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EXHIBIT 10.29
AMENDMENT NO. 10 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT (this “Amendment”
) ,
dated as of December 20, 2007, is entered into by and among is
entered into by and among Superior Commerce LLC, a Delaware limited
liability company ( “SPE”
), SCP Distributors LLC, a Delaware limited liability company, as
initial Servicer (together with SPE, the “Seller
Parties” and each, a “Seller
Party” ), JS Siloed Trust (the “Trust”
), and JPMorgan Chase Bank, N.A. f/k/a Bank One, NA (Main Office
Chicago), individually (together with the Trust, the “Purchasers”
) and as agent for the Purchasers (in such capacity, the
“Agent”
), and pertains to that certain RECEIVABLES PURCHASE AGREEMENT
dated as of March 27, 2003 by and among the parties hereto other
than the Trust (as has been amended prior to the date hereof, the
“RPA”
). Unless defined elsewhere herein, capitalized terms
used in this Amendment shall have the meanings assigned to such
terms in the RPA.
PRELIMINARY STATEMENTS
SPE
has requested that the Agent and the Purchasers amend certain
provisions of the RPA; and
The
Agent and the Purchasers are willing to amend the requested
provisions on the terms hereinafter set forth.
NOW, THEREFORE, 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 follows:
Section
1.
Amendments
.
(a)
The
definitions of the following terms set forth in Exhibit I to the
RPA are hereby deleted in their entirety:
“Consolidated EBITDA”
“Consolidated EBITR”
“Consolidated Indebtedness”
“Consolidated Interest Expense”
“Consolidated Net Income”
“Consolidated Net Worth”
“Consolidated Rentals”
“EBITR”
(b)
The
following new definitions are hereby inserted into Exhibit I to the
RPA in their appropriate alphabetical order:
“Accounts Securitization” means, with respect to
POOLCORP and its Subsidiaries (other than Seller), any pledge,
sale, transfer, contribution, conveyance or other disposition of
(a) “accounts”, “chattel paper”,
“instruments” or “general intangibles”
(each as defined in the UCC) arising in connection with the sale of
goods or the rendering of services by such Person, including,
without limitation, the related rights to any finance, interest,
late payment or similar charges (such items, the “Securitized
Receivables” ), (b) such Person’s interest in
the inventory or goods the sale of which by such Person gave rise
to such Securitized Receivable (but only to the extent such
inventory or goods consists of returned or repossessed inventory or
goods, if any), (c) all other guaranties, letters of credit,
insurance and security interests or liens purporting to secure or
support payment of such Securitized Receivable, (d) all insurance
contracts, service contracts, books and records associated with
such Securitized Receivable, (e) any lockbox, post office box or
similar deposit account related solely to the accounts being
transferred, (f) cash collections and cash proceeds of such
Securitized Receivable and (g) any proceeds of the foregoing (all
such items referenced in clauses (a) through (g), the “Transferred
Assets” ) which such sale, transfer, contribution,
conveyance or other disposition is funded by the recipient of such
Transferred Assets in whole or in part by borrowings or the
issuance of instruments or securities that are paid principally
from the cash derived from such Transferred Assets; provided
that the aggregate amount of gross proceeds available to POOLCORP
or any Subsidiary in connection with all such transactions shall
not at any time exceed $175,000,000; and provided
further that such sale, transfer, contribution, conveyance
or other disposition and any Indebtedness arising from such sale,
transfer, contribution, conveyance or other disposition shall be
without recourse to POOLCORP or any of its Subsidiaries (other than
Seller) except with respect to (i) reductions in the balance of
such Securitized Receivable as a result of any defective or
rejected goods or set off by the obligor of such Securitized
Receivable transferred by such Person, (ii) breaches of
representations or warranties by such Person in the Receivables
Sale Agreement or any other receivables sale agreements which
contain representations and warranties which are no broader in
scope and obligation than the representations and warranties
contained in the Receivables Sale Agreement and (iii)
indemnification of Seller, to the extent provided in the
Receivables Sale Agreement or any other receivables sale agreements
which contain indemnification terms and provisions which are no
broader in scope and obligation than the terms and provisions
contained in the Receivables Sale Agreement.
“Attributable Indebtedness” means, on any date,
(a) in respect of any Capitalized Lease of any Person, the
associated Capitalized Lease Obligations as of such date, and (b)
in respect of any Synthetic Lease, the capitalized amount or
principal amount of the remaining lease payments under the relevant
lease that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP if such lease were
accounted for as a Capitalized Lease.
“Average Accounts Securitization Proceeds”
means, for any period, as determined on a Consolidated basis,
without duplication, for POOLCORP and its Subsidiaries, the average
for such period of the total amount of borrowings or issuances of
instruments or securities in connection with any Accounts
Securitization as of each calendar month end during such
period.
“Average Total Funded Indebtedness” means, for
any period, as determined on a Consolidated basis, without
duplication, for POOLCORP and its Subsidiaries in accordance with
GAAP, the average for such period of the Total Funded Indebtedness
as of each calendar month end during such period.
“Average Total Leverage Ratio” means, for any
date, the ratio of (a) the sum of (i) the Average Total Funded
Indebtedness for the period of twelve (12) consecutive months
ending on or immediately prior to such date plus (ii) the Average
Accounts Securitization Proceeds for the period of twelve (12)
consecutive months ending on or immediately prior to such date to
(b) EBITDA for the period
of twelve (12) consecutive months ending on or immediately prior to
such date.
“Consolidated” means, when used with reference
to financial statements or financial statement items of POOLCORP
and its Subsidiaries, such statements or items on a consolidated
basis in accordance with applicable principles of consolidation
under GAAP.
“EBITDAR” means, for any period, the sum of the
following determined on a Consolidated basis, without duplication,
for POOLCORP and its Subsidiaries in accordance with GAAP:
(a) Net Income for such period plus (b) the
sum of the following to the extent deducted in determining Net
Income for such period: (i) income and franchise taxes, (ii)
Interest Expense, (iii) amortization, (iv) depreciation, (v) Rental
Expense, (vi) non-cash stock option expense and (vii) extraordinary
losses incurred other than in the ordinary course of business
less (c) any
extraordinary gains realized during such period other than in the
ordinary course of business.
“Hedging Agreement” means any agreement with
respect to any Interest Rate Contract, forward rate agreement,
commodity swap, forward foreign exchange ag
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