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IAA Acquisition Corp., et al. – ‘S-4’ on 1/24/08 – EX-10.33

On:  Thursday, 1/24/08, at 9:22pm ET   ·   As of:  1/25/08   ·   Accession #:  1193125-8-11728   ·   File #s:  333-148847, -01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -13, -14, -15, -16, -17, -18, -19, -20, -21, -22, -23, -24, -25, -26, -27, -28, -29, -30, -31, -32, -33, -34, -35, -36, -37, -38, -39, -40, -41, -42, -43, -44, -45, -46, -47, -48, -49, -50, -51, -52, -53, -54

Previous ‘S-4’:  ‘S-4/A’ on 9/14/05   ·   Next & Latest:  ‘S-4/A’ on 2/11/08   ·   18 References:   

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

 1/25/08  IAA Acquisition Corp.             S-4                  167:19M                                    RR Donnelley/FA
          Asset Holdings III, L.P.
          Adesa Washington, LLC
          Adesa-South Florida, LLC
          Adesa New Jersey, LLC
          Adesa Lansing, LLC
          Adesa Dealer Services, LLC
          Adesa Atlanta, LLC
          A.D.E. of Knoxville, LLC
          Adesa Corporation, LLC
          IAA Services, Inc.
          Insurance Auto Auctions Corp.
          Sioux Falls Auto Auction, Inc.
          Autovin, Inc.
          Adesa Southern Indiana, LLC
          Adesa San Diego, LLC
          Adesa Missouri, LLC
          Adesa Lexington, LLC
          Insurance Auto Auctions, Inc
          Auto Dealers Exchange of Memphis, LLC
          Adesa Texas, Inc.
          Adesa Mexico, LLC
          Adesa Colorado, LLC
          Adesa Birmingham, LLC
          Adesa Arkansas, LLC
          A.D.E. of Ark-La-Tex, Inc.
          Adesa Inc
          Automotive Finance Corp
          Adesa Virginia, LLC
          Adesa New York, LLC
          Dent Demon, LLC
          Auto Disposal Systems, Inc.
          Axle Holdings, Inc.
          Ads Ashland, LLC
          Adesa Phoenix, LLC
          Adesa Charlotte, LLC
          KAR Holdings, Inc.
          Adesa Oklahoma, LLC
          Zabel & Associates, Inc.
          Adesa Florida, LLC
          Tri-State Auction Co., Inc.
          Adesa Pennsylvania, LLC
          Automotive Recovery Services, Inc.
          Adesa Impact Texas, LLC
          Auto Dealers Exchange of Concord, LLC
          Par, Inc.
          Ads Priority Transport Ltd.
          Adesa Ohio, LLC
          Adesa Des Moines, LLC
          Adesa Wisconsin, LLC
          Adesa Indianapolis, LLC
          Afc Cal, LLC
          Adesa Ark-La-Tex, LLC
          Automotive Finance Consumer Division, LLC
          Adesa California, LLC

Registration of Securities Issued in a Business-Combination Transaction   —   Form S-4
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-4         Registration of Securities Issued in a              HTML   4.62M 
                          Business-Combination Transaction                       
 2: EX-2.1      Agreement and Plan of Merger                        HTML    438K 
 3: EX-3.1      Certificate of Incorporation of Kar Holdings,       HTML     71K 
                          Inc., as Amended                                       
12: EX-3.10     Operating Agreement for A.D.E. of Knoxville, LLC,   HTML    127K 
                          as Amended                                             
102: EX-3.100    Code of Regulations for Auto Disposal Systems,      HTML     78K  
                          Inc.                                                   
103: EX-3.101    Articles of Organization of Ads Ashland, LLC        HTML     69K  
104: EX-3.102    Operating Agreement for Ads Ashland, LLC            HTML    117K  
105: EX-3.103    Articles of Organization of Ads Priority Transport  HTML     60K  
                          Ltd.                                                   
106: EX-3.104    Operating Agreement for Ads Priority Transport      HTML    118K  
                          Ltd.                                                   
107: EX-3.105    Articles of Organization of Dent Demon, LLC         HTML     71K  
108: EX-3.106    Operating Agreement for Dent Demon, LLC             HTML    115K  
109: EX-3.107    Certificate of Incorporation of Sioux Falls Auto    HTML     76K  
                          Auction, Inc.                                          
110: EX-3.108    By-Laws of Sioux Falls Auto Auction, Inc.           HTML    107K  
111: EX-3.109    Articles of Incorporation of Zabel & Associates,    HTML     64K  
                          Inc.                                                   
13: EX-3.11     Articles of Organization of Adesa Ark-La-Tex, LLC   HTML     64K 
112: EX-3.110    By-Laws of Zabel & Associates, Inc.                 HTML    107K  
14: EX-3.12     Amended and Restated Operating Agreement for Adesa  HTML    123K 
                          Ark-La-Tex, LLC, as Amended                            
15: EX-3.13     Certificate of Formation of Adesa Arkansas, LLC     HTML     99K 
16: EX-3.14     Operating Agreement for Adesa Arkansas, LLC, as     HTML    128K 
                          Amended                                                
17: EX-3.15     Certificate of Formation of Adesa Atlanta, LLC      HTML     64K 
18: EX-3.16     Amended and Restated Operating Agreement for Adesa  HTML    122K 
                          Atlanta, LLC, as Amended                               
19: EX-3.17     Articles of Organization of Adesa Birmingham, LLC   HTML     82K 
20: EX-3.18     Operating Agreement for Adesa Birmingham, LLC, as   HTML    129K 
                          Amended                                                
21: EX-3.19     Articles of Organization-Conversion of Adesa        HTML     69K 
                          California, LLC                                        
 4: EX-3.2      By-Laws of Kar Holdings, Inc.                       HTML    160K 
22: EX-3.20     Operating Agreement for Adesa California, LLC, as   HTML    116K 
                          Amended                                                
23: EX-3.21     Articles of Organization of Adesa Charlotte, LLC    HTML     72K 
24: EX-3.22     Operating Agreement for Adesa Charlotte, LLC, as    HTML    133K 
                          Amended                                                
25: EX-3.23     Articles of Organization of Adesa Colorado, LLC     HTML     95K 
26: EX-3.24     Operating Agreement for Adesa Colorado, LLC, as     HTML    131K 
                          Amended                                                
27: EX-3.25     Articles of Organization of Adesa Dealer Services,  HTML     72K 
                          LLC                                                    
28: EX-3.26     Operating Agreement for Adesa Dealer Services, LLC  HTML    117K 
29: EX-3.27     Articles of Organization of Adesa Des Moines, LLC   HTML     85K 
30: EX-3.28     Operating Agreement for Adesa Des Moines, LLC, as   HTML    132K 
                          Amended                                                
31: EX-3.29     Articles of Organization of Adesa Florida, LLC      HTML     75K 
 5: EX-3.3      Amended and Restated Certificate of Incorporation   HTML     69K 
                          of Adesa, Inc.                                         
32: EX-3.30     Operating Agreement for Adesa Florida, LLC, as      HTML    129K 
                          Amended                                                
33: EX-3.31     Certificate of Formation of Adesa Impact Texas,     HTML     83K 
                          LLC                                                    
34: EX-3.32     Operating Agreement for Adesa Impact Texas, LLC,    HTML    124K 
                          as Amended                                             
35: EX-3.33     Articles of Organization of Adesa Indianapolis,     HTML     72K 
                          LLC                                                    
36: EX-3.34     Operating Agreement for Adesa Indianapolis, LLC,    HTML    131K 
                          as Amended                                             
37: EX-3.35     Articles of Organization of Adesa Lansing, LLC      HTML    110K 
38: EX-3.36     Operating Agreement for Adesa Lansing, LLC, as      HTML    128K 
                          Amended                                                
39: EX-3.37     Articles of Organization of Adesa Lexington, LLC    HTML     78K 
40: EX-3.38     Operating Agreement for Adesa Lexington, LLC, as    HTML    134K 
                          Amended                                                
41: EX-3.39     Articles of Organization of Adesa Mexico, LLC       HTML     71K 
 6: EX-3.4      Amended and Restated By-Laws of Adesa, Inc.         HTML    107K 
42: EX-3.40     Operating Agreement for Adesa Mexico, LLC           HTML    111K 
43: EX-3.41     Certificate of Organization of Adesa Missouri, LLC  HTML     91K 
44: EX-3.42     Operating Agreement for Adesa Missouri, LLC, as     HTML    120K 
                          Amended                                                
45: EX-3.43     Certificate of Formation of Adesa New Jersey, LLC   HTML     68K 
46: EX-3.44     Operating Agreement for Adesa New Jersey, LLC, as   HTML    120K 
                          Amended                                                
47: EX-3.45     Articles of Organization of Adesa New York, LLC     HTML     70K 
48: EX-3.46     Operating Agreement for Adesa New York, LLC, as     HTML    131K 
                          Amended                                                
49: EX-3.47     Articles of Organization of Adesa Ohio, LLC         HTML     86K 
50: EX-3.48     Operating Agreement for Adesa Ohio, LLC, as         HTML    130K 
                          Amended                                                
51: EX-3.49     Articles of Organization of Adesa Oklahoma, LLC     HTML     88K 
 7: EX-3.5      Articles of Organization of Adesa Corporation, LLC  HTML     71K 
52: EX-3.50     Operating Agreement for Adesa Oklahoma, LLC, as     HTML    130K 
                          Amended                                                
53: EX-3.51     Certificate of Organization of Adesa Pennsylvania,  HTML    132K 
                          Inc.                                                   
54: EX-3.52     Operating Agreement for Adesa Pennsylvania, LLC     HTML    115K 
55: EX-3.53     Articles of Incorporation of Tri-State Auction      HTML     89K 
                          Co., Inc.                                              
56: EX-3.54     By-Laws of Tri-State Auction Co., Inc.              HTML    106K 
57: EX-3.55     Certificate of Formation of Adesa Phoenix, LLC      HTML     63K 
58: EX-3.56     Amended and Restated Operating Agreement for Adesa  HTML    122K 
                          Phoenix, LLC, as Amended                               
59: EX-3.57     Certificate of Incorporation of Axle Holdings,      HTML     68K 
                          Inc., as Amended                                       
60: EX-3.58     By-Laws of Axle Holdings, Inc.                      HTML    159K 
61: EX-3.59     Articles of Organization of Adesa San Diego, LLC    HTML     76K 
 8: EX-3.6      Operating Agreement for Adesa Corporation, LLC, as  HTML    120K 
                          Amended                                                
62: EX-3.60     Amended and Restated Operating Agreement for Adesa  HTML    119K 
                          San Diego, LLC, as Amended                             
63: EX-3.61     Articles of Organization of Adesa-South Florida,    HTML     62K 
                          LLC                                                    
64: EX-3.62     Amended and Restated Operating Agreement for        HTML    115K 
                          Adesa-South Florida, LLC                               
65: EX-3.63     Articles of Organization of Adesa Southern          HTML     72K 
                          Indiana, LLC                                           
66: EX-3.64     Operating Agreement for Adesa Southern Indiana,     HTML    132K 
                          LLC, as Amended                                        
67: EX-3.65     Articles of Incorporation of Adesa Texas, Inc.      HTML     82K 
68: EX-3.66     Amended and Restated Code of By-Laws of Adesa       HTML    109K 
                          Texas, Inc.                                            
69: EX-3.67     Articles of Organization of Adesa Virginia, LLC     HTML     71K 
70: EX-3.68     Operating Agreement for Adesa Virginia, LLC, as     HTML    122K 
                          Amended                                                
71: EX-3.69     Certificate of Formation of Adesa Washington, LLC   HTML     92K 
 9: EX-3.7      Articles of Incorporation of A.D.E. of Ark-La-Tex,  HTML     74K 
                          Inc.                                                   
72: EX-3.70     Operating Agreement for Adesa Washington, LLC, as   HTML    130K 
                          Amended                                                
73: EX-3.71     Articles of Organization of Adesa Wisconsin, LLC    HTML    103K 
74: EX-3.72     Operating Agreement for Adesa Wisconsin, LLC, as    HTML    129K 
                          Amended                                                
75: EX-3.73     Articles of Organization of Afc Cal, LLC            HTML     69K 
76: EX-3.74     Amended and Restated Operating Agreement for Afc    HTML     93K 
                          Cal, LLC                                               
77: EX-3.75     Restated Certificate of Limited Partnership of      HTML    141K 
                          Asset Holdings Iii, L.P.                               
78: EX-3.76     Amended and Restated Partnership Agreement for      HTML    231K 
                          Asset Holdings Iii, L.P.                               
79: EX-3.77     Certificate of Organization of Auto Dealers         HTML    100K 
                          Exchange of Concord, LLC                               
80: EX-3.78     Operating Agreement for Auto Dealers Exchange of    HTML    132K 
                          Concord, LLC, as Amended                               
81: EX-3.79     Articles of Organization of Auto Dealers Exchange   HTML     99K 
                          of Memphis, LLC                                        
10: EX-3.8      Amended and Restated Code of By-Laws of A.D.E. of   HTML    109K 
                          Ark-La-Tex, Inc.                                       
82: EX-3.80     Operating Agreement for Auto Dealers Exchange of    HTML    133K 
                          Memphis, LLC, as Amended                               
83: EX-3.81     Articles of Organization of Automotive Finance      HTML     72K 
                          Consumer Division, LLC                                 
84: EX-3.82     Operating Agreement for Automotive Finance          HTML    115K 
                          Consumer Division, LLC                                 
85: EX-3.83     Articles of Amend. and Restate. of Articles of      HTML    106K 
                          Inc. of Automotive Finance Corp.                       
86: EX-3.84     Amended and Restated Code of By-Laws of Automotive  HTML     80K 
                          Finance Corporation                                    
87: EX-3.85     Articles of Incorporation of Automotive Recovery    HTML     90K 
                          Services, Inc.                                         
88: EX-3.86     Amended and Restated Code of By-Laws of Automotive  HTML    108K 
                          Recovery Services, Inc.                                
89: EX-3.87     Articles of Incorporation of Autovin, Inc.          HTML     70K 
90: EX-3.88     Amended and Restated Code of By-Laws of Autovin,    HTML    108K 
                          Inc.                                                   
91: EX-3.89     Articles of Incorporation of Par, Inc.              HTML     96K 
11: EX-3.9      Articles of Organization of A.D.E. of Knoxville,    HTML     80K 
                          LLC                                                    
92: EX-3.90     Amended and Restated Code of By-Laws of Par, Inc.   HTML    109K 
93: EX-3.91     Articles of Incorporation of Insurance Auto         HTML    251K 
                          Auctions, Inc.                                         
94: EX-3.92     By-Laws of Insurance Auto Auctions, Inc.            HTML    151K 
95: EX-3.93     Articles of Incorporation of Insurance Auto         HTML    107K 
                          Auctions Corp.                                         
96: EX-3.94     By-Laws of Insurance Auto Auctions Corp.            HTML     98K 
97: EX-3.95     Certificate of Incorporation of Iaa Acquisition     HTML     65K 
                          Corp.                                                  
98: EX-3.96     By-Laws of Iaa Acquisition Corp.                    HTML    107K 
99: EX-3.97     Articles of Incorporation of Iaa Services, Inc.     HTML     94K 
100: EX-3.98     By-Laws of Iaa Services, Inc.                       HTML    101K  
101: EX-3.99     Articles of Incorporation of Auto Disposal          HTML     83K  
                          Systems, Inc., as Amended                              
113: EX-4.1      Indenture (Floating Rate Senior Notes)              HTML    701K  
122: EX-4.10     Second Supplemental Indenture (Fixed Rate Senior    HTML     75K  
                          Notes)                                                 
123: EX-4.11     Second Supplemental Indenture (Senior Subordinated  HTML     76K  
                          Notes)                                                 
114: EX-4.2      Indenture (Fixed Rate Senior Notes)                 HTML    690K  
115: EX-4.3      Indenture (Senior Subordinated Notes)               HTML    757K  
116: EX-4.4      Supplemental Indenture (Floating Rate Senior        HTML     81K  
                          Notes)                                                 
117: EX-4.5      Supplemental Indenture (Fixed Rate Senior Notes)    HTML     81K  
118: EX-4.6      Supplemental Indenture (Senior Subordinated Notes)  HTML     81K  
119: EX-4.7      Exchange and Registration Rights Agreement          HTML    252K  
120: EX-4.8      Registration Rights Agreement                       HTML    178K  
121: EX-4.9      Second Supplemental Indenture (Floating Rate        HTML     75K  
                          Senior Notes)                                          
124: EX-5.1      Opinion of Skadden, Arps, Slate, Meagher & Flom     HTML     99K  
                          LLP                                                    
125: EX-10.1     Guarantee and Collateral Agreement                  HTML    287K  
132: EX-10.10    Form of Conversion Stock Option Agreement           HTML     93K  
133: EX-10.11    Form of Amendment to Conversion Stock Option        HTML     66K  
                          Agreement                                              
134: EX-10.12    Form of Rollover Stock Option Agreement             HTML    101K  
135: EX-10.13    Form of Conversion Agreement                        HTML     90K  
136: EX-10.14    Stock Incentive Plan of Kar Holdings, Inc.          HTML    109K  
137: EX-10.15    Form of Nonqualified Stock Option Agreement         HTML     97K  
138: EX-10.16    Employment Agreement (John Nordin)                  HTML    105K  
139: EX-10.17    Amendment to Employment Agreement (John Nordin)     HTML     62K  
140: EX-10.18    Financial Advisory Agreement (Goldman, Sachs &      HTML     68K  
                          Co.)                                                   
141: EX-10.19    Financial Advisory Agreement (Valueact Capital      HTML     69K  
                          Master Fund, L.P.)                                     
126: EX-10.2     Credit Agreement                                    HTML    611K  
142: EX-10.20    Financial Advisory Agreement (Pcap, L.P.)           HTML     69K  
143: EX-10.21    2007 Incentive Plan Executive Management of         HTML     69K  
                          Insurance Auto Auctions, Inc.                          
144: EX-10.22    Amended and Restated Employment Agreement (Thomas   HTML    104K  
                          C. O'Brien)                                            
145: EX-10.23    Limited Liability Company Agreement of Kar          HTML     78K  
                          Holdings Ii, LLC                                       
146: EX-10.24    Amended and Restated Limited Liability Company      HTML    338K  
                          Agm'T of Axle Holdings Ii, LLC                         
147: EX-10.25    Amendment to Amend & Rest. Limited Liability Co.    HTML     65K  
                          Agm'T of Axle Holdings Ii, LLC                         
148: EX-10.26    First Amend. to Amend & Rest. Ltd. Liability Co.    HTML     69K  
                          Agm'T of Axle Holdings Ii, LLC                         
149: EX-10.27    2007 Annual Incentive Program for Kar Holdings      HTML     71K  
150: EX-10.28    Tax Sharing Agreement                               HTML    168K  
151: EX-10.29    Trust Indenture                                     HTML    311K  
127: EX-10.3     Assumption Agreement                                HTML    108K  
152: EX-10.30    Bond Purchase Agreement                             HTML    152K  
153: EX-10.31    Lease Agreement                                     HTML    272K  
154: EX-10.32    Amended and Restated Purchase and Sale Agreement    HTML    239K  
155: EX-10.33    Amendment No. 1 to Amended and Restated Purchase    HTML     75K  
                          and Sale Agreement                                     
156: EX-10.34    Amendment No. 2 to Amended and Restated Purchase    HTML     70K  
                          and Sale Agreement                                     
157: EX-10.35    Amendment No. 3 to Amended and Restated Purchase    HTML     72K  
                          and Sale Agreement                                     
158: EX-10.36    Third Amended and Restated Receivables Purchase     HTML    865K  
                          Agreement                                              
128: EX-10.4     Intellectual Property Security Agreement            HTML    127K  
129: EX-10.5     Shareholders Agreement                              HTML    193K  
130: EX-10.8     Financial Advisory Agreement (Kelso & Company,      HTML     70K  
                          L.P.)                                                  
131: EX-10.9     Conversion Option Plan of Kar Holdings, Inc.        HTML    105K  
159: EX-12.1     Statement of Computation of Ratio of Earnings to    HTML    103K  
                          Fixed Charges                                          
160: EX-21.1     Subsidiaries of Kar Holdings, Inc.                  HTML     81K  
161: EX-23.1     Consent of Kpmg LLP                                 HTML     60K  
162: EX-23.2     Consent of Pricewaterhousecoopers LLP               HTML     58K  
163: EX-25.1     Form T-1 (Floating Rate Senior Notes)               HTML    132K  
164: EX-25.2     Form T-1 (Fixed Rate Senior Notes)                  HTML    130K  
165: EX-25.3     Form T-1 (Senior Subordinated Notes)                HTML    130K  
166: EX-99.1     Form of Letter to Clients                           HTML     71K  
167: EX-99.2     Form of Letter to Brokers, Dealers                  HTML     66K  


EX-10.33   —   Amendment No. 1 to Amended and Restated Purchase and Sale Agreement


This exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]



  Amendment No. 1 to Amended and Restated Purchase and Sale Agreement  

Exhibit 10.33

AMENDMENT NO. 1 TO AMENDED AND RESTATED

PURCHASE AND SALE AGREEMENT

THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT (this “Amendment”), dated as of June 15, 2004, is entered into between AFC FUNDING CORPORATION, an Indiana corporation (the “Company”) and AUTOMOTIVE FINANCE CORPORATION, an Indiana corporation (the “Originator”).

R E C I T A L S

A. The Company and the Originator are parties to that certain Amended and Restated Purchase and Sale Agreement, dated as of May 31, 2002, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time (the “Agreement”).

B. The Company, the Originator, Fairway Finance Company, LLC, Harris Nesbitt Corp. and XL Capital Assurance Inc. are parties to that certain Second Amended and Restated Receivables Purchase Agreement, dated as of June 15, 2004 (the “Receivables Purchase Agreement”).

C. The Company and the Originator 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 used but not defined herein have the meanings provided in the Receivables Purchase Agreement.

2. Amendments to Agreement. The Agreement is amended as follows:

2.1 Section 5.11(b) of the Agreement is hereby amended and restated in its entirety as follows:

(b) No effective financing statement or other instrument similar in effect covering any Receivable or any Related Right is on file in any recording office except such as may be filed in favor of the Company in accordance with this Agreement or in favor of the Agent for the benefit of the Secured Parties in accordance with the Receivables Purchase Agreement.”

2.2 Section 5.20 of the Agreement is hereby amended in its entirety to read as follows:

Section 5.20 Eligibility of Receivables. So long as the Originator is the Servicer, each Pool Receivable included as an Eligible Receivable in the calculation of Net Receivables Pool Balance is an Eligible Receivable as of the date of such calculation. The Servicer, on behalf of the Company may from time to time on the Servicer Report identify specific Receivables as “Specified Ineligible Receivables”.


2.3 Section 6.1(c) of the Agreement is hereby amended and restated in its entirety as follows:

(c) Receivables Review. (i) From time to time during regular business hours, upon reasonable prior notice as requested by the Company, the Agent or the Insurer, permit the Company, the Agent or the Control Party, or their registered agents or representatives, (A) to examine and make copies of and abstracts from all books, records and documents (including, without limitation, computer tapes and disks) in the possession or under the control of the Originator relating to Receivables and the Related Rights, including, without limitation, the related Contracts, and (B) to visit the offices and properties of the Originator for the purpose of examining such materials described in clause (A) above, and to discuss matters relating to Receivables and the Related Rights or the Originator’s performance hereunder or under the Contracts with any of the officers or employees of the Originator having knowledge of such matters; and (ii) without limiting the provisions of clause (i) immediately above, from time to time on request of the Insurer or the Agent, permit certified public accountants or other auditors acceptable to the Insurer or the Agent, as applicable, to conduct a review of its books and records with regards to the Receivables and Related Rights; provided, however, that the Control Party (or if the Control Party is the Majority Purchasers, the Agent) shall not be reimbursed for more than two such examinations in any year (including any examinations conducted pursuant to any other Transaction Document but excluding any audit conducted pursuant to Section 4.2(a) of the Receivables Purchase Agreement unless (x) a Level One Trigger has occurred and is continuing, in which case the Company, the Control Party or the Agent shall be reimbursed for four such examinations per year in addition to any audits conducted pursuant to Section 4.2(a) of the Receivables Purchase Agreement or (y) a Termination Event, Unmatured Termination Event or Control Party Notice Event has occurred, in which case the Control Party (or if the Control Party is the Majority Purchasers, the Agent) shall be reimbursed for all such examinations. The Control Party agrees to notify the Agent of any such examinations and agrees that the Agent can be present at any such examinations.

2.4 Section 6.1(i) of the Agreement is hereby amended by removing “paragraph (16)” therein and replacing it with “paragraph (17)”.

2.5 Section 8.1(g) of the Agreement is hereby amended by removing the amount “$250,000” from the final sentence thereof and replacing it with “$10,000,000.”

2.6 Schedule 1.lb of the Agreement is hereby amended and replaced in its entirety with Schedule l.lb hereto.

3. Representations and Warranties. The Originator hereby represents and warrants to the Company as follows:

(a) Representations and Warranties. The representations and warranties of the Originator contained in Article V 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).

 

2


(b) Enforceability. The execution and delivery by the Originator 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) Purchase and Sale Termination Event. No Purchase and Sale Termination Event has occurred and is continuing.

4. Effectiveness. This Amendment shall become effective as of the date hereof upon receipt by the Company, the Originator, the Agent and the Insurer of counterparts of this Amendment and the Receivables Purchase Agreement, each duly executed and dated as of the date hereof (or such other date satisfactory to the Agent and the Insurer), in form and substance satisfactory to the Agent and the Insurer.

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 Purchase and Sale 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.

 

3


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

 

AFC FUNDING CORPORATION

By:

 

/s/ Curtis L. Phillips

Name:

  Curtis L. Phillips

Title:

  Vice President and Treasurer

AUTOMOTIVE FINANCE CORPORATION

By:

 

/s/ Curtis L. Phillips

Name:

  Curtis L. Phillips

Title:

  Vice President and Treasurer

CONSENTED TO BY:

 

XL CAPITAL ASSURANCE INC.

By:

 

/s/ Richard Pfaltzgraff

Name:

  Richard Pfaltzgraff

Title:

  Managing Director

 

S-1

(Amendment No. 1 to Amended and

Restated Purchase and Sale Agreement)


HARRIS NESBITT CORP., as Agent

By:

 

/s/ Kevin P. Gibbons

Name:

  Kevin P. Gibbons

Title:

  Managing Director

By:

 

/s/ David J. Kucera

Name:

  Davla J. Kucera

Title:

  Managing Director

 

S-2

(Amendment No. 1 to Amended and

Restated Purchase and Sale Agreement)


SCHEDULE 1.lb

EXCLUDED RECEIVABLES

Excluded Receivables” has the meaning provided in the Receivables Purchase Agreement.


Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘S-4’ Filing    Date    Other Filings
Filed as of:1/25/08
Filed on:1/24/08
6/15/043
5/31/02
 List all Filings 


18 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
 8/05/20  OPENLANE, Inc.                    10-Q        6/30/20   67:8.8M
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