amend13assetsec.htm


    
 

            EXHIBIT 10.1


    AMENDMENT
NO. 13 TO RECEIVABLES PURCHASE AGREEMENT

    


    THIS AMENDMENT
(this “Amendment”), dated as
of January 15, 2009, 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 definition 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.

     

    1.1           Section
9.1(f)(i) of the RPA is hereby amended and restated in its entirety to read as
follows:

     

    (i)           the
three month rolling average Delinquency Ratio shall exceed 25% for the months of
October through April or 7% at any other time;

     

    1.2.           Section
9.1(f)(ii) of the RPA is hereby amended and restated in its entirety to read as
follows:

     

    (ii)           the
three month rolling average Default Trigger Ratio shall exceed 6.0% for the
months of October through April or 3.0% at any other time;

     

    1.3.           Section
10.2 of the RPA is hereby amended and restated in its entirety to read as
follows:

     

    Section
10.2  Increased Cost and Reduced
Return; Accounting Based Consolidation Event.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (a) If
after the date hereof, any Affected Entity shall be charged any fee, expense or
increased cost on account of the adoption of any applicable law, rule or
regulation (including any applicable law, rule or regulation regarding capital
adequacy), any accounting principles or any change in any of the foregoing, or
any change in the interpretation or administration thereof by the Financial
Accounting Standards Board (“FASB”),
any governmental authority, any central bank or any compara­ble agency
charged with the interpretation or administration thereof, or compliance with
any request or directive (whether or not having the force of law) of any such
authority or agency (a “Regulatory
Change”):  (i) that subjects any Affected Entity to any charge
or withholding on or with respect to any Funding Agreement or an Affected
Entity's obligations under a Funding Agreement, or on or with respect to the
Receivables, or changes the basis of taxation of payments to any Affected Entity
of any amounts payable under any Funding Agreement (except for changes in the
rate of tax on the overall net income of a Affected Entity or taxes excluded by
Section 10.1)
or (ii) that imposes, modifies or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of an Affected Entity, or credit extended by an
Affected Entity pursuant to a Funding Agreement or (iii) that imposes any
other condition the result of which is to increase the cost to an Affected
Entity of performing its obligations under a Funding Agreement, or to reduce the
rate of return on an Affected Entity's capital as a consequence of its
obligations under a Funding Agreement, or to reduce the amount of any sum
received or receivable by an Affected Entity under a Funding Agreement or to
require any payment calculated by reference to the amount of interests or loans
held or interest received by it, then, upon demand by the Agent, Seller shall
pay to the Agent, for the benefit of the relevant Affected Entity, such amounts
charged to such Affected Entity or such amounts to otherwise compensate such
Affected Entity for such increased cost or such reduction.  For the
avoidance of doubt, if the issuance of FASB Interpretation No. 46, or any other
change in accounting standards or the issuance of any other pronouncement,
release or interpretation, causes or requires the consolidation of all or a
portion of the assets and liabilities of Company or Seller with the assets and
liabilities of the Agent, any Financial Institution or any other Affected
Entity, such event shall constitute a circumstance on which such Affected Entity
may base a claim for reimbursement under this Section.

     

    (b) If
after the date hereof, any Accounting Based Consolidation Event shall occur
which is not the
result of a Regulatory Change, then, upon demand by the Agent, Seller shall pay
to the Agent, for the benefit of the relevant Affected Entity, such amounts as
such Affected Entity reasonably determines will compensate or reimburse such
Affected Entity for any resulting (i) fee, expense or increased cost charged to,
incurred or otherwise suffered by such Affected Entity, (ii) reduction
in  the rate of return on such Affected Entity’s capital or reduction
in the amount of any sum received or receivable by such Affected Entity, or
(iii) internal capital charge or other imputed cost determined by such Affected
Entity to be allocable to Seller or the transactions contemplated in this
Agreement in connection therewith; provided,
however, that (i) in no event may any Affected Entity (or the Agent on
its behalf) claim or receive reimbursement or compensation for amounts under
this Section
10.2(b) that would result in its total compensation (inclusive of Yield and
fees) exceeding the total compensation that would have been payable to such
Affected Entity immediately prior to such Accounting Based Consolidation Event
if it were a Financial Institution purchasing or committing to purchase
Purchaser Interest pursuant to Article IV of this Agreement and (ii) amounts
under this Section 10.2(b) must be demanded within ninety (90) days after the
occurrence hereunder of any such fee, expense, cost or
charge.  Subject to clause (ii) of the proviso in the preceding
sentence, amounts under this Section 10.2(b) may be demanded at any time without
regard to the timing of issuance of any financial statement by a Seller Party or
by any Affected Entity.

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    (c)
Payment of any sum pursuant to this Section 10.2 shall be made by the Seller to
the Agent, for the benefit of the relevant Affected Entity, not later than ten
(10) days after any such demand is made.  A certificate of any
Affected Entity, signed by an authorized officer claiming compensation under
this Section 10.2 and setting forth in reasonable detail the additional amount
to be paid for its benefit and explaining the manner in which such amount was
determined shall be presumptive evidence of the amount to be paid, absent
manifest error.  Amounts under this Section 10.2 may be demanded at
any time without regard to the timing of issuance of any financial statement by
Trust or any Affected Entity.

     

    1.4.           A
new Section 14.15 is hereby added to the RPA which reads as
follows:

     

    Section
14.15.  Federal
Reserve.  Notwithstanding any other provision of this Agreement
to the contrary, any Purchaser may at any time pledge or grant a security
interest in all or any portion of its rights (including, without
 limitation, any Purchaser Interest and any rights to payment of Capital
and Yield) under this Agreement to secure obligations of such Purchaser to a
Federal Reserve Bank, without notice to or consent of the Seller, any other
Purchaser or the Agent; provided
that no such pledge or grant of a security interest shall release a
Purchaser from any of its obligations hereunder, or substitute any such pledgee
or grantee for such Purchaser as a party hereto.

     

    1.5.           The
following definitions in Exhibit I to the RPA are hereby amended and restated in
their entirety to read, respectively, as follows:

     

    “Default
Fee” means with respect to any amount due and payable by Seller in
respect of any Aggregate Unpaids, an amount equal to the greater of (i) $1000
and (ii) interest on any such unpaid Aggregate Unpaids at a rate per annum equal
to 3.50% above the Alternate Base Rate.

     

    “Dilution Reserve
Percentage” means, at any time, a percentage equal to:

     

    
      [(2.5xED)]
+ (DS-ED)xDS/ED

    

     

    where:

     

    ED      =
the twelve month rolling average Dilution Ratio.

     

    
                  DS  = the
highest three month rolling average Dilution Ratio, as applicable,
during
the immediately preceding twelve calendar month period.

       

    

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    “LIBO
Rate” means the rate per annum equal to the sum of (i) (a) the applicable
British Bankers’ Association Interest Settlement Rate for deposits in U.S.
dollars appearing on Reuters BBA Libor Rates Page 3750 as of 11:00 a.m. (London
time) two Business Days prior to the first day of the relevant Tranche Period,
and having a maturity equal to such Tranche Period, provided that, (i) if
Reuters BBA Libor Rates Page 3750 is not available to the Agent for any reason,
the applicable LIBO Rate for the relevant Tranche Period shall instead be the
applicable British Bankers’ Association Interest Settlement Rate for deposits in
U.S. dollars as reported by any other generally recognized financial information
service as of 11:00 a.m. (London time) two Business Days prior to the first day
of such Tranche Period, and having a maturity equal to such Tranche Period, and
(ii) if no such British Bankers’ Association Interest Settlement Rate is
available to the Agent, the applicable LIBO Rate for the relevant Tranche Period
shall instead be the rate determined by the Agent to be the rate at which
JPMorgan Chase Bank, N.A. offers to place deposits in U.S. dollars with
first-class banks in the London interbank market at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Tranche Period,
in the approximate amount to be funded at the LIBO Rate and having a maturity
equal to such Tranche Period, divided by (b) one minus the maximum aggregate
reserve requirement (including all basic, supplemental, marginal or other
reserves) which is imposed against the Agent in respect of Eurocurrency
liabilities, as defined in Regulation D of the Board of Governors of the Federal
Reserve System as in effect from time to time (expressed as a decimal),
applicable to such Tranche Period plus (ii) 3.50% per annum.  The LIBO
Rate shall be rounded, if necessary, to the next higher 1/16 of 1%.

     

    “Loss
Percentage” means, at any time, the greater of (i) two and one-half (2.5)
times the product of (a) the Loss Ratio times (b) the Loss Horizon Ratio or (ii)
20%.

     

    “Purchase
Limit” means $75,000,000.

     

    1.6.           Exhibit
I to the RPA is hereby amended to insert the following new defined terms therein
in their appropriate alphabetical order:

     

    “Accounting Based
Consolidation Event” means the consolidation, for financial and/or
regulatory accounting purposes, of all or any portion of the assets and
liabilities of Trust that are subject to this Agreement or any other Transaction
Document with all or any portion of the assets and liabilities of an Affected
Entity.  An Accounting Based Consolidation Event shall be deemed to
occur on the date any Affected Entity shall acknowledge in writing that any such
consolidation of the assets and liabilities of Trust shall occur.

     

    “Affected
Entity” means (i) any Funding Source, (ii) any agent, administrator or
manager of Trust or Jupiter, or (iii) any bank holding company in respect of any
of the foregoing.

     

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    “Alternate Base
Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds
Effective Rate in effect on such day plus 1⁄2 of 1% and (c) the LIBO Rate for
a one month Tranche Period on such day (or if such day is not a Business Day,
the immediately preceding Business Day) less 2.50%, provided that, for the
avoidance of doubt, the LIBO Rate for any day shall be based on the rate
appearing on the Reuters BBA Libor Rates Page 3750 (or on any successor or
substitute page of such page) at approximately 11:00 a.m. London time on such
day.  Any change in the Alternate Base Rate due to a change in the
Prime Rate, the Federal Funds Effective Rate or the LIBO Rate shall be effective
from and including the effective date of such change in the Prime Rate, the
Federal Funds Effective Rate or the LIBO Rate, respectively.

     

    “Base
Rate” means, for any day, a rate per annum equal to the sum of (i) the
greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1⁄2 of 1%, plus (ii)
2.50% per annum.  Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.

     

    1.7           Each
reference in Sections 4.1, 4.4 and 4.5 of the RPA, the defined terms “Discount
Rate” and “Tranche Period” in Exhibit I to the RPA; and Exhibit II to the RPA to
“Prime Rate” is hereby replaced with “Base Rate.”

     

    1.8.           The
table in Schedule A to the RPA is hereby amended and restated in its entirety to
read as follows:

     

    
      
        
          	
                  Financial
      Institution

                	
                  Commitment1

                
	 
      	 
      
	
                  JPMorgan
      Chase Bank, N.A.

                	
                  $76,500,000

                


        

      

    

    


     

    Section
2.                      Representations and
Warranties.  In order to induce the Agent and the Purchasers to
enter into this Amendment, each of the Seller Parties hereby represents and
warrants to the Agent and the Purchasers that (a) after giving affect to this
Amendment each of such Person’s representations and warranties contained in
Article V of the RPA 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).

     

    
      

      
        1 102% of
Purchase Limit

         

      

    

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    Section
3.                      Conditions Precedent.
This Amendment shall become effective as of the date first above written upon
(a) receipt by the Agent of counterparts of this Amendment duly executed by each
of the parties hereto and (b) receipt by the Agent of counterparts of a fourth
amendment and restatement of the Fee Letter, duly executed by the parties
thereto, and payment of the Amendment Fee (as defined therein).

     

    Section
4.                      Miscellaneous.

     

    4.1.           Except
as expressly modified hereby, the RPA 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).

     

    4.2.   This
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.

     

    <signature
pages follow>

     

     

    


      
        
           


        

        
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    IN WITNESS
WHEREOF, the parties hereto have caused this Amendment to be executed and
delivered by their duly authorized officers as of the date hereof.

     

    SUPERIOR
COMMERCE LLC

                                                            

    
       

      
        
          
            
              	
                       By:

                    	 /s/ Steven
      Cassanova
	 Name:	      
      Steven Cassanova
	 Title:	      
      Treasurer


            

          

        

      

       

    

    Name:

    Title:

    


    


    SCP
DISTRIBUTORS LLC

     

    
      	
               By:

            	 /s/ Mark W.
      Joslin
	 Name:	     
      Mark W. Joslin
	 Title:	     
      Vice President and Treasurer




     

    


    


    


    JS SILOED
TRUST

    


    By:  JPMorgan
Chase Bank, N.A., as Administrative Trustee

    


    
      	
               By:

            	 /s/ Trisha
      Lesch
	 Its:	      
      Vice President

                                                  

     

     

    JPMORGAN
CHASE BANK, N.A.,

        as
a Financial Institution and as Agent

    


    
      	
               By:

            	 /s/ Trisha
      Lesch
	 Its:	      
      Vice President