Exhibit 10.34


 


Portions
of this Exhibit 10.34 have been omitted based upon a request for
confidential treatment. This Exhibit 10.34, 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.2 TO SECOND AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT


 


THIS AMENDMENT
NO. 2 dated as of July 8, 2005 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”),
HARRIS NESBITT CORP. (as successor to BMO NESBITT BURNS CORP.), a Delaware
corporation, as agent for Purchaser and as the initial agent (the “Agent”) and XL CAPITAL ASSURANCE INC., a New
York stock insurance company (the “Insurer”).


 


R E C I T A L S


 


A.                                   The
Seller, the Servicer, the Purchaser, the Agent and the Insurer 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, the Agent and the Insurer 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 “Scheduled Termination Date” in clause (ii) of the
definition of “Termination Date” set
forth 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 the
Agreement is hereby amended by [ * ].


 


2.3                                 The
definition of “Special Obligor” in Exhibit I of the Agreement is hereby
amended by [ * ] as a “Special Obligor”.


 


2.4                                 The
Agreement shall be amended to remove all references to the Policy, the Insurer
and the Insurance Agent.  The Maximum
Insured Commitment of Fairway


 





















 


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


 


2.5                                 The
definition of “Participation” in Exhibit I of the Agreement is hereby
amended in its entirety to read as follows:


 


“Participation” means, with respect to any Purchaser
at any time, the undivided percentage ownership interest of such Purchaser in (i) each
and every Pool Receivable now existing or hereafter arising, other than any
Pool Receivable that arises on or after the Termination Date, (ii) all
Related Security with respect to such Pool Receivables, and (iii) all
Collections with respect to, and other proceeds of, such Pool Receivables and
Related Security.  Such undivided
percentage 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 be
determined from time to time pursuant to the provisions of Section 1.3.


 


2





















 


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


 


(a)                                  Representations and Warranties.  The representations and warranties of such
Person contained in Exhibit III
and Exhibit VII to the Agreement
are true and correct as of the date hereof (unless stated to relate solely to
an earlier date, in which case such representations and warranties were true
and correct as of such earlier date).


 


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


 


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


 


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


 


5.                                       Effect of Amendment.  Except as expressly amended and modified by
this Amendment, all provisions of the Agreement 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 by this Amendment.  This Amendment shall not be deemed to
expressly or impliedly waive, amend or supplement any provision of the
Agreement other than as set forth herein.


 


6.                                       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.


 


7.                                       Governing Law.  This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of Indiana without
reference to conflict of laws principles.


 


8.                                       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.


 


3





















 


IN WITNESS WHEREOF, the parties have executed this
Amendment 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 OF
MONTREAL


 


 


	
  By:

  	
    /s/
  Amy K. Dumser

  	
   

  
	
   

  	
  Name:

  	
  Amy K.
  Dumser

  
	
   

  	
  Title:

  	
  Director

  
				



 


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