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.
