DB1/ 149565531.5 - 2 - (b) The execution and delivery of this Amendment and the performance of this Amendment and the Loan Agreement (as amended hereby) have been duly authorized by it by all necessary company action (including any necessary action by...
Signature Page to Amendment No. 10 to Amended and Restated Loan Agreement (SCFC Business Services LLC) CHARIOT FUNDING LLC, as Conduit Lender By: JPMorgan Chase Bank, N.A., as its attorney-in-fact By: ___________________________________ Name: Title: JPMORGAN CHASE BANK N.A., as JPMorgan Agent, as a Committed Lender, and as Administrative Agent By: ___________________________________ Name: Title: Xxxxxxxxx X. Xxxxxxx Executive Director Xxxxxxxxx X. Xxxxxxx Executive Director
Signature Page to Amendment No. 10 to Amended and Restated Loan Agreement (SCFC Business Services LLC) CITIBANK, N.A., as Citibank Agent and as a Committed Lender By: ___________________________________ Name: Title: CAFCO, LLC, as a Conduit Lender By: Citibank, N.A., as its Authorized Signatory By: ___________________________________ Name: Title: CHARTA, LLC, as a Conduit Lender By: Citibank, N.A., as its Authorized Signatory By: ___________________________________ Name: Title: Xxxxx Xxxxxxx Authorized Signatory Xxxxx Xxxxx Authorized Signatory Xxxxx Xxxxx Authorized Signatory
Signature Page to Amendment No. 10 to Amended and Restated Loan Agreement (SCFC Business Services LLC) XXXXXX, LLC, as a Conduit Lender By: Citibank, N.A., as its Authorized Signatory By: ___________________________________ Name: Title: CRC FUNDING, LLC, as a Conduit Lender By: Citibank, N.A., as its Authorized Signatory By: ___________________________________ Name: Title: Xxxxx Xxxxx Authorized Signatory Xxxxx Xxxxx Authorized Signatory
EXHIBIT A Conformed Amended and Restated Loan Agreement (Attached)
AMENDED AND RESTATED LOAN AGREEMENT CONFORMED COPY Amendment No. 1, dated as of June 4, 2021 Amendment No. 2, dated as of September 14, 2021 Amendment No. 3, dated as of November 10, 2021 Amendment No. 4, dated as of February 8, 2022 Amendment No. 5, dated as of June 23, 2022 Amendment No. 6, dated as of July 29, 2022 Amendment No. 7, dated as of September 26, 2022 Amendment No. 8, dated as of November 17, 2022 Omnibus Amendment No. 1, dated as of July 20, 2023 Amendment No. 9, dated as of February 23, 2024 Amendment No. 10, dated as of August 15, 2024 SCFC BUSINESS SERVICES LLC, as the Borrower, DRIVEWAY FINANCE CORPORATION, as the Servicer and as the Collateral Custodian, the LENDERS from time to time parties hereto, the AGENTS from time to time parties hereto, and JPMORGAN CHASE BANK, N.A., as the Administrative Agent and the Account Bank Dated as of December 31, 2020
Page EXHIBITS Exhibit A β Form of Funding Request A-1 Exhibit B β Form of Assignment and Acceptance B-1 Exhibit C β Credit and Collection Policy C-1 Exhibit D β Form of Power of Attorney D-1 Exhibit E β Form of Take-out Release E-1 Exhibit F β Form of Monthly Report F-1 Exhibit G β Forms of U.S. Tax Compliance Certificates G-1 v
"Account Bank" means, as of any date of determination, the Qualified Institution then holding the Collection Account and the Hedge Reserve Account. On the Amendment No. 9 Effective Date, the Account Bank is JPMorgan Chase Bank. "Account Collateral" means the Collection Account and the Hedge Reserve Account, together with all cash, securities, financial assets (as defined in Section 8-102(a)(9) of the UCC as then in effect in the relevant State) and investments and other property from time to time deposited or credited to the Collection Account or the Hedge Reserve Account, and all proceeds of the foregoing. "Adjusted Daily Simple SOFR" means an interest rate per annum equal to (i) the Daily Simple SOFR plus (ii) the Credit Adjustment. "Adjusted Principal Balance" means, as of any date for any Receivable, (i) if the related amount of Excess Spread as of such date is at least equal to the Target Rate for such Receivable, the Principal Balance of such Receivable as of such date, and (ii) if the related amount of Excess Spread as of such date is less than the Target Rate for such Receivable, then (A) if the APR of such Receivable is less than the Required Rate, the present value (calculated using a discount rate equal to the Required Rate) of all Scheduled Payments (including past due Scheduled Payments) remaining on such Receivable, assuming that all such Scheduled Payments are paid on a timely basis after such date or (B) if the APR of such Receivable is equal to or greater than the Required Rate, the Principal Balance of such Receivable as of such date. "Administrative Agent" has the meaning given to such term in the Preamble. "Administrative Agent's Account" means the account or accounts identified by the Administrative Agent to the Borrower and each Agent as the Administrative Agent's Account hereunder. "Advisors" means accountants, attorneys, consultants, advisors, credit enhancers, liquidity providers and Persons similar to the foregoing and the respective directors, officers, employees and managers of each of the foregoing. "Affiliate" means, with respect to a Person, any other Person controlling, controlled by or under common control with such Person. For purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" or "controlled" have meanings correlative to the foregoing. "Agent" means the agent for a particular Lender Group, as identified in the related Lender Supplement, and as of any date, "Agents" means all agents for all Lender Groups as of such date. βAggregate Adjusted Principal Balanceβ means, as of any date of determination, the aggregate Adjusted Principal Balance of the Receivables on such date. 2
"Aggregate Commitment" means, as of any day, the sum of the Commitments of each Lender Group. "Aggregate Mandatory Commitment" means, as of any day, the sum of the Mandatory Commitments of each Lender Group. "Aggregate Unpaids" means, with respect to any date, an amount equal to the sum of (i) the Loans Outstanding, (ii) all accrued but unpaid Interest and (iii) all Upfront Fees, Supplemental Upfront Fees, Unused Commitment Fees, Hedge Breakage Costs, Indemnified Amounts and other Obligations owed (whether due or accrued) by the Borrower or the initial Servicer to the Secured Parties, the Administrative Agent, the Backup Servicer, the Account Bank, the Indemnified Parties, and any Successor Servicer under this Agreement and the other Basic Documents. "Agreement" has the meaning given to such term in the Preamble. "Alternate Base Rate" means, with respect to any date, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the NYFRB Rate in effect on such day plus Β½ of 1%, and (iii) Adjusted Daily Simple SOFR plus 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate, or Adjusted Daily Simple SOFR shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate, or Adjusted Daily Simple SOFR, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.17 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.17(b)), then the Alternate Base Rate shall be the greater of clauses (i) and (ii) above and shall be determined without reference to clause (iii) above. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 0%, such rate shall be deemed to be 0% for purposes of this Agreement. βAmendment No. 9 Effective Dateβ means July 20, 2023. "Amortization Period" means the period commencing on the Termination Date and ending on the day on which the Loans Outstanding are reduced to zero and all other Aggregate Unpaids have been paid in full. "Amount Financed" means, with respect to a Receivable, the aggregate amount advanced under such Receivable toward the purchase price of the related Financed Vehicle and any related costs, including taxes, title and licensing fees, and amounts advanced in respect of accessories, insurance premiums, service and warranty contracts, other items customarily financed as part of a Contract, and related costs. "Ancillary Fees" means (a) late fees, (b) extension fees, (c) prepayment charges, (d) overdraft charges and (e) all other administrative fees or similar charges allowed by Applicable Law received by or on behalf of the Servicer with respect to the Receivables. "Annual Percentage Rate" or "APR" means, with respect to a Receivable, the rate per annum of finance charges stated in such Receivable as the "annual percentage rate" (within the meaning of the Federal Truth-in-Lending Act). If, after the applicable Funding Date, the rate per 3
annum with respect to a Receivable as of such Funding Date is reduced (i) as a result of an Insolvency Proceeding involving the related Obligor or (ii) pursuant to the Servicemembers Civil Relief Act or similar State law, "Annual Percentage Rate" or "APR" shall refer to such reduced rate. "Anti-Corruption Laws" means all laws, rules, and regulations of the United States or any State that are applicable to DFC, Lithia, the Borrower or their respective Affiliates or Subsidiaries from time to time concerning or relating to bribery or corruption. "Applicable Law" means, for any Person, all existing and future applicable laws, rules, regulations (including proposed, temporary and final income tax regulations), statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of and interpretations by any Governmental Authority (including usury laws, the Federal Truth in Lending Act, Regulation Z and Regulation B of the Federal Reserve Board, the Securities Act (including Regulation AB thereunder) and the Exchange Act), and applicable judgments, decrees, injunctions, writs, orders or line actions of any court, arbitrator or other administrative, judicial or quasi-judicial tribunal or agency of competent jurisdiction. "Applicable Margin" has the meaning given to such term in the Fee Letter. "Assignment and Acceptance" means an assignment and acceptance agreement between a Lender and an Eligible Assignee, in substantially the form of Exhibit B hereto. "Available Amount" means, with respect to any day, the positive amount, if any, by which the Facility Amount exceeds the Loans Outstanding on such day. "Available Funds" means, for any Payment Date and the related Collection Period, Collections on deposit in the Collection Account, to the extent received during the related Collection Period. "Backup Servicer" means a Person that is (i) reasonably acceptable to the Administrative Agent and that has been (ii) appointed as the "Backup Servicer" under a Backup Servicing Agreement that is entered into in accordance with Section 7.09. "Backup Servicing Agreement" means an agreement entered into by the Servicer, the Borrower and a Person that is either (i) listed on Schedule G hereto (as the same may be updated from time to time by the Administrative Agent in its sole discretion) or (ii) otherwise reasonably acceptable to the Administrative Agent, and who agrees thereunder to serve as the backup servicer, pursuant to which such Person agrees (a) to perform certain servicing duties with respect to the Receivables as set forth therein, including but not limited to providing a Monthly Backup Servicer Certificate to the Administrative Agent and the Lenders each monthno less often than once every three (3) months, (b) to be bound by the terms and provisions relating to the Backup Servicer as set forth in the Basic Documents, except for any such terms and provisions that are expressly modified or waived in the Backup Servicing Agreement (with the express consent of the Administrative Agent), and (c) to succeed to the role of Servicer if the initial Servicer resigns or is terminated in accordance with the terms of this Agreement. 4
"Backup Servicing Fee" means (i) prior to the appointment of a Backup Servicer, $0, and (ii) thereafter, the fees payable to the Backup Servicer as set forth in the Backup Servicing Agreement. "Backup Servicing Fee Rate" means, (i) with respect to any Collection Period prior to the appointment of a Backup Servicer, 0%, and (ii) with respect to the Collection Period during which the Backup Servicer was first engaged pursuant to Section 7.09 and for each Collection Period thereafter, (a) the percentage equivalent of a fraction, (1) the numerator of which is the Backup Servicing Fee and (2) the denominator of which is the average daily Pool Balance during the related Collection Period, times (b) 12. "Bankruptcy Code" means the United States Bankruptcy Code (Title 11 of the United States Code). "Basel II" means the second Basel Accord issued by the Basel Committee on Banking Supervision. "Basel III" means the third Basel Accord issued by the Basel Committee on Banking Supervision. "Basic Documents" means this Agreement, the Purchase Agreement, each Purchase Agreement Supplement, the Fee Letter, all Hedging Agreements, the Control Agreement, the Performance Guaranty, each Electronic Vault Services Agreement, and any other document, certificate, opinion, agreement or writing the execution of which is necessary or incidental to carrying out the transactions contemplated by this Agreement or any of the other foregoing documents. "Benchmark" means, with respect to the portion of the Loans Outstanding that is funded or maintained either (i) by a Conduit Lender other than by issuing Commercial Paper Notes or (ii) by a Committed Lender, initially, Daily Simple SOFR; provided, that if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to Daily Simple SOFR or the then-current Benchmark, then 'Benchmark' means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.17. "Benchmark Replacement" means, with respect to the portion of the Loans Outstanding that is funded or maintained either (i) by a Conduit Lender other than by issuing Commercial Paper Notes or (ii) by a Committed Lender, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark giving due consideration to (1) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (2) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar-denominated syndicated credit facilities at such time in the United States and (b) the related Benchmark Replacement Adjustment. If the Benchmark Replacement as determined pursuant to the above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Basic Documents. 5
"Benchmark Replacement Adjustment" means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar-denominated syndicated credit facilities at such time. "Benchmark Replacement Conforming Changes" means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of 'Alternate Base Rate,' the definition of 'Business Day,' the definition of 'U.S. Government Securities Business Day,' the definition of 'Interest Period,' timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative, or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Basic Documents). "Benchmark Replacement Date" means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark: (i) in the case of clause (i) or (ii) of the definition of 'Benchmark Transition Event,' the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide such Benchmark (or such component thereof); or; (ii) in the case of clause (iii) of the definition of 'Benchmark Transition Event,' the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (iii). 6
For the avoidance of doubt, (1) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (2) the 'Benchmark Replacement Date' will be deemed to have occurred in the case of clause (i) or (ii) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to such Benchmark (or the published component used in the calculation thereof). "Benchmark Transition Event" means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark: (i) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark (or such component thereof), permanently or indefinitely; provided, that at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof); (ii) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component), or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) permanently or indefinitely; provided, that at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof); or (iii) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark (or such component thereof) is no longer, or as of a specified future date will no longer be, representative For the avoidance of doubt, a 'Benchmark Transition Event' will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to such Benchmark (or the published component used in the calculation thereof). "Benchmark Unavailability Period" means, with respect to any Benchmark, the period (if any) (i) beginning at the time that a Benchmark Replacement Date pursuant to clauses (i) or (ii) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such 7
then-current Benchmark for all purposes hereunder and under any Basic Document in accordance with Section 2.17 and (ii) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Basic Document in accordance with Section 2.17. "Beneficial Ownership Certification" means a certification regarding beneficial ownership as required by the Beneficial Ownership Rule. "Beneficial Ownership Rule" means 31 C.F.R. Β§ 1010.230. "Benefit Plan" means each (i) employee pension benefit plan (as defined in Section 3(2) of ERISA) that are subject to Title I of ERISA, (ii) plan described in Section 4975(e)(1) of the Code, including individual retirement accounts or Xxxxx Plans that are not exempt under Section 4975(g) of the Code and (iii) any entity whose underlying assets include "plan assets" (as defined in Section 3(42) of ERISA and Department of Labor Regulations Section 2510.3-101) by reason of an employee benefit plan's or plans' investment in such entities. "Borrower" has the meaning given to such term in the Preamble. "Borrower Basic Documents" means all Basic Documents to which the Borrower is a party or by which it is bound. "Borrower's Account" means the bank account of the Borrower, as notified to the Administrative Agent from time to time in writing by the Borrower,. "Borrowing Base" means, as of any date of determination, an amount equal to (i) the difference of (a) the Net Eligible Pool Balance as of such date, after giving effect to the related additions or removals of Receivables on such date, minus (b) the Required Overcollateralization as of such date, minus (c) the aggregate Adjusted Principal Balance of all Receivables that are owned by the Borrower on such date, after giving effect to the related additions or removals of Receivables on such date, for which no Certificate of Title of the type described in clause (i) or (ii) of the definition thereof was obtained by the 180th day following the day on which the related Receivable was originated (provided, that if any such Certificate of Title is obtained after such 180th day, the Adjusted Principal Balance of the related Receivable will no longer be deducted pursuant to this clause (c)), plus (ii) the amount of Collections in respect of principal payments that are on deposit in the Collection Account on such. "Borrowing Base Deficiency" means, as of any date of determination, the positive amount, if any, by which (i) the Loans Outstanding exceeds (ii) the Borrowing Base. "Breakage Costs" means (i) such amount or amounts as shall compensate any Lender for any actual loss, cost or expense (but excluding lost profits) incurred by such Lender (as reasonably determined by such Lender) as a result of any prepayment of a Loan (and interest thereon) that is made on less than three Business Days' prior written notice to the Lenders and (ii) such amount or amounts due to any Lender pursuant to Section 2.07(c). "Business Day" means (i) any day (other than a Saturday or a Sunday) on which commercial banking institutions are not required or authorized to be closed in New York, New 8
York, Chicago, Illinois, and Medford, Oregon. and (ii) for any interest rate settings, fundings, disbursements, settlements or payments of any such Loan, conduit commercial paper issuance or any other dealings of such Loan, any such day that is also a U.S. Government Securities Business Day. "Certificate of Title" means, with respect to a Financed Vehicle, (i) the original certificate of title relating thereto, (ii) if the applicable Registrar of Titles issues a letter or other form of evidence of lien in lieu of a certificate of title (including electronic titling), the original lien entry letter, or (iii) prior to the time that a certificate of title of the type described in clause (i) or (ii) is issued, copies of correspondence to the applicable Registrar of Titles, and all enclosures thereto, for issuance of the original certificate of title or the original lien entry letter or form, as applicable, and which, in all of the foregoing cases, shall name the relatedprimary Obligor as the owner of such Financed Vehicle and DFC, the Borrower or the Administrative Agent, as secured party (provided, that 'Southern Cascades Finance Corporation' may be named as secured party on the Certificates of Title relating to those Receivables that are listed on Schedule A to Amendment No. 4 to the Loan Agreement, dated February 8, 2022, by and among the Borrower, Chariot, as a Conduit Lender, and JPMorgan, as the Administrative Agent, a Committed Lender, and Agent for the JPMorgan Lender Group, and acknowledged and agreed to by the Servicer and Collateral Custodian). For Financed Vehicles registered in States that issue confirmation of the lienholder's interest electronically, the 'Certificate of Title' may consist of notification of an electronic recordation, by either a third party service provider or the relevant Registrar of Titles, which indicates that the lien of the secured party on the Financed Vehicle is recorded on the original certificate of title on the electronic lien and title system of the applicable State. "Change in Control" means (i) DFC owns, directly or indirectly, less than 100% of the membership interests of the Borrower or (ii) Lithia owns, directly or indirectly, less than 51% of the voting and equity interests in DFC. "Citibank Agent" means Citibank, N.A., in its capacity as Agent for the Citibank Lender Group, and its successors in such capacity. "Citibank Lender Group" means the group of Lenders consisting of (a) the Conduit Lenders identified on the Lender Supplement attached hereto as Schedule A-2, (b) the Committed Lender identified on the Lender Supplement attached hereto as Schedule A-2, and (c) the Citibank Agent. "Closing Date" means July 31, 2020. "Code" means the Internal Revenue Code of 1986. "Collateral" has the meaning given to such term in Section 3.01(a). "Collateral Custodian" has the meaning given to such term in the Preamble. "Collection Account" means a segregated account established by the initial Servicer, on behalf of the Borrower, with the Account Bank in the name of the Administrative Agent for the benefit of the Secured Parties, into which all Collections shall be deposited. 9
"Collection Period" means, with respect to any date of determination, the immediately preceding calendar month, except for dates occurring on or prior to the first Payment Date, in which case such term means the period from but excluding the initial Cutoff Date to and including August 31, 2020. "Collections" means (i) all cash collections or other cash proceeds of any Receivable received by the Servicer (including from DFC or the Borrower) from or on behalf of any Obligor in payment of any amounts owed in respect of such Receivable, including all Release Price amounts deposited in the Collection Account pursuant to Section 5.04, Insurance Proceeds, investment earnings in the Collection Account, and all Recoveries, (ii) any other funds received by the Servicer (including from DFC or the Borrower) with respect to any Receivable (exclusive of Ancillary Fees which may be retained by the Servicer), Financed Vehicle or any other Collateral, (iii) all payments received by the Borrower pursuant to any Hedging Agreement or Hedge Transaction, and (iv) any Servicer Advances. "Commercial Paper Notes" means any short-term promissory notes issued by a Conduit Lender with respect to financing any Loan hereunder. "Commitment" means, with respect to any Lender or Lender Group, the commitment of such Lender or Lender Group to fund Loans in an aggregate amount not to exceed the amount set forth as the "Commitment" in the related Lender Supplement, as such amount may be modified from time to time in accordance with the terms hereof. "Commitment Termination Date" means July 18, 2025November 16, 2026 or, with respect to any Committed Lender, such later date to which the Commitment Termination Date may be extended for such Committed Lender in accordance with Section 2.04(a). "Committed Lender" means any Person that is designated as a "Committed Lender" in any Lender Supplement or in the Assignment and Acceptance pursuant to which it became a party to this Agreement, and any assignee of such Committed Lender to the extent of the portion of such Commitment assumed by such assignee pursuant to its respective Assignment and Acceptance, and as of any date, "Committed Lenders" means, collectively, all of the foregoing Persons as of such date. "Conduit Lender" means any Person that is designated as a "Conduit Lender" in any Lender Supplement or in the Assignment and Acceptance pursuant to which it became a party to this Agreement, and any assignee of such Conduit Lender to the extent of the portion of such Commitment assumed by such assignee pursuant to its respective Assignment and Acceptance, and as of any date, "Conduit Lenders" means, collectively, all of the foregoing Persons as of such date. "Conduit Portfolio Deferral Ratio" means, with respect to any date of determination, the percentage equivalent of a fraction, (i) the numerator of which is the aggregate Principal Balance of all Receivables with respect to which a Deferral was granted during the most recently completed Collection Period and (ii) the denominator of which is the aggregate Principal Balance of all Receivables as of the last day of such Collection Period. 10
"Conduit Portfolio Delinquency Ratio" means, with respect to any date of determination, the percentage equivalent of a fraction, (i) the numerator of which is the aggregate Principal Balance of all Delinquent Receivables as of the last day of the most recently completed Collection Period and (ii) the denominator of which is the Pool Balance as of the last day of such Collection Period. "Conduit Portfolio Net Loss Ratio (Non-Prime)" means, with respect to any date of determination, the product of (i) the percentage equivalent of a fraction, (a) the numerator of which is the difference of (1) the aggregate Principal Balance of all Non-Prime Receivables that became Defaulted Receivables during the most recently completed Collection Period minus (2) all Recoveries received during such Collection Period with respect to Non-Prime Receivables and (b) the denominator of which is the aggregate Principal Balance of all Non-Prime Receivables as of the last day of such Collection Period times (ii) twelve. "Conduit Portfolio Net Loss Ratio (Prime)" means, with respect to any date of determination, the product of (i) the percentage equivalent of a fraction, (a) the numerator of which is the difference of (1) the aggregate Principal Balance of all Prime Receivables that became Defaulted Receivables during the most recently completed Collection Period minus (2) all Recoveries received during such Collection Period with respect to Prime Receivables and (b) the denominator of which is the aggregate Principal Balance of all Prime Receivables as of the last day of such Collection Period times (ii) twelve. "Confidential Information" means any information, data, documents and materials in any form and at any time (including prior to the date of this Agreement) with respect to the Borrower, DFC, or any of their Affiliates and their respective businesses and financial information, the Receivables and the Serviced Portfolio and includes (i) information transmitted in written, oral, magnetic or any other medium, (ii) all copies and reproductions, in whole or in part, of such information and (iii) all summaries, analyses, compilations, studies, notes or other records which contain, reflect or are generated from such information; provided, that "Confidential Information" does not include, with respect to a Person, information that (a) was already known to such Person and such knowledge was not obtained from any other entity who was known by such Person to be subject to an obligation of confidentiality or otherwise prohibited from transmitting such information to such Person, (b) is or has become part of the public domain through no act or omission of such Person, (c) is or was lawfully disclosed to such Person without restriction on disclosure by a third party, (d) is or was developed independently by such Person, or (e) is or was lawfully and independently provided to such Person prior to disclosure hereunder, from a third party who is not known by such Person to be subject to an obligation of confidentiality or otherwise prohibited from transmitting such information. "Connection Income Taxes" means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. "Consent" or "Consented" means a consent or an action of the Administrative Agent that has been approved by the Required Lenders or the Consenting Lenders, as applicable. 11
"Consenting Lenders" means at a particular time, Lenders with aggregate Commitments equal to at least 100% of the Aggregate Commitment. "Contract" means any retail installment sale contract executed by an Obligor for a Financed Vehicle under which an extension of credit by DFC is made in the ordinary course of business to such Obligor and which is secured by the related Financed Vehicle. "Contractual Obligation" means, with respect to any Person, any provision of any securities issued by such Person or any indenture, mortgage, deed of trust, contract, undertaking, agreement, instrument or other document to which such Person is a party or by which it or any of its property is bound or is subject. "Control Agreement" means that certain Amended and Restated Escrow and Control Agreement, dated as of December 31, 2020, among the Borrower, JPMorgan Chase Bank, N.A., as escrow agent and bank, and the Administrative Agent. "Corresponding Tenor" with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor. "CP Rate" means, with respect to a Conduit Lender, the rate identified as its "CP Rate" in the Lender Supplement for the related Lender Group. "Cram Down Loss" means, with respect to a Receivable, if a court of appropriate jurisdiction in an Insolvency Proceeding shall have issued an order reducing the amount owed on such Receivable or otherwise modifying or restructuring the Scheduled Payments to be made on such Receivable, an amount equal to such reduction in the Principal Balance of such Receivable or the reduction in the net present value (using as the discount rate the lower of the contract rate or the rate of interest specified by the court in such order) of the Scheduled Payments as so modified or restructured. A "Cram Down Loss" shall be deemed to have occurred on the date such order is entered. "Credit Adjustment" has the meaning given to such term in the Fee Letter. "Credit and Collection Policy" means, with respect to (i) the initial Servicer, the credit and collection policies of the Servicer as are in effect on the Closing Date, as the same may be amended, modified, or supplemented from time to time in accordance with this Agreement, or (ii) any Successor Servicer, the customary credit and collection policies of such Successor Servicer, in each case as revised from time to time in accordance with this Agreement. "Credit Provider" means any provider of a Liquidity Facility. "Credit Support Annex" has the meaning given to such term in Section 6.03(b). "Cutoff Date" means, with respect to Receivables transferred to the Borrower on a Funding Date, the date that is three calendar days immediately preceding such Funding Date. 12
"Daily Simple SOFR" means, with respect to any date (a 'SOFR Rate Day'), a rate per annum equal to the greater of (i) SOFR for the day (such day, the related 'SOFR Determination Date') that is five U.S. Government Securities Business Day prior to (a) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day, or (b) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator's Website and (ii) 0%. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower. "Dealer" means an automobile dealer that is wholly-owned by Lithia that facilitated the extension of credit on a Financed Vehicle to an Obligor and through which the Contract and related Receivable were originated by DFC pursuant to the related Dealer Agreement. "Dealer Agreement" means an existing agreement between a Dealer and DFC regarding the terms and conditions of the facilitation by the Dealer of the underwriting by DFC of Contracts and the related Receivables. "Debt-to-Equity Ratio" means, with respect to any date of determination, (i) an amount equal to DFC's aggregate Indebtedness divided by (ii) an amount equal to DFC's Tangible Net Worth. "Debt-to-Income Ratio" means, with respect to any Receivable and the related Obligor, (i) the sum of (a) all of the related obligor's and any related co-obligor's (but no related guarantor's) monthly fixed payment obligations (including mortgage and other loan payments, rents, credit card payments, student loan payments and child support payments) at the time such Receivable was originated, as determined by DFC in accordance with the Credit and Collection Policy in effect at such time, plus (b) the monthly Scheduled Payment under the related Contract, divided by (ii) the sum of all of such related obligor's and any related co-obligor's (but no related guarantor's) monthly gross income for the calendar month immediately preceding the date such Receivable was originated, as determined by DFC in accordance with the Credit and Collection Policy in effect at such time. "Default Rate" means a per annum rate equal to the sum of (i) the Alternate Base Rate and (ii) 2.75%. "Defaulted Receivable" means any Receivable (i) that has been, or is required to be, treated as "defaulted" in accordance with the Credit and Collection Policy, (ii) with respect to which the Servicer has determined in good faith that payments thereunder have ceased and are not likely to be resumed, (iii) with respect to which the greater of (a) $50 and (b) 10% or more of any Scheduled Payment remains unpaid for more than 120 days from the related due date, or (iv) for which the related Financed Vehicle has been repossessed. "Defaulting Committed Lender" means any Committed Lender that, as determined by the Administrative Agent: (i) has failed to fund any of its obligations to make Loans in accordance with Section 2.01, notwithstanding that all conditions to funding under Section 4.2 and, with respect to the Initial Loan, Section 4.1 have been satisfied or waived in accordance with the 13
terms thereof, within three Business Days of the date required to be funded by it hereunder, (ii) has notified the Administrative Agent or the Borrower in writing that it does not intend to comply with such funding obligations, or has made a public statement to that effect with respect to such funding obligations hereunder, or (iii) has become subject to an Insolvency Event; provided, that a Committed Lender shall not be deemed to be a Defaulting Committed Lender hereunder solely by virtue of any control of or ownership interest in, or the acquisition of any ownership interest in, such Committed Lender (or its direct or indirect parent company) or the exercise of control over such Committed Lender (or its direct or indirect parent company) by a Governmental Authority thereof, if and for so long as such ownership interest does not result in or provide such Committed Lender (or its direct or indirect parent company) with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Committed Lender (or its direct or indirect parent company) or such Governmental Authority to reject, repudiate, disavow or disaffirm obligations such as those under this Agreement. "Deferral" means, with respect to any Receivable or Serviced Portfolio Receivable, a deferral that is granted by the Servicer to an Obligor whereby (i) all or any portion of one or more Scheduled Payments is waived for the related due date and (ii) such waived amount is due from such Obligor by no later than the final due date for the related Contract (which final due date may have been extended by the Servicer in connection with such deferral). For purposes of this definition, the "Obligor," "Scheduled Payment" and "Contract" for each Serviced Portfolio Receivable that is not a Receivable shall be determined as if it were a "Receivable" for purposes of all related defined terms. "Delinquent Receivable" means any Receivable, (i) with respect to which the greater of (a) $50 and (b) 10% or more of any Scheduled Payment remains unpaid for 60 or more days from the related due date and (ii) that is not a Defaulted Receivable. "Derivatives" means any (i) exchange-traded or over-the-counter forward, future, option, swap, cap, collar, floor or foreign exchange contract or any combination of the foregoing, whether for physical delivery or cash settlement, relating to any interest rate, interest rate index, currency, currency exchange rate, currency exchange rate index, debt instrument, debt price, debt index, depository instrument, depository price, depository index, equity instrument, equity price, equity index, commodity, commodity price or commodity index, (ii) similar transaction, contract, instrument, undertaking or security or (iii) transaction, contract, instrument, undertaking or security containing any of the foregoing. "DFC" has the meaning given to such term in the Preamble. "Xxxx-Xxxxx Act" means The Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173). "Dollars" or "$" means the lawful currency of the United States. "Early Adoption Increased Costs" has the meaning given to such term in Section 2.10. 14
"Early Adoption Increased Costs Representation" has the meaning given to such term in Section 2.10. "Early Amortization Event" means, on any date of determination, that: (i) as of any Reporting Date, the arithmetic mean of the Conduit Portfolio Net Loss Ratio (Prime) for the three Collection Periods immediately preceding such Reporting Date is greater than 4.00% (provided, that no Early Amortization Event will occur under this clause (i) if a Significant Take-out Date occurred during any of such three Collection Periods); (ii) as of any Reporting Date, the arithmetic mean of the Conduit Portfolio Net Loss Ratio (Non-Prime) for the three Collection Periods immediately preceding such Reporting Date is greater than 6.006.75% (provided, that no Early Amortization Event will occur under this clause (ii) if a Significant Take-out Date occurred during any of such three Collection Periods); (iii) as of any Reporting Date, the arithmetic mean of the Conduit Portfolio Delinquency Ratio for the three Collection Periods immediately preceding such Reporting Date is greater than 4.00% (provided, that no Early Amortization Event will occur under this clause (iii) if a Significant Take-out Date occurred during any of such three Collection Periods); (iv) as of any Reporting Date, the arithmetic mean of the Conduit Portfolio Deferral Ratio for the three Collection Periods immediately preceding such Reporting Date is greater than 1.50% (provided, that no Early Amortization Event will occur under this clause (iv) if a Significant Take-out Date occurred during any of such three Collection Periods); (v) a Borrowing Base Deficiency exists that has not been cured for at least three Business Days; provided, that if such Borrowing Base Deficiency would not have occurred but for the occurrence of a Step-up Event, then no Early Amortization Event will occur under this clause (v) unless such Borrowing Base Deficiency continues to exist as of the Reporting Date that occurs during the third Collection Period after the Collection Period during which such Borrowing Base Deficiency first existed; (vi) a breach of any Financial Covenant (Lithia) or any Financial Covenant (DFC) has occurred; (vii) any Servicer Termination Event (other than a Servicer Termination Event of the type specified in subsections (l), (m), (n) or (o) of Section 7.13) occurs; (viii) a Termination Event has occurred; or 15
(ix) a Material Adverse Change has occurred. provided, that any Early Amortization Event may be waived in a writing by the Consenting Lenders to the Borrower, with a copy to the Administrative Agent and the Servicer. "Election Period" means the period commencing on the date that a request for an extension pursuant to Section 2.04(a) is delivered and ending on the earlier of (i) the 45th calendar day thereafter or (ii) the 15th calendar day preceding the related Commitment Termination Date. "Electronic Chattel Paper Condition" means, with respect to any Receivable, the Contract of which is an Electronic Contract, the satisfaction of the following conditions: (i) delivery to the Administrative Agent of a legal opinion in a form reasonably acceptable to the Administrative Agent from a nationally recognized law firm to the effect that, as a legal matter, the Collateral Custodian has 'control' (within the meaning of Section 9-105 of the UCC as then in effect in the relevant State) of each Electronic Contract pledged to the Administrative Agent pursuant to this Agreement, in accordance with the related documents and procedures described in such legal opinion and with respect to the applicable Electronic Vault System and (ii) written approval by the Administrative Agent of the related Electronic Vault Provider in connection therewith. "Electronic Contract" means a Contract that constitutes βelectronic chattel paperβ (under and as defined in Article 9 of the UCC as then in effect in the relevant State) evidencing any Receivable. "Electronic Vault" means the electronic vault wherein custody of Electronic Contracts shall be maintained in electronic form through a third-party Electronic Vault Provider that enables electronic contracting pursuant to the related Electronic Vault Services Agreement. "Electronic Vault Provider" means a third-party provider of the technology platform on which the Electronic Vault operates. "Electronic Vault Services Agreement" means an agreement among the Collateral Custodian and an Electronic Vault Provider pursuant to which the Electronic Vault Provider maintains the related Electronic Vault. "Electronic Vault System" means the electronic vault system with characteristics reasonably acceptable to the Administrative Agent provided by the Electronic Vault Provider pursuant to the Electronic Vault Services Agreement that enables electronic contracting. "Eligible Assignee" means (i) X.X. Xxxxxx Xxxxx Bank, N.A., (ii) any other Committed Lender, (iii) a multi-seller commercial asset-backed paper conduit that is administered by a Lender, an Agent or the Administrative Agent or an Affiliate of any of them and the Commercial Paper Notes of which are rated at least "A-1" by Standard & Poor's and "Prime-1" by Moody's, (iv) any Credit Provider previously approved by the Borrower in writing prior to such assignment, or (iv) any other Person that is acceptable to the Agent related to the portion of the Commitment being assigned and with respect to which the Borrower has consented to in writing prior to such assignment (such consent of the Borrower not to be unreasonably withheld); 16
provided, that no such consent of the Borrower shall be required during the occurrence and continuation of a Servicer Termination Event or Termination Event. "Eligible Pool Balance" means, as of any date of determination, the sum of the Adjusted Principal Balances of all Eligible Receivables as of such date. "Eligible Receivable" means, as of any date of determination, any Receivable (i) for which the related Receivable File is in the possession or 'control' (within the meaning of Section 9-105 of the UCC as then in effect in the relevant State) of the Collateral Custodian, (ii) which is identified on the Schedule of Receivables delivered by the Borrower to the Administrative Agent as part of a Funding Request and (iii) which satisfies each of the eligibility requirements set forth on Schedule B hereto, in each case as of such date of determination; provided, that no Receivable for which the related Contract is an Electronic Contract (A) that is initially sold to the Borrower pursuant to the Purchase Agreement on or after July 29, 2022 may at any time be an Eligible Receivable or (B) that was initially sold to the Borrower pursuant to the Purchase Agreement prior to July 29, 2022 may be an Eligible Receivable from and after August 28, 2022, unless in either case the Electronic Chattel Paper Condition has been satisfied with respect to the related Electronic Vault Provider for such Electronic Contract. For the avoidance of doubt, if the Electronic Chattel Paper Condition has been satisfied with respect to an Electronic Vault Provider, then the foregoing proviso shall no longer be of any force or effect with respect to Electronic Contracts for which such entity is the Electronic Vault Provider and no Receivable that would otherwise constitute an Eligible Receivable at any time thereafter shall fail to qualify as an Eligible Receivable solely due to the terms of such proviso. "ERISA" means the Employee Retirement Income Security Act of 1974, and the regulations promulgated and rulings issued thereunder. "ERISA Affiliate" means (i) any corporation which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower, (ii) a trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Code) with the Borrower or (iii) a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as the Borrower, any corporation described in clause (i) above or any trade or business described in clause (ii) above. "Excess Concentration Amounts" means, as of any date of determination and without duplication, the sum of: (i) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the related Obligor has a billing address in the State with the highest concentration of Receivables by Obligor billing address as of such date minus (b) an amount equal to the product of (1) 35.0% times (2) the Eligible Pool Balance on such date; (ii) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the related Obligor has a billing address in the State with the second highest concentration of Receivables 17
by Obligor billing address as of such date minus (b) an amount equal to the product of (1) 25.0% times (2) the Eligible Pool Balance on such date; (iii) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the related Obligor has a billing address in the State with the third highest concentration of Receivables by Obligor billing address as of such date minus (b) an amount equal to the product of (1) 20.0% times (2) the Eligible Pool Balance on such date; (iv) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the related Obligor has a billing address in any State other than those States accounted for in clauses (i), (ii), and (iii), above, minus (b) an amount equal to the product of (1) 15.0% times (2) the Eligible Pool Balance on such date; (v) without duplication, the sum of (a) the positive difference, if any, of (1) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the related Obligors had FICO Scores of less than 700680 minus (2) the product of (A) 50.040.0% times (B) the Eligible Pool Balance as of such date plus (b) the positive difference, if any, of (1) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the related Obligors had FICO Scores of less than 620 minus (2) the product of (A) 12.50% times (B) the Eligible Pool Balance as of such date; plus (c) the positive difference, if any, of (1) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the related Obligors had FICO Scores of less than 550 minus (2) the product of (A) 5.00% times (B) the Eligible Pool Balance as of such date; (vi) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the related Obligors did not have a FICO Score or had a FICO Score of zero minus (b) the product of (1) 2.50% times (2) the Eligible Pool Balance as of such date; (vii) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the related Loan-to-Value Ratios were greater than 125% at the time of underwriting minus (b) the product of (0) 00.0000.00% times (2) the Eligible Pool Balance as of such date; (viii) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables that had original Principal Balances of greater than $40,000 minus (b) the product of (1) 50.0% times (2) the Eligible Pool Balance as of such date; (ix) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables that had original Principal Balances of greater than $75,000 minus (b) the product of (1) 15.07.50% times (2) the Eligible Pool Balance as of such date; 18
(x) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables which or on any prior date were (but which no longer are as of such date of determination) Serviced Portfolio Defaulted Receivables minus (b) the product of (1) 1.0% times (2) the Eligible Pool Balance as of such date; (xi) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the related Financed Vehicle was a Used Vehicle at the time such Receivable was originated minus (b) the product of (1) 85.0% times (2) the Eligible Pool Balance as of such date; (xii) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the original term to maturity was more than 75 months minus (b) the product of (1) 25.0% times (2) the Eligible Pool Balance as of such date; (xiii) the aggregate Adjusted Principal Balance of the Eligible Receivables that had FICO Scores of less than 665690 at the time of their underwriting that would need to be subtracted from the Eligible Pool Balance on such date in order to cause the weighted average FICO Score of all Eligible Receivables (excluding Receivables that do not have a FICO Score or have a FICO Score of zero) to 665690, with such weighted average calculated using the FICO Score of each such Receivable at the time of its underwriting; (xiv) the aggregate Adjusted Principal Balance of the Eligible Receivables that had Loan-to-Value Ratios at the time of their underwriting of greater than 112% that would need to be subtracted from the Eligible Pool Balance on such date in order to cause the weighted average Loan-to-Value Ratio of all Eligible Receivables at the time of their underwriting to equal 112%; (xv) the aggregate Adjusted Principal Balance of the Eligible Receivables that had Payment-to-Income Ratios of greater than 10.0% at the time of their underwriting that would need to be subtracted from the Eligible Pool Balance on such date in order to cause the weighted average Payment-to-Income Ratios of all Eligible Receivables at the time of their underwriting to equal 10.0%; (xvi) the aggregate Adjusted Principal Balance of the Eligible Receivables that had Debt-to-Income Ratios of greater than 32.5% at the time of their underwriting that would need to be subtracted from the Eligible Pool Balance on such date in order to cause the weighted average Debt-to-Income Ratio of all Eligible Receivables at the time of their underwriting to equal 32.5%; (xvii) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables for which the related Financed Vehicle had an odometer reading of more than 125,000 miles at the time such 19
Receivable was originated minus (b) the product of (1) 2.0% times (2) the Eligible Pool Balance as of such date; (xviii) the aggregate Adjusted Principal Balance of the Prime Receivables that are Eligible Receivables that had FICO Scores of less than 735750 at the time of their underwriting that would need to be subtracted from the Eligible Pool Balance on such date in order to cause the weighted average FICO Score of all Prime Receivables that are Eligible Receivables (excluding Receivables that do not have a FICO Score or have a FICO Score of zero) to equal 735750, with such weighted average calculated using the FICO Score of each such Receivable at the time of its underwriting; (xix) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Online Originated Receivables that are Eligible Receivables minus (b) the product of (1) 50.060.0% times (2) the Eligible Pool Balance as of such date; and (xx) the positive difference, if any, of (a) the aggregate Adjusted Principal Balance of the Eligible Receivables that had FICO Scores of less than 560 at the time of their underwritingfor which the related Obligor is an employee of Lithia, the Seller or any Affiliate thereof, minus (b) the product of (1) 7.510.00% times (2) the Eligible Pool Balance as of such date. "Excess Spread" means as of any date of determination, either: (i) with respect to any Receivable that is a Prime Receivable, the difference of (a) the weighted average APR of all Prime Receivables that are Eligible Receivables as of such date (weighted by the Principal Balance of such Eligible Receivables) minus (b) the Servicing Fee Rate minus (c) the Applicable Margin minus (d) the Weighted Average Hedge Rate as of such date minus (e) the Backup Servicing Fee Rate; (ii) with respect to any Receivable that is a Near PrimeNon-Prime Receivable (excluding any Receivable that is a Subprime Receivable), the difference of (a) the weighted average APR of all Near PrimeNon-Prime Receivables (excluding all Receivables that are Subprime Receivables) that are Eligible Receivables as of such date (weighted by the Principal Balance of such Eligible Receivables) minus (b) the Servicing Fee Rate minus (c) the Applicable Margin minus (d) the Weighted Average Hedge Rate as of such date minus (e) the Backup Servicing Fee Rate; or (iii) with respect to any Receivable that is a Subprime Receivable, the difference of (a) the weighted average APR of all Subprime Receivables that are Eligible Receivables as of such date (weighted by the Principal Balance of such Eligible Receivables) minus (b) the Servicing Fee Rate minus (c) the Applicable Margin minus (d) the Weighted Average Hedge Rate as of such date minus (e) the Backup Servicing Fee Rate. 20
"Excess Spread (Adjusted)" means, as of any date of determination, either: (i) with respect to any Receivable that is a Prime Receivable, the difference of (a) the percentage equivalent of a fraction, (1) the numerator of which equals the sum of (A) for each Eligible Receivable that is a Prime Receivable that has an APR that is less than the related Required Rate, the product of (x) the Adjusted Principal Balance of such Eligible Receivable as of such date times (y) the related Required Rate plus (B) for each Eligible Receivable that is a Prime Receivable that has an APR that is greater than or equal to the related Required Rate, the product of (x) the Adjusted Principal Balance of such Eligible Receivable as of such date times (y) the APR of such Eligible Receivable and (2) the denominator of which is the sum of the Adjusted Principal Balances as of such date of all Eligible Receivables that are Prime Receivables minus (b) the Servicing Fee Rate minus (c) the Applicable Margin minus (d) the Weighted Average Hedge Rate as of such date minus (e) the Backup Servicing Fee Rate; (ii) with respect to any Receivable that is a Near PrimeNon-Prime Receivable (excluding any Receivable that is a Subprime Receivable), the difference of (a) the percentage equivalent of a fraction, (1) the numerator of which equals the sum of (A) for each Eligible Receivable that is a Near PrimeNon-Prime Receivable (excluding any Eligible Receivable that is a Subprime Receivable) that has an APR that is less than the related Required Rate, the product of (x) the Adjusted Principal Balance of such Eligible Receivable as of such date times (y) the related Required Rate plus (B) for each Eligible Receivable that is a Near PrimeNon-Prime Receivable (excluding each Eligible Receivable that is a Subprime Receivable) that has an APR that is greater than or equal to the related Required Rate, the product of (x) the Adjusted Principal Balance of such Eligible Receivable as of such date times (y) the APR of such Eligible Receivable and (2) the denominator of which is the sum of the Adjusted Principal Balances as of such date of all Eligible Receivables that are Near PrimeNon-Prime Receivables (excluding all Eligible Receivables that are Subprime Receivables) minus (b) the Servicing Fee Rate minus (c) the Applicable Margin minus (d) the Weighted Average Hedge Rate as of such date minus (e) the Backup Servicing Fee Rate; or (iii) with respect to any Receivable that is a Subprime Receivable, the difference of (a) the percentage equivalent of a fraction, (1) the numerator of which equals the sum of (A) for each Eligible Receivable that is a Subprime Receivable that has an APR that is less than the related Required Rate, the product of (x) the Adjusted Principal Balance of such Eligible Receivable as of such date times (y) the related Required Rate plus (B) for each Eligible Receivable that is a Subprime Receivable that has an APR that is greater than or equal to the related Required Rate, the product of (x) the Adjusted Principal Balance of such Eligible Receivable as of such date times (y) the APR of such Eligible Receivable and (2) the denominator of which is the sum of the Adjusted Principal Balances as of such date of all Eligible Receivables that are Subprime 21
Receivables minus (b) the Servicing Fee Rate minus (c) the Applicable Margin minus (d) the Weighted Average Hedge Rate as of such date minus (e) the Backup Servicing Fee Rate. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Excluded Taxes" means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (a) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (b) that are Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (a) such Lender acquires such interest in the Loan or Commitment or (b) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.11, amounts with respect to such Taxes were payable either to such Xxxxxx's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iii) Taxes attributable to such Recipient's failure to comply with Section 2.11(g) and (iv) any withholding Taxes imposed under FATCA. "Facility Amount" means, as of any date of determination, (i) prior to the Termination Date, the Aggregate Commitment on such day and (ii) on and after the Termination Date, the Loans Outstanding. "Facility Termination Date" means the date following the Termination Date on which the Aggregate Unpaids have been indefeasibly paid in full. "FATCA" means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any applicable agreement entered into pursuant to Section 1471(b)(1) of the Code, any applicable intergovernmental agreement with respect to the foregoing, and any regulations and official administrative guidance thereunder. "Federal Funds Effective Rate" means, for any day, the rate calculated by the NYFRB based on such dayβs federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRBβs Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than 0%, such rate shall be deemed to be 0% for the purposes of this Agreement. "Federal Reserve Board" means the Board of Governors of the Federal Reserve System. "Fee Letter" means the "FourthFifth Amended and Restated Fee Letter", dated as of the July 20August 15, 20232024, among the Borrower, the initial Servicer, the Administrative Agent and the Agents, setting forth, among other things, the Upfront Fee, the Supplemental 22
Upfront Fee Rate, the Applicable Margin, the Credit Adjustment, and the Unused Commitment Fee Rate. "FICO Score" means with respect to any Receivable, the decisioned credit risk score that is generated by Equifax (or, if such credit risk score is unavailable through Equifax, the decisioned credit risk score that is generated by TransUnion or another equivalent consumer credit reporting agency) using their version 8 scorecard for use in the automotive lending sector, at the time of underwriting for the related Contract, which credit risk score is generated using statistical models established by Fair Xxxxx Corporation (or any successor entity thereto) for either (i) the related obligor or (ii) if greater, the related co-obligor under the related receivable. "Financed Vehicle" means, with respect to a Receivable, any new or used automobile, light-duty truck, minivan, sport utility vehicle or other passenger vehicle, together with all accessions thereto, securing the related Obligor's Indebtedness thereunder. "Financial Covenants (Lithia)" means: (a) at all times prior to the date on which each Agent is party to the Lithia Loan Agreement as a Lender, each of the covenants listed on Schedule F to this Agreement; (b) at all times that each Agent is party to the Lithia Loan Agreement as a βLender,β each of (i) the βFinancial Covenant β Fixed Charge Coverage Ratioβ set forth at Section 11.1.2 of the Lithia Loan Agreement and (ii) the βFinancial Covenant β Leverage Ratioβ set forth at Section 11.1.3 of the Lithia Loan Agreement, in each case giving effect to any amendments or other modifications that are at any time made to such sections, or the defined terms used in such sections, or any other provisions of the Lithia Loan Agreement that affect the calculations set forth in such sections, so long as any such amendments or other modifications are made in accordance with the terms of the Lithia Loan Agreement; or (c) at all times from and after the date on which any Agent ceases for any reason to be party to the Lithia Loan Agreement as a βLender,β each of (i) the βFinancial Covenant β Fixed Charge Coverage Ratioβ set forth at Section 11.1.2 of the Lithia Loan Agreement and (ii) the βFinancial Covenant β Leverage Ratioβ set forth at Section 11.1.3 of the Lithia Loan Agreement, as in effect on such date, without giving effect to any amendments or other modifications that are at any time made to such sections, or the defined terms used in such sections, or any other provisions of the Lithia Loan Agreement that affect the calculations set forth in such sections after such date, unless such amendments or other modifications have been consented to in writing by the Administrative Agent and the Required Lenders. "Financial Covenants (DFC)" means each of: (i) DFC's Tangible Net Worth for the most recently ended fiscal quarter shall at least equal (a) on or prior to June 29, 2023, $300,000,000, (b) from and including June 30, 2023 and through and including December 30, 2023, $330,000,000, (c) from and including December 31, 2023 and through and 23
including June 29, 2024, $375,000,000, and (d) from and including June 30, 2024 and on all dates thereafter, $525,000,000; and (ii) DFC's Debt-to-Equity Ratio for the most recently ended fiscal quarter shall not exceed 7.50 to 1.0. "Floor" means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the CP Rate or Daily Simple SOFR, as applicable. For the avoidance of doubt the initial Floor for each of the CP Rate or Adjusted Daily Simple SOFR shall be 0%. "Force Majeure Event" means an act of God or the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion or sabotage, epidemics, pandemics, landslides, lightening, fire, hurricanes, earthquakes, floods or similar causes. "Foreign Lender" means a Lender that is not a U.S. Person. "Formation Documents" means, with respect to (i) the Borrower, its limited liability company agreement and certificate of formation, (ii) DFC, its certificate of incorporation and bylaws, and (iii) Lithia, its certificate of incorporation and bylaws. "Fully Hedged" means a condition that exists as of any date of determination if the aggregate notional amount under all Hedge Transactions as of such date is at least equal to 100% of the Loans Outstanding as of such date (after giving effect to any changes to the Loans Outstanding on such date). "Funding Date" means each Business Day on which a Loan is made and Receivables are added to the Collateral in connection with such Loan. "Funding Request" means a written notice from the Borrower requesting a Loan and including the items required by Section 2.01(b), substantially in the form of Exhibit A hereto. "GAAP" means generally accepted accounting principles as in effect from time to time in the United States. "Governmental Authority" means, with respect to any Person, any nation or government, any State or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over such Person. "Hedge Breakage Costs" means, with respect to any Hedge Transaction, any amount payable by the Borrower to the related Hedge Counterparty upon the early termination of such Hedge Transaction or any portion thereof. "Hedge Collateral" means all of the rights of the Borrower, whether now existing and hereafter acquired, in and to all Hedging Agreements, Hedge Transactions and all present and 24
future amounts payable by all Hedge Counterparties to the Borrower under or in connection with such Hedging Agreements and Hedge Transactions with such Hedge Counterparties. "Hedge Counterparty" means any entity that on the date of entering into any Hedge Transaction is (i) JPMorgan Chase Bank, N.A. or an Affiliate thereof or (ii) (a) is an interest rate swap dealer, (b) whose debt ratings satisfy each of the Long-Term Rating Requirement and the Short-Term Rating Requirement and (c) agrees that in the event that Xxxxx'x or Standard & Poor's reduces its long-term unsecured debt rating below the Long-Term Rating Requirement or its short-term unsecured debt rating below the Short-Term Rating Requirement, it shall (1) transfer its rights and obligations under each Hedge Transaction to another entity that meets the requirements of this definition and has entered into a Hedging Agreement with the Borrower on or prior to the date of such transfer, or (2) post collateral in an amount satisfactory to the Required Lenders. Each Hedge Counterparty must consent to the assignment of the Borrower's rights under the Hedging Agreement to the Administrative Agent pursuant to Section 6.03(f). "Hedge Counterparty Collateral Account" has the meaning given to such term in Section 6.03(b). "Hedge Reserve Account" means a segregated account established by the initial Servicer, on behalf of the Borrower, with the Account Bank in the name of the Administrative Agent for the benefit of the Secured Parties, into which amounts may be deposited by the Borrower in accordance with Section 6.03(a) and which, at all times from and after the time of its establishment, will be subject to the Control Agreement. "Hedge Reserve Account Required Amount" means, as of any date of determination on which the aggregate notional amount of all outstanding Hedge Transactions is less than the Loans Outstanding (after giving effect to any changes to the Loans Outstanding on such date), an amount equal to the productgreater of (i) : (i) an amount equal to the product of (a) 0.15% and (b) the excess (if any) of (x) the Loans Outstanding on such date over (y) the aggregate notional amount under all Hedge Transaction on such date; and (ii) if the Required Lenders direct the Administrative Agent to obtain a quote, (a) 110% times (iib) the quoted purchase price from any Lender, any Agent, or any Affiliate of any Lender or Agent (which price shall be reasonably determined based on prevailing market conditions and such Lender or Agent's pricing of caps of a similar size, duration and cap rate) most recently received by the Borrower (or the Servicer on behalf of the Borrower) pursuant to Section 6.03(a)(ii) hereof (which quote shall, for purpose of this definition, continue in effect until the next succeeding date on which such a quote is received pursuant to Section 6.03(a)(ii) hereof), for an interest rate cap (A) that has a notional amount, duration, and amortization that is agreed upon by the Borrower and the Administrative Agent for such date and (B) the cap rate for which is the maximum cap rate that would cause the Excess Spread to equal the 'Average Target Rate' if a Hedge Transaction in the form of an interest rate cap having such strike rate and having the notional amount referenced in clause (A) was included in the calculation of 'Weighted Average Hedge Rate' on such date. For purposes of this definition, the 25
a provider of such services, (c) has prior experience as an independent director or manager for a corporation or limited liability company whose charter documents required the unanimous consent of all independent directors or managers thereof before such corporation or limited liability company could consent to the institution of insolvency proceedings against it or could file a petition seeking relief under any applicable insolvency laws and (d) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities or (ii) has otherwise been approved in writing by the Administrative Agent. "Ineligible Receivable" means, as of any date of determination, a Receivable that is not an Eligible Receivable. "Initial Loan" means the first Loan made on or after the Closing Date. "Insolvency Event" means, with respect to a specified Person, (i) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person or any substantial part of its property in an involuntary case under any applicable Insolvency Law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or ordering the winding-up or liquidation of such Person's affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days or (ii) the commencement by such Person of a voluntary case under any Insolvency Law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due, or the taking of action by such Person in furtherance of any of the foregoing. "Insolvency Laws" means the Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, arrangement, rearrangement, receivership, insolvency, reorganization, suspension of payments, marshaling of assets and liabilities or similar debtor relief laws from time to time in effect affecting the rights of creditors generally. "Insolvency Proceeding" means, with respect to any Person, any bankruptcy, insolvency, arrangement, rearrangement, conservatorship, moratorium, suspension of payments, readjustment of debt, reorganization, receivership, liquidation, marshaling of assets and liabilities or similar proceeding of or relating to such Person under any Insolvency Laws. "Instrument" means any "instrument" (as defined in Article 9 of the UCC), other than an instrument that constitutes part of chattel paper. "Insurance Policy" means, with respect to any Receivable, (i) an insurance policy covering physical damage to or loss of the related Financed Vehicle or (ii) any lender's single interest, credit life, disability, hospitalization and similar insurance policies with respect to the related Obligor. 27
"Insurance Proceeds" means any amounts payable or any payments made under any Insurance Policy. "Interest" means, for any Interest Period and each Loan outstanding during such Interest Period, interest on the Principal Amount of such Loan computed pursuant to Sections 2.05(b) and 2.05(d); provided, that (i) no provision of this Agreement shall require or permit the collection of Interest in excess of the Maximum Lawful Rate and (ii) Interest shall not be considered paid by any distribution if at any time such distribution is rescinded or must otherwise be returned for any reason. "Interest Period" means, with respect to each Payment Date, the immediately preceding Collection Period (or, in the case of the first Payment Date, the period from and including the Closing Date through and including August 31, 2020); provided, that any Interest Period that commences before the Facility Termination Date that would otherwise end after the Facility Termination Date shall end on the Facility Termination Date. βInterest Rateβ means, with respect to any Loan (or portion thereof) on any day, an interest rate per annum equal to the sum of (i) Adjusted Daily Simple SOFR on such date plus (ii) the Applicable Margin; provided, however, that on each day following the occurrence of an Event of Default, the Interest Rate for the Loans (or any portion thereof) on such day shall be a rate per annum equal to the Default Rate. "Invested Percentage" means, for a Lender as of any date of determination, the percentage equivalent of (i) the sum of (a) the portion of the Loans Outstanding (if any) funded by such Lender on or prior to such day, plus (b) with duplication of any amount in clause (a), any portion of the Loans Outstanding acquired by such Lender on or prior to such day as an assignee from another Lender pursuant to an Assignment and Acceptance, minus (c) any portion of the Loans Outstanding assigned by such Lender to an assignee on or prior to such day pursuant to an Assignment and Acceptance, divided by (ii) the Loans Outstanding on such day. "Investment" means, with respect to any Person, any direct or indirect loan, advance or investment by such Person in any other Person, whether by means of share purchase, capital contribution, loan or otherwise, and excluding commission, travel and similar advances to officers, employees and directors made in the ordinary course of business. "Investment Company Act" means the Investment Company Act of 1940, as amended. "IRS" means the U.S. Internal Revenue Service. "ISDA Definitions" means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto. "JPMorgan Agent" means JPMorgan Chase Bank, in its capacity as Agent for the JPMorgan Lender Group, and its successors in such capacity. 28
"JPMorgan Chase Bank" means JPMorgan Chase Bank, N.A. "JPMorgan Lender Group" means the group of Lenders consisting of (a) the Conduit Lender identified on the Lender Supplement attached hereto as Schedule A-1, (b) the Committed Lender identified on the Lender Supplement attached hereto as Schedule A-1, and (c) the JPMorgan Agent. "Lender Advance" means a Lender's Lender Percentage of the Principal Amount of a particular Loan to be made to the Borrower on a Funding Date. "Lender Group" means each group of Lenders consisting of (i) one or more Lenders and (ii) an Agent, in each case as indicated on the related Lender Supplement. As of the Amendment No. 9 Effective Date, the sole Lender Groups are the JPMorgan Lender Group and the Citibank Lender Group. βLender Group Limitβ means, with respect to a Lender Group on any date of determination, the sum of the Commitments of the Committed Lenders in such Lender Group on such date. βLender Group Percentageβ means, with respect to a Lender Group on any date of determination, a fraction (expressed as a percentage) the numerator of which is the Lender Group Limit of such Lender Group on such date and the denominator of which is the Aggregate Commitment on such date. "Lender Percentage" means a Lender's Commitment as a percentage of the Aggregate Commitment. "Lender Register" has the meaning given to such term in Section 11.01(c). "Lenders" means, collectively, the Conduit Lenders and the Committed Lenders. "Lender Supplement" means (i) with respect to the JPMorgan Lender Group, the information set forth in Schedule A-1 to this Agreement and (ii) with respect to any other Lender Group, the information set forth in the related Lender Supplement, in each case as the same may be amended or otherwise modified from time to time, with, in the case of changes to the Facility Amount, any Commitment and any definition of CP Rate, the consent of the Borrower. With respect to the Lender Supplement for any Lender Group other than the JPMorgan Lender Group, such Lender Supplement shall contain substantially similar information to that set forth in Schedule A-1 with respect to the JPMorgan Lender Group. "Liability" means any duty, responsibility, obligation or liability. "Lien" means any mortgage, lien, pledge, charge, claim, security interest or encumbrance of any kind. 29
"Liquidity Facility" means, with respect to each Conduit Lender, any of the committed loan facilities, lines of credit and other financial accommodations available to such Conduit Lender to support the liquidity of such Conduit Xxxxxx's Commercial Paper Notes. "Lithia" means Lithia Motors, Inc., an Oregon corporation. βLithia Loan Agreementβ means that certain Fourth Amended and Restated Loan Agreement, dated as of April 29, 2021, by and among Lithia, Xxxxxx's subsidiaries party thereto, the lenders party thereto, and U.S. Bank National Association, as agent for the lenders party thereto. "Loan" has the meaning given to such term in Section 2.01(a). "Loan-to-Value Ratio" means, with respect to any Receivable, the percentage equivalent of a fraction, (i) the numerator of which is the original Principal Balance of such Receivable and (ii) the denominator of which is the book value of the related Financed Vehicle at the date of underwriting, where such book value is the selling price of the Financed Vehicle as determined in accordance with the Credit and Collection Policy. "Loans Outstanding" means, on any day, the aggregate Principal Amount of all Loans made on or prior to such day, reduced from time to time by payments and distributions in respect of principal of the Loans in accordance with the terms hereof. "Lockbox Account" means one or more deposit accounts established and maintained at the Lockbox Bank by DFC. "Lockbox Bank" means, initially, JPMorgan Chase Bank, N.A. or any other bank as agreed to by the Borrower, the Administrative Agent and the Required Lenders. "Lockboxes" means one or more post office boxes or operating accounts established by DFC and maintained at the Lockbox Bank. "Long-Term Rating Requirement" means, with respect to any Person, that such Person has a long-term unsecured debt rating of not less than "A" by Standard & Poor's and not less than "A2" by Xxxxx'x. "Mandatory Commitment" means, with respect to any Lender or Lender Group, the amount set forth as the "Mandatory Commitment" in the related Lender Supplement, as such amount may be modified from time to time in accordance with the terms hereof. "Mandatory Hedging Condition" means that, as of any date of determination, one or more of the following events has occurred and the occurrence of a Mandatory Hedging Condition has not been expressly waived in accordance with Section 13.01 (regardless of whether any such event, or any other consequences of such event, have been waived, either in accordance with Section 13.01 or otherwise): (i) any Event of Default has occurred; (ii) any Servicer Termination Event has occurred; and (iii) the Commitment Termination Date occurs. 30
"Material Adverse Change" means any event or condition which would have a material adverse effect on (i) the collectability of all or a material portion of the Receivables, (ii) the condition (financial or otherwise), business or properties of the Borrower, (iii) the ability of the Servicer to collect on the Receivables, (iv) the condition (financial or otherwise), business or properties of DFC, or (v) the condition (financial or otherwise), businesses or investments of the Performance Guarantor. For the avoidance of doubt, the following is a non-exclusive list of changes to the Credit and Collection Policy which, if reasonably likely to negatively impact the creditworthiness or collectability of any Receivables, will be deemed to constitute a βMaterial Adverse Changeβ unless such changes are made with the consent of the Administrative Agent in the manner set forth in this Agreement: changes that would modify any of (a) the maximum allowable threshold limitations for substantial underwriting criteria, including but not limited to those related to loan term, Debt-to-Income Ratio, Payment-to-Income Ratio, and Loan-to-Value Ratio; (b) the categorization of receivables as delinquent, non-performing, defaulted or charged-off; (c) material collection processes relating, without limitation, to delinquent, non-performing, defaulted or charged-off receivables, loan loss recognition, loan modification (including extensions and deferrals), end-of-term recovery and processing, and collateral recovery; (d) any provisions for credit exceptions; and (e) stated creditworthiness thresholds required for obligors. "Material Adverse Effect" means, with respect to any Person and to any event or circumstance, a material adverse effect on (i) the business, condition (financial or otherwise), operations, performance, properties or prospects of such Person (including any such change or effect resulting from the introduction of or change in any Applicable Laws or any ruling, order or other action by any Governmental Authority), taken as a whole, (ii) the validity or enforceability of this Agreement or any other Basic Document or the validity, enforceability or collectability of a material portion of (a) the Contracts (taken as a whole), (b) the Receivables (taken as a whole) or (c) any other Collateral (taken as a whole), (iii) the rights and remedies of the Administrative Agent and Secured Parties under the Basic Documents, (iv) the ability of such Person to perform its obligations under this Agreement or any other Basic Document to which it is a party, or (v) the status, existence, perfection, priority or enforceability of the interest of the Administrative Agent or the Lenders in the Collateral. "Maximum Lawful Rate" means the highest rate of interest permissible under Applicable Law. "Member" has the meaning set forth in the Borrower's Formation Documents. "Monthly Backup Servicer Certificate" means a monthly report of the Backup Servicer, delivered no less often than once every three (3) months, in the form prescribed by the Backup Servicing Agreement which shall set forth, among other items, the Backup Servicer's recalculation of the Eligible Pool Balance, the Borrowing Base, the Conduit Portfolio Delinquency Ratio, the Conduit Portfolio Net Loss Ratio (Non-Prime), the Conduit Portfolio Net Loss Ratio (Prime), the Serviced Portfolio Delinquency Ratio, and the Serviced Portfolio Net Loss Ratio, in each case as of the end of the Collection Period immediately preceding the date on which such certificate is delivered. 31
"Monthly Principal Payment Amount" means either (i) with respect to any Payment Date occurring prior to the Termination Date, the lesser of (a) the excess (if any) of the Loans Outstanding on such date (excluding any additional amounts to be borrowed on such Payment Date) over the Borrowing Base on such Payment Date and (b) the amount of Available Funds that is available to be applied pursuant to Section 2.06(v)(B) on such Payment Date (after giving effect to all payments pursuant to sub-clauses (i) through (v) of Section 2.06 on such Payment Date) or (ii) with respect to any Payment Date occurring on or after the Termination Date, the lesser of (a) the Loans Outstanding on such date and (b) the amount of Available Funds that is available to be applied pursuant to Section 2.06(v)(B) on such Payment Date (after giving effect to all payments pursuant to subclauses (i) through (v) of Section 2.06 on such Payment Date) . "Monthly Report" means a monthly statement of the Servicer delivered pursuant to Section 7.07(a) on each Reporting Date with respect to the related Collection Period, substantially in the form of Exhibit F. "Xxxxx'x" means Xxxxx'x Investors Service, Inc. "Multiemployer Plan" means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding five years contributed to by the Borrower, DFC, Lithia or any ERISA Affiliate on behalf of their employees. "Near Prime Receivable" means a Receivable (including an Online Originated Receivable) for which, at the time of underwriting, the related FICO Score was (i) less than 700 but also (ii) greater than or equal to 620. "Net Eligible Pool Balance" means, as of any date of determination, the difference of (i) the Eligible Pool Balance as of such date minus (ii) the Excess Concentration Amount as of such date. "Non-Extending Lender" means, after its respective Commitment Termination Date, each Lender that has declined to extend its Commitment Termination Date in accordance with Section 2.04, to the extent not replaced pursuant to Section 2.04(b). "Non-Prime Receivable" means (i) a Receivable that is either a Near Prime Receivable or for which, at the time of underwriting, the related FICO Score was less than 680 or (ii) there was no FICO Score. Unless otherwise expressly provided herein, a Subprime Receivable shall be treated as a Non-Prime Receivable for purposes of this Agreement. "NYFRB" means the Federal Reserve Bank of New York. "NYFRB Rate" means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided, that if none of such rates are published for any day that is a Business Day, the term 'NYFRB Rate' means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; 32
provided, further, that if any of the aforesaid rates as so determined be less than 0%, such rate shall be deemed to be 0% for purposes of this Agreement. "NYFRB's Website" means the website of the NYFRB at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source. "Obligations" means all loans, advances, debts, liabilities, indemnities and obligations for monetary amounts owing by the Borrower to the Secured Parties, the Collateral Custodian, the Backup Servicer, any Successor Servicer, the Administrative Agent, the Agents or any of their respective assigns, as the case may be, whether due or to become due, matured or unmatured, liquidated or unliquidated, contingent or non-contingent and all covenants and duties regarding such amounts, of any kind or nature, present or future, arising under or in respect of any of the Loans or any Hedging Agreement, whether or not evidenced by any separate note, agreement or other instrument, including all principal, interest (including interest that accrues after the commencement against the Borrower of any action under the Bankruptcy Code), amounts payable pursuant to Section 2.12, Breakage Costs, Hedge Breakage Costs, fees, including any and all arrangement fees, loan fees, Upfront Fees, Supplemental Upfront Fees, and Unused Commitment Fees and any and all other fees, expenses, costs or other sums (including attorney fees and disbursements) chargeable to the Borrower under the Basic Documents. "Obligor" means each Person obligated to make payments pursuant to a Receivable, including any guarantor thereof. "Officer's Certificate" means a certificate signed by any Responsible Officer of the Borrower, the Servicer, DFC, Lithia, the Backup Servicer or the Collateral Custodian, as the case may be, and delivered to the Administrative Agent. βOnline Originated Receivableβ means a Receivable that is originated by DFC with an Obligor directly through the Online Platform. βOnline Platformβ means (a) the motor vehicle sale platform owned and maintained by Lithia under the tradename "Driveway," pursuant to which DFC has access enabling it to directly originate Receivables in connection with such vehicle sales, (b) any successor to such βDrivewayβ platform that is also owned and maintained by Lithia, and (c) any other online platform pursuant to which DFC has access enabling it to directly originate Receivables and which has been Consented to by the Required Lenders. "Opinion of Counsel" means, with respect to any Person, a written opinion of counsel, who is reasonably acceptable to the Administrative Agent. "Other Connection Taxes" means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Borrower Basic Document, or sold or assigned an interest in any Loan or Borrower Basic Document). 33
"Other Taxes" means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Borrower Basic Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment. "Overnight Bank Funding Rate" means, for any date, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB's Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate. "Owners" means the Lenders that are owners of record of the Loans or, with respect to any Loan owned by an Agent hereunder as nominee on behalf of Lenders in the related Lender Group, the Lenders that are beneficial owners of such Loan as reflected on the books of such Agent in accordance with this Agreement and the other Basic Documents. "Partial Expiration Event" means the occurrence of the election of one or more Non-Extending Lenders after its respective Commitment Termination Date to not extend its Commitment, unless such Non-Extending Lender is replaced pursuant to Section 2.04(b) or unless the Termination Date shall have occurred. "Partial Expiration Event Amount" means the portion of Loans Outstanding payable pursuant to Section 2.06(vii) in connection with a Partial Expiration Event. "Participant Register" has the meaning given to such term in Section 11.01(e). "Patriot Act" means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)). "Payment" has the meaning assigned to it in Section 10.09. "Payment Date" means (i) the 20thwith respect to August 2024, August 20, 2024 and with respect to any calendar month thereafter, the 18th day of each calendar month, or if any such day is not a Business Day, the next succeeding Business Day, commencing June 21, 2021 or (ii) with respect to any calendar month in which the Borrower has provided the Administrative Agent, each Agent, the Servicer and the Backup Servicer at least ten Business Days' prior written notice of its intent to effect the related Take-out during such calendar month pursuant to Section 2.12(a) hereof, the related Take-out Date for such Take-out if agreed to in writing by the Borrower, the Administrative Agent, each Agent and the Servicer. "Payment Notice" has the meaning assigned to it in Section 10.09. "Payment-to-Income Ratio" means, with respect to any Receivable as of the date of underwriting, the ratio (expressed as a percentage) of (i) the monthly payment owed by the related Obligor pursuant to the related Contract to (ii) the sum of all of the related obligor's and any related co-obligor's (but no related guarantor's) monthly gross income for the calendar month 34
immediately preceding the date such Receivable was originated, as determined by DFC in accordance with the Credit and Collection Policy in effect at such time. "Pension Plan" means an "employee pension benefit plan," as such term is defined in Section 3(2) of ERISA, maintained by the Borrower, DFC, Lithia, or any ERISA Affiliate, or in which employees of the Borrower are entitled to participate, as from time to time in effect. "Performance Guarantor" means Lithia. "Performance Guaranty" means the Amended and Restated Performance Guaranty, dated as of December 31, 2020, by the Performance Guarantor in favor of the Secured Parties. "Permitted Investments" means any of the following types of investments: (i) marketable obligations of the United States, the full and timely payment of which are backed by the full faith and credit of the United States and which have a maturity of not more than 30 days from the date of acquisition; (ii) bankers' acceptances and certificates of deposit and other interest-bearing obligations (in each case having a maturity of not more than 30 days from the date of acquisition) denominated in Dollars and issued by any bank with capital, surplus and undivided profits aggregating at least $100,000,000, the short-term obligations of which meet or exceed the Short-Term Rating Requirement; (iii) commercial paper rated at least A-1 by Standard & Poor's and Prime-1 by Moody's; (iv) money market funds registered under the Investment Company Act having a rating, at the time of such investment, of not less than Aaa by Moody's and AAAm by Standard & Poor's; (v) interest-bearing demand deposits, time deposits or certificates of deposit (having original maturities of no more than 365 days) of depository institutions or trust companies incorporated under the laws of the United States or any State (or domestic branches of any foreign bank) and subject to supervision and examination by federal or State banking or depository institution authorities; provided, that at the time such investment, or the commitment to make such investment, is entered into, the short-term debt rating of such depository institution or trust company shall meet or exceed the Short-Term Rating Requirement; and (vi) any other investments approved in writing by the Administrative Agent; provided, that each of the Permitted Investments may be purchased from the Administrative Agent, the Account Bank or any of their respective Affiliates. 35
"Permitted Liens" means (i) Liens in favor of the Borrower created pursuant to the Purchase Agreement, (ii) Liens in favor of any Agent or the Administrative Agent, as agent for the Secured Parties created pursuant to this Agreement or any other Basic Document, (iii) Liens for taxes and assessments not yet due or for taxes which the Borrower is contesting in good faith and by appropriate legal proceedings the validity, applicability or amount thereof and such contest does not materially endanger any right or interest of the Secured Parties under the Basic Documents, (iv) Liens arising in the ordinary course of business by virtue of any contractual, statutory or common law provision relating to banker's Liens, rights of set-off or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto) or other funds maintained with a depository institution or securities intermediary, (v) Liens created pursuant to the Control Agreement, and (vi) mechanics' liens and other liens arising by operation of law. "Person" means an individual, partnership, corporation, trust (including a business or statutory trust), limited liability company, joint stock company, unincorporated association, sole proprietorship, joint venture, government (or any agency or political subdivision thereof) or other entity. "Plan Event" means the occurrence of any of the following: (i) a notice of intent to terminate a Pension Plan has been filed; (ii) a Pension Plan termination under Section 4041(f) of ERISA; (iii) the Pension Benefit Guaranty Corporation institutes proceedings to terminate, or appoint a trustee to administer any Pension Plan; or (iv) the occurrence of an event or existence of any condition that might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, a Pension Plan. "Pool Balance" means, as of any date of determination, the sum of the Adjusted Principal Balances of all Receivables as of such date. "Posted Collateral" has the meaning given to such term in Section 6.03(b). "Prime Rate" means the rate of interest last quoted by The Wall Street Journal as the 'Prime Rate' in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the 'bank prime loan' rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective. "Prime Receivable" means a Receivable (including an Online Originated Receivable) for which, at the time of underwriting, the related FICO Score was 700680 or greater. βPrime Receivable Collateral Percentageβ means, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is the aggregate Adjusted Principal Balances of all Prime Receivables on such date and the denominator of which is the Pool Balance on such date. 36
"Principal Amount" means, with respect to any Loan, the aggregate amount advanced by the Lenders on the Funding Date in respect of such Loan. "Principal Balance" means, for any Receivable as of any date of determination, (i) the related Amount Financed minus the sum, without duplication, of (a) that portion of all Scheduled Payments actually received on or prior to such day allocable to principal using the Simple Interest Method plus (b) any payment of the Release Price with respect to such Receivable allocable to principal plus (c) any Cram Down Loss in respect of such Receivable plus (d) any prepayment in full or any partial prepayment applied in reduction of principal of such Receivable. "Purchase Agreement" means the Amended and Restated Purchase Agreement, dated as of December 31, 2020, between DFC and the Borrower, together with each Purchase Agreement Supplement. "Purchase Agreement Supplement" means a Purchase Agreement Supplement in substantially the form attached to the Purchase Agreement as Exhibit A, executed by the Borrower and DFC in connection with a transfer of Receivables and the related Collateral on any Funding Date. "Qualified Institution" means any depository institution or trust company organized under the laws of the United States or any State (or any domestic branch of a foreign bank), (i) (a) that meets (or the parent of which meets) either (1) the Long-Term Rating Requirement or (2) the Short-Term Rating Requirement or (b) is otherwise acceptable to the Administrative Agent and the Required Lenders and (ii) whose deposits are insured by the Federal Deposit Insurance Corporation. "Quarterly Report" means a data tape, which shall include as to each Receivable such information as shall be agreed upon by the Administrative Agent and the initial Servicer or the Successor Servicer, as applicable, including such information as the Administrative Agent may reasonably request from time to time to satisfy or fulfill regulatory requirements applicable to the Secured Parties, including capital treatment under Basel II or Basel III. "Receivable" means Indebtedness owed to DFC or the Borrower by an Obligor (without giving effect to any pledge hereunder) under a Contract included as part of the Collateral, whether constituting an account, chattel paper, instrument or general intangible, arising out of or in connection with the sale of the Financed Vehicle related thereto, and including the right of payment of any finance charges and other obligations of the Obligor with respect thereto. Notwithstanding the foregoing, once the Administrative Agent has released its security interest in a Receivable and the related Contract in accordance with the terms of this Agreement, such Receivable shall no longer be a Receivable hereunder. "Receivable File" means a file pertaining to each Receivable containing, among other things, each of the following documents: (i) a fully executed original of the related Contract; 37
(ii) (a) a certificate of insurance, (b) an application form for insurance signed by the related Obligor, or (c) a signed representation letter from the Obligor pursuant to which the Obligor has agreed to obtain physical damage insurance for the related Financed Vehicle; (iii) a copy of the application filed to amend the Certificate of Title to indicate the security interest of DFC in the related Financed Vehicle and, from and after the time that such Certificate of Title has been so amended, if the applicable jurisdiction (a) issues original certificates of title, the original Certificate of Title or, until such original Certificate of Title is available, an application therefor, or (b) does not issue original certificates of title, a copy of such Certificate of Title or other equivalent issued by such jurisdiction; (iv) an electronic copy of the original credit application signed by the related Obligor; (v) electronic copies of all original assumption, consolidation, extension, modification or waiver agreements, if any, relating to such Receivable; (vi) any other documents that the Servicer shall keep on file, in accordance with its customary procedures or the Credit and Collection Policy relating to such Receivable, the related Obligor or the related Financed Vehicle; and (vii) electronic copies of any additional original loan documents evidencing any assumption, consolidation, extension, modification or waiver of such Receivable. "Recipient" means the Administrative Agent or any Lender. "Records" means, with respect to any Contract, all documents, books, records and other information (including computer programs, tapes, disks, punch cards, data processing software and related property and rights) maintained with respect to any related item of Collateral and the related Obligor. "Recoveries" means, with respect to any Defaulted Receivable and Collection Period, all monies collected from whatever source during such Collection Period in respect of such Defaulted Receivable, including Insurance Proceeds but excluding payment of the related Release Price, net of any amounts required by Applicable Law to be remitted to the related Obligor and net of the Servicer's expenses (other than overhead) incurred in connection with the liquidation of such Defaulted Receivable and the related Financed Vehicle. "Reference Time" means, with respect to any setting of the then-current Benchmark, (i) if such Benchmark is Daily Simple SOFR, then four Business Days prior to such setting or (ii) if such Benchmark is not Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable discretion. 38
"Registrar of Titles" means, with respect to any State, the governmental agency or body responsible for the registration of, and the issuance of certificates of title relating to, motor vehicles and liens thereon. "Regulatory Requirement" has the meaning set forth in Section 2.10(a). "Release Price" means an amount equal to the sum of (i) the Principal Balance of each Receivable retransferred pursuant to Section 5.04(a) or 5.04(b), as applicable plus (ii) accrued interest on each such Receivable (at the related APR) through the date of repurchase plus (iii) all related Breakage Costs plus (iv) all Hedge Breakage Costs due to the relevant Hedge Counterparties for any termination, in whole or in part, of one or more Hedge Transactions related to the relevant Hedging Agreement, as required by the terms of any Hedging Agreement. "Relevant Governmental Body" means the Federal Reserve Board and/or the NYFRB, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto. "Reportable Event" means any of the events set forth in Section 4043(c) of ERISA for which the 30-day notice provision has not been waived. "Reporting Date" means, with respect to any Payment Date and the related Collection Period, the second Business Day prior to such Payment Date. "Required Lenders" means at a particular time, Lenders with aggregate Commitments equal to 100% of the Aggregate Commitment. "Required Overcollateralization" means, as of any date, an amount equal to the product of (i) Weighted Average Overcollateralization Percentage as of such date times (ii) the highest Net Eligible Pool Balance since the most recent Funding Date or, if more recent, the most recent Take-out Date, in each case after giving effect to the related additions or removals of Receivables on such date. "Required Overcollateralization Percentage" means, as of any date, (i) with respect to Prime Receivables, either (a) on any date of determination as of which no Step-up Event (Prime) has occurred and is continuing, 13.0012.50% or (b) on any date of determination as of which a Step-up Event (Prime) has occurred and is continuing, 18.0017.50% and, (ii) with respect to Non-Prime Receivables (other than Subprime Receivables), either (a) on any date of determination as of which no Step-up Event (Non-Prime) has occurred and is continuing, 24.00% or (b) on any date of determination as of which as Step-up Event (Non-Prime) has occurred and is continuing, 29.00%. and (iii) with respect to Subprime Receivables, either (a) on any date of determination as of which no Step-up Event (Non-Prime) has occurred and is continuing, 30.00% or (b) on any date of determination as of which as Step-up Event (Non-Prime) has occurred and is continuing, 35.00%. "Required Rate" means, as of any date and any Eligible Receivable, the sum of (i) the Weighted Average Hedge Rate as of such date plus (ii) the Applicable Margin as of such date plus (iii) the Servicing Fee Rate plus (iv) the Backup Servicing Fee Rate plus (v) the greater of 39
(a) zero percent (0.00%) and (b) the percentage which will result in Excess Spread (Adjusted) that is at least equal to the related Target Rate. "Requirements of Law" means, with respect to any Person, the certificate of incorporation or articles of association and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation, or order or determination of an arbitrator or Governmental Authority, in each case applicable to or binding upon such Person or to which such Person is subject, whether federal, State or local (including usury laws, the Federal Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Servicemembers Civil Relief Act, Regulations B, U, T, X and Z of the Federal Reserve Board, the Xxxx-Xxxxx Act, the Xxxxx-Xxxxx-Xxxxxx Act, each applicable state Motor Vehicle Retail Installment Sales Act, and state adaptations of the National Consumer Act and of the Uniform Consumer Credit Code and all other consumer protection and usury laws). "Responsible Officer" means, when used with respect to any Person, any officer of such Person, including any president, vice president, assistant vice president, secretary, assistant secretary or any other officer thereof customarily performing functions similar to those performed by the individuals who at the time shall be such officers, respectively, or to whom any matter is referred because of such officer's knowledge of or familiarity with the particular subject. "Revolving Period" means the period commencing on the Closing Date and ending on the day immediately preceding the Termination Date. "Sanctioned Country" means, at any time, a country or territory which is the subject or target of any Sanctions. "Sanctioned Person" means, at any time, (i) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (ii) any Person operating, organized or resident in a Sanctioned Country or (iii) any Person controlled by any such Person. "Sanctions" means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State. "Schedule of Documents" means the schedule of documents attached hereto as Schedule E. "Schedule of Receivables" means the schedule of Receivables attached hereto as Schedule C, as updated from time to time in connection with each Funding Request and any Take-out Release. 40
"Scheduled Payments" means, with respect to each Receivable, the regularly scheduled payments to be made by the related Obligor pursuant to the terms of the related Contract. "Secured Party" means (i) the Administrative Agent, (ii) each Lender and (iii) each Hedge Counterparty. "Securities Act" means the Securities Act of 1933, as amended. "Seller" means DFC in its capacity as Seller under the Purchase Agreement. "Senior Monthly Interest and Fees" means, for any Payment Date, the sum of (i) the amount of any accrued and unpaid Interest for such Payment Date, calculated at a per annum rate equal to the applicable Interest Rate, plus (ii) the Unused Commitment Fee for such Payment Date. "Serviced Portfolio" means the Servicer's entire portfolio of motor vehicle retail installment sale contracts and installment loans that (i) are originated, directly or indirectly, by DFC in accordance with the Credit and Collection Policy, (ii) are serviced by DFC, (iii) are owned by DFC or an Affiliate or a Subsidiary of DFC and (iv) satisfy each of the eligibility requirements set forth on Schedule B hereto. For the avoidance of doubt, no motor vehicle retail installment sale contracts or installment loans that were originated, directly or indirectly, by DFC in accordance with any predecessor set of credit policies and underwriting guidelines to the Credit and Collection Policy shall not be included in the Serviced Portfolio. "Serviced Portfolio Defaulted Receivable" means, as of any date of determination, any Serviced Portfolio Receivable (i) that has been, or is required to be, treated as "defaulted" in accordance with the Credit and Collection Policy, (ii) with respect to which the Servicer has determined in good faith that payments thereunder have ceased and are not likely to be resumed, (iii) with respect to which the greater of (a) $50 and (b) 10% or more of any Scheduled Payment remains unpaid for more than 120 days from the related due date, or (iv) for which the related Financed Vehicle has been repossessed For purposes of this definition, the "Scheduled Payment" and "Financed Vehicle" for each Serviced Portfolio Receivable that is not a Receivable shall be determined as if it were a "Receivable" for purposes of all related defined terms. "Serviced Portfolio Deferral Ratio" means, as of any date of determination, the percentage equivalent of a fraction, (i) the numerator of which is the aggregate Principal Balance of all Serviced Portfolio Receivables with respect to which a Deferral was granted during the most recently completed Collection Period and (ii) the denominator of which is the aggregate Principal Balance of all Serviced Portfolio Receivables as of the last day of such Collection Period. For purposes of this definition, the "Principal Balance" for each Serviced Portfolio Receivable that is not a Receivable shall be determined as if it were a "Receivable" for purposes of all related defined terms. "Serviced Portfolio Delinquency Ratio" means, as of any date of determination, the percentage equivalent of a fraction, (i) the numerator of which is the aggregate Principal Balance of all Serviced Portfolio Delinquent Receivables as of the last day of the most recently completed Collection Period and (ii) the denominator of which is the aggregate Principal 41
Balance of all Serviced Portfolio Receivables as of the last day of such Collection Period. For purposes of this definition, the "Principal Balance" for each Serviced Portfolio Receivable that is not a Receivable shall be determined as if it were a "Receivable" for purposes of all related defined terms. "Serviced Portfolio Delinquent Receivable" means, as of any date of determination, any Serviced Portfolio Receivable, (i) with respect to which the greater of (a) $50 and (b) 10% or more of any Scheduled Payment remains unpaid for 60 or more days from the related due date and (ii) that is not a Defaulted Receivable. For purposes of this definition, the "Scheduled Payment" for each Serviced Portfolio Receivable that is not a Receivable shall be determined as if it were a "Receivable" for purposes of all related defined terms. βServiced Portfolio Net Loss Ratioβ means, with respect to any date of determination, the product of (i) the percentage equivalent of a fraction, (a) the numerator of which is the difference of (1) the aggregate Principal Balance of all Serviced Portfolio Receivables that became Serviced Portfolio Defaulted Receivables during the most recently completed Collection Period minus (2) all Recoveries received during such Collection Period with respect to Serviced Portfolio Receivables and (b) the denominator of which is the aggregate Principal Balance of all Serviced Portfolio Receivables as of the last day of such Collection Period times (ii) twelve. For purposes of this definition, the 'Principal Balance,' 'Recoveries,' and 'Collections' for each Serviced Portfolio Receivable that is not a Receivable shall be determined as if it were a "Receivable" for purposes of all related defined terms. "Serviced Portfolio Receivable" means any motor vehicle receivable that is included in the Serviced Portfolio. "Servicer" has the meaning given to such term in the Preamble. "Servicer Advance" means an advance made by the initial Servicer pursuant to Section 7.05. "Servicer Basic Documents" means all Basic Documents to which the initial Servicer is a party or by which it is bound. "Servicer Termination Event" has the meaning given to such term in Section 7.13. "Servicer Termination Notice" has the meaning given to such term in Section 7.13. "Servicing Fee" means the fee payable to the Servicer on each Payment Date in accordance with Section 2.09(b) in an amount equal to either (i) in the case of the initial Servicer, the product of (a) one-twelfth times (b) the applicable Servicing Fee Rate times (c) the average daily Principal Balance of the Receivables during the related Collection Period or (ii) in the case of the Backup Servicer in its capacity as Successor Servicer, the related fees set forth in the Backup Servicing Agreement; provided, that the Servicing Fee for a Successor Servicer may be subject to a minimum monthly fee to be mutually agreed upon by the Required Lenders and such Successor Servicer. 42
"Servicing Fee Rate" means, in the case of the initial Servicer, on any date of determination, a rate per annum equal the sum of (i) the product of (a) 1.00% per annum times (b) the Prime Receivable Collateral Percentage on such date, plus (ii) the product of (a) 3.00% per annum times (b) 100% minus the Prime Receivable Collateral Percentage on such date. "Short-Term Rating Requirement" means, with respect to any Person, that such Person has a short-term unsecured debt rating of not less than A-1 by Standard & Poor's and not less than Prime-1 by Xxxxx'x. "Significant Take-out Date" means, at any time the Aggregate Adjusted Principal Balance is greater than or equal to $175,000,000, any Take-out Date on which the aggregate Adjusted Principal Balance of Receivables that are released from the Collateral in accordance with Section 2.12 would cause the Aggregate Adjusted Principal Balance to be less than $175,000,000 after giving effect to such Take-out; provided, that if any Receivables that are so released on a Take-out Date are included in the Collateral again during the Collection Period in which the related Take-out Date occurred or during the either of the two succeeding Collection Periods, then such Receivables shall be deemed not to have been released from the Collateral on the initial Take-out Date for purposes of this definition, but only as of the date on which they are again included in the Collateral. "Simple Interest Method" means the method of allocating a fixed level payment to principal and interest, pursuant to which the portion of such payment that is allocated to interest is equal to the product of the fixed rate of interest multiplied by the unpaid principal balance multiplied by the period of time elapsed since the preceding payment of interest was made. "SOFR" means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. "SOFR Administrator" means the NYFRB (or a successor administrator of the secured overnight financing rate). "SOFR Administratorβs Website" means the NYFRBβs website, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time. "SOFR Determination Date" has the meaning given to such term in the definition of 'Daily Simple SOFR. "SOFR Rate Day" has the meaning given to such term in the definition of 'Daily Simple SOFR. "Solvent" means, as to any Person at any time, having a state of affairs such that (i) the fair value of the property owned by such Person is greater than the amount of such Person's liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section 101(32) of the Bankruptcy Code; (ii) the present fair salable value of the property owned by such Person in an orderly liquidation of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (iii) such Person is able to realize upon its property 43
and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (iv) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature; and (v) such Person is not engaged in business or a transaction, and is not about to engage in a business or a transaction, for which such Person's property would constitute unreasonably small capital. "Standard & Poor's" means S&P Global Ratings, a Standard & Poor's Financial Services LLC business. "State" means any state of the United States or the District of Columbia. "Step-up Event" means the occurrence as of any Reporting Date of any of the following events: (i) the arithmetic mean of the Serviced Portfolio Net Loss Ratio for the three previous Collection Periods is greater than 5.25%; (ii) the arithmetic mean of the Conduit Portfolio Net Loss Ratio (Prime) for the three previous Collection Periods is greater than 3.00% (provided, that no Step-up Event will occur under this clause (ii) if a Significant Take-out Date occurred during any of such three Collection Periods); (iii) the arithmetic mean of the Conduit Portfolio Net Loss Ratio (Non-Prime) for the three previous Collection Periods is greater than 4.755.75% (provided, that no Step-up Event will occur under this clause (iv) if a Significant Take-out Date occurred during any of such three Collection Periods); (iv) the arithmetic mean of the Serviced Portfolio Delinquency Ratio for the three previous Collection Periods is greater than 3.50%; or (v) the arithmetic mean of the Conduit Portfolio Delinquency Ratio for the three previous Collection Periods is greater than 2.75% (provided, that no Step-up Event will occur under this clause (vi) if a Significant Take-out Date occurred during any of such three Collection Periods); Any Step-up Event that occurs will be deemed to be continuing until the earlier of (a) the first Reporting Date on which none of the events described above exists or (b) the effective date of any waiver that is provided by the Consenting Lenders with respect to the related Step-up Event. "Step-up Event (Non-Prime)" means any Step-up Event described in clause (iii), (iv), (v) or (vi) of the definition thereof. "Step-up Event (Prime)" means any Step-up Event described in clause (i), (ii), (v) or (vi) of the definition thereof. 44
"Stop-Funding Event" means the occurrence of any of the following: (i) as of any Reporting Date, the arithmetic mean of the Serviced Portfolio Delinquency Ratio for the three previous Collection Periods is greater than 4.50%; (ii) as of any Reporting Date, the arithmetic mean of the Serviced Portfolio Net Loss Ratio for the three previous Collection Periods is greater than 6.00%; (iii) either (a) no Backup Servicing Agreement has been executed and become effective by the date required by Section 7.09(a) or (b) after the date on which the Borrower initially enters into a Backup Servicing Agreement, such Backup Servicing Agreement is thereafter terminated without the consent of the Required Lenders; or (iv) the Servicer has not received written confirmation from the Administrative Agent on or prior to November 30, 2022 that either (A) in the commercially reasonable judgment of the Administrative Agent, any arrangement that is then in place and that provides the Administrative Agent, on behalf of the lenders, with protections relating to Collections prior to their deposit to the Collection Account is sufficient to provide the Administrative Agent and the Lenders with substantially similar protections, or a substantially similar level of protections, with respect to Collections as they had prior to the termination of the Amended and Restated Blocked Account Control Agreement, dated as of December 31, 2020, by and among DFC, the Administrative Agent, and the Lockbox Bank (provided, that the Administrative Agent acknowledges and agrees that entry by the Servicer into one or more commercially reasonable agreements that together (1) appoint a 'collateral agent' (or similarly named party) who is reasonably acceptable to the Administrative Agent, (2) who has 'control' (within the meaning of the UCC as then in effect in the relevant State) of the Lockbox Account and any other account or accounts into which Collections are then being deposited prior to their deposit to the Collection Account, on behalf of all parties who, from time to time, have interests in amounts on deposit in the Lockbox Account and any such other account or accounts (including the Administrative Agent and the Lenders with respect to Collections while on deposit in the Lockbox Account or such other account or accounts), and (3) contain intercreditor provisions governing all such interestholders' rights with respect to the respective deposits in which each has an interest, will be deemed to be an arrangement that provides substantially similar protections, or a substantially similar level of protections, with respect to Collections as required by this subclause (A)) or (B) the Administrative Agent has, in its sole discretion, waived the requirement to implement arrangements of the type described in clause (A). Any Stop-Funding Event that occurs will be deemed to be continuing until the earlier of (a) either (1) with respect to the Stop-Funding Events set forth in clauses (i), (ii) and (iii), the first Reporting Date on which none of the events described in such clauses exists, (2) 45
with respect to the Stop-Funding Event set forth in clause (iv), the first date thereafter on which a Backup Servicing Agreement becomes effective in accordance with the terms of this Agreement or (b) the effective date of any waiver that is provided by the Required Lenders with respect to the related Step-up Event, or (3) with respect to the Stop-Funding Event set forth in clause (v), the first date thereafter on which the requirements of subclause (A) or (B) thereof are satisfied. "Subordinated Hedge Breakage Costs" means Hedge Breakage Costs payable by the Borrower to a Hedge Counterparty in connection with the termination of a Hedge Transaction where either (i) such Hedge Counterparty is a "Defaulting Party" (as such term is defined in the related Hedging Agreement) or (ii) such Hedge Counterparty is the sole "Affected Party" with respect to a "Termination Event" (as such terms are defined in the related Hedging Agreement), other than a Termination Event relating to illegality, force majeure and taxes, which by its terms applies to such Hedge Counterparty, in all cases other than to the extent of a return of equivalent collateral (and income thereon). "Subordinated Monthly Interest Payment Amount" means, for any Payment Date, the difference of (i) the sum of (a) the amount of any accrued and unpaid Interest for such Payment Date, calculated pursuant to Section 2.07 plus (b) the Unused Commitment Fee, if applicable, minus (ii) the Senior Monthly Interest and Fees. "Subprime Receivable" means a Receivable (including an Online Originated Receivable) for which, at the time of underwriting, the related FICO Score was (i) less than 620 (including a FICO Score of zero) or (ii) there was no FICO Score. "Subsequent Loan" means each Loan made following the Initial Loan. "Subsequent Receivable" means each Receivable that becomes a part of the Collateral on a Funding Date other than the Funding Date relating to the Initial Loan. "Subsidiary" means, with respect to a Person, any entity with respect to which more than 50% of the outstanding voting securities shall at any time be owned or controlled, directly or indirectly, by such Person and/or one or more of its Subsidiaries, or any similar business organization which is so owned or controlled. "Successor Servicer" has the meaning given to such term in Section 7.14(b). "Supplemental Loan Amount" means, as of any Funding Date, the amount by which the portion of the Loans Outstanding funded by a Lender Group, after giving effect to the requested Loan on such Funding Date, exceeds the greater of (i) its Mandatory Commitment and (ii) the highest amount of the Loans Outstanding funded by such Lender Group on any prior date. "Supplemental Upfront Fee" means the fee payable by the Borrower on the related Funding Date in an amount equal to the product of (i) the Supplemental Upfront Fee Rate and (ii) the Supplemental Loan Amount. "Supplemental Upfront Fee Rate" has the meaning given to such term in the Fee Letter. 46
"Take-out" means any transaction pursuant to which all or a portion of the Receivables are released from the Lien granted to the Administrative Agent hereunder, a corresponding portion of the Loans Outstanding are repaid, and such Receivables are transferred by the Borrower to the Seller or another Person. "Take-out Date" means the Business Day upon which a Take-out is consummated. "Take-out Date Certificate" means a certificate delivered by a Responsible Officer of the Servicer on the Take-out Date indicating that the requirements set forth in this Agreement for a Take-out has been satisfied. "Take-out Release" means a release executed pursuant to Section 2.12, substantially in the form of Exhibit E. "Tangible Contract" means a Contract that constitutes 'tangible chattel paper' (under and as defined in the UCC as then in effect in the relevant State) evidencing any Receivable. "Tangible Net Worth" means at any time with respect to DFC, the difference of DFC's (i) assets minus (ii) liabilities minus (iii) without duplication, intangible assets, including goodwill, franchises, licenses, deferred tax assets, patents, trademarks, trade names, copyrights and service marks, in all cases calculated on a consolidated basis and in accordance with GAAP. "Target Rate" means (i) with respect to any Prime Receivable, 2.251.00% or, (ii) with respect to any Non-Prime Receivable, 4.00 that is not also a Subprime Receivable, 1.50% or (iii) with respect to any Subprime Receivable, 6.50%. "Tax" or "Taxes" means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax, additional amounts or penalties applicable thereto. "Termination Date" means the earliest to occur of (i) the occurrence of the latest Commitment Termination Date, (ii) the Business Day designated by the Borrower to the Lenders as the Termination Date at any time following 30 days' prior written notice, (iii) the date on which a Servicer Termination Event occurs, (iv) the date on which the Termination Date either automatically occurs or is declared, as applicable, following the occurrence of a Termination Event and pursuant to Section 8.01(b) or (v) the date on which an Early Amortization Event occurs. "Termination Event" has the meaning given to such term in Section 8.01(a). "Transition Expenses" has the meaning given to such term in Section 7.14(f). "U.S. Government Securities Business Day" means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. 47
"U.S. Person" means any Person that is a "United States person" as defined in Section 7701(a)(30) of the Code. "U.S. Tax Compliance Certificate" has the meaning specified in Section 2.11(g)(ii)(B)(3). "UCC" means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction. "Unadjusted Benchmark Replacement" means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment. "United States" or "U.S." means the United States of America. "Unmatured Servicer Termination Event" means any event that, with the giving of notice or the lapse of time, or both, would become a Servicer Termination Event. "Unmatured Termination Event" means any event that, with the giving of notice or the lapse of time, or both, would become a Termination Event. "Unreimbursed Servicer Advances" means, at any time, the amount of all previous Servicer Advances (or portions thereof) as to which the Servicer has not been reimbursed as of such time pursuant to Section 2.06. "Unused Commitment Fee" means, for any Interest Period prior to the commencement of the Amortization Period, the fee payable by the Borrower on the related Payment Date in an amount equal to product of (i) the Unused Commitment Fee Rate times (ii) an amount equal to the positive difference, if any, of (a) the average daily Aggregate Mandatory Commitment during such Interest Period minus (b) the average daily Loans Outstanding during such Interest Period times (iii) a fraction, (A) the numerator of which is the actual number of days during such Interest Period and (B) the denominator of which is 360. "Unused Commitment Fee Rate" has the meaning given to such term in the Fee Letter. "Upfront Fee" has the meaning given to such term in the Fee Letter. "U.S. Government Securities Business Day" means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. "Used Vehicle" means a Financed Vehicle that (i) has an odometer reading of 500 miles or greater, (ii) is a vehicle model that is more than two years old or (iii) was owned by and titled in the name of any Person (other than Lithia or DFC). "Weighted Average Hedge Rate" means, as of any date of determination, either (i) if the Borrower is party to one or more Hedge Transactions on such date (after giving effect to any Hedge Transactions that the Borrower enters into or terminates on such date), the weighted average (weighted by the notional amount of the related Hedge Transaction with respect to each 48
amount described in clause (a) or clause (b) and by the excess, if any, of the Loans Outstanding over the aggregate notional amount of all outstanding Hedge Transactions with respect to the amount described in clause (c)) of (a) for each such Hedge Transaction that is in the form of an interest rate cap transaction, the threshold rate above which payments are made by the related Hedge Counterparty to the Borrower, (b) with respect to each such Hedge Transaction that is in the form of an interest rate swap transaction, the fixed rate payable by the Borrower thereunder, and (c) with respect to an amount equal to the excess, if any, of the Loans Outstanding over the aggregate notional amount of all outstanding Hedge Transactions on such date (after giving effect to any Hedge Transactions that the Borrower enters into or terminates on such date), the cap rate set forth in clause (B) of the definition of 'Hedge Reserve Account Required Amount' or (ii) if the Borrower is not party to any Hedge Transactions on such date (after giving effect to any Hedge Transactions that the Borrower enters into or terminates on such date), the cap rate set forth in clause (B) of the definition of 'Hedge Reserve Account Required Amount. "Weighted Average Overcollateralization Percentage" means, as of any date of determination, the greater of (x) 13.00% and (y) the percentage equivalent of a fraction, (i) the numerator of which equals the sum of (a) the product of (1) the applicable Required Overcollateralization Percentage with respect to Prime Receivables as of such date times (2) the difference of (A) the aggregate Adjusted Principal Balance of all Prime Receivables that are Eligible Receivables as of such date minus (B) the portion of the Excess Concentration Amount that is allocable to the Prime Receivables as of such date plus (b) the product of (1) the applicable Required Overcollateralization Percentage with respect to Non-Prime Receivables (other than Subprime Receivables) as of such date times (2) the difference of (A) the aggregate Adjusted Principal Balance of all Non-Prime Receivables (other than Subprime Receivables) that are Eligible Receivables as of such date minus (B) the portion of the Excess Concentration Amount that is allocable to the Non-Prime Receivables as of such(other than Subprime Receivables) as of such date plus (c) the product of (1) the applicable Required Overcollateralization Percentage with respect to Subprime Receivables as of such date times (2) the difference of (A) the aggregate Adjusted Principal Balance of all Subprime Receivables that are Eligible Receivables as of such date minus (B) the portion of the Excess Concentration Amount that is allocable to the Subprime Receivables as of such date, and (ii) the denominator of which is equal to the Net Eligible Pool Balance as of such date. For purposes of calculating the Weighted Average Overcollateralization Percentage on any date of determination, the Excess Concentration Amount on such date shall be allocated among the Prime Receivables and the Non-Prime Receivables based on the percentage of the Eligible Pool Balance that is represented, respectively, by the Adjusted Principal Balance of all Prime Receivables that are Eligible Receivables as of such date and the Adjusted Principal Balance of all Non-Prime Receivables that are Eligible Receivables as of such date. "Withholding Agent" means the Borrower and the Administrative Agent. 49
(b) No later than 3:00 p.m., New York City time, two Business Days prior to a proposed Funding Date, the Borrower shall notify the Administrative Agent of such proposed Funding Date and Loan by delivering to the Administrative Agent (with a copy to the Account Bank), and the Administrative Agent shall forward to each Agent upon receipt thereof: (i) a Funding Request, which will include, among other things, the proposed Funding Date, a calculation of the Borrowing Base as of the date the Loan is requested (including all components of such calculation, including any Excess Concentration Amounts) and the Principal Amount of the Loan requested, which shall be in an amount at least equal to $1,000,000 or integral multiples of $100,000 in excess thereof (or, if less, an amount equal to the Aggregate Commitment after giving effect to any payments on the related Payment Date if the Funding Date occurs on a Payment Date); and (ii) an updated Schedule of Receivables that includes each Receivable that is the subject of the proposed Loan. (c) Following receipt by the Administrative Agent and the Agents of a Funding Request, and prior to the Termination Date, each Lender Group severally agrees to make its Lender Advance of any Loan requested by the Borrower pursuant to Section 2.01(b), subject to the conditions contained herein, in an aggregate amount equal to the Loan so requested. (d) In no event shall: (i) a Lender be required to fund a Principal Amount that would cause its Lender Percentage of the Loans Outstanding, determined after giving effect to such funding, to exceed its Mandatory Commitment; provided, that any Lender may elect, in its sole discretion, to fund any such Principal Amount; (ii) a Lender be required on any date to fund a Principal Amount that would cause its Lender Percentage of the Loans Outstanding, determined after giving effect to such funding, to exceed its Commitment; (iii) any Loan be requested hereunder, nor shall any Lender be obligated to fund its Lender Advance of any Loan, to the extent that after giving effect to such Loan, the Loans Outstanding would exceed the Borrowing Base; (iv) the Principal Amount of any Loan exceed the Available Amount on such day; and (v) more than one Loan be funded on any Business Day. Section 2.02. Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent after 3:00 p.m., New York City time, two Business Days prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 3:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be 51
deemed to be the second Business Day following the date of such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loan will not, on the related Funding Date, exceed the Available Amount and (ii) all conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable. (b) Each Lender's Lender Advance of a Loan shall be made available to the Agent for its Lender Group, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 1:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Administrative Agent's Account. The Administrative Agent shall promptly notify the Borrower and the related Agent in the event that any Lender Group either fails to make such funds available before such time or notifies the Administrative Agent that it will not make such funds available before such time. Subject to the fulfillment of the applicable conditions set forth in Article Four, as determined by the Administrative Agent, the Administrative Agent will not later than 3:00 p.m., New York City time, on such Funding Date make all such funds deposited to the Administrative Agentβs Account by the Agents available, in the same type of funds received, by wire transfer thereof to the Borrower's Account. If any Lender Group makes available to the Administrative Agent funds for any Loan to be made by such Lender Group as provided in the foregoing provisions of this Article, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to the related Agent for such Lender Group, without interest. (c) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lender Groups are several and no Lender Group shall be responsible for any other Lender Group's failure to make Loans as required. Section 2.03. Reduction of Commitments. (a) At any time the Borrower may, upon at least five Business Days' prior written notice to the Administrative Agent, each Agent, the Account Bank and each Hedge Counterparty, reduce the Facility Amount to an amount not less than the Loans Outstanding, which reduction shall be applied, unless otherwise Consented to by the Administrative Agent and the Agents, to the Commitments of each Lender pro rata based on the Lender Percentage represented by such Commitment. Any such reduction of the Commitment of any Lender shall also reduce the related Mandatory Commitment of such Lender by the same amount. If any such written notice is delivered after 3:00 p.m., New York City time, five Business Days prior, such notice shall be deemed to be received prior to 3:00 p.m., New York City time, on the next succeeding Business Day. Each partial reduction shall be in a minimum aggregate amount of $5,000,000 or integral multiples of $1,000,000 in excess thereof. Any request for a reduction in the Facility Amount shall be irrevocable and the Borrower shall deliver no more than four such requests in any 12-month period. (b) In connection with any reduction of the Facility Amount, the Borrower shall remit to the Administrative Agent and the Agents, for payment to each Lender, (i) instructions 52
reduction of Loans Outstanding made after the date of the occurrence of the related Partial Expiration Event equals the Partial Expiration Event Amount, except as otherwise provided in Section 2.07, payments pursuant to Section 2.07(vi)(B) in reduction of the Partial Expiration Event Amount shall be allocated and applied to Non-Extending Lenders pro rata based on their respective Lender Percentages as of the date of the related Partial Expiration Event. (e) The interest rate on a Loan may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.17(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service. (f) At or before 3:00 p.m., New York City time, on the second (2nd) Business Day prior to each Reporting Date, (i) each Lender shall notify the Agent for its Lender Group, and such Agents will subsequently notify the Administrative Agent, of (A) Daily Simple SOFR in effect for each day during the related Interest Period, and (B) if applicable, the date on which the Alternate Base Rate became applicable to its Invested Percentage of the Loans Outstanding or a portion thereof. At or before 5:00 p.m., New York City time, on the second (2nd) Business Day prior to each Reporting Date, the Administrative Agent shall then notify the Borrower of all such rates. For such purposes, the Agents may rely conclusively on notices from Lenders as to the interest rate or rates from time to time applicable to their respective Invested Percentage of the Loans Outstanding. Each determination by a Lender of Daily Simple SOFR pursuant to this Agreement shall be conclusive and binding on the Lenders, each Agent, the Borrower, the Servicer, and the Collateral Custodian, in the absence of manifest error. (g) Notwithstanding any other provision of this Agreement or the other Basic Documents, if at any time the rate of interest payable by any Person under the Basic Documents exceeds the Maximum Lawful Rate, then, so long as the Maximum Lawful Rate would be exceeded, such rate of interest shall be equal to the Maximum Lawful Rate. If at any time thereafter the rate of interest so payable is less than the Maximum Lawful Rate, such Person 55
Available Funds the following amounts in the following order of priority, as set forth in the related Monthly Report: (i) First, to the Servicer, an amount equal to any Unreimbursed Servicer Advances, to the extent not previously retained by the Servicer; (ii) Second, to the Backup Servicer, the Backup Servicing Fee, any out-of-pocket expenses that are reimbursable to the Backup Servicer pursuant to the Backup Servicing Agreement (including any Transition Expenses, but only if the Backup Servicer is not the Successor Servicer), and any indemnifiable amounts due to the Backup Servicer; provided, that Transition Expenses payable to the Backup Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iii) Third, pro rata (A) to the Servicer (including any Successor Servicer), the accrued and unpaid Servicing Fee and all Ancillary Fees to the extent not previously retained by the Servicer and (B) to any Successor Servicer, any out-of-pocket expenses and indemnities due to the Successor Servicer; provided, that aggregate amounts payable to any Successor Servicer pursuant to this clause may not exceed $100,000 in any calendar year; (iv) Fourth, pro rata (A) to each Hedge Counterparty (based on amounts due to each Hedge Counterparty pursuant to this subclause), any net payments due and payable under the related Hedging Agreement (other than Hedge Breakage Costs), and (B) to the Administrative Agent (based on amounts due to the members of each Lender Group pursuant to this subclause), for further payment to each Lender, an amount equal to the sum of (1) the portion of Senior Monthly Interest and Fees due to members of the related Lender Group plus (2) any Breakage Costs of any Lender; (v) Fifth, pro rata (A) to each Hedge Counterparty that has any due and payable Hedge Breakage Costs (other than Subordinated Hedge Breakage Costs), such Hedge Breakage Costs, and (B) to the Administrative Agent (based on Lender Percentage) for further payment to each Lender, the Monthly Principal Payment Amount; (vi) Sixth, if the Termination Date has not occurred but a Partial Expiration Event has occurred, pro rata to the Administrative Agent for a Lender Group that includes a Non-Extending Lender (based on the Loans Outstanding to each such Non-Extending Lender) for further payment to each Non-Extending Lender, an amount equal to the product of (A) such Non-Extending Lender's Invested Percentage as of its Commitment Termination Date times (B) all remaining Available Funds until the portion of the Loan Outstanding owned by such Non-Extending Lender is reduced to zero; (vii) Seventh, to the Administrative Agent (based on the amount of the Subordinated Monthly Interest Payment Amount due to members of the related 57
without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.11(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender's reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing: (A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Xxxxxx becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is not subject to U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Borrower Basic Document, executed copies of IRS Form W-8BEN orW-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "interest" article of such tax treaty and (y) with respect to any other applicable payments under any Borrower Basic Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "business profits" or "other income" article of such tax treaty; (2) executed copies of IRS Form W-8ECI; (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of 64
Exhibit G-1 to the effect that such Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, a "10 percent shareholder" of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a "controlled foreign corporation" described in Section 881(c)(3)(C) of the Code (a "U.S. Tax Compliance Certificate") and (y) executed copies of IRS Form W-8BEN or W-8BEN-E; or (4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided, that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and (D) if a payment made to a Lender under any Borrower Basic Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Xxxxxx has complied with such Xxxxxx's obligations under FATCA or to determine the amount to deduct 65
its security interest and Lien on the related Receivables, subject to the following terms and conditions: (i) the Borrower shall have given the Administrative Agent (who will notify each Agent), the Servicer and the Backup Servicer at least ten Business Days' prior written notice of its intent to effect the related Take-out; (ii) unless a Take-out is to be effected on a Payment Date (in which case the relevant calculations with respect to such Take-out shall be reflected on the applicable Monthly Report), the initial Servicer shall deliver to the Administrative Agent (A) a Take-out Date Certificate (which shall include a calculation of the Borrowing Base after giving effect to such Take-out), together with evidence to the reasonable satisfaction of the Administrative Agent that the Borrower shall have sufficient funds on the related Take-out Date to effect such Take-out in accordance with this Agreement, which funds may come from the proceeds of sales of the Receivables in connection with such Take-out and (B) a computer tape of the Receivables, both before and after giving effect to such Take-out; (iii) on the related Take-out Date, the following shall be true and correct and the Borrower shall be deemed to have certified that after giving effect to the Take-out and the release to the Borrower of the related Receivables on the related Take-out Date, (A) no Borrowing Base Deficiency exists, (B) neither an Unmatured Termination Event nor a Termination Event has occurred, nor will either result from such Take-out, (C) the fractional portion of the Eligible Pool Balance that represents the aggregate Adjusted Principal Balance of all Delinquent Receivables constituting Collateral will be no greater than 175% of the fractional portion of the Eligible Pool Balance that was represented by the aggregate Adjusted Principal Balance of all Delinquent Receivables that constituted Collateral immediately prior to the release of the related Receivables and (D) the fractional portion of the Eligible Pool Balance that represents the aggregate Adjusted Principal Balance of all Defaulted Receivables constituting Collateral will be no greater than 150% of the fractional portion of the Eligible Pool Balance that was represented by the aggregate Adjusted Principal Balance of all Defaulted Receivables that constituted Collateral immediately prior to the release of the related Receivables; (iv) on the related Take-out Date, the Servicer shall have received an amount equal to all Unreimbursed Servicer Advances associated with the Receivables to be released and the Administrative Agent shall have received, for the benefit of the Lenders and the Hedge Counterparties, as applicable, in immediately available funds, and shall then distribute to the applicable entities, an amount equal to the sum of (A) the portion of the Loans Outstanding to be prepaid, (B) an amount equal to all unpaid Interest (including Interest not yet accrued) to the extent reasonably determined by the Administrative Agent to be attributable to that portion of the Loans Outstanding to be paid in connection with the Take-out, (C) an aggregate amount equal to the sum of all other amounts due and owing to the Administrative Agent, the Lenders and the Hedge Counterparties, as 67
confirm or verify the contents of any reports or certificates of the Servicer or the Borrower delivered to the Account Bank pursuant to this Agreement believed by the Account Bank to be genuine and to have been signed or presented by the proper party or parties or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Borrower's or the Servicer's representations, warranties or covenants or the initial Servicer's duties and obligations as Servicer and as custodian of books, records, files and computer records relating to the Contracts under this Agreement. (d) The Account Bank shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Account Bank to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement. (e) The Account Bank may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, any Monthly Report, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (f) The Account Bank may consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Account Bank in good faith in accordance therewith. (g) The Account Bank shall be under no obligation to exercise any of the rights, powers or remedies vested in it by this Agreement (except to comply with its obligations under this Agreement and any other Basic Document to which it is a party) or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, shall have offered to the Account Bank reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby. (h) The Account Bank shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by a Secured Party; provided, that if the payment within a reasonable time to the Account Bank of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Account Bank, not reasonably assured by the Borrower, the Account Bank may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Borrower or, if paid by the Account Bank, shall be reimbursed by the Borrower upon demand. 69
(i) The Account Bank may execute any of the trusts or powers hereunder or perform any duties under this Agreement either directly or by or through agents or attorneys or a custodian. The Account Bank shall not be responsible for any misconduct or negligence of any such agent or custodian appointed with due care by it hereunder. (j) (i) The Account Bank shall have no duties or responsibilities except those that are specifically set forth herein, and no implied covenants or obligations shall be read into this Agreement against the Account Bank. If the Account Bank shall request instructions from the Administrative Agent or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, the Account Bank shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Account Bank shall have received written instructions from the Administrative Agent or the Servicer, as applicable without incurring any liability therefor to the Administrative Agent, the Borrower, the Servicer or any other person. (ii) The Account Bank may act in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this Agreement. The Account Bank does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Contracts and other Collateral. The Account Bank shall not be liable for any action or omission to act hereunder, except for its own gross negligence, bad faith or willful misconduct. THE FOREGOING PROVISIONS SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY THE ACCOUNT BANK. (k) Control Provisions (i) The parties acknowledge and agree that the Collection Account is intended to be a "securities account" (as defined in Section 8-501 of the UCC), and the Account Bank shall be the "securities intermediary" with respect to the Collection Account. Notwithstanding such intention, (x) if the Collection Account constitutes a "deposit account" (as defined in Section 9-102(a)(29) of the UCC), the provisions of this Agreement governing a "deposit account" shall apply to such Collection Account. (ii) All securities or other property, including Permitted Investments, constituting financial assets credited to the Collection Account (other than cash) shall be registered in the name of the Account Bank, indorsed to the Account Bank or in blank or credited to another securities account maintained in the name of the Account Bank, and in no case will any financial asset credited to the Collection Account be registered in the name of the Borrower or any other person, payable to the order of the Borrower or any other person or specially indorsed to the 70
with respect to the relevant Benchmark, the Loans shall bear interest at the Alternate Base Rate. (b) Notwithstanding anything to the contrary herein or in any other Basic Document (and any Hedging Agreements shall be deemed not to be a 'Basic Document' for purposes of this Section 2.17), if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Basic Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Basic Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. (c) Notwithstanding anything to the contrary herein or in any other Basic Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Basic Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Basic Document. (d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.17, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Basic Document, except, in each case, as expressly required pursuant to this Section 2.17. (e) Upon the Borrower's receipt of notice of the commencement of a Benchmark Unavailability Period, and at all times during the continuation of a Benchmark Unavailability Period, the Loans will bear interest at the Alternate Base Rate. (f) Notwithstanding anything to the contrary herein or in any other Basic Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of 'Interest Period' for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a 74
rights of recourse of the Borrower against DFC and/or any Dealer with respect to the Receivables; (viii) all Records, documents and writings evidencing or related to the Receivables or the Contracts; (ix) all rights to payment under all Insurance Policies with respect to a Financed Vehicle, including any monies collected from whatever source in connection with any default of an Obligor with respect to a Financed Vehicle and any proceeds from claims or refunds of premiums on any Insurance Policy; (x) all guaranties, indemnities, warranties, insurance (and proceeds and premium refunds thereof) and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Receivables, whether pursuant to the related Contracts or otherwise; (xi) all rights to payment under all service contracts and other contracts and agreements associated with the Receivables; (xii) all security interests, Liens, guaranties and other encumbrances in favor of or assigned or transferred to the Borrower in and to the Receivables and Financed Vehicles; (xiii) all deposit accounts, monies, deposits, funds, accounts and instruments relating to the foregoing (subject to the Control Agreement); (xiv) the Purchase Agreement (including each Purchase Agreement Supplement) and remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against DFC under or in connection with the Purchase Agreement; and (xv) all income and proceeds of the foregoing. (b) The grant under this Section does not constitute and is not intended to result in a creation or an assumption by the Administrative Agent, any Agent, or any other Secured Party of any obligation of the Borrower or any other Person in connection with any or all of the Collateral or under any agreement or instrument relating thereto. Anything herein to the contrary notwithstanding, (i) the Borrower shall remain liable under the Contracts to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (ii) the exercise by the Administrative Agent of any of its rights in the Collateral shall not release the Borrower from any of its duties or obligations under the Collateral and (iii) none of the Administrative Agent, any Agent, or any other Secured Party shall have any obligations or liability under the Collateral by reason of this Agreement, nor shall any of the Administrative Agent, any Agent, or any other Secured Party be obligated to perform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. Each of DFC and the Borrower represents and warrants as to itself that each remittance of Collections by DFC or the Borrower to the Administrative Agent or any Lender hereunder will have been (A) in payment of a debt incurred 76
requires such qualifications, licenses or approvals, except those jurisdictions in which failure to be so qualified would not have a Material Adverse Effect. (c) Power and Authority; Due Authorization. The Borrower (i) has all necessary power, authority and legal right to (A) execute and deliver the Borrower Basic Documents, (B) carry out the terms of the Borrower Basic Documents and (C) grant the security interest in the Collateral on the terms and conditions herein provided and (ii) has duly authorized by all necessary limited liability company action the execution, delivery and performance of the Borrower Basic Documents and the grant of the security interest in the Collateral on the terms and conditions herein and therein provided. (d) Binding Obligation. Each Borrower Basic Document constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its respective terms, except as such enforceability may be limited by Insolvency Laws and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity). (e) No Violation. The execution and delivery of the Borrower Basic Documents, the consummation of the transactions contemplated by the Borrower Basic Documents and the fulfillment of the terms hereof and thereof will not (i) conflict in any material respect with, result in any material breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under the Borrower's Formation Documents or a default in any material respect under any Contractual Obligation of the Borrower, (ii) result in the creation or imposition of any Lien upon any of the Borrower's properties (other than Permitted Liens) or (iii) violate any Applicable Law, the violation of which could reasonably be expected to have a Material Adverse Effect. (f) No Proceedings. There is no litigation, proceeding or investigation pending or, to the best knowledge of the Borrower, threatened against the Borrower, before any Governmental Authority (i) asserting the invalidity of any Borrower Basic Document, (ii) seeking to prevent the consummation of any of the transactions contemplated by any Borrower Basic Document or (iii) seeking any determination or ruling that could reasonably be expected to have a Material Adverse Effect. (g) All Consents Required. All approvals, authorizations, consents, orders, licenses or other actions of any Person or of any Governmental Authority required for the due execution, delivery and performance by the Borrower of the Borrower Basic Documents have been obtained. (h) Bulk Sales. The execution, delivery and performance of the Borrower Basic Documents do not require compliance with any "bulk sales" act or similar law by the Borrower. (i) Solvency. The transactions contemplated by the Borrower Basic Documents do not and will not cause the Borrower not to be Solvent. 82
(B) Within 60 days after the end of the first three quarterly fiscal periods of each fiscal year of the Performance Guarantor, the unaudited consolidated balance sheets of the Performance Guarantor as at the end of such period and the related unaudited consolidated statements of income and retained earnings for the Performance Guarantor for such period, setting forth in comparative figures for the previous quarter (to the extent such prior quarter financial statements were delivered pursuant to this Section or are otherwise available), accompanied by a certificate of a Responsible Officer of the Performance Guarantor, which certificate shall state that each such consolidated financial statement fairly presents the financial condition of the Performance Guarantor in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year end audit adjustments). Notwithstanding the foregoing, if any such report is timely filed with the Securities and Exchange Commission and is publicly available on its the Electronic Data Gathering, Analysis and Retrieval (XXXXX) system on the date that the related report would otherwise be due hereunder, such report shall be deemed to have been timely delivered in accordance with this subclause. (C) Within 120 days after each fiscal year of (i) DFC, the unaudited consolidated balance sheets of DFC as of the end of such fiscal year and the related unaudited consolidated statements of income and retained earnings and of cash flows for DFC for such year and (ii) the Performance Guarantor, the audited consolidated balance sheets of the Performance Guarantor as at the end of such fiscal year and the related audited consolidated statements of income and retained earnings and of cash flows for the Performance Guarantor for such year, setting forth in comparative form the figures for the previous year, accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern (other than a qualification as to going concern based solely on the tenor of the Commitments hereunder) and shall state that each consolidated financial statement fairly presents the financial condition and results of operations of the Performance Guarantor at the end of, and for, such fiscal year in accordance with GAAP. Notwithstanding the foregoing, if any such report is timely filed with the Securities and Exchange Commission and is publicly available on its the Electronic Data Gathering, Analysis and Retrieval (XXXXX) system on the date that the related report would otherwise be due hereunder, such report shall be deemed to have been timely delivered in accordance with this subclause. (D)Within 120 days of the end of each fiscal year of DFC, a certificate of a Responsible Officer of DFC, which certificate shall state that the unaudited consolidated balance sheets of DFC delivered pursuant to subclause (C) fairly present the financial condition of DFC in accordance with GAAP, consistently applied, at the end of, and for, such fiscal year. Within 120 days of the end of each fiscal year of the 92
available to pay creditors of any Affiliate and (C) neither such Member nor any Affiliate thereof is liable or responsible for the debts of the Borrower; (x) pay its own liabilities and expenses only out of its own funds; (xi) except for capital contributions or capital distributions permitted under the terms and conditions of the Borrower's Formation Documents, not enter into any transaction with an Affiliate of the Borrower except on arm's length terms; (xii) compensate (either directly or through reimbursement of the Borrower's allocable share of any shared expenses) all employees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliates, in each case, from the Borrower's own funds and either maintain a sufficient number of employees, and/or employ sufficient consultants or agents, in light of its contemplated operations; provided, the foregoing shall not require the Members to make any additional capital contributions to the Borrower; (xiii) except as expressly permitted under any of the Basic Documents, pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Borrower's allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Borrower's allocable share thereof) paid by any Affiliates; provided, the foregoing shall not require the Members to make any additional capital contributions to the Borrower; (xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person; (xv) maintain office space separate and clearly delineated from the office space of any Affiliate; (xvi) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space and for services performed by an employee of an Affiliate; (xvii) cause (A) all written communications, including letters, invoices, purchase orders, and contracts, of the Borrower to be made solely in the name of the Borrower, (B) the Borrower to have its own tax identification number, stationery, checks and business forms, separate from those of any other Person, (C) all Affiliates not to use the stationery or business forms of the Borrower, and cause the Borrower not to use the stationery or business forms of any Affiliate, and (D) all Affiliates not to conduct business in the name of the Borrower, and cause the Borrower not to conduct business in the name of any Affiliate; 95
to repurchase Receivables for breaches of representations and warranties made by DFC. (ii) Consistent with the Credit and Collection Policy, if any Receivable is past due or delinquent, in whole or in part, the Servicer will make reasonable and customary efforts to contact the Obligor. The Servicer shall continue its efforts to obtain payment from an Obligor who is past due or delinquent on a Receivable until the related Financed Vehicle has been repossessed and sold or the Servicer has determined that all amounts collectable on the Receivable have been collected. The Servicer shall use commercially reasonable efforts, consistent with the Credit and Collection Policy and the standard of care set forth in Section 7.03(a), to collect funds on a Defaulted Receivable and by the close of business on the second Business Day following receipt of such Collections to cause such Collections to be deposited into the Collection Account. (iii) In the event a Receivable becomes a Defaulted Receivable, the Servicer, itself or through the use of independent contractors or agents shall, consistent with the Credit and Collection Policy, repossess or otherwise convert the ownership of the Financed Vehicle securing any such Receivable. All costs and expenses incurred by the Servicer in connection with the repossession of the Financed Vehicles securing such Receivables shall be reimbursed to the Servicer (other than overhead), to the extent not previously recouped by the Servicer from Recoveries on the Payment Date immediately succeeding the Collection Period in which the Servicer delivered to the Administrative Agent an itemized statement of such costs and expenses. Notwithstanding the foregoing and consistent with the terms of this Agreement, the Servicer shall not be obligated to repossess or take any action with respect to a Defaulted Receivable if, in its reasonable judgment consistent with the Credit and Collection Policy, the Recoveries would not be increased. (iv) The Servicer shall deposit or cause to be deposited by electronic funds transfer all Collections to the Collection Account no later than two Business Days after the earlier of the deposit of such amounts into the Lockbox Account or the receipt of such amounts by or on behalf of the Servicer or the Borrower. Notwithstanding the foregoing, in no event shall any Successor Servicer be obligated to transfer funds in excess of the available funds in the Lockbox Account. (v) Notwithstanding the provisions of subclause (iv), at any time that (A) DFC is the Servicer, (B) Lithia has long-term unsecured debt ratings of not less than "A" by Standard & Poor's and not less than "A2" by Xxxxx'x, and (C) no Early Amortization Event, Termination Event, or Servicer Termination Event has occurred and is continuing, the Servicer may make a single monthly deposit of Collections to the Collection Account in immediately available funds, provided that such deposit is made not later than 3:00 p.m., New York City time, on the second Business Day preceding the Payment Date following the Collection Period with respect to which such Collections relate. 107
earlier of the date on which the Servicer first has knowledge thereof or the date on which written notice of such failure shall have been given to the Servicer; (f) DFC shall fail to pay any principal of or premium or interest on any Indebtedness having a principal amount of $5,000,000 or greater, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of DFC, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; (g) any material provision of any Basic Document to which the Servicer is a party shall in whole or in part, cease to be in full force and effect or cease to be the legally valid, binding and enforceable obligation of the Servicer; (h) (i) one or more final nonappealable judgments shall be entered against the Servicer by one or more courts of competent jurisdiction assessing monetary damages, individually or in the aggregate over any calendar year, in excess of $1,000,000; (ii) one or more monetary settlements shall be entered into by the Servicer with any Person, individually or in the aggregate over any calendar year, in excess of $1,000,000; (iii) the IRS shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any assets of the Servicer and such Lien shall not have been released within 30 days; or (iv) the Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Servicer and such Lien shall not have been released within 30 days; (i) any Change in Control shall occur with respect to DFC; (j) a Termination Event shall have occurred and is continuing and shall not have been waived; (k) the Performance Guaranty shall cease to be in full force and effect (other than in accordance with its terms) or the Performance Guarantor shall assert that it is not bound by, or otherwise seek to terminate or disaffirm its obligations under, the Performance Guaranty, or shall otherwise claim that the Performance Guaranty is in any way invalid or unenforceable; (l) as of any Reporting Date, the arithmetic mean of the Serviced Portfolio Delinquency Ratio for the three previous Collection Periods is greater than 6.00%; 115
Agent pursuant to this Section shall be taken upon the request or approval of the Required Lenders. (b) In the event that there is no Backup Servicer at the time that the Servicer is terminated hereunder, or the Administrative Agent does not so appoint the Backup Servicer to succeed the Servicer as Successor Servicer hereunder, or the Backup Servicer is unable to assume such obligations on such date, the Administrative Agent shall as promptly as possible appoint a successor servicer (each such party so appointed or, as applicable, the Backup Servicer as successor to the Servicer, collectively, the "Successor Servicer"), and such Successor Servicer shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent. (c) Upon the termination and removal of the Servicer, the predecessor Servicer shall cooperate with the Successor Servicer in effecting the termination of the rights and responsibilities of the predecessor Servicer under this Agreement, including the transfer to the Successor Servicer for administration by it of all cash amounts that shall at the time be held by the predecessor Servicer for deposit, or shall thereafter be received, with respect to a Receivable, and the related accounts and records maintained by the Servicer. In the case that the Successor Servicer shall not agree to perform any duties or obligations of the Servicer hereunder, such duties or obligations may be performed or delegated by the Administrative Agent. (d) The Administrative Agent shall have the same rights of removal and termination for cause with respect to the Successor Servicer as with respect to DFC as the Servicer. (e) The Successor Servicer shall act as Servicer hereunder and shall, subject to the availability of sufficient funds in the Collection Account pursuant to Section 2.06 (up to the Servicing Fee), receive as compensation therefor the Servicing Fee pursuant to Section 2.06. (f) All reasonable out-of-pocket costs and expenses (including attorneys' fees and disbursements) incurred in connection with the transferring of Receivables to the Successor Servicer, converting the Servicer's data to the computer system of the Successor Servicer, and amending this Agreement to reflect such succession as Servicer pursuant to this Section shall be paid by the predecessor Servicer upon presentation of reasonable transition expenses (the "Transition Expenses"). In no event shall the Successor Servicer be responsible for any Transition Expenses. If the predecessor Servicer fails to pay the Transition Expenses, the Transition Expenses shall be payable pursuant to Section 2.06. (g) Upon its appointment, the Successor Servicer shall be the successor in all respects to the Servicer with respect to servicing functions under this Agreement and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof, and all references in this Agreement to the Servicer shall be deemed to refer to the Successor Servicer; provided, that any Successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor becomes the Successor Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer; (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer; (iii) no obligation to pay any Taxes required to be paid by the Servicer; (iv) no obligation to pay any of the fees and expenses 117
vehicle installment sale contracts and installment loans that the Collateral Custodian holds for itself or others. The Collateral Custodian shall maintain continuous custody of the Receivable Files and such other documents received by it in secure, fire resistant facilities. Each Receivable shall be identified on the books and records of the Collateral Custodian in a manner that (i) indicates that the Receivable is held by the Collateral Custodian on behalf of the Secured Parties, and (ii) is otherwise necessary, as reasonably determined by the Collateral Custodian to comply with the terms of this Agreement. The Collateral Custodian shall report to the Administrative Agent any failure on its part to hold the Receivable Files and to maintain its accounts, records and computer systems as herein provided and take appropriate action to remedy any such failure. Nothing herein shall be deemed to require an initial review or any periodic review of the Receivable Files by the Secured Parties, and none of the Secured Parties shall be liable or responsible for any action or failure to act by the Servicer in its capacity as custodian hereunder. (b) Maintenance of and Access to Records. The Collateral Custodian shall maintain each Receivable File at one of the locations specified in Schedule D or, if a material portion of the Receivables Files are to be held in any other location, the Collateral Custodian will provide 30 days' prior written notice thereof to the Administrative Agent, each Agent and each Lender. The Collateral Custodian may temporarily move individual Receivable Files or any portion thereof without notice as necessary to conduct collection and other servicing activities in accordance with its customary practices and procedures. The Collateral Custodian shall make available to the Secured Parties or their duly authorized representatives, attorneys or auditors a list of locations of the Receivable Files, the Receivable Files and the related accounts, records and computer systems maintained by the Servicer at such times during normal business hours as any Secured Party shall reasonably request. (c) Title to Receivables. The Receivable Files and the other documents delivered to the Collateral Custodian will be delivered from time to time to the Collateral Custodian for the sole purpose of holding for safekeeping. The Collateral Custodian shall not at any time have, or in any way attempt to assert, any interest in any Receivable held by it as custodian hereunder or in the related Receivable File, other than for collecting or enforcing such Receivable for the benefit of the Administrative Agent on behalf of the Secured Parties. (d) Instructions; Authority to Act. The Collateral Custodian shall be deemed to have received proper instructions with respect to the Receivable Files upon its receipt of written instructions signed by a Responsible Officer of the Administrative Agent (acting at the direction of the Required Lenders). (e) Indemnification by Collateral Custodian. The Collateral Custodian, in its capacity as custodian of the Receivable Files, shall indemnify and hold harmless the Secured Parties and each of their respective officers, directors, employees and agents from and against any and all loss, liability or expense that may be imposed on, incurred or asserted against the Secured Parties and each of their respective officers, directors, employees and agents as the result of any improper act or omission in any way relating to the maintenance and custody of the Receivable Files by the Collateral Custodian; provided, that the Collateral Custodian shall not be liable for 120
any portion of any such loss, liability or expense resulting from the willful misfeasance, bad faith or gross negligence of any Secured Party. (f) Effective Period and Termination. The Collateral Custodian's appointment as custodian shall become effective as of the Closing Date and shall continue in full force and effect until terminated pursuant to this Section. If the initial Servicer is terminated following a Servicer Termination Event, the appointment of the Collateral Custodian as custodian hereunder may be terminated by the Administrative Agent. As soon as practicable after any such resignation or termination of such appointment, the Administrative Agent shall appoint a successor Collateral Custodian to be custodian of the Receivable Files and the accounts and records relating thereto and the Collateral Custodian shall, at its sole cost and expense, (i) deliver, or cause to be delivered, the Receivable Files and the related accounts and records maintained by the Collateral Custodian to such successor Collateral Custodian, or its agent or designee, as the case may be, at such place as such successor Collateral Custodian may reasonably designate and (ii) otherwise cooperate with the successor Collateral Custodian in affecting the termination of the rights and responsibilities of the predecessor Collateral Custodian under this Agreement. From and after the appointment of a successor Collateral Custodian, the predecessor Collateral Custodian shall continue to perform all custodial functions under this Agreement until the date specified by the Administrative Agent in writing or, if no such date is specified, until a date mutually agreed upon by the predecessor Collateral Custodian and the Administrative Agent. The Administrative Agent may, in its discretion, at the time described in immediately preceding sentence, appoint the Backup Servicer as the successor Collateral Custodian hereunder, and the Backup Servicer shall on such date assume all obligations of the Collateral Custodian hereunder, and all authority and power of the predecessor Collateral Custodian under this Agreement shall pass to and be vested in the Backup Servicer. The Administrative Agent shall have the same rights of removal and termination for cause with respect to the Backup Servicer or any other successor Collateral Custodian as with respect to DFC as the Collateral Custodian. (g) Inspection. The Collateral Custodian shall permit the Administrative Agent, the Servicer, the Backup Servicer and each Lender or their designee, upon reasonable prior notice and during the Servicer's regular business hours and at the reasonable expense of the Borrower, to periodically, at the discretion of the Administrative Agent (acting at the direction of the Required Lenders), the Servicer, the Backup Servicer and each Lender, conduct an audit of the Receivables and Receivable Files. Notwithstanding the foregoing, for so long as DFC is the Collateral Custodian, the right to conduct inspections of the Collateral Custodian shall be governed by the provisions of Section 7.07(d). (h) Delegation of Duties. (i) The Collateral Custodian may perform any of its duties through one or more custodial agents without the consent of any Person, except as set forth in clause (iii) below. No such delegation will relieve the Collateral Custodian of its responsibilities with respect to such duties and the Collateral Custodian will remain primarily responsible with respect to such duties, and the Collateral Custodian acknowledges that it remains primarily responsible for the safeguarding of all such Receivable Files and shall be liable for any acts or omissions of such custodial agents 121
(iv) any representation or warranty made by the Borrower, the Seller or the Performance Guarantor in any Basic Document to which it is a party or in any Funding Request, Monthly Report, Quarterly Report or other report, certificate or notice delivered pursuant to any Basic Document to which it is a party, shall prove to have been false or otherwise incorrect in any respect when made, deemed made or delivered, which such false or incorrect representation, warranty or information materially and adversely affects the rights or interests of the Secured Parties and, if able to be cured, shall not have been cured for 30 days after the earlier of the date on which the Borrower, the Seller, or the Performance Guarantor, as applicable, first has knowledge thereof or the date on which written notice of such failure shall have been given to the Borrower, the Seller, or the Performance Guarantor, as applicable; provided, that no Termination Event shall have occurred under this clause for breaches of representations or warranties that are cured by the repurchase of the related Receivable pursuant to Section 5.04 hereof; (v) an Insolvency Event shall occur with respect to the Borrower, the Seller or the Performance Guarantor; (vi) the Administrative Agent shall fail for any reason to have a valid, first priority perfected security interest in all, or any material portion of, the Collateral, which failure shall not have been cured for ten days after the earlier of the date on which the Borrower or DFC first has knowledge thereof or the date on which written notice of such failure shall have been given to the Borrower or DFC; (vii) (A) one or more final nonappealable judgments shall be entered against the Borrower, the Seller or the Performance Guarantor by one or more courts of competent jurisdiction assessing monetary damages, individually or in the aggregate over any calendar year, in excess of $25,000, $1,000,000 or $1,000,000, respectively; or (B) one or more monetary settlements shall be entered into by the Borrower, the Seller or the Performance Guarantor with any Person, individually or in the aggregate over any calendar year, in excess of $25,000, $1,000,000 or $1,000,000 respectively; (C) the IRS shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any assets of the Borrower, the Seller or the Performance Guarantor and such Lien shall not have been released within 30 days; or (iv) the Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower, the Seller or the Performance Guarantor and such Lien shall not have been released within 30 days; (viii) the Borrower, the Seller or the Performance Guarantor shall fail to pay any principal of or premium or interest on any Indebtedness having a principal amount of $0 or greater (with respect to the Borrower) or $10,000,000 or greater (with respect to the Seller or the Performance Guarantor), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower, the Seller, or the Performance Guarantor, as 123
applicable, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; (ix) any Change in Control shall occur; (x) at any time, the Loans Outstanding exceed the Net Eligible Pool Balance; (xi) the Performance Guaranty shall cease to be in full force and effect (other than in accordance with its terms) or the Borrower, the Servicer or the Performance Guarantor shall assert that it is not bound by, or otherwise seek to terminate or disaffirm its obligations under, the Performance Guaranty, or shall otherwise claim that the Performance Guaranty is in any way invalid or unenforceable; (xii) either (A) any Basic Document shall, in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower, the Seller, DFC (in its capacity as Servicer or Collateral Custodian) or the Performance Guarantor or (B) any of the Borrower, the Seller, DFC (in its capacity as Servicer or Collateral Custodian) or the Performance Guarantor shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability of any Basic Document; (xiii) any Servicer Termination Event (other than a Servicer Termination Event of the type specified in subsections (l), (m), (n) or (o) of Section 7.13) occurs; (xiv) (A) failure on the part of the Borrower (x) to establish one or more Hedge Transactions in fulfillment of the requirements set forth in Section 6.03 within thirty days of the date on which the Initial Loan is made hereunder or (y) at any time thereafter to both (1) maintain one or more Hedge Transactions having notional amounts which, in the aggregate, equal at least 100% of the Loans Outstanding and (2) cause an amount that is at least equal to the Hedge Reserve Account Required Amount to be on deposit in the Hedge Reserve Account; (B) failure on the part of the Borrower within thirty days of receiving direction from the Administrative Agent pursuant to Section 6.03(c) to enter into one or more Hedge Transactions, increase the notional amount of one or more Hedge Transactions, or decrease the notional amount of one or more Hedge Transactions, in each case as directed by the Administrative Agent and in the manner set forth in such Section 6.03(c); or (C) any other failure on the part of the Borrower to maintain one or more Hedge Transactions in fulfillment of the requirements set forth in Section 6.03; 124
Administrative Agent may, or at the direction of the Required Lenders, shall, exercise in respect of the Collateral the following remedial actions, in addition to any and all other rights and remedies otherwise available to it, including rights available hereunder and all of the rights and remedies of a secured party upon default under the UCC (such rights and remedies to be cumulative and nonexclusive): (a) The Administrative Agent may, without notice to the Borrower except as required by law and at any time or from time to time, charge, set-off and otherwise apply all or any part of the Loans Outstanding, any Interest accrued thereon and/or any other amount due and owing to any Secured Party against amounts payable to the Borrower from the Collection Account or any part of such account in accordance with the priorities required by Section 2.06. (b) The Administrative Agent may take any action permitted under the Basic Documents, including, without limitation, delivering any shifting control or similar notice under the Control Agreement. (c) Consistent with the rights and remedies of a secured party under the UCC (and except as otherwise required by the UCC), the Administrative Agent may, on behalf of itself and the Lenders and without notice except as specified below, solicit and accept bids for and sell the Collateral or any part of the Collateral in one or more parcels at public or private sale, at any exchange, broker's board or at the Administrative Agent's offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Administrative Agent may deem commercially reasonable. The Borrower agrees that, to the extent notice of sale shall be required by law, at least ten Business Days' notice to the Borrower of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Administrative Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed for such sale, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Every such sale shall operate to divest all right, title, interest, claim and demand whatsoever of the Borrower in and to the Collateral so sold, and shall be a perpetual bar, both at law and in equity, against the Borrower or any Person claiming the Collateral sold through the Borrower and its successors or assigns. (d) Upon the completion of any sale under Section 8.02(c), the Borrower will deliver or cause to be delivered all of the Collateral sold to the purchaser or purchasers at such sale on the date of sale, or within a reasonable time thereafter if it shall be impractical to make immediate delivery, but in any event full title and right of possession to such property shall pass to such purchaser or purchasers forthwith upon the completion of such sale. Nevertheless, if so requested by the Administrative Agent or by any purchaser, the Borrower shall confirm any such sale or transfer by executing and delivering to such purchaser all proper instruments of conveyance and transfer and release as may be designated in any such request. 126
Collateral or a valid and enforceable first priority perfected security interest in any or all of the Collateral; (v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to the Collateral, whether at the time of a Loan or at any subsequent time and as required by the Basic Documents; (vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the related Obligor) of an Obligor to the payment of any Receivable comprising a portion of the Collateral which is, or is purported to be, an Eligible Receivable (including a defense based on the Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale or financing of the Financed Vehicle related to such Receivable (other than as a result of the bankruptcy or insolvency of the related Obligor); (vii) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with any Contract or the related Financed Vehicle; (viii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including sales, excise or personal property taxes payable in connection with the Collateral; (ix) any repayment or disgorgement by any Agent or a Secured Party of any amount previously distributed in reduction of the Loans Outstanding or payment of Interest, any other Obligation or any other amount due hereunder or under any Hedging Agreement, in each case which amount such entity believes in good faith is required to be repaid or disgorged; (x) any litigation, proceeding or investigation relating to arising from the Basic Documents, the transactions contemplated hereby and thereby, the use of proceeds of the Loans or any other investigation, litigation or proceeding relating to the Borrower in which any Indemnified Party becomes involved as a result of any of the transactions contemplated by the Basic Documents; (xi) the use of the proceeds of any Loan; (xii) any failure by the Borrower to give reasonably equivalent value to the Seller in consideration for the transfer by the Seller to the Borrower of any of the Receivables and the related Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including any provision of the Bankruptcy Code; (xiii) the commingling by the Borrower of any Collections with other funds; 129
(xiv) any claim brought by any Person arising from any activity by the Borrower in servicing, administering or collecting any Receivable; (xv) if JPMorgan Chase Bank, N.A. is not the Lockbox Bank, the failure of the Lockbox Bank to remit any amounts or items of payment held in the Collection Account or the Lockbox Account pursuant to the instructions of the Administrative Agent given in accordance with this Agreement or the other Basic Documents, whether by reason or the exercise of setoff rights or otherwise; (xvi) all reasonable and documented fees, costs and expenses (including reasonable legal fees and expenses) incurred by any Lender, their respective Credit Providers or the Administrative Agent in connection with any amendments or supplements or waivers or consents (including review and analysis thereof) with respect to the Basic Documents or any other document or instrument delivered pursuant hereto or thereto (whether or not the same is finally agreed to) if the same is requested by the Borrower, or is required or necessary under the Basic Documents; or (xvii) any and all Sanctions against, and all reasonable costs and expenses (including attorneys' fees and disbursements) incurred in connection with the defense thereof by the Administrative Agent or any Lender or Agent as a result of funding all or any portion of the Loans or the acceptance of payments or of Collateral due under the Basic Documents. Notwithstanding the foregoing, in no event shall any Indemnified Party be indemnified against any Indemnified Amounts to the extent such Indemnified Amounts are or result from (A) Excluded Taxes, (B) non-payment by any Obligor of any amount that is due and payable under the related Receivable, or (C) any loss in value of any Financed Vehicle or Permitted Investments for reasons that are not caused by the Borrower. For the avoidance of doubt, the terms of this Section 9.01 shall not apply to any indemnification relating to Taxes, which will be governed by the terms of Section 2.11. Any amounts subject to the indemnification provisions of this Section shall be paid by the Borrower solely pursuant to the provisions of Section 2.06 in the order and priority set forth therein not later than the first Payment Date following written demand therefor. 130
(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assignee confirms that it has received a copy of this Agreement, together with copies of such financial statements and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iii) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (iv) such assigning Lender and such assignee confirm that such assignee is an Eligible Assignee; (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to such agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (c) The Administrative Agent shall maintain at its address referred to herein a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names, addresses and Commitment of each Lender and the Principal Xxxxxx (and stated interest) of each Loan made by each Lender from time to time (the "Lender Register"). The entries in the Lender Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower and the Lenders shall treat each Person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement. The Lender Register shall be available for inspection by any Agent or Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Subject to the provisions of Section 11.01(a), upon its receipt of an Assignment and Acceptance executed by an assigning Xxxxxx and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed, accept such Assignment and Acceptance, and the Administrative Agent shall then record the information contained therein in the Lender Register. (e) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and each Loan owned by it); provided, that (i) such Lender's obligations under this Agreement (including its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (iv) the Borrower provides its prior written consent to the sale of such participation (such consent of the Borrower not to be unreasonably withheld). Notwithstanding anything herein to the contrary, each participant shall have the rights of a Lender (including any right to receive 139
payment) under Sections 2.10 and 2.11; provided, that no participant shall be entitled to receive payment under either such Section in excess of the amount that would have been payable under such Section by the Borrower to the Lender granting its participation had such participation not been granted, and no Lender granting a participation shall be entitled to receive payment under either such Section in an amount which exceeds the sum of (i) the amount to which such Lender is entitled under such Section with respect to any portion of any Loan owned by such Lender which is not subject to any participation plus (ii) the aggregate amount to which its participants are entitled under such Sections with respect to the amounts of their respective participations. With respect to any participation described in this Section, the participant's rights as set forth in the agreement between such participant and the applicable Lender to agree to or to restrict such Xxxxxx's ability to agree to any modification, waiver or release of any of the terms of this Agreement or to exercise or refrain from exercising any powers or rights which such Lender may have under or in respect of this Agreement shall be limited to the right to consent to any of the matters set forth in Section 11.01. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant's interest in the obligations under this Agreement (the "Participant Register"); provided, that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any Commitment or Loan or its other obligations under the Agreement) to any person except to (A) the Administrative Agent and (B) the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. (f) Each Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information, including Confidential Information, relating to the Borrower furnished to such Lender by or on behalf of the Borrower. (g) Nothing herein shall prohibit any Lender from (i) pledging or assigning as Collateral any of its rights under this Agreement to any Federal Reserve Bank or any other Governmental Authority in accordance with Applicable Law or (ii) pledging or granting a security interest in all or any portion of its rights (including payments to it under this Agreement and the other Basic Documents) under this Agreement to a collateral trustee in order to comply with Rule 3a-7 under the Investment Company Act; provided, that in each case, (A) any such pledge or Collateral assignment may be made without compliance with Section 11.01(a) or 11.01(b) and (B) no such pledge or grant of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto. 140
under a separate confidentiality agreement between the assigning Lender and such prospective participant or assignee pursuant to which such prospective participant or assignee shall agree to the provisions set forth in this Article. (b) Each of the Administrative Agent, each Agent and each Lender acknowledges and agrees that any Confidential Information provided to it, in whatever form, is the sole property of the Borrower or DFC, as applicable. Neither such Person nor its Affiliates or Advisors shall use any of the Confidential Information now or hereafter received or obtained from or through the Borrower, DFC or any of their respective Affiliates for any purpose other than for purposes of engaging in, or as otherwise contemplated by, the transactions contemplated by the Basic Documents. (c) If the Administrative Agent, any Agent, a Lender or any of their respective Affiliates or Advisors are legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any Confidential Information, the related entity shall, to the extent permitted by law, promptly notify the Borrower and DFC in writing of such requirement so that the Borrower and/or DFC, at their sole cost and expense, may seek a protective order or other appropriate remedy and/or waive compliance with the provisions hereof. The Administrative Agent, each Agent and each Lender or any of their respective Affiliates or Advisors agree to use its reasonable efforts, upon the written request of the Borrower or DFC, as applicable, to obtain or assist the Borrower or DFC, as applicable, in obtaining any such protective order. Failing the reasonably timely entry of a protective order or the reasonably timely receipt of a waiver hereunder, it may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that in the opinion of such party's counsel, it is legally compelled to disclose. (d) Notwithstanding the foregoing, it is understood that the Administrative Agent, each Agent and each Lender or its Affiliates may be required to disclose (and may so disclose, without liability hereunder, provided that it complies with the following sentence) the Confidential Information or portions thereof (i) at the request of a bank examiner or other regulatory authority or in connection with an examination of it or its Affiliates by a bank examiner or other regulatory authority, including in connection with the regulator compliance policy of Administrative Agent, any Agent or any Lender, (ii) to any nationally recognized statistical rating organization (within the meaning of the Exchange Act) (an "NRSRO") either (A) in compliance with Rule 17g-5 under the Exchange Act (or any similar rule or regulation in any relevant jurisdiction) or (B) in connection with the rating or reaffirmation of the rating of the Commercial Paper Notes, each of which shall be informed by Administrative Agent, such Agent, such Lender or such Affiliate, as applicable, of the confidential nature of the Confidential Information and shall have agreed to keep such information confidential, or (iii) to any collateral trustee appointed by such Lender to comply with Rule 3a-7 under the Investment Company Act; provided, that such collateral trustee is informed of the confidential nature of such information and such collateral trustee agrees in writing to keep such Confidential Information subject to an agreement with substantially similar terms as provided herein. (e) It is understood and agreed that no failure or delay by the Borrower, the Servicer, the Backup Servicer, the Collateral Custodian, the Administrative Agent, the Account Bank, each Agent or any Lender in exercising any right, power or privilege hereunder shall operate as a 142
[Loan Agreement] THE SERVICER AND COLLATERAL CUSTODIAN: DRIVEWAY FINANCE CORPORATION By: Name: Xxxxxxx Xxxxx Title: President Address for Notices: Driveway Finance Corporation 000 X. Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxx 00000-0000 Attention: Xxxxxxx Xxxxx E-mail: xxxxxxxxxxxx@xxxxxx.xxx with a copy to: Lithia Motors, Inc. Legal Department 000 X. Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxx 00000-0000 Attention: Xxxxxx Xxxxxx E-mail: xxxxxxx@xxxxxx.xxx
[Loan Agreement] THE ADMINISTRATIVE AGENT AND ACCOUNT BANK: JPMORGAN CHASE BANK, N.A. By: Name: Title: Address for Notices: JPMorgan Chase Bank, X.X. Xxxxx Tower, 7th Floor 00 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxx XX0-0000 Xxxxxxx, Xxxxxxxx 00000 Attention: Asset-Backed Securities Conduit Group Facsimile No.: (000) 000-0000 Telephone: (000) 000-0000 e-mail: xxxxxxxxx.x.xxxxxx@xxxxxxxx.xxx xxx.xxxxxxxx.xxxx@xxxxxxxx.xxx xxx.xxxxxxxxxx@xxxxxxxx.xxx
[Loan Agreement] CONDUIT LENDER: CHARIOT FUNDING LLC By: JPMORGAN CHASE BANK, N.A., as its attorney-in-fact By: Name: Title: Address for Notices: Chariot Funding LLC c/o JPMorgan Chase Bank, X.X. Xxxxx Tower, 7th Floor 00 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxx XX0-0000 Xxxxxxx, Xxxxxxxx 00000 Attention: Asset-Backed Securities Conduit Group Facsimile No.: (000) 000-0000 Telephone: (000) 000-0000 e-mail: xxxxxxxxx.x.xxxxxx@xxxxxxxx.xxx xxx.xxxxxxxx.xxxx@xxxxxxxx.xxx xxx.xxxxxxxxxx@xxxxxxxx.xxx
[Loan Agreement] COMMITTED LENDER: JPMORGAN CHASE BANK, N.A. By: Name: Title: Address for Notices: Chariot Funding LLC c/o JPMorgan Chase Bank, X.X. Xxxxx Tower, 7th Floor 00 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxx XX0-0000 Xxxxxxx, Xxxxxxxx 00000 Attention: Asset-Backed Securities Conduit Group Facsimile No.: (000) 000-0000 Telephone: (000) 000-0000 e-mail: xxxxxxxxx.x.xxxxxx@xxxxxxxx.xxx xxx.xxxxxxxx.xxxx@xxxxxxxx.xxx xxx.xxxxxxxxxx@xxxxxxxx.xxx JPMORGAN AGENT: JPMORGAN CHASE BANK, N.A. By: Name: Title: Address for Notices: JPMorgan Chase Bank, X.X. Xxxxx Tower, 7th Floor 00 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxx XX0-0000 Xxxxxxx, Xxxxxxxx 00000 Attention: Asset-Backed Securities Conduit Group Facsimile No.: (000) 000-0000 Telephone: (000) 000-0000 e-mail: xxxxxxxxx.x.xxxxxx@xxxxxxxx.xxx xxx.xxxxxxxx.xxxx@xxxxxxxx.xxx xxx.xxxxxxxxxx@xxxxxxxx.xxx
[Loan Agreement] CITIBANK AGENT AND COMMITTED LENDER: By: Name: Title: Address for Notices: Citi Global Loans / Conduit Operations 0 Xxxxx Xxx, Xxx 0 Xxxxx 0 Xxx Xxxxxx, XX 00000 Telephone: (000) 000-0000 Email: xxxxxxxxxxxxxxxxx@xxxx.xxx For all notices except monthly and periodic reporting, borrowing base certificates, Loans and repayments and financials: Citi β Global ABS Financing & Securitization 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (000) 000-0000 Email: XxxxXXXXxxxxxxXxxxxxx@xxxx.xxx and CITIBANK, N.A.
[Loan Agreement] CONDUIT LENDER: CAFCO, LLC, as a Conduit Lender By: Citibank, N.A., as its attorney in fact By: Name: Title: Address for Notices: Citi Global Loans / Conduit Operations 0 Xxxxx Xxx, Xxx 0 Xxxxx 0 Xxx Xxxxxx, XX 00000 Telephone: (000) 000-0000 Email: xxxxxxxxxxxxxxxxx@xxxx.xxx For all notices except monthly and periodic reporting, borrowing base certificates, Loans and repayments and financials: Citi β Global ABS Financing & Securitization 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (000) 000-0000 Email: XxxxXXXXxxxxxxXxxxxxx@xxxx.xxx
[Loan Agreement] CONDUIT LENDER: CHARTA, LLC, as a Conduit Lender By: Citibank, N.A., as its attorney in fact By: Name: Title: Address for Notices: Citi Global Loans / Conduit Operations 0 Xxxxx Xxx, Xxx 0 Xxxxx 0 Xxx Xxxxxx, XX 00000 Telephone: (000) 000-0000 Email: xxxxxxxxxxxxxxxxx@xxxx.xxx For all notices except monthly and periodic reporting, borrowing base certificates, Loans and repayments and financials: Citi β Global ABS Financing & Securitization 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (000) 000-0000 Email: XxxxXXXXxxxxxxXxxxxxx@xxxx.xxx
[Loan Agreement] CONDUIT LENDER: XXXXXX, LLC, as a Conduit Lender By: Citibank, N.A., as its attorney in fact By: Name: Title: Address for Notices: Citi Global Loans / Conduit Operations 0 Xxxxx Xxx, Xxx 0 Xxxxx 0 Xxx Xxxxxx, XX 00000 Telephone: (000) 000-0000 Email: xxxxxxxxxxxxxxxxx@xxxx.xxx For all notices except monthly and periodic reporting, borrowing base certificates, Loans and repayments and financials: Citi β Global ABS Financing & Securitization 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (000) 000-0000 Email: XxxxXXXXxxxxxxXxxxxxx@xxxx.xxx
[Loan Agreement] CONDUIT LENDER: CRC FUNDING, LLC, as a Conduit Lender By: Citibank, N.A., as its attorney in fact By: Name: Title: Address for Notices: Citi Global Loans / Conduit Operations 0 Xxxxx Xxx, Xxx 0 Xxxxx 0 Xxx Xxxxxx, XX 00000 Telephone: (000) 000-0000 Email: xxxxxxxxxxxxxxxxx@xxxx.xxx For all notices except monthly and periodic reporting, borrowing base certificates, Loans and repayments and financials: Citi β Global ABS Financing & Securitization 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (000) 000-0000 Email: XxxxXXXXxxxxxxXxxxxxx@xxxx.xxx
SA-2-1 Commitment: $1,000,000,000 Agent: Mandatory Commitment: JPMorgan Chase Bank, N.A. $750,000,000 Lender Group: Committed Lender: JPMorgan Chase Bank, N.A. Address for Notices: JPMorgan Address for Notices and Investing Office: JPMorgan Chase Bank, X.X. Xxxxx Tower, 7th Floor 00 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxx XX0-0000 Xxxxxxx, Xxxxxxxx 00000 Attention: Asset-Backed Securities Conduit Group Facsimile No.: (000) 000-0000 Telephone: (000) 000-0000 e-mail: xxxxxxxxx.x.xxxxxx@xxxxxxxx.xxx xxx.xxxxxxxx.xxxx@xxxxxxxx.xxx xxx.xxxxxxxxxx@xxxxxxxx.xxx JPMorgan Chase Bank, X.X. Xxxxx Tower, 7th Floor 00 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxx XX0-0000 Xxxxxxx, Xxxxxxxx 00000 Attention: Asset-Backed Securities Conduit Group Facsimile No.: (000) 000-0000 Telephone: (000) 000-0000 e-mail: xxxxxxxxx.x.xxxxxx@xxxxxxxx.xxx xxx.xxxxxxxx.xxxx@xxxxxxxx.xxx xxx.xxxxxxxxxx@xxxxxxxx.xxx SCHEDULE A-1 LENDER SUPPLEMENT (JPMORGAN LENDER GROUP)
SA-2-2 Account Title: JPMCB β ABF Bank Funded Deals Bank Name: JPMorgan Chase Bank, N.A. ABA/Routing: 000000000 Account Number: 691286527 Re: SCFC Business Services LLC Address for Notices and Investing Office: Chariot Funding LLC c/o JPMorgan Chase Bank, X.X. Xxxxx Tower, 7th Floor 00 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxx XX0-0000 Xxxxxxx, Xxxxxxxx 00000 Attention: Asset-Backed Securities Conduit Group Facsimile No.: (000) 000-0000 Telephone: (000) 000-0000 e-mail: xxxxxxxxx.x.xxxxxx@xxxxxxxx.xxx xxx.xxxxxxxx.xxxx@xxxxxxxx.xxx xxx.xxxxxxxxxx@xxxxxxxx.xxx Wire Information: Conduit Lender: Account Title: JPMCB ABS Conduit Clearing Account Bank Name: JPMorgan Chase Bank, N.A. ABA/Routing: 000000000 Account Number: 626305127 Re: SCFC Business Services LLC Wire Information: Chariot Funding LLC
SA-2-3 "CP Rate": With respect to any day in any Interest Period (or portion thereof), means the per annum rate calculated to yield the "weighted average cost" (as defined below) for such Interest Period (or portion thereof) in respect to Commercial Paper Notes issued by such Conduit Lender on or after March 1, 2019; provided, that if any component of such rate is a discount rate, in calculating the CP Rate for such Interest Period (or portion thereof), the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum shall be used in calculating such component. As used in this definition, "weighted average cost" for any Interest Period (or portion thereof) means the sum (without duplication) of (i) the actual interest accrued during such Interest Period (or portion thereof) on outstanding Commercial Paper Notes issued by such Conduit Lender on or after March 1, 2019 (excluding any Commercial Paper Notes issued to and held by JPMorgan Chase Bank or any affiliate thereof, other than such Commercial Paper Notes held as part of the market making activities of Conduit Lender's Commercial Paper Notes dealer), (ii) the commissions of placement agents and dealers in respect of such Commercial Paper Notes, (iii) any note issuance costs attributable to such Commercial Paper Notes not constituting dealer fees or commissions, expressed as an annualized percentage of the aggregate principal component thereof, (iv) the actual interest accrued during such Interest Period (or portion thereof) on other borrowings by such Conduit Lender (as determined by such Conduit Lender or an Affiliate thereof), including to fund small or odd dollar amounts that are not easily accommodated in the commercial paper market, which may include loans from such Conduit Lender's agent or its affiliates (such interest rate not to exceed, on any day, the Federal Funds Effective Rate in effect on such day plus 0.50%), and (v) incremental carrying costs incurred with respect to Commercial Paper Notes maturing on dates other than those on which corresponding funds are received by such Conduit Lender, minus any accrual of income net of expenses received from investment of collections received under all receivable purchase facilities funded substantially with Commercial Paper Notes.
SA-2-2 Address for Notices and Investing Office: Citi β Global ABS Financing & Securitization 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (000) 000-0000 Email: XxxxXXXXxxxxxxXxxxxxx@xxxx.xxx and Citi Global Loans / Conduit Operations 0 Xxxxx Xxx, Xxx 0 Xxxxx 0 Xxx Xxxxxx, XX 00000 Telephone: (000) 000-0000 Email: xxxxxxxxxxxxxxxxx@xxxx.xxx
SA-2-3 Conduit Lender(s): Wire Information: CAFCO, LLC CHARTA, LLC XXXXXX, LLC CRC Funding, LLC Citibank, N.A. Bank Name: Citibank, N.A. ABA/Routing No.: 000-000-000 Account Name: SSB Account No.: 4078-4524 Attention: Loan Admin. Reference: SCFC Business Services LLC CAFCO LLC Bank Name: Citibank, N.A. ABA/Routing No.: 000-000-000 Account Name: CAFCO REDEMPTION A/C Account No.: 4063-6695 Attention: Loan Admin. Reference: SCFC Business Services LLC CHARTA LLC Bank Name: Citibank, N.A. ABA/Routing No.: 000-000-000 Account Name: CHARTA REDEMPTION A/C Account No.: 4073-7402 Attention: Loan Admin. Reference: SCFC Business Services LLC XXXXXX LLC Bank Name: Citibank, N.A. ABA/Routing No.: 000-000-000 Account Name: XXXXXX REDEMPTION A/C Account No.: 4063-6636 Attention: Loan Admin. Reference: SCFC Business Services LLC CRC Funding LLC** Bank Name: Citibank, N.A. ABA/Routing No.: 000-000-000 Account Name: CRC REDEMPTION A/C Account No.: 4051-7805 Attention: Loan Admin. Reference: SCFC Business Services LLC ** To initially receive all wires
SA-2-4 Address for Notices and Investing Office: Citi Global Loans / Conduit Operations 0 Xxxxx Xxx, Xxx 0 Xxxxx 0 Xxx Xxxxxx, XX 00000 Telephone: (000) 000-0000 Email: xxxxxxxxxxxxxxxxx@xxxx.xxx; xxx.xxx.xx@xxxx.xxx For all notices except monthly and periodic reporting, borrowing base certificates, Loans and repayments and financials: Citi β Global ABS Financing & Securitization 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (000) 000-0000 Email: XxxxXXXXxxxxxxXxxxxxx@xxxx.xxx
SA-2-5 Wire Information: Citibank, N.A. Bank Name: Citibank, N.A. ABA/Routing No.: 000-000-000 Account Name: SSB Account No.: 4078-4524 Attention: Loan Admin. Reference: SCFC Business Services LLC CAFCO LLC Bank Name: Citibank, N.A. ABA/Routing No.: 000-000-000 Account Name: CAFCO REDEMPTION A/C Account No.: 4063-6695 Attention: Loan Admin. Reference: SCFC Business Services LLC CHARTA LLC Bank Name: Citibank, N.A. ABA/Routing No.: 000-000-000 Account Name: CHARTA REDEMPTION A/C Account No.: 4073-7402 Attention: Loan Admin. Reference: SCFC Business Services LLC XXXXXX LLC Bank Name: Citibank, N.A. ABA/Routing No.: 000-000-000 Account Name: XXXXXX REDEMPTION A/C Account No.: 4063-6636 Attention: Loan Admin. Reference: SCFC Business Services LLC CRC Funding LLC** Bank Name: Citibank, N.A. ABA/Routing No.: 000-000-000 Account Name: CRC REDEMPTION A/C Account No.: 4051-7805 Attention: Loan Admin. Reference: SCFC Business Services LLC ** To initially receive all wires
SA-2-6 "CP Rate": With respect to each Conduit Lender for any day during any Interest Period, the per annum rate equivalent to the weighted average of the per annum rates paid or payable by such Conduit Lender from time to time as interest on or otherwise (by means of interest rate xxxxxx or otherwise) that are allocated on a fair and equitable basis, in whole or in part, by its Lender Group Agent (on behalf of such Conduit Lender), which rates shall reflect and give effect to (in each case, to the extent such costs are allocated, in whole or in part, to such Conduit Lender by the related Lender Group Agent (on behalf of such Conduit Lender) (a) the commissions of placement agents and dealers in respect of such commercial paper notes, (b) all reasonable costs and expenses of any issuing and paying agent or other person responsible for the administration of such Conduit Xxxxxxβs commercial paper programs in connection with the preparation, completion, issuance, delivery or payment of such commercial paper, and (c) any other costs, fees and expenses associated with the funding or maintenance of the applicable portion of the Loans Outstanding by such Conduit Lender, including any liquidity support, credit enhancement, government sponsored funding programs (including the Federal Reserve Bankβs Commercial Paper Funding Facility), or any other borrowings by such Conduit Lender including, without limitation, borrowings to fund small or odd dollar amounts that are not easily accommodated in the commercial paper market; provided, however, that if any component of such rate is a discount rate, in calculating the CP Rate, the related Lender Group Agent for such Conduit Lender shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum.
SCHEDULE B ELIGIBLE RECEIVABLE CRITERIA An "Eligible Receivable" means a Receivable as to which all of the following conditions are satisfied: 1. which was originated by DFC (i) under an existing Dealer Agreement or (ii) via the Online Platform more than seven (7) days prior to the sale, assignment and transfer of such Receivable by the Seller to the Borrower pursuant to the Purchase Agreement; 2. which at the time of underwriting, the related Obligor provided as its most recent billing address an address located in a State of the United States; 3. for which the related Obligor is not (a) an employee of DFC or Lithia, (b) a fleet customer or (cb) the U.S. government or any State or any agency, department or instrumentality of the U.S. government or any State or other government entity; 4. which has an original term to maturity of at least 12 months but not more than 84 months; 5. which has a Principal Balance of at least $500 but not more than $150,000; 6. which constitutes an 'account,' '"tangible chattel paper,' 'electronic chattel paper,' or a 'payment intangible' under and as defined in Article 9 of the UCC as then in effect in the relevant State; 7. which is payable in U.S. Dollars; 8. which arises under a Contract which (a) has been properly executed by the parties thereto, (b) represents the genuine, legal, valid and binding payment obligation in writing of the Obligor, in full force and effect, enforceable by the holder thereof in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights generally, and (c) contains customary and enforceable provisions so as to render the rights and remedies of the holder thereof against the property subject to such Contract adequate for the realization of the benefits provided thereby; 9. which is not subject to any right of rescission, cancellation, set-off, claim, counterclaim or defense (including the defense of usury) of the Obligor or any proceedings pending or, to the best of the Borrower's knowledge threatened, wherein the Obligor or any Governmental Authority has alleged the related Contract is illegal or unenforceable; 10. which does not require the Obligor to consent to or receive notice of the transfer, sale or assignment of the rights and duties of DFC thereunder; SB-1
11. with respect to which the related Contract requires the Obligor to cause the related Financed Vehicle to be covered by an individual physical damage insurance policy featuring comprehensive and collision coverage, in accordance with the Credit and Collection Policy; 12. which is secured by a valid, subsisting and enforceable first priority perfected security interest, free and clear of any Lien, in favor of the Borrower in the related Financed Vehicle with respect to which all filings have been made, which security interest has been validly assigned by the Borrower to the Administrative Agent and with respect to which all filings necessary in any jurisdiction to give the Administrative Agent a first priority perfected security interest in such Receivable have been made; 13. none of Lithia, DFC or any of their Affiliates have given or loaned to any Obligor with respect to a Receivable, directly or indirectly, any Scheduled Payment or other amounts due or to become due under such Receivable in order to make the Receivable current; 14. to which the Borrower has good and indefeasible title to and was the sole owner of such Receivable, free of Liens (other than Permitted Liens) of others and to which the Seller had the full right to transfer, sell and encumber such Receivable free and clear of any Liens other than the Liens in favor of the Administrative Agent on behalf of the Secured Parties; 15. which shall have complied with, at the time of its underwriting, and shall remain in compliance with, all Requirements of Law, including all consumer protection and usury laws and which, to the best of the Borrower's knowledge, was originated without fraud or misrepresentation; 16. which was originated in the ordinary course of business of the Seller and in accordance with the Credit and Collection Policy; 17. either: (a) with respect to Receivables that are 'tangible chattel paper' under and as defined in Article 9 of the UCC as then in effect in the relevant State, (i) there is only one original executed copy of each Contract, (ii) such Contract is in the possession of the Collateral Custodian, (iii) such Contract has not been sold, transferred, assigned, or pledged by DFC to any Person other than the Borrower, and (iv) such Contract has not been stamped or otherwise marked to show any interest of any Person other than the Borrower; or (b) with respect to Receivables that are 'electronic chattel paper' under and as defined in Article 9 of the UCC as then in effect in the relevant State, (i) there is only one authoritative copy of each Contract within the meaning of Article 9 of the UCC as then in effect in the relevant State, (ii) such authoritative copy is unique, identifiable, and unalterable (other than with the participation of the Collateral Custodian in the case of an addition or amendment of an identified assignee and other than a revision that is readily identifiable as an authorized or unauthorized revision), (iii) such authoritative copy has been communicated to and is maintained by or on behalf of the Collateral Custodian solely for the benefit SB-2
of the Secured Parties, (iv) each copy of the authoritative copy and any copy of a copy are readily identifiable as copies that are not the authoritative copy, (v) the related Receivable was established in a manner such that all copies or revisions that add or change an identified assignee of the authoritative copy of such Contract must be made with the participation of the Collateral Custodian, (vi) the related Receivable was established in a manner such that all revisions of the authoritative copy of the Contract is readily identifiable as an authorized or unauthorized revision, and (vii) such authoritative copy communicated to the Collateral Custodian has no marks or notations indicating that it has been pledged, assigned, or otherwise conveyed to any person such Contract has not been sold, transferred, assigned or pledged by DFC to any Person other than the Borrower; 18. with respect to which the related Obligor is (a) not deceased and (b) not the subject of a pending bankruptcy proceeding; 19. which (a) at the time such Receivable was acquired by the Borrower was not more than 30 days past due or a Defaulted Receivable and (b) is not a Defaulted Receivable or a Delinquent Receivable; 20. which at the time of underwriting did not have a Loan-to-Value Ratio of greater than (a) in the case of a Receivable which has a Principal Balance that is less than or equal to $75,000, 160% or (b) otherwise, 140%; 21. which at the time of underwriting had a FICO Score (and was not a Receivable that does not have a FICO Score or had a FICO Score of zero) of (a) in the case of a Receivable which has a Principal Balance that is less than or equal to $75,000, more than or equal to 450, (b) in the case of a Receivable which has a Principal Balance that is greater than $75,000 but less than or equal to $100,000, more than 660, or (c) in the case of a Receivable which has a Principal Balance that is greater than $100,000, more than 740; 22. with respect to which the Payment-to-Income Ratio does not exceed (x) in the case of a Receivable which has a Principal Balance that is less than or equal to $75,000, 20% or (y) otherwise, 15%; 23. with respect to which the Debt-to-Income Ratio does not exceed 60%; 24. with respect to which (a) the related Contract relates to the retail purchase of a motor vehicle, (b) the portion of a payment allocable to interest and the portion allocable to principal under such Contract are determined in accordance with the Simple Interest Method, (c) such Contract provides for a fixed interest rate and level monthly payments (provided, that the payments in the first and last months of the Receivable may be minimally different from the level payment), and (d) the monthly payments under such Contract fully amortize the amount financed and yield interest at the related APR over its original term; 25. with respect to which the related Contract (a) was underwritten by DFC in accordance with the Credit and Collection Policy in effect at the time of underwriting of such Contract, (b) satisfied in all material respects the requirements of the Credit and Collection SB-3
Policy in effect at the time of underwriting of such Contract, and (c) satisfied all Applicable Law in effect at the time of origination; 26. which the related Contract has not been amended, modified, waived, extended or altered by the Servicer in any respect except in accordance with the Credit and Collection Policy; 27. with respect to which the information set forth in the Schedule of Receivables is true and correct in all material respects as of the opening of business on the related Cutoff Date; 28. with respect to which DFC used no selection procedures that identified such Receivable as being less desirable or valuable than other comparable motor vehicle loans originated or acquired by DFC that otherwise meet the eligibility criteria; and 29. with respect to which no Deferral has been granted, unless all Scheduled Payments or portions thereof that that were deferred pursuant to such Deferral were paid by the related Obligor subsequent to the granting of such Deferral. SB-4
SCHEDULE C SCHEDULE OF RECEIVABLES (Original delivered to the Administrative Agent) SC-1
SD-1 9070 3 NJ City LP 0772 8 0000 Xxxxxx Xx. XX Xx Xxxxx XX 0000 3 F7 0772 8 PC 811 Route 33 8700 Mercury Lane State Pico Xxxxxx Freehold CA 9066 0 NJ 2A 0772 8 000 X. Xxxx Xx. F2 Feura Xxxx NY ZIP 1206 7 M1 811 Route 33 OPM# 000738 RM PG 00 Xxxxx Xxxxxxxxx Xxx. Route 9W South Building ID Port Xxxx Xxxxxx NY Freehold 1246 6 NJ 2 0883 1 0000 Xxx Xxxx Xxxx. NJ Tampa FL 3361 0 M2 0772 8 5 00 Xxxxx Xxxxxxxxx Xxx. 0000 Xxx Xxxx Xxxx. F1 Tampa Monroe FL 3361 0 NJ Address BT 0000 0 000 Xxxxxxx Xxxx Xx. F3 Fullerton CA 811 Route 33 OPM# 000738 RM 9283 3 CR 811 Route 33 OPM# 000738 RM 1 00000 Xxxxxx Xxxxx 0000 X 00xx Xxx. SCHEDULE D LOCATION OF RECEIVABLE FILES Driveway Finance Corporation 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx, XX 00000 Iron Mountain Information Management, LLC, at the following locations: Spokane Cerritos WA Freehold 9922 4 CA Freehold
SCHEDULE E SCHEDULE OF DOCUMENTS 1. Loan Agreement, dated as of the Closing Date, by and among SCFC Business Services LLC, as borrower (the "Borrower"), Driveway Finance Corporation ("DFC"), as servicer (in such capacity, the "Servicer") and as collateral custodian for the Secured Parties (as defined therein), the Lenders from time to time parties thereto, the Agents for the Lender Groups (as defined therein) from time to time parties thereto (the "Agents"), and JPMorgan Chase Bank, N.A., as administrative agent for the Lenders and the Agents (the "Administrative Agent") and as account bank. 2. Purchase Agreement, dated as of the Closing Date, between DFC and the Borrower. 3. Escrow and Control Agreement, dated as of the Closing Date, among the Borrower, JPMorgan Chase Bank, N.A., as escrow agent and bank, and the Administrative Agent. 4. [Reserved]. 5. Fee Letter, dated as of the Closing Date, among DFC, the Borrower and the Administrative Agent. 6. Performance Guaranty of Lithia Motors, Inc., dated the Closing Date. 7. Power of Attorney, dated as of the Closing Date, from the Borrower to the Administrative Agent. 8. Opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, dated the Closing Date, as to certain true sale matters. 9. Opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, dated the Closing Date, as to certain non-consolidation sale matters. 10. Opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, dated the Closing Date, as to certain security interest matters. 11. Opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, dated the Closing Date, as to certain corporate matters, including an opinion as to the Xxxxxxx Rule. 12. Opinion of Xxxxx Xxxxx LLP, dated the Closing Date, as to certain corporate and security interest matters under Oregon law. 13. Opinion of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx LLP, dated the Closing Date, as to certain matters relating to Lithia Motor, Inc. SF-1
SCHEDULE F FINANCIAL COVENANTS (LITHIA) "Financial Covenants (Lithia)" means each of: (i) as of any date of determination, the ratio for the four consecutive fiscal quarters ending on the last day of the most recently completed fiscal quarter of (a) (1) EBITDAR, minus (2) dividends and other distributions in respect of Equity Interests of the Company or any Subsidiary (except to the extent such dividends or other distributions are paid to the Company or another Subsidiary), minus (3) amounts expended to repurchase Equity Interests from a Person that is not a Loan Party in accordance with clause (z)(ii) of the last sentence of Section 13.4 and equal to the amount in excess of the Equity Interest Repurchase Threshold for such Measurement Period, minus (4) income tax expense to the extent paid in cash, minus (5) an allowance for maintenance capital expenditures in an amount equal to $85,000 for each Dealership location, plus (6) if any Permitted Acquisition has occurred during any Measurement Period, Pro Forma EBITDAR minus rental or lease expense attributable to any new Acquisition Subsidiary or business acquired in connection with such Permitted Acquisition, as applicable, calculated as if the Permitted Acquisition had occurred on the first day of such Measurement Period (it being understood and agreed that Pro Forma EBITDAR minus rental or lease expense may not be included in this calculation to the extent that it results in an annualized increase of more than 10% in Lithia's consolidated EBITDAR minus rental or lease expense prior to such adjustment, unless Xxxxxx provides to the Agent and the Required Lenders the supporting calculations for such adjustment and such other information as they may reasonably request to determine the accuracy of such calculations); to (b) the sum for the applicable Measurement Period of (1) cash interest, plus (2) required principal payments on Indebtedness (excluding principal payments on Indebtedness described in subsection (r) of Section 13.10) plus (3) rental or lease expense, shall not be less than 1.20 to 1.0; and (ii) as of any date of determination, the ratio for Lithia and all Related Subsidiaries of Lithia on a consolidated basis of (a) (1) the then outstanding principal balance of all Funded Debt (minus the sum of (A) unrestricted cash and cash equivalents plus (B) any amounts held in the PR Accounts plus (C) any amounts held in accounts established by Dual Subsidiaries or Silo Subsidiaries as an offset to floorplan notes payable (or interest thereon), minus (2) the sum of the then outstanding principal balance of the New Vehicle Floorplan Loans, New Vehicle Swing Line Loans, Used Vehicle Floorplan Loans, Used Vehicle Swing Line Loans, * - No amendments that are made to, waivers that are granted with respect to, or other modifications that are made with respect to the Lithia Loan Agreement that would change the amount of Funded Debt that is permitted under such Section shall be given effect hereunder unless consented to by the Administrative Agent. SF-1
Service Loaner Vehicle Floorplan Loans, Service Loaner Vehicle Swing Line Loans, principal amount of any Other Service Loaner Floorplan Financing, Funded Debt permitted under subsection (o) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent constituting floor plan financing), Funded Debt permitted under subsection (p) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent constituting floor plan financing), Funded Debt permitted under subsection (r) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent not guaranteed by Lithia) and Funded Debt permitted under subsection (s) of Section 13.10 of the Lithia Loan Agreement* and, without duplication, Funded Debt permitted under subsection (f) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent the underlying indebtedness that is guaranteed constitutes floor plan financing), plus (3) six times rental or lease expense for the Measurement Period ending on such date; to (b) (1) Pro Forma EBITDAR for the Measurement Period ending on such date (it being understood and agreed that Pro Forma EBITDAR minus rental or lease expense may not be included in this calculation to the extent that it results in an annualized increase of more than 10% in Lithiaβs consolidated EBITDAR minus rental or lease expense prior to such adjustment, unless Lithia provides to the Agent and the Required Lenders the supporting calculations for such adjustment and such other information as they may reasonably request to determine the accuracy of such calculations), minus (2) interest expense with respect to the New Vehicle Floorplan Loans, New Vehicle Swing Line Loans, Used Vehicle Floorplan Loans, Used Vehicle Swing Line Loans, Service Loaner Vehicle Floorplan Loans, Service Loaner Vehicle Swing Line Loans and Funded Debt permitted under subsection (o) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent constituting floor plan financing), Funded Debt permitted under subsection (p) of Section 13.10 of the Lithia Loan Agreement* but only to the extent constituting floor plan financing), Funded Debt permitted under subsection (r) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent not guaranteed by Xxxxxx) and Funded Debt permitted under subsection(s) of Section 13.10 of the Lithia Loan Agreement*, in each case for the Measurement Period ending on such date, shall not be greater than 5.75 to 1.0. For purposes of the foregoing Financial Covenants (Lithia), "Lithia Loan Agreement" means the Fourth Amended and Restated Loan Agreement, dated as of April 29, 2021, by and among Lithia, Xxxxxx's subsidiaries that are from time to time parties thereto, each financial institution that is from time to time party thereto as a lender, and U.S. Bank National Association, as agent for the lenders thereunder, as amended in accordance with its terms on or prior to the Amendment No. 9 Effective Date and "Related Subsidiaries of Lithia" means, as of * - No amendments that are made to, waivers that are granted with respect to, or other modifications that are made with respect to the Lithia Loan Agreement that would change the amount of Funded Debt that is permitted under such Section shall be given effect hereunder unless consented to by the Administrative Agent. SF-2
any date of determination, all entities that are defined as "subsidiaries" of Lithia in accordance with the Lithia Loan Agreement as of such date (without giving effect to any amendments to the related definition of "subsidiary" on or after the Closing Date other than those that have been consented to by the Administrative Agent). Furthermore, all capitalized terms used in the foregoing Financial Covenants (Lithia) that are not defined in Section 1.01 of the Agreement have the meanings assigned thereto in the Lithia Loan Agreement, without giving effect to any amendments that are made to, waivers that are granted with respect to, or other modifications that are made with respect to the Lithia Loan Agreement on or after the Closing Date unless the same have been consented to by the Administrative Agent. * - No amendments that are made to, waivers that are granted with respect to, or other modifications that are made with respect to the Lithia Loan Agreement that would change the amount of Funded Debt that is permitted under such Section shall be given effect hereunder unless consented to by the Administrative Agent. SF-3
SCHEDULE G APPROVED BACKUP SERVICERS Vervent Inc. SG-1
EXHIBIT A FORM OF FUNDING REQUEST ____________, 20__ JPMorgan Chase Bank, N.A., as Administrative Agent, Account Bank and as JPMorgan Agent Chase Tower, 7th Floor 00 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxx XX0-0000 Xxxxxxx, Xxxxxxxx 00000 Attention: Asset-Backed Securities Portfolio Management Citibank, N.A., as Citibank Agent [Address] Attention: [__] Re: SCFC Business Services LLC β Loan Agreement Ladies and Gentlemen: The undersigned is a Responsible Officer of SCFC Business Services LLC (the "Borrower") and is authorized to execute and deliver this Funding Request on behalf of the Borrower pursuant to the Amended and Restated Loan Agreement, dated as of December 31, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among the Borrower, Driveway Finance Corporation, as servicer and collateral custodian, the Lenders from time to time party thereto, the Agents for the Lender Groups from time to time parties thereto, and JPMorgan Chase Bank, N.A., as administrative agent and account bank. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Loan Agreement. The Borrower hereby requests that a Loan be made under the Loan Agreement on __________, ____ in the amount of $__________. In connection with the foregoing, the undersigned hereby certifies, on behalf of the Borrower, as follows: 1. As of the date hereof, the Borrowing Base is __________. After giving effect to the requested Loan, the Loans Outstanding will not exceed the Borrowing Base and no Borrowing Base Deficiency will exist. Attached to this Funding Request is a true, complete and correct calculation of such Borrowing Base and all components thereof. A-1
2. As of the date hereof, the Excess Concentration Amount after giving effect to the requested Loan will be: ______ 3. All of the conditions applicable to the requested Loan as set forth in the Loan Agreement have been satisfied as of the date hereof and will remain satisfied to the date of such Loan, including: (a) each of the representations and warranties contained in Article Five of the Loan Agreement are true and correct in all respects on and as of the date hereof, before and after giving effect to the Loan and to the application of the proceeds therefrom as though made on and as of the date hereof; (b) no event has occurred and is continuing, or would result from such Loan or from the application of the proceeds therefrom, which constitutes a Termination Event or Unmatured Termination Event; (c) the Borrower is in material compliance with each of its agreements set forth in the Loan Agreement; (d) no Servicer Termination Event or Unmatured Servicer Termination Event has occurred; and (e) no adverse selection procedures were used by the Borrower with respect to the Receivables which will become a part of the Collateral on the Funding Date. 4. The requested Loan will not, on the Funding Date, exceed the Available Amount and after giving effect to the requested Loan, the Loans Outstanding will not exceed the Borrowing Base. 5. The Hedging Agreement is in effect as required by Section 6.03 of the Loan Agreement. 6. Attached hereto is a true, correct and complete Schedule A to the Purchase Agreement, reflecting all Receivables which will become part of the Collateral on the Funding Date, each Receivable reflected thereon being an Eligible Receivable. 7. The Cutoff Date with respect to the Receivables is , 20_ . SCFC BUSINESS SERVICES LLC By: Name: Title: A-2
EXHIBIT B FORM OF ASSIGNMENT AND ACCEPTANCE Dated __________, 20_ Reference is made to the Amended and Restated Loan Agreement, dated as of December 31, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among SCFC Business Services LLC, as borrower, Driveway Finance Corporation, as servicer and collateral custodian, the Lenders from time to time party thereto, the Agents for the Lender Groups from time to time parties thereto, and JPMorgan Chase Bank, N.A., as administrative agent (the "Administrative Agent") and account bank. Capitalized terms used herein that are not otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement. __________________ (the "Assignor") and ___________________ (the "Assignee") agree as follows: The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, that interest in and to all of the Assignor's rights and obligations under the Loan Agreement as of the date hereof which represents the percentage interest specified in Section 1 of Schedule 1 hereto of all outstanding rights and obligations of the Assignor under the Loan Agreement, including such interest in the Commitment of the Assignor and the Lender Advances made by the Assignor. After giving effect to such sale and assignment, the Commitment and the amount of Lender Advances made by the Assignee will be as set forth in Section 2 of Schedule 1 hereto. The Assignor represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any Lien. The Assignor and the Assignee confirm to and agree with each other and the other parties to Loan Agreement that: (i) other than as provided herein, the Assignor makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Loan Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Agreement or any other instrument or document furnished pursuant thereto; (ii) the Assignee confirms that it has received a copy of the Loan Agreement, together with copies of such financial statements and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iii) the Assignee will, independently and without reliance upon the Administrative Agent, the Assignor or any other Lender party to the Loan Agreement and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Agreement; (iv) the Assignor and the Assignee confirm that the Assignee is an Eligible Assignee; (v) the Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to such agent by the terms hereof, together with such powers as are reasonably B-1
incidental thereto; (vi) the Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Agreement are required to be performed by it as a Lender, including the confidentiality provisions of Article Twelve; and (vii) this Assignment and Acceptance meets all other requirements for such an Assignment and Acceptance set forth in Article Eleven of the Loan Agreement. Following the execution of this Assignment and Acceptance by the Assignor and the Assignee, it will be delivered to the Administrative Agent for acceptance. The effective date of this Assignment and Acceptance (the "Assignment Date") shall be the date of acceptance thereof by the Administrative Agent, unless a later date is specified in Section 3 of Schedule 1 hereto. The Assignor and the Assignee agree to reimburse the Administrative Agent for all reasonable fees, costs and expenses (including reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent) incurred by the Administrative Agent in connection with this Assignment and Acceptance. Upon such acceptance by the Administrative Agent, the Assignee shall be a party to the Loan Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Lender thereunder, provided, that the Assignor shall, to the extent such rights have been assigned by it under this Assignment and Acceptance, relinquish its assigned rights and be released from its assigned obligations under the Loan Agreement (and, in the case of an Assignment and Acceptance coving all or the remaining portion of an assigning Assignor's rights and obligations under the Loan Agreement, Assignor shall cease to be a party thereto). Upon such acceptance by the Administrative Agent, from and after the Assignment Date, the Administrative Agent shall make, or cause to be made, all payments under the Loan Agreement in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Loan Agreement for periods prior to the Assignment Date directly between themselves. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. B-2
EXHIBIT C CREDIT AND COLLECTION POLICY [On file with the Administrative Agent] C-1
EXHIBIT D FORM OF POWER OF ATTORNEY This Power of Attorney (this "Power of Attorney") is executed and delivered by SCFC Business Services LLC ("Grantor") to JPMorgan Chase Bank, N.A., as Administrative Agent ("Attorney"), pursuant to (i) the Amended and Restated Loan Agreement, dated as of December 31, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among SCFC Business Services LLC, as borrower (the "Borrower"), Driveway Finance Corporation, as servicer and collateral custodian, the Lenders from time to time party thereto, the Agents for the Lender Groups from time to time parties thereto, and JPMorgan Chase Bank, N.A., as administrative agent and account bank, and (ii) the other Basic Documents. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Loan Agreement. No person to whom this Power of Attorney is presented, as authority for Attorney to take any action or actions contemplated hereby, shall inquire into or seek confirmation from Grantor as to the authority of Attorney to take any action described below, or as to the existence of or fulfillment of any condition to this Power of Attorney, which is intended to grant to Attorney unconditionally the authority to take and perform the actions contemplated herein, and Grantor irrevocably waives any right to commence any suit or action, in law or equity, against any person or entity that acts in reliance upon or acknowledges the authority granted under this Power of Attorney. The power of attorney granted hereby is coupled with an interest and may not be revoked or canceled by Grantor until all Aggregate Unpaids have been indefeasibly paid in full and Attorney has provided its written consent thereto. Grantor hereby irrevocably constitutes and appoints Attorney (and all officers, employees or agents designated by Attorney), with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in its place and stead and in its name or in Attorney's own name, from time to time in Attorney's discretion, to take any and all appropriate action and to execute and deliver any and all documents and instruments that may be necessary or desirable to accomplish the purposes of the Loan Agreement, and, without limiting the generality of the foregoing, hereby grants to Attorney the power and right, on its behalf, without notice to or assent by it, upon the occurrence and during the continuance of any Termination Event, to do the following: (a) exercise all rights and privileges of Grantor under the Purchase Agreement (including each Purchase Agreement Supplement); (b) pay or discharge any taxes, Liens or other encumbrances levied or placed on or threatened against Grantor or Grantor's property; (c) defend any suit, action or proceeding brought against Grantor if Grantor does not defend such suit, action or proceeding or if Attorney believes that it is not pursuing such defense in a manner that will maximize the recovery to Attorney, and settle, compromise or adjust any suit, action or proceeding described above and, in connection therewith, give such discharges or releases as Attorney may deem appropriate; (d) file or prosecute any claim, litigation, suit or proceeding in any court of competent jurisdiction or before any arbitrator, or take any other action otherwise deemed appropriate by Attorney for the purpose of collecting any and all such moneys due to Grantor whenever payable and to enforce any other right in respect of Grantor's property; (e) sell, transfer, pledge, make any agreement with respect to or otherwise D-1
EXHIBIT E FORM OF TAKE-OUT RELEASE Reference is hereby made to the Amended and Restated Loan Agreement, dated as of December 31, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among SCFC Business Services LLC, as borrower (the "Borrower"), Driveway Finance Corporation, as servicer (in such capacity, the "Servicer") and collateral custodian (in such capacity, the "Collateral Custodian"), the lenders from time to time parties thereto, the agents from time to time parties thereto and JPMorgan Chase Bank, N.A., as the administrative agent (the "Administrative Agent") and account bank. Capitalized terms not defined herein shall have the meaning given such terms in the Loan Agreement. The Borrower and the Servicer hereby represent and warrant that each condition in the Loan Agreement and each other Basic Document, to the consummation of the Take-out to which this Take-out Release relates, has been satisfied, including but not limited to delivery of (i) the executed Take-out Date Certificate, in substantially the form attached hereto as Annex 1 and (i) the executed notice, in substantially the form attached hereto as Annex 2. Upon deposit in the Collection Account of $___________ in accordance with Section 2.12(a)(iv) of the Loan Agreement in immediately available funds, the Administrative Agent hereby releases all of its right, title and interest, including its Lien, in and to the following: (a) the Receivables to be transferred by the Borrower in the related Take-out and described in Schedule I hereto (the "Take-out Receivables" and such Schedule, the "Schedule of Take-out Receivables"), together with the related Contracts, whether now existing or hereafter acquired, and any accounts or obligations evidenced thereby, any guarantee thereof, all Collections related thereto, and all monies due (including any payments made under any guarantee or similar credit enhancement with respect to any such Take-out Receivables) to become due or received by any Person in payment of any of the foregoing on or after the related Take-out Date; (b) all of the Borrower's interest in the Financed Vehicles relating to the Take-out Receivables (including repossessed vehicles) or in any document or writing evidencing any security interest in any such Financed Vehicle and each security interest in each such Financed Vehicle, whether now existing or hereafter acquired, including all proceeds from any sale or other disposition of such Financed Vehicles; (c) all Receivable Files and the Schedule of Take-out Receivables, relating to the Take-out Receivables, whether now existing or hereafter acquired, and all right, title and interest of the Borrower in and to the documents, agreements and instruments included in the such Receivable Files, including rights of recourse of the Borrower against DFC and/or any Dealer with respect to the Receivables; E-1
(d) all of the Borrower's interest in all Records, documents and writings evidencing or related to the Take-out Receivables or the related Contracts; (e) all of the Borrower's interest in all rights to payment under all Insurance Policies with respect to a Financed Vehicle related to a Take-out Receivable, including any monies collected from whatever source in connection with any default of an Obligor with respect to such Financed Vehicle and any proceeds from claims or refunds of premiums on any such Insurance Policy, whether now existing or hereafter acquired, and all proceeds thereof; (f) all of the Borrower's interest in all guaranties, indemnities, warranties, insurance (and proceeds and premium refunds thereof) and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Take-out Receivables, whether pursuant to the related Contracts or otherwise; (g) all of the Borrower's interest in all rights to payment under all service contracts and other contracts and agreements associated with the Take-out Receivables and all of the Borrower's interest in all recourse rights against the related dealer (excluding any rights in any dealer reserve and rights under the related Dealer Agreement); (h) Liens, guaranties and other encumbrances in favor of or assigned or transferred to the Borrower in and to the Take-out Receivables, whether now existing or hereafter acquired, and the related Financed Vehicles, whether now existing or hereafter acquired; (i) all deposit accounts, monies, deposits, funds, accounts and instruments relating to the foregoing; (j) all of the Borrower's right, title and interest in and to the Purchase Agreement (including each Purchase Agreement Supplement), relating to the Take-out Receivables and remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against DFC under or in connection with the Purchase Agreement and relating to such Take-out Receivables; and (k) all income and proceeds of the foregoing. [The Servicer and the Borrower hereby direct the Collateral Custodian to deliver the Receivable Files for the Take-out Receivables to __________________________________.] E-2
Executed as of __________, 20_ . SCFC BUSINESS SERVICES LLC, as Borrower By: Name: Title: DRIVEWAY FINANCE CORPORATION, as Servicer and Collateral Custodian By: Name: Title: JPMORGAN CHASE BANK, N.A., as the Administrative Agent By: Name: Title: E-3
ANNEX 1 DRIVEWAY FINANCE CORPORATION TAKE-OUT DATE CERTIFICATE PURSUANT TO SECTION 2.12(a) OF THE LOAN AGREEMENT Driveway Finance Corporation ("DFC"), as the servicer (the "Servicer"), delivers this certificate pursuant to Section 2.12(a) of the Amended and Restated Loan Agreement, dated as of December 31, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among SCFC Business Services LLC, as the borrower, the Servicer, DFC, as collateral custodian, the lenders from time to time parties hereto, the agents from time to time parties hereto and JPMorgan Chase Bank, N.A., as the administrative agent and account bank, and hereby certifies, as of the date hereof, the following: (a) the Borrower has sufficient funds on the related Take-out Date to effect the Take-out in accordance with the Loan Agreement (taking into account, to the extent necessary, the proceeds of sales of the Collateral in the Take-out, if applicable); (b) after giving effect of the Take-out, the release by the Administrative Agent of the related Receivables on the Take-out Date and the transfer by the Borrower or the related Receivables on the Take-out Date, (A) no Borrowing Base Deficiency exists, (B) neither an Unmatured Termination Event, a Termination Event, a Servicer Termination Event or an event that with notice or the passage of time, or both, would be a Servicer Termination Event, has occurred or results from such Take-out, and (C) the proportion of Delinquent Receivables and Defaulted Receivables that will remain subject to the Loan Agreement shall be no higher after giving effect to such Take-out than prior to such Take-out; (c) the Borrower has delivered to the Administrative Agent a list specifying all Contracts under which the Receivables not to be released pursuant to such Take-out arose; and (d) the Borrower has deposited in to the Collection Account an amount equal to all Unreimbursed Servicer Advances associated with the Receivables to be released. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Loan Agreement. E-4
ANNEX 2 FORM OF NOTICE Driveway Finance Corporation 000 X. Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxx 00000 __________, 20_ JPMorgan Chase Bank, N.A., as Administrative Agent and as JPMorgan Agent Chase Tower, 7th Floor 00 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxx XX0-0000 Xxxxxxx, Xxxxxxxx 00000 Attention: Asset-Backed Securities Portfolio Management Citibank, N.A., as Citibank Agent [Address] Attention: [__] Re: SCFC Business Services LLC β Loan Agreement Ladies and Gentlemen: Reference is made to the Amended and Restated Loan Agreement, dated as of December 31, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among SCFC Business Services LLC, as borrower (the "Borrower"), Driveway Finance Corporation, as servicer and collateral custodian, the lenders from time to time parties thereto, the agents from time to time parties thereto and JPMorgan Chase Bank, N.A., as administrative agent (the "Administrative Agent") and account bank. Pursuant to Section 2.12(a)(i) of the Loan Agreement, the Borrower gives notice of its intent to effect a Take-out on or about __________, 20_ (which date is no fewer than 15 Business Days after the date of delivery of this notice to the Administrative Agent and each Agent). Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Loan Agreement. E-6
Very truly yours, SCFC BUSINESS SERVICES LLC By: Name: Title: E-7
Schedule I to Take-out Release SCHEDULE OF REMOVED RECEIVABLES E-8
EXHIBIT F FORM OF MONTHLY REPORT [On File with the Administrative Agent] F-1
EXHIBIT G FORMS OF U.S. TAX COMPLIANCE CERTIFICATES G-1
G-2 [NAME OF LENDER] Name: EXHIBIT G-1 [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Amended and Restated Loan Agreement, dated as of December 31, 2020 (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement"), among SCFC Business Services LLC, as Borrower, Driveway Finance Corporation, as Servicer and as Collateral Custodian, the Lenders from time to time parties thereto, the Agents from time to time parties thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent and Account Bank. Pursuant to the provisions of Section 2.14 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. Title: By: Date: ________ __, 20[ ]
G-3 [NAME OF PARTICIPANT] Name: EXHIBIT G-2 [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Amended and Restated Loan Agreement, dated as of December 31, 2020 (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement"), among SCFC Business Services LLC, as Borrower, Driveway Finance Corporation, as Servicer and as Collateral Custodian, the Lenders from time to time parties thereto, the Agents from time to time parties thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent and Account Bank. Pursuant to the provisions of Section 2.14 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. Title: By: Date: ________ __, 20[ ]
G-4 [NAME OF PARTICIPANT] Name: EXHIBIT G-3 [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Amended and Restated Loan Agreement, dated as of December 31, 2020 (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement"), among SCFC Business Services LLC, as Borrower, Driveway Finance Corporation, as Servicer and as Collateral Custodian, the Lenders from time to time parties thereto, the Agents from time to time parties thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent and Account Bank. Pursuant to the provisions of Section 2.14 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. Title: By:
Date: ________ __, 20[ ] G-5
G-6 EXHIBIT G-4 [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Amended and Restated Loan Agreement, dated as of December 31, 2020 (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement"), among SCFC Business Services LLC, as Borrower, Driveway Finance Corporation, as Servicer and as Collateral Custodian, the Lenders from time to time parties thereto, the Agents from time to time parties thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent and Account Bank. Pursuant to the provisions of Section 2.14 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s), (iii) with respect to the extension of credit pursuant to this Loan Agreement or any other Borrower Basic Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. By: [NAME OF XXXXXX] Name:
G-7 Title: Date: ________ __, 20[ ]