AMENDMENT NO. 4 TO EIGHTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
Exhibit 10.15e
CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED.
[**] INDICATES THAT INFORMATION HAS BEEN REDACTED.
EXECUTION VERSION
AMENDMENT NO. 4 TO EIGHTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 4 to EIGHTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “Amendment”), dated as of June 25, 2020, is entered into among AFC FUNDING CORPORATION, an Indiana corporation (the “Seller”), AUTOMOTIVE FINANCE CORPORATION, an Indiana corporation (the “Servicer”), the Purchasers and Purchaser Agents signatories hereto, and BANK OF MONTREAL, as the agent (the “Agent”).
R E C I T A L S
A. The Seller, the Servicer, the Purchasers, the Purchaser Agents, and the Agent are parties to that certain Eighth Amended and Restated Receivables Purchase Agreement dated as of December 18, 2018 (as amended, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Agreement”).
B. Pursuant to and in accordance with Section 6.1 of the Agreement, the Seller, the Servicer, the Purchasers, the Purchaser Agents 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:
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. Amendment to Agreement. The Agreement is hereby amended as follows:
2.1. Clause (b)(3) of Section 1.4 of the Agreement (Allocation of the Seller’s Share of the Collections Prior to Termination Date) is amended as follows:
(3) third, (i) to the extent (A) the quotient of (I) the ‘NRPB’, plus the amount on deposit in the Cash Reserve Account, minus ‘I’, minus ‘DP’ divided by (II) the ‘NRPB’ (as each such abbreviation is defined in the definition of “Participation”) would be less than [**]% if such funds were released to the Seller or (B) any Purchaser has notified the Agent and the Servicer in writing that distributions to the Seller should cease, (x) to be retained in the Deposit Accounts or Liquidation Account until the following Business Day for distribution pursuant to Section 1.4(b) or 1.4(e), as applicable, on such following Business Day or (y) to be distributed to repay the Investment of the Participation of the Purchasers pursuant to Section 1.4(f) or (ii) if no Purchaser has notified the Agent and the Servicer in writing that distributions to the Seller should cease, to the Seller but
only to the extent that, after giving effect to such payment, the quotient of (I) the ‘NRPB’, plus the amount on deposit in the Cash Reserve Account, minus ‘I’, minus ‘DP’ divided by (II) the ‘NRPB’ (as each such abbreviation is defined in the definition of “Participation”) is at least [**]%.
2.2. Clause (c)(10) of Section 1.4 of the Agreement (Daily Purchaser Share Allocation) is amended as follows:
(10) tenth, (i) to the extent (A) the quotient of (I) the ‘NRPB’, plus the amount on deposit in the Cash Reserve Account, minus ‘I’, minus ‘DP’ divided by (II) the ‘NRPB’ (as each such abbreviation is defined in the definition of “Participation”) would be less than [**]% if such funds were released to the Seller or (B) any Purchaser has notified the Agent and the Servicer in writing that distributions to the Seller should cease, either, as specified by the Seller or Servicer, (x) to be retained in the Deposit Accounts or Liquidation Account until the following Business Day for distribution pursuant to Section 1.4(c) or 1.4(e), as applicable, on such following Business Day or (y) to be distributed to repay the Investment of the Participation of the Purchasers pursuant to Section 1.4(f) or (ii) if no Purchaser has notified the Agent and the Servicer in writing that distributions to the Seller should cease, to the Seller but only to the extent (A) no Paydown Day exists or would result from such distribution and (B) after giving effect to such payment, the quotient of (I) the ‘NRPB’, plus the amount on deposit in the Cash Reserve Account, minus ‘I’, minus ‘DP’ divided by (II) the ‘NRPB’ (as each such abbreviation is defined in the definition of “Participation”) is at least [**]%.
2.3. The definition of “Net Spread” in Exhibit I to the Agreement is hereby amended to read as follows:
“Net Spread” means the annualized percentage equivalent of a fraction (computed as of the last day of each calendar month), the numerator of which is the excess of (x) all Finance Charge and Floorplan Fee Collections received and applied during such calendar month (including recoveries) over (y) the sum of, without duplication, (i) the Carry Costs for such calendar month, (ii) the aggregate amount of Receivables that became Defaulted Receivables during such calendar month, and (iii) the aggregate amount of non-cash adjustments that reduced the Outstanding Balance of any Pool Receivable during such calendar month (but excluding any Receivable that was included in the calculation of Net Spread pursuant to clause (ii) above in any previous calendar month); and the denominator of which is the average aggregate Outstanding Balances of the Pool Receivables during such calendar month; provided that the “Net Spread” calculated for the calendar months of April through and including September of 2020 shall not include (I) any addition for recoveries as otherwise provided in clause (x) above and (II) any deduction for Defaulted Receivables as otherwise provided in clause (y)(ii) above.
2.4. The following sentence is hereby deleted from clause (o) in Exhibit IV to the Agreement:
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Notwithstanding the following, no Restricted Payments shall be permitted to be made by the Seller following the execution of Amendment No.1 of this Agreement until each of the Purchasers consents in writing thereto.
2.5 Clauses (j) and (k) of Termination Event in Exhibit V to the Agreement are hereby amended to read as follows:
(j) (A) as of the last day of any calendar month (other than the months of April through September of 2020), the arithmetic average of the Net Spread for the most recent three calendar months shall be less than [**]% or (B) the Net Spread shall be less than (i) [**]%, for any of the months of April, May or June of 2020, (ii) [**]%, for any of the months of July, August or September of 2020 or (iii) [**]%, for any calendar month after September 2020; or
(k) (A) at any time, the Aggregate Participation exceeds [**]% or (B) for any month from and after April 2020, the quotient of (I) the ‘NRPB’, plus the amount on deposit in the Cash Reserve Account, minus ‘I’, minus ‘DP’ divided by (II) the ‘NRPB’ (as each such abbreviation is defined in the definition of “Participation”) is less than [**]% and, in each case, such condition shall continue unremedied for five days after any date any Servicer Report or Portfolio Certificate is required to be delivered; or
3. Representations and Warranties. Each of the Seller and the Servicer hereby represents and warrants to the Agent, the Purchasers and the Purchaser Agents 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 upon the receipt by (i) the Agent of each of the counterparts of this Amendment executed by each of the parties hereto and (ii) the Agent of written confirmation by ▇▇▇▇▇’▇ that this Amendment shall not cause the rating on the Agreement to be downgraded or withdrawn.
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
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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. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the Agent to accept electronic signatures in any form or format without its prior written consent. “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
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.
9. Reaffirmation of Performance Guaranty. By signing below, KAR Auction Services, Inc. reaffirms its obligations under the Performance Guaranty after giving effect to this Amendment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
AFC FUNDING CORPORATION, as Seller
By: /s/ ▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Sr. Vice President Finance, Treasurer
AUTOMOTIVE FINANCE CORPORATION,
as Servicer
By: /s/ ▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Sr. Vice President Finance, Treasurer
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FAIRWAY FINANCE COMPANY, LLC, as a Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
BMO CAPITAL MARKETS CORP., as Purchaser
Agent for Fairway Finance Company, LLC and Bank of Montreal
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
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BANK OF MONTREAL, as Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
BANK OF MONTREAL, as Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
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ROYAL BANK OF CANADA, as Purchaser Agent for Thunder Bay Funding, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Authorized Signatory
THUNDER BAY FUNDING, LLC, as a Purchaser
By: Royal Bank of Canada,
its attorney-in-fact
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
PNC BANK, NATIONAL ASSOCIATION,
as Purchaser and Purchaser Agent for itself
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
TRUIST BANK, successor by merger to SunTrust Bank, as Purchaser and as Purchaser Agent for itself
By: /s/ ▇▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Senior VP
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FIFTH THIRD BANK, NATIONAL ASSOCIATION, as Purchaser and as Purchaser Agent for itself
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Associate
JPMORGAN CHASE BANK N.A., as Purchaser Agent for Chariot Funding LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
CHARIOT FUNDING LLC, as a Purchaser
By: JPMorgan Chase Bank, N.A., its attorney-in-
fact
By: JPMorgan Chase Bank, N.A., its attorney-in-
fact
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
Acknowledged and Agreed:
as provider of the Performance Guaranty
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: EVP & CFO
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