AMENDMENT NUMBER 2 TO RECEIVABLES PURCHASE AGREEMENT
Exhibit 10.4
AMENDMENT NUMBER 2 TO
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NUMBER 2 TO RECEIVABLES PURCHASE AGREEMENT, dated as of December 31, 2009 (this “Amendment”), is entered into by and among FOUNTAIN CITY FINANCE, LLC, a Delaware limited liability company (the “Seller”), ENTERPRISE FUNDING COMPANY LLC, a Delaware limited liability company (“Enterprise Funding”), as an Investor, BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking association (“Bank of America”), as a Bank and as the agent (the “Agent”) for the Investors and the Banks, DST SYSTEMS, INC., a Delaware corporation (“DST Systems”), as the Parent and the Servicer, and each of the parties named on Schedule I hereto as Originators. Capitalized terms used and not otherwise defined herein are used as defined in the Receivables Purchase Agreement (as defined below).
WHEREAS, the parties hereto entered into that certain Receivables Purchase Agreement, dated as of May 21, 2009 (as amended through the date hereof, the “Receivables Purchase Agreement”);
WHEREAS, the parties hereto desire to amend the Receivables Purchase Agreement in certain respects as provided herein;
NOW THEREFORE, in consideration of the premises and the other mutual covenants contained herein, the parties hereto agree as follows:
SECTION 1. Amendments. Effective as of the Effective Date (as defined below), the following amendments are made to the Receivables Purchase Agreement:
(a) The definition of “Purchase Limit” in Section 1.01 of the Receivables Purchase Agreement is hereby amended by deleting, in its entirety, the date “December 31, 2009” therein and replacing, in its entirety, such date with “March 31, 2010”.
(b) Section 2.01(e)(ii) of the Receivables Purchase Agreement is hereby amended by deleting, in its entirety, each reference to the date “December 31, 2009” and replacing, in its entirety, each such reference with “March 31, 2010”.
SECTION 2. Effective Date. This Amendment shall become effective as of the date (the “Effective Date”) that the Agent shall have received counterparts hereof duly executed by each of the parties hereto.
SECTION 3. Miscellaneous.
(a) References in Receivables Purchase Agreement. Upon the effectiveness of this Amendment, each reference in the Receivables Purchase Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import shall mean and be a reference to the
Receivables Purchase Agreement as amended hereby, and each reference to the Receivables Purchase Agreement in any other Transaction Document or any other document, instrument or agreement, executed and/or delivered in connection with any Transaction Document shall mean and be a reference to the Receivables Purchase Agreement as amended hereby.
(b) Effect on Receivables Purchase Agreement. Except as specifically amended hereby, the Receivables Purchase Agreement shall remain in full force and effect. This Amendment shall not constitute a novation of the Receivables Purchase Agreement, but shall constitute an amendment thereof.
(c) No Waiver. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Person under the Receivables Purchase Agreement or any other document, instrument or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein.
(d) Fees and Expenses. The Seller and DST Systems agree to pay all costs, fees, and expenses (including, without limitation, reasonable attorneys’ fees and time charges of attorneys) incurred by the Agent and/or the Investor in connection with the preparation, execution and enforcement of this Amendment.
(e) Successors and Assigns. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
(f) Counterparts. This Amendment may be executed in any number of counterparts, and by the different parties hereto on the same or separate counterparts, each of which shall be deemed to be an original instrument but all of which together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart of this Amendment.
(g) Headings. The descriptive headings of the various sections of this Amendment are inserted for convenience of reference only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.
(h) Amendments. This Amendment may not be amended or otherwise modified except as provided in the Receivables Purchase Agreement.
(i) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
[Signature pages follow]
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.
|
|
SELLER: |
|
FOUNTAIN CITY FINANCE, LLC |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
|
Title: |
Vice President |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PARENT: |
|
DST SYSTEMS, INC. |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
|
Title: |
Vice President, Chief Financial Officer and Treasurer |
|
|
|
|
|
|
|
|
|
SERVICER: |
|
DST SYSTEMS, INC. |
||
|
|
|
|
|
||
|
|
|
|
|
||
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
|
Title: |
Vice President, Chief Financial Officer and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ORIGINATORS: |
|
DST SYSTEMS, INC. |
||
|
|
|
|
|
||
|
|
|
|
|
||
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
|
Title: |
Vice President, Chief Financial Officer and Treasurer |
|
|
|
|
|
||
|
|
|
|
DST HEALTH SOLUTIONS, INC. |
||
|
|
|
|
|
||
|
|
|
|
|
||
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
|
Title: |
Vice President/Treasurer |
|
|
|
|
|
||
|
|
|
|
|
DST OUTPUT, LLC |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
|
Title: |
Vice President, Asst. Secretary/Treasurer |
|
|
|
DST OUTPUT CENTRAL, LLC |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President, Asst. Secretary/Treasurer |
|
|
|
|
||
|
|
|
|
||
|
|
|
DST OUTPUT EAST, LLC |
||
|
|
|
|
||
|
|
|
|
||
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President, Asst. Secretary/Treasurer |
|
|
|
|
||
|
|
|
|
||
|
|
|
DST OUTPUT WEST, LLC |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President, Asst. Secretary/Treasurer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DST OUTPUT GRAPHICS, LLC |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President, Asst. Secretary/Treasurer |
|
|
|
|
|
|
|
|
|
DST TECHNOLOGIES, INC. |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President/Treasurer |
|
|
|
|
|
|
|
|
|
DST STOCK TRANSFER, INC. |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President/Treasurer |
|
|
|
DST GLOBAL SOLUTIONS NORTH AMERICA LTD. |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President/Treasurer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DST HEALTH SOLUTIONS, LLC |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President/Treasurer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DST MAILING SERVICES, INC. |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President, Asst. Treasurer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ISPACE SOFTWARE TECHNOLOGIES, INC. |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President/Treasurer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ARGUS HEALTH SYSTEMS, INC. |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President/Treasurer |
|
|
|
|
|
|
|
|
|
DST DIRECT, LLC |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President, Asst. Secretary/Treasurer |
|
|
|
DST OUTPUT ELECTRONIC SOLUTIONS, INC. |
||
|
|
|
|
||
|
|
|
|
||
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President, Asst. Secretary/Treasurer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DST TASS, LLC |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President, Asst. Secretary/Treasurer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DST WORLDWIDE SERVICES, LLC |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President/Treasurer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DSTI MOSIKI, LLC |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President/Treasurer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DST RETIREMENT SOLUTIONS, LLC |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxx |
|
|
|
|
Title: |
Vice President/Treasurer |
|
|
|
INVESTOR: ENTERPRISE FUNDING COMPANY LLC |
||
|
|
|
|
||
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxxx |
|
|
|
|
|
Name: |
Xxxxxxx X. Xxxxxx |
|
|
|
|
Title: |
Vice President |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
AGENT: BANK OF AMERICA, NATIONAL ASSOCIATION, |
||
|
|
|
as Agent |
||
|
|
|
|
||
|
|
|
|
||
|
|
|
By: |
/s/ Xxxxxx Xxxxx |
|
|
|
|
|
Name: |
Xxxxxx Xxxxx |
|
|
|
|
Title: |
Vice President |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BANK: BANK OF AMERICA, NATIONAL ASSOCIATION |
||
|
|
|
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx Xxxxx |
|
|
|
|
|
Name: |
Xxxxxx Xxxxx |
|
|
|
|
Title: |
Vice President |
SCHEDULE I
Originators:
DST Systems, Inc.
DST Output, LLC
DST Output Central, LLC
DST Output East, LLC
DST Output West, LLC
DST Output Graphics, LLC
DST Technologies, Inc.
DST Stock Transfer, Inc.
DST Mailing Services, Inc.
DST Output Electronic Solutions, Inc.
DST Worldwide Services, LLC
DST Retirement Solutions, LLC
Argus Health Systems, Inc.
DST Direct, LLC
DST Health Solutions, Inc.
DST Heath Solutions, LLC
DST Global Solutions North America Ltd. (f/k/a DST International North America Ltd.)
DSTi Mosiki, LLC
iSpace Software Technologies, Inc.
DST TASS, LLC
