AMENDMENT NO. 12 TO RECEIVABLES PURCHASE AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 12 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT
(this “Amendment”), dated as
of May 20, 2008, 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.
SPE has
requested that the Agent and the Purchasers amend a certain definition in 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:
1.1. A
new Section 1.5 is hereby added to the RPA which reads as follows:
1.2. (a) Exhibit
I to the RPA is hereby amended to insert the following new defined terms therein
in their appropriate alphabetical order:
“Pool
Receivable” means any Receivable other than a Receivable owing from a
Specified Obligor.
“Specified
Obligor” means any of Phoenix Irrigation Services, Inc., Xxxxx
Xxxx d/b/a Elite Irrigation, Exstream Irriscape Systems Inc. and R K Greenery
Inc.
(b) Each of the following definitions in Exhibit I to the RPA is
hereby amended to replace each reference therein to “Receivable” or
“Receivables” with references to “Pool Receivable” and “Pool Receivables”,
respectively:
“Days
Sales Outstanding Ratio”
“Default
Ratio”
“Default
Trigger Ratio”
“Delinquency
Ratio”
“Dilution
Horizon Ratio”
“Dilution
Ratio”
“Dilution
Reserve”
“Loss
Horizon Ratio”
“Loss
Ratio”
“Loss
Reserve”
1.3. Section
2.6 of the RPA is hereby amended and restated in its entirety to read as
follows:
1.4. Section
7.1(j)(2) of the RPA is hereby amended and restated in its entirety to read as
follows:
(2) each
Lock-Box and Collection Account (other than a Cash Collection Account) to be
subject at all times to a Collection Account Agreement that is in full force and
effect.
1.5. Section
7.2(b) of the RPA is hereby amended to add the following before the period at
the end thereof:
, and
provided further, that nothing herein shall be deemed to require a Collection
Account Agreement to be executed with respect to any Cash Deposit
Account
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1.6. Section
8.2(b)(i) of the RPA is hereby amended and restated in its entirety to read as
follows:
(i) a
Collection Account Agreement substantially in the form of Exhibit VI with each
bank at which any Collection Account (other than a Cash Deposit Account) is
maintained at any time,
1.7. Section
8.5 of the RPA is hereby amended and restated in its entirety to read as
follows:
(a) The
Servicer shall prepare and forward to the Agent (i) on the 15th day of
each month and at such times as the Agent shall request, a Monthly Report and
(ii) at such times as the Agent shall request, but no more frequently than
weekly, a listing by Obligor of all Receivables together with an aging of such
Receivables.
(b) In
addition to the Monthly Reports and other reports required under
Section 8.5(a), on Wednesday of each week, or if any such day is not a Business
Day, on the next succeeding Business Day (each, a “Weekly Reporting
Date”), the Servicer shall prepare and forward to the Agent a Weekly
Report for the Weekly Reporting Period then most recently ended. In
the event of a material problem with or an outage of the Servicer’s computer
systems, the Servicer may request an extension of a Weekly Reporting
Date.
1.8. Section
9.1(f) of the RPA is hereby amended and restated in its entirety to read as
follows:
(f) As
at the end of any calendar month:
(i) the
three month rolling average Delinquency Ratio shall exceed 14% for the months of
October through April or 7% at any other time;
(ii) the
three month rolling average Default Trigger Ratio shall exceed 4.0% for the
months of October through April or 3.0% at any other time;
(iii) the
three month rolling average Dilution Ratio shall exceed 11.5% for the months of
October through April or 9.5% at any other time;
(iv) the
three month rolling average Days Sales Outstanding Ratio for SCP Distributors
LLC and Superior Pool Products LLC shall exceed 45 for the months of October
through April or 38 at any other time; or
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(v) the
three month rolling average Days Sales Outstanding Ratio for Horizon
Distributors, Inc. shall exceed 85 for the months of October through April or 75
at any other time.
1.9. Section
9.1(o) of the RPA is hereby amended and restated in its entirety to read as
follows:
(o) Any
Collection Account Agreement for any applicable Collection Account (other than a
Cash Deposit Account) and any PO Box Agreement (other than PO Box Agreements to
be executed by Superior Pool Products LLC (“Superior
Pool”)) for any applicable Post Office Box shall not have been properly
executed and delivered on or before April 30, 2003; provided that with respect
to any Superior Pool Post Office Boxes such Post Office Box and a corresponding
PO Box Agreement shall not have been properly established and/or executed and
delivered, as applicable, on or before June 30, 2003.
1.10. Section
10.3 of the Existing Agreement is hereby amended to insert after “on demand” in
each place where it appears the following:
(and, in
the absence of demand, within 30 days after presentation of an invoice therefor
setting forth in reasonable detail the basis for the fees and charges
therein).
1.11. The
following definitions in Exhibit I to the RPA are hereby amended and restated in
their entirety to read, respectively, as follows:
“Dilution Horizon
Ratio” means, at any time, a percentage equal to (a) the sum of (i) 100%
of the Gross Sales generated by the Originators during the month most recently
ended, plus (ii) 50% of the Gross Sales generated by the Originators during the
month preceding the month most recently ended, divided by (b) the aggregate
Outstanding Balance of total Pool Receivables which are not Delinquent
Receivables as of the close of business of the Servicer at such
date.
“Facility
Termination Date” means the earliest of (i) May 19, 2009,
(ii) the Liquidity Termination Date and (iii) the Amortization
Date.
“Liquidity
Termination Date” means May 19, 2009.
“Loss Horizon
Ratio” means, as of the last day of a calendar month, a percentage equal
to (a) the sum of (i) 100% of the Gross Sales generated by the Originators
during the three calendar months then ending on such date, plus (ii) 50% of the
Gross Sales generated by the Originators during the fourth calendar month prior
to such date, divided by (b) the aggregate Outstanding Balance of total Pool
Receivables which are not Delinquent Receivables as of the close of business of
the Servicer on such date.
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“Loss
Percentage” means, at any time, the greater of (i) two (2) times the
product of (a) the Loss Ratio times (b) the Loss Horizon Ratio or (ii)
10%.
“Purchase
Limit” means $135,000,000 through August 31, 2008 and thereafter,
$95,000,000.
1.12. Exhibit
I to the RPA is hereby amended to insert the following new defined terms therein
in their appropriate alphabetical order:
“Cash Deposit
Accounts” means those bank accounts listed in the second table on Exhibit
IV hereto.
“Gross
Sales” means, for any period, the aggregate Original Balance of all Pool
Receivables generated by the Originators in such period.
“Weekly
Report” means a report, in substantially the form of Exhibit X-1 hereto
(appropriately completed), furnished by the Servicer to the Agent pursuant to
Section 8.5(b).
“Weekly Reporting
Period” means each weekly period commencing on a Monday and ending on a
Sunday.
1.13. Each
reference in the RPA to “gross sales” or “aggregate gross sales” is hereby
replaced with “Gross Sales.”
1.14. Each
reference in the RPA to “Monthly Report” is hereby replaced with a reference to
any “Monthly Report and/or Weekly Report, as applicable”.
1.15. A
new Exhibit X-1 in the form of Annex A hereto is hereby added to the
RPA.
1.16. Exhibit
IV to the RPA is hereby amended and restated in its entirety to read as set
forth in Annex B hereto.
1.17. 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.
|
$137,700,000
through August 31, 2008; and
|
$96,900,000
thereafter
|
1
102% of Purchase Limit
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1.18. Numbered
clause 9 in Part I of Schedule B is hereby amended to insert before the period
at the end thereof “(other than any Cash Collection Account)”.
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>
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 Treasurer
JS SILOED
TRUST
By: JPMorgan
Chase Bank, N.A., as Administrative Trustee
By: /s/ Xxxxxx Xxxxx
Its:
Vice President
JPMORGAN
CHASE BANK, N.A.,
as
a Financial Institution and as Agent
By: /s/ Xxxxxx
Xxxxx
Its: Vice
President
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