AMENDMENT NO. 1 TO RECEIVABLES PURCHASE AGREEMENT
EXHIBIT 10.13b
Execution Version
AMENDMENT NO. 1 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 to RECEIVABLES PURCHASE AGREEMENT (this “Amendment”), dated as of September 27, 2024 is entered into among AUTOMOTIVE FINANCE CANADA INC., a corporation incorporated under the laws of the Province of Ontario (the “Seller” and the initial “Servicer”), OPENLANE, Inc., f/k/a KAR AUCTION SERVICES, INC., a corporation incorporated under the laws of Delaware (the “Performance Guarantor”), COMPUTERSHARE TRUST COMPANY OF CANADA, in its capacity as trustee of AFCI FUNDING TRUST, a trust established under the laws of the Province of Ontario, as purchaser (the “Trust”), the agents for the Lender Groups from time to time party to the Loan Agreement (each, an “Agent”) and BMO XXXXXXX XXXXX INC., in its capacity as financial services agent (the “Financial Services Agent”).
R E C I T A L S
A. The Seller, the Performance Guarantor, the Trust, the Agents and the Financial Services Agent are parties to that certain Receivables Purchase Agreement dated as of March 1, 2023 (as amended, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Agreement”).
B. Pursuant to and in accordance with Section 10.3 of the Agreement, the parties 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 hereby amended as follows:
2.1The reference to the Performance Guarantor in the listing of parties to the Agreement is revised in its entirety as follows and all other references to KAR Auction Services, Inc. are to be construed accordingly:
“OPENLANE, Inc., f/k/a KAR Auction Services, Inc., a corporation incorporated under the laws of Delaware,
(hereinafter referred to as the “Performance Guarantor” or “KAR”),”
2.2The definition of “KAR Credit Facility” is revised in its entirety to read as follows:
““KAR Credit Facility” means that certain Credit Agreement dated as of June 23, 2023, as amended by the First Amendment Agreement, dated as of January 19, 2024, by and among KAR, as borrower, JPMorgan Chase Bank, N.A., as
administrative agent, and the other lenders and agents party thereto, as the same may be amended, supplemented, restated or otherwise modified from time to time;”
2.3The definition of “KAR Financial Covenant” is amended by replacing the words “KAR’s Credit Facility” with “the KAR Credit Facility”.
3.Representations and Warranties. The Seller (in its capacity as Seller and as Servicer) hereby represents and warrants to the Trust, the Agents and the Financial Services Agent as follows:
(a)Representations and Warranties. The representations and warranties of the Seller (in its capacity as Seller and as Servicer) contained in Section 4.1 of 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)Trigger Event. No Trigger Event, or event that would constitute a Trigger Event by further requirement that notice be given or time elapse or both, has occurred and is continuing.
4.Representations and Warranties. The Performance Guarantor hereby represents and warrants to the Trust, the Agents and the Financial Services Agent as follows:
(a)Representations and Warranties. The representations and warranties of the Performance Guarantor contained in Section 8.7 of 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.
5.Effectiveness. This Amendment shall become effective upon the receipt by the Financial Services Agent of each of the counterparts of this Amendment executed by each of the parties hereto.
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6.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 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.
7.Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. This Amendment shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned (including in portable document format (pdf.) or xxx.xxxxxxxx.xxx), or photocopied manual signature; or (iii) any electronic signature permitted by Parts 2 and 3 of the Personal Information Protection and Electronic Documents Act (Canada), the Electronic Commerce Act, 2000 (Ontario) and other similar federal or provincial laws based on the Uniform Electronic Commerce Act of the Uniform Law Conference of Canada or its Uniform Electronic Evidence Act, as the case may be. Each electronic signature, or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof.
8.Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein.
9.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 PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
AUTOMOTIVE FINANCE CANADA INC., as Seller and as initial Servicer
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Senior Vice President of Finance; Treasurer
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Executive Vice President; Chief Financial Officer
COMPUTERSHARE TRUST COMPANY OF CANADA, in its capacity as trustee of AFCI FUNDING TRUST, by its Administrative Agent, AUTOMOTIVE FINANCE CANADA INC.
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Senior Vice President of Finance; Treasurer
BMO XXXXXXX XXXXX INC., as Financial Services Agent and Agent for the BMO Lender Group
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Director
ROYAL BANK OF CANADA, as Agent for the RBC Lender Group
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
