AMENDMENT NO. 10 TO RECEIVABLES PURCHASE AGREEMENT
EXHIBIT
10.29
AMENDMENT
NO. 10 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT
(this “Amendment”), dated as
of December 20, 2007, is entered into by and among 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 provisions 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.
(a) The
definitions of the following terms set forth in Exhibit I to the RPA are hereby
deleted in their entirety:
“Consolidated
EBITDA”
“Consolidated
EBITR”
“Consolidated
Indebtedness”
“Consolidated
Interest Expense”
“Consolidated
Net Income”
“Consolidated
Net Worth”
“Consolidated
Rentals”
“EBITR”
(b) The
following new definitions are hereby inserted into Exhibit I to the RPA in their
appropriate alphabetical order:
“Accounts
Securitization” means, with respect to POOLCORP and its Subsidiaries
(other than Seller), any pledge, sale, transfer, contribution, conveyance or
other disposition of (a) “accounts”, “chattel paper”, “instruments” or “general
intangibles” (each as defined in the UCC) arising in connection with the sale of
goods or the rendering of services by such Person, including, without
limitation, the related rights to any finance, interest, late payment or similar
charges (such items, the “Securitized
Receivables”), (b) such Person’s interest in the inventory or goods the
sale of which by such Person gave rise to such Securitized Receivable (but only
to the extent such inventory or goods consists of returned or repossessed
inventory or goods, if any), (c) all other guaranties, letters of credit,
insurance and security interests or liens purporting to secure or support
payment of such Securitized Receivable, (d) all insurance contracts, service
contracts, books and records associated with such Securitized Receivable, (e)
any lockbox, post office box or similar deposit account related solely to the
accounts being transferred, (f) cash collections and cash proceeds of such
Securitized Receivable and (g) any proceeds of the foregoing (all such items
referenced in clauses (a) through (g), the “Transferred
Assets”) which such sale, transfer, contribution, conveyance or other
disposition is funded by the recipient of such Transferred Assets in whole or in
part by borrowings or the issuance of instruments or securities that are paid
principally from the cash derived from such Transferred Assets; provided
that the aggregate amount of gross proceeds available to POOLCORP or any
Subsidiary in connection with all such transactions shall not at any time exceed
$175,000,000; and provided
further that such sale, transfer, contribution, conveyance or other
disposition and any Indebtedness arising from such sale, transfer, contribution,
conveyance or other disposition shall be without recourse to POOLCORP or any of
its Subsidiaries (other than Seller) except with respect to (i) reductions in
the balance of such Securitized Receivable as a result of any defective or
rejected goods or set off by the obligor of such Securitized Receivable
transferred by such Person, (ii) breaches of representations or warranties by
such Person in the Receivables Sale Agreement or any other receivables sale
agreements which contain representations and warranties which are no broader in
scope and obligation than the representations and warranties contained in the
Receivables Sale Agreement and (iii) indemnification of Seller, to the extent
provided in the Receivables Sale Agreement or any other receivables sale
agreements which contain indemnification terms and provisions which are no
broader in scope and obligation than the terms and provisions contained in the
Receivables Sale Agreement.
“Attributable
Indebtedness” means, on any date, (a) in respect of any Capitalized Lease
of any Person, the associated Capitalized Lease Obligations as of such date, and
(b) in respect of any Synthetic Lease, the capitalized amount or principal
amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP if such lease were accounted for as a Capitalized Lease.
“Average Accounts
Securitization Proceeds” means, for any period, as determined on a
Consolidated basis, without duplication, for POOLCORP and its Subsidiaries, the
average for such period of the total amount of borrowings or issuances of
instruments or securities in connection with any Accounts Securitization as of
each calendar month end during such period.
2
“Average Total
Funded Indebtedness” means, for any period, as determined on a
Consolidated basis, without duplication, for POOLCORP and its Subsidiaries in
accordance with GAAP, the average for such period of the Total Funded
Indebtedness as of each calendar month end during such period.
“Average Total
Leverage Ratio” means, for any date, the ratio of (a) the sum of (i) the
Average Total Funded Indebtedness for the period of twelve (12) consecutive
months ending on or immediately prior to such date plus (ii) the Average
Accounts Securitization Proceeds for the period of twelve (12) consecutive
months ending on or immediately prior to such date to (b) EBITDA for the period of twelve
(12) consecutive months ending on or immediately prior to such
date.
“Consolidated”
means, when used with reference to financial statements or financial statement
items of POOLCORP and its Subsidiaries, such statements or items on a
consolidated basis in accordance with applicable principles of consolidation
under GAAP.
“EBITDAR”
means, for any period, the sum of the following determined on a Consolidated
basis, without duplication, for POOLCORP and its Subsidiaries in accordance with
GAAP: (a) Net Income for such period plus (b) the sum of
the following to the extent deducted in determining Net Income for such period:
(i) income and franchise taxes, (ii) Interest Expense, (iii) amortization, (iv)
depreciation, (v) Rental Expense, (vi) non-cash stock option expense and (vii)
extraordinary losses incurred other than in the ordinary course of business
less (c) any
extraordinary gains realized during such period other than in the ordinary
course of business.
“Hedging
Agreement” means any agreement with respect to any Interest Rate
Contract, forward rate agreement, commodity swap, forward foreign exchange
agreement, currency swap agreement, cross-currency rate swap agreement, currency
option agreement or other agreement or arrangement designed to alter the risks
of any Person arising from fluctuations in interest rates, currency values or
commodity prices, all as amended, restated, supplemented or otherwise modified
from time to time.
“Interest
Expense” means, with respect to POOLCORP and its Subsidiaries for any
period, the gross interest expense (including, without limitation, interest
expense attributable to Capitalized Leases and all net payment obligations
pursuant to Hedging Agreements) of POOLCORP and its Subsidiaries, all determined
for such period on a Consolidated basis, without duplication, in accordance with
GAAP.
“Interest Rate
Contract” means any interest rate swap agreement, interest rate cap
agreement, interest rate floor agreement, interest rate collar agreement,
interest rate option or any other agreement regarding the hedging of interest
rate risk exposure executed in connection with hedging the interest rate
exposure of any Person and any confirming letter executed pursuant to such
agreement, all as amended, restated, supplemented or otherwise modified from
time to time.
3
“Net
Income” means, with respect to POOLCORP and its Subsidiaries, for any
period of determination, the net income (or loss) of POOLCORP and its
Subsidiaries for such period, determined on a Consolidated basis in accordance
with GAAP; provided that there
shall be excluded from Net Income (a) the net income (or loss) of any Person
(other than a Subsidiary which shall be subject to clause (c) below), in which
POOLCORP or any of its Subsidiaries has a joint interest with a third party,
except to the extent such net income is actually paid to POOLCORP or any of its
Subsidiaries by dividend or other distribution during such period, (b) the net
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of such Person or is merged into or consolidated with such Person or any of its
Subsidiaries or that Person’s assets are acquired by such Person or any of its
Subsidiaries except to the extent included pursuant to the foregoing clause (a),
(c) the net income (if positive) of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
to POOLCORP or any of its Subsidiaries of such net income (i) is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
such Subsidiary or (ii) would be subject to any taxes payable on such dividends
or distributions.
“Operating
Lease” means, as to any Person as determined in accordance with GAAP, any
lease of property (whether real, personal or mixed) by such Person as lessee
which is not a Capitalized Lease.
“Rental
Expense” means, with respect to POOLCORP and its Subsidiaries for any
period, the aggregate fixed amounts payable with respect to Operating Leases of
POOLCORP and its Subsidiaries for such period, determined on a Consolidated
basis in accordance with GAAP.
“Total Funded
Indebtedness” means, with respect to POOLCORP and its Subsidiaries at any
date and without duplication, the sum of the following:
(i) all
liabilities, obligations and indebtedness for borrowed money including, but not
limited to, obligations evidenced by bonds, debentures, notes or other similar
instruments of any such Person;
(ii) all
obligations to pay the deferred purchase price of property or services of any
such Person (including, without limitation, all obligations under
non-competition, earn-out or similar agreements), except trade payables arising
in the ordinary course of business not more than ninety (90) days past
due;
4
(iii) the
Attributable Indebtedness of such Person with respect to such Person’s
obligations in respect of Capitalized Leases and Synthetic Leases (regardless of
whether accounted for as indebtedness under GAAP);
(iv) all
indebtedness of any other Person secured by a Lien on any asset owned or being
purchased by such Person (including indebtedness arising under conditional sales
or other title retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse;
(v) all
obligations, contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn, including, without
limitation, any Reimbursement Obligation, and banker’s acceptances issued for
the account of any such Person; and
(vi) all
Contingent Obligations of any such Person with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e)
above.
For all
purposes hereof, the Total Funded Indebtedness of any Person shall include the
indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person.
(c) The
definitions of the terms below set forth in Exhibit I to the RPA are hereby
amended and restated in their entirety to read, respectively, as
follows:
“Contingent
Obligation” means, with respect to POOLCORP and its Subsidiaries, without
duplication, any obligation, contingent or otherwise, of any such Person
pursuant to which such Person has directly or indirectly guaranteed any
Indebtedness of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of any
such Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness (whether arising by virtue of
partnership arrangements, by agreement to keep well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
condition or otherwise) or (b) entered into for the purpose of assuring in
any other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part); provided
that the term “Contingent Obligation” shall not include endorsements for
collection or deposit in the ordinary course of business.
“GAAP”
means generally accepted accounting principles, as recognized by the American
Institute of Certified Public Accountants and the Financial Accounting Standards
Board, consistently applied and maintained on a consistent basis for POOLCORP
and its Subsidiaries throughout the period indicated and (subject to the next
sentence) consistent with the prior financial practice of the US Borrower and
its Subsidiaries. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Transaction
Document, and either the Seller Parties or the Required Financial Institutions
shall so request, the Agent, the Purchasers and the Seller Parties shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP; provided that, until
so amended, (a) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (b) the Seller
Parties shall provide to the Agent and the Purchasers financial statements and
other documents required under the Transaction Documents or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in
GAAP.
5
“Synthetic
Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product where such
transaction is considered borrowed money indebtedness for tax purposes but is
classified as an Operating Lease in accordance with GAAP.
(d) Sections
9.1(h), (i) and (j) of the RPA are hereby amended and restated in their entirety
to read as follows:
(h) As
of any fiscal quarter end of POOLCORP, the Average Total Leverage Ratio shall be
greater than or equal to 3.25 to 1.00.
(i) [intentionally
deleted].
(j) As
of any fiscal quarter end of POOLCORP, the ratio of (i) EBITDAR for the period
of four (4) consecutive fiscal quarters ending on or immediately prior to such
date to (ii) the sum of (A) Interest Expense paid or payable in cash for the
period of four (4) consecutive fiscal quarters ending on or immediately prior to
such date plus
(B) Rental Expense for the period of four (4) consecutive fiscal quarters ending
on or immediately prior to such date shall be less than 2.25 to
1.00.
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 II of the RSA or Article V of the RPA, as applicable, 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 partnership, as applicable, powers and authority and have
been duly authorized by all necessary corporate or limited partnership, 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).
6
Section
3. Condition Precedent.
This Amendment shall become effective as of the date first above written upon
receipt by the Agent of this Amendment duly executed by each of the parties
hereto.
Section
4. Miscellaneous.
(a) 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).
(b)
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>
7
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/
Xxxxxx Xxxxxxxxx
Name: Xxxxxx
Xxxxxxxxx
Title: Treasurer
SCP
DISTRIBUTORS LLC
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Vice
President and CFO
JS SILOED
TRUST
By: JPMorgan
Chase Bank, N.A., as Administrative Trustee
/s/
Xxxxxxx X. Xxxxxx
By: Xxxxxxx
X. Xxxxxx
Its: Vice
President
JPMORGAN
CHASE BANK, N.A.,
as
a Financial Institution and as Agent
/s/
Xxxxxxx X. Xxxxxx
By: Xxxxxxx
X. Xxxxxx
Its: Vice
President
8
