Exhibit 2.3
FIRST AMENDMENT TO PRIVATE LABEL
BUSINESS CREDIT PROGRAM AGREEMENT
This First Amendment to Private Label Business Credit Program Agreement
("Amendment") is made as of the 29th day of December, 2003, by and between
LESCO, Inc., an Ohio corporation ("LESCO"), LESCO Services, Inc., an Ohio
corporation ("LSI"), AIM Lawn & Garden Products, Inc., an Ohio corporation
("AIM"), and LESCO Technologies, LLC, a Nevada limited liability company
("LTLLC" and together with LESCO, LSI and AIM, the "LESCO Parties"), on the one
hand, and GE Capital Financial Inc., a Utah industrial loan corporation
("Bank"), on the other, and amends that certain Private Label Business Credit
Program Agreement, dated December 16, 2003, by and among Bank and the LESCO
Parties (the "Agreement").
RECITALS:
WHEREAS, concurrently with the execution and delivery of the Agreement,
the LESCO Parties and Bank executed the Purchase Agreement for the purpose of
transferring the interest of LESCO in the Existing Accounts to Bank and
incorporating such Existing Accounts into the Program; and
WHEREAS, in connection with certain inter-creditor negotiations related
to the consummation of the purchase of the Existing Accounts, and prior to the
Program Commencement Date, Bank and the LESCO Parties determined that the
provisions of the Agreement relating to "in-store payments", as provided for in
Section 6.17 of the Agreement, required revision;
NOW THEREFORE, in consideration of the following terms and conditions,
and for good and valuable consideration the receipt and sufficiency of which is
acknowledged, the LESCO Parties and Bank agree as follows:
I. AMENDMENT TO AGREEMENT
(a) AMENDMENT TO SECTION 6.17.
(1) Section 6.17(a) of the Agreement is hereby amended by
deleting the second sentence thereto in its entirety and replacing such sentence
with the following:
If any such in-store payment is made (or LESCO otherwise receives any
payment on an Account), LESCO shall give the Accountholder a receipt
therefore and shall be deemed to hold such payment as property of, and
in trust for, Bank as follows: (i) during the Interim Transition
Period, until such payment is delivered to Bank, and (ii) after the
Interim Transition Period, at the election of Bank, until (x) such
payment is delivered to Bank, or (y) Bank is informed of the amount of
such payment in accordance with Section 6.17(b); provided, that Bank
shall be deemed to have elected the treatment provided for
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under clause (x) unless and until Bank shall have notified LESCO in
writing of its election to include the treatment under clause (y) as an
alternative procedure for in-store payment reconciliation.
(2) Section 6.17(b) of the Agreement is hereby amended by
deleting the second sentence thereto in its entirety and replacing such sentence
with the following:
(b) It is the intention and expectation of Bank
and LESCO that notice of each in-store payment or credit slip (or the
forwarding the amount thereof) with respect to any Account shall be
transmitted to Bank within 24 hours of each such transaction (which
notice or remittance, as the case may be, shall include the amounts and
Accounts as to which such transaction relates); provided, that in no
case shall any such data transmission or remittance, as the case may
be, occur later than (i) in the case of purchases at Service
Centers(R), three (3) days, and (ii) in the case of purchases from
Stores-On-Wheels(R) or from LESCO's other outside sales force, five (5)
days after the receipt of such payment or issuance of such credit. An
in-store payment will be credited to the relevant Account as of the
date Bank applies the amount of such payment to reduce amounts payable
by Bank to LESCO (or if no such application is made, as of the date
Bank receives such in-store payment from LESCO).
II. GENERAL
(a) DEFINITIONS. Capitalized terms used in this Amendment, unless
defined herein, shall have the meanings specified in the Agreement.
(b) AUTHORITY FOR AMENDMENT. The execution, delivery and
performance of this Amendment has been duly authorized by all requisite
corporate action on the part of the LESCO Parties and Bank and upon execution by
each party, will constitute a legal, binding obligation thereof.
(c) EFFECT OF AMENDMENT. Except as specifically amended hereby,
the Agreement, and all terms contained therein, remains in full force and
effect. The Agreement, as amended by this Amendment, constitutes the entire
understanding of the parties with respect to the subject matter hereof.
(d) BINDING EFFECT; SEVERABILITY. Each reference herein to a party
hereto shall be deemed to include its successors and assigns, all of whom shall
be bound by this Amendment and in whose favor the provisions of this Amendment
shall inure. In case any one or more of the provisions contained in this
Amendment shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
(e) FURTHER ASSURANCES. The parties hereto agree to execute such
other documents and instruments and to do such other and further things as may
be necessary or desirable for the execution and implementation of this Amendment
and the consummation of the transactions contemplated hereby and thereby.
(f) GOVERNING LAW. This Amendment shall be governed by and
construed in
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accordance with the laws of the State of Utah.
(g) COUNTERPARTS. This Amendment may be executed in counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one agreement. Transmission by facsimile of an
executed counterpart of this Amendment shall be deemed to constitute due and
sufficient delivery of such counterpart; provided however, that the parties
hereby agree to deliver to each other an original of such counterpart promptly
after delivery of the facsimile.
(h) EFFECTIVE DATE OF AMENDMENT. This Amendment shall become
effective as of the effective date set forth below when executed and delivered
by the parties hereto.
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IN WITNESS WHEREOF, the LESCO Parties and Bank have caused this Amendment to be
executed by their respective duly authorized officers as of the date set forth
below.
EFFECTIVE DATE: December 29th, 2003
BANK:
GE CAPITAL FINANCIAL INC.
By: ___________________________
Name:
Title:
LESCO:
LESCO, INC.
By: ___________________________
Name: Xxxxxxx Xxxxxxxxxx
Its: Senior Vice President and Chief Financial Officer
LESCO SERVICES, INC.
By: ___________________________
Name: Xxxxxxx Xxxxxxxxxx
Its: Vice President and Chief Financial Officer
LESCO TECHNOLOGIES, LLC
By: ___________________________
Name: Xxxxxxx Xxxxxxxxxx
Its: Vice President and Chief Financial Officer
AIM LAWN & GARDEN PRODUCTS, INC.
By: ___________________________
Name: Xxxxxxx Xxxxxxxxxx
Its: Vice President and Chief Financial Officer
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