**Exhibit 10.34**

 

Portionsof this Exhibit 10.34 have been omitted based upon a request forconfidential treatment. This Exhibit 10.34, including the non-publicinformation, has been filed separately with the Securities and ExchangeCommission. “[*]” designates portions of this document that have been redactedpursuant to the request for confidential treatment filed with the Securitiesand Exchange Commission.

 

AMENDMENT NO.2 TO SECOND AMENDED AND RESTATEDRECEIVABLES PURCHASE AGREEMENT

 

THIS AMENDMENTNO. 2 dated as of July 8, 2005 to SECOND AMENDED AND RESTATED RECEIVABLESPURCHASE AGREEMENT (this “Amendment”)is entered into among AFC FUNDING CORPORATION, an Indiana corporation (the “Seller”), AUTOMOTIVE FINANCE CORPORATION, anIndiana corporation (the “Servicer”),FAIRWAY FINANCE COMPANY, LLC (as successor to Fairway Finance Corporation), aDelaware limited liability company (the “Purchaser”),HARRIS NESBITT CORP. (as successor to BMO NESBITT BURNS CORP.), a Delawarecorporation, as agent for Purchaser and as the initial agent (the “Agent”) and XL CAPITAL ASSURANCE INC., a NewYork stock insurance company (the “Insurer”).

 

RECITALS

 

A.                                   TheSeller, the Servicer, the Purchaser, the Agent and the Insurer are parties tothat certain Second Amended and Restated Receivables Purchase Agreement datedas of June 15, 2004, as may be amended, amended and restated, supplementedor otherwise modified from time to time (the “Agreement”).

 

B.                                     TheSeller, the Servicer, the Purchaser, the Agent and the Insurer desire to amendthe Agreement as hereinafter set forth.

 

NOW THEREFORE, for good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the parties agreeas follows:

 

1.                                       Certain Defined Terms.  Capitalized terms which are used hereinwithout definition and that are defined in the Agreement shall have the samemeanings herein as in the Agreement.

 

2.                                       Amendments to Agreement.  The Agreement is amended as follows:

 

2.1                                 Thedefinition of “Scheduled Termination Date” in clause (ii) of thedefinition of “Termination Date” setforth in Exhibit I of the Agreement is hereby amended by replacing “January 31,2006” with “June 30, 2008.”

 

2.2                                 Clause(k) of the definition of “Eligible Receivable” in Exhibit I of theAgreement is hereby amended by [ * ].

 

2.3                                 Thedefinition of “Special Obligor” in Exhibit I of the Agreement is herebyamended by [ * ] as a “Special Obligor”.

 

2.4                                 TheAgreement shall be amended to remove all references to the Policy, the Insurerand the Insurance Agent.  The MaximumInsured Commitment of Fairway

 

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Finance Company, LLC is hereby reduced to $0and the Maximum Uninsured Commitment of Fairway Finance Company, LLC is herebyincreased to $425,000,000.

 

2.5                                 Thedefinition of “Participation” in Exhibit I of the Agreement is herebyamended in its entirety to read as follows:

 

“Participation” means, with respect to any Purchaserat any time, the undivided percentage ownership interest of such Purchaser in (i) eachand every Pool Receivable now existing or hereafter arising, other than anyPool Receivable that arises on or after the Termination Date, (ii) allRelated Security with respect to such Pool Receivables, and (iii) allCollections with respect to, and other proceeds of, such Pool Receivables andRelated Security.  Such undividedpercentage interest shall be computed as

 
|   | I + LR   |   |
|--------|----------|--------|
|   | NRB + LA |

 

where:

 
| I      | =      | the  Investment of such Participation at the time of computation as reduced by the  amount of cash in the [ * ] at the end of business on either (i) with  respect to any Servicer Report, the last Business Day of the prior calendar  month, or (ii) with respect to any Portfolio Certificate, Friday of the  prior calendar week, in each case that was wired to the respective Revolving  Purchaser on the immediately following Business Day to pay down that  Revolving Purchaser’s Investment.                                                   |
|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| LR     | =      | the Loss  Reserve of such Participation at the time of computation (calculated after  reducing the Purchaser’s Investment by the amount of cash in the [ * ] at the  end of business on either (i) with respect to any Servicer Report, the  last Business Day of the prior calendar month, or (ii) with respect to  any Portfolio Certificate, Friday of the prior calendar week, in each case  that was wired to the respective Revolving Purchaser on the immediately  following Business Day to pay down that Revolving Purchaser’s Investment. |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| NRB    | =      | the Net  Receivables Pool Balance at the time of computation.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| LA     | =      | the amount  on deposit in the Liquidation Account (other than amounts transferred thereto  from the Deposit Accounts to pay Discount, the Servicing Fee, Unaffiliated  Servicing Fees, Backup Servicing Fees, Transition Expenses, Premium and  Program Fees pursuant to Section 1.4(b)(i) and 1.4(b)(ii) and  Indemnified Amounts to the Indemnified Parties).                                                                                                                                                                                          |

 

Each Participation shall bedetermined from time to time pursuant to the provisions of Section 1.3.

 

2

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3.                                       Representations and Warranties.  Each of the Seller and the Servicer herebyrepresents and warrants to the Agent and the Purchaser as follows:

 

(a)                                  Representations and Warranties.  The representations and warranties of suchPerson contained in Exhibit IIIand Exhibit VII to the Agreementare true and correct as of the date hereof (unless stated to relate solely toan earlier date, in which case such representations and warranties were trueand correct as of such earlier date).

 

(b)                                 Enforceability.  The execution and delivery by such Person ofthis Amendment, and the performance of its obligations under this Amendment andthe Agreement, as amended hereby, are within its corporate powers and have beenduly authorized by all necessary corporate action on its part.  This Amendment and the Agreement, as amendedhereby, are its valid and legally binding obligations, enforceable inaccordance with its terms.

 

(c)                                  Termination Event.  No Termination Event or Unmatured TerminationEvent has occurred and is continuing.

 

4.                                       Effectiveness.  This Amendment shall become effective as ofthe date hereof upon receipt by the Agent of each of the counterparts of thisAmendment (whether by facsimile or otherwise) executed by each of the partieshereto.

 

5.                                       Effect of Amendment.  Except as expressly amended and modified bythis Amendment, all provisions of the Agreement shall remain in full force andeffect.  After this Amendment becomeseffective, all references in the Agreement (or in any other TransactionDocument) to “the Receivables Purchase Agreement,” “this Agreement,” “hereof,” “herein”or words of similar effect, in each case referring to the Agreement, shall bedeemed to be references to the Agreement as amended by this Amendment.  This Amendment shall not be deemed toexpressly or impliedly waive, amend or supplement any provision of theAgreement other than as set forth herein.

 

6.                                       Counterparts. This Amendment may be executed in any number of counterparts and bydifferent parties on separate counterparts, and each counterpart shall bedeemed to be an original, and all such counterparts shall together constitutebut one and the same instrument.

 

7.                                       Governing Law.  This Amendment shall be governed by, andconstrued in accordance with, the internal laws of the State of Indiana withoutreference to conflict of laws principles.

 

8.                                       Section Headings.  The various headings of this Amendment areinserted for convenience only and shall not affect the meaning orinterpretation of this Amendment or the Agreement or any provision hereof orthereof.

 

3

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IN WITNESS WHEREOF, the parties have executed thisAmendment as of the date first above written.

 
|   | AFC FUNDING  CORPORATION        |
|--------|---------------------------------|
|   |                            |
|   |                            |
|   | By:                             |   /s/  Curtis L. Phillips |   |
|   | Name:                           | Curtis L. Phillips |   |
|   | Title:                          | Vice President &  Treasurer |   |
|   |                            |
|   |                            |
|   | AUTOMOTIVE  FINANCE CORPORATION |
|   |                            |
|   |                            |
|   | By                              |   /s/  Curtis L. Phillips |   |
|   | Name:                           | Curtis L. Phillips |   |
|   | Title:                          | Vice President &  Treasurer |   |
|   |                            |
|   |                            |
|   | FAIRWAY  FINANCE COMPANY, LLC   |
|   |                            |
|   |                            |
|   | By:                             |   /s/  Jill A. Gordon |   |
|   | Name:                           | Jill A. Gordon |   |
|   | Title:                          | Vice President |   |
|   |                            |
|   |                            |
|   | HARRIS  NESBITT CORP.           |
|   |                            |
|   |                            |
|   | By:                             |   /s/  John Pappano |   |
|   | Name:                           | John Pappano |   |
|   | Title:                          | Managing Director |   |
|        |                                 |  |  |  |  |

 

 

Consented to:

 

BANK OFMONTREAL

 

 
| By:    |   /s/  Amy K. Dumser |           |
|--------|--------------------------------|----------------|
|   | Name:                          | Amy K.  Dumser |
|   | Title:                         | Director       |
|        |                                |                |  |

 

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