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KAR Auction Services, Inc. – ‘8-K’ for 9/2/20 – ‘EX-10.1’

On:  Tuesday, 9/8/20, at 8:07am ET   ·   For:  9/2/20   ·   Accession #:  1104659-20-102845   ·   File #:  1-34568

Previous ‘8-K’:  ‘8-K’ on / for 8/4/20   ·   Next:  ‘8-K’ on 10/5/20 for 9/29/20   ·   Latest:  ‘8-K’ on / for 2/20/24   ·   17 References:   By:  OPENLANE, Inc. – ‘10-K’ on 2/21/24 for 12/31/23 By:  OPENLANE, Inc. – ‘10-Q’ on 11/2/23 for 9/30/23 By:  OPENLANE, Inc. – ‘10-Q’ on 8/3/23 for 6/30/23 By:  OPENLANE, Inc. – ‘10-Q’ on 5/3/23 for 3/31/23 By:  OPENLANE, Inc. – ‘10-Q/A’ on 3/22/23 for 9/30/22 By:  OPENLANE, Inc. – ‘10-Q/A’ on 3/22/23 for 6/30/22 By:  OPENLANE, Inc. – ‘10-Q/A’ on 3/22/23 for 3/31/22 By:  OPENLANE, Inc. – ‘10-K’ on 3/9/23 for 12/31/22 By:  OPENLANE, Inc. – ‘10-Q’ on 11/2/22 for 9/30/22 By:  OPENLANE, Inc. – ‘10-Q’ on 8/3/22 for 6/30/22 By:  OPENLANE, Inc. – ‘10-Q’ on 5/4/22 for 3/31/22 By:  OPENLANE, Inc. – ‘10-K’ on 2/23/22 for 12/31/21 By:  OPENLANE, Inc. – ‘10-Q’ on 11/3/21 for 9/30/21 By:  OPENLANE, Inc. – ‘10-Q’ on 8/4/21 for 6/30/21 By:  OPENLANE, Inc. – ‘10-Q’ on 5/5/21 for 3/31/21 By:  OPENLANE, Inc. – ‘10-K’ on 2/18/21 for 12/31/20 By:  OPENLANE, Inc. – ‘10-Q’ on 11/4/20 for 9/30/20 

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  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 9/08/20  KAR Auction Services, Inc.        8-K:1,8,9   9/02/20   13:1.2M                                   Toppan Merrill/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                      HTML     33K 
 2: EX-2.1      Plan of Acquisition, Reorganization, Arrangement,   HTML    400K 
                Liquidation or Succession                                        
 3: EX-10.1     Material Contract                                   HTML    110K 
 4: EX-99.1     Miscellaneous Exhibit                               HTML     15K 
 9: R1          Cover                                               HTML     46K 
11: XML         IDEA XML File -- Filing Summary                      XML     13K 
 8: XML         XBRL Instance -- tm2030334-1_8k_htm                  XML     15K 
10: EXCEL       IDEA Workbook of Financial Reports                  XLSX      6K 
 6: EX-101.LAB  XBRL Labels -- kar-20200902_lab                      XML     97K 
 7: EX-101.PRE  XBRL Presentations -- kar-20200902_pre               XML     64K 
 5: EX-101.SCH  XBRL Schema -- kar-20200902                          XSD     13K 
12: JSON        XBRL Instance as JSON Data -- MetaLinks               25±    34K 
13: ZIP         XBRL Zipped Folder -- 0001104659-20-102845-xbrl      Zip    125K 

Exhibit 10.1

Execution Version

FIFTH AMENDMENT AGREEMENT

This FIFTH AMENDMENT AGREEMENT, dated as of September 2, 2020 (this “Amendment”), is entered into by and among each undersigned existing Revolving Lender (collectively, the “Consenting Revolving Lenders”), KAR AUCTION SERVICES, INC., a Delaware corporation (the “Borrower”), the other Loan Parties party hereto and JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”).

PRELIMINARY STATEMENTS

WHEREAS, reference is made to the Amended and Restated Credit Agreement, dated as of March 11, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”; the Existing Credit Agreement, as amended hereby, the “Credit Agreement”; capitalized terms used but not otherwise defined herein are used with the meanings given in the Credit Agreement), among the Borrower, the lenders and issuing banks party thereto from time to time and the Administrative Agent; and

WHEREAS, in accordance with clause (xiii) of Section 11.1 of the Credit Agreement, the Borrower and the Consenting Revolving Lenders (constituting the Majority Facility Lenders under the Revolving Facility) have agreed to amend the Existing Credit Agreement as provided in Section 1 hereof on the Fifth Amendment Effective Date (as defined below).

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

SECTION 1.          Amendments to Existing Credit Agreement. Effective as of the Fifth Amendment Effective Date, the Existing Credit Agreement shall be amended, in accordance with clause (xiii) of the Section 11.1 of the Existing Credit Agreement, as follows:

(a)            Section 1.1 of the Existing Credit Agreement is hereby amended by deleting therefrom the definitions of each of the following terms: “Available Commitments”, “Limited Waiver Period”, “Liquidity” and “Specified Event”.

(b)            Section 8.1 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:

“8.1         Financial Condition Covenant.     Permit the Consolidated Senior Secured Net Leverage Ratio, as of the last day of each fiscal quarter (commencing with the fiscal quarter ending December 31, 2019) on which any Revolving Loans are outstanding, to exceed 3.50:1.00.”

SECTION 2.          Conditions to the Fifth Amendment Effective Date. This Amendment shall become a binding agreement of the parties hereto and the amendments set forth in Section 1 hereof shall each become effective on the date of the satisfaction (or waiver) of the following conditions (the date such conditions are satisfied or waived, the “Fifth Amendment Effective Date”):

(a)            this Amendment shall have been duly executed by the Borrower, each other Loan Party, the Administrative Agent and Revolving Lenders that collectively constitute the Majority Facility Lenders under the Revolving Facility, and delivered to the Administrative Agent;

(b)           the Borrower shall have compensated the Administrative Agent in immediately available funds for all accrued costs, fees and expenses (including reasonable fees, expenses and other charges of counsel) of the Administrative Agent to the extent invoiced at least two (2) Business Days prior to the Fifth Amendment Effective Date; and

(c)            the Administrative Agent and each Revolving Lender shall have received all compensation required to be paid to it (or its Affiliates) on or prior to the Fifth Amendment Effective Date (including such fees set forth in that certain fee letter, dated as of the date hereof, by and among the Borrower, the Administrative Agent and certain Revolving Lenders (the “Fee Letter”) or any other fee letter between, on the one hand, the Borrower and, on the other hand, the Administrative Agent or any Revolving Lender (or any of their respective Affiliates).

SECTION 3.          Representations and Warranties. The Borrower represents and warrants that:

(a)            Authority. The Borrower and the other Loan Parties have the requisite power and authority to execute and deliver this Amendment and perform its obligations under this Amendment and the Credit Agreement, as applicable. Each Loan Party has the requisite power and authority to perform its obligations under the Loan Documents, as amended hereby. The execution, delivery and performance by the Borrower and the other Loan Parties of this Amendment, and the performance by each Loan Party of each Loan Document (as amended hereby) to which it is a party have been duly approved by all necessary organizational action of such Loan Party.

(b)            Enforceability. This Amendment has been duly executed and delivered by the Borrower and each other Loan Party. When the conditions to effectiveness in Section 2 hereof have been satisfied, each of this Amendment and each Loan Document (as amended hereby) is the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought in proceedings in equity or at law).

(c)            Representations and Warranties. The representations and warranties made by any Loan Party in or pursuant to the Loan Documents are true and correct in all material respects (other than where a representation or warranty is already qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the Fifth Amendment Effective Date as if made on and as of such date, except to the extent that such representations and warranties refer to an earlier date (in which case they are true and correct in all material respects (or true and correct in all respects where a representation or warranty is already qualified by materiality) as of such earlier date).

(d)            No Default. No Default or Event of Default shall have occurred and be continuing on the date hereof or after giving effect to this Amendment.

SECTION 4.          Reference to and Effect on the Loan Documents.

(a)            On and after the Fifth Amendment Effective Date, each reference in the Existing Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Existing Credit Agreement and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Credit Agreement, shall mean and be a reference to the Credit Agreement.

(b)            The Credit Agreement and the other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Security Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations under and as defined in the Credit Agreement.

(c)            The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents or constitute a waiver or amendment of any provision of any of the Loan Documents. This Amendment shall not constitute a novation of the Existing Credit Agreement or any other Loan Document.

(d)            The Borrower and the other parties hereto acknowledge and agree that, on and after the Fifth Amendment Effective Date, this Amendment and each of the other Loan Documents to be executed and delivered by a Loan Party shall constitute a Loan Document for all purposes of the Credit Agreement.

(e)            The provisions of Sections 11.12 and 11.16 of the Credit Agreement shall apply with like effect to this Amendment.

SECTION 5.          Reaffirmation. Each of the Grantors (as defined in the Amended and Restated Guarantee and Collateral Agreement) hereby (i) confirms and agrees that the Amended and Restated Guarantee and Collateral Agreement, the other Security Documents and all of the Collateral described in the foregoing do, and shall continue to, secure the payment and performance of all of the Secured Obligations (as defined in the Amended and Restated Guarantee and Collateral Agreement), (ii) reaffirms the security interest granted by each Grantor to the Administrative Agent and the Secured Parties and reaffirm the guaranties made pursuant to the Amended and Restated Guarantee and Collateral Agreement and (iii) acknowledges and agrees that the grant of security interests by, and the guaranties of, the Grantors contained in the Amended and Restated Guarantee and Collateral Agreement are, and shall remain, in full force and effect after giving effect to this Amendment.

SECTION 6.          Counterparts. This Amendment (including all consents and authorizations relating hereto) may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment (or any consent or authorization relating hereto) by electronic transmission or facsimile shall be effective and enforceable as delivery of a manually executed counterpart thereof. The Administrative Agent will not have any responsibility for determining whether (and makes no representation as to whether) any such counterpart has been duly authorized, executed or delivered or is enforceable against any party hereto. The words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures 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 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.

SECTION 7.          GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

[signature pages follow]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first written above.

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

[Signature Page to KAR Fifth Amendment]

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘8-K’ Filing		Date		Other Filings
Filed on:		9/8/20
For Period end:		9/2/20
		12/31/19		10-K,  8-K
		3/11/14		4,  8-K,  CT ORDER
				List all Filings

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17 Subsequent Filings that Reference this Filing

As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/21/24 OPENLANE, Inc. 10-K 12/31/23 112:14M 11/02/23 OPENLANE, Inc. 10-Q 9/30/23 68:7.4M 8/03/23 OPENLANE, Inc. 10-Q 6/30/23 66:7.3M 5/03/23 OPENLANE, Inc. 10-Q 3/31/23 60:6.8M 3/22/23 OPENLANE, Inc. 10-Q/A 9/30/22 62:7.2M 3/22/23 OPENLANE, Inc. 10-Q/A 6/30/22 61:7M 3/22/23 OPENLANE, Inc. 10-Q/A 3/31/22 61:6.1M 3/09/23 OPENLANE, Inc. 10-K 12/31/22 111:15M 11/02/22 OPENLANE, Inc. 10-Q 9/30/22 62:9.3M 8/03/22 OPENLANE, Inc. 10-Q 6/30/22 58:7.4M 5/04/22 OPENLANE, Inc. 10-Q 3/31/22 59:6.4M 2/23/22 OPENLANE, Inc. 10-K 12/31/21 110:15M 11/03/21 OPENLANE, Inc. 10-Q 9/30/21 57:6.9M 8/04/21 OPENLANE, Inc. 10-Q 6/30/21 55:6.8M 5/05/21 OPENLANE, Inc. 10-Q 3/31/21 57:5.6M 2/18/21 OPENLANE, Inc. 10-K 12/31/20 105:14M 11/04/20 OPENLANE, Inc. 10-Q 9/30/20 68:9.7M

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Filing Submission 0001104659-20-102845   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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