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 Se
