Exhibit 10.37
CONFIDENTIAL TREATMENT
Portions of this Exhibit 10.37
have been omitted based upon a request for confidential treatment.
This Exhibit 10.37, 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.
AMENDMENT NO. 6 TO SECOND AMENDED
AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 6 dated as of
March 31, 2006 to SECOND AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT (this “ Amendment ”) is
entered into among AFC FUNDING CORPORATION, an Indiana corporation
(the “ Seller ”), AUTOMOTIVE FINANCE
CORPORATION, an Indiana corporation (the “ Servicer
”), FAIRWAY FINANCE COMPANY, LLC (as successor to Fairway
Finance Corporation), a Delaware limited liability company (the
“ Purchaser ”), and HARRIS NESBITT CORP. (as
successor to BMO NESBITT BURNS CORP.), a Delaware corporation, as
agent for Purchaser and as the initial agent (the “
Agent ”).
R E C I T A
L S
A.
The Seller, the Servicer, the Purchaser and the Agent are parties
to that certain Second Amended and Restated Receivables Purchase
Agreement dated as of June 15, 2004, as may be amended,
amended and restated, supplemented or otherwise modified from time
to time (the “ Agreement ”).
B.
The Seller, the Servicer, the Purchaser 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
The definition of “Termination Date” in Exhibit I
to the Agreement is hereby amended in its entirety to read as
follows:
“ Termination Date
” means the earliest of (i) the Business Day which the
Seller so designates by notice to the Agent at least 30 days in
advance pursuant to Section 1.1(b) ,
(ii) April 30, 2009 (the “ Scheduled Termination
Date ”), (iii) the date determined pursuant to
Section 2.2 and (iv) the date that a Purchaser
Termination Day is in effect with respect to all
Purchasers.
2.2
A new definition of “Limited Purchaser Termination
Date” is hereby added to Exhibit I to the Agreement as
follows:
“ Limited Purchaser
Termination Date ” means, with respect to any Purchaser
with respect to which one or more (but less than 50% by commitment
size of all the Program Support Providers of such Purchaser under
all of its Program Support Agreements related to this facility) of
the Program Support Providers under such Purchaser’s related
Program Support Agreements declines to renew their commitments
under the Program Support Agreement to which such Program Support
Provider is a party, the termination date of the commitment of such
non-renewing Program Support Provider(s).
2.3
Clauses (e) and (k) of the definition of “Eligible
Receivable” in Exhibit I are hereby amended in their
entirety to read as follows: [*]
2.4
A new definition of “Specified Curtailment Receivable”
is hereby added to Exhibit I to the Agreement as follows:
[*]
2.5
The definition of “Net Receivables Pool Balance” in
Exhibit I to the Agreement is hereby amended in its entirety
to read as follows:
“ Net Receivables Pool
Balance ” means, at any time, an amount equal to the
result of (a) 100% of the aggregate Outstanding Balances of
Eligible Receivables (other than Specified Curtailment Receivables)
then in the Receivables Pool [*] plus (b) [*] of the aggregate
Outstanding Balances of all Eligible Receivables constituting
Specified Curtailment Receivables then in the Receivables Pool [*]
minus (c) the amount by which the result obtained in clause
(b) above exceeds the product of (X) the amount obtained
in clause (a) above multiplied by (Y) 8.0% minus
(d) the aggregate amount by which the aggregate Outstanding
Balance of the Eligible Receivables (including, for the avoidance
of doubt, Specified Curtailment Receivables) of each Obligor then
in the Receivables Pool exceeds the product of (A) the Normal
Concentration Percentage for such Obligor (or, in the case of a
Special Obligor, the Special Concentration Percentage) multiplied
by (B) the aggregate Outstanding Balance of the Eligible
Receivables (including, for the avoidance of doubt, Specified
Curtailment Receivables) then in the Receivables Pool (for the
avoidance of doubt, the result obtained from (a) plus
(b) minus (c) above).
2.6
The definition of “Purchaser Termination Day” in
Exhibit I to the Agreement is hereby amended in its entirety
to read as follows:
“ Purchaser Termination
Day ” means, as to any Purchaser, any day on or after
(i) such Purchaser’s Purchaser Termination Date and
(ii) the 180 th
day following the occurrence
of a Limited Purchaser Termination Date for such Purchaser (unless
all non-renewing Program Support Providers have
2
been replaced or otherwise have no
amounts outstanding under their related Program Support
Agreement(s)); provided , that any day tha
