(this “Amendment”), dated as
of May 20, 2008, is entered into by and among is entered into by and among SCP
Distributors LLC, Superior Pool Products LLC, Horizon Distributors, Inc., a
Delaware corporation (each of the foregoing, an “Originator”
and collectively, the “Originators”),
and Superior Commerce LLC (“Buyer”),
and pertains to that certain RECEIVABLES SALE AGREEMENT dated as of March 27,
2003 by and among the Originators and the Buyer (as has been amended prior to
the date hereof, the
“RSA”). Unless defined elsewhere herein, capitalized terms
used in this Amendment shall have the meanings assigned to such terms in the
parties wish to amend the RSA as hereinafter set forth.
in consideration of the premises and the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
1. Amendment. A
new Section 1.7 is hereby added to the RSA which reads as follows:
Section 1.7. Ordinary Course
Representation. Each of the Originators and the Buyer
represents and warrants as to itself that each remittance of Collections by such
Originator to the Buyer (or to the Agent, as the Buyer’s assignee) under this
Agreement will have been (i) in payment of a debt incurred by such Originator in
the ordinary course of business or financial affairs of the Buyer and such
Originator and (ii) made in the ordinary course of business or financial affairs
of the Buyer and such Originator.
2. Representations and
Warranties. In order to induce the Seller to enter into this
Amendment, each of the Originators hereby represents and warrants to the Seller
(and to the Agent, as the Seller’s assignee) that (a) after giving affect to
this Amendment each of such Person’s representations and warranties contained in
Article II of the RSA is true and correct as of the date hereof, (b) the
execution and delivery by such Person of this Amendment, and the performance of
its obligations hereunder, are within its corporate or limited liability
company, as applicable, powers and authority and have been duly authorized by
all necessary corporate or limited liability company, as applicable, action on
its part, and (c) this Amendment has been duly executed and delivered by such
Person and constitutes the legal, valid and binding obligation of such Person
enforceable against such Person in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws relating to or limiting creditors’ rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
3. Conditions Precedent.
This Amendment shall become effective as of the date first above written upon
receipt by the Agent of this Amendment duly executed by each of the Originators
and the Seller and consented to by the Agent in the space provided
Section 4. Miscellaneous.
(a) Except as
expressly modified hereby, the RSA remains unaltered and in full force and
effect. This Amendment shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns
(including any trustee in bankruptcy).
Amendment 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.
WHEREOF, the parties hereto have caused this Amendment to be executed and
delivered by their duly authorized officers as of the date hereof.
By: /s/ Steven
POOL PRODUCTS LLC,
DISTRIBUTORS LLC and
By: /s/ Mark W.
Vice President and Treasurer
foregoing amendment is hereby consented to:
CHASE BANK, N.A.,