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EXHIBIT 10.46
SECOND AMENDMENT TO RECEIVABLES FINANCING AGREEMENT
SECOND AMENDMENT, dated as of February 16, 2001 (this "Amendment"), to
the RECEIVABLES FINANCING AGREEMENT, dated as of August 18, 2000 (as previously
amended, supplemented or modified, the "Existing Agreement"; and as amended by
this Amendment, the "Agreement"), among Drive BOS LP, a Delaware limited
partnership (the "Borrower"), Drive Financial Services LP, a Delaware limited
partnership, in its individual capacity ("Drive") and as Initial Servicer, the
Lenders party thereto, IFA Incorporated ("IFA"), as agent (in such capacity, the
"Agent") for the Lenders and as Collateral Agent (in such capacity, the
"Collateral Agent"), and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, a
national banking association, as Custodian.
W I T N E S S E T H :
WHEREAS, the parties wish to increase the amount of the facility
and extend the maturity thereof;
NOW, THEREFORE, it is agreed:
Section 1. Definitions. Terms used in this Amendment which are
defined in the Existing Agreement shall have the meanings specified therein
(unless otherwise defined herein) and shall include in the singular number the
plural and in the plural number the singular.
Section 2. Amendments. Upon the Amendment Effective Date (as
defined in Section 3 below):
2.1 Commitment. The Commitment of IFA Incorporated is hereby
amended to be $150,000,000.
2.2 Amended Definition. Section 1.1 of the Agreement is amended
by deleting the definition of "Commitment Termination Date" in its entirety and
substituting, in lieu thereof, the following:
"Commitment Termination Date" means February 15, 2002,
as such date may be extended from time to time as mutually
agreed in writing between the Borrower, the Servicer, the Agent
and the Lenders.
2.3 Facility Limit. Section 1.1 of the Agreement is amended by
deleting the definition of "Facility Limit" and substituting, in lieu thereof,
the following:
"Facility Limit" means, on any day, (a) the lesser of
(x) $150,000,000 and (y) the Total Commitment in effect on such
day, as such amount may be reduced pursuant to Section 2.5 minus
(b) any outstanding LOC Obligations. References to the unused
portion of the Facility Limit shall mean, at any time, the
Facility Limit, as then reduced pursuant to Section 2.5, minus
the sum of the then outstanding principal amount of Advances
under this Agreement.
Section 3. Conditions Precedent.
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The amendments provided for by this Amendment shall become
effective on the date (the "Amendment Effective Date") on which the following
conditions precedent shall satisfied to the satisfaction of the Lenders or
waived:
3.1 Default, etc. On the Amendment Effective Date, there shall
exist no Facility Termination Event or Unmatured Facility Termination Event and
all representations and warranties made by the Borrower, the Seller and the
Servicer herein, in the Agreement or in the other Transaction Documents or
otherwise made by the Borrower, the Seller and the Servicer in writing in
connection herewith or therewith shall be true and correct in all material
respects with the same effect as though such representations and warranties have
been made at and as of such time except to the extent such representations and
warranties were made only as of a specific date.
3.2 Documents. On the Amendment Effective Date, the Agent shall
have received this Amendment executed and delivered by each of the parties
hereto.
3.3 Approvals and Consents. All orders, permissions, consents,
approvals, licenses, authorizations and validations of, and filings, recordings
and registrations with, and exemptions by, any Government Authority, or any
other Person, required to authorize or required in connection with the
execution, delivery and performance of this Amendment and the transactions
contemplated hereby by any of the Borrower, the Seller and the Servicer shall
have been obtained (and, if so requested, furnished to the Agent, with
sufficient copies for the Lenders).
3.3 Facility Fee. On the Amendment Effective Date, the Agent
shall have received from the Borrower in immediately available funds a facility
fee of $25,000.
Section 4. Representations and Warranties. The Borrower hereby
confirms and reaffirms its representations and warranties contained in of the
Existing Agreement; provided, however, that reference therein to the
"Transaction Documents" shall be to the definition of Transaction Documents as
amended hereby.
Section 5. Agreement in Full Force and Effect as Amended. Except
as specifically amended hereby, all of the terms and conditions of the Agreement
shall remain in full force and effect. All references to the Agreement in any
other document or instrument shall be deemed to mean the Agreement as amended by
this Amendment. This Amendment shall not constitute a novation of the Agreement,
but shall constitute an amendment thereof.
Section 6. Counterparts. This Amendment may be executed in any
number of counterparts and by separate parties hereto on separate counterparts,
each of which when executed shall be deemed an original, but all such
counterparts taken together shall constitute one and the same instrument.
Section 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective duly authorized
officers as of the date first above written.
DRIVE BOS LP
By: Drive BOS GP LLC, its general partner
By:
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Name:
Title:
DRIVE FINANCIAL SERVICES LP
By: Drive GP LLC, its general partner
By:
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Name:
Title:
IFA INCORPORATED, as Agent and Collateral
Agent
By:
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Name:
Title:
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▇▇▇▇▇ FARGO BANK MINNESOTA
NATIONAL ASSOCIATION,
as Custodian
By:
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Name:
Title:
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