EXHIBIT 10.5
AMENDMENT NO. 7 TO SECOND AMENDED
AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 7 dated as of
July 28, 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 “Initial
Purchaser” and a “ Purchaser ”), GRESHAM
RECEIVABLES (NO. 8) LIMITED (together with the Initial Purchaser,
each a “ Purchaser ”), LLOYDS TSB BANK PLC, as
agent for Gresham Receivables (No. 8) Limited, and BMO CAPITAL
MARKETS CORP. (formerly known as HARRIS NESBITT CORP.), a Delaware
corporation, as agent for Fairway Finance Company, LLC and as the
initial agent (the “ Agent ”).
R E C I T A
L S
A.
The Seller, the Servicer, the Initial Purchaser and the Agent are
parties to that certain Second Amended and Restated Receivables
Purchase Agreement dated as of June 15, 2004, as amended, amended
and restated, supplemented or otherwise modified from time to time
(the “ Agreement ”).
B.
The Seller, the Servicer, the Purchasers 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 6.5(a) of the Agreement is hereby amended to add
“or Related CP Issuer” after “Note Issuer”
in each of the two instances it appears in Section 6.5(a)
.
2.2
The definition of “CP Rate” in Exhibit I to the
Agreement is hereby replaced in its entirety with the
following:
“ CP Rate ” for
any Purchaser for any Yield Period for any Portion of Investment
means, to the extent such Purchaser funds such Portion of
Investment for such Yield Period by the issuance of Notes, (a) a
rate per annum equal to the sum of (i) the rate (or
if more than one rate, the weighted average of the rates) at which
Notes of such Purchaser (or its Related CP Issuer) having a term
equal to such Yield Period and to be issued to fund such Portion of
Investment may be sold by any placement agent or
commercial
paper dealer selected by the
applicable Purchaser Agent on behalf of such Purchaser (or its
Related CP Issuer), as agreed between each such agent or dealer and
the applicable Purchaser Agent and notified by the applicable
Purchaser Agent to the Servicer; provided , that if the rate
(or rates) as agreed between any such agent or dealer and the
applicable Purchaser Agent with regard to any Yield Period for such
Portion of Investment is a discount rate (or rates), then such rate
shall be the rate (or if more than one rate, the weighted average
of the rates) resulting from converting such discount rate (or
rates) to an interest-bearing equivalent rate per annum, plus (ii)
the commissions and charges charged by such placement agent or
commercial paper dealer with respect to such Notes, expressed as a
percentage of such face amount and converted to an interest-bearing
equivalent rate per annum ; or (b) such other rate
set forth in the Joinder Agreement pursuant to which such Purchaser
becomes a party to the Agreement. Notwithstanding anything to
the contrary in this definition, to the extent that any Portion of
the Investment is funded by issuing Notes denominated in a currency
other than United States dollars, the costs of any currency
exchange contracts entered into in connection with such issuance of
Notes shall be included in the rate determined hereunder and the
interest rate (or, if any component of such rate is a discount
rate, the rate resulting from converting such discount rate to an
interest rate bearing equivalent rate per annum for such component)
with respect to such Notes may be calculated with reference to the
amounts received and payable by the Purchaser, or Related CP
Issuer, under currency exchange contracts entered into in
connection with the issuance of such Notes; provided ,
however , that any such costs shall only be included in the
calculation of “CP Rate” to the extent that the
issuance of such Notes in a currency other than U.S. dollars would
result (as reasonably determined by the applicable Purchaser Agent
at the time the applicable Purchaser, or its Related CP Issuer,
became obligated under the related currency exchange contracts) in
a lower “CP Rate” than would have been obtained through
the issuance of such Notes in U.S. dollars.
2.3.
The definition of “Discount” in Exhibit I to the
Agreement is hereby amended by adding “(or its Related CP
Issuer)” following the phrase “the CP Rate of such
Purchaser” in the CPR portion of such definition.
2.4
The definition of “Liquidity Agreement” in Exhibit
I to the Agreement is hereby amended to delete the second
sentence thereof.
2.5
The definitions of “Note Issuer”, “Notes”,
“Program Support Provider” and “Revolving
Uninsured Purchase Limit” in Exhibit I to the
Agreement are replaced with the following definitions:
“ Note Issuer ”
means Fairway and any other Purchaser which funds its Investment
and other investments by issuing short or medium term promissory
notes either directly or by means of a Related CP
Issuer.
“ Notes ”
(a) in the case of Fairway, means the short-term promissory
notes issued or to be issued by Fairway to fund its investments in
accounts receivable or other financial assets, (b) in the case of
Gresham Receivables (No. 8) Limited, means the short-term
promissory notes issued by its Related CP Issuer to indirectly
fund
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