Document

Exhibit 10.35
THIRTEENTH AMENDMENT


THIRTEENTH AMENDMENT, dated as of December 30, 2020 (this “Amendment”) to the Amended and Restated Master Purchase and Sale Agreement, dated as of March 6, 2017, as amended by the First Amendment, dated as of September 14, 2017, by the Second Amendment, dated as of November 3, 2017, by Omnibus Amendment No. 2 to Basic Documents (Ally-Carvana Flow), dated as of January 4, 2018, by the Third Amendment, dated as of November 2, 2018, by the Fourth Amendment, effective as of January 4, 2019, by the Fifth Amendment, effective as of March 6, 2019, by the Sixth Amendment, effective as of April 19, 2019, by the Seventh Amendment, effective as of March 19, 2020, by the Eighth Amendment, effective as of March 24, 2020, by the Ninth Amendment, effective as of April 29, 2020, by the Tenth Amendment, effective as of May 19, 2020, by the Eleventh Amendment, effective as of June 30, 2020 and by the Twelfth Amendment, dated as of September 29, 2020 (the “Master Purchase and Sale Agreement”), among CARVANA AUTO RECEIVABLES 2016-1 LLC, a Delaware limited liability company, as Transferor (the “Transferor”), ALLY BANK, a Utah chartered bank, as a Purchaser (in such capacity, a “Purchaser”), and ALLY FINANCIAL INC., a Delaware corporation, as a Purchaser (in such capacity, a “Purchaser” and, together with Ally Bank, the “Purchasers”).
WITNESSETH:


WHEREAS, the Transferors and the Purchasers are parties to the Master Purchase and Sale Agreement pursuant to which the Purchasers have agreed to purchase specified portfolios of receivables and related property from the Transferor; and


WHEREAS, the parties wish to amend the Master Purchase and Sale Agreement in certain respects;


NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:


SECTION I
 DEFINITIONS


Section 1.01  Defined Terms.  Unless otherwise defined herein, capitalized terms used in the above recitals and in this Amendment are defined in and shall have the respective meanings assigned to them in (or by reference in) Appendix A to the Master Purchase and Sale Agreement.


SECTION II
AMENDMENTS


Section 2.01  Amendments to Appendix A (Definitions).  Appendix A to the Master Purchase and Sale Agreement is hereby amended by:






Certain information has been excluded because it both (i) is not material and (ii) would be competitively harmful if publicly disclosed.








(a)        revising the “Flex Receivable” and “Purchase Percentage” definitions and inserting each of the following terms which are double underlined in the place where such term appears below to, and deleting the stricken terms from, the “Flex Receivable” and “Purchase Percentage” definitions:


"“Flex Receivable” means either (x) a Receivable that meets the criteria of an "Eligible Receivable" (other than clause (xxii)(A) thereto) and (i) pursuant to which, at the time of origination of the related Contract, the related Obligor has elected in writing to defer the first scheduled payment in respect of such Receivable, (a) if the APR of the related Receivable is less than 10% per annum, 90 days from the related contract date, or (b) if the APR of the related Receivable is greater than or equal to 10% and less than or equal to 20%, 60 days from the related contract date, (ii) for which interest accrues at the related APR from the date of origination of such related Contract during such deferral period, (iii) for which the related credit application was completed and has a date on or after April 6, 2020 through and including May 31, 2020 (or such other date as agreed to by the Purchasers in their sole discretion), and (iv) as the time of submission of the related credit application, the related Obligor has submitted and signed an employment and income attestation in accordance with the Credit Policies of the Seller, noting that for the avoidance of doubt, a Receivable with an APR greater than 20% shall not be a Flex Receivable, or (y) a Receivable sold on either June 30, 2020, or September 29, 2020, or December 30, 2020 and listed on Schedule 10 to the Second Step Pool Supplement dated as of June 30, 2020, or Schedule 10 to the Second Step Pool Supplement dated as of September 29, 2020 or Schedule 10 to the Second Step Pool Supplement dated as of December 30, 2020, respectively.


“Purchase Percentage” for an Origination Period, means, the percentage equal or greater than to (i) the aggregate Outstanding Principal Balance of all Receivables originated or acquired by the Seller to be sold to the Transferor on the related Closing Date pursuant to the Master Sale Agreement divided by (ii) the aggregate principal balance of all receivables originated or acquired by the Seller that meet the criteria described in the definition of “Eligible Receivable” and such other documented administrative criteria as the Purchasers may agree to from time to time during such Origination Period (which, for purposes of clause (ii) shall be reduced by the aggregate principal balance of receivables with respect to which the applicable obligor has exercised its right to return the related financed vehicle and terminate the related receivable). In no event shall the Purchase Percentage be less than 100%, other than during the period from October 1, 2020 through November 14, 2020 January 28, 2021 when the Purchase Percentage will be 0%, and, in the event the Seller or the Transferor shall fail to notify the Purchasers of the Purchase Percentage for any Origination Period, the Purchase Percentage from the prior Origination Period shall apply."


Section 2.02  Amendments to Section 2.1(a) (Transferor Obligation).  Section 2.1(a) of the Master Purchase and Sale Agreement is hereby amended as set forth below by inserting each term thereof which is double underlined in the place where such term appears below and deleting the stricken text:


"(a)      Transferor Obligation.  Upon the terms and subject to the conditions set forth in this Agreement, and in reliance on the covenants, representations, warranties and 








agreements set forth herein, the Transferor commits to sell to the Purchasers one Receivables Pool each calendar week during the Commitment Period, except for the calendar weeks within the periods from January 4, 2019 to February 9, 2019 and October 1, 2020 through November 14, 2020 January 28, 2021 (provided, however, that the Transferor may elect to sell a Receivables Pool during any calendar week from October 1, 2020 through November 14, 2020 January 28, 2021), with a total Cutoff Date Aggregate Outstanding Principal Balance for all such Receivables Pools sold during the Commitment Period, taken together, equal to the Commitment Amount and each Receivables Pool sold to the Purchaser shall have a Cutoff Date Aggregate Outstanding Principal Balance equal to at least 100%, other than during the period from October 1, 2020 through November 14, 2020 January 28, 2021 when the Purchase Percentage will be 0%,
 (adjusted downward for a nonmaterial amount resulting from application of the Selection Procedures, including the Freestyle Selection, at a Purchase Percentage of 100%, other than during the period from October 1, 2020 through November 14, 2020 January 28, 2021 when the Purchase Percentage will be 0%,) of the aggregate principal balance of weekly pools of receivables originated by the Seller that meet the criteria described in the definition of “Eligible Receivable” and such other documented administrative criteria as the Purchasers may agree to from time to time during the second calendar week preceding the calendar week in which the related Closing Date shall occur related to such Receivables Pool during the Commitment Period; provided, that the Transferor shall not be obligated to sell any Receivables Pool if the related Second Step Receivables Purchase Price for such Receivables Pool is less than or equal to the Cutoff Date Aggregate Outstanding Principal Balance (collectively, the “Transferor Obligation”); provided, further, notwithstanding the maximum FICO score described in clause (xxxiv) in the definition of “Eligible Receivable,” if the Seller elects to consummate a Limited Sale Option under the Master Sale Agreement, then the Transferor shall include in any related Receivables Pool that has a related Cutoff Date on and including February 24, 2019 through and including March 24, 2019, all Receivables (without regard to the Purchase Percentage or application of the Freestyle Selection Criteria) where the related Obligors have a FICO score of more than the Upper Bound FICO Score and that otherwise meet the definition of “Eligible Receivable” (other than the Upper Bound FICO Score described in clause (xxxiv) thereof) originated during the related Origination Period; provided further that, in connection with a Limited Sale Option, if the Transferor sells such Receivables with FICO scores of more than the Upper Bound FICO Score, the Transferor shall also be required to include in such Receivables Pool all Eligible Receivables originated during the related Origination Period with FICO scores of not less than 590 and not more than the Upper Bound FICO Score that otherwise meet the definition of “Eligible Receivable” with randomization codes of the related contract numbers that are greater than the Purchase Percentage; provided, further, that the sum of the Cutoff Date Aggregate Outstanding Principal Balance for all Flex Receivables sold during the period beginning April 30, 2020 through and including July 2, 2020, taken together, shall not exceed $[***] (or such other later dates or higher amount as agreed to by the Purchasers in their sole discretion).  Notwithstanding the foregoing or anything to the contrary herein, solely for the purposes of this Section 2.1(a), any Receivable sold on June 30, 2020, or September 29, 2020, or December 30, 2020 shall not be deemed to be a Flex Receivable."




Section 2.03  Amendments to Section 2.1(b) (Purchaser Obligation).  Section 2.1(b) of the Master Purchase and Sale Agreement is hereby amended as set forth below by inserting each term thereof which is double underlined in the place where such term appears below and deleting the stricken text:




[***] Redacted for confidentiality purposes.








"(b)      Purchaser Obligation.  Upon the terms and subject to the conditions set forth in this Agreement, including Section 2.1(c) below, and in reliance on the covenants, representations, warranties and agreements herein set forth, the Purchasers commit to purchase one Receivables Pool each calendar week during the Commitment Period, except for the calendar weeks within the period from January 4, 2019 to February 9, 2019 and October 1, 2020 through November 14, 2020 January 28, 2021 (provided, however, that the Purchasers may elect, in their sole discretion to purchase a Receivables Pool during any calendar week from October 1, 2020 through November 14, 2020 January 28, 2021), on each Closing Date designated by the Transferor pursuant to Section 4.1(a); provided that the sum of the Cutoff Date Aggregate Outstanding Principal Balance for all Receivables Pools purchased during the Commitment Period shall not exceed the Commitment Amount and the sum of the Cutoff Date Aggregate Outstanding Principal Balance for all Flex Receivables purchased during the period beginning April 30, 2020 through and including July 2, 2020, taken together, shall not exceed $[***], or such other later dates or higher amount with respect to Flex Receivables as agreed to by the Purchasers in their sole discretion (collectively, the “Purchaser Obligation”).  Notwithstanding the foregoing or anything to the contrary herein, solely for the purposes of this Section 2.1(b), any Receivable sold on June 30, 2020, or September 29, 2020, or December 30, 2020 shall not be deemed to be a Flex Receivable."    


Section 2.04  Amendments to Section 6.2(a) (Aggregate Purchase Commitment)
Amendments to Section 6.2(a) (Aggregate Purchase Commitment).  The last sentence of Section 6.2(a) of the Master Purchase and Sale Agreement is hereby amended by inserting each of the following terms which are double underlined in the place where such term appears below:


"Notwithstanding the foregoing or anything to the contrary herein, solely for the purposes of this Section 6.2(a), any Receivable sold on June 30, 2020, or September 29, 2020, or December 30, 2020 shall not be deemed to be a Flex Receivable. "


Section 2.05  Amendments to Section 6.2(b) (Minimum Sales Amount).  Section 6.2(b) of the Master Purchase and Sale Agreement is hereby amended as set forth below by inserting each term thereof which is double underlined in the place where such term appears below and deleting the stricken text:


"(b)      Minimum Sales Amount.  The Aggregate Outstanding Principal Balance as of the related Cutoff Date shall not be less than 100%, other than during the period from October 1, 2020 through November 14, 2020 January 28, 2021 when the Purchase Percentage will be 0%,  (adjusted downward for a nonmaterial amount resulting from application of the Freestyle Selection at a Purchase Percentage of 100%, other than during the period from October 1, 2020 through November 14, 2020 January 28, 2021 when the Purchase Percentage will be 0%,) of the aggregate principal balance of weekly pools of receivables meeting the criteria described in the definition of “Eligible Receivable” and such other documented administrative criteria as the Purchasers may agree to from time to time originated by the Seller during the second calendar week preceding the related Closing Date unless otherwise agreed by the Purchasers."












[***] Redacted for confidentiality purposes.










SECTION III
MISCELLANEOUS


Section 3.01  Conditions to Effectiveness.  This Amendment shall become effective as of the date first written above upon the receipt of the following:


(a)    a signed counterpart to this Amendment duly executed and delivered by each of the parties hereto; and


(b)   a signed copy of the Eleventh Amendment to Master Sale Agreement, dated as of the date hereof, shall have been duly executed and delivered by  Carvana, LLC the Transferor, Ally Financial, and Ally Bank.


Section 3.02  Continuing Effect of the Master Purchase and Sale Agreement.  Except as specifically amended and modified above, the Master Purchase and Sale Agreement is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Purchasers under the Master Purchase and Sale Agreement, nor constitute a waiver of any provision of the Master Purchase and Sale Agreement.


Section 3.03  Representations and Warranties. The representations and warranties of  the Seller and the Transferor contained in the Basic Documents shall be true and correct in all material respects as of the effective date of this Amendment.


Section 3.04  Binding Effect.  This Amendment shall be binding upon and inure to the benefit of the Purchasers, the Servicer and their respective successors and permitted assigns.


Section 3.05  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. The parties intend that faxed signatures and electronically imaged signatures including as .pdf files shall constitute original signatures and are binding on all parties. In case any provision in or obligation under this Amendment shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. This Amendment contains the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all prior oral or written understandings other than any fee letter contemplated hereby.


Section 3.06  GOVERNING LAW. SUBMISSION TO JURISDICTION, ETC.


(a)    THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER JURISDICTION OTHER THAN SECTION 5-1401 








AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AMENDMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.


(b)    THE TRANSFEROR AND THE PURCHASERS HEREBY MUTUALLY AGREE TO SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AMENDMENT, ANY OTHER BASIC DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH OF THE TRANSFEROR AND THE PURCHASERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


(c)   THE TRANSFEROR AND THE PURCHASERS EACH HEREBY WAIVES (TO EXTENT THAT IT MAY LAWFULLY DO SO) ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS AMENDMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.


Section 3.07  Effect of Headings. The section headings herein are for convenience  only and shall not affect the construction hereof.








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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.


									
	CARVANA AUTO RECEIVABLES 2016-1 LLC
		as Transferor
			
	By:	/s/ Paul Breaux
		Name:	Paul Breaux
		Title:	Vice President
			
	ALLY BANK,
		as Purchaser
			
	By:	/s/ Thomas Elkins
		Name:	Thomas Elkins
		Title:	Authorized Representative
			
	ALLY FINANCIAL INC.,
		as Purchaser
			
	By:	/s/ Thomas Elkins
		Name:	Thomas Elkins
		Title:	Authorized Representative




						
	Agreed to and Accepted by:
		
	CARVANA, LLC,
		as Seller
		
	By:	/s/ Paul Breaux
	Name:	Paul Breaux
	Title:	Vice President