Exhibit 10.20(b)

 

AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED
 RECEIVABLES PURCHASE AGREEMENT

 

THIS AMENDMENT NO. 1 to FOURTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “Amendment”), dated as of May 20, 2011, is entered into among AFC FUNDING CORPORATION, an Indiana corporation (the “Seller”), AUTOMOTIVE FINANCE CORPORATION, an Indiana corporation (the “Servicer”), FAIRWAY FINANCE COMPANY, LLC (a “Purchaser”), MONTEREY FUNDING LLC (a “Purchaser”), SALISBURY RECEIVABLES COMPANY LLC (a “Purchaser”), DEUTSCHE BANK AG, NEW YORK BRANCH, as Purchaser Agent for Monterey Funding LLC (a “Purchaser Agent”), BARCLAYS BANK PLC, as Purchaser Agent for Salisbury Receivables Company LLC (a “Purchaser Agent”), and BMO CAPITAL MARKETS CORP., as Purchaser Agent for Fairway Finance Company, LLC (a “Purchaser Agent”) and as the initial 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 Fourth Amended and Restated Receivables Purchase Agreement dated as of April 26, 2011 (as amended, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Agreement”).

 

B.                                    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 amended to replace the definition of “KAR Credit Facility” in Exhibit I to the Agreement as set forth below:

 

“KAR Credit Facility” means that certain Credit Agreement, dated as of May 19, 2011 among KAR Auction Services, Inc., as Borrower, the secured lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Goldman Sachs Lending Partners LLC, as Syndication Agent and the other parties thereto, as the same may be amended, supplemented or otherwise modified from time to time.

 

3.                                      Representations and Warranties.  Each of the Seller and the Servicer hereby represents and warrants to the Agent and the Purchasers 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 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.

 

2











 

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

 

	
 
    	
AFC   FUNDING CORPORATION
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   James E. Money
    
	
 
    	
Name:   
    	
James   E. Money II
    
	
 
    	
Title:
    	
Chief   Financial Officer and Treasurer
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
AUTOMOTIVE   FINANCE CORPORATION
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   James E. Money
    
	
 
    	
Name:   
    	
James   E. Money II
    
	
 
    	
Title:
    	
Chief   Financial Officer and Treasurer
    


 

 

AFC

Amendment No. 1 to Fourth A&R RPA

 

S-1











 

	
 
    	
FAIRWAY   FINANCE COMPANY, LLC, as a Purchaser
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Phillip A. Martone
    
	
 
    	
Name:
    	
Phillip   A. Martone
    
	
 
    	
Title:
    	
Vice   President
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
BMO   CAPITAL MARKETS CORP., as Purchaser Agent for Fairway Finance Company, LLC   and as Agent
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   John Pappano
    
	
 
    	
Name:
    	
John   Pappano
    
	
 
    	
Title:
    	
Managing   Director
    


 

 

AFC

Amendment No. 1 to Fourth A&R RPA

 

S-2











 

	
 
    	
DEUTSCHE   BANK AG, NEW YORK BRANCH, as Purchaser Agent for Monterey Funding LLC
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Daniel Gerber
    
	
 
    	
Name:
    	
Daniel   Gerber
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Robert Sheldon
    
	
 
    	
Name:
    	
Robert   Sheldon
    
	
 
    	
Title:
    	
Managing   Director
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
MONTEREY   FUNDING LLC, as a Purchaser
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Phillip A. Martone
    
	
 
    	
Name:
    	
Phillip   A. Martone
    
	
 
    	
Title:
    	
Vice   President
    


 

 

AFC

Amendment No. 1 to Fourth A&R RPA

 

S-3











 

	
 
    	
BARCLAYS   BANK PLC, as Purchaser Agent for Salisbury
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jamie Pratt
    
	
 
    	
Name:
    	
Jamie   Pratt
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
SALISBURY   RECEIVABLES COMPANY LLC, as a Purchaser
    
	
 
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:   Barclays Bank plc
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   John McCarthy
    
	
 
    	
Name:
    	
John   McCarthy
    
	
 
    	
Title:
    	
Vice   President
    


 

 

AFC

Amendment No. 1 to Fourth A&R RPA

 

S-4