EXHIBIT 10.10
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment"), dated
as of May 5, 2004, by and among:
(1) EagleFunding Capital Corporation ("Assigning Purchaser") and XX
XXXX Trust, ("Purchasing Purchaser");
(2) Fleet National Bank ("Assigning EagleFunding Investor") and Bank
of America, N.A., ("Purchasing Investor");
(3) Fleet Securities, Inc. ("Outgoing Purchaser Agent") and Bank of
America, N.A. ("New Purchaser Agent" for the Purchaser Group of which XX XXXX
Trust is a party); and
(4) The Bank of Nova Scotia, as administrative agent for the
Purchasers (in such capacity, the "Administrative Agent");
(5) LPAC CORP. (together with its successors and permitted assigns),
as Seller.
WITNESSETH
WHEREAS, LPAC CORP. ("Seller"), Lennox Industries, Inc. ("Master
Servicer"), the Purchasers, the Investors, the Purchaser Agents and the
Administrative Agent are parties to that certain Second Amended and Restated
Receivables Purchase Agreement, dated as of June 16, 2003 (as so amended or
modified, the "Purchase Agreement");
WHEREAS, the parties hereto desire to create a new Purchaser Group
with respect to which Purchasing Purchaser shall be the Purchaser, XX XXXX Trust
Investor shall be the Investor and the New Purchaser Agent shall be the
Purchaser Agent (together with the Purchasing Purchaser and the XX XXXX Trust
Investor, the "New Purchaser Group"), upon the terms and conditions and as set
forth herein;
WHEREAS, in connection with the creation of the New Purchaser Group,
(i) Assigning Purchaser wishes to assign to Purchasing Purchaser, a 100%
interest in all of its right, title and interest and obligations as a Purchaser
under the Agreement, including, without limitation, the portion of the Invested
Amount funded by Assigning Purchaser as of the Effective Date (as defined below)
(such interest, the "Conduit Assigned Interest"), (ii) Assigning EagleFunding
Investor wishes to assign to Purchasing Investor, a 100% interest in all of its
right, title and interest and obligations as an EagleFunding Investor under the
Purchase Agreement, including, without limitation, its Commitment in the amount
of $50,000,000 (such interest, the "Committed Assigned Interest"); and
WHEREAS, Purchasing Purchaser wishes to purchase and assume the
Conduit Assigned Interest and Purchasing Investor wishes to purchase and assume
the Committed Assigned Interest, in each case, upon the terms and subject to the
conditions herein contained;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions; Preamble. All capitalized terms used herein
(including the preamble hereto) but not specifically defined herein shall have
the meanings ascribed to them in (or by reference in) the Purchasing Agreement.
The parties hereto agree to the preamble set forth above and such preamble is
incorporated herein in its entirety.
Section 2. Assignment and Assumption.
(a) On the Effective Date (as hereinafter defined), Assigning
Purchaser hereby sells and assigns to Purchasing Purchaser, without recourse and
without representation and warranty (except as set forth in Section 4 below),
and Purchasing Purchaser hereby purchases and assumes from Assigning Purchaser,
the Conduit Assigned Interest.
(b) On the Effective Date (as hereinafter defined), Assigning
EagleFunding Investor hereby sells and assigns to Purchasing Investor, without
recourse and without representation and warranty (except as set forth in Section
4 below), and Purchasing Investor hereby purchases and assumes from Assigning
EagleFunding Investor, the Committed Assigned Interest.
(c) The purchase price for the Conduit Assigned Interest and the
Committed Assigned Interest shall be an amount equal to $26,032,984.34, being
100% of the portion of the aggregate Invested Amount funded by Assigning
Purchaser as of the date hereof plus the interest/discount/yield accrued and
unpaid on the date hereof, which purchase price shall be payable by the New
Purchaser Group on the Effective Date (as hereinafter defined) to an account
designated by Outgoing Purchaser Agent in its capacity as Purchaser Agent for
the Purchasers in its related Purchaser Group.
(d) Assigning Purchaser Agent agrees to remit to New Purchaser Agent
any amounts received by Outgoing Purchaser Agent after the Effective Date (as
hereinafter defined) that are payable to the New Purchaser Group under the terms
of the Purchase Agreement as in effect on and after the Effective Date.
Section 3. Effective Date.
(a) The effective date for this Assignment shall be the later of (i)
the date on which the Administrative Agent, the Seller, Assigning Purchaser
Agent and New Purchaser Agent receive this Assignment executed by the parties
hereto and (ii) the date of this Assignment (the "Effective Date"). Following
the execution of this Assignment and the consent of the Seller and the
Administrative Agent, this Assignment will be delivered to the Administrative
Agent for acceptance and recording.
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(b) From and after the Effective Date, (i) each member of the New
Purchaser Group shall be a party to the Agreements for all purposes thereof and,
to the extent provided herein, have all of the rights, obligations and duties of
a Purchaser, XX XXXX Trust Investor or a Purchaser Agent, as applicable; (ii)
each of Assigning Purchaser and Assigning EagleFunding Investor shall relinquish
its respective rights and be released from its respective obligations under the
Agreements and cease to be a party thereto and (iii) the Administrative Agent
and the Purchaser Agent of the New Purchaser Group shall make all payments under
the Agreements in respect of the Conduit Assigned Interest and the Committed
Assigned Interest (including, without limitation, all payments in respect of
such interest in the Invested Amount, discount and fees) to Purchasing Purchaser
and Purchasing Investor, as applicable.
Section 4. Representations and Warranties. Each of Assigning Purchaser and
Assigning EagleFunding Investor (solely in its capacity as a Purchaser) (a)
represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear
of any Lien; (b) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Purchase Agreement, any other Related Document
or any other instrument or document furnished pursuant thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Agreement or the Receivables, any other Related Document or any other instrument
or document furnished pursuant thereto; and (c) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any of the Seller, the Master Servicer or any Obligor or the performance or
observance by any of the Seller, the Master Servicer or any Obligor of any of
its obligations under the Purchase Agreement, any other Related Document, or any
instrument or document furnished pursuant thereto.
Section 5. Acknowledgments of New Purchasers and Purchaser Agent. Each
member of the New Purchaser Group hereby (a) confirms that it has received
copies of the Agreement and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment, become a party to the Purchase Agreement and fulfill its
obligations thereunder; (b) agrees that it will, independently and without
reliance upon Assigning Purchaser, Assigning EagleFunding Investor or any of
their respective Affiliates and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Purchase Agreement and any other Related
Document; (c) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Purchase Agreement and the other Related Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (d) agrees that it will perform
in accordance with their terms all of the obligations and other undertakings
which by the terms of the Agreements are required to be performed by it as a
Purchaser, a XX XXXX Trust Investor or a Purchaser Agent, as applicable; (e)
specifies as its address for notices and its account for payments the office and
account set forth on Schedule I hereof and (f) agrees that it will not institute
against the Purchasing Purchaser any proceeding of the type referred to in
Section 14.6 of the Purchaser Agreement prior to the date which is one year and
one day after the payment in full of all Commercial Paper issued by the
Purchasing Purchaser. Purchasing Purchaser and Purchasing Investor, in their
respective capacities as a Purchaser and XX XXXX Trust Investor, hereby appoint
and authorize
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New Purchaser Agent as the Purchaser Agent for the New Purchaser Group to take
such action as agent on its behalf and to exercise such powers and discretion
under the Purchase Agreement and the other Related Documents as are delegated to
a Purchaser Agent by the terms thereof, together with such powers and discretion
as are reasonably incidental thereto. The New Purchaser Agent hereby accepts the
appointment as Purchaser Agent for the New Purchaser Group.
Section 6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW).
Section 7. Entire Agreement. This agreement contains the final and
complete integration of all prior expressions by the parties hereto with respect
to the subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof superseding all prior
oral or written understandings.
Section 8. Severability. If any one or more of the covenants, agreements,
provisions or terms of this Assignment shall for any reason whatsoever be held
invalid, then such covenants, agreements, provisions, or terms shall be deemed
severable from the remaining covenants, agreements, provisions, or terms of this
Assignment and shall in no way affect the validity or enforceability of the
other provisions of this Assignment.
Section 9. Execution in Counterparts. This agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement. Delivery by facsimile of an executed signature page of this agreement
shall be effective as delivery of an executed counterpart hereof.
Section 10. Successors and Assigns. This agreement shall be binding on the
parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment
to be duly executed by their respective officers thereunto duly authorized, as
of the date first above written.
EAGLEFUNDING CAPITAL CORPORATION,
as Assigning Purchaser
_________________________________
Name:
Title:
Fleet National Bank, N.A.,
as Assigning EagleFunding Investor
_________________________________
Name:
Title:
Fleet Securities, Inc.
as Outgoing Purchaser Agent
_________________________________
Name:
Title:
Assignment and Assumption Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
to be duly executed by their respective officers thereunto duly authorized, as
of the date first above written.
XX XXXX Trust,
as Purchasing Purchaser
By: Bank of America, NA., as
Administrative Trustee
_____________________________
Name:
Title:
Bank of America, N.A,
as Purchasing Investor
_________________________________
Name:
Title:
Bank of America, N.A,
as New Purchaser Agent
_________________________________
Name:
Title:
Consented and Agreed:
LPAC CORP.,
as Seller,
_________________________________
Name:
Title:
Assignment and Assumption Agreement
SCHEDULE I
ADMINISTRATIVE INFORMATION
FOR
NEW PURCHASER GROUP
BANK OF AMERICA - TREASURY
000 X. Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
CONTACTS:
Xxxxxxx Xxxxxxxx
(000) 000-0000 (tel)
(000) 000-0000 (fax)
Xxxxxxx.Xxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxx Xxxxxxx
(000) 000-0000 (tel)
(000) 000-0000 (fax)
Xxxx.x.xxxxxxx@xxxxxxxxxxxxx.xxx
WIRING INSTRUCTIONS:
XX XXXX Trust
Deutsche Bank Trust Co. Americas, New York, NY
ABA: 021 001 033
BNF: DBTCA as Trustee for XX XXXX Trust
Acct #: 00 428 541
Ref: XX XXXX - Deal Name
Attn: Xxxxxxx Xxxxxxxx
