(e) a copy of the Sale and Assignment Agreement in substantially the
form attached hereto as Exhibit A, duly executed by each of the parties thereto;
(f) a copy of the Lock-Box Termination Agreement in substantially the
form attached hereto as Exhibit C, duly executed by each of the parties hereto;
and
(g) such other agreements, instruments, certificates, opinions and
other documents as the Administrative Agent may reasonably request.
SECTION 1.6 REFERENCE TO AND EFFECT ON THE AGREEMENT. Upon the
effectiveness of this Amendment, 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 1.7 EFFECT. Except as otherwise amended by this Amendment, the
Agreement shall continue in full force and effect and is hereby ratified and
confirmed.
SECTION 1.8 GOVERNING LAW. This Amendment will be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.9 SEVERABILITY. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability 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 1.10 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.,
as Seller
By: /s/ Xxxx X. Xxxxxxx Xx.
------------------------------------------
Name: Xxxx X. Xxxxxxx Xx.
Title: Secretary
LENNOX INDUSTRIES INC.,
as Master Servicer
By: /s/ Xxxx Xxxxxxx Jr.
------------------------------------------
Name: Xxxx Xxxxxxx Jr.
Title: Secretary
BLUE RIDGE ASSET FUNDING CORPORATION,
as Purchaser
by Wachovia Securities, Inc.,
as Attorney-in-Fact
By:
------------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent
By:
------------------------------------------
Name:
Title:
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,
as Seller
By:
------------------------------------------
Name:
Title:
LENNOX INDUSTRIES INC.,
as Master Servicer
By:
------------------------------------------
Name:
Title:
BLUE RIDGE ASSET FUNDING CORPORATION,
as Purchaser
by Wachovia Securities, Inc.,
as Attorney-in-Fact
By: /s/ XXXXXXX X. XXXXXX, XX.
------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
WACHOVIA BANK NATIONAL ASSOCIATION,
as Administrative Agent
By:
------------------------------------------
Name:
Title:
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.,
as Seller
By:
------------------------------------------
Name:
Title:
LENNOX INDUSTRIES INC.,
as Master Servicer
By:
------------------------------------------
Name:
Title:
BLUE RIDGE ASSET FUNDING CORPORATION,
as Purchaser
by Wachovia Securities, Inc.,
as Attorney-in-Fact
By:
------------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Director
