rpaamend14.htm


     

     

    

 

    AMENDMENT
NO. 14 TO RECEIVABLES PURCHASE AGREEMENT

    


    THIS AMENDMENT
(this “Amendment”), dated as
of May 19, 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 4.1 of the RPA is hereby amended and restated in its entirety to read as
follows:

     

    Section
4.1   Financial Institution
Funding.  Each
Purchaser Interest of the Financial Institutions shall accrue Yield for each day
during its Tranche Period at a rate per annum equal to (a) the sum
of  the LIBO Rate plus 2% per annum, or (b) the Base Rate plus 1%, in
accordance with the terms and conditions hereof.  Until Seller gives
notice to the Agent of another Discount Rate in accordance with Section 4.4, the
initial Discount Rate for any Purchaser Interest transferred to the Financial
Institutions by Trust pursuant to the terms and conditions hereof shall be the
Base Rate.  If the Financial Institutions acquire by assignment from
Trust any Purchaser Interest pursuant to Article XIII, each Purchaser Interest
so assigned shall each be deemed to have a new Tranche Period commencing on the
date of any such assignment.

     

    1.2. 
Sections 9.1(f)(i) and (ii) of the RPA are hereby amended and restated in their
entirety to read, respectively, as follows:

     

    (i) 
the three month rolling average Delinquency Ratio shall exceed 25% for the
months of October through April, 14% for the month of May, or 12% at any other
time;

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (ii) 
the three month rolling average Default Trigger Ratio shall exceed 6% for the
months of October through April or 3.5% at any other time;

     

    1.3. 
The following new definition is hereby inserted in Exhibit I to the RPA in its
appropriate alphabetical order:

     

    “Commingling
Reserve” means, on any date, an amount equal to the product of (a) 5% for
the month ended April 30, 2009, and 11% for each month
thereafter,  times (b) the Net
Receivables Balance as of the close of business of the Servicer on such
date.

     

    1.4. 
The following definitions in Exhibit I to the RPA are hereby amended and
restated in their entirety to read, respectively, as follows:

     

    “Aggregate
Reserves” means, on any date of determination, the greater of (a) the sum
of the Commingling Reserve, Loss Reserve, the Yield Reserve and the Dilution
Reserve and (b) $12,000,000.

     

    “Alternate Base
Rate” means, for any day, a rate per annum equal to the greater of
(a) the Base Rate in effect on such day, and (b) the sum of (i) 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) plus (ii) 1.00%, 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
Base Rate, the Federal Funds Effective Rate or the LIBO Rate shall be effective
from and including the effective date of such change in the Base Rate, the
Federal Funds Effective Rate or the LIBO Rate, respectively.

     

    “Amortization
Date” means the earliest to occur of (i) the day on which any of the
conditions precedent set forth in Section 6.2 are not satisfied, (ii) the
Business Day immediately prior to the occurrence of an Amortization Event set
forth in Section 9.1(d)(ii), (iii) the Business Day specified in a written
notice from the Agent following the occurrence of any other Amortization Event,
(iv) the date which is 10 Business Days after the Agent’s receipt of written
notice from Seller that it wishes to terminate the facility evidenced by this
Agreement, and (v) August 19, 2009.

     

    “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 3.00% above the Alternate Base Rate.

     

    “Dilution
Ratio” means, at any time, a percentage equal to (i) the aggregate amount
of Dilutions which occurred during the complete calendar month period then most
recently ended, divided by (ii) the aggregate gross sales which occurred during
the preceding calendar month.

     

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

     

    “Facility
Termination Date” means the earliest of (i) August 19, 2009,
(ii)  the Liquidity Termination Date and (iii) the Amortization
Date.

     

    “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 Screen FRBD 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 Screen
FRBD 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 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) 2.50% per
annum.  The LIBO Rate shall be rounded, if necessary, to the next
higher 1/16 of 1%.

     

    “Liquidity
Termination Date” means August 19, 2009.

     

    “Purchase
Limit” means $25,000,000.

     

    “Tranche
Period” means, with respect to any Purchaser Interest held by a Financial
Institution:

     

    (a) 
if Yield for such Purchaser Interest is calculated on the basis of the LIBO
Rate, a period of one month or such other period as may be mutually agreeable to
the Agent and Seller, commencing on a Business Day selected by Seller or the
Agent pursuant to this Agreement.  Such Tranche Period shall end on
the day in the applicable succeeding calendar month which corresponds
numerically to the beginning day of such Tranche Period, provided, however, that
if there is no such numerically corresponding day in such succeeding month, such
Tranche Period shall end on the last Business Day of such succeeding month;
or

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

     

    (b) 
if Yield for such Purchaser Interest is calculated on the basis of the Base
Rate, a period commencing on a Business Day selected by Seller and agreed to by
the Agent, provided no such period shall exceed one month.

     

    If any
Tranche Period would end on a day which is not a Business Day, such Tranche
Period shall end on the next succeeding Business Day, provided, however, that in
the case of Tranche Periods corresponding to the LIBO Rate, if such next
succeeding Business Day falls in a new month, such Tranche Period shall end on
the immediately preceding Business Day.  In the case of any Tranche
Period for any Purchaser Interest which commences before the Amortization Date
and would otherwise end on a date occurring after the Amortization Date, such
Tranche Period shall end on the Amortization Date.  The duration of
each Tranche Period which commences after the Amortization Date shall be of such
duration as selected by the Agent.

     

    1.5. 
The table in Schedule A to the RPA is hereby amended and restated in its
entirety to read as follows:

     

    
      	
              Financial
      Institution

            	
              Commitment

            
	 
      	 
      
	
              JPMorgan
      Chase Bank, N.A.

            	
              $25,500,000

            


    

    


     

    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).

     

    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 fifth amendment and restatement of the Fee Letter, duly
executed by the parties thereto, and payment of the Amendment Fee (as defined
therein).

     

     

    
      
        
        

      

      
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    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/  Melanie
Housey                                                              

    Name: 
Melanie Housey

    Title: 
President


    


    SCP
DISTRIBUTORS LLC

     

    By:   /s/  Mark W.
Joslin                                                               

    Name: 
Mark W. Joslin

    Title: 
Vice Presidnet

    


    


    


    


    JS SILOED
TRUST

    


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

     

    By: 
/s/  Laura
Chittick                                                           

    Name: 
Laura Chittick

    Title: 
Vice President

    


     

    


    JPMORGAN
CHASE BANK, N.A.,

        as
a Financial Institution and as Agent

     

    
      By: 
/s/  Laura
Chittick                                                           

      Name: 
Laura Chittick

      Title: 
Vice President

      




    


    



    
      
        
          [SIGNATURE
PAGE TO AMENDMENT NO. 14 TO RECEIVABLES PURCHASE AGREEMENT]