AMENDMENT NO. 8 TO RECEIVABLES PURCHASE AGREEMENT
EXHIBIT
10.1
AMENDMENT
NO. 8 TO RECEIVABLES PURCHASE AGREEMENT
THIS
OMNIBUS AMENDMENT (this
“Amendment”), dated
as
of March 29, 2007, is entered into by and among is entered into by and among
SCP
Distributors LLC (“Distributors”),
Superior Commerce LLC (“SPE”),
JPMorgan Chase Bank, N.A. f/k/a Bank One, NA (Main Office Chicago), individually
(“JPMorgan
Chase”),
Jupiter Securitization Company LLC f/k/a Jupiter Securitization Corporation
(“Conduit”
and,
together with JPMorgan Chase, the “Purchasers”)
and
JPMorgan Chase Bank, N.A. f/k/a Bank One, NA (Main Office Chicago), as agent
for
the Purchasers (the“Agent”),
and
pertains to that certain RECEIVABLES
PURCHASE AGREEMENT
dated as
of March 27, 2003 by and among the SPE, Distributors, the Purchasers and the
Agent (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
Seller
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 “EBITDA”
and
“EBITR”
set
forth
in Exhibit I to the RPA are hereby amended and restated in their entirety to
read, respectively, as follows:
“EBITDA”
means,
for any period, the sum of the following determined on a Consolidated basis,
without duplication, for SCP Pool 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) non-cash stock option expense and (vi)
extraordinary losses incurred other than in the ordinary course of business
less
(c) any
extraordinary gains realized other than in the ordinary course of
business.
“EBITR”
means,
for any period, the sum of the following determined on a Consolidated basis,
without duplication, for SCP Pool 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) Rental
Expense, (iv) non-cash stock option expenses and (v) extraordinary losses
incurred other than in the ordinary course of business less
(c) any
extraordinary gains realized other than in the ordinary course of
business.
(b) Section
9.1(j) of the RPA is hereby amended and restated in its entirety to read as
follows:
“(j) As
of the
end of each fiscal quarter (i) EBITR 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,
to be
less than 2.75 to 1.0.”
Section 2. Representations
and Warranties.
In
order to induce the Agent and the Purchasers to enter into this Amendment,
each
of the Originators and the SPE 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).
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>
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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/Xxxxxxx
Xxx
Name:
Xxxxxxx Xxx
Title:
President
SCP
DISTRIBUTORS LLC
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title: Treasurer
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JUPITER
SECURITIZATION COMPANY LLC
By:
JPMorgan Chase Bank, N.A., its attorney-in-fact
By:
/s/ Xxxxxxx X. Xxxxxx
Its:
Vice President
JPMORGAN
CHASE BANK, N.A.,
as
a
Financial Institution and as Agent
By:
/s/ Xxxxxxx X. Xxxxxx
Its:
Vice President
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