EXHIBIT 10.01
AMENDMENT NO. 10 TO RECEIVABLES
PURCHASE AGREEMENT
This Amendment No. 10 to
Receivables Purchase Agreement (this “ Amendment
”) is entered into as of June 16, 2005, among Comdata
Funding Corporation, a Delaware corporation (“ Seller
”), Comdata Network, Inc., a Maryland corporation (the
“ Servicer ”) (the Servicer together with
Seller, the “ Seller Parties ” and each a
“ Seller Party ”), each Financial Institution
party hereto (the “ Financial Institutions ”),
Jupiter Securitization Corporation (the “ Company
” and “ Jupiter ”, and, together with the
Financial Institutions, the “ Purchasers ”), and
JP Morgan Chase Bank, N.A.(successor by merger to Bank One, NA
(Main Office Chicago)), as agent for the Purchasers (the “
Agent ”).
RECITALS
Each of the parties hereto entered
into that certain Receivables Purchase Agreement, dated as of
June 24, 2002, as amended by (i) Amendment No. 1 to
Receivables Purchase Agreement dated as of June 20, 2003,
(ii) Amendment No. 2 to Receivables Purchase Agreement
dated as of June 17, 2004, (iii) Amendment No. 3 to
Receivables Purchase Agreement and Amendment No. 1 to
Performance Undertaking dated as of August 4, 2004,
(iv) Amendment No. 4 to Receivables Purchase Agreement
and Amendment No. 2 to Performance Undertaking dated as of
September 30, 2004, (v) Amendment No. 5 to
Receivables Purchase Agreement and Amendment No. 3 to
Performance Undertaking dated as of November 9, 2004,
(vi) Amendment No. 6 to Receivables Purchase Agreement
and Amendment No. 4 to Performance Undertaking dated as of
December 31, 2004, (vii) Amendment No. 7 to
Receivables Purchase Agreement and Amendment No. 5 to
Performance Undertaking dated as of January 14, 2005,
(viii) Amendment No. 8 to Receivables Purchase Agreement
and Amendment No. 6 to Performance Undertaking dated as of
March 31, 2005 and (ix) Amendment No. 9 to
Receivables Purchase Agreement and Amendment No. 7 to
Performance Undertaking dated as of May 15, 2005 (as so
amended and as further amended, supplemented, restated or otherwise
modified and in effect from time to time, the “ Purchase
Agreement ”).
Each Seller Party has requested
amendments to certain provisions of the Purchase Agreement; and,
the Purchasers and the Agent desire to make such amendments as more
fully described herein.
Subject to the terms and conditions
hereof, each of the parties hereto now desires to amend the
Purchase Agreement as particularly described herein.
AMENDMENT NO.10 TO
RECEIVABLES PURCHASE
AGREEMENT
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AGREEMENT
NOW, THEREFORE , in
consideration of the premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
Section 1.
Definitions Used Herein . Capitalized terms used
herein and not otherwise defined herein shall have the respective
meanings set forth for such terms in, or incorporated by reference
into, the Purchase Agreement.
Section 2.
Amendments to the Purchase Agreement . Subject to the
terms and conditions set forth herein, the Purchase Agreement is
hereby amended as follows:
(a) Exhibit I to
the Purchase Agreement is hereby amended by amending and restating
in its entirety the definition of “Facility Termination
Date” in such exhibit to read as follows:
“ Facility Termination
Date ” means the earliest of June 15, 2008,
(ii) the Liquidity Termination Date and (iii) the
Amortization Date.
(b) Exhibit I to
the Purchase Agreement is hereby amended by amending and restating
in its entirety the definition of “Liquidity Termination
Date” in such exhibit to read as follows:
“ Liquidity Termination
Date ” means June 15, 2006.
Section 3.
Removal of Liquidity Facility. Subject to the terms
and conditions set forth herein, the Purchase Agreement is hereby
amended as follows:
(a) The Preliminary
Statements of the Purchase Agreement are hereby amended by deleting
the last sentence of the third paragraph of such Preliminary
Statements.
(b) Section 2.2 of
the Purchase Agreement is hereby amended by amending and restating
in its entirety the fifth sentence of such section to read as
follows:
Each Terminating Financial
Institution shall be allocated a ratable portion of Collections
from the Liquidity Termination Date that such Terminating Financial
Institution did not consent to extend (as to such Terminating
Financial Institution, the “ Termination Date ”)
until such Terminating Financing Institution’s Capital shall
be paid in full.
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(c) Section 4.1 of
the Purchase Agreement is hereby amended by amending and restating
in its entirety the last sentence of such section to read as
follows:
If any Funding Source acquires by
assignment from Company any Purchaser Interest pursuant to any
Funding Agreement, each Purchaser Interest so assigned shall each
be deemed to have a new Tranche Period commencing on the date of
any such assignment and shall accrue Yield for each day during its
Tranche Period at either the LIBO Rate or the Prime Rate in
accordance with the terms and conditions hereof as if each such
Purchaser Interest was held by a Financial Institution, and with
respect to each such Purchaser Interest, the assignee thereof shall
be deemed to be a Financial Institution solely for the purposes of
Sections 4.1 , 4.2 , 4.3 , 4.4 and
4.5 .
(d) Section 4.4 of
the Purchase Agreement is hereby amended by amending and restating
in its entirety the last sentence of such section to read as
follows:
Until Seller gives notice to the
Agent of another Discount Rate, the initial Discount Rate for any
Purchaser Interest transferred to the Financial Institutions
pursuant to the terms and conditions hereof (or assigned or
transferred to any Funding Source or to any other Person) shall be
the Prime Rate.
(e) Article IV of
the Purchase Agreement is hereby amended by adding the following
new section to the end of such article:
Section 4.6
Extension of Liquidity
Termination Date .
(a) Seller may request one or
more 364-day extensions of the Liquidity Termination Date then in
effect by giving written notice of such request to the Agent (each
such notice an “ Extension Notice ”) at least 60
days prior to the Liquidity Termination Date then in effect.
After the Agent’s receipt of any Extension Notice, the Agent
shall promptly advise each Financial Institution of such Extension
Notice. Each Financial Institution may, in its sole
discretion, by a revocable notice (a “ Consent Notice
”) given to the Agent on or prior to the 30th day prior to
the Liquidity Termination Date then in effect (such period from the
date of the Extension Notice to such 30th day being referred to
herein as the “ Consent Period ”), consent to
such extension of such Liquidity Termination Date; provided
, however , that, except as provided in
Section 4.6(b) , such extension shall not be effective
with respect to any of the Financial Institutions if any one or
more Financial Institutions: (i) notifies the Agent
during the Consent Period that such
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Financial Institution either does
not wish to consent to such extension or wishes to revoke its prior
Consent Notice or (ii) fails to respond to the Agent within
the Consent Period (each Financial Institution that does not wish
to consent to such extension or wishes to revoke its prior Consent
Notice or fails to respond to the Agent within the Consent Period
is herein referred to as a “ Non-Renewing Financial
Institution ”). If none of the events described in
the foregoing clauses (i) or (ii) occurs during the
Consent Period and all Consent Notices have been received, then,
the Liquidity Termination Date shall be irrevocably extended until
the date that is 364 days after the Liquidity Termination Date then
in effect. The Agent shall promptly notify Seller of any
Consent Notice or other notice received by the Agent pursuant to
this Section 4.6(a) .
(b) Upon receipt of notice
from the Agent pursuant to Section 4.6(a) of any
Non-Renewing Financial Institution or that the Liquidity
Termination Date has not been extended, one or more of the
Financial Institutions (including any Non-Renewing Financial
Institution) may proffer to the Agent and Company the names of one
or more institutions meeting the criteria set forth in
Section 12.1(b)(i) that are willing to accept
assignments of and assume the rights and obligations under this
Agreement and the other applicable Transaction Documents of the
Non-Renewing Financial Institution. Provided the proffered
name(s) are acceptable to the Agent and Company, the Agent shall
notify the remaining Financial Institutions of such fact, and the
then existing Liquidity Termination Date shall be extended for an
additional 364 days upon satisfaction of the conditions for an
assignment in accordance with Section 12.1 and the
Commitment of each Non-Renewing Financial Institution shall be
reduced to zero. If the rights and obligations under this
Agreement and the other applicable Transaction Documents of each
Non-Renewing Financial Institution are not assigned as contemplated
by this Section 4.6(b) (each such Non-Renewing
Financial Institution whose rights and obligations under this
Agreement and the other applicable Transaction Documents are not so
assigned is herein referred to as a “ Terminating
Financial Institution ”) and at least one Financial
Institution is not a Non-Renewing Financial Institution, the then
existing Liquidity Termination Date shall be extended for an
additional 364 days; provided , however , that
(i) the Purchase Limit shall be reduced on the Liquidity
Termination Date that such Terminating Financial Institution did
not consent to extend by an aggregate amount equal to the
Terminating Commitment Availability as of such date of each
Terminating Financial Institution and shall thereafter continue to
be reduced by amounts equal to any reduction in the Capital of any
Terminating Financial Institution (after application of Collections
pursuant to Sections 2.2 and 2.3 ) and (ii) the
Commitment of each Terminating Financial Institution shall be
reduced to
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zero on the Termination Date
applicable to such Terminating Financial Institution. Upon
reduction to zero of the Capital of all of the Purchaser Interests
of a Terminating Financial Institution (after application of
Collections thereto pursuant to Sections 2.2 and 2.3
) all rights and obligations of such Terminating Financial
Institution hereunder shall be terminated and such Ter
