Exhibit 10
[AFC Funding Corporation]
FIFTH AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
This FIFTH AMENDMENT (this "AMENDMENT"), dated as of February 28, 2002,
is among AFC FUNDING CORPORATION, an Indiana corporation (the "SELLER"),
AUTOMOTIVE FINANCE CORPORATION, an Indiana corporation (the "SERVICER"), FAIRWAY
FINANCE CORPORATION, a Delaware Corporation (the "PURCHASER"), and BMO XXXXXXX
XXXXX CORP., a Delaware Corporation, as Agent for Purchaser (in such capacity,
the "AGENT").
RECITALS
1. The Seller, the Servicer, the Purchaser and the Agent are parties to
the Receivables Purchase Agreement, dated as of December 31, 1996 (as amended
through the date hereof, the "AGREEMENT").
2. 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:
SECTION 1. AMENDMENT TO THE AGREEMENT. The Agreement is hereby amended
as follows:
1.1 The definition of "Purchase Limit" in EXHIBIT I to the Agreement is
hereby amended by substituting "$325,000,000" for "$300,000,000" where the
latter appears in that definition.
SECTION 2. CONDITIONS TO EFFECTIVENESS.
2.1 This Amendment shall become effective on the date hereof upon
receipt by the Agent of the following, each duly executed and dated as of the
date hereof (or such other date satisfactory to the Agent), in form and
substance satisfactory to the Agent:
(a) counterparts of this Amendment (whether by facsimile or
otherwise) executed by each of the parties hereto;
(b) counterparts of the 2nd Amendment to the Amended and Restated
Liquidity Asset Purchase Agreement (whether by facsimile or otherwise) executed
by each of the parties thereto;
(c) a written statement from Xxxxx'x Investors Service, Inc. and
Standard & Poor's that this Amendment will not result in a downgrade or
withdrawal of the rating of the Notes; and
(d) such other documents and instruments as the Agent may
reasonably request.
SECTION 3. EFFECT OF AMENDMENT; RATIFICATION. Except as specifically
amended hereby, the Agreement is hereby ratified and confirmed in all respects,
and all of its provisions shall remain in full force and effect. After this
Amendment becomes effective, all references in the Agreement (or in any other
Transaction Document) to "the Receivables Purchase Agreement", "this Agreement",
"hereof", "herein", or words of similar effect, in each case referring to the
Agreement, shall be deemed to be references to the Agreement as amended hereby.
This Amendment shall not be deemed to expressly or impliedly waive, amend, or
supplement any provision of the Agreement other than as specifically set forth
herein.
SECTION 4. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties on separate counterparts, and each
counterpart shall be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
SECTION 5. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of Indiana without
regard to any otherwise applicable conflict of laws principles.
SECTION 6. SECTION HEADINGS. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or the Agreement or any provision hereof or thereof.
[SIGNATURE PAGES TO FOLLOW]
-2-
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
AFC FUNDING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President,
CFO & Treasurer
AUTOMOTIVE FINANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: CFO & Treasurer
FAIRWAY FINANCE CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
BMO XXXXXXX XXXXX CORP.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Managing Director
S-1 Fifth Amendment to RPA
