Exhibit 10.59
Portions of this Exhibit 10.59
have been omitted based upon a request for confidential treatment.
This Exhibit 10.59, including the non-public information, has been
filed separately with the Securities and Exchange Commission.
“[*]” designates portions of this document that have
been redacted pursuant to the request for confidential treatment
filed with the Securities and Exchange Commission.
EXECUTION COPY
AMENDMENT NO. 3 TO THIRD AMENDED
AND RESTATED
RECEIVABLES PURCHASE
AGREEMENT
THIS AMENDMENT NO. 3 to THIRD
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “
Amendment ”), dated as of January 30, 2009, is
entered into among AFC FUNDING CORPORATION, an Indiana corporation
(the “ Seller ”), AUTOMOTIVE FINANCE
CORPORATION, an Indiana corporation (the “ Servicer
”), FAIRWAY FINANCE COMPANY, LLC (a “ Purchaser
”), MONTEREY FUNDING LLC (a “ Purchaser
”), DEUTSCHE BANK AG, NEW YORK BRANCH, as Purchaser Agent for
MONTEREY FUNDING LLC (a “ Purchaser Agent ”) and
BMO CAPITAL MARKETS CORP., as Purchaser Agent for Fairway Finance
Company, LLC (a “ Purchaser Agent ”) and as the
initial agent (the “ Agent ”).
RECITALS
A. The Seller, the Servicer, the
Purchasers, the Purchaser Agents, and the Agent are parties to that
certain Third Amended and Restated Receivables Purchase Agreement
dated as of April 20, 2007 (as amended, amended and restated,
supplemented or otherwise modified prior to the date hereof, the
“ Agreement ”).
B. The Seller, the Servicer, the
Purchasers, the Purchaser Agents and the Agent desire to amend the
Agreement as hereinafter set forth.
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Certain Defined Terms .
Capitalized terms which are used herein without definition and that
are defined in the Agreement shall have the same meanings herein as
in the Agreement.
2. Amendments to Agreement .
The Agreement is amended as follows:
2.1 Section 1.4(a) is hereby
amended by inserting the following parenthetical after the words
“Deposit Accounts” in the last sentence of such
paragraph:
“(other than those amounts
identified as “cash collateral” with respect to the
Deposit Account held at [*] (numbered [*]))”
2.2 Section 1.4(e) is hereby
amended by inserting the following parenthetical after the words
“Deposit Accounts” in the introductory sentence
thereto:
“(other than those amounts
identified as “cash collateral” with respect to the
Deposit Account held at [*] (numbered [*]))”
2.3 Section 4.7 is hereby
amended and restated in its entirety as follows:
“Section 4.7. Specified
Ineligible Receivables . On or prior to the initial date of
purchase of a Receivable under the Purchase and Sale Agreement, the
Servicer (so long as the Originator is the Servicer) may designate
such Receivable as a “Specified Ineligible Receivable”
(which designation may take the form of a specification that a
certain class or category of Receivables to be transferred from the
Originator to the Seller after such designation will be treated as
“Specified Ineligible Receivables”). In addition, the
Servicer (so long as the Originator is the Servicer) may, on behalf
of the Seller, (i) designate an existing Receivable then owned
by the Seller as a “Specified Ineligible Receivable” or
(ii) designate an existing Specified Ineligible Receivable
then owned by the Seller as a Receivable (i.e., no longer a
“Specified Ineligible Receivable”), in each of cases
(i) and (ii) with the prior written consent of the
Majority Purchasers. For the avoidance of doubt, any Receivable
which was treated as an Eligible Receivable hereunder at any time
may not be treated as a “Specified Ineligible
Receivable” without the prior written consent of the Majority
Purchasers. The Servicer (so long as the Originator is the
Servicer) shall identify the aggregate Outstanding Balance of all
such “Specified Ineligible Receivables” on the Servicer
Report. To the extent the Servicer has from time to time identified
a Receivable as a “Specified Ineligible Receivable” in
accordance with this Section, for so long as such Receivable is a
Specified Ineligible Receivable, (i) such Receivable shall not
he included as an Eligible Receivable by the Seller or the Servicer
hereunder. (ii) such Receivable shall not be included in any
calculations of the Delinquency Ratio or the Default Ratio or other
Receivable Pool information (other than a statement of the
aggregate Outstanding Balance of such Specified Ineligible
Receivables) hereunder and (iii) shall not be considered a
Receivable for purposes of clause (o) of Exhibit V
hereof.”
2.4 The definition of “Loss
Percentage” in Exhibit I is hereby amended by replacing the
number “[*]” in clause (iii) thereof with the
number “[*].”
2.5 The definition of
“Participation” in Exhibit I is hereby amended by
adding the following to the end of the parenthetical in the
paragraph defining “LA” for the Participation
calculation:
“, and, for the avoidance of
doubt, those amounts identified as “cash collateral”
with respect to the Deposit Account held at [*] (numbered [*])
shall not be deposited into the Liquidation Account or taken into
consideration for the calculation of the
Participation”
2
2.6 The definition of
“Specified Ineligible Receivables” in Exhibit I is
amended and restated in its entirety as follows:
“Specified Ineligible
Receivables” means those Pool Receivables that the Servicer
has identified as “Specified Ineligible Receivables”
pursuant to Sec
