AMENDMENT NO. 9 TO RECEIVABLES PURCHASE AGREEMENT
EXHIBIT
10.28
AMENDMENT
NO. 9 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT
(this “Amendment”), dated as
of August 10, 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”),
JS Siloed Trust (the “Trust”),
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 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
Jupiter
wishes to assign all of its right, title and interest in, to and under the
Agreement to the Trust, and the Trust wishes to accept such assignment;
and
In
connection with the foregoing assignment, certain technical amendments to the
Agreement are required.
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) For
value received, Jupiter hereby assigns all of its right, title and interest in,
to and under the Agreement and other Transaction Documents to the Trust, and the
Trust hereby accepts such assignment. From and after the date hereof,
all references in the Transaction Documents to “Jupiter Securitization Company
LLC,” “Jupiter” or “Conduit,” whether alone or as part of another defined term,
are hereby replaced with references to “JS Siloed Trust,” “JSST” or “Trust,”
respectively. The address for notices to JS Siloed Trust shall be as
set forth below its signature hereto.
(b) Section
7.1(a) is hereby amended to re-number existing clause (viii) thereof as clause
(ix) and to insert the following new clause (viii) in its appropriate numerical
order:
(viii) Change in Accounting
Treatment. Promptly, upon any determination by Distributors
and its consolidated Subsidiaries to account for the transactions contemplated
by the Transaction Documents, as off-balance sheet sales for financial
accounting purposes, written notice of such proposed change in financial
accounting treatment.
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(c) Section
10.1 is hereby amended to delete “the Agent and each Purchaser” where it appears
in the third line thereof and to replace it with “the Agent, Jupiter and each
Purchaser”.
(d) Section
14.5(b)(iii) is hereby amended and restated in its entirety to read as
follows:
(iii) by
the Agent to any rating agency, Commercial Paper dealer, Funding
Source or any other entity organized for the purpose of purchasing, or
making loans secured by, financial assets for which JPMorgan Chase acts as the
administrative agent or
trustee and
to any officers, directors, employees, outside accountants and attorneys of any
of the foregoing, provided each such
Person referred to in clause (iii) is informed of the confidential nature of
such information.
(e) Section
14.6 is hereby amended and restated in its entirety to read as
follows:
Section
14.6. Bankruptcy
Petition. Each of Seller, the Servicer, the Agent and each
Financial Institution hereby covenants and agrees that, prior to the date that
is one year and one day after the payment in full of all outstanding senior
indebtedness of JSST or Jupiter, it will not institute against, or join any
other Person in instituting against, JSST or Jupiter any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States.
(f) Section
14.13 is hereby amended and restated in its entirety to read as
follows:
Section
14.13. JPMorgan Chase
Roles
. Each
of the Financial Institutions acknowledges that JPMorgan Chase acts, or may in
the future act, (i) as administrative trustee for the Trust, (ii) as
administrative agent for Jupiter and the Financial Institutions, (iii) as
issuing and paying agent for the Commercial Paper, (iv) to provide credit or
liquidity enhancement for the timely payment for the Commercial Paper and (v) to
provide other services from time to time for the Trust, Jupiter or any Financial
Institution (collectively, the “JPMorgan Chase
Roles”). Without limiting the generality of this Section
14.13, each Financial Institution hereby acknowledges and consents to any and
all JPMorgan Chase Roles and agrees that in connection with any JPMorgan Chase
Role, JPMorgan Chase may take, or refrain from taking, any action that it, in
its discretion, deems appropriate, including, without limitation, in its role as
administrative trustee for the Trust, and the giving of notice to the Agent of a
mandatory purchase pursuant to a Funding Agreement.
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(g) The
following definitions are hereby amended and restated in their entirety as set
forth below:
“Commercial
Paper” means promissory notes of Jupiter
Securitization Company LLC (together with its successors, “Jupiter”)
issued in the commercial paper market.
“Funding
Agreement” means this Agreement, any agreement executed by the Trust and
Jupiter under which Jupiter agrees to provide funds to the Trust, and any
agreement or instrument executed by any Funding Source with or for the benefit
of Jupiter
or the Trust.
“Funding
Source” means (i) any Financial Institution, (ii)
Jupiter, or (iii) any insurance company, bank or other funding entity
providing liquidity, credit enhancement or back-up purchase support or
facilities to Jupiter
or the Trust.
“Pooled
Commercial Paper” means Commercial Paper notes of Jupiter
subject to any particular pooling arrangement by Jupiter,
but excluding Commercial Paper issued by Jupiter
for a tenor and in an amount specifically requested by any Person in
connection with any agreement effected by Jupiter
or the Trust.
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
/s/
Authorized Signatory
By: Authorized
Signatory
Its: Vice
President
JS SILOED
TRUST
By: JPMorgan
Chase Bank, N.A., as Administrative Trustee
/s/
Authorized Signatory
By: Authorized
Signatory
Its: Vice
President
Address
for Notices:
JS Siloed
Trust
c/o
JPMorgan Chase Bank, N.A., as Administrative Trustee
Chase
Tower, 10 X. Xxxxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attn: Asset
Backed Securities Conduit Group
Fax: (000)
000-0000
JPMORGAN
CHASE BANK, N.A.,
as
a Financial Institution and as Agent
/s/
Authorized Signatory
By: Authorized
Signatory
Its: Vice
President
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