SECOND OMNIBUS AMENDMENT (LPAC Corp. — Removal of ADP)
Execution Copy
Exhibit 10.1
SECOND OMNIBUS AMENDMENT
(LPAC Corp. — Removal of ADP)
THIS SECOND OMNIBUS AMENDMENT (this “Amendment”), dated as of December 14, 2006, is
entered into, by and among LENNOX INDUSTRIES INC., an Iowa corporation, (“Lennox” or the
“Master Servicer”), ADVANCED DISTRIBUTOR PRODUCTS LLC, a Delaware limited liability company
(“Advanced Distributor”), HEATCRAFT REFRIGERATION PRODUCTS LLC, a Delaware limited
liability company (“Heatcraft Refrigeration”), LPAC CORP., a Delaware corporation
(“LPAC” or the “Company”), LIBERTY STREET FUNDING CORP. (“Liberty Street”),
the investors named in the Purchase Agreement (defined below), THE BANK OF NOVA SCOTIA
(“Scotiabank”) XX XXXX TRUST (“Yorktown”), BANK OF AMERICA, NATIONAL ASSOCIATION
(the “Yorktown Agent”) and THE YORKTOWN INVESTORS and consented to by LENNOX INTERNATIONAL
INC. (the “Assurance Provider;” and together with LPAC, Lennox and Heatcraft Refrigeration,
the “Lennox Parties”). Capitalized terms used and not otherwise defined herein are used as
defined in the related Operative Document (as defined below).
WHEREAS, Lennox, Heatcraft Refrigeration, Advanced Distributor and LPAC entered into that
certain Purchase and Sale Agreement, dated as of June 19, 2000 (as amended, supplemented or
otherwise modified from time to time, the “Sale Agreement”); and
WHEREAS, LPAC, Lennox, Liberty Street, the investors named therein, Scotiabank, Yorktown, the
Yorktown Agent, and the Yorktown Investors are party to that certain Second Amended and Restated
Receivables Purchase Agreement, dated as of June 16, 2003 (as amended, supplemented or otherwise
modified through the date hereof, the “Purchase Agreement), and together with the Sale
Agreement, the “Operative Documents”); and
WHEREAS, Advanced Distributor is a Seller under the Sale Agreement;
WHEREAS, Advanced Distributor desires to terminate its obligations as a Seller under the Sale
Agreement and to reacquire all of the Receivables originated by it (the “ADP Receivables”);
WHEREAS, the parties to the Sale Agreement desire to amend the Sale Agreement to reflect the
removal of Advanced Distributor as a Seller under the Sale Agreement; and
WHEREAS, the parties hereto desire to make other modifications to the Operative Documents as
set forth herein.
NOW THEREFORE, in consideration of the premises and the other mutual covenants contained
herein, the parties hereto agree as follows:
Section 1.1 Removal of Advanced Distributor.
Advanced Distributor desires to withdraw, and terminate its rights and obligations to sell
Receivables, Related Rights and the proceeds thereof, as a Seller under the Sale Agreement. As of
the Effective Date, the parties hereto agree that Advanced Distributor will no longer sell,
transfer, absolutely assign, set over or convey Receivables, Related Rights and the proceeds
thereof to the Company under the Sale Agreement. As of the Effective Date, the Sale Agreement
shall cease to constitute a continuing obligation of Advanced Distributor from and after the
Effective Date; provided, however, that the rights and remedies with respect to any breach
of any representation and warranty made by Advanced Distributor pursuant to Article V, Article VIII
and the provisions of Section 10.4 shall be continuing and shall survive any termination of the
Sale Agreement, with respect to Advanced Distributor.
Section 1.2 Amendments to Sale Agreement.
(a) 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.
(b) A new Schedule 5.1(a) attached hereto is hereby added to the Sale Agreement.
(c) 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.
(d) 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 1.3 Amendments to Purchase Agreement.
(a) Section 10.1 (g) of the Purchase Agreement is hereby deleted and replaced with the
following:
“(g) The rolling 3 month average Dilution Ratio at any Cut-Off Date exceeds
12.00%; or”
(b) Appendix A to the Purchase Agreement is hereby amended as follows:
(i) The definition of Assurance Agreement is hereby deleted and replaced with the
following:
“Assurance Agreement: The Amended and Restated Assurance Agreement
dated as of June 16, 2003 made by Lennox International, as the same may be
amended, restated, supplemented or modified from time to time.”
(ii) Clause (i) of the definition of “Funding Termination Date” is hereby deleted and
replaced with the following:
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“(i) December 13, 2007, or such later date as may, from time to time, be
agreed to in writing by the Agents;”
(iii) The definition of Loss Reserve is hereby deleted and replaced with the following:
“Loss Reserve: At any time, means the product of (1) 2.0 and (2)
the highest rolling three month average Default Ratio during the immediately
preceding twelve (12) months and (3) the most recently calculated Default
Horizon Ratio.”
(iv) The definition of Originator is hereby amended and restated in its entirety to
read as follows:
“Originator: Each of Lennox, Heatcraft Refrigeration Products, LLC
and any other Person who is a seller under the Sale Agreement.”
(c) Schedule 6.1(i) referred to in, and attached to, the Purchase Agreement, is hereby deleted
and replaced in its entirety with the revised Schedule 6.1(i) attached hereto.
(d) Schedule 6.1(n) referred to in, and attached to, the Purchase Agreement, is hereby deleted
and replaced in its entirety with the revised Schedule 6.1(n) attached hereto.
(e) Schedule 6.1(o) referred to in, and attached to, the Purchase Agreement, is hereby deleted
and replaced in its entirety with the revised Schedule 6.1(o) attached hereto.
Section 1.4 Release of ADP Receivables; Consent to Retransfer.
(a) The Administrative Agent, as agent for the Secured Parties, does hereby sell, assign,
transfer and reconvey, without recourse, representation or warranty, all of its right, title and
interest in and to each ADP Receivable to LPAC and does hereby release, terminate and discharge any
and all Adverse Claims on all of the ADP Receivables. Each of LPAC and Advanced Distributor hereby
agrees that they shall not have any recourse against the Administrative Agent or Secured Party with
respect to any ADP Receivable and neither the Administrative Agent nor any Secured Party makes any
representation or warranty or assumes any responsibility with respect to the ADP Receivables,
except that the Administrative Agent represents and warrants that the rights and interests being
transferred by it are being transferred free and clear of any Adverse Claim created or granted by.
(b) Each of the Administrative Agent and the Secured Parties hereby consents to the transfer
and assignment by LPAC of the ADP Receivables to Advanced Distributor pursuant to that certain
Transfer and Assignment, dated December 14, 2006 (the “Transfer and Assignment”), by and
between LPAC and Advanced Distributor.
Section 1.5 Conditions to Effectiveness.
This Amendment shall become effective as of the date (the “Effective Date”) on which
each of the following conditions precedent shall have been satisfied:
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(a) Counterparts. The Administrative Agent shall have received multiple counterparts,
as requested, of this Amendment, the Transfer and Assignment, the Second Amended And Restated
Liberty Funding Purchaser Group Fee Letter and the Second Amended And Restated Yorktown Purchaser
Group Fee Letter, each executed and delivered by a duly authorized officer of each party hereto.
(b) Initial Seller Note Cancelled. The Administrative Agent shall have received
evidence that the Initial Seller Note issued to Advanced Distributor has been cancelled.
(c) Stock Certificate Cancelled. The Administrative Agent shall have received
evidence that the stock certificate issued by LPAC to Advanced Distributor has been cancelled.
Section 1.6 Representations and Warranties.
Each of the Lennox Parties hereby certifies that each of the representations and warranties
made by such Person in each of the Operative Documents is true and correct on the date hereof, as
if each such representation and warranty were made on the date hereof.
Section 1.7 Operative Documents in Full Force and Effect as Amended.
Except as specifically amended hereby, each of the Operative Documents shall remain in full
force and effect. All references to the Purchase Agreement shall be deemed to mean the Purchase
Agreement as modified hereby and all references to the Sale Agreement shall be deemed to mean the
Sale Agreement as modified hereby. This Amendment shall not constitute a novation of either the
Sale Agreement or the Purchase Agreement, but shall constitute an amendment thereof. The parties
hereto agree to be bound by the terms and conditions of the Sale Agreement, as amended by this
Amendment and by the Purchase Agreement, as amended by this Amendment, in each case, as though such
terms and conditions were set forth herein.
Section 1.8 Consent of Assurance Provider.
The Assurance Provider hereby consents to the amendments to the Sale Agreement and to the
Purchase Agreement set forth in this Amendment and in each of amendment to the Purchase Agreement
and each other Transaction Document made on or before the date hereof. The Assurance Provider
hereby represents and warrants that it has received executed copies of each of the documents
referred to in the immediately preceding sentence.
Section 1.9 Miscellaneous.
(a) This Amendment may be executed in any number of counterparts, and by the different
parties hereto on the same or separate counterparts, each of which shall be deemed to be an
original instrument but all of which together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page by facsimile or other electronic
transmission shall be effective as delivery of a manually executed counterpart of this Amendment.
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(b) The descriptive headings of the various sections of this Amendment are inserted for
convenience of reference only and shall not be deemed to affect the meaning or construction of any
of the provisions hereof.
(c) This Amendment may not be amended or otherwise modified except as provided in the
Agreement.
(d) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[remainder of page intentionally left blank]
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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. Xxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| LENNOX INDUSTRIES INC., | ||||||
| as Master Servicer | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| ADVANCED DISTRIBUTOR PRODUCTS LLC | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| HEATCRAFT REFRIGERATION PRODUCTS LLC | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| Consented to this 14th day of December 2006, | ||||
| LENNOX INTERNATIONAL INC., | ||||
| as Assurance Provider | ||||
By:
|
/s/ Xxxx X. Xxxxxx | |||
Name:
|
||||
Title:
|
||||
[additional signatures to follow]
| LIBERTY STREET FUNDING CORP., | ||||||
| as a Purchaser | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| THE BANK OF NOVA SCOTIA, | ||||||
| as Liberty Street Purchaser Agent and | ||||||
| Liberty Street Investor | ||||||
| By: | /s/ Xxxxxx Last | |||||
| Name: | ||||||
| Title: | ||||||
[additional signatures to follow]
| XX XXXX TRUST, | ||||||
| as the Yorktown Purchaser | ||||||
| By: | Bank of America, National Association, as | |||||
| Administrative Trustee | ||||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| BANK OF AMERICA, NATIONAL | ||||||
| ASSOCIATION, | ||||||
| as the Yorktown Investor | ||||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| BANK OF AMERICA, NATIONAL | ||||||
| ASSOCIATION, | ||||||
| as the Yorktown Purchaser Agent | ||||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | ||||||
| Title: | ||||||
[end of signatures]
