FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of June 21, 2013 among AFC FUNDING CORPORATION, as Seller, AUTOMOTIVE FINANCE CORPORATION, as Servicer, The entities from time to time parties hereto as Purchasers or Purchaser Agents...

EXECUTION COPY

Portions of this Exhibit 10.18 have been omitted based upon a request for confidential treatment. This Exhibit 10.18, including the non-public information, has been filed separately with the Securities and Exchange Commission. “[*]” designates portions of this document that have been redacted pursuant to the request for confidential treatment filed with the Securities and Exchange Commission.

Exhibit 10.18

FIFTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT

dated as of June 21, 2013

among

AFC FUNDING CORPORATION,

as Seller,

AUTOMOTIVE FINANCE CORPORATION,

as Servicer,

The entities from time to time
parties hereto as Purchasers or Purchaser Agents hereunder

and

BMO CAPITAL MARKETS CORP.,

as the Agent

TABLE OF CONTENTS

Page


ARTICLE I.	AMOUNTS AND TERMS OF THE PURCHASES 1


Section 1.1.	Purchase Facility 1


Section 1.2.	Making Purchases 3


Section 1.3.	Participation Computation 4


Section 1.4.	Settlement Procedures 4


Section 1.5.	Fees 8


Section 1.6.	Payments and Computations, Etc 8


Section 1.7.	Dividing or Combining Portions of the Investment of any

Participation 9


Section 1.8.	Increased Costs 9


Section 1.9.	Dilutions; Application of Payments 10


Section 1.10.	Requirements of Law 11


Section 1.11.	Inability to Determine Eurodollar Rate 12


Section 1.12.	Additional and Replacement Purchasers, Increase in Maximum

Amount 12


Section 1.13.	Special Allocation Provisions for Non-Revolving Purchasers 13


ARTICLE II.	REPRESENTATIONS AND WARRANTIES; COVENANTS;

TERMINATION EVENTS 14


Section 2.1.	Representations and Warranties; Covenants 14


Section 2.2.	Termination Events 14


ARTICLE III.	INDEMNIFICATION 14


Section 3.1.	Indemnities by the Seller 14


Section 3.2.	Indemnities by AFC 16


Section 3.3.	Indemnities by Successor Servicer 18


ARTICLE IV.	ADMINISTRATION AND COLLECTIONS 19


Section 4.1.	Appointment of Servicer 19


Section 4.2.	Duties of Servicer; Relationship to Backup Servicing

Agreement 20


Section 4.3.	Deposit Accounts; Establishment and Use of Certain Accounts 21


Section 4.4.	Enforcement Rights 22


Section 4.5.	Responsibilities of the Seller 23



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TABLE OF CONTENTS

(continued)

Page


Section 4.6.	Servicing Fee 24


Section 4.7.	Specified Ineligible Receivables 24


ARTICLE V.	THE AGENTS 24


Section 5.1.	Appointment and Authorization 24


Section 5.2.	Delegation of Duties 25


Section 5.3.	Exculpatory Provisions 26


Section 5.4.	Reliance by Agents 26


Section 5.5.	Notice of Termination Date 27


Section 5.6.	Non-Reliance on Agent, Purchaser Agents and Other

Purchasers 27


Section 5.7.	Agent, Purchaser Agents and Purchasers 27


Section 5.8.	Indemnification 28


Section 5.9.	Successor Agent 28


ARTICLE VI.	MISCELLANEOUS 28


Section 6.1.	Amendments, Etc 28


Section 6.2.	Notices, Etc 29


Section 6.3.	Assignability 29


Section 6.4.	Costs, Expenses and Taxes 30


Section 6.5.	No Proceedings; Limitation on Payments 31


Section 6.6.	Confidentiality 31


Section 6.7.	GOVERNING LAW AND JURISDICTION 31


Section 6.8.	Execution in Counterparts 32


Section 6.9.	Survival of Termination 32


Section 6.10.	WAIVER OF JURY TRIAL 32


Section 6.11.	Entire Agreement 33


Section 6.12.	Headings 33


Section 6.13.	Liabilities of the Purchasers 33


Section 6.14.	Tax Treatment 33



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TABLE OF CONTENTS

Page


EXHIBIT I	DEFINITIONS I-1


EXHIBIT II	CONDITIONS OF PURCHASES II-1


EXHIBIT III	REPRESENTATIONS AND WARRANTIES III-1


EXHIBIT IV	COVENANTS IV-1


EXHIBIT V	TERMINATION EVENTS V-1


EXHIBIT VI	PORTFOLIO CERTIFICATE VI-1


EXHIBIT VII	PERFECTION REPRESENTATIONS, WARRANTIES AND

COVENANTS VII-1


SCHEDULE I	[RESERVED] I-1


SCHEDULE II	DEPOSIT BANKS AND DEPOSIT ACCOUNTS II-1


SCHEDULE III	NET RECEIVABLES POOL BALANCE CALCULATION III-1


SCHEDULE IV	[RESERVED] IV-1


SCHEDULE V	TAX MATTERS V-1


SCHEDULE VI	COMPETITOR FINANCIAL INSTITUTIONS VI-1


ANNEX A	FORM OF PURCHASE NOTICE


ANNEX B	FORM OF SERVICER REPORT


ANNEX C	FORM OF JOINDER AGREEMENT



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FIFTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT

This FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, originally dated as of December 31, 1996, amended and restated as of May 31, 2002, as of June 15, 2004, as of April 20, 2007, as of April 26, 2011 and as of June 21, 2013 (as further amended, supplemented or otherwise modified from time to time, the “Agreement”) is entered into among AFC FUNDING CORPORATION, an Indiana corporation, as seller (the “Seller”), AUTOMOTIVE FINANCE CORPORATION, an Indiana corporation (“AFC”), as initial servicer (in such capacity, together with its successors and permitted assigns in such capacity, the “Servicer”), the entities from time to time parties hereto as Purchasers or Purchaser Agents and BMO CAPITAL MARKETS CORP., a Delaware corporation (“BMOCM”), as agent for the Purchasers (in such capacity, together with its successors and assigns in such capacity, the “Agent”).

PRELIMINARY STATEMENTS. Certain terms that are capitalized and used throughout this Agreement are defined in Exhibit I to this Agreement. References in the Exhibits hereto to “the Agreement” refer to this Agreement, as amended, modified or supplemented from time to time.

Certain of the parties hereto are party to that certain Fourth Amended and Restated Receivables Purchase Agreement, dated as of April 26, 2011 (the “Prior Agreement”), pursuant to which the Seller has sold, transferred and assigned an undivided variable percentage interest in a pool of receivables to the Purchasers thereunder.

The parties hereto wish to amend and restate the Prior Agreement in its entirety in order to make certain changes set forth herein.

In consideration of the mutual agreements, provisions and covenants contained herein, the parties hereto agree as follows:

ARTICLE I.

AMOUNTS AND TERMS OF THE PURCHASES

Section 1.1. Purchase Facility. (a) On the terms and conditions hereinafter set forth, each Purchaser hereby agrees to purchase and make reinvestments of undivided percentage ownership interests with regard to its Participation from the Seller from time to time prior to the Termination Date. Under no circumstances shall any Purchaser make any such purchase or reinvestment, if, after giving effect to such purchase or reinvestment, (A) the aggregate Investment of such Purchaser would exceed its Maximum Commitment; or (B) the aggregate outstanding Investment of all Purchasers would exceed the Maximum Amount.

(b) The Seller may, upon at least 30 days’ notice to the Agent, the Purchaser Agents, the Servicer and the Backup Servicer, terminate the purchase facility provided in Section 1.1(a) in whole or, from time to time, irrevocably reduce in part the unused portion of the Maximum Amount; provided that each partial reduction shall be in the amount of at least $1,000,000, or an integral multiple of $500,000 in excess thereof and shall not reduce the Maximum Amount below

$100,000,000. Any such reductions shall be applied to the Maximum Commitments of the Purchasers on a pro rata basis (based on unused Maximum Commitments) or as otherwise consented to by the Agent.

(i) BMO Xxxxxx Bank as a Purchaser. From and after the Closing Date, BMO Xxxxxx Bank shall be a Purchaser party to this Agreement for all purposes hereof and of the other Transaction Documents, and BMO Xxxxxx Bank assumes all related rights and agrees to be bound by all of the terms and provisions applicable to Purchasers contained in this Agreement and the other Transaction Documents.

(ii) Appointment of BMO Xxxxxx Bank as Purchaser Agent of BMO Xxxxxx Bank’s Purchaser Group. BMO Xxxxxx Bank hereby designates itself as, and BMO Xxxxxx Bank hereby agrees to perform the duties and obligations of, Purchaser Agent for BMO Xxxxxx Bank’s Purchaser Group. From and after the Closing Date, BMO Xxxxxx Bank shall be a Purchaser Agent party to this Agreement for all purposes of this Agreement and the other Transaction Documents, and BMO Xxxxxx Bank assumes all related rights and agrees to be bound by all of the terms and provisions applicable to Purchaser Agents contained in this Agreement and the other Transaction Documents.

(iii) Consent to Joinder. Each of the parties to this Agreement consents to the foregoing joinder of BMO Xxxxxx Bank as a party to this Agreement, and any otherwise applicable conditions precedent thereto under this Agreement and the other Transaction Documents (other than as set forth herein) are hereby waived.

(d) Joinder of Fifth Third Bank.

(i) Fifth Third Bank as a Purchaser. From and after the Closing Date, Fifth Third Bank shall be a Purchaser party to this Agreement for all purposes hereof and of the other Transaction Documents, and Fifth Third Bank assumes all related rights and agrees to be bound by all of the terms and provisions applicable to Purchasers contained in this Agreement and the other Transaction Documents.

(ii) Appointment of Fifth Third Bank as Purchaser Agent of Fifth Third Bank’s Purchaser Group. Fifth Third Bank hereby designates itself as, and Fifth Third Bank hereby agrees to perform the duties and obligations of, Purchaser Agent for Fifth Third Bank’s Purchaser Group. From and after the Closing Date, Fifth Third Bank shall be a Purchaser Agent party to this Agreement for all purposes of this Agreement and the other Transaction Documents, and Fifth Third Bank assumes all related rights and agrees to be bound by all of the terms and provisions applicable to Purchaser Agents contained in this Agreement and the other Transaction Documents.

(iii) Consent to Joinder. Each of the parties to this Agreement consents to the foregoing joinder of Fifth Third Bank as a party to this Agreement, and any otherwise



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applicable conditions precedent thereto under this Agreement and the other Transaction Documents (other than as set forth herein) are hereby waived.

(e) Joinder of Deutsche Bank AG, New York Branch.

(i) Deutsche Bank AG, New York Branch as a Purchaser. From and after the Closing Date, Deutsche Bank AG, New York Branch shall be a Purchaser party to this Agreement for all purposes hereof and of the other Transaction Documents, and Deutsche Bank AG, New York Branch assumes all related rights and agrees to be bound by all of the terms and provisions applicable to Purchasers contained in this Agreement and the other Transaction Documents.

(ii) Appointment of Deutsche Bank AG, New York Branch as Purchaser Agent of Deutsche Bank AG, New York Branch’s Purchaser Group. Deutsche Bank AG, New York Branch hereby designates itself as, and Deutsche Bank AG, New York Branch hereby agrees to perform the duties and obligations of, Purchaser Agent for Deutsche Bank AG, New York Branch’s Purchaser Group. From and after the Closing Date, Deutsche Bank AG, New York Branch shall be a Purchaser Agent party to this Agreement for all purposes of this Agreement and the other Transaction Documents, and Deutsche Bank AG, New York Branch assumes all related rights and agrees to be bound by all of the terms and provisions applicable to Purchaser Agents contained in this Agreement and the other Transaction Documents.

(iii) Consent to Joinder. Each of the parties to this Agreement consents to the foregoing joinder of Deutsche Bank AG, New York Branch as a party to this Agreement, and any otherwise applicable conditions precedent thereto under this Agreement and the other Transaction Documents (other than as set forth herein) are hereby waived.

(f) Joinder of Saratoga Funding Corp., LLC.

(i) Saratoga Funding Corp., LLC as a Purchaser. From and after the Closing Date, Saratoga Funding Corp., LLC shall be a Purchaser party to this Agreement for all purposes hereof and of the other Transaction Documents, and Saratoga Funding Corp., LLC assumes all related rights and agrees to be bound by all of the terms and provisions applicable to Purchasers contained in this Agreement and the other Transaction Documents.

(ii) Appointment of Deutsche Bank AG, New York Branch as Purchaser Agent of Saratoga Funding Corp., LLC’s Purchaser Group. Saratoga Funding Corp., LLC hereby designates Deutsche Bank AG, New York Branch as, and Deutsche Bank AG, New York Branch hereby agrees to perform the duties and obligations of, Purchaser Agent for Saratoga Funding Corp., LLC’s Purchaser Group. From and after the Closing Date, Deutsche Bank AG, New York Branch shall be a Purchaser Agent party to this Agreement for all purposes of this Agreement and the other Transaction Documents, and Deutsche Bank AG, New York Branch assumes all related rights and agrees to be bound by all of the terms and provisions applicable to Purchaser Agents contained in this Agreement and the other Transaction Documents.



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(iii) Consent to Joinder. Each of the parties to this Agreement consents to the foregoing joinder of Saratoga Funding Corp., LLC as a party to this Agreement, and any otherwise applicable conditions precedent thereto under this Agreement and the other Transaction Documents (other than as set forth herein) are hereby waived.

(g) Initial Investment by BMO Xxxxxx Bank, Fifth Third Bank, Deutsche Bank AG, New York Branch and Saratoga Funding Corp., LLC; Rebalancing of Investments.

On the date hereof, the Seller shall request a purchase hereunder from each of BMO Xxxxxx Bank, Fifth Third Bank, Deutsche Bank AG, New York Branch and Saratoga Funding Corp., LLC and apply the proceeds thereof solely (i) to reduce in full the outstanding Investment and Participation of Salisbury Receivables Company LLC and Monterey Funding LLC and (ii) to reduce the Investment of Fairway such that after giving effect to such payments the aggregate Investment is funded by all Purchaser Groups on a pro rata basis based on their Maximum Commitments as a percentage of the Maximum Amount; provided that the purchases described in this clause (g) on the date hereof shall not be subject to deferral as described in Section 1.2 below.

Section 1.2. Making Purchases. (a) Each purchase (but not reinvestment under Section 1.4(c)) of undivided ownership interests with regard to any Participation of any Purchaser hereunder shall be made upon the Seller’s irrevocable written notice in the form of Annex A (a “Purchase Notice”) delivered to the Agent and each Purchaser Agent in accordance with Section 6.2 (which notice must be received by such Purchaser Agents prior to 2:00 p.m., Chicago time) on the Business Day immediately preceding the date of such proposed purchase. Each such notice of any such proposed purchase shall specify the desired amount and date of such purchase. Notwithstanding the foregoing, any Purchaser may, in its sole discretion by written notice to the Seller, Servicer and Agent by 5:00 p.m. on the date of receipt of a Purchase Notice, elect to fund any requested purchase (but not reinvestment under Section 1.4(c)) no later than the [*] day following the Seller’s delivery of a Purchase Notice (the “Deferred Purchase Date”), rather than on the requested purchase date. Upon receipt of any such notice, the Agent shall forward a copy thereof promptly to all Purchaser Agents. In the event that a Purchaser so elects to defer funding a purchase, subject to the adjustment of the purchase amount payable as described in clause (ii) below, the Purchaser shall be obligated to fund such purchase no later than such Deferred Purchase Date so long as all applicable conditions to such purchase pursuant to Exhibit II were satisfied on the related requested purchase date (regardless of whether such conditions to funding are not satisfied thereafter or on the Deferred Purchase Date). A Purchaser which has elected a Deferred Purchase Date and which has not yet funded such purchase in full or otherwise had such unfulfilled purchase reduced to zero pursuant to clause (ii) below (a “Deferring Purchaser”) may (in its sole discretion) fund such purchase on any Business Day prior to such Deferred Purchase Date. Subject to the adjustment of the purchase amount payable as described in clause (ii) below, the Seller shall be obligated to accept the proceeds of any such purchase on the date funded by the applicable Deferring Purchaser in accordance with this paragraph). No non-Deferring Purchaser shall be obligated to fund any amounts required to be funded by a Deferring Purchaser. In addition, if there is a Deferring Purchaser:

(i) all repayments of Investment shall be made on a pro rata basis across all Purchasers (based on each such Purchaser’s Investment (including, for purposes of this



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calculation, any deferred purchase amounts which such Purchaser is still obligated to fund prior to the applicable Deferred Purchase Date(s)) as a percentage of the aggregate Investment for all Purchasers (including the aggregate of all outstanding deferred purchase amounts); provided, that amounts allocated to any Deferring Purchaser shall first be applied to reduce any applicable unfulfilled purchase amounts of that Deferring Purchaser (starting with the most recently deferred purchase) and then, after all such Deferring Purchaser’s unfulfilled purchase amounts have been reduced to zero, applied to reduce such Deferring Purchaser’s Investment through the payment of cash; and

(ii) future purchase requests and reports shall be calculated on a pro forma basis including the unfulfilled purchase of any Deferring Purchasers (e.g., the calculation of the Participation shall include such unfulfilled purchases). For the avoidance of doubt, no unfulfilled purchase shall accrue Discount or be included in the calculation of fees hereunder until funded.

(b) On the date of each purchase (but not reinvestment under Section 1.4(c)) of undivided ownership interests with regard to the Participation of any Purchaser, such Purchaser shall, subject to Section 1.1(a) and the satisfaction of the applicable conditions set forth in Exhibit II hereto, make available to its Purchaser Agent (at its address set forth on the signature pages hereto or of the applicable Joinder Agreement), in same day funds, an amount equal to its Pro Rata Share (subject to Section 1.13) of the amount of such purchase. Upon receipt of such funds, each such Purchaser Agent shall make such funds immediately available to the Seller at such address.

(c) The Seller hereby sells and assigns to the Agent, for the benefit of the Purchasers, an undivided percentage ownership interest equal to the Aggregate Participation in (i) each Pool Receivable then existing and thereafter arising, (ii) Seller’s right, title and interest in, to and under all Related Security with respect to such Pool Receivables, and (iii) all Collections with respect to, and other proceeds of, such Pool Receivables and Related Security.

(d) To secure all of the Seller’s obligations (monetary or otherwise) under the Transaction Documents to which it is a party, whether now or hereafter existing or arising, due or to become due, direct or indirect, absolute or contingent, including to secure the obligation of the Servicer to apply Collections as provided in this Agreement, the Seller hereby grants to the Agent, for the benefit of the Secured Parties, a security interest in all of the Seller’s right, title and interest in, to and under all of the following, whether now or hereafter owned, existing or arising: (A) all Pool Receivables, (B) all Related Security with respect to each such Pool Receivable, (C) all Collections with respect to such Pool Receivables and Related Security, (D) the Deposit Accounts, the Liquidation Account and the Cash Reserve Account and all certificates and instruments, if any, from time to time evidencing the Deposit Accounts, the Liquidation Account and the Cash Reserve Account, all amounts on deposit therein, all investments (including any investment property) made with such funds, all claims thereunder or in connection therewith, and all interest, dividends, moneys, instruments, securities and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing, (E) all rights of the Seller under the Purchase and Sale Agreement, and (F) all proceeds of, and all amounts received or receivable under any or all of, the foregoing. The Agent, for the benefit of the Secured Parties, shall



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have, with respect to the property described in this Section 1.2(d), and in addition to all the other rights and remedies available under this Agreement, all the rights and remedies of a secured party under any applicable UCC.

Section 1.3. Participation Computation. Each Participation shall be automatically recomputed (or deemed to be recomputed) on each Business Day other than a Termination Day. Each Participation shall remain constant as computed (or deemed recomputed) as of the day immediately preceding the Termination Date until such date that the aggregate Investment and Discount thereon shall have been paid in full, all the amounts owed by the Seller hereunder and under any other Transaction Document to the Purchasers, the Purchaser Agents, the Agent, and any other Indemnified Party or Affected Person are paid in full and the Servicer shall have received the accrued Servicing Fee.

Section 1.4. Settlement Procedures. (a) Collection of the Pool Receivables shall be administered by the Servicer in accordance with the terms of this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Date or Paydown Day and current computations of the Participations. The Servicer shall segregate and hold all Collections in trust for the benefit of the Seller, the Purchasers and the other Secured Parties and, within one Business Day of the receipt of Collections of Pool Receivables by the Seller or Servicer, deposit such Collections into a Deposit Account. On each day that is not a Termination Day, the Servicer shall remit to the Liquidation Account from the Deposit Accounts (other than those amounts identified as “cash collateral” with respect to the Deposit Accounts held at [*] (numbered [*] and [*])) an amount at least equal to the amount needed to make the payments set forth in clause (c) below.

(b) Allocation of Seller’s Share of Collections Prior to Termination Date. If such day is not a Termination Day, the Servicer shall allocate out of the Seller’s Share of Collections and pay or otherwise deposit into the Cash Reserve Account as set forth below the following amounts in the following order:

(1) first, to the Servicer any accrued and unpaid Servicing Fees;

(2) second, deposit into the Cash Reserve Account an amount up to the excess of the Cash Reserve over the amount on deposit in the Cash Reserve Account; and

(3) third, to the Seller.

(c) Daily Purchaser Share Allocation. On each Business Day that is not a Termination Day, the Servicer shall allocate from the Purchasers’ Share of Collections and set aside in the Liquidation Account (unless otherwise specified below) the following amounts in the following order:

(1) first, to the Servicer and the Backup Servicer, the Unaffiliated Servicing Fees and Backup Servicing Fees and Transition Expenses accrued through such day and not previously set aside in the Liquidation Account;



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(2) second, to each Purchaser, any applicable Discount and Program Fees accrued through such day and not previously set aside in the Liquidation Account;

(3) third, to the Cash Reserve Account, an amount, if any, sufficient to increase the amount on deposit therein to equal the Cash Reserve;

(4) fourth, if a voluntary paydown of Investment is being made, for application in reduction of the Investment in accordance with Section 1.4(f);

(5) fifth, if the Aggregate Participation exceeds 100% or if such day is Paydown Day, for application in reduction of the Investment in accordance with Section 1.4(g);

(6) sixth, to any Indemnified Party, ratably in proportion to the respective amounts owed to each such Person, any amounts owed to such Indemnified Party;

(7) seventh, to the Backup Servicer, any accrued and unpaid Backup Servicing Fees, after giving effect to the distribution in clause (1) above;

(8) eighth, to the Servicer, any accrued and unpaid Servicing Fees, which in the Servicer’s discretion may be netted monthly from Collections, after giving effect to the distribution in clause (1) above;

(9) ninth, to the reinvestment in Pool Receivables and Related Security; and

(10) tenth, to the Seller, but only to the extent no Paydown Day exists or would result from such distribution.

(d) Distributions from Liquidation Account. Funds set aside and held on deposit in the Liquidation Account pursuant to Section 1.4(c) above shall be distributed as follows:

(1) Distribution of Discount, Program Fees and Investment Prior to Termination Date. On each Settlement Date that is not a Termination Day, amounts set aside in the Liquidation Account for a particular Purchaser with respect to Discount, Program Fees and Investment shall be paid to the applicable Purchaser’s Account of such Purchaser;

(2) Distributions of Indemnified Amounts. On each Settlement Date, Collections held on deposit in the Liquidation Account for the benefit of an Indemnified Party shall be paid to the applicable Indemnified Party as directed by such Indemnified Party;

(3) Distributions of Servicing Fees. On each Servicer Payment Date, Collections held on deposit in the Liquidation Account for the benefit of the Servicer shall be paid as the Servicer shall direct; and

(4) Distribution of Backup Servicing Fees and Transition Expenses. On each Backup Servicer Payment Date, Collections held on deposit in the Liquidation Account for the benefit of the Backup Servicer shall be paid to the Backup Servicer as the Backup Servicer shall direct.



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(e) Settlement Following Termination Date. On each Settlement Date on and after the Termination Date, all Collections (including the Seller’s Share) in the Deposit Accounts (other than those amounts identified as “cash collateral” with respect to the Deposit Accounts held at [*] (numbered [*] and [*])) shall be transferred into the Liquidation Account and applied as follows:

(1) first, to the Servicer (if not AFC or an Affiliate thereof) and the Backup Servicer (ratably in proportion to the respective amounts owed to each) the sum of accrued and unpaid Unaffiliated Servicing Fees and Backup Servicing Fees and Transition Expenses for the prior calendar month;

(2) second, to the Agent an amount equal to any accrued and unpaid Enforcement Costs (provided that the amount payable pursuant to this clause (2) shall not exceed $200,000 in the aggregate);

(3) third, pro rata (based on amounts due) to each Purchaser’s Account an amount equal to all accrued and unpaid Discount and Program Fees;

(4) fourth, on a pro rata basis in accordance with the provisions of Section 1.2(i), to the applicable Purchaser’s Account until the aggregate Investment is reduced to zero;

(5) fifth, to the Backup Servicer or any applicable successor Servicer, an amount equal to the sum of the invoiced but unpaid Transition Expenses (if any) and any Backup Servicing Fees (if any) for the prior calendar month to the extent not paid pursuant to clause (1) above;

(6) sixth, (i) first, to the Agent an amount equal to any accrued and unpaid Enforcement Costs to the extent not paid pursuant to clause (2) above and (ii) second, to any Indemnified Party, ratably in proportion to the respective amounts owed to each such Person, any amounts owed to such Indemnified Party;

(7) seventh, to the Servicer any accrued and unpaid Servicing Fees due to the Servicer; and

(8) eighth, to the Seller.

(f) Voluntary Paydown of Investment. If at any time the Seller shall wish to cause the reduction of the aggregate of the Investment of the Participations of the Purchasers, the Seller shall give each Purchaser Agent, the Agent, the Servicer and the Backup Servicer at least two Business Days’ prior written notice thereof (including the amount of such proposed reduction and the proposed date on which such reduction will commence). Following the delivery of such notice, on the proposed date of commencement of such reduction and on each day thereafter, the Servicer shall cause the remainder of the Purchasers’ Share of Collections (after giving effect to allocations of more senior priority items under Section 1.4(c) above) to be transferred to the Liquidation Account and the Agent shall hold therein such amounts for the benefit of the Purchasers until the aggregate amount thereof not so reinvested shall equal the desired amount of reduction, at which time such amount shall be allocated to repay the outstanding Investment of the Purchasers ratably, with such



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reduction to be applied first to the Investment of the Purchasers (on a pro rata in accordance with the provisions of Section 1.2(i)) and then to the Investment of the Non-Revolving Purchasers (and otherwise subject to Section 1.13); provided, that upon the occurrence of the Termination Date, all such Collections set aside shall instead be held for distribution in accordance with Section 1.4(e); and provided, further, that, unless otherwise agreed by the Agent, the amount of any such reduction with respect to each Purchaser shall be not less than $1,000,000 and shall be an integral multiple of $100,000, and the entire Investment (if any) of the Participation after giving effect to such reduction shall be not less than $100,000,000.

(g) Distributions of Investment Upon Paydown Day. On each Paydown Day (including on any day the Aggregate Participation exceeds 100%), the remainder of the Purchasers’ Share of any remaining Collections (after giving effect to allocations of more senior priority items in Section 1.4(c)), shall be transferred by the Servicer from the Deposit Accounts to the Liquidation Account and held therein by the Agent and allocated to repay the outstanding Investment of the Purchasers (with such reduction to be applied, first, to the Investment of the Purchasers on a pro rata basis in accordance with the provisions of Section 1.2(i) and then to the Investment of the Non-Revolving Purchasers and otherwise subject to Section 1.13); provided, that on the first day that is not a Paydown Day or a Termination Day, the Agent shall hold all funds allocated to repay Investment pursuant to this subsection for distribution in accordance with the priorities set forth in Section 1.4(c); and, provided, further, that upon the occurrence of the Termination Date, all Collections allocated to repay Investment pursuant to this subsection shall instead be held for distribution in accordance with Section 1.4(e).

(h) Withdrawals from Cash Reserve Account. If on any Settlement Date (A) insufficient funds are on deposit in the Liquidation Account to make in full all required distributions of Discount and fees and (B) since the prior Settlement Date funds have been released to the Seller and not used by the Seller to acquire Receivables, the Seller shall deposit into the Liquidation Account on or before such Settlement Date the lesser of the amounts described in clauses (A) and (B) above for the benefit of the applicable Purchasers. If on any Settlement Date insufficient funds are on deposit in the Liquidation Account (after giving effect to any deposits made by the Seller as described in the preceding sentence) to make in full all required distributions of Discount and fees for such Settlement Date, the Agent shall distribute funds from the Cash Reserve Account in payment of such Discount and fees as if such funds were funds on deposit in the Liquidation Account held for the benefit of the applicable Purchaser. On any Termination Day, to the extent directed by the Majority Purchasers, the Agent shall distribute funds from the Cash Reserve Account pursuant to Section 1.4(e) as if such funds were funds on deposit in the Liquidation Account held for the benefit of the applicable Purchaser and, following the payment in full of all outstanding Investment, any remaining amounts on deposit in the Cash Reserve Account shall be distributed as Collections pursuant to Section 1.4(e). If on any Business Day other than a Termination Day, after giving effect to all distributions on such day pursuant to Section 1.4, the amount on deposit in the Cash Reserve Account exceeds the Cash Reserve, such excess shall be released from the Cash Reserve Account and treated as Collections for purposes of Section 1.4 for the following Business Day.

Section 1.5. Fees. (a) The Seller shall pay to the Purchaser Agents certain fees in the amounts and on the dates set forth in a letter dated June 21, 2013 between the Seller, AFC and the



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Purchaser Agents, as such letter agreement may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof (the “Fee Letter”).

(b) The Seller shall pay to the Backup Servicer the Backup Servicing Fees and any Transition Expenses in the amounts and on the dates set forth in the Backup Servicing Fee Letter, as the same may be amended, supplemented or otherwise modified from time to time with the prior written consent of the Agent.

Section 1.6. Payments and Computations, Etc. (a) All amounts to be paid or deposited by the Seller or the Servicer to, or for the benefit of, any Purchaser Agent, any Purchaser, the Agent or the Backup Servicer hereunder shall be paid or deposited no later than 12:00 noon (Chicago time) on the day when due in same day funds to the Liquidation Account. All amounts received after noon (Chicago time) will be deemed to have been received on the immediately succeeding Business Day.

(b) The Seller, AFC or Servicer (as applicable) shall, to the extent permitted by law, pay interest on any amount not paid by the respective party to the applicable Person when due hereunder, at an interest rate equal to 2.0% per annum above the Base Rate, payable on demand.

(c) All computations of interest under subsection (b) above and all computations of Discount, fees and other amounts hereunder shall be made on the basis of a year of 360 days for the actual number of days elapsed. Whenever any payment or deposit to be made hereunder shall be due on a day other than a Business Day, such payment or deposit shall be made no later than the next succeeding Business Day and such extension of time shall be included in the computation of such payment or deposit.

Section 1.7. [Reserved].

Section 1.8. Increased Costs. (a) If any Purchaser Agent, any Purchaser, the Agent, any Liquidity Bank, any Related CP Issuer, any other Program Support Provider or any of their respective Affiliates (each an “Affected Person”) determines that the existence of or compliance with (i) any law or regulation or any change therein or in the administration, interpretation, application or implementation thereof by any Governmental Authority or Official Body, in each case adopted, issued, taking effect or occurring after the date hereof or (ii) any request, rule, guideline or directive from any central bank or other Official Body (whether or not having the force of law) issued, occurring or first applied after the date of this Agreement (each, a “Regulatory Change”) (A) affects or would affect the amount of capital required or expected to be maintained by such Affected Person and such Affected Person determines that the amount of such capital is increased by or based upon the existence of any commitment to make purchases of or otherwise to maintain the investment in Pool Receivables related to this Agreement or any related liquidity facility or credit enhancement facility and other commitments of the same type, or (B) imposes, modifies or deems applicable any reserve, assessment, fee, tax, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or liabilities of any Affected Person, or credit extended by an Affected Person pursuant to this Agreement or any Liquidity Agreement or Program Support Agreement, the result of which is to increase the cost to an Affected Person of performing its obligations under this Agreement or any Liquidity Agreement or Program Support Agreement, or



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to reduce the rate of return on an Affected Person’s capital or assets as a consequence of its obligations under this Agreement or any Liquidity Agreement or Program Support Agreement, or to reduce the amount of any sum received or receivable by an Affected Person under this Agreement or any Liquidity Agreement or Program Support Agreement, or to require any payment calculated by reference to the amount of interests or loans held or interest received by it, under this Agreement or any Liquidity Agreement or Program Support Agreement, then, upon written demand by such Affected Person (with a copy to the Agent and the applicable Purchaser Agent (if any)), the Seller shall immediately pay to the Agent, for the account of such Affected Person, from time to time as specified by such Affected Person, additional amounts sufficient to compensate such Affected Person in the light of such circumstances, to the extent that such Affected Person reasonably determines such increase in capital, increase in costs or reduction in sum received or receivable to be allocable to the existence of any of such commitments or maintenance of its investment in the Pool Receivables and such Affected Person requires such compensation from substantially all similarly situated sellers, borrowers or other recipients of credit; provided that within 30 days of an Affected Person’s knowledge of any such circumstance and intent to seek indemnification therefor such Affected Person shall notify the Seller in writing of the same and whether such Affected Person will request that the Seller indemnify it for such circumstance (and the Seller shall not be obligated to indemnify any Affected Person for any period in excess of 30 days prior to receipt of such notice). A certificate as to such amounts shall be submitted to the Seller, the Agent and the applicable Purchaser Agent (if any) by such Affected Person and shall be conclusive and binding for all purposes, absent manifest error. Notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or issued in connection therewith and (ii) all requests, rules, guidelines and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, shall in each case be deemed to have been introduced as of the date after the date hereof, thereby constituting a Regulatory Change hereunder, regardless of the date enacted, adopted or issued.

(b) If, due to Regulatory Change, there shall be any increase in the cost to any Affected Person of agreeing to purchase or purchasing, or maintaining the ownership of the related Participation(s) in respect of which Discount is computed by reference to the Eurodollar Rate, then, upon written demand by such Affected Person, the Seller shall immediately pay to the Agent, for the account of such Affected Person, from time to time as specified, additional amounts sufficient to compensate such Affected Person for such increased costs; provided that within 30 days of an Affected Person’s knowledge of any such circumstance and intent to seek indemnification therefor such Affected Person shall notify the Seller in writing of the same and whether such Affected Person will request that the Seller indemnify it for such circumstance (and the Seller shall not be obligated to indemnify any Affected Person for any period in excess of 30 days prior to receipt of such notice). A certificate as to such amounts shall be submitted to the Seller, the Agent and the applicable Purchaser Agent (if any), by such Affected Person and shall be conclusive and binding for all purposes, absent manifest error.



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Section 1.9. Dilutions; Application of Payments.

(a) if on any day

(i) the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any discount, rebate or other adjustment made by the Originator, Seller or Servicer, or any setoff or dispute between the Seller, Originator or the Servicer and an Obligor, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment; or

(ii) any of the representations or warranties in paragraphs A.(g) or A.(o) of Exhibit III is not true with respect to any Pool Receivable, the Seller shall be deemed to have received on such day a Collection of such Pool Receivable in full.

(iii) Any such deemed Collections shall be deposited by the Seller into the Liquidation Account on the first Business Day of the calendar week following deemed receipt thereof.

(b) Except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied in accordance with the Contract with such Obligor and the Credit and Collection Policy.

(c) If and to the extent any Secured Party shall be required for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, such Secured Party shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.

Section 1.10. Requirements of Law. In the event that any Affected Person determines that the existence of or compliance with (i) any law or regulation or any change therein or in the interpretation or application thereof, in each case adopted, issued or occurring after the date hereof or (ii) any request, guideline or directive from any central bank or other Governmental Authority (whether or not having the force of law) issued or occurring after the date of this Agreement:

(i) does or shall subject such Affected Person to any tax of any kind whatsoever with respect to this Agreement, any increase in the applicable Participation(s) or in the amount of Investment relating thereto, or does or shall change the basis of taxation of payments to such Affected Person on account of Collections, Discount or any other amounts payable hereunder (excluding taxes imposed on the overall net income of such Affected Person, and franchise taxes imposed on such Affected Person, by the jurisdiction under the laws of which such Affected Person is organized or doing business or a political subdivision thereof);

(ii) does or shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, or deposits or other liabilities



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in or for the account of, purchases, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Affected Person which are not otherwise included in the determination of the Eurodollar Rate or the Base Rate hereunder; or

(iii) does or shall impose on such Affected Person any other condition;

and the result of any of the foregoing is (x) to increase the cost to such Affected Person of acting as a Purchaser Agent or Agent or of agreeing to purchase or purchasing or maintaining the ownership of undivided ownership interests with regard to the applicable Participation or any Investment (or interests therein) in respect of which Discount is computed by reference to the Eurodollar Rate or the Base Rate or (y) to reduce any amount receivable hereunder (whether directly or indirectly) funded or maintained by reference to the Eurodollar Rate or the Base Rate, then, in any such case, upon written demand by such Affected Person the Seller shall pay the Agent, for the account of such Affected Person, any additional amounts necessary to compensate such Affected Person for such additional cost or reduced amount receivable. All such amounts shall be payable as incurred. A certificate from such Affected Person to the Seller certifying, in reasonably specific detail, the basis for, calculation of, and amount of such additional costs or reduced amount receivable shall be conclusive in the absence of manifest error; provided, however, that no Affected Person shall be required to disclose any confidential or tax planning information in any such certificate.

Section 1.11. Inability to Determine Eurodollar Rate. In the event that any Purchaser Agent shall have determined prior to the first day of any Yield Period for the Participation of its Purchaser (which determination shall be conclusive and binding upon the parties hereto) by reason of circumstances affecting the interbank Eurodollar market, either (a) dollar deposits in the relevant amounts and for the relevant Yield Period are not available, (b) adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Yield Period or (c) the Eurodollar Rate determined pursuant hereto does not accurately reflect the cost (as conclusively determined by such Purchaser Agent) to any Purchaser for which such Purchaser Agent acts as agent of maintaining each such Investment of such Purchaser during such Yield Period, such Purchaser Agent shall promptly give telephonic notice of such determination, confirmed in writing, to the Seller prior to the first day of such Yield Period. Upon delivery of such notice (a) no Investment of such Purchaser shall be funded thereafter at the Bank Rate determined by reference to the Eurodollar Rate, unless and until the applicable Purchaser Agent shall have given notice to the Seller that the circumstances giving rise to such determination no longer exist, and (b) with respect to any outstanding Investment then funded at the Bank Rate determined by reference to the Eurodollar Rate, such Bank Rate shall automatically be converted to the Bank Rate determined by reference to the Base Rate for the next Yield Period.

Section 1.12. Additional and Replacement Purchasers, Increase in Maximum Amount. (a) The Seller shall have the right, at any time and from time to time, with the prior written consent of the Agent to add any entity as a Purchaser hereunder (which addition may increase the Maximum Amount if a Purchaser is added) or increase the Maximum Commitment of any existing Purchaser. No increase in the Maximum Commitment of a Purchaser hereunder shall be effective unless, if the increasing Purchaser is a Note Issuer, such Note Issuer shall have received written confirmation by the Rating Agencies that such action shall not cause the rating on the then outstanding Notes of



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such Note Issuer to be downgraded or withdrawn. Each such addition of a new Purchaser hereunder shall be effected by delivery to the Seller, the Servicer, the Agent and each Purchaser Agent, of a Joinder Agreement executed by the Seller, the Servicer, the Agent, such new Purchaser and its Purchaser Agent (if different from the Purchaser) in substantially the form of Annex C hereto. Upon receipt of a Joinder Agreement, if such Joinder Agreement has been fully executed and completed and is substantially in the form of Annex C, the Servicer shall, not less than five (5) Business Days prior to the effectiveness of such Joinder Agreement give prompt written notice to all Purchaser Agents, the Agent and Purchasers as to (i) the name, identity and address for receiving notices of the new Purchaser(s) and Purchaser Agent(s) becoming party hereto, (ii) the Maximum Commitment of such new Purchaser, (iii) the change in the Maximum Amount and (iv) the effective date of such Joinder Agreement. Immediately upon the effectiveness of such Joinder Agreement, such additional Purchaser shall purchase, by wire transfer of immediately available funds its Participation. Effective with the payment of such amounts, such new Purchaser and its Purchaser Agent designated in the applicable Joinder Agreement shall each become parties hereto.

(b) By executing and delivering a Joinder Agreement, each new Purchaser and Purchaser Agent confirms to and agrees with the Agent and each other Purchaser and Purchaser Agent party hereto as follows: (A) such new Purchaser has received a copy of this Agreement, and the Purchase and Sale 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 Joinder Agreement; (B) such new Purchaser has made and will continue to make, independently and without reliance upon the Agent, any Purchaser Agent or any other Purchaser and based on such documents and information as it shall deem appropriate at the time, its own credit decisions in taking or not taking action under this Agreement; (C) such new Purchaser appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (D) such new Purchaser and its Purchaser Agent 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 Purchaser or Purchaser Agent.

(c) In addition to the foregoing, in the event that any Purchaser or Purchaser Agent (i) does not consent to an amendment of clause (ii) of the definition of Termination Date to which the Seller and the Servicer have otherwise consented; or (ii) does not consent to any amendment or modification of this Agreement agreed to by the Seller, the Servicer and the Majority Purchasers but which requires the consent of such Purchaser, then, in any such event, the Seller shall have the right, with the prior written consent of the Agent, to require such Purchaser to assign its interests in its Participation and the Pool Receivables and all of its rights and obligations under this Agreement to a replacement Purchaser acceptable to the Agent and the Seller. Any such assignment shall be without recourse, representation or warranty of any kind on the part of the assigning Purchaser, except that such assignment is free and clear of any Adverse Claims created by such Purchaser, and shall be consummated pursuant to documentation reasonably satisfactory to the assignor and assignee on not less than ten days’ prior written notice, at a purchase price equal to the sum of (w) the aggregate outstanding Investment of the Purchaser being so replaced; (x) all accrued and unpaid Discount on such Investment; (y) all accrued and unpaid Program Fees owed to or on behalf of such Purchaser; and (z) all other accrued and unpaid expenses, indemnities and other amounts owing



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under this Agreement to such Purchaser, including any Termination Fees caused by the above-described assignment. Concurrently with any such assignment, the Seller, the Servicer, such replacement Purchaser and its Purchaser Agent (if different from the Purchaser) shall execute a Joinder Agreement to evidence the terms and conditions under which such replacement Purchaser has agreed to become a Purchaser hereunder.

Section 1.13. Special Allocation Provisions for Non-Revolving Purchasers. Notwithstanding the definitions of “Pro Rata Share” or “Purchaser Percentage” and the provisions of Section 1.2(b), 1.4(f) and 1.4(g), such definitions and provisions shall be adjusted such that the Investment of each such Non-Revolving Purchaser shall remain (i) constant prior to the occurrence of the Termination Date or (ii) subject to such other limitations specified in the applicable Joinder Agreement of such Non-Revolving Purchaser.

ARTICLE II.

REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS

Section 2.1. Representations and Warranties; Covenants. Each of the Seller and the Servicer hereby makes the representations and warranties, and hereby agrees to perform and observe the covenants of such Person, set forth in Exhibits III, IV and VII, respectively hereto.

Section 2.2. Termination Events. If any of the Termination Events set forth in Exhibit V hereto shall occur, the Majority Purchasers may, by notice to the Seller, each Purchaser Agent, the Agent and the Backup Servicer, declare the Termination Date to have occurred (in which case the Termination Date shall be deemed to have occurred); provided that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in subsection (g), (h), (k) or (m) of Exhibit V, the Termination Date shall occur. Upon any such declaration, the occurrence or the deemed occurrence of the Termination Date, the Agent (at the direction of the Majority Purchasers) shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative. The Agent shall obtain confirmation of the then-current rating of the Notes from the Rating Agencies prior to waiving the occurrence of any Termination Event of the type described in clause (j) of Exhibit V hereto.

ARTICLE III.

INDEMNIFICATION

Section 3.1. Indemnities by the Seller. Without limiting any other rights that the Agent, the Purchaser Agents, the Purchasers, the Related CP Issuers, the Backup Servicer or any of their respective Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees to indemnify each Indemnified Party from and against any and all claims, damages, expenses, losses and liabilities (including Attorney Costs) (all of the foregoing being collectively referred to as “Indemnified



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Amounts”) arising out of or resulting from this Agreement or other Transaction Documents (whether directly or indirectly) or the use of proceeds of purchases or reinvestments or the ownership of any Participation, or any interest therein, or in respect of any Receivable or any Contract regardless of whether any such Indemnified Amounts result from an Indemnified Party’s negligence or strict liability or other acts or omissions of an Indemnified Party, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, (b) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables to be written off consistent with the Credit and Collection Policy or (c) any overall net income taxes or franchise taxes imposed on such Indemnified Party by the jurisdiction under the laws of which such Indemnified Party is organized or any political subdivision thereof. Without limiting or being limited by the foregoing, and subject to the exclusions set forth in the preceding sentence, the Seller shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from any of the following:

(i) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable, the failure of any information contained in a Servicer Report or a Portfolio Certificate to be true and correct, or the failure of any other information provided to any Purchaser, any Purchaser Agent or the Agent with respect to Receivables or this Agreement to be true and correct;

(ii) the failure of any representation or warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement to have been true and correct in all respects when made;

(iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such applicable law, rule or regulation;

(iv) the failure (A) to vest in the Agent (for the benefit of the Secured Parties) a valid and enforceable perfected undivided percentage ownership interest, to the extent of the Aggregate Participation, in the Pool Receivables and Collections with respect thereto and in Seller’s right, title and interest in, to and under the Related Security, and (B) to vest in the Agent (for the benefit of the Secured Parties) a first priority perfected security interest in all of Seller’s right, title and interest in, to and under the items described in Section 1.2(d)(A) – (F), in each case, free and clear of any Adverse Claim;

(v) the failure to have filed, 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 any Pool Receivables and the Related Security and Collections in respect thereof, whether at the time of any purchase or reinvestment or at any subsequent time;

(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivables (including, without limitation, a defense based on such Receivable or the related Contract not being a legal,



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valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from or relating to the transaction giving rise to such Receivable or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller or any of its Affiliates acting as Servicer or by any agent or independent contractor retained by the Seller or any of its Affiliates);

(vii) any failure of the Seller to perform its duties or obligations in accordance with the provisions hereof;

(viii) any products liability or other claim, investigation, litigation or proceeding arising out of or in connection with goods, insurance or services that are the subject of or secure any Contract;

(ix) the commingling of Collections of Pool Receivables at any time with other funds;

(x) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of purchases or reinvestments or the ownership of any Participation or in respect of any Receivable, Related Security or Contract;

(xi) any reduction in Investment as a result of the distribution of Collections pursuant to Section 1.4, in the event that all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any reason;

(xii) any tax or governmental fee or charge (other than any tax upon or measured by net income or gross receipts), all interest and penalties thereon or with respect thereto, and all reasonable out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of any Participation or other interests in the Pool Receivables or in any Related Security or Contract;

(xiii) the failure by the Seller or the Servicer to pay when due any taxes payable by it, including, without limitation, the franchise taxes and sales, excise or personal property taxes payable in connection with the Receivables;

(xiv) the failure by the Seller or the Servicer to be duly qualified to do business, to be in good standing or to have filed appropriate fictitious or assumed name registration documents in any jurisdiction; or

(xv) the failure of any Deposit Account Bank to remit any amounts held in its Deposit Account pursuant to the instructions of the Servicer whether by reason of the exercise of setoff rights or otherwise.

If for any reason the indemnification provided above in this Section 3.1 is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then the Seller shall contribute to such Indemnified Party the amount otherwise payable by such Indemnified Party as



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a result of such loss, claim, damage or liability to the maximum extent permitted under applicable law (but subject to the exclusions set forth in clauses (a) through (c) above).

The obligations of the Seller under this Section 3.1 are limited recourse obligations payable solely from the Collections, the Receivables and Related Security in accordance with the priority of payments set forth in Section 1.4.

Section 3.2. Indemnities by AFC. Without limiting any other rights that the Agent, any Purchaser, any Purchaser Agent or any other Indemnified Party may have hereunder or under applicable law, AFC hereby agrees to indemnify each Indemnified Party, forthwith on demand, from and against any and all Indemnified Amounts, awarded against or incurred by any of them, regardless of whether any such Indemnified Amounts result from an Indemnified Party’s negligence or strict liability or other acts or omissions of an Indemnified Party excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, (b) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables to be written off consistent with the Credit and Collection Policy or (c) any overall net income taxes or franchise taxes imposed on such Indemnified Party by the jurisdiction under the laws of which such Indemnified Party is organized or any political subdivision thereof, arising out of or relating to:

(i) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable at any time to be an Eligible Receivable at such time, the failure of any information contained in a Servicer Report or a Portfolio Certificate to be true and correct, or the failure of any other information provided (directly or indirectly) by AFC or the Seller to the Purchasers, the Agent, the Backup Servicer or any Purchaser Agent with respect to Receivables or this Agreement to be true and correct;

(ii) any representation or warranty made by AFC under or in connection with any Transaction Document in its capacity as Servicer or any information or report delivered by or on behalf of AFC in its capacity as Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made;

(iii) the failure by AFC, in its capacity as Servicer, to comply with any applicable law, rule or regulation (including truth in lending, fair credit billing, usury, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) with respect to any Pool Receivable or other related contract;

(iv) any failure of AFC to perform its duties, covenants and obligations in accordance with the applicable provisions of this Agreement or to perform its duties or obligations, if any, under the Contracts;

(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable resulting from or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller or any of its Affiliates acting as Servicer or by any agent or independent contractor retained by the Seller or any of its Affiliates);



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(vi) the commingling of Collections of Pool Receivables at any time with other funds; or

(vii) any investigation, litigation or proceeding related to AFC’s activities as Servicer under this Agreement.

If for any reason the indemnification provided above in this Section 3.2 is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then AFC shall contribute to such Indemnified Party the amount otherwise payable by such Indemnified Party as a result of such loss, claim, damage or liability to the maximum extent permitted under applicable law (but subject to the exclusions set forth in clauses (a) through (c) above).

Section 3.3. Indemnities by Successor Servicer. Without limiting any other rights that the Agent, any Purchaser, any Purchaser Agent or any other Indemnified Party may have hereunder under applicable law, each successor Servicer hereby agrees to indemnify each Indemnified Party, forthwith on demand, from and against any and all Indemnified Amounts, other than Indemnified Amounts resulting from gross negligence or willful misconduct on the part of such Indemnified Party, awarded against or incurred by any of them arising out of or relating to:

(i) any representation or warranty made by such successor Servicer under or in connection with any Transaction Document in its capacity as Servicer or any information or report delivered by such successor Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made;

(ii) the failure by such successor Servicer to comply with any applicable law, rule or regulation (including truth in lending, fair credit billing, usury, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) with respect to any Pool Receivable or other related contract;

(iii) any failure of such successor Servicer to perform its duties, covenants and obligations in accordance with the applicable provisions of this Agreement;

(iv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivables resulting from or relating to collection activities with respect to such Receivable (if such collection activities were performed by such successor Servicer or by any agent or independent contractor retained by such successor Servicer); or

(v) any investigation, litigation or proceeding related to such successor Servicer’s activities as Servicer under this Agreement.

If for any reason the indemnification provided above in this Section 3.3 is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such successor Servicer shall contribute to such Indemnified Party the amount otherwise payable by such Indemnified Party as a result of such loss, claim, damage or liability to the maximum extent permitted under applicable law.



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Notwithstanding anything to the contrary herein, in no event shall any successor Servicer be liable to any Person for any act or omission of any predecessor Servicer.

ARTICLE IV.

ADMINISTRATION AND COLLECTIONS

Section 4.1. Appointment of Servicer. (a) The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to time as Servicer in accordance with this Section 4.1. Until the Majority Purchasers give notice to the Seller, the Agent and the Servicer (in accordance with the following sentence) of the designation of a new Servicer, AFC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. Upon the occurrence of a Termination Event, the Majority Purchasers may designate the Backup Servicer or any other Person (including the Agent) to succeed the Servicer, on the condition that any such Person so designated (other than the Backup Servicer, except to the extent specified in the Backup Servicing Agreement) shall agree in writing to perform the duties and obligations of the Servicer pursuant to the terms hereof unless otherwise consented to by the Majority Purchasers.

(b) Upon the designation of a successor Servicer as set forth in Section 4.1(a) hereof, the Servicer agrees that it will terminate its activities as Servicer hereunder in a manner which the Agent determines will facilitate the transition of the performance of such activities to the new Servicer, and the Servicer shall cooperate with and assist such new Servicer. Such cooperation shall include (without limitation) access to and transfer of all records and use by the new Servicer of all licenses, hardware or software necessary or desirable to collect the Pool Receivables and the Related Security. Without limiting the foregoing, the Servicer agrees that, at any time following the occurrence of a Termination Event, the Servicer shall, at the request of the Agent (i) promptly identify all branch offices, loan processing offices or other locations at which the Pool Receivable Documents are then being held, (ii) allow the Agent or its designee full access to all such locations and all Pool Receivable Documents, (iii) promptly arrange, at the Servicer’s expense, the transfer of possession of all such Pool Receivable Documents to the Backup Servicer, any successor Servicer or other third-party custodian specified by the Agent and (iv) instruct the Servicer’s agents and any person with whom the Servicer or its agents have contracted to hold any such Pool Receivable Documents to provide full access to, and/or transfer possession of, any Pool Receivable Documents held by such agent or contractor. The Servicer agrees to take no action which would impede or impair the ability of the Agent or its designees to gain access to the Pool Receivable Documents or to obtain possession thereof in accordance with the provisions hereof. The parties hereto agree that the covenants contained in the foregoing sentence are reasonable and necessary for the protection of the legitimate interests of the Secured Parties in the Pool Receivables. Accordingly, in addition to other remedies provided at law or equity, upon any breach by the Servicer of the covenants contained in the second preceding sentence, the Agent shall be entitled to seek specific performance and injunctive relief by and against the Servicer prohibiting any further breach of such covenants, without the necessity of proving irreparable injury or posting bond.

(c) The Servicer acknowledges that, in making its decision to execute and deliver this Agreement, the Purchaser Agents, the Agent and the Purchasers have relied on the Servicer’s



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agreement to act as Servicer hereunder. Accordingly, the Servicer agrees that it will not voluntarily resign as Servicer.

(d) The Servicer may delegate its duties and obligations hereunder to any subservicer (each, a “Sub-Servicer”); provided that, in each such delegation, (i) such Sub-Servicer shall agree in writing to perform the duties and obligations of the Servicer pursuant to the terms hereof, (ii) the Servicer shall remain primarily liable to the Secured Parties for the performance of the duties and obligations so delegated, (iii) the Secured Parties shall have the right to look solely to the Servicer for such performance and (iv) the terms of any agreement with any Sub-Servicer shall provide that the Majority Purchasers may terminate such agreement upon the termination of the Servicer hereunder in accordance with Section 4.1(a) above by giving notice of its desire to terminate such agreement to the Servicer (and the Servicer shall provide appropriate notice to such Sub-Servicer); provided further, no such delegation shall be effective without the prior written consent of the Majority Purchasers.

Section 4.2. Duties of Servicer; Relationship to Backup Servicing Agreement. (a) The Servicer shall take or cause to be taken all such action as may be necessary or advisable to collect each Pool Receivable from time to time, all in accordance with this Agreement, accepted industry standards and all applicable laws, rules and regulations, with reasonable care and diligence, and in accordance with the Credit and Collection Policy. Servicer may xxx to collect upon Pool Receivables or enforce or recover Related Security, in its own name, if possible. If Servicer elects to commence a legal proceeding to collect a Pool Receivable or enforce or recover Related Security, the act of commencement shall be deemed to be an automatic assignment of the Pool Receivable or Seller’s and Purchasers’ rights in, to and under the Related Security to Servicer, for purposes of collection only. The Servicer shall set aside for the accounts of the Seller, the Backup Servicer and the Purchasers the amount of the Collections to which each is entitled in accordance with Section 1.4. The Seller shall deliver to the Servicer and the Servicer shall hold for the benefit of the Secured Parties in accordance with their respective interests, all records and documents (including without limitation computer tapes or disks) with respect to each Pool Receivable and all Pool Receivable Documents. The Servicer (if the Servicer is AFC or one of its Affiliates) shall stamp each page of each Contract related to a Pool Receivable with the following legend “This Receivable has been sold to AFC Funding Corporation and an interest therein has been granted to BMO Capital Markets Corp. as Agent”. During such period as a Backup Servicer is required to be maintained hereunder, the Servicer agrees to provide the Backup Servicer with an electronic (scanned) copy of each Contract related to a Pool Receivable and with monthly updates thereafter upon receipt of which the Backup Servicer shall perform a reconciliation of the Receivables data and recalculate the Servicer Report. Notwithstanding anything to the contrary contained herein, the Agent may direct the Servicer to commence or settle any legal action to enforce collection of any Pool Receivable or to foreclose upon or repossess any Related Security; provided, however, that no such direction may be given unless a Termination Event has occurred. AFC is hereby appointed the custodian of the Pool Receivable Documents for the benefit of the Agent on behalf of the Secured Parties; provided, however, that such appointment may be terminated pursuant to the terms hereof. AFC, or an affiliate on its behalf, will maintain fidelity and forgery insurance and adequate insurance to replace all Pool Receivable Documents due to casualty loss or theft of such documents. In performing its duties as servicer and custodian, AFC shall act with reasonable care, using that degree of skill and attention



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that AFC exercises with respect to the files relating to all comparable contracts that AFC owns or services for itself or others. AFC shall (i) maintain the Pool Receivable Documents in such a manner as shall enable the Agent and the Purchaser Agents to verify the accuracy of AFC’s recordkeeping; and (ii) promptly report to the Agent and the Purchaser Agents any failure on its part or the part of its agents to hold the Pool Receivable Documents and promptly take appropriate action to remedy any such failure. Upon termination of AFC’s appointment as custodian hereunder and the delivery of the Pool Receivable Documents to the successor custodian, the successor custodian shall review such documents to determine whether it is missing any documents, and AFC shall cooperate with the successor custodian and use its best efforts to assist the successor custodian to obtain the missing documents. AFC shall maintain continuous custody of the Pool Receivable Documents in secure facilities in accordance with customary standards for such custody.

(b) In the event the Backup Servicer becomes the successor Servicer hereunder, any applicable terms and conditions of the Backup Servicing Agreement relating to its performance as successor Servicer shall be deemed to be incorporated herein, and the obligations and liabilities of the successor Servicer (as such obligations and liabilities apply to the Backup Servicer acting in such capacity) shall be deemed to be modified in accordance with the provisions thereof. To the extent that any conflict exists between the terms of this Agreement and the Backup Servicing Agreement, the terms of the Backup Servicing Agreement shall control.

(c) The Servicer’s obligations hereunder shall terminate on the Final Payout Date. After such termination, the Servicer shall promptly deliver to the Seller all books, records and related materials that the Seller previously provided to the Servicer in connection with this Agreement.

(d) During such period as a Backup Servicer is required to be maintained hereunder, the Servicer shall provide to the Backup Servicer and the Agent and each Purchaser Agent (if requested) all such information (by the times and in the form) specified to be delivered by the Servicer under the Backup Servicing Agreement.

(e) Following the occurrence and during the continuation of a Termination Event or a Level One Trigger, the Servicer shall provide to the Agent and each Purchaser Agent (if requested) on a daily basis a Portfolio Certificate (including information with respect to all Collections received and all Receivables acquired by the Seller).

Section 4.3. Deposit Accounts; Establishment and Use of Certain Accounts.

(i) Deposit Accounts. On or prior to the date hereof, the Servicer agrees to transfer ownership and control of each Deposit Account to the Seller. Seller has granted a valid security interest in each Deposit Account to the Agent (for the benefit of the Secured Parties) pursuant to Section 1.2(d) and shall take all actions reasonably requested by the Agent to cause the security interest to be perfected under the applicable UCC.

(ii) Cash Reserve Account. The Agent has established and will maintain in existence the Cash Reserve Account. The Cash Reserve Account shall be used to hold the Cash Reserve and for such other purposes described in the Transaction Documents.



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(iii) Liquidation Account. The Agent has established and will maintain in existence the Liquidation Account. The Liquidation Account shall be used to receive Collections from the Deposit Accounts pursuant to Section 1.4(b) and to hold amounts set aside for the Purchasers, the Backup Servicer and (if the Servicer is not AFC or an Affiliate of AFC) the Servicer out of the Collections of Pool Receivables prior to the applicable Settlement Dates and for such other purposes described in the Transaction Documents. No funds other than those transferred in accordance with Section 1.4 shall be intentionally transferred into the Liquidation Account.

(iv) Permitted Investments. Any amounts in the Liquidation Account or the Cash Reserve Account, as the case may be, may be invested by the Liquidation Account Bank or the Cash Reserve Account Bank, respectively, prior to the occurrence of a Termination Event at the Agent’s direction and following the occurrence of a Termination Event at the Agent’s direction, in Permitted Investments, so long as the Agent’s interest (for the benefit of the Secured Parties) in such Permitted Investments is perfected in a manner satisfactory to the Agent and such Permitted Investments are subject to no Adverse Claims other than those of the Agent provided hereunder.

(v) Control of Accounts. The Agent may (with written notice to the Purchaser Agents) and shall (at the direction of the Majority Purchasers) following any Termination Event (or an Unmatured Termination Event of the type described in paragraph (g) of Exhibit V) at any time give notice to any Deposit Account Bank that the Agent is exercising its rights under the applicable Deposit Account Agreement to do any or all of the following: (i) to have the exclusive ownership and control of such Deposit Account transferred to the Agent (or such other party designated by the Majority Purchasers) and to exercise exclusive dominion and control over the funds deposited therein and (ii) to take any or all other actions permitted under the applicable Deposit Account Agreement. The Seller hereby agrees that if the Agent (or such other party designated by the Majority Purchasers) at any time takes any action set forth in the preceding sentence, the Agent (or such other party designated by the Majority Purchasers) shall have exclusive control of the proceeds (including Collections) of all Pool Receivables and the Seller hereby further agrees to take any other action that the Majority Purchasers may reasonably request to transfer such control. Any proceeds of Pool Receivables received by the Seller, the Servicer or AFC (as Servicer or otherwise), thereafter shall be sent immediately to an account designated by the Majority Purchasers and held by the Agent (or such other party designated by the Majority Purchasers) for the benefit of the Secured Parties.

(vi) Location of Liquidation Account and Cash Reserve Account. If at anytime Xxxxxx Trust and Savings Bank is rated below A-1 by S&P or P-1 by Xxxxx’x, the Agent shall promptly establish a new Liquidation Account and a new Cash Reserve Account at a financial institution which is rated at least A-1+ by S&P (or if the financial institution is the Bank of Montreal A-1 by S&P) and P-1 by Xxxxx’x and transfer all amounts on deposit in such accounts at Xxxxxx Trust and Savings Bank to such new accounts at such financial institution, until such time as Xxxxxx Trust and Savings Bank is rated at least A-1 by S&P and P-1 by Xxxxx’x.

Section 4.4. Enforcement Rights. (a) At any time following the occurrence of a Termination Event:

(i) the Majority Purchasers may (with the consent of the Agent) direct the Obligors that payment of all amounts payable under any Pool Receivable be made directly



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to the Backup Servicer or such other party designated by the Majority Purchasers, in each case, for the benefit of the Secured Parties;

(ii) the Majority Purchasers may with the consent of the Agent instruct the Seller or the Servicer to give notice of the Agent’s interest (for the benefit of the Secured Parties) in Pool Receivables to each Obligor, which notice shall direct that payments be made directly to the Backup Servicer or such other party designated by the Majority Purchasers (for the benefit of the Secured Parties), and upon such instruction from the Majority Purchasers, the Seller or the Servicer, as applicable, shall give such notice at the expense of the Seller; provided, that if the Seller or the Servicer fails to so notify each Obligor, the Agent or its designee may so notify the Obligors; and

(iii) the Majority Purchasers may with the consent of the Agent request the Seller or the Servicer to, and upon such request the Seller or the Servicer, as applicable, shall, (A) assemble all of the records necessary or desirable to collect the Pool Receivables and the Related Security and all Pool Receivable Documents, and transfer or license to any new Servicer the use of all software necessary or desirable to collect the Pool Receivables and the Related Security, and make the same available to the Backup Servicer or other third-party custodian specified by, and at a place selected by, the Agent and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections with respect to the Pool Receivables in a manner acceptable to the Agent and, promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the Agent or the Backup Servicer (or such other party designated by the Majority Purchasers) (for the benefit of the Secured Parties).

(b) The Seller hereby authorizes the Agent (for the benefit of the Secured Parties), and irrevocably appoints the Agent (acting on behalf of the Secured Parties) as its attorney-in-fact with full power of substitution and with full authority in the place and stead of the Seller, which appointment is coupled with an interest, to take any and all steps in the name of the Seller and on behalf of the Seller necessary or desirable, in the determination of the Agent, to collect any and all amounts or portions thereof due under any and all Pool Receivables or Related Security, including, without limitation, endorsing the name of the Seller on checks and other instruments representing Collections and enforcing such Pool Receivables, Related Security and the related Contracts. The Agent shall only exercise the powers conferred by this subsection (b) after the occurrence of a Termination Event. Notwithstanding anything to the contrary contained in this subsection (b), none of the powers conferred upon such attorney-in-fact pursuant to the immediately preceding sentence shall subject such attorney-in-fact to any liability if any action taken by it shall prove to be inadequate or invalid, nor shall they confer any obligations upon such attorney-in-fact in any manner whatsoever.

Section 4.5. Responsibilities of the Seller. Anything herein to the contrary notwithstanding, the Seller shall (i) perform all of its obligations, if any, under the Contracts related to the Pool Receivables to the same extent as if interests in such Pool Receivables had not been transferred hereunder, and the exercise by any Secured Party of its rights hereunder shall not relieve the Seller from such obligations and (ii) pay when due any taxes, including, without limitation, any



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sales taxes payable in connection with the Pool Receivables and their creation and satisfaction. The Agent, the Purchaser Agents, the Purchasers, the Backup Servicer and any successor Servicer shall not have any obligation or liability with respect to any Pool Receivable, any Related Security or any related Contract, nor shall any of them be obligated to perform any of the obligations of the Seller or AFC under any of the foregoing.

Section 4.6. Servicing Fee. The Servicer shall be paid a monthly fee in arrears, through distributions contemplated by Section 1.4, equal to (a) at any time AFC or an Affiliate of AFC is the Servicer, [*], (b) at any time the Backup Servicer has become the Servicer hereunder, [*], and (c) at any time a Person other than AFC, an Affiliate of AFC or the Backup Servicer is the Servicer, the Unaffiliated Servicing Fees or such other amount as the Agent and such successor Servicer shall agree. The Servicing Fee shall not be payable to the extent funds are not available to pay the Servicing Fee pursuant to Section 1.4.

Section 4.7. Specified Ineligible Receivables. On or prior to the initial date of purchase of a Receivable under the Purchase and Sale Agreement, the Servicer (so long as the Originator is the Servicer) may designate such Receivable as a “Specified Ineligible Receivable” (which designation may take the form of a specification that a certain class or category of Receivables to be transferred from the Originator to the Seller after such designation will be treated as “Specified Ineligible Receivables”). In addition, the Servicer (so long as the Originator is the Servicer) may, on behalf of the Seller, (i) designate an existing Receivable then owned by the Seller as a “Specified Ineligible Receivable” or (ii) designate an existing Specified Ineligible Receivable then owned by the Seller as a Receivable (i.e., no longer a “Specified Ineligible Receivable”), in each of cases (i) and (ii) with the prior written consent of the Majority Purchasers. For the avoidance of doubt, any Receivable which was treated as an Eligible Receivable hereunder at any time may not be treated as a “Specified Ineligible Receivable” without the prior written consent of the Majority Purchasers. The Servicer (so long as the Originator is the Servicer) shall identify the aggregate Outstanding Balance of all such “Specified Ineligible Receivables” on the Servicer Report. To the extent the Servicer has from time to time identified a Receivable as a “Specified Ineligible Receivable” in accordance with this Section, for so long as such Receivable is a Specified Ineligible Receivable, (i) such Receivable shall not be included as an Eligible Receivable by the Seller or the Servicer hereunder, (ii) such Receivable shall not be included in any calculations of the Delinquency Ratio or the Default Ratio or other Pool Receivables information (other than a statement of the aggregate Outstanding Balance of such Specified Ineligible Receivables) hereunder and (iii) such Receivable shall not be considered a Receivable for purposes of clause (o) of Exhibit V hereof.

ARTICLE V.

THE AGENTS

Section 5.1. Appointment and Authorization. Each Purchaser and Purchaser Agent (including each Purchaser and Purchaser Agent that may from time to time become a party hereto) hereby irrevocably designates and appoints BMO Capital Markets Corp. as the “Agent” hereunder and authorizes the Agent to take such actions and to exercise such powers as are delegated to the Agent hereby and to exercise such other powers as are reasonably incidental thereto. The Agent



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shall hold, in its name, for the benefit of the Secured Parties, amounts on deposit in the Liquidation Account and the Cash Reserve Account. The Agent shall not have any duties other than those expressly set forth herein or any fiduciary relationship with any Indemnified Party, and no implied obligations or liabilities shall be read into this Agreement or any other Transaction Document or otherwise exist against the Agent. The Agent does not assume, nor shall it be deemed to have assumed, any obligation to, or relationship of trust or agency with, the Seller or Servicer. Notwithstanding any provision of this Agreement or any other Transaction Document to the contrary, in no event shall the Agent ever be required to take any action which exposes the Agent to personal liability (unless indemnified in advance in a manner determined satisfactory to the Agent in its sole and absolute discretion) or which is contrary to the provision of any Transaction Document or applicable law.

(a) Each Purchaser hereby irrevocably designates and appoints the respective institution identified as the Purchaser Agent for such Purchaser on the signature pages hereto or in any agreement pursuant to which such Purchaser becomes a party hereto, and each authorizes such Purchaser Agent to take such action on its behalf under the provisions of this Agreement and to exercise such powers and perform such duties as are expressly delegated to such Purchaser Agent by the terms of this Agreement, if any, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Purchaser Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Purchaser or other Purchaser Agent or the Agent, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of such Purchaser Agent shall be read into this Agreement or otherwise exist against such Purchaser Agent.

(b) Except as otherwise specifically provided in this Agreement, the provisions of this Article V are solely for the benefit of the Purchaser Agents, the Agent and the Purchasers, and none of the Seller or Servicer shall have any rights as a third‑party beneficiary or otherwise under any of the provisions of this Article V, except that this Article V shall not affect any obligations which any Purchaser Agent, the Agent or any Purchaser may have to the Seller or the Servicer under the other provisions of this Agreement. Furthermore, no Purchaser shall have any rights as a third-party beneficiary or otherwise under any of the provisions hereof in respect of a Purchaser Agent which is not the Purchaser Agent for such Purchaser.

(c) In performing its functions and duties hereunder, the Agent shall act solely as the agent of the Secured Parties, and the Agent does not assume nor shall be deemed to have assumed any obligation or relationship of trust or agency with or for the Seller or Servicer or any of their successors and assigns. In performing its functions and duties hereunder, each Purchaser Agent shall act solely as the agent of its respective Purchasers and does not assume nor shall be deemed to have assumed any obligation or relationship of trust or agency with or for the Seller, the Servicer, any other Purchaser, any other Purchaser Agent or the Agent, or any of their respective successors and assigns.

Section 5.2. Delegation of Duties. The Agent may, with the prior written consent of the Majority Purchasers, execute any of its duties through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall not be



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responsible to the Purchaser Agents or any Purchaser for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.

Section 5.3. Exculpatory Provisions. None of the Purchaser Agents, the Agent or any of their directors, officers, agents or employees shall be liable for any action taken or omitted (i) with the consent or at the direction of the Majority Purchasers (or in the case of any Purchaser Agent, the Purchaser relating to such Purchaser Agent) or (ii) in the absence of such Person’s gross negligence or willful misconduct. The Agent shall not be responsible to any Purchaser or Purchaser Agent for (i) any recitals, representations, warranties or other statements made by the Seller, Servicer, the Originator or any of their Affiliates, (ii) the value, validity, effectiveness, genuineness, enforceability or sufficiency of any Transaction Document, (iii) any failure of the Seller, the Servicer, the Originator or any of their Affiliates to perform any obligation it may have under any Transaction Document to which it is a party or (iv) the satisfaction of any condition specified in Exhibit II. The Agent shall not have any obligation to any Purchaser or any Purchaser Agent to ascertain or inquire about the observance or performance of any agreement contained in any Transaction Document or to inspect the properties, books or records of the Seller, Servicer, the Originator or any of their Affiliates.

Section 5.4. Reliance by Agents. Each Purchaser Agent and the Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or other writing or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person and upon advice and statements of legal counsel (including counsel to the Seller or Servicer), independent accountants and other experts selected by the Agent or any such Purchaser Agent. Each Purchaser Agent and the Agent shall in all cases be fully justified in failing or refusing to take any action under any Transaction Document unless it shall first receive such advice or concurrence of the Majority Purchasers (or in the case of any Purchaser Agent, the Purchaser relating to such Purchaser Agent) and it shall first be indemnified to its satisfaction against any and all liability and expense which may be incurred by reason of taking or continuing to take any such action.

(a) With regard to the Purchasers and the Purchaser Agents, the Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request of the Majority Purchasers and the Purchaser Agents, and such request and any action taken or failure to act pursuant thereto shall be binding upon all Purchasers and Purchaser Agents.

(b) Purchasers that have a common Purchaser Agent and that have a majority of the Investment of all such related Purchasers shall be entitled to request or direct the related Purchaser Agent to take action, or refrain from taking action, under this Agreement on behalf of such Purchasers. With regard to the Purchasers and the Purchaser Agents, such Purchaser Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request of such Purchasers, and such request and any action taken or failure to act pursuant thereto shall be binding upon all of such Purchaser Agent’s related Purchasers.

(c) Unless otherwise advised in writing by a Purchaser Agent or by any Purchaser on whose behalf such Purchaser Agent is purportedly acting, each party to this Agreement may assume that (i) such Purchaser Agent is acting for the benefit of each of the Purchasers for which such



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Purchaser Agent is identified herein (or in any Joinder Agreement or assignment agreement) as being the Purchaser Agent, as well as for the benefit of each assignee or other transferee from any such Person, and (ii) each action taken by such Purchaser Agent has been duly authorized and approved by all necessary action on the part of the Purchasers on whose behalf it is purportedly acting. Each Purchaser Agent and its Purchaser(s) shall agree amongst themselves as to the circumstances and procedures for removal, resignation and replacement of such Purchaser Agent.

Section 5.5. Notice of Termination Date. Neither any Purchaser Agent nor the Agent shall be deemed to have knowledge or notice of the occurrence of any Termination Event or Unmatured Termination Event unless such Person has received notice from any Purchaser, Purchaser Agent, the Servicer or the Seller stating that a Termination Event or Unmatured Termination Event has occurred hereunder and describing such Termination Event or Unmatured Termination Event. If the Agent receives such a notice, it shall promptly give notice thereof to each Purchaser Agent whereupon each such Purchaser Agent shall promptly give notice thereof to its Purchasers. If a Purchaser Agent receives such a notice (other than from the Agent), it shall promptly give notice thereof to the Agent. The Agent shall take such action concerning a Termination Event or Unmatured Termination Event as may be directed by the Majority Purchasers (unless such action is otherwise specified herein as requiring the consent of all Purchasers), but until the Agent receives such directions, the Agent may (but shall not be obligated to) take such action, or refrain from taking such action, as the Agent deems advisable and in the best interests of the Secured Parties.

Section 5.6. Non-Reliance on Agent, Purchaser Agents and Other Purchasers. Each Purchaser expressly acknowledges that none of the Agent, the Purchaser Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Agent or any Purchaser Agent hereafter taken, including any review of the affairs of the Seller, Servicer or the Originator, shall be deemed to constitute any representation or warranty by the Agent or such Purchaser Agent, as applicable. Each Purchaser represents and warrants to the Agent and the Purchaser Agents that, independently and without reliance upon the Agent, Purchaser Agents or any other Purchaser and based on such documents and information as it has deemed appropriate, it has made and will continue to make its own appraisal of and investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of the Seller, Servicer and the Originator, and the Receivables and its own decision to enter into this Agreement and to take, or omit, action under any Transaction Document. Except for items specifically required to be delivered hereunder, the Agent shall not have any duty or responsibility to provide any Purchaser Agent with any information concerning the Seller, Servicer or the Originator or any of their Affiliates or the Receivables that comes into the possession of the Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.

Section 5.7. Agent, Purchaser Agents and Purchasers. Each of the Purchasers, the Agent, the Purchaser Agents and their Affiliates may extend credit to, accept deposits from and generally engage in any kind of banking, trust, debt or other business with the Seller, KAR, Servicer or the Originator or any of their Affiliates. With respect to the acquisition of the Eligible Receivables pursuant to this Agreement, any of the Purchaser Agents and the Agent shall, to the extent they become Purchasers hereunder, have the same rights and powers under this Agreement as any



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Purchaser and may exercise the same as though it were not such an agent, and the terms “Purchaser” and “Purchasers” shall, in such case, include such Purchaser Agent or the Agent in their individual capacities.

Section 5.8. Indemnification. Each Purchaser shall indemnify and hold harmless the Agent (but solely in its capacity as Agent) and its officers, directors, employees, representatives and agents (to the extent not reimbursed by the Seller or Servicer and without limiting the obligation of the Seller or Servicer to do so), ratably in accordance with their respective Investment from and against any and all liabilities, obligations, losses, damages, penalties, judgments, settlements, costs, expenses and disbursements of any kind whatsoever (including in connection with any investigative or threatened proceeding, whether or not the Agent or such Person shall be designated a party thereto) that may at any time be imposed on, incurred by or asserted against the Agent or such Person as a result of, or related to, any of the transactions contemplated by the Transaction Documents or the execution, delivery or performance of the Transaction Documents or any other document furnished in connection therewith (but excluding any such liabilities, obligations, losses, damages, penalties, judgments, settlements, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Agent or such Person as finally determined by a court of competent jurisdiction). The obligations of any Note Issuer under this Section 5.8 shall be subject to the restrictions of Section 6.5.

Section 5.9. Successor Agent. The Agent may, upon at least thirty (30) days notice to the Seller, the Servicer, the Backup Servicer, each Purchaser and Purchaser Agent, resign as Agent. Such resignation shall not become effective until a successor Agent is appointed by the Majority Purchasers and has accepted such appointment. Upon such acceptance of its appointment as Agent hereunder by a successor Agent, such successor Agent shall succeed to and become vested with all the rights and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Transaction Documents. After any retiring Agent’s resignation hereunder, the provisions of Sections 3.1, 3.2, 3.3 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Agent.

ARTICLE VI.

MISCELLANEOUS

Section 6.1. Amendments, Etc. No amendment or waiver of any provision of this Agreement or consent to any departure by the Seller or Servicer therefrom shall be effective unless in a writing signed by the Majority Purchasers and, in the case of any amendment, by the Seller and the Servicer and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that (i) other than an amendment to extend the scheduled Termination Date, no amendment shall be effective unless each Note Issuer that is a Purchaser (or the applicable Purchaser Agent on its behalf) shall have received written confirmation by the Rating Agencies that such amendment shall not cause the rating on the then outstanding Notes of such Note Issuer to be downgraded or withdrawn; (ii) no amendment shall be effective which would reduce the amount of Investment or Discount, or fees or other amounts payable to any Purchaser hereunder, or delay any scheduled date for payment thereof (including



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any scheduled occurrence of the Termination Date) absent the prior written consent of such Purchaser; (iii) no increase in a Purchaser’s Maximum Commitment shall be effective without the prior written consent of such Purchaser; (iv) no amendments to this Section 6.1 or to the definition of Majority Purchasers shall be effective without the prior written consent of all Purchasers and (v) no amendments to Sections 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.8, 1.10, 1.11, 1.12, 3.1, 3.2, Article V, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.9, 6.10, 6.11 or 6.13 or the definitions of Bank Rate, Base Rate, Carry Costs, CP Rate, Discount, Eurodollar Rate, Federal Funds Rate, Investment, Level One Trigger, LIBOR, Loss Percentage, Loss Reserve, Net Receivables Pool Balance, Normal Concentration Percentage, Participation, Program Fee, Special Concentration Percentage, Special Obligor, Termination Date, Termination Fee, Yield Period, or any definitions incorporated in such definitions, shall be effective in each case without the consent of the Majority Purchasers and the Agent; and provided, further, that no such amendment shall in any way amend any provisions of this Agreement applicable to the rights or obligations of the Agent or any Purchaser Agent without the prior written consent of the Agent or such Purchaser Agent, as applicable. No failure on the part of the Agent, any Purchaser, or any Purchaser Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.

Section 6.2. Notices, Etc. All notices and other communications hereunder shall, unless otherwise stated herein, be in writing (which shall include facsimile and electronic mail communication) and sent or delivered, to each party hereto, at its address set forth under its name on the signature pages hereof or, in the case of the Backup Servicer, at its notice address designated in the Backup Servicing Agreement or, in any case, at such other address as shall be designated by such party in a written notice to the other parties hereto. Notices and communications by facsimile or electronic mail shall be effective when sent (and shall, unless such delivery is waived by the recipient by electronic mail or other means, be followed by hard copy sent by first class mail), and notices and communications sent by other means shall be effective when received.

Section 6.3. Assignability. (a) This Agreement and any Purchaser’s rights and obligations herein (including ownership of its Participation) shall be assignable, in whole or in part, by such Purchaser and its successors and assigns with the prior written consent of the Seller and the Agent; provided, however, that such consent shall not be unreasonably withheld; and provided, further, that no such consent shall be required if the assignment is made to (i) any Affiliate of such Purchaser, (ii) any Liquidity Bank (or any Person who upon such assignment would be a Liquidity Bank) of such Purchaser or (iii) any Program Support Provider (or any Person who upon such assignment would be a Program Support Provider) of such Purchaser. Each assignor may, in connection with the assignment, disclose to the applicable assignee any information relating to the Seller or the Pool Receivables furnished to such assignor by or on behalf of the Seller, the Agent, the Purchasers or the Purchaser Agents.

Upon the assignment by a Purchaser in accordance with this Section 6.3, the assignee receiving such assignment shall have all of the rights of such Purchaser with respect to the Transaction Documents and the Investment (or such portion thereof as has been assigned).



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(b) Each Purchaser may at any time grant to one or more banks or other institutions (each a “Liquidity Bank”) party to a Liquidity Agreement or to any other Program Support Provider participating interests or security interests in its Participation. In the event of any such grant by a Purchaser of a participating interest to a Liquidity Bank or other Program Support Provider, the Purchaser shall remain responsible for the performance of its obligations hereunder. The Seller agrees that each Liquidity Bank or other Program Support Provider shall be entitled to the benefits of Sections 1.8 and 1.10.

(c) This Agreement and the rights and obligations of any Purchaser Agent hereunder shall be assignable, in whole or in part, by such Purchaser Agent and its successors and assigns; provided, however, that if such assignment is to any Person that is not an Affiliate of the assigning Purchaser Agent, such Purchaser Agent must receive the prior written consent (which consent in each case shall not be unreasonably withheld) of the Agent and the Seller.

(d) Except as provided in Section 4.1(d), neither the Seller nor the Servicer may assign its rights or delegate its obligations hereunder or any interest herein without the prior written consent of the Majority Purchasers.

(e) Without limiting any other rights that may be available under applicable law, the rights of any Purchaser may be enforced by it directly or by its Purchaser Agent or its other agents.

(f) [*]

Section 6.4. Costs, Expenses and Taxes. (a) In addition to the rights of indemnification granted under Section 3.1 hereof, the Seller agrees to pay on demand all reasonable costs and expenses in connection with the preparation, execution, delivery and administration (including periodic auditing of Pool Receivables) of this Agreement, any Liquidity Agreement, the other Transaction Documents and the other documents and agreements to be delivered hereunder or in connection herewith, including all reasonable costs and expenses relating to the amending, amending and restating, modifying or supplementing any such documents or agreements and the waiving of any provisions thereof, and including in all cases, without limitation, Rating Agency fees (including in connection with the execution hereof and any amendments hereto) and Attorney Costs for the Agent, each Purchaser, each Program Support Provider, each Purchaser Agent, the Backup Servicer, any successor Servicer and their respective Affiliates and agents with respect thereto and with respect to advising the Agent, the Purchaser, each Program Support Provider and their respective Affiliates and agents as to their rights and remedies under this Agreement and the other Transaction Documents, and all reasonable costs and expenses, if any (including Attorney Costs), of each Purchaser Agent, each Purchaser, each Program Support Provider, the Agent, the Backup Servicer, any successor Servicer and their respective Affiliates and agents in connection with the enforcement of this Agreement and the other Transaction Documents.

(b) In addition, the Seller shall pay on demand any and all stamp and other taxes and fees payable in connection with the execution, delivery, filing and recording of this Agreement or the other documents or agreements to be delivered hereunder, and agrees to save each Indemnified Party harmless from and against any liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and fees.



	31

Section 6.5. No Proceedings; Limitation on Payments. (a) Each of the Seller, the Servicer, the Agent, the Purchaser Agents, the Purchasers, the Backup Servicer, each assignee of a Participation or any interest therein, and each Person which enters into a commitment to purchase or does purchase a Participation or interests therein hereby covenants and agrees that it will not institute against, or join any other Person in instituting against, any Note Issuer or Related CP Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any federal or state bankruptcy or similar law, for one year and one day after the latest maturing Note issued by any such Note Issuer or Related CP Issuer is paid in full.

(b) Notwithstanding any provisions contained in this Agreement to the contrary, no Note Issuer shall, nor shall it be obligated to, pay any amount pursuant to this Agreement unless such Note Issuer has excess cash flow from operations or has received funds with respect to such obligation which may be used to make such payment and which funds or excess cash flow are not required to repay its Notes when due. Any amounts which a Note Issuer does not pay pursuant to the operation of the preceding sentence shall not constitute a claim against such Note Issuer for any such insufficiency unless and until the condition described in the preceding sentence is satisfied. Nothing in this subsection (b) shall be construed to forgive or cancel any obligations of such Note Issuer hereunder.

(c) Each of the Servicer, the Agent, the Purchaser Agents, the Purchasers, the Backup Servicer, each assignee of a Participation or any interest therein, and each Person which enters into a commitment to purchase or does purchase a Participation or interests therein hereby covenants and agrees that it will not institute against, or join any other Person in instituting against, the Seller any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any federal or state bankruptcy or similar law, for one year and one day after all amounts payable by the Seller hereunder are paid in full.

(d) Notwithstanding any provisions contained in this Agreement to the contrary, the Seller shall not be obligated to pay any amount pursuant to this Agreement unless the Seller has property or other assets which may be used to make such payment. Any amounts which the Seller does not pay pursuant to the operation of the preceding sentence shall not constitute a claim against the Seller for any such insufficiency unless and until the conditions described in the preceding sentence are satisfied. Nothing in this subsection (d) shall be construed to forgive or cancel any obligations of the Seller hereunder.

Section 6.6. Confidentiality. Unless otherwise required by applicable law or already known by the general public or the third party to which it is disclosed, the Seller agrees to maintain the confidentiality of this Agreement and the other Transaction Documents (and all drafts thereof) in communications with third parties and otherwise; provided that this Agreement may be disclosed to (a) third parties to the extent such disclosure is made pursuant to a written agreement of confidentiality in form and substance reasonably satisfactory to the Agent and (b) the Seller’s legal counsel and auditors if they agree to hold it confidential.

Section 6.7. GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF INDIANA (WITHOUT GIVING EFFECT TO THE PRINCIPLES OF



	32

CONFLICTS OF LAWS THEREOF), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, EXCEPT TO THE EXTENT THAT THE PERFECTION (OR THE EFFECT OF PERFECTION OR NON-PERFECTION) OF THE INTERESTS OF THE PURCHASERS IN THE POOL RECEIVABLES AND THE OTHER ITEMS DESCRIBED IN SECTION 1.2(d) IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF INDIANA.

(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS XXXX COUNTY AND CHICAGO OR NEW YORK NEW YORK COUNTY, XXX XXXX XXXX XX XX XXX XXXXXX XXXXXX FOR THE NORTHERN DISTRICT OF ILLINOIS OR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PURCHASERS, THE SELLER, THE SERVICER, THE PURCHASER AGENTS AND THE AGENT CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PURCHASERS, THE SELLER, THE SERVICER, THE PURCHASER AGENTS AND THE AGENT IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.

Section 6.8. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement.

Section 6.9. Survival of Termination. The provisions of Sections 1.8, 1.10, 3.1, 3.2, 6.4, 6.5, 6.6, 6.7, 6.10 and 6.13 shall survive any termination of this Agreement.

Section 6.10. WAIVER OF JURY TRIAL. THE PURCHASERS, THE SELLER, THE SERVICER, THE PURCHASER AGENTS, THE AGENT AND THE BACKUP SERVICER (BY ACCEPTING THE BENEFIT HEREOF) EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PURCHASERS, THE SELLER, THE SERVICER, THE PURCHASER AGENTS, THE AGENT AND THE BACKUP SERVICER EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH



	33

SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

Section 6.11. Entire Agreement. This Agreement (together with the other Transaction Documents) embodies the entire agreement and understanding between the Purchasers, the Seller, the Servicer, the Purchaser Agents and the Agent, and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof.

Section 6.12. Headings. The captions and headings of this Agreement and in any Exhibit hereto are for convenience of reference only and shall not affect the interpretation hereof or thereof.

Section 6.13. Liabilities of the Purchasers. The obligations of each Purchaser under this Agreement are solely the corporate obligations of such Purchaser. No recourse shall be had for any obligation or claim arising out of or based upon this Agreement against any stockholder, employee, officer, director or incorporator of any Purchaser; and provided, however, that this Section 6.13 shall not relieve any such Person of any liability it might otherwise have for its own gross negligence or willful misconduct. The agreements provided in this Section 6.13 shall survive termination of this Agreement.

Section 6.14. Tax Treatment. The Participations shall be treated and reported as indebtedness of the Seller for all income and franchise tax purposes. The Seller, the Servicer, the Agent and Fairway and each Purchaser, by its agreement to make a purchase (and to make reinvestments, if applicable) with regard to its Participation, agrees, and shall cause its assignees to agree, to treat and report the Participations as indebtedness of the Seller for all income and franchise tax purposes.



	34

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

AFC FUNDING CORPORATION,

as Seller

    By: /s/ Xxxxx X. Money, II
    Name: Xxxxx X. Money, II
    Title: Chief Financial Officer & Treasurer

    00000 Xxxxxxxx Xxxxxxxx Xxxx., Xxxxx 000
    Xxxxxx, Xxxxxxx 00000
    Attention: Xxx Money
    Telephone: 000-000-0000
    Facsimile: 000-000-0000
    E-mail: xxxxxx@xxxxxxxxxxx.xxx

AUTOMOTIVE FINANCE CORPORATION,

as Servicer

    By: /s/ Xxxxx X. Money, II
    Name: Xxxxx X. Money, II
    Title: Chief Financial Officer & Treasurer

00000 Xxxxxxxx Xxxxxxxx Xxxx., Xxxxx 000
    Xxxxxx, Xxxxxxx 00000
    Attention: Xxx Money
    Telephone: 000-000-0000
    Facsimile: 000-000-0000
    E-mail: xxxxxx@xxxxxxxxxxx.xxx



	S-1

BMO CAPITAL MARKETS CORP.,

as Agent and as Purchaser Agent for Fairway

    By: /s/ Xxxx Xxxxxxx
    Name: Xxxx Xxxxxxx
    Title: Managing Director

BMO CAPITAL MARKETS CORP.
    000 X. XxXxxxx, 00xx Xxxxx Xxxx
    Xxxxxxx, Xxxxxxxx 00000
    Attention: Conduit Administration
    E-mail: xxxxxxxxxxx@xxx.xxx
    Telephone: (000) 000-0000
    Facsimile: (000) 000-0000

FAIRWAY FINANCE COMPANY, LLC,

as a Purchaser

    By: /s/ Xxxxxxx X. Xxxxxx
    Name: Xxxxxxx X. Xxxxxx
    Title: Vice President

    c/o Lord Securities Corp.
    00 Xxxx Xxxxxx, 00xx Xxxxx
    Xxx Xxxx, Xxx Xxxx 00000
    Attention: Xxxxxxx Xxxxxx
    Email: xxxxxxx.xxxxxx@xxxxxxx.xxx
    Telephone: (000) 000-0000
Facsimile: (000) 000-0000

Maximum Commitment:

[*]



	X-0

XXXXXXXX XXXX XX, XXX XXXX BRANCH,

as Purchaser Agent for Saratoga Funding Corp., LLC

By: /s/ Xxxxxx Xxxxxx

Name: Xxxxxx Xxxxxx
Title: Director

By: /s/ Xxxxx Xxxxxxx

Name: Xxxxx Xxxxxxx
Title: Vice-President

DEUTSCHE BANK AG, NEW YORK BRANCH,

00 Xxxx Xxxxxx, 00^xx Xxxxx

Xxx Xxxx, Xxx Xxxx 00000

Email: xxx-xxxxxxxx@xxxx.xx.xxx

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

SARATOGA FUNDING CORP., LLC,

as a Purchaser

By: /s/ Xxxxxxx X. Xxxxxx

Name: Xxxxxxx X. Xxxxxx
Title: Vice President

c/o Lord Securities Corporation
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Maximum Commitment:

[*]



	X-0

XXXXXXXX XXXX XX, XXX XXXX BRANCH,

as Purchaser and Purchaser Agent for itself

By: /s/ Xxxxxx Xxxxxx

Name: Xxxxxx Xxxxxx
Title: Director

By: /s/ Xxxxx Xxxxxxx

Name: Xxxxx Xxxxxxx
Title: Vice President

Maximum Commitment:

[*]



	S-4

BMO XXXXXX BANK N.A.,

as Purchaser and Purchaser Agent for itself

    By: /s/ Xxxxx X. Xxxxxx
    Name: Xxxxx X. Xxxxxx
    Title: Managing Director

000 Xxxxx XxXxxxx Xxxxxx – 00X

Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx

E-mail: xxxxx.xxxxxx@xxx.xxx

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Maximum Commitment
[*]



	S-5

FIFTH THIRD BANK,

as Purchaser and as Purchaser Agent for itself

    By: /s/ Xxxxxx X. Xxxxx
    Name: Xxxxxx X. Xxxxx
    Title: Vice President

00 Xxxxxxxx Xxxxxx Xxxxx, XX 000000

Attention: Asset Securitization Group

E-mail: xxxxxx.xxxxx@00.xxx / 00.Xxxxxxxxxxxxxx.Xxxxxxx@00.xxx

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Maximum Commitment
[*]



	S-6

Acknowledged and Agreed:

KAR AUCTION SERVICES, INC.,
as provider of the Performance Guaranty

By: /s/ Xxxx X. Xxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxx
Title: Executive Vice President and Chief Financial Officer



	S-7

STATE OF INDIANA        )
                )    SS
COUNTY OF XXXXXXXX    )

Before me the undersigned, a Notary Public in and for the said County and State, personally appeared Xxxxx X. Money, II, an officer of AFC FUNDING CORPORATION, personally known to me who acknowledged the execution of the foregoing this 21^st day of June, 2013.



/s/ Xxxxxxxxx X. York Signature	My Commission Expires: 12-05-16
Xxxxxxxxx X. York Printed Name	My County of Residence: Xxxxxxxx

STATE OF INDIANA        )
                )    SS
COUNTY OF XXXXXXXX    )

Before me the undersigned, a Notary Public in and for the said County and State, personally appeared Xxxxx X. Money, II, an officer of AUTOMOTIVE FINANCE CORPORATION, personally known to me who acknowledged the execution of the foregoing this 21^st day of June, 2013.



/s/ Xxxxxxxxx X. York Signature	My Commission Expires: 12-05-16
Xxxxxxxxx X. York Printed Name	My County of Residence: Xxxxxxxx



	X-0

EXHIBIT I

DEFINITIONS

As used in the Agreement (including its Exhibits), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined). Unless otherwise indicated, all Section, Annex, Exhibit and Schedule references in this Exhibit are to Sections of and Annexes, Exhibits and Schedules to the Agreement.

“ADESA” means ADESA, Inc., a Delaware corporation.

“Adverse Claim” means a lien, security interest or other charge or encumbrance, or any other type of preferential arrangement, it being understood that a lien, security interest or other charge or encumbrance, or any other type of preferential arrangement, in favor of the Agent for the benefit of the Secured Parties contemplated by the Agreement shall not constitute an Adverse Claim.

“AFC” has the meaning set forth in the preamble to this Agreement.

“Affected Person” has the meaning set forth in Section 1.8.

“Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person, except that with respect to a Purchaser, Affiliate shall mean the holder(s) of its capital stock.

“Agent” has the meaning set forth in the preamble to this Agreement.

“Aggregate Participation” means, at any time, the sum of the Participations expressed as a percentage.

“Agreement” has the meaning set forth in the preamble to this Agreement.

“Applicable Rental Receivables Advance Rate” means [*]; provided that, unless all Purchaser Agents agree otherwise, such rate will be reduced at any time any Static Rental Receivables Pool Net Loss Rate for any [*] rolling period ending during the prior 24 months (each [*] rolling period, a vintage) is [*] or greater to (i) [*] if such Static Rental Receivables Pool Net Loss Rate is [*] or greater but less than [*] or (ii) [*] if such Static Rental Receivables Pool Net Loss Rate is [*] or greater but less than [*] or (iii) [*] if such Static Rental Receivables Pool Net Loss Rate is [*] or greater.

“Attorney Costs” means and includes all reasonable fees and reasonable disbursements of any law firm or other external counsel, and all reasonable disbursements of internal counsel.

“Auction Credit” means a Receivable pursuant to which a wholesale auction has granted credit for the purposes of a float sale arrangement with dealers, provided that the wholesale



	EX-I-1

auction shall be considered the “Obligor” of such Receivable and shall be subject to the Normal Concentration Percentage or Special Concentration Percentage, as applicable.

“Backup Servicer” means the Person appointed to act as backup servicer pursuant to the Backup Servicing Agreement.

“Backup Servicer Payment Date” means each Settlement Date.

“Backup Servicing Agreement” means (i) the Backup Servicing Agreement, dated as of January 19, 2011, among the Servicer, Xxxxx Fargo Bank, National Association, the Agent and the other parties thereto; and (ii) any replacement backup servicing agreement entered into from time to time with the prior written consent of the Majority Purchasers; in each case as such agreements may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof.

“Backup Servicing Fee Letter” means (i) the fee letter, dated October 20, 2010, setting forth the Backup Servicing Fees payable to the Backup Servicer; and (ii) any replacement backup servicing fee letter entered into from time to time with the prior written consent of the Majority Purchasers; in each case as such letters may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof.

“Backup Servicing Fees” means all fees and reimbursable expenses (excluding Transition Expenses) payable to the Backup Servicer (for the avoidance of doubt, prior to Backup Servicer assuming the role of Servicer) pursuant to the Backup Servicing Agreement or the Backup Servicing Fee Letter.

“Bank Rate” means, for any Purchaser for any Yield Period, an interest rate per annum equal to the Eurodollar Rate for such Purchaser for such Yield Period; provided, that in the case of any Yield Period on or after the first day of which the applicable Purchaser Agent shall have been notified by a Liquidity Bank or the related Purchaser that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other Governmental Authority asserts that it is unlawful, for such Liquidity Bank or such Purchaser to fund its Investment based on the Eurodollar Rate set forth above (and such Liquidity Bank or such Purchaser, as applicable, shall not have subsequently notified such Purchaser Agent that such circumstances no longer exist), the “Bank Rate” for each such Yield Period shall be an interest rate per annum equal to the Base Rate in effect on each day of such Yield Period. Notwithstanding the foregoing, the “Bank Rate” for each day in a Yield Period occurring during the continuance of a Termination Event shall be an interest rate equal to 2% per annum above the Base Rate in effect on such day.

“Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978 (11U.S.C. § 101, et seq.), as amended and in effect from time to time.

“Base Rate” means, for any Purchaser for any day, a fluctuating interest rate per annum equal to the higher of: (a) the rate of interest most recently announced by the applicable Reference Bank as its prime commercial rate for loans made in Dollars in the United States or (b)



	EX-I-2

0.50% per annum above the latest Federal Funds Rate. The rate referred to in clause (a) is not necessarily intended to be the lowest rate of interest determined by the applicable Reference Bank in connection with extensions of credit.

“BMO Xxxxxx Bank” means BMO Xxxxxx Bank, N.A.

“Business Day” means any day on which (i) (A) the Agent at its branch office in Chicago, Illinois is open for business and (B) commercial banks in New York City are not authorized or required to be closed for business, and (ii) if this definition of “Business Day” is utilized in connection with the Eurodollar Rate, dealings are carried out in the London interbank market.

“Buyer’s Fees” means the fees paid by an Obligor to an auction or other commercial inventory source in connection with a purchase of a vehicle by such dealer.

“Carry Costs” means, with respect to any calendar month, the sum of the amounts of the following items that accrued or were incurred during such calendar month: (a) all Discount, (b) the Program Fee, (c) the Servicing Fee, (d) the Backup Servicing Fee and (e) all other expenses and fees of the Seller under the Agreement.

“Cash Reserve” means (i) at any time after the occurrence and during the continuation of a Level One Trigger, [*] of the aggregate Investment at such time and (ii) at any other time, an amount equal to 1% of the aggregate Investment at such time.

“Cash Reserve Account” means that certain bank account numbered 000-000-0 maintained at Xxxxxx Trust and Savings Bank in the name of “Cash Reserve Account, BMO Capital Markets Corp. as Agent,” and maintained for the benefit of the Secured Parties.

“Cash Reserve Account Bank” means the bank holding the Cash Reserve Account.

“Change in Control” means

(a) AFC shall fail to own, free and clear of all Adverse Claims, 100% of the outstanding shares of voting stock of the Seller, except as otherwise provided by the Pledge Agreement; or

(b) KAR shall fail to own, directly or indirectly, free and clear of all Adverse Claims (other than the KAR Credit Facility Pledge), at least 80% of the outstanding shares of voting stock of AFC, on a fully diluted basis.

“Closing Date” means June 21, 2013.

“Collection Accounts” means, collectively, the Deposit Accounts held at Xxxxx Fargo Bank, National Association.

“Collections” means, with respect to any Pool Receivable, (a) all funds which are received by the Seller, the Originator or the Servicer (including amounts paid directly to an Originating Lender and subsequently forwarded to the Seller, the Originator or the Servicer) in



	EX-I-3

payment of any amounts owed in respect of such Receivable (including, without limitation, principal payments, finance charges, floorplan fees, curtailment fees, interest and all other charges), or applied (or to be applied) to amounts owed in respect of such Receivable (including, without limitation, insurance payments and net proceeds of the sale or other disposition of vehicles or other collateral or property of the related Obligor or any other Person directly or indirectly liable for the payment of such Pool Receivable applied (or to be applied) thereto), (b) all Collections deemed to have been received pursuant to Section 1.9 and (c) all other proceeds of such Receivable.

“Company Note” has the meaning set forth in Section 3.2 of the Purchase and Sale Agreement.

“Contract” means, with respect to any Obligor, collectively, the Dealer Note issued by such Obligor, or similar agreement between such Obligor and AFC or an Originating Lender, as applicable, any guaranty issued in connection therewith and each other agreement or instrument executed by an Obligor pursuant to or in connection with any of the foregoing, the purpose of which is to evidence, secure or support such Obligor’s obligations to AFC or each Originating Lender, as applicable, under such Dealer Note or other similar agreement.

“CP Rate” means, for any Purchaser for any Yield Period, to the extent such Purchaser funds any portion of its Investment for such Yield Period by the issuance of Notes, the rate equivalent to the weighted average cost (as determined by the applicable Purchaser Agent and which shall include dealer fees, incremental carrying costs incurred with respect to Notes maturing on dates other than those on which corresponding funds are received by the Purchaser, other borrowings by the Purchaser or its related commercial paper issuer if the Purchaser does not itself issue commercial paper to fund any Investment hereunder (other than under any Program Support Agreement), actual costs of swapping foreign currencies into Dollars to the extent the Notes are issued in a market outside the U.S. and any other costs associated with the issuance of Notes) of or related to the issuance of Notes that are allocated, in whole or in part, by the Purchaser or the applicable Purchaser Agent to fund or maintain such portion of the Investment (and which may be also allocated in part to the funding of other assets of the Purchaser); provided, however, that if the rate (or rates) is a discount rate, then the rate (or if more than one rate, the weighted average of the rates) shall be the rate resulting from converting such discount rate (or rates) to an interest -bearing equivalent rate per annum. It is understood and agreed that any Purchaser or Purchaser Agent may either “match fund” Notes or “pool fund” Notes to maintain any Investment and may select the duration of Notes maintaining the Investment in its discretion.

“Credit and Collection Policy” means those receivables credit and collection policies and practices of the Servicer in effect on the date of the Agreement and provided to the Agent and the Purchaser Agents (including the core policy manual and the credit policy manual), as modified in compliance with the Agreement.

“Curtailment Date” means, with respect to any Receivable, the date defined as such in the Contract for such Receivable.

“Dealer Note” means a Demand Promissory Note and Security Agreement and any other promissory note issued by an Obligor in favor of AFC or the applicable Originating Lender.



	EX-I-4

“Debt” means (i) indebtedness for borrowed money (which shall not include, in the case of the Seller or AFC, accounts payable to any Affiliate in the ordinary course of business arising from the provision of goods and services by such Affiliate), (ii) obligations evidenced by bonds, debentures, notes or other similar instruments, (iii) obligations to pay the deferred purchase price of property or services, (iv) obligations as lessee under leases which shall have been or should be, in accordance with generally accepted accounting principles, recorded as capital leases, (v) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of kinds referred to in clauses (i) through (iv) above, and (vi) liabilities in respect of unfunded vested benefits under plans covered by Title IV of ERISA.

“Default Ratio” means the ratio (expressed as a percentage and rounded upward to the nearest 1/100th of 1%) computed as of the last day of each calendar month by dividing (i) the aggregate Outstanding Balance of all Pool Receivables that became Defaulted Receivables during such month plus the aggregate amount of non-cash adjustments that reduced the Outstanding Balance of any Pool Receivable during such month (other than a Pool Receivable that became a Defaulted Receivable during such month) by (ii) the aggregate amount of Pool Receivables that were generated by the Originator (including those acquired by the Originator from any Originating Lender) during the calendar month that occurred five calendar months prior to the calendar month ending on such day.

“Defaulted Receivable” means a Pool Receivable:

(i) as to which any payment, or part thereof, remains unpaid for more than 90 days after the due date for such payment;

(ii) which, consistent with the Credit and Collection Policy, would be written off the Seller’s books as uncollectible; or

(iii) which is converted to a long term payment plan in the form of a note or other similar document.

“Deferred Purchase Date” has the meaning specified in Section 1.2(a).

“Deferring Purchaser” has the meaning specified in Section 1.2(a).

“Delinquency Ratio” means the ratio (expressed as a percentage and rounded upward to the nearest 1/100 of 1%) computed as of the last day of each calendar month by dividing (i) the aggregate Outstanding Balance of all Pool Receivables (net of all miscellaneous credits) that were Delinquent Receivables on such day by (ii) the aggregate Outstanding Balance of all Pool Receivables on such day.

“Delinquent Receivable” means a Pool Receivable which is not a Defaulted Receivable (i) as to which any payment, or part thereof, remains unpaid for more than 30 days after the due date for such payment or (ii) which, consistent with the Credit and Collection Policy, would be classified as delinquent by the Seller.



	EX-I-5

“Deposit Account” means an account listed on Schedule II hereto and maintained at a bank or other financial institution for the purpose of receiving Collections.

“Deposit Account Agreement” means a letter agreement, in form and substance acceptable to the Agent, among the Seller, the Agent and the applicable Deposit Account Bank, as the same may be amended, supplemented, amended and restated, or otherwise modified from time to time in accordance with the Agreement.

“Deposit Bank” means any of the banks or other financial institutions at which one or more Deposit Accounts are maintained.

“Discount” means, with respect to each Purchaser:

(i) for the portion of Investment of its Participation for any Yield Period to the extent such Purchaser will be funding such portion of the Investment on the first day of such Yield Period through the issuance of Notes,

CPR x I x ED + TF

360

(ii) for the portion of Investment of its Participation for any Yield Period to the extent such Purchaser will not be funding such portion of the Investment on the first day of such Yield Period through the issuance of Notes,

BR x I x 360 + TF

where:



BR	=	the Bank Rate for the applicable portion of the Investment for such Yield Period
I	=	the applicable portion of Investment during such Yield Period
CPR	=	the CP Rate of such Purchaser (or its Related CP Issuer) for the applicable portion of the Investment for such Yield Period
ED	=	the actual number of days during such Yield Period
TF	=	the Termination Fee, if any, for such portion of Investment of the Participation for such Yield Period;

provided, that no provision of the Agreement shall require the payment or permit the collection of Discount in excess of the maximum permitted by applicable law; and provided, further, that Discount for any Investment of any Participation shall not be considered paid by any distribution to the extent



	EX-I-6

that at any time all or a portion of such distribution is rescinded or must otherwise be returned for any reason.

“Dividends” means any dividend or distribution (in cash or obligations) on any shares of any class of Seller’s capital stock or any warrants, options or other rights with respect to shares of any class of Seller’s capital stock.

“Eligible Contract” means a Contract in one of the forms delivered to and approved by the Purchaser Agents with such variations as AFC shall approve in its reasonable business judgment that shall not materially adversely affect the rights of the Originator or the Originating Lender, the Seller or the Purchasers.

“Eligible Receivable” means, at any time, any Receivable:

(a) which is denominated and payable only in U.S. Dollars, was originated by an Originating Lender and acquired by the Originator pursuant to an Originating Lender Sale Agreement or originated by the Originator in the ordinary course of business, was sold to the Seller pursuant to the Purchase and Sale Agreement and is either a general intangible, a payment intangible, an account or chattel paper;

(b) the Obligor of which is a resident of the United States and is not a government or a governmental subdivision or agency;

(c) in which the Agent (for the benefit of the Secured Parties) has a first priority, perfected security interest free from any Adverse Claim, and with respect to which the Agent has (i) a first priority perfected security interest in the vehicles financed thereby (except to the extent of any Permitted Liens), and (ii) a perfected security interest in all other Related Security with respect to such Receivable (to the extent that a security interest in such other Related Security can be perfected by the filing of a financing statement);

(d) in which Seller has a first priority, perfected ownership interest, free from any Adverse Claim, and with respect to which the Seller has (i) a first priority perfected security interest in the vehicles financed thereby (except to the extent of any Permitted Liens), and (ii) a perfected security interest in all other Related Security with respect to such Receivable (to the extent that a security interest in such other Related Security can be perfected by the filing of a financing statement);

(e) which arises from the making of a loan to finance the purchase of (i) an automobile or light duty truck, the ownership of which is evidenced by a certificate of title or electronic title, driven or drawn by mechanical power, manufactured primarily for use on the public streets, roads or highways with two axles, or (ii) a Specialty Vehicle;

(f) that is guaranteed by the related dealer’s parent, general partner or owners, provided that, in the Servicer’s discretion, guarantees shall not be required from (i) public companies or (ii) passive partners or minority partners when an operating partner has provided a guarantee;



	EX-I-7

(g) which arises under an Eligible Contract that has been duly authorized by the parties thereto and that, together with such Receivable, is in full force and effect and constitutes the legal, valid and binding obligation of the Obligor of such Receivable enforceable against such Obligor in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law;

(h) which, together with the Contract related thereto, does not contravene in any material respect any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to usury, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy);

(i) the sale of which pursuant to the Purchase and Sale Agreement, and the transfer of an undivided interest in which pursuant to this Agreement, do not contravene or conflict with any law, or require the consent of the Obligor or any other Person;

(j) with respect to which the Majority Purchasers have not given Seller at least five (5) Business Days’ notice that such Receivable will not be an Eligible Receivable hereunder, provided that such designation is in good faith and based on a reasonable business judgment by the Majority Purchasers that such Receivable should not be considered an Eligible Receivable;

(k) the Obligor of which is not an Affiliate of AFC, an Excluded Obligor or a father, mother, son or daughter (or any Affiliate thereof) of any officer or director of AFC or its Affiliates;

(l) for which AFC has taken (or caused to be taken) all commercially reasonable action to ensure that (i) the Obligor of such Receivable does not hold physical possession of the certificate of title or certificate of origin with respect to such Receivable (except for any Receivable originated in the State of Michigan), and (ii) in the case where there is only an electronic title (and not a physical title), the Seller (or the Originator or Originating Lender) is identified as lienholder in the electronic title records;

(m) which is not an Excluded Receivable, a Specified Ineligible Receivable, or a Title Attached Receivable;

(n) which (i) satisfies all applicable requirements of the Credit and Collection Policy, (ii) other than with respect to any Rental Receivable, whose terms require a minimum principal payment of not less than [*] plus accrued interest and fees on each Curtailment Date, provided that, subject to a Special Concentration Percentage, such minimum principal payment for a Receivable may be less than [*] so long as it is at least [*] and the maximum term of such Receivable does not exceed [*] days, (iii) for which all payments required to be made pursuant to the related Contract in connection with any Curtailment Date extension have not been waived and have been made within [*] days of each such extension, (iv)



	EX-I-8

whose terms (including the due date thereof) have not otherwise been amended or modified in any material respect and [*]

(o) which is payable on demand and which the related Contract requires to be repaid on the earlier of (i) [*] following the sale of the vehicle such Receivable financed, and (ii) the Curtailment Date for such Receivable;

(p) which is not a Defaulted Receivable and which is not a Delinquent Receivable;

(q) from an Obligor not more than [*] of whose aggregate Outstanding Balance of all Receivables of such Obligor and its Affiliates are Defaulted Receivables;

(r) for which the Obligor has not “short-paid” the Receivable or paid with non-sufficient funds;

(s) from an Obligor that, to the knowledge of the Servicer or the Seller, has not admitted in writing its inability to pay its debts generally or made a general assignment for the benefit of creditors; and no proceeding has been instituted (and is continuing) by or against such Obligor seeking to adjudicate it bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property; and

(t) if the Receivable is an Auction Credit, then (i) the wholesale auction is not fronting for a government or a governmental subdivision or agency, (ii) the Servicer has received a xxxx of sale evidencing the transaction between the wholesale auction and the purchasing dealer, (iii) the wholesale auction has been underwritten in accordance with the Credit and Collection Policy’s requirements for platinum dealers, (iv) a UCC has been filed against the wholesale auction, and (v) clauses (f) and (g) above shall be deemed to be satisfied if the wholesale auction, rather than the applicable dealer, signs the applicable Eligible Contract.

“Enforcement Costs” means, at any time, all unpaid costs and expenses incurred by the Agent in enforcing its rights and the rights of the other Indemnified Parties hereunder.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections.

“ERISA Affiliate” shall mean, with respect to any Person, at any time, each trade or business (whether or not incorporated) that would, at the time, be treated together with such Person as a single employer under Section 4001 of ERISA or Sections 414(b), (c), (m) or (o) of the Internal Revenue Code.



	EX-I-9

“Eurodollar Rate” means the rate calculated in accordance with clause (a) or (b) below (as selected by the applicable Purchaser Agent) (a) with respect to any day, the interest rate per annum determined by the applicable Purchaser Agent (which determination shall be conclusive absent manifest error) by dividing (the resulting quotient rounded upwards, if necessary, to the fourth decimal place) (i) the one-month Eurodollar rate for U.S. dollar deposits as reported on the Reuters Screen LIBOR01 Page or any other page that may replace such page from time to time for the purpose of displaying offered rates of leading banks for London interbank deposits in United States dollars, as of 11:00 a.m. (London time) on such date, or if such day is not a Business Day, then the immediately preceding Business Day (or, if not so reported, then as determined by such Purchaser Agent from another recognized source for interbank quotation), in each case, changing when and as such rate changes, by (ii) a number equal to 1.00 minus the Eurodollar Reserve Percentage. The Eurodollar Rate determined pursuant to this clause (a) for any day may also be expressed by the following formula:

One-Month Eurodollar Rate for


Eurodollar	= U.S. Dollar Deposits on such Day

1.00-Eurodollar Reserve Percentage

and (b) for any portion of the Investment for any Yield Period, an interest rate per annum (rounded upward to the fourth decimal place) determined pursuant to the following formula:



Eurodollar Rate =	LIBOR
	1.00 - Eurodollar Reserve Percentage

As used in clauses (a) and (b) above in this definition, “Eurodollar Reserve Percentage” means, for any Yield Period, the maximum reserve percentage (expressed as a decimal, rounded upwards, if necessary, to the fourth decimal place) in effect on the date LIBOR for such Yield Period is determined under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to “Eurocurrency” funding (currently referred to as “Eurocurrency liabilities”) having a term comparable to such Yield Period.

“Excluded Obligor” means an Obligor so designated in writing as such by the Agent or the Majority Purchasers in a notice to the Seller in good faith and in the Agent’s or the Majority Purchasers’ reasonable judgment relating to credit considerations from time to time, it being understood that from time to time such designation may be revoked by written notice to the Seller.

“Excluded Receivable” means any Receivable that the Originator determines (prior to or concurrently with origination) (i) is clearly not contemplated by the Transaction Documents due to size, terms, ineligibility or commingling concerns and (ii) is not to be transferred to the Seller pursuant to the Purchase and Sale Agreement. The Seller and the Purchasers have no ownership or other interest in any Excluded Receivables. For the avoidance of doubt, as required by Exhibit



	EX-I-10

IV(l)(xv), the Seller and the Servicer shall maintain a complete list of Excluded Receivables at all times and shall provide notice to the Purchaser Agents promptly following any changes thereto.

“Extended Curtailment Receivable” means an Eligible Receivable which satisfies all of the requirements of the definition of Eligible Receivable except [*]

“Fairway” means Fairway Finance Company, LLC.

“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal (for each day during such period) to: (a) the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the preceding Business Day) by the Federal Reserve Bank of New York, or (b) if such rate is not so published for any Business Day, the average of the quotations for such day on such transactions received by the Agent from three federal funds brokers of recognized standing selected by it.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System, or any entity succeeding to any of its principal functions.

“Fee Letter” means, as to any Purchaser, the fee letter entered into by such Purchaser’s Purchaser Agent and the Seller as described more particularly in Section 1.5.

“Fee Payment Date” means each Settlement Date.

“Final Payout Date” means the date following the Termination Date on which no Investment or Discount in respect of any Participation under the Agreement shall be outstanding and all other amounts payable by the Originator, the Seller or the Servicer to the Purchasers, the Purchaser Agents, the Agent, the Backup Servicer, any successor Servicer or any other Affected Person under the Transaction Documents shall have been paid in full.

“Finance Charge and Floorplan Fee Collections” means, with respect to any calendar month, any Collections applied by the Servicer in such calendar month to the payment of interest and finance charges and all other amounts (other than principal) owed under a Contract.

“GAAP” means generally accepted accounting principles and practices in the United States, consistently applied.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any body or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including without limitation any court, and any Person owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

“Heavy Duty Truck” means [*]

“Holdings” means KAR Holdings II, LLC, a Delaware limited liability company.



	EX-I-11

“Indemnified Amounts” has the meaning set forth in Section 3.1.

“Indemnified Party” has the meaning set forth in Section 3.1.

“Insolvent” or “Insolvency” means, with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.

“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors; in each case (a) and (b) undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.

“Investment” means, with respect to any Purchaser, the aggregate of the amounts paid to the Seller in respect of the Participation of such Purchaser pursuant to the Agreement, or such amount divided or combined in accordance with Section 1.7, in each case reduced from time to time by amounts actually distributed and applied on account of such Investment pursuant to Section 1.4; provided, that if such Investment shall have been reduced by any distribution and thereafter all or a portion of such distribution is rescinded or must otherwise be returned for any reason, such Investment shall be increased by the amount of such rescinded or returned distribution, as though it had not been made.

“Joinder Agreement” means a Joinder Agreement substantially in the form of Annex C and executed pursuant to Section 1.12.

“KAR” means KAR Auction Services, Inc., a Delaware corporation.

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

“KAR Credit Facility Pledge” means the pledge of AFC stock to secure the obligations under the KAR Credit Facility.

“KAR Financial Covenant” means the financial covenant regarding KAR’s maximum consolidated senior secured leverage ratio as set forth in Section 8.1(a) of the KAR Credit Facility as amended in the First Amendment dated November 29, 2012. Such covenant (including all defined terms incorporated therein) will survive the termination of the KAR Credit Facility and can only be amended, modified, added or terminated from time to time with the prior written consent of the Majority Purchasers; provided, however, that as long as KAR’s senior secured debt shall be rated at least “BBB- (stable)” by S&P and at least “Baa3 (stable)” by Xxxxx’x, the financial covenant will conform with the financial covenants required by KAR’s Credit Facility or any replacement facility without the consent of the Majority Purchasers.



	EX-I-12

“KAR Financial Covenant Event” means any breach of the KAR Financial Covenant that is not cured pursuant to the cure right as set forth in Section 8.1 (b) of the KAR Credit Facility.

“KAR Financial Covenant Termination Event” means, following the occurrence of a KAR Financial Covenant Event, the earliest to occur of (i) if a Majority Purchasers Notice Event has occurred, 120 days following the occurrence of such Majority Purchasers Notice Event, (ii) any KAR Restricted Amendment and (iii) the occurrence of a Majority Purchasers Notice Event resulting in the KAR Credit Facility being accelerated.

“KAR Restricted Amendment” means any action under or amendment to the KAR Credit Facility which, in the sole and absolute discretion of the Majority Purchasers, results in or may result in (i) an acceleration (in whole or in part) of principal or interest or the amount of principal or interest due under the KAR Credit Facility, (ii) the pledge of any additional collateral by AFC under the KAR Credit Facility (other than newly-acquired collateral of the same type as that already pledged thereunder, e.g., a newly-acquired additional trademark is pledged where all trademarks of the relevant entity had previously been pledged), (iii) any amendment to any provisions or the addition of any provision to the KAR Credit Facility regarding the Seller or its assets or AFC as Originator or Servicer hereunder, (iv) any change, amendment or modification to AFC’s guaranty under the KAR Credit Facility or (v) any action by any party to the KAR Credit Facility against AFC’s guaranty under the KAR Credit Facility or the assets of AFC.

“Legal Final Maturity Date” means the first Settlement Date on or after the date that is two years after the Termination Date.

“Level One Trigger” means the occurrence of any of the following (i) as of the last day of any calendar month, the arithmetic average of the Net Spread for [*] (ii) the Delinquency Ratio is greater than [*] or (iii) as of the last day of any calendar month, the arithmetic average of the Payment Rate for [*]; provided, however, that following each occurrence of a Level One Trigger, such trigger shall remain in effect until [*]

“LIBOR” means, with respect to each Purchaser’s Investment, the rate of interest per annum (rounded upwards to the fourth decimal place) equal to the rate of interest per annum: (i) for deposits in Dollars (in the approximate amount of the Investment to be funded) for a period equal to the applicable period that appears on Telerate Page 3750 or (ii) if such rate does not appear on Telerate Page 3750, determined by the Agent to be the arithmetic mean (rounded rounded upwards, if necessary, to the fourth decimal place) of the rates of interest per annum notified to the Agent as the rate of interest at which Dollar deposits in the approximate amount of the Investment to be funded, and for the applicable period, would be offered to major banks in the London interbank market at their request, in each case at or about 11:00 a.m. (London time) on the second Business Day before such funding. For the purposes of calculating LIBOR, any Purchaser Agent may (a) calculate LIBOR for a particular calendar month and utilize such LIBOR for all Investment funded by the related Purchaser for such calendar month, (b) utilize an interpolated rate for periods shorter than 30 days or periods longer than 30 days as determined in the customary manner for such Purchaser Agent and (c) utilize a weighted average LIBOR cost as customarily determined by such Purchaser Agent for portions of Investment funded for different periods during any applicable calendar month.



	EX-I-13

“Liquidation Account” means that certain bank account numbered 000-000-0 maintained at Xxxxxx Trust and Savings Bank in Chicago, Illinois or such other account at such other bank approved by the Agent, with the Purchasers and their respective Purchaser Agents receiving notice that such account is maintained at such bank, in either case, which is in the name of “Liquidation Account, BMO Capital Markets Corp as Agent,” and pledged, on a first-priority basis, by the Seller to the Agent pursuant to Section 1.2(d).

“Liquidation Account Bank” means the bank holding the Liquidation Account.

“Liquidity Agent” means any financial institution in its capacity as a Liquidity Agent pursuant to a Liquidity Agreement.

“Liquidity Agreement” means any loan or asset purchase agreement or similar agreement whereby a Note Issuer party hereto as a Purchaser obtains commitments from financial institutions to support its funding obligations hereunder and/or to refinance any Notes issued to fund the Note Issuer’s Investment hereunder.

“Liquidity Bank” has the meaning set forth in Section 6.3(b).

“Loss Percentage” means, on any date, the greatest of [*]

“Loss Reserve” means, for any date and any Participation, an amount equal to the product of [*]

“Lot Check” means, with respect to any Obligor, a physical inspection of such Obligor’s financed vehicles and which may include a review of such Obligor’s books and records related thereto.

“Majority Purchasers” means Purchasers having a share of the Aggregate Participation equal to or greater than [*]

“Majority Purchasers Notice Event” means, following the occurrence of a KAR Financial Covenant Event, the Majority Purchasers have provided the Agent and Seller with written notice of the Majority Purchasers’ declaration of a KAR Financial Covenant Termination Event.

“Marine Craft” means [*]

“Material Adverse Effect” means, with respect to any event or circumstance, a material adverse effect on:

(a) the business, operations, property or financial condition of the Seller or the Servicer;

(b) the ability of the Seller or the Servicer to perform its obligations under this Agreement or any other Transaction Document to which it is a party or the performance of any such obligations;



	EX-I-14

(d) the status, existence, perfection, priority or enforceability of the Agent’s interest (for the benefit of the Secured Parties) in the Pool Receivables or Related Security; or

(e) the collectibility of the Pool Receivables.

“Maximum Amount” means the lesser of (i) $800,000,000 or (ii) the sum of the Maximum Commitments of all Purchasers.

“Maximum Commitment” means, with respect to a Purchaser, the maximum dollar amount of Investment that such Purchaser is willing to fund, as set forth on the signature pages of this Agreement, any Joinder Agreement or any assignment entered into pursuant to Section 6.3, as applicable, which amount may, following the written request of the Seller, be increased at any time with the written consent of such Purchaser.

“Moody’s” means Xxxxx’x Investor Services, Inc.

“Motorcycle” means [*]

“Multiemployer Plan” means a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“Net Receivables Pool Balance” means, at any time, the amount determined pursuant to the calculation in Schedule III.

“Net Spread” means the annualized percentage equivalent of a fraction (computed as of the last day of each calendar month), the numerator of which is the excess of (x) all Finance Charge and Floorplan Fee Collections received and applied during such calendar month (including recoveries) over (y) the sum of, without duplication, (i) the Carry Costs for such calendar month, (ii) the aggregate amount of Receivables that became Defaulted Receivables during such calendar month, and (iii) the aggregate amount of non-cash adjustments that reduced the Outstanding Balance of any Pool Receivable during such calendar month (but excluding any Receivable that was included in the calculation of Net Spread pursuant to clause (ii) above in any previous calendar month); and the denominator of which is the average aggregate Outstanding Balances of the Pool Receivables during such calendar month.

“New Car” means [*]

“Non-Revolving Purchaser” means each Purchaser designated as a “Non-Revolving Purchaser” in the Joinder Agreement or amendment pursuant to which such Purchaser becomes a party hereto.

“Normal Concentration Percentage” for any Obligor (other than Obligors subject to Special Concentration Percentages) means at any time [*]



	EX-I-15

“Note Issuer” means Fairway and any other Purchaser which funds its Investment and other investments by issuing short or medium term promissory notes either directly or by means of a Related CP Issuer.

“Notes” means (a) in the case of Fairway or other Purchaser, the short-term promissory notes issued or to be issued by Fairway or such Purchaser to fund its investments in accounts receivable or other financial assets, (b) in the case of any Purchaser with a Related CP Issuer, the short-term promissory notes issued by its Related CP Issuer to indirectly fund the investments of such Purchaser, and (c) in the case of any other Purchaser, as set forth in the applicable Joinder Agreement.

“Obligor” means, with respect to any Receivable, a Person obligated to make payments pursuant to the Contract relating to such Receivable; provided that Receivables generated by Affiliates of any Obligor shall be treated as if generated by such Obligor.

“Official Body” means any government or political subdivision or any agency, authority, bureau, central bank, commission, department or instrumentality of any such government or political subdivision, or any court, tribunal, grand jury or arbitrator, or any accounting board or authority (whether or not a part of government) which is responsible for the establishment or interpretation of national or international accounting principles, in each case whether foreign or domestic.

“Originating Lender” means AFC Cal, LLC, a California limited liability company and each other entity approved in writing by the Purchaser Agents as an Originating Lender hereunder in their sole discretion.

“Originating Lender Sale Agreement” means each transfer agreement between an Originating Lender and the Originator; prior to the Receivables of any Originating Lender being treated as Eligible Receivables hereunder, the Majority Purchasers shall have consented to the form of Originating Lender Sale Agreement and each Rating Agency shall have received a copy thereof at least 5 Business Days prior to such Receivables receiving such treatment.

“Originator” has the meaning set forth in the Purchase and Sale Agreement.

“Outstanding Balance” means, with respect to any Receivable, the then unpaid principal amount of all advances or loans made to the related Obligor pursuant to the related Contract by AFC or the Originating Lender, as applicable, to the extent that (i) for auction purchases, such amount does not exceed 100% of the auction costs, including Buyers’ Fees, inspection fees, reconditioning costs inclusive of light body work, light mechanical work or replacement parts (not to exceed $500) and transportation fees, or (ii) for non-auction purchases, such amount does not exceed the wholesale cost, including any applicable Buyer’s Fees as set forth on the related xxxx of sale or other similar document, for the related vehicles.

“Participation” means, with respect to any Purchaser at any time, the undivided percentage ownership interest of such Purchaser in (i) each and every Pool Receivable now existing or hereafter arising, other than any Pool Receivable that arises on or after the Termination Date, (ii)



	EX-I-16

all of Seller’s right, title and interest in, to and under all Related Security with respect to such Pool Receivables, and (iii) all Collections with respect to, and other proceeds of, such Pool Receivables and Related Security. Such undivided percentage interest shall be computed as

I + DP + LR
NRPB + LA

where:

= the Investment of such Participation at the time of computation as reduced by the amount of cash in the Collection Accounts at the end of business on either (i) with respect to any Servicer Report, the last Business Day of the prior calendar month, or (ii) with respect to any Portfolio Certificate, the last Business Day of the prior calendar week, in each case that was wired to the respective Purchaser on the immediately following Business Day to pay down that Purchaser’s Investment.

= the Loss Reserve of such Participation at the time of computation (calculated after reducing the Purchaser’s Investment by the amount of cash in the Collection Accounts at the end of business on either (i) with respect to any Servicer Report, the last Business Day of the prior calendar month, or (ii) with respect to any Portfolio Certificate, the last Business Day of the prior calendar week, in each case that was wired to the respective Purchaser on the second immediately following Business Day to pay down that Purchaser’s Investment).


DP	= the aggregate unfulfilled purchase amounts of all Deferring Purchasers at such time.


NRPB	= the Net Receivables Pool Balance at the time of computation.

= the amount on deposit in the Liquidation Account (other than amounts transferred thereto from the Deposit Accounts to pay Discount, the Servicing Fee, Unaffiliated Servicing Fees, Backup Servicing Fees, Transition Expenses and Program Fees and Indemnified Amounts to the Indemnified Parties), and, for the avoidance of doubt, those amounts identified as “cash collateral” with respect to the Deposit Accounts held at [*] (numbered [*] and [*]) shall not be deposited into the Liquidation Account or taken into consideration for the calculation of the Participation.

Each Participation shall be determined from time to time pursuant to the provisions of Section 1.3.

“Paydown Day” means any day that is not a Termination Day on which the conditions set forth in Section 3 of Exhibit II are not either satisfied or waived.



	EX-I-17

“Payment Rate” means the ratio (expressed as a percentage and rounded upward to the nearest 1/100^th of 1%) computed as of the last day of each calendar month by dividing [*]

“Perfection Representation” means the representations, warranties and covenants set forth in Exhibit VII attached hereto.

“Performance Guaranty” means the Performance Guaranty, dated as of April 20, 2007, made by KAR in favor of the Agent for the benefit of the Secured Parties, as the same may be amended, supplemented or otherwise modified from time to time with the prior written consent of the Majority Purchasers.

“Permitted Investments” means (i) overnight obligations of the United States of America, (ii) time deposits or AAAm or AAAm-G rated money market accounts maintained at Xxxxxx Trust and Savings Bank or the Bank of Montreal or if Xxxxxx Trust and Savings Bank or the Bank of Montreal is rated below A-1 by S&P or P-1 by Moody’s such other financial institutions rated at the time of investment not less than A-1+ by S&P and P-1 by Moody’s, (iii) certificates of deposit that are not represented by instruments, have a maturity of one week or less and are issued by financial institutions rated at the time of investment not less than A-1 by S&P and P-1 by Moody’s if such certificates of deposit are issued by Xxxxxx Trust and Savings Bank or the Bank of Montreal or A-1+ by S&P and P-1 by Moody’s if such certificates of deposit are issued by financial institutions other than Xxxxxx Trust and Savings Bank and the Bank of Montreal and (iv) commercial paper rated at the time of investment not less than A-1 by S&P and P-1 by Moody’s if such commercial paper is issued by Fairway or A‑1+ by S&P and P-1 by Moody’s if such commercial paper is issued by an entity other than Fairway and, in the cases of clauses (ii), (iii) and (iv), having a maturity date not later than (A) with respect to amounts on deposit in the Cash Reserve Account, the immediately succeeding Settlement Date and (B) with respect to amounts on deposit in the Liquidation Account, the earlier of (x) the next Settlement Date and (y) one week from the date of investment; provided, however, that the Majority Purchasers may, from time to time, upon three Business Days’ prior written notice to Servicer, remove from the scope of “Permitted Investments” any such obligations, certificates of deposit or commercial paper and specify to be within such scope, other investments.

“Permitted Lien” means (i) any mechanic’s lien, supplier’s lien, materialman’s lien, landlord’s lien or similar lien arising by operation of law with respect to the Related Security and (ii) and liens for taxes, assessments or similar governmental charges or levies incurred in the ordinary course of business that are not yet due and payable or as to which any applicable grace period shall not have expired, or that are being contested in good faith by proper proceedings and for which adequate reserves have been established, but only so long as foreclosure with respect to such a lien is not imminent and the use and value of the property to which the Adverse Claim attaches is not impaired during the pendency of such proceeding.

“Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.



	EX-I-18

“Plan” means, at a particular time, any employee benefit plan or other plan established, maintained or contributed to by the Seller or any ERISA Affiliate thereof that is covered by Title IV of ERISA.

“Pledge Agreement” means the Pledge Agreement dated May 31, 2002 between AFC and the Agent, as the same may be amended or modified with the prior written consent of the Majority Purchasers.

“Pool Receivable” means a Receivable conveyed to the Seller pursuant to the Purchase and Sale Agreement and not reconveyed to the Originator in accordance with the terms of the Purchase and Sale Agreement.

“Pool Receivable Documents” has the meaning set forth in paragraph (l)(iii) of Exhibit IV to the Agreement.

“Portfolio Certificate” means a certificate substantially in the form of Exhibit VI to the Agreement.

“Prior Agreement” has the meaning set forth in the Preliminary Statements.

“Program Fee” means, as to any Purchaser, the periodic fees set forth in the applicable Fee Letter.

“Program Support Agreement” means, as to any applicable Note Issuer party hereto as a Purchaser, the Liquidity Agreement and any other agreement (if any) entered into by any Program Support Provider providing for the issuance of one or more letters of credit for the account of the Purchaser, the issuance of one or more surety bonds for which the Purchaser is obligated to reimburse the applicable Program Support Provider for any drawings thereunder, the sale by the Purchaser to any Program Support Provider of the Participation (or portions thereof) and/or the making of loans and/or other extensions of credit to the Purchaser in connection with the Purchaser’s securitization program, together with any letter of credit, surety bond or other instrument issued thereunder.

“Program Support Provider” as to any Note Issuer (and/or Related CP Issuers) means and includes any Liquidity Bank and any other or additional Person (other than any customer of a Purchaser (and/or Related CP Issuers)) now or hereafter extending credit or having a commitment to extend credit to or for the account of, or to make purchases from, a Purchaser (and/or Related CP Issuers) or issuing a letter of credit, surety bond or other instrument to support any obligations arising under or in connection with any Note Issuer’s (and/or Related CP Issuer’s) securitization program.

“Pro Rata Share” means, with respect to any Purchaser at any time, a fraction, the numerator of which is the sum of the unused portion of such Purchaser’s Maximum Commitment at such time and the denominator of which is the unused portion of the Maximum Amount at such time.



	EX-I-19

“Purchase and Sale Agreement” means the Amended and Restated Purchase and Sale Agreement, dated as of May 31, 2002, among the Originator and the Seller, as the same has been and may be modified, supplemented, amended and amended and restated from time to time in accordance with the Transaction Documents and with prior written consent of the Majority Purchasers.

“Purchase Notice” has the meaning set forth in Section 1.2(a).

“Purchaser” means Fairway, Deutsche Bank AG, New York Branch, Saratoga Funding Corp., LLC, BMO Xxxxxx Bank, Fifth Third Bank, and each other Person which becomes a “Purchaser” hereunder in accordance with the provisions of Section 1.12 or Section 6.3(a).

“Purchaser Agent” means, as to any Purchaser, the financial institution designated by such Purchaser as responsible for administering this Agreement on behalf of such Purchaser, together with any successors or permitted assigns acting in such capacity; if any Purchaser does not so designate another institution as its Purchaser Agent, such Purchaser shall be deemed to have designated itself as its Purchaser Agent and all references herein to such Purchaser’s Purchaser Agent shall mean and be references to such Purchaser.

“Purchaser Group” means each Purchaser Agent and the Purchasers and Related CP Issuers (if any) for which such Purchaser Agent acts hereunder; provided that (i) Deutsche Bank AG, New York Branch as Purchaser and Purchaser Agent and (ii) Deutsche Bank AG, New York Branch, as Purchaser Agent for Saratoga Funding Corp., LLC, and Saratoga Funding Corp., LLC, as Purchaser, shall be considered separate Purchaser Groups hereunder.

“Purchaser Percentage” means, with respect to any Purchaser at any time, a fraction (expressed as a percentage), the numerator of which is such Purchaser’s Investment at such time, and the denominator of which is the aggregate Investment of all Purchasers at such time.

“Purchaser’s Account” means (i) as to Fairway, the special account (account number [*] maintained at the office of Xxxxxx Trust and Savings Bank, or such other account as may be so designated in writing by its Purchaser Agent to the Seller and (ii) as to any other Purchaser, such account as may be so designated in writing by the applicable Purchaser Agent to the Seller and the Servicer.

“Purchasers’ Share” means the share of Collections deposited into the Deposit Accounts represented by the Aggregate Participation.

“Rating Agencies” means Moody’s and S&P.

“Receivable” means any right to payment from any Person, whether constituting an account, chattel paper, instrument, payment intangible or a general intangible, arising from the providing of financing and other services by the Originator or the applicable Originating Lender to (i) new, used and wholesale automobile, light truck or other Specialty Vehicle dealers or to (ii) wholesale auctions under an Auction Credit, and includes the right to payment of any interest or finance charges and other obligations of such Person with respect thereto.



	EX-I-20

“Recreational Vehicle” means [*]

“Recreational Vehicle Receivable” means those Receivables generated as a result of the making of loans to finance the purchase of Recreational Vehicles.

“Reference Bank” means Bank of Montreal, provided that if so agreed by the Seller, the Servicer and the Agent, each Purchaser which becomes a party hereto by virtue of Section 1.12 may designate a different Reference Bank for purposes of calculating the Base Rate applicable to such Purchaser’s Investment.

“Related CP Issuer” shall mean, with respect to any Purchaser, any commercial paper conduit approved by the Servicer which advances funds to such Purchaser for the purpose of funding or maintaining its interest in the Investment, together with their successors and permitted assigns.

“Related Security” means, with respect to any Pool Receivable:

(a) all right, title and interest in and to all Contracts and other Pool Receivable Documents that relate to such Receivable;

(b) all security interests or liens and rights in property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, including all rights in vehicles securing or purporting to secure such payment and any insurance or other proceeds arising therefrom;

(d) all guarantees and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise;

(e) all rights in any power of attorney delivered by the related Obligor; and

(f) all rights and claims of the Seller with respect to such Receivable pursuant to the Purchase and Sale Agreement.

“Rental Receivable” means a Receivable which satisfies all of the requirements of the definition of Eligible Receivable except clause [*] provided (i) any such Receivable must have a maturity of [*] (ii) the applicable terms thereof must require [*] (iii) the Obligor thereof must be otherwise current on its obligations under the related Contract, (iv) if applicable, [*]. For purposes of the Net Receivables Pool Balance calculation, the value of Receivables that are Rental Receivables is limited to the product of (i) aggregate Outstanding Balance of all Eligible Receivables that are Rental Receivables and (ii) the Applicable Rental Receivables Advance Rate.

“Reorganization” means, with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.



	EX-I-21

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived under subsections .22, .27 or .28 of PBGC Reg. §4043.

“Restricted Payments” has the meaning set forth in paragraph (o)(i) of Exhibit IV of the Agreement.

“Salvage Vehicle” means any vehicle [*] provided that such vehicle [*]. For purposes of the Net Receivables Pool Balance calculation, the value of Receivables that are originated for the purpose of financing Salvage Vehicles is limited to [*]

“S&P” means Standard and Poor’s Ratings Services.

“Secured Parties” means, collectively, the Purchasers, the Purchaser Agents, the Agent and the Program Support Providers.

“Seller” has the meaning set forth in the preamble to this Agreement.

“Seller’s Share” means the Seller’s share of Collections deposited into the Deposit Accounts, calculated as 100% minus the Aggregate Participation.

“Servicer” has the meaning set forth in the preamble to this Agreement.

“Servicer Payment Date” shall mean each Settlement Date.

“Servicer Report” means a report, in substantially the form of Annex B hereto.

“Servicer Report Date” means the 15th day of each month, or if such day is not a Business Day, the next Business Day.

“Servicing Fee” shall mean the fee referred to in Section 4.6.

“Settlement Date” means the 20^th day of each calendar month or, if such day is not a Business Day, the following Business Day.

“Single Employer Plan” means any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan.

“Special Concentration Percentage” means, as a percentage of the aggregate Eligible Receivables at such time, without duplication:

(i) [*]

(ii) [*]

(iii) [*]

(iv) [*]



	EX-I-22

(v) [*]

(vi) [*]

(vii) [*]

(viii) [*]

(ix) [*]

(x) [*]

(xi) [*]

(xii) [*]

(xiii) [*]

“Special Obligor” means any Obligors, together with their Affiliates, [*], identified as a Special Obligor on the most recent Servicer Report by the Servicer.

“Specialty Vehicles” means [*]

“Specified Ineligible Receivables” means those Pool Receivables that the Servicer has identified as “Specified Ineligible Receivables” pursuant to Section 4.7.

“Static Rental Receivables Pool Net Loss Rate” means, with respect to each [*] rolling vintage of Rental Receivables originated and/or serviced by AFC, a fraction (expressed as a percentage) the numerator of which is [*]

“Tangible Net Worth” means, with respect to any Person, the net worth of such Person calculated in accordance with GAAP after subtracting therefrom the aggregate amount of such Person’s intangible assets, including, without limitation, goodwill, franchises, licenses, patents, trademarks, tradenames, copyrights, service marks and brand names and capitalized software.

“Termination Date” means the earliest of (i) the Business Day which the Seller so designates by notice to the Agent at least 30 days in advance pursuant to Section 1.1(b), (ii) June 30, 2016 (the “Scheduled Termination Date”), and (iii) the date determined pursuant to Section 2.2.

“Termination Day” means each day which occurs on or after the Termination Date, unless the occurrence of the Termination Date (if declared by the Majority Purchasers pursuant to Section 2.2) is waived in accordance with Section 6.1.

“Termination Event” has the meaning specified in Exhibit V.

“Termination Fee” means, with respect to any portion of the Investment of any Purchaser and any Yield Period during which any reduction of such portion of the Investment occurs on a date other than the date on which the Notes or LIBOR/Eurodollar funding supporting such



	EX-I-23

portion of Investment matures, the amount, if any, by which (i) the additional Discount (calculated without taking into account any Termination Fee) which would have accrued during the remainder of such period on the reductions of Investment had such reductions remained as Investment, exceeds (ii) the income, if any, received by the applicable Purchaser from investing the proceeds of such reductions of Investment, as determined by the related Purchaser Agent, which determination shall be binding and conclusive for all purposes, absent manifest error.

“Title Attached Receivable” means a Receivable which satisfies all of the requirements of the definition of Eligible Receivable and for which AFC has recorded an account payable subject to the receipt of the certificate of title for the vehicle securing or purporting to secure such Receivable, but has not authorized the release of funds for such vehicle.

“Tractor Receivable” means those Receivables generated as a result of the making of loans to finance the purchase of Tractors.

“Tractors” means [*]

“Transaction Documents” means the Agreement, the Deposit Account Agreements, the Purchase and Sale Agreement, each Originating Lender Sale Agreement, the Performance Guaranty, the Pledge Agreement, the Company Note, each Joinder Agreement, the Backup Servicing Agreement, the Backup Servicing Fee Letter (if any) and all other certificates, instruments, UCC financing statements, reports, notices, agreements and documents executed or delivered under or in connection with any of the foregoing, in each case as the same may be amended, supplemented or otherwise modified from time to time in accordance with the Agreement.

“Transition Expenses” means all reasonable cost and expenses (including Attorney Costs) incurred by the Backup Servicer in connection with transferring servicing obligations under this Agreement, which shall not exceed the cap established in the Backup Servicing Agreement or the Backup Servicing Fee Letter.

“UCC” means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction.

“Unaffiliated Servicing Fees” means all Servicing Fees payable to an entity, that is not AFC, any Affiliate thereof, or the Backup Servicer, engaged as Servicer hereunder, as such entity and the Agent shall agree.

“Unmatured Termination Event” means an event which, with the giving of notice or lapse of time, or both, would constitute a Termination Event.

“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended.

“Yield Period” means, with respect to each portion of Investment of any Purchaser:

(a) initially the period commencing on the date of a purchase pursuant to Section 1.2 and ending on the last day of the calendar month of such purchase; and



	EX-I-24

(b) thereafter each calendar month; provided that the final Yield Period shall extend to the date of reduction of the Investment in full.

Other Terms. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles. All terms used in Article 9 of the UCC in the State of Indiana, and not specifically defined herein, are used herein as defined in such Article 9. Unless the context otherwise requires, “or” means “and/or,” and “including” (and with correlative meaning “include” and “includes”) means including without limiting the generality of any description preceding such term.



	EX-I-25

EXHIBIT II

CONDITIONS OF PURCHASES

1. Conditions Precedent to Initial Purchase and the Effectiveness of the Prior Agreement. The effectiveness of the Prior Agreement was subject to the conditions precedent (which have been satisfied or waived as of the date hereof) that the Agent receive on or before the date thereof the following:

(a) A counterpart of the Prior Agreement and the other Transaction Documents duly executed by the parties thereto.

(b) Certified copies of (i) the resolutions of the board of directors of each of the Seller and AFC authorizing the execution, delivery, and performance by the Seller and AFC of the Prior Agreement and the other Transaction Documents, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Prior Agreement and the other Transaction Documents and (iii) the articles of incorporation and by‑laws of the Seller and AFC.

(c) A certificate of the secretary or assistant secretary of the Seller and AFC certifying the names and true signatures of the officers of the Seller and AFC authorized to sign the Prior Agreement and the other Transaction Documents. Until the Agent receives a subsequent incumbency certificate from the Seller and AFC in form and substance satisfactory to the Agent, the Agent shall be entitled to rely on the last such certificate delivered to them by the Seller and AFC, as applicable.

(d) Financing statements, in proper form for filing under the UCC of all jurisdictions that the Agent may deem necessary or desirable in order to perfect the interests of the Agent (for the benefit of the Secured Parties) contemplated by the Prior Agreement and other Transaction Documents.

(e) Financing statements, in proper form for filing under the applicable UCC, if any, necessary to release all security interests and other rights of any Person in the Receivables, Contracts or Related Security previously granted by the Seller or AFC.

(f) Completed UCC requests for information, dated on or before the date of the Prior Agreement, listing the financing statements referred to in subsection (e) above and all other effective financing statements filed in the jurisdictions referred to in subsection (e) above that named the Seller or AFC as debtor, together with copies of such other financing statements (none of which shall cover any Receivables, Contracts or Related Security), and similar search reports with respect to federal tax liens, judgments and liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the Agent requested, showing no such liens on any of the Receivables, Contracts or Related Security.

(g) Executed copies of a Deposit Account Agreement with each Deposit Account Bank.



	EX-II-1

(h) Favorable opinions of in‑house counsel for the Seller and AFC, as to corporate and such other matters as the Agent reasonably requested.

(i) Favorable opinions of Ice Xxxxxx, special counsel for the Seller, ADESA and AFC, as to enforceability and such other matters as the Agent reasonably requested.

(j) Favorable opinions of Ice Xxxxxx, special counsel for the Seller and AFC, as to bankruptcy matters.

(k) Certificates of Existence with respect to the Seller and AFC issued by the Indiana Secretary of State and articles of incorporation of the Seller certified by the Indiana Secretary of State.

(l) Evidence (i) of the execution and delivery by each of the parties thereto of the Purchase and Sale Agreement and all documents, agreements and instruments contemplated thereby (which evidence included copies, either original or facsimile, of each of such documents, instruments and agreements), (ii) that each of the conditions precedent to the execution and delivery of the Purchase and Sale Agreement was satisfied to the Agent’s satisfaction, and (iii) that the initial purchases under the Purchase and Sale Agreement were consummated.

(m) Evidence of payment by the Seller of all accrued and unpaid fees (including those contemplated by the Fee Letter), costs and expenses to the extent then due and payable on the date thereof, together with Attorney Costs of the Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as constituted the Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings; including any such costs, fees and expenses arising under or referenced in Section 6.4 as provided in the Fee Letter.

(n) The Fee Letter between the Seller, AFC and the Purchaser Agents contemplated by and delivered pursuant to Section 1.5.

(o) A Servicer Report representing the performance of the portfolio purchased through the Purchase and Sale Agreement and the Prior Agreement for the month prior to closing.

(p) Such confirmations from the rating agencies as were required by any Purchaser in its respective sole discretion.

2. Conditions Precedent to the Effectiveness of this Agreement. The effectiveness of the Agreement is subject to the condition precedent that the Agent shall have received on or before the date hereof the following, each in form and substance satisfactory to the Agent:

(a) A counterpart of the Agreement and the other Transaction Documents duly executed by the parties thereto.

(b) Certified copies of (i) the resolutions of the board of directors of each of the Seller and AFC authorizing the execution, delivery, and performance by the Seller and AFC of the



	EX-II-2

Agreement and the other Transaction Documents, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Agreement and (iii) the articles of incorporation and by-laws of the Seller and AFC (to the extent such documents have been modified since they were last delivered to the Agent).

(d) Favorable opinions of Ice Xxxxxx, special counsel for the Seller and AFC, as to corporate, enforceability and such other matters as the Agent may reasonably request.

(e) Evidence of payment by the Seller of all fees, costs and expenses then due and payable to the Purchasers or the Agent (including, without limitation, any such fees payable under the Fee Letter), together with Attorney Costs of the Agent to the extent invoiced prior to or on such date, plus such additional amounts of Attorney Costs as shall constitute the Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings.

(f) Such confirmations from the rating agencies as shall be required by any Purchaser in its sole discretion.

(g) Such other approvals, opinions or documents as the Agent may reasonably request.

3. Conditions Precedent to All Purchases and Reinvestments. Each purchase (including the initial purchase) and each reinvestment shall be subject to the further conditions precedent that:

(a) in the case of each purchase, the Servicer shall have delivered to the Agent on or prior to such purchase, in form and substance satisfactory to the Agent, (i) a completed Servicer Report with respect to the immediately preceding calendar month, dated within 30 days prior to the date of such purchase (or a completed Portfolio Certificate, dated as of the last Business Day of the immediately preceding calendar week) and (ii) a completed Portfolio Certificate to the extent a daily Portfolio Certificate is required in accordance with Section 4.2(e) of the Agreement, and shall have delivered to the Agent such additional information as may reasonably be requested by the Agent.

(b) on the date of such purchase or reinvestment the following statements shall be true (and acceptance of the proceeds of such purchase or reinvestment shall be deemed a representation and warranty by the Seller that such statements are then true):

(i) the representations and warranties contained in Exhibit III are true and correct on and as of the date of such purchase or reinvestment as though made on and as of such date; and



	EX-II-3

(ii) no event has occurred and is continuing, or would result from such purchase or reinvestment, that constitutes a Termination Event or an Unmatured Termination Event; and

(iii) the sum of the aggregate of the Participations does not exceed 100%; and

(iv) the amount on deposit in the Cash Reserve Account is equal to or greater than the Cash Reserve; and



	EX-II-4

EXHIBIT III

REPRESENTATIONS AND WARRANTIES

A. Representations and Warranties of the Seller. The Seller represents and warrants as follows:

(a) The Seller is a corporation duly incorporated and in existence under the laws of the State of Indiana, and is duly qualified to do business, and is in good standing, as a foreign corporation in every jurisdiction where the nature of its business requires it to be so qualified except where the failure to so qualify has not had and could not reasonably be expected to have a Material Adverse Effect.

(b) The execution, delivery and performance by the Seller of the Agreement and the other Transaction Documents to which it is a party, including the Seller’s use of the proceeds of purchases and reinvestments, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate action of the Seller, (iii) do not contravene or result in a default under or conflict with (1) the Seller’s charter or by-laws, (2) any law, rule or regulation applicable to the Seller, (3) any contractual restriction binding on or affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and (iv) do not result in or require the creation of any Adverse Claim upon or with respect to any of the Seller’s properties, where, in the cases of items (2), (3) and (4), such contravention, default or conflict has had or could reasonably be expected to have a Material Adverse Effect. The Agreement and the other Transaction Documents to which it is a party have been duly executed and delivered by the Seller.

(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by the Seller of the Agreement or any other Transaction Document to which it is a party other than those previously obtained or UCC filings.

(d) Each of the Agreement and the other Transaction Documents to which it is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether enforceability is considered in a proceeding in equity or at law.

(e) Since December 31, 2012 there has been no material adverse change in the business, operations, property or financial condition of the Seller or AFC, the ability of the Seller or AFC to perform its obligations under the Agreement or the other Transaction Documents to which it is a party or the collectibility of the Pool Receivables, or which affects the legality, validity or enforceability of the Agreement or the other Transaction Documents.

(f) (i) There is no action, suit, proceeding or investigation pending or, to the knowledge of the Seller, threatened against the Seller before any Government Authority or arbitrator



	EX-III-1

and (ii) the Seller is not subject to any order, judgment, decree, injunction, stipulation or consent order of or with any Government Authority or arbitrator, that, in the case of each of foregoing clauses (i) and (ii), could reasonably be expected to have a Material Adverse Effect.

(g) The Seller is the legal and beneficial owner of the Pool Receivables free and clear of any Adverse Claim, excepting only Permitted Liens; and has acquired all of the Originator’s right, title and interest in, to and under the Related Security. Upon each purchase or reinvestment, the Agent (for the benefit of the Secured Parties) shall acquire a valid and enforceable perfected undivided percentage ownership interest, to the extent of the Aggregate Participation, in each Pool Receivable then existing or thereafter arising, free and clear of any Adverse Claim, excepting only Permitted Liens, in the Collections with respect thereto and in the Seller’s right, title and interest in, to and under the Related Security and proceeds thereof. The Agreement creates a security interest in favor of the Agent (for the benefit of the Secured Parties) in the items described in Section 1.2(d), and the Agent (for the benefit of the Secured Parties) has a first priority perfected security interest in such items. No effective financing statement or other instrument similar in effect naming AFC or the Seller as debtor or seller and covering any Contract or any Pool Receivable or the Related Security or Collections with respect thereto or any Deposit Account is on file in any recording office, except those filed in favor of the Agent (for the benefit of the Secured Parties) relating to the Agreement.

(h) [Reserved].

(i) Each Servicer Report, Portfolio Certificate, information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by or on behalf of the Seller to the Agent or any Purchaser Agent in connection with the Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Agent and any such Purchaser Agent at such time) as of the date so furnished, and no such item contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.

(j) The principal place of business and chief executive office (as such terms are used in the UCC) of the Seller and the office(s) where the Seller keeps its records concerning the Pool Receivables are located at the address set forth under its signature to this Agreement.

(k) The names and addresses of all the Deposit Banks, together with the account numbers of the Deposit Accounts of the Seller at such Deposit Banks, are specified in Schedule II to the Agreement.

(l) The Seller is not in violation of any order of any court, arbitrator or Governmental Authority.

(m) Neither the Seller nor any Affiliate of the Seller has any direct or indirect ownership or other financial interest in any Purchaser, the Agent or any Purchaser Agent.



	EX-III-2

(n) No proceeds of any purchase or reinvestment will be used for any purpose that violates any applicable law, rule or regulation, including, without limitation, Regulations T, U and X of the Federal Reserve Board.

(o) Each Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable as of the date of such calculation.

(p) No event has occurred and is continuing, or would result from a purchase in respect of, or reinvestment in respect of, any Participation or from the application of the proceeds therefrom, which constitutes a Termination Event.

(q) The Seller and the Servicer have complied in all material respects with the Credit and Collection Policy with regard to each Pool Receivable.

(r) The Seller has complied with all of the terms, covenants and agreements contained in the Agreement and the other Transaction Documents and applicable to it.

(s) The Seller’s complete corporate name is set forth in the preamble to the Agreement, and the Seller does not use and has not during the last six years used any other corporate name, trade name, doing-business name or fictitious name, and except for names first used after the date of the Agreement and set forth in a notice delivered to the Agent pursuant to paragraph (l)(vi) of Exhibit IV.

(t) The authorized capital stock of Seller consists of 1,000 shares of common stock, no par value, 100 shares of which are currently issued and outstanding. All of such outstanding shares are validly issued, fully paid and nonassessable and are owned (beneficially and of record) by AFC.

(u) The Seller has filed all federal and other tax returns and reports required by law to have been filed by it and has paid all taxes and governmental charges thereby shown to be owing.

(v) The Seller is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

(w) The Seller is not (i) a country, territory, organization, person or entity named on an Office of Foreign Asset Control (OFAC) list; (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a “Non-Cooperative Jurisdiction” by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT Act, i.e., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as warranting special measures due to money laundering concerns.



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(x) No “accumulated funding deficiency” (within the meaning of Section 412 of the Internal Revenue Code or Section 302 of ERISA) exists with respect to any Single Employer Plan, and each Single Employer Plan has complied in all material respects with the applicable provisions of ERISA and the Internal Revenue Code. The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits. Neither the Seller nor any ERISA Affiliate has had a complete or partial withdrawal from any Multiemployer Plan, and neither the Seller nor any ERISA Affiliate would become subject to any liability under ERISA if the Seller or any such ERISA Affiliate were to withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made or deemed made. No such Multiemployer Plan is in Reorganization or Insolvent.

B. Representations and Warranties of the Servicer. The Servicer represents and warrants as follows:

(a) The Servicer is a corporation duly organized and in existence under the laws of the State of Indiana, and is duly qualified to do business, and is in good standing, as a foreign corporation in every jurisdiction where the nature of its business requires it to be so qualified except where the failure to so qualify has not had and could not reasonably be expected to have a Material Adverse Effect.

(b) The execution, delivery and performance by the Servicer of the Agreement and the other Transaction Documents to which it is a party, (i) are within the Servicer’s corporate powers, (ii) have been duly authorized by all necessary corporate action on the part of the Servicer, (iii) do not contravene or result in a default under or conflict with (1) the Servicer’s charter or by-laws, (2) any law, rule or regulation applicable to the Servicer, (3) any contractual restriction binding on or affecting the Servicer or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Servicer or its property, and (iv) do not result in or require the creation of any Adverse Claim upon or with respect to any of its properties, where, in the cases of items (2), (3) and (4), such contravention, default or conflict has had or could reasonably be expected to have a Material Adverse Effect. The Agreement and the other Transaction Documents to which it is a party have been duly executed and delivered by the Servicer.

(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by the Servicer of the Agreement or any other Transaction Document to which it is a party.

(d) Each of the Agreement and the other Transaction Documents to which it is a party constitutes the legal, valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether enforceability is considered in a proceeding in equity or at law.



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(e) There is no pending or threatened action or proceeding affecting the Servicer before any Governmental Authority or arbitrator which could have a Material Adverse Effect.

(f) The Servicer has complied in all material respects with the Credit and Collection Policy with regard to each Pool Receivable.

(g) the Servicer is not subject to any order, judgment, decree, injunction, stipulation or consent order of or with any Governmental Authority or arbitrator, that, could reasonably be expected to have a Material Adverse Effect.

(h) Each Servicer Report, Portfolio Certificate, information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by or on behalf of the Seller to the Agent or any Purchaser Agent in connection with the Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Agent and any such Purchaser Agent at such time) as of the date so furnished, and no such item contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.

(i) The principal place of business and chief executive office (as such terms are used in the UCC) of the Servicer and the office(s) where the Servicer keeps its records concerning the Pool Receivables are located at the address set forth under its signature to this Agreement or the Backup Servicing Agreement, as applicable.

(j) The Servicer is not in violation of any order of any court, arbitrator or Governmental Authority.

(k) Neither the Servicer nor any Affiliate of the Servicer has any direct or indirect ownership or other financial interest in any Purchaser, the Agent or any Purchaser Agent.

(l) The Servicer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

(m) The Servicer is not (i) a country, territory, organization, person or entity named on an OFAC list; (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a “Non-Cooperative Jurisdiction” by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT Act, i.e., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as warranting special measures due to money laundering concerns.



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EXHIBIT IV

COVENANTS

Covenants of the Seller and the Servicer. Until the latest of the Termination Date, the date on which no Investment of or Discount in respect of any Participation shall be outstanding or the date all other amounts owed by the Seller under the Agreement to the Purchasers, the Purchaser Agents, the Agent and any other Indemnified Party or Affected Person shall be paid in full:

(a) Compliance with Laws, Etc. Each of the Seller and the Servicer shall comply in all material respects with all applicable laws, rules, regulations and orders, and preserve and maintain its corporate existence, rights, franchises, qualifications, and privileges except to the extent that the failure so to comply with such laws, rules and regulations or the failure so to preserve and maintain such existence, rights, franchises, qualifications, and privileges would not materially adversely affect the collectibility of the Receivables or the enforceability of any related Contract or the ability of the Seller or the Servicer to perform its obligations under any related Contract or under the Agreement.

(b) Offices, Records and Books of Account, Etc. The Seller shall provide the Agent with at least 60 days’ written notice prior to making any change in the Seller’s name or jurisdiction of organization or making any other change in the Seller’s identity or corporate structure (including a merger) which could impair or otherwise render any UCC financing statement filed in connection with this Agreement “seriously misleading” as such term is used in the applicable UCC; each notice to the Agent pursuant to this sentence shall set forth the applicable change and the proposed effective date thereof. The Seller and Servicer will also maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Pool Receivables and related Contracts in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records, computer tapes and disks and other information reasonably necessary or advisable for the collection of all Pool Receivables (including, without limitation, records adequate to permit the daily identification of each Pool Receivable and all Collections of and adjustments to each existing Pool Receivable).

(c) Performance and Compliance with Contracts and Credit and Collection Policy. Each of the Seller and the Servicer shall, at its expense, timely and fully perform and comply with all material provisions, covenants and other promises required to be observed by it under the Contracts related to the Pool Receivables, and timely and fully comply in all material respects with the Credit and Collection Policy with regard to each Pool Receivable and the related Contract.

(d) Ownership Interest, Etc. The Seller shall, at its expense, take all action necessary or desirable to establish and maintain a valid and enforceable undivided ownership interest, to the extent of the Aggregate Participation, in the Pool Receivables (free and clear of any Adverse Claim excepting only Permitted Liens) and the Collections with respect thereto and the Seller’s right, title and interest in, to and under the Related Security and the proceeds thereof, and a first priority perfected security interest in the items described in Section 1.2(d), in favor of the Agent (for the benefit of the Secured Parties), including, without limitation, taking such action to



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perfect, protect or more fully evidence the interest of the Agent (for the benefit of the Secured Parties) under the Agreement as the Agent may request.

(e) Sales, Liens, Etc. The Seller shall not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim (excepting only Permitted Liens) upon or with respect to, any or all of its right, title or interest in, to or under, any item described in Section 1.2(d) (including without limitation the Seller’s undivided interest in any Receivable, Related Security, or Collections, or upon or with respect to any account to which any Collections of any Receivables are sent), or assign any right to receive income in respect of any items contemplated by this paragraph (e).

(f) Extension or Amendment of Receivables. After the occurrence and during the continuance of a Termination Event or an Unmatured Termination Event or after the Termination Date (or if a Termination Event or Unmatured Termination Event would result therefrom), neither the Seller nor the Servicer shall extend the maturity or adjust the Outstanding Balance or otherwise modify the terms of any Pool Receivable in any material respect, or amend, modify or waive any term or condition of any related Contract in any material respect.

(g) Change in Business or Credit and Collection Policy. Without the prior written consent of the Majority Purchasers, neither the Seller nor the Servicer shall make any material change in the character of its business or in the Credit and Collection Policy, or any change in the Credit and Collection Policy that would adversely affect the collectibility of the Pool Receivables or the enforceability of any related Contract or the ability of the Seller or Servicer to perform its obligations under any related Contract or under the Agreement; provided that prior written consent shall not be required for changes to standard operating practices or procedures (excluding any changes to credit underwriting criteria), however, any Purchaser Agent can prevent a change, or require that a change be reversed, by notifying the Servicer that such Purchaser Agent reasonably believes such change would have a material adverse impact on the Pool Receivables.

(h) Audits. Each of the Seller and the Servicer shall, from time to time during regular business hours, upon reasonable prior notice as requested by the Agent, permit the Agent or its agents or representatives, (i) to examine and make copies of and abstracts from all books, records and documents (including, without limitation, computer tapes and disks) in the possession or under the control of the Seller or the Servicer relating to Pool Receivables and the Related Security, including, without limitation, the related Contracts, and (ii) to visit the offices and properties of the Seller and the Servicer for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to Pool Receivables and the Related Security or the Seller’s or Servicer’s performance hereunder or under the Contracts with any of the officers, employees, agents or contractors of the Seller having knowledge of such matters; provided, however, that the Agent shall not be reimbursed for more than two such examinations in any year (including any examinations conducted pursuant to any other Transaction Document but excluding any audit conducted pursuant to Section 4.2(a)) unless (x) a Level One Trigger has occurred and is continuing, in which case the Agent shall be reimbursed for four such examinations per year in addition to any audits conducted pursuant to Section 4.2(a) or (y) a Termination Event or Unmatured Termination Event has occurred, in which case the Agent shall be reimbursed for all such examinations.



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(i) Change in Deposit Banks, Deposit Accounts and Payment Instructions to Obligors. Neither the Seller nor the Servicer shall add or terminate any bank as a Deposit Bank or any account as a Deposit Account from those listed in Schedule II to the Agreement without (i) the prior written consent of the Agent and (ii) in the case of a new Deposit Account and/or Deposit Bank, the applicable Deposit Bank has executed, and the applicable Deposit Account is subject to, a Deposit Account Agreement consented to in writing by the Agent.

(j) Deposit Accounts. Each Deposit Account shall at all times be subject to a Deposit Account Agreement. Neither the Seller nor the Servicer will deposit or otherwise credit, or cause or permit to be so deposited or credited, to any Deposit Account, the Liquidation Account or the Cash Reserve Account cash or cash proceeds other than Collections of Pool Receivables; provided that, with respect to the Deposit Accounts held at [*] (numbered [*] and [*]), only cash attributable to “cash collateral” (as such term is defined in the applicable Contract) shall be deposited into such account and such amounts shall be separately tracked and individually identified on the Servicer Report. In addition, any such “cash collateral” amounts so set aside with respect to a particular Obligor shall be held in the aforementioned Deposit Account until such amounts are either (i) transferred to the Liquidation Account, if such amounts are being applied to such Obligor’s related Receivables (in such event, the “cash collateral” so applied shall be deemed Collections) or (ii) returned to such Obligor, if such Obligor has paid its related Receivables in full or as specified in the related Contract documentation.

(k) Marking of Records. At its expense, the Seller (or the Servicer on its behalf) shall xxxx its master data processing records relating to Pool Receivables and related Contracts, including with a legend evidencing that the undivided percentage ownership interests with regard to the Aggregate Participation related to such Receivables and related Contracts have been sold in accordance with the Agreement.

(l) Reporting Requirements. The Seller will provide to the Agent and each Purchaser Agent (in multiple copies, if requested by the Agent) (except that with respect to paragraphs (i), (ii), (iii) and (iv), the Seller will cause AFC (or, with respect to paragraph (iv), the Servicer), to provide to the Agent, each Purchaser Agent, the Backup Servicer (in the case of paragraph (iii)) and (in the case of items (iii)(a), (iv) and (xiv)) each Rating Agency, the following:

(i) (I) as soon as available and in any event within 45 days after the end of each fiscal quarter of AFC (including the end of each fiscal year) in a format acceptable to the Agent the consolidating balance sheet of AFC and its consolidated subsidiaries as of the end of such quarter and statements of income of AFC and its consolidated subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, certified by the chief financial officer of such Person and (II) as soon as available, but in any event not later than 45 days after the end of each of the first three quarterly periods of each fiscal year of KAR, the unaudited consolidated balance sheet of KAR and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of income and of cash flows for such quarter and the portion of the fiscal year through the end of such quarter;



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(ii) (I) as soon as available and in any event within 90 days after the end of each fiscal year of KAR, a copy of the audited consolidated balance sheet of KAR and its consolidated Subsidiaries as at the end of such year and the related audited consolidated statements of income and of cash flows for such year, reported on by KPMG LLP or other independent certified public accountants of nationally recognized standing; (II) as soon as available and in any event within 90 days after the end of each fiscal year of KAR (A) audited financial statements for KAR which include a consolidating income statement and consolidating balance sheet showing the consolidation of AFC and its subsidiaries into KAR’s audited financial statements and (B) an opinion of KPMG LLP or other independent certified public accountants acceptable to the Agent addressing such consolidating information either in an explanatory paragraph following the KAR audit opinion or in a separate report; and (III) if any Purchaser Agent provides AFC written notice on or prior to the 150th day before the end of any fiscal year of AFC that such Purchaser Agent desires the separate annual financial statements of AFC, as soon as available and in any event within 90 days after the end of each fiscal year of AFC, (A) a copy of the annual report for AFC and its consolidated subsidiaries, containing financial statements for such year audited by KPMG LLP or other independent certified public accountants acceptable to the Agent, and (B) the consolidating balance sheet of AFC and the income statement of AFC for such year certified by the chief financial officer of AFC;

(iii) (a) as soon as available and in any event not later than the Servicer Report Date, a Servicer Report as of the calendar month ended immediately prior to such Servicer Report Date and (b) unless the Agent has otherwise agreed in writing, a Portfolio Certificate as of each Friday, delivered on the third Business Day of the next calendar week (or as of each Business Day to the extent required by Section 4.2(e)). Each Servicer Report shall contain a current list of all branch offices, loan processing offices or other locations at which records and documents relating to the Pool Receivables (including, without limitation, any related Contracts and vehicle certificates of title) (collectively, the “Pool Receivable Documents”) are held by the Servicer. The Servicer shall provide each Rating Agency with prior notice of any material change to the form of Servicer Report and get their consent thereto prior to implementing any such change.

(iv) as soon as possible and in any event within three days after the occurrence of each Termination Event and Unmatured Termination Event, a statement of the chief financial officer of the Seller setting forth details of such Termination Event or event and the action that the Seller has taken and proposes to take with respect thereto;

(v) promptly after the filing or receiving thereof, copies of all reports and notices that the Seller or any ERISA Affiliate files with respect to a Plan under ERISA or the Internal Revenue Code with the Internal Revenue Service or the Pension Benefit Guaranty Corporation or the U.S. Department of Labor or that the Seller or any



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ERISA Affiliate receives from any of the foregoing or from any Multiemployer Plan to which the Seller or any ERISA Affiliate is or was, within the preceding five years, a contributing employer, in each case in respect of the assessment of withdrawal liability or an event or condition which could, in the aggregate, result in the imposition of liability on the Seller and/or any such ERISA Affiliate in excess of $250,000;

(vi) at least 60 days prior to any change in the Seller’s name or any other change requiring the amendment of UCC financing statements, a notice setting forth such changes and the effective date thereof;

(vii) such other information respecting the Pool Receivables, the Related Security (including inventory reports by branch, Obligor, vehicle identification number, and other descriptions sufficient to identify the Related Security) or the condition of operations, financial or otherwise, of the Seller or AFC as the Agent or any Purchaser Agent may from time to time reasonably request;

(viii) promptly after the Seller obtains knowledge thereof, notice of any litigation, regulatory ruling, default under any Originating Lender Sale Agreement or other event which could reasonably be expected to prevent any Originating Lender from originating Receivables or transferring Receivables to the Originator following origination;

(ix) promptly after the Seller obtains knowledge thereof, notice of the commencement of any proceedings instituted by or against any of the Seller, the Servicer or the Originator, as applicable, in any federal, state or local court or before any governmental body or agency, or before any arbitration board, in which the amount involved, in the case of the Servicer or Originator, is $500,000 or more and not covered by insurance or in which injunctive or similar relief is sought or any litigation or proceeding relating to any Transaction Document;

(x) promptly after the occurrence thereof, notice of any event or circumstance that could reasonably be expected to have a Material Adverse Effect;

(xi) notice of any material change to the Credit and Collection Policy or material change to the standard operation practices or procedures;

(xii) any amendment, waiver, extension, termination or replacement of the KAR Credit Facility (with a copy thereof) and an execution copy of the underlying credit agreement with respect to the KAR Credit Facility, in each case, upon execution thereof;

(xiii) as soon as possible and in any event within 30 days after the Seller knows or has reason to know of: (i) the occurrence or expected occurrence of any Reportable Event with respect to any Plan that is a Single Employer Plan, a failure to make any required contribution to a Plan, the creation of any lien in favor of the Pension Benefit Guaranty Corporation or a Plan or any withdrawal from, or the termination,



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Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action by the Pension Benefit Guaranty Corporation or the Seller or any ERISA Affiliate or any Multiemployer Plan with respect to the withdrawal from, or the terminating, Reorganization or Insolvency of any Plan;

(xiv) as soon as available and in any event upon the earlier to occur of (x) 45 days following the end of a fiscal quarter (90 days, in the case of the fourth fiscal quarter in any fiscal year) and (y) the day a compliance certificate is delivered pursuant to the KAR Credit Facility, a compliance certificate setting forth computations in reasonable detail satisfactory to the Majority Purchasers demonstrating compliance with the financial covenants of KAR thereunder; and

(xv) promptly after any changes, the current list of Excluded Receivables.

(m) Separate Corporate Existence. Each of the Seller and AFC hereby acknowledges that the Purchasers, the Agent and the Purchaser Agents are entering into the transactions contemplated by the Agreement and the Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from AFC. Therefore, from and after the date hereof, the Seller and AFC shall take all reasonable steps to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons that the Seller is an entity with assets and liabilities distinct from those of AFC, the Originator and any other Person, and is not a division of AFC or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in paragraph (a) of this Exhibit IV, the Seller and AFC shall take such actions as shall be required in order that:

(i) The Seller will be a limited purpose corporation whose primary activities are restricted in its articles of incorporation to purchasing Receivables from the Originator, entering into agreements for the servicing of such Receivables, selling undivided interests in such Receivables and conducting such other activities as it deems necessary or appropriate to carry out its primary activities;

(ii) Not less than one member of Seller’s Board of Directors (the “Independent Directors”) shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of the Originator or any of its Affiliates. The Seller’s Board of Directors shall not approve, or take any other action to cause the commencement of a voluntary case or other proceeding with respect to the Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Seller unless in each case the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors’ fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of the Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first



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sentence of this clause (ii) or any individual who has any other type of professional relationship with the Originator or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director;

(iii) No Independent Director shall at any time serve as a trustee in bankruptcy for Originator or any Affiliate thereof;

(iv) Any employee, consultant or agent of the Seller will be compensated from the Seller’s own bank accounts for services provided to the Seller except as provided herein in respect of the Servicing Fee. The Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to the Seller by payment of the Servicing Fee;

(v) The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service its Receivables. The Seller will pay the Servicer a monthly fee based on the level of Receivables being managed by the Servicer. The Seller will not incur any material indirect or overhead expenses for items shared between the Seller and the Originator or any Affiliate thereof which are not reflected in the Servicing Fee. To the extent, if any, that the Seller and the Originator or any Affiliate thereof share items of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Originator shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including, without limitation, legal and other fees;

(vi) The Seller’s operating expenses will not be paid by Originator or any Affiliate thereof unless the Seller shall have agreed in writing with such Person to reimburse such Person for any such payments;

(vii) The Seller will have its own separate mailing address and stationery;

(viii) The Seller’s books and records will be maintained separately from those of the Originator or any Affiliate thereof;

(ix) Any financial statements of the Originator or KAR which are consolidated to include the Seller will contain detailed notes clearly stating that the Seller is a separate corporate entity and has sold ownership interests in the Seller’s accounts receivable;

(x) The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Originator and any Affiliate thereof;



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(xi) The Seller will strictly observe corporate formalities in its dealings with the Originator and any Affiliate thereof, and funds or other assets of the Seller will not be commingled with those of the Originator or any Affiliate thereof. The Seller shall not maintain joint bank accounts or other depository accounts to which the Originator or any Affiliate thereof (other than AFC in its capacity as Servicer) has independent access and shall not pool any of the Seller’s funds at any time with any funds of the Originator or any Affiliate thereof;

(xii) The Seller shall pay to the Originator the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers the Seller and any Affiliate thereof, but the Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to the Originator or any Affiliate thereof (other than the Seller); and

(xiii) The Seller will maintain arm’s length relationships with the Originator and any Affiliate thereof. The Originator or any Affiliate thereof that renders or otherwise furnishes services to the Seller will be compensated by the Seller at market rates for such services. Neither the Seller nor the Originator or any Affiliate thereof will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.

(n) Mergers, Acquisitions, Sales, etc.

(i) The Seller shall not:

(A) be a party to any merger or consolidation, or directly or indirectly purchase or otherwise acquire, whether in one or a series of transactions, all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or sell, transfer, assign, convey or lease any of its property and assets (including, without limitation, any Pool Receivable or any interest therein) other than pursuant to this Agreement;

(B) make, incur or suffer to exist an investment in, equity contribution to, loan, credit or advance to, or payment obligation in respect of the deferred purchase price of property from, any other Person, except for obligations incurred pursuant to the Transaction Documents; or

(C) create any direct or indirect Subsidiary or otherwise acquire direct or indirect ownership of any equity interests in any other Person.

(o) Restricted Payments.

(i) General Restriction. Except in accordance with subparagraph (ii), the Seller shall not (A) purchase or redeem any shares of its capital stock, (B) declare or pay



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any Dividend or set aside any funds for any such purpose, (C) prepay, purchase or redeem any subordinated indebtedness of the Seller, (D) lend or advance any funds or (E) repay any loans or advances to, for or from the Originator. Actions of the type described in this clause (i) are herein collectively called “Restricted Payments”.

(ii) Types of Permitted Payments. Subject to the limitations set forth in clause (iii) below, the Seller may make Restricted Payments so long as such Restricted Payments are made only to the Originator and only in one or more of the following ways:

(A) Seller may make cash payments (including prepayments) on the Company Note in accordance with its terms; and

(B) if no amounts are then outstanding under the Company Note, the Seller may declare and pay Dividends.

(iii) Specific Restrictions. The Seller may make Restricted Payments only out of Collections paid or released to the Seller pursuant to Section 1.4(b). Furthermore, the Seller shall not pay, make or declare:

(A) any Dividend if, after giving effect thereto, Seller’s Tangible Net Worth would be less than [*]; or

(B) [*]

(p) Use of Seller’s Share of Collections. Subject to clause (o) above, the Seller shall apply its share of Collections to make payments in the following order of priority: first, the payment of its expenses (including, without limitation, the obligations payable to Purchasers, the Affected Persons, the Agent, the Purchaser Agents and the Agent under the Transaction Documents), second, the payment of accrued and unpaid interest on the Company Note, third, the payment of the outstanding principal amount of the Company Note, and fourth, other legal and valid corporate purposes permitted by the Agreement.

(q) Amendments to Certain Documents.

(i) The Seller shall not amend, supplement, amend and restate, or otherwise modify the Purchase and Sale Agreement, the Company Note, any other document executed under the Purchase and Sale Agreement, the Deposit Account Agreements, the Backup Servicing Agreement, the Backup Servicing Fee Letter (if any) or the Seller’s articles of incorporation or by-laws, except (A) in accordance with the terms of such document, instrument or agreement and (B) with the prior written consent of the Agent. The Seller shall obtain confirmation of the then–current rating of the Notes from S&P prior to amending the Seller’s articles of incorporation.

(ii) The Servicer shall maintain a complete list of Excluded Receivables and shall update such list on a timely basis for all changes thereto.



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(iii) The Originator shall not enter into, or otherwise become bound by, any agreement, instrument, document or other arrangement that restricts its right to amend, supplement, amend and restate or otherwise modify, or to extend or renew, or to waive any right under, this Agreement or any other Transaction Document.

(r) Incurrence of Indebtedness. The Seller shall not (i) create, incur or permit to exist any Debt or liability, (ii) cause or permit to be issued for its account any letters of credit or bankers’ acceptances, except for Debt incurred pursuant to the Company Note and liabilities incurred pursuant to or in connection with the Transaction Documents or otherwise permitted therein or (iii) enter into any swap or derivative contract.

(s) Lot Checks. The Seller shall, or shall cause the Servicer to, conduct Lot Checks of the Obligors according to the Originator’s customary practices or such more frequent intervals as may reasonably be requested by the Agent.

(t) Cash Collateral Amounts. With respect to each Eligible Receivable, if the related Contract (or related documentation) includes a “cash collateral” feature, then all such “cash collateral” shall be deposited to the Deposit Accounts held at [*] (numbered [*] and [*]) and such amounts shall be used to secure the obligations of the related Obligor.”

(u) Article 122a. On any date on which the Net Receivables Pool Balance is greater than zero (1) AFC shall own 100% of the outstanding equity (including amounts represented by the Loss Reserve) of the Seller; (2) the equity in the Seller shall represent at least [*] of the Net Receivables Pool Balance (i.e., by virtue of the Loss Percentage being in excess of [*]); (3) AFC shall not enter into any credit risk mitigation short positions or any other xxxxxx with respect to its equity interest in the Seller or the Eligible Receivables (including amounts represented by the Loss Reserve); (4) in each Servicer Report, AFC shall represent (a) that it continues to own 100% of the outstanding equity of the Seller and (b) that no credit risk mitigation, short positions or any other xxxxxx with respect to its equity interest in the Seller or the Eligible Receivables (including amounts represented by the Loss Reserve) have been entered into; and (5) AFC shall provide to any Purchaser or Purchaser Agent which is subject to European Union Directive 2006/48/EC (the “CRD”) all information which such Purchaser or Purchaser Agent reasonably requests or requires in order for such Purchaser or Purchaser Agent to comply with its obligations under Article 122(a)(4) and (5) of the CRD.



	EX-IV-10

EXHIBIT V

TERMINATION EVENTS

Each of the following shall be a “Termination Event”:

(a) Any Person which is the Servicer shall fail to (1) make when due any payment or deposit to be made by it under the Agreement or any other Transaction Document or (2) set aside or allocate all accrued and unpaid Program Fee, Discount or Servicing Fee in accordance with Section 1.4(b) and in each case, such failure shall remain unremedied for two Business Days after the earlier of (i) the Servicer’s knowledge of such failure and (ii) notice to the Servicer of such failure; or

(b) The Seller shall fail (i) to transfer to any successor Servicer when required any rights, pursuant to the Agreement, which the Seller then has with respect to the servicing of the Pool Receivables, or (ii) to make any payment required under the Agreement or any other Transaction Document, and in either case such failure shall remain unremedied for two Business Days after notice or discovery thereof; or

(c) Any representation or warranty made or deemed made by the Seller or the Servicer (or any of their respective officers) under or in connection with the Agreement or any other Transaction Document or any information or report delivered by the Seller or the Servicer pursuant to the Agreement or any other Transaction Document shall prove to have been incorrect, incomplete (with respect to such information or report delivered) or untrue in any material respect when made or deemed made or delivered; provided, however, if the violation of this paragraph (c) by the Seller or the Servicer may be cured without any potential or actual detriment to any Purchaser, the Agent, any Purchaser Agent, the Backup Servicer or any Program Support Provider, the Seller or the Servicer, as applicable, shall have 30 days from the earlier of (i) such Person’s knowledge of such failure and (ii) notice to such Person of such failure to so cure any such violation before a Termination Event shall occur so long as such Person is diligently attempting to effect such cure; or

(d) The Seller or the Servicer shall fail to perform or observe any other material term, covenant or agreement contained in the Agreement or any other Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for 30 days after the earlier of (i) such Person’s knowledge of such failure and (ii) notice to such Person of such failure (or, with respect to a failure to deliver the Servicer Report or the Portfolio Certificate pursuant to the Agreement, such failure shall remain unremedied for five days); or

(e) (i) A default shall occur in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any Debt of the Seller, AFC or KAR or (ii) a default shall occur in the performance or observance of any obligation or condition with respect to such Debt if the effect of such default is to accelerate the maturity of any such Debt, and, in the case of either clause (i) or clause (ii), the Debt with respect to which non-payment and/or non-performance shall have occurred exceeds, at any point in time, with respect to the Seller or AFC, $1,000,000 in the aggregate for all such occurrences or, with respect to KAR, $35,000,000, in the aggregate for all such occurrences; or



	EX-V-1

(f) The Agreement or any purchase or any reinvestment pursuant to the Agreement shall for any reason (other than pursuant to the terms hereof) (i) cease to create, or the Aggregate Participation shall for any reason cease to be, a valid and enforceable perfected undivided percentage ownership interest to the extent of the Aggregate Participation in each Pool Receivable free and clear of any Adverse Claim, excepting only Permitted Liens and the Collections with respect thereto and the Seller’s right, title and interest in, to and under the Related Security and the proceeds thereof, or (ii) cease to create with respect to all of Seller’s right, title and interest in, to and under the items described in Section 1.2(d)(A) – (F), or the interest of the Agent (for the benefit of the Secured Parties) with respect to such items shall cease to be, a valid and enforceable first priority perfected security interest, and in the case of the Pool Receivables, free and clear of any Adverse Claim, excepting only Permitted Liens; or

(g) The Originator, KAR or Seller shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Originator, KAR or Seller seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 45 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Originator, KAR or Seller shall take any corporate action to authorize any of the actions set forth above in this paragraph (g); or

(h) As of the last day of any calendar month, the arithmetic average of the Default Ratios for the most recent [*] shall exceed [*] or the Default Ratio as of the last day of any calendar month shall exceed [*]; or

(i) As of the last day of any calendar month, the arithmetic average of the Delinquency Ratios for the most recent [*] shall exceed [*] or the Delinquency Ratio as of the last day of any calendar month shall exceed [*]; or

(j) The arithmetic average of the Net Spread for the most recent [*] shall be [*]; or

(k) At any time the Aggregate Participation exceeds 100% and such condition shall continue unremedied for five days after any date any Servicer Report or Portfolio Certificate is required to be delivered; or

(l) A Change in Control shall occur; or

(m) (i) Any “accumulated funding deficiency” (within the meaning of Section 412 of the Internal Revenue Code or Section 302 of ERISA), whether or not waived, shall exist



	EX-V-2

with respect to any Plan, (ii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Majority Purchasers, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iii) the Seller or any ERISA Affiliate shall, or in the reasonable opinion of the Majority Purchasers, is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan, (iv) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any assets of the Seller or any ERISA Affiliate and such lien shall not have been released within ten Business Days, or the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA or perfect a lien under Section 302(f) of ERISA with regard to any of the assets of Seller or any ERISA Affiliate, or (v) any other adverse event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i), (ii), (iii), (iv) and (v) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to involve an aggregate amount of liability to the Seller or an ERISA Affiliate in excess of $10,000,000; or

(n) The Tangible Net Worth of the Seller shall be less than [*] or the Tangible Net Worth of the Originator shall be less than [*]; or

(o) Any material adverse change shall occur in the reasonable business judgment of the Agent or the Majority Purchasers in the collectibility of the Pool Receivables or the business, operations, property or financial condition of the Originator or the Seller; or

(p) The Termination Date shall occur or any Purchase and Sale Termination Event (as defined in the Purchase and Sale Agreement) shall occur (whether or not waived by the Seller); or

(q) The Performance Guaranty shall cease to be in full force and effect with respect to KAR, KAR shall fail to comply with or perform any provision of the Performance Guaranty, or KAR (or any Person by, through or on behalf of KAR) shall contest in any manner the validity, binding nature or enforceability of the Performance Guaranty with respect to KAR; or

(r) the sum of all of AFC’s Debt including (i) intercompany loans between AFC and KAR, but excluding any guarantee of KAR’s Debt under the KAR Credit Facility, and (ii) the outstanding balance of any other recourse transactions (which excludes the Investment of the Aggregate Participation under this Agreement and any Canadian securitization obligations) exceeds the sum of [*]; or

(s) AFC’s debt (excluding guarantees) to equity ratio is greater than [*]; or

(t) The aggregate Outstanding Balances of Eligible Receivables shall be less than $100,000,000; or

(u) The amount on deposit in the Cash Reserve Account shall at any time fail to equal or exceed the Cash Reserve for a period of [*]; or



	EX-V-3

(v) (i) any of the Originator, the Seller or the Servicer shall have asserted that any of the Transaction Documents to which it is a party is not valid and binding on the parties thereto; or (ii) any court, governmental authority or agency having jurisdiction over any of the parties to any of the Transaction Documents or any property thereof shall find or rule that any material provisions of any of the Transaction Documents is not valid and binding on the parties thereto and all appeals therefrom have been decided or the time to appeal has run; or

(w) the Backup Servicer shall resign or be terminated and no successor Backup Servicer reasonably acceptable to the Agent shall have been appointed pursuant to a replacement Backup Servicing Agreement within 90 days of such resignation or termination; unless on or prior to the first day in which a Backup Servicer is required to be appointed pursuant to this paragraph (x) KAR’s senior unsecured debt shall be rated at least “BBB-” by S&P and “Baa3” by Xxxxx’x; provided, that a Termination Event shall be deemed to occur if no Backup Servicer reasonably acceptable to the Agent shall have been appointed within 90 days following any subsequent withdrawal, suspension or downgrade of such senior unsecured debt ratings of KAR below “BBB-” by S&P or below “Baa3” by Xxxxx’x or, if the applicable rating is “BBB-” by S&P or “Baa3” by Xxxxx’x, the placement of such ratings on credit watch or similar notation; or

(x) the occurrence of a KAR Financial Covenant Termination Event; or

(y) as of the last day of any calendar month, the arithmetic average of the Payment Rate for the most recent [*] shall be less than [*]; or

(z) As reported on its consolidated balance sheet, AFC shall fail to maintain (as measured as of the last Business Day of each calendar week) cash and cash equivalents (including, without limitation, any intercompany receivable payable by KAR to AFC upon demand) of at least [*], at least [*] of which must constitute unrestricted cash (i.e., cash that is neither (i) pledged to a third party unrelated to this facility, nor (ii) in an account in which a third party unrelated to this facility has a perfected security interest).



	EX-V-4

EXHIBIT VI
PORTFOLIO CERTIFICATE

AFC Funding Corporation



To:	BMO Capital Markets, as Agent and Fairway Purchaser Agent; BMO Xxxxxx Bank as Purchaser; Deutsche Bank AG as Purchaser; Deutsche Bank AG, as Saratoga Purchaser Agent; and Fifth Third Bank as Purchaser

Reference is made to the 5th Amended and Restated Receivables Purchase Agreement, dated as of June 21, 2013, (herein, as amended or otherwise modified from time to time, called the "Receivables Purchase Agreement"), among AFC Funding Corp. (the "Seller"), Automotive Finance Corporation (the "Servicer"), the entities from time parties thereto as Purchasers or Purchase Agents thereunder, BMO Capital Markets Corp. as Agent. Capitalized terms used but not otherwise defined herein are used as defined in the Receivables Purchase Agreement.
					Date
The Seller hereby certifies and warrants to you that the following is a true and correct computation as of:					6/21/2013

	current Investment			0
	reduced by, the amount of cash in the [*] at the end of business on the last Business Day of the prior calendar week, that was wired to the respective Purchaser on the immediately following Business Day to pay down the Purchaser's Investment.
				0
	plus, with respect to a request for an increase of the Purchasers' Investments, the amount of such increase.			0
	Investment after funding activity		1A	0

	Current balance of unfufilled purchases subject to a Deferred Purchase Date		1B	0

	Loss Reserve [*]	[*]	1C	#VALUE!

			TOTAL (1)	#VALUE!
Net Receivables Pool Balance

	Total of all Receivables in the Receivables Pool (A) [Note: these letters correspond to the Servicer Report.]			0

	Reduction for: Specified Ineligible Receivables (B)			0

	Reduction for: Title Attached Receivables (D)			0

	Reduction for: ineligible Receivables (F)			0

	Reduction for: Normal Concentration limit (H)			0

	Reduction for: Special Concentration limit - [*]			0

	Reduction for: Special Concentration limit - [*]			0

	Reduction for: Special Concentration limit - [*]			0

	Reduction for: Special Concentration limit - [*]			0

	Reduction for: Special Concentration limit - [*]			0

	Reduction for: Special Concentration limit - [*]			0

	Reduction for: Special Concentration limit - [*]			0
	Net Receivables Pool Balance		2A	0

Liquidation Account balance excess/(deficit)
	Amount of Collections on deposit in the Liquidation Account (other than amounts transferred thereto from the Deposit Accounts to pay Discount, Servicing Fee, Unaffiliated Servicing Fee, Backup Servicing Fee, Transition Expenses and Program Fees, Note Placement Fee and Indemnified Amounts)
			2B	0

			TOTAL (2)	0

Aggregate Participation TEST:			(1) / (2)	#VALUE!
	Is Aggregate Participation less than or equal to 100%?			#VALUE!

Cash Reserve [*]
	Is Level One Trigger applicable?			No

	Cash Reserve Account balance		3A	0

	Cash Reserve Required Amount (1A * Cash Reserve %)		3B	0

Cash Reserve TEST: (3A must be greater than or equal to 3B)				COMPLIES

IN WITNESS WHEREOF, the SELLER has caused this Portfolio Certificate to be executed and delivered by the Servicer. In addition, as of the date of this Portfolio Certificate, both AFC and AFC Funding are in compliance with all Representations & Warranties and Covenants. Also, no Termination Events or Unmatured Termination Events have occurred under the RPA.


		Automotive Finance Corporation, as Servicer

		By: _________________________________
		Name: Xxxxx X. Money, II
		Title: Chief Financial Officer and Treasurer



	EX-VI-1

EXHIBIT VII

PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS

In addition to the representations, warranties and covenants contained in the Agreement, to induce Purchasers and Agent to enter into the Agreement and, in the case of Purchasers, to purchase the Participation hereunder, the Seller hereby represents, warrants and covenants to Agent and the Purchasers as to itself as follows on the Closing Date and on the date of each purchase and reinvestment in the Participation thereafter:

General

1. The Agreement creates a valid and continuing security interest (as defined in the Indiana UCC) in the Pool Receivables in favor of the Agent, for the benefit of the Secured Parties, which security interest is prior to all other Adverse Claims, and is enforceable as such as against creditors of and purchasers from the Seller.

2. The Pool Receivables constitute “accounts,” “payment intangibles,” “general intangibles,” “instruments” or “tangible chattel paper,” within the meaning of the Indiana UCC.

3. The Cash Reserve Account, the Deposit Accounts and the Liquidation Account and all subaccounts of such accounts, constitute either a “deposit account” or a “securities account” within the meaning of the Indiana UCC.

4. The Originator or the Originating Lender, as applicable, thereof has perfected its security interest against the Obligors in the property securing the Pool Receivables (to the extent that a security interest in such property can be perfected by the filing of a financing statement).

Creation

5. The Seller owns and has good and marketable title to the Pool Receivables free and clear of any Adverse Claim, claim or encumbrance of any Person, excepting only Permitted Liens.

6. Originator has received all consents and approvals to the sale of the Pool Receivables to the Seller required by the terms of the Receivables that constitute instruments or payment intangibles.

Perfection

7. Each of the Originator and the Seller has caused or will have caused, within ten days after the effective date of the Agreement, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the sale of the Receivables from Originator to the Seller pursuant to the Purchase and Sale Agreement and the security interest therein granted by the Seller to the Agent, for the benefit of the Secured Parties, hereunder; and Originator or Originating Lender has in its possession the original copies of such instruments or tangible chattel paper that constitute or evidence the Pool Receivables, and



	EX-VII-1

all financing statements referred to in this paragraph contain a statement to the effect that: A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Agent, for the benefit of the Secured Parties.

8. With respect to Pool Receivables that constitute an instrument or tangible chattel paper:

Such instruments or tangible chattel paper is in the possession of the Servicer and the Agent has received a written acknowledgment from the Servicer that the Servicer is holding such instruments or tangible chattel paper solely on behalf and for the benefit of the Agent, on behalf of the Secured Parties, and each of the Originator and the Seller has caused or will have caused, within ten days after the effective date of the Agreement, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law, and all financing statements referred to in this paragraph contain a statement to the effect that: A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Agent, for the benefit of the Secured Parties.

9. With respect to the Cash Reserve Account, the Deposit Accounts and the Liquidation Account and all subaccounts of such accounts that constitute deposit accounts, either:

(i) The Seller has delivered to the Agent, for the benefit of the Secured Parties, a fully executed agreement pursuant to which the bank maintaining the deposit accounts has agreed to comply with all instructions originated by the Agent, for the benefit of the Secured Parties, directing disposition of the funds in such accounts without further consent by the Seller; or

(ii) The Seller has taken all steps necessary to cause the Agent, on behalf of the Secured Parties, to become the account holder of such accounts.

10. With respect to the Cash Reserve Account, the Deposit Accounts and the Liquidation Account or subaccounts of such accounts that constitute “securities accounts” or “securities entitlements” within the meaning of the Indiana UCC:

(i) The Seller has delivered to the Agent, for the benefit of the Secured Parties, a fully executed agreement pursuant to which the securities intermediary has agreed to comply with all instructions originated by the Agent, for the benefit of the Secured Parties, relating to such account without further consent by the Seller; or

(ii) The Seller has taken all steps necessary to cause the securities intermediary to identify in its records the Agent, for the benefit of the Secured Parties, as the person having a security entitlement against the securities intermediary in each of such accounts.



	EX-VII-2

Priority

11. Other than the transfer of the Receivables to the Seller under the Purchase and Sale Agreement and the security interest granted to the Agent, for the benefit of the Secured Parties, pursuant to this Agreement, neither the Seller nor the Originator has pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Pool Receivables or the Cash Reserve Account, the Deposit Accounts, the Liquidation Account or any subaccount of such accounts. Neither the Seller nor the Originator has authorized the filing of, or is aware of any financing statements against the Seller or the Originator that include a description of collateral covering the Pool Receivables or the Cash Reserve Account, the Deposit Accounts, the Liquidation Account or any subaccount of such accounts other than any financing statement relating to the security interest granted to the Agent, for the benefit of the Secured Parties, hereunder or that has been terminated.

12. Neither the Seller nor the Originator is aware of any judgment, ERISA or tax lien filings against either the Seller or the Originator.

13. None of the instruments or tangible chattel paper that constitute or evidence the Pool Receivables has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Seller or the Agent, for the benefit of the Secured Parties.

14. Neither the Cash Reserve Account, the Deposit Accounts, the Liquidation Account nor any subaccount of such accounts are in the name of any person other than the Seller or the Agent, on behalf of the Secured Parties. The Seller has not consented to the securities intermediary of any such account to comply with entitlement orders of any person other than the Agent, on behalf of the Secured Parties.

15. Survival of Perfection Representations. Notwithstanding any other provision of the Agreement or any other Transaction Document, the Perfection Representations contained in this Exhibit VII shall be continuing, and remain in full force and effect (notwithstanding any termination of the commitments or any replacement of the Servicer or termination of Servicer’s rights to act as such) until such time as Investments and all other obligations under the Agreement have been finally and fully paid and performed.

16. No Waiver. The parties to the Agreement: (i) shall not, without obtaining a confirmation of the then-current rating of the Notes, waive any of the Perfection Representations; and (ii) shall provide the Ratings Agencies with prompt written notice of any breach of the Perfection Representations, and shall not, without obtaining a confirmation of the then-current rating of the Notes (as determined after any adjustment or withdrawal of the ratings following notice of such breach), waive a breach of any of the Perfection Representations.

17. Servicer to Maintain Perfection and Priority. The Servicer covenants that, in order to evidence the interests of the Agent, on behalf of the Secured Parties, under this Agreement, Servicer shall take such action, or execute and deliver such instruments (other than effecting a Filing (as defined below), unless such Filing is effected in accordance with this paragraph) as may be



	EX-VII-3

necessary or advisable including, without limitation, such actions as are requested by the Agent, on behalf of the Secured Parties, to maintain and perfect, as a first priority interest (subject only to Permitted Liens), the Agent’s, on behalf of the Secured Parties’, security interest in the Pool Receivables and Collections with respect thereto and the Seller’s right, title and interest in, to and under the Related Security and the proceeds thereof. Servicer shall, from time to time and within the time limits established by law, prepare and present to the Agent, on behalf of the Secured Parties, for the Agent, on behalf of the Secured Parties, to authorize (based in reliance on the opinion of counsel hereinafter provided for) the Servicer to file, all financing statements, amendments, continuations, initial financing statements in lieu of a continuation statement, terminations, partial terminations, releases or partial releases, or any other filings necessary or advisable to continue, maintain and perfect the Agent’s, on behalf of the Secured Parties’, security interest in the Pool Receivables and Collections with respect thereto and the Seller’s right, title and interest in, to and under the Related Security and the proceeds thereof as a first-priority interest (subject only to Permitted Liens) (each a “Filing”). Servicer shall present each such Filing to the Agent, on behalf of the Secured Parties, together with (x) an opinion of counsel as to perfection and such other matters as the Agent may reasonably request with respect to such Filing, and (y) a form of authorization for the Agent’s, on behalf of the Secured Parties’ signature. Upon receipt of such opinion of counsel and form of authorization, the Agent, on behalf of the Secured Parties, shall promptly authorize in writing Servicer to, and Servicer shall, effect such Filing under the Uniform Commercial Code without the signature of Originator, the Seller, or the Agent, on behalf of the Secured Parties where allowed by applicable law. Notwithstanding anything else in the Agreement to the contrary, the Servicer shall not have any authority to effect a Filing without obtaining written authorization from the Agent, on behalf of the Secured Parties, in accordance with this paragraph (17).



	EX-VII-4

SCHEDULE I

[RESERVED]



	SCH-I-1

SCHEDULE II

DEPOSIT BANKS AND DEPOSIT ACCOUNTS



Deposit Bank	Deposit Account
[*]	[*]
[*]	[*]
[*]	[*]



	SCH-II-1

SCHEDULE III
NET RECEIVABLES POOL BALANCE CALCULATIONS



		In calculating NRPB, there should be no duplication of amounts previously reduced from a different category.
Net Receivables Pool Balance Calculation
Total Pool Receivables								(A)
Specified Ineligible Receivables								(B)
Total Pool Receivables excluding Specified Ineligible Receivables						(A) - (B)		(C)
Title Attached Receivables								(D)
Receivables subject to Back-up Servicing Fee						(C) - (D)		(E)

ineligible Receivables
Non-US residents, governmental, or other ineligible obligors						f1
Delinquent Receivables						f2
Defaulted Receivables						f3
Obligors with > [*] Defaulted Receivables						f4
Short-pays						f5
NSF						f6
Ineligible contract terms						f7
Receivable > original terms without Excess Curtailment						f8
Other ineligible vehicle types						f9
Sold out of Trust						f10
Obligors subject to bankruptcy or insolvency proceedings						f11
Rental Receivables (Principal Balance > [*])						f12
Term > [*] payoff						f13
				Total ineligible Receivables		(sum f)		(F)
Eligible Receivables						(E) - (F)		(G)

Normal Concentration Percentage
Obligor Name	Amount	Also, has Rental? Y/N	Concentration limit	Limit	Excess concentrations
Retail Obligors
						h1
						h2
						h3
						h4
						h5
						h6
						h7
Rental Obligors
						h8
						h9
						h10
						(sum h)		(H)
							Reduction to NRPB

Special Concentration Percentage - Special Obligors
Obligor Name	Amount	Also, has Rental? Y/N	Concentration Limit	Limit	Excess concentrations
Retail Obligors
						i1
						i2
						i3
						i4
						i5
						i6
						i7
Rental Obligors
						i8
						i9
						i10
						(sum i)	—	(I)
							Reduction to NRPB

All Obligors exceeding [] Normal Concentration limit (aggregate concentration limit [])					Value of Receivables for
Obligor Name	Amount		Concentration Limit	Limit	Obligors exceeding [*]
0	0		0		0
0	0		0		0
0	0		0		0
0	0		0		0
0	0		0		0
0	0		0		0
0	0		0		0
0	0		0		0
0	0		0		0
0	0		0		0

Total of Special Obligors exceeding [*]		(i)	0	(sum j)
[*] concentration percentage x (G)		(ii)	0
Excess concentration					if (i) > (ii), then (ii) - (i)		—	(J)
							Reduction to NRPB

Special Concentration Percentage - Specialty Vehicles

Total Motorcycles (including all-terrain vehicles)		(i)
All-Terrain Vehicles		(ii)
All-Terrain Vehicles Advance Limit		(iii)
All Terrain Vehicles Discounted amount		(ii) x (iii)		(iv)
Total Motorcycles discounted amount				(i) - (ii) + (iv)		(x)

Salvage Vehicles		(v)
Advance Limit		(vi)
Salvage Vehicles discounted amount				(v) x (vi)		(y)

Marine Crafts		(vii)
Advance Limit		(viii)
Marine Crafts discounted amount				(vii) x (viii)		(z)

Specialty Vehicle Type	Amount		Concentration limit	Limit	Excess concentrations
[*] from (x)		k1				K1
[*]		k2				K2
[*]		k3				K3
[*] from (y)		k4				K4
[*]		k5				K5
[*] from (z)		k6				K6
[*]		k7				K7
Excess concentration						(sum k)		(K)
							Reduction to NRPB

[*] Specialty Vehicle Aggregate Special Concentration Percentage
Total Specialty Vehicles		(i)		sum (k)
Excess concentration		(ii)		from (K)
Total Specialty Vehicles, net of Excess Concentration		(i) - (ii)		(iii)
	[*] Concentration Percentage x (G)			(iv)	—
Excess Concentration					if (iii) > (iv), then (iv) - (iii)			(L)
							Reduction to NRPB

Special Concentration Percentage - Extended Curtailment Receivables
Extended Curtailment Receivables		(i)
Extended Curtailments > [*] days		(ii)
Extended Curtailments delinquent [*] days		(iii)
						from (ii)		(M)
		(i) - (ii)		(iv)			Reduction to NRPB
Discount percentage		(v)
Discounted amount			(iv) x (v)			n1
Value at [*] advance limit		(iii) * [100% - (v)]		(vi)
[*] Concentration percentage x (G)		(vii)
Excess concentration			if (vi) > (vii), then (vii) - (vi)			n2
						(sum n)		(N)
							Reduction to NRPB

Special Concentration Percentage - Rental Receivables
Static Rental Receivables Pool Net Loss Rate				**	Static Rental Receivables Pool Net Loss Rate	Advance rate
	** Rate from worst performing [*] rolling vintage during last 24 Months				Static Rental Receivables Pool Net Loss Rate	Advance rate
Applicable Rental Receivables Advance Rate		(i)




Rental Receivables
All Rental Receivables including large rental Obligors		(ii)
Individual excess concentrations (not to double count)		(iii)		sum (h8-h10) - sum(i8-i10)
		(iv)		(ii) - (iii)
Discount percentage (inverse of Appl. Rent. Rcv Adv. Rate)		(v)		100% - (i)
Discounted amount			(iv) x (v)		—	o1

Value of Rental Receivables at applicable advance rate		(i) x (iv)
[*] concentration percentage x (G)		(v)
Excess concentration			if (iv) > (v), then (v) - (iv)		—	o2
						(sum l)		(O)
							Reduction to NRPB

Special Concentration Percentage - Minimum Curtailment Payment

Receivables (excluding Rental) w/ curtailment pymt [], but []		(i)
[*] concentration limit		(ii)
Excess Concentration			if (i) > (ii), then (i) - (ii)					(P)
							Reduction to NRPB

Special Concentration Percentage - Maximum Terms
[*] Day Terms		(i)
[*] Concentration Percentage x (G)		(ii)
Excess Concentration					if (i) > (ii), then (ii) - (i)			(Q)
							Reduction to NRPB

[] to [] Day Terms		(iii)
[*] Concentration Percentage x (G)		(iv)
Excess Concentration					if (iii) > (iv), then (iv) - (iii)			(R)
							Reduction to NRPB



Special Concentration Percentage - Auction Credit

Total Auction Credits		(i)
[*] concentration limit		(ii)
Excess Concentration			if (i) > (ii), then (i) - (ii)					(S)
							Reduction to NRPB

Total of discounts and excess concentrations					(Sum H through S)			(T)


Net Receivables Pool Balance						(G) + (T)



	SCH-III-1

SCHEDULE IV

[RESERVED]



	SCH-IV-1

SCHEDULE V

TAX MATTERS

None.



	SCH-V-1

SCHEDULE VI

COMPETITOR FINANCIAL INSTITUTIONS

[*]



	SCH-VI-1

ANNEX A

FORM OF PURCHASE NOTICE

AFC Funding Corporation

PURCHASE/PAYDOWN Request

[DATE]

FAX/E-MAIL TO:

BMO Capital Markets

BMO Xxxxxx Bank

Saratoga

Deutsche Bank

Fifth Third

Attn:

Phone:

Fax:

fax:

Email all of these recipients:

TRANSACTION AMOUNT

CLIENT NAME:

AFC Funding Corporation

Total Current Outstandings

INCREASE

FUNDING DATE:

[DATE]

PAYDOWN

FAIRWAY

BMO Xxxxxx

Saratoga

Deutsche Bank

Fifth Third

MATURITY RANGE FOR CONDUITS:

FAIRWAY

BMO Xxxxxx

Saratoga

Deutsche Bank

Fifth Third

TOTALS

PURCHASE AMOUNT:

Next Business Day's activity - Increase

—

PAYDOWN AMOUNT :

Next Business Day's activity - Decrease

—

CURRENT OUTSTANDINGS:

—

REQUESTED OUTSTANDINGS (Next Business Day):

—

Maximum Limit (Facility / Purchase)

—

Limit Exceeded?

Within Limit

Deferred Payments Pending?

(If Yes, see separate schedule attached & include unfulfilled amounts in requested outstanding total above)

FAIRWAY

BMO XXXXXX

SARATOGA

DEUTSCHE BANK

FIFTH THIRD

TOTALS

—

WIRE INSTRUCTIONS for AFC:

Wire Instrns for FAIRWAY

Wire Instrns for BMO Xxxxxx

Wire Instrns for Saratoga

Wire Instrns for Deutsche Bank

Wire Instrns for Fifth Third

Bank:

ABA:

Account #:

Account Name:

Reference:

Special Instructions:

Xxxxx Contact:

Send CP trade confirmations to:

Automotive Finance Corporation, as Servicer

By:______________________________

Name: Xxxxx X. Money, II

Title: Chief Financial Officer and Treasurer



	Annex A-1

ANNEX B
FORM OF SERVICER REPORT

Delivered Electronically in Excel Format

AFC FUNDING CORPORATION

Servicer Report

Dated:

30-Sep-12

Inputs

# of Days in Month:

This Servicer report is delivered pursuant to the Fifth Amended and Restated Receivables Purchase Agreement (the “RPA”) dated as of June 21, 2013 among AFC Funding Corporation, as Seller, Automotive Finance Corporation, as Servicer, the entities identified from time to time as Purchasers or Purchaser Agents, and BMO Capital Markets Corp, as Agent.

Part I.

Purchase Limit, Investment Amount, and Participation as of

30-Sep-12

Fairway

BMO Xxxxxx

Saratoga

Deutche Bank

Fifth Third

Total

Purchase Limit

—

Purchase Limit %

Aggregate Investment Amount (Excludes Cash Wired from [*])

Aggregate unfulfilled Purchases pending in connection with Deferred Purchase Date

Cash wired from [*]

Aggregate Investment Amount (Net of Cash Wired from [*] & Including Purchase amounts subject to a Deferred Purchase Date)

Aggregate Loss Reserve Calculation

Collateral Balance = (Net Receivables Pool Balance + Excess in Liq. Acct )

Participation = [((E+F)/G))]

Part II.

Receivables Rollforward and Aging Report

See Section I details on Receivables Pool Balance calculated as of the Month End Date.

Part III.

Concentration Limits and Net Receivables Pool Balance

See Section II details on Receivables Pool Balance calculated as of the Month End Date.

Part IV.

Required Reserves (Section III)

Loss Reserve (incl Cash Res)

Loss Reserves and Percentage

Minimum Level (Min % * Investment)

Cash Reserve (part of LR)

Minimum Level (Min % * Investment)

Part V.

Performance Triggers (Section IV)

Actual

Trigger Level

[*]

In Compliance

[*]

In Compliance

[*]

In Compliance

[*]

In Compliance

[*]

In Compliance

[*]

In Compliance

Net Spread Test [*]

In Compliance

Net Spread Test [*]

In Compliance

[*]

In Compliance

Part VI.

Financial Triggers & Covenants (Section V)

Actual

Trigger Level

Bankruptcy

In Compliance

Material Adverse Change

In Compliance

ERISA / IRS section 6323 Lien

In Compliance

Change in Control

In Compliance

KAR Financial Covenant Violation

In Compliance

AFC owns 100% of Seller's Equity which represents [*] of NRPB

In Compliance

No credit risk mitigation, short position, or other xxxxxx with respect to AFC's equity interest

In Compliance

Cross Acceleration of Corporate Debt (Seller or AFC > [*]; KAR > [*])

In Compliance

AFC consolidated cash equivalents are at least [*] (incl [*] unrestricted cash)

In Compliance

Cash Reserve exceeds required amount

In Compliance

Level One Trigger Event

In Compliance

Servicer's Debt + Investment Limitation

In Compliance

Tangible Net Worth Test (AFC)

In Compliance

Tangible Net Worth Test (Seller)

In Compliance

Leverage Ratio (Debt / Equity) of AFC - Quarterly

In Compliance

Increase to Utilization Fee Event [*]

In Compliance

Part VII.

Reporting Requirements

Timing

Quarterly Financial Statements (unaudited) - KAR & AFC

[*]

Annual Financial Statements - KAR & AFC

[*]

KAR Compliance Certificate (includes Rating Agencies)

[*]

Reporting Period

[*]

Report Dates (includes Rating Agencies)

[*]

Material Changes to Servicer Report

[*]

Notice of Termination Event or Unmatured Termination Event (includes Rating Agencies)

[*]

Notice of ERISA Liens > $250,000 or reportable events

[*]

Seller, changes to name, jurisdiction or corporate structure

[*]

Litigation over $500,000

[*]

List of Subservicers with Contact Information

[*]

Material changes to Credit and Collection Policy

[*]

Changes to standard operating practices or procedures

[*]

Changes to Excluded Receivables

[*]

Part VIII.

Representations & Warranties

The Servicer certifies the figures on the Servicer Report to be true and complete, no Termination Events as forth in Exhibit V have occurred, and the representations and warranties set forth in Exhibit III of the Receivables Purchase Agreement are true and correct as of the date hereof. In addition, the Servicer confirms that no subservicing arrangements exist other than AFC Cal, LLC.

(Delivered by the Servicer, on behalf of the Seller pursuant to Exhibit IV(l)(iii) of the Receivables Purchase Agreement)

Automotive Finance Corporation, as Servicer

By:

Name Printed:

Xxxxx X. Money, II

Title:

Chief Financial Officer and Treasurer

Date:

SECTION I - Receivables Information

Receivables Rollforward

Current Month

#REF!

Beginning Principal Balance

Receivables Floorplanned

Principal Receipts

Write-Offs

A/R Converted to Notes

Ending Principal Balance [A + B - C - D - E]

—

Finance Charge Collections

Interest

Floorplan Fee

Other Fees

Finance Charge Collections (F + G + H)

Write-Offs

Total Write-Offs

Write-Offs > [*]

Total Converted to Notes

Converted to Notes > [*]

II.

Receivables Aging Report

Current

[*] Days Past Due

Total Receivables [A + B + C + D + E + F]

—

Average Maturity (ref purposes only)

Difference

—

III.

Payment Rate / Implied Turnover

[*]

Specified Ineligible Receivables

[*]

(Assets sold to AFC Funding Corp., but not eligible for the Net Receivables Pool Balance. These items are not included in the rollforward and are not aged)

IV.

Delinquent Receivables

Dismantlers

Receivables [*] days past due

Affiliated Obligors

Defaulted Receivables

Receivables [*] days past due

VI.

Obligor Information

Number of Active Dealers

Average Dealer Size

SECTION II - Concentrations & NRPB

In calculating NRPB, there should be no duplication of amounts previously reduced from a different category.

Net Receivables Pool Balance Calculation

Total Pool Receivables

(A)

Specified Ineligible Receivables

(B)

Total Pool Receivables excluding Specified Ineligible Receivables

(A) - (B)

(C)

Title Attached Receivables

(D)

Receivables subject to Back-up Servicing Fee

(E)

Prior ME Recvs:

ineligible Receivables

Non-US residents, governmental, or other ineligible obligors

Delinquent Receivables

Defaulted Receivables

Obligors with > [*] Defaulted Receivables

Short-pays

NSF

Ineligible contract terms

Receivable > original terms without Excess Curtailment

Other ineligible vehicle types

Sold out of Trust

f10

Obligors subject to bankruptcy or insolvency proceedings

f11

Rental Receivables (Principal Balance > [*])

f12

Term > [*] payoff

f13

Total ineligible Receivables

(sum f)

(F)

Eligible Receivables

(E) - (F)

(G)

Normal Concentration Percentage

Obligor Name

Amount

Also, has Rental? Y/N

Concentration limit

Limit

Excess concentrations

Retail Obligors

Rental Obligors

h10

(sum h)

(H)

Reduction to NRPB

Special Concentration Percentage - Special Obligors

Obligor Name

Amount

Also, has Rental? Y/N

Concentration Limit

Limit

Excess concentrations

Retail Obligors

Rental Obligors

i10

(sum i)

—

(I)

Reduction to NRPB

All Obligors exceeding [*] Normal Concentration limit (aggregate concentration limit [*])

Value of Receivables for

Obligor Name

Amount

Concentration Limit

Limit

Obligors exceeding [*]

—

Total of Special Obligors exceeding [*]

(i)

—

(sum j)

[*] concentration percentage x (G)

(ii)

—

Excess concentration

if (i) > (ii), then (ii) - (i)

—

(J)

Reduction to NRPB

Special Concentration Percentage - Specialty Vehicles

Total Motorcycles (including all-terrain vehicles)

(i)

All-Terrain Vehicles

(ii)

All-Terrain Vehicles Advance Limit

(iii)

All Terrain Vehicles Discounted amount

(ii) x (iii)

(iv)

Total Motorcycles discounted amount

(i) - (ii) + (iv)

(x)

Salvage Vehicles

(v)

Advance Limit

(vi)

Salvage Vehicles discounted amount

(v) x (vi)

(y)

Marine Crafts

(vii)

Advance Limit

(viii)

Marine Crafts discounted amount

(vii) x (viii)

(z)

Specialty Vehicle Type

Amount

Concentration limit

Limit

Excess concentrations

[*] from (x)

[*]

[*] from (y)

[*]

[*] from (z)

[*]

Excess concentration

(sum k)

(K)

Reduction to NRPB

[*] Specialty Vehicle Aggregate Special Concentration Percentage

Total Specialty Vehicles

(i)

sum (k)

Excess concentration

(ii)

from (K)

Total Specialty Vehicles, net of Excess Concentration

(i) - (ii)

(iii)

[*] Concentration Percentage x (G)

(iv)

—

Excess Concentration

if (iii) > (iv), then (iv) - (iii)

(L)

Reduction to NRPB

Special Concentration Percentage - Extended Curtailment Receivables

Extended Curtailment Receivables

(i)

Extended Curtailments >[*]

(ii)

Extended Curtailments delinquent [*]

(iii)

from (ii)

(M)

(i) - (ii)

(iv)

Reduction to NRPB

Discount percentage

(v)

Discounted amount

(iv) x (v)

Value at [*] advance limit

(iii) * [100% - (v)]

(vi)

[*] Concentration percentage x (G)

(vii)

Excess concentration

if (vi) > (vii), then (vii) - (vi)

(sum n)

(N)

Reduction to NRPB

Special Concentration Percentage - Rental Receivables

Static Rental Receivables Pool Net Loss Rate

Advance rate

** Rate from worst performing [*] rolling vintage during last 24 Months

Applicable Rental Receivables Advance Rate

(i)

Rental Receivables

All Rental Receivables including large rental Obligors

(ii)

Individual excess concentrations (not to double count)

(iii)

sum (h8-h10) - sum(i8-i10)

(iv)

(ii) - (iii)

Discount percentage (inverse of Appl. Rent. Rcv Adv. Rate)

(v)

100% - (i)

Discounted amount

(iv) x (v)

—

Value of Rental Receivables at applicable advance rate

(i) x (iv)

[*] concentration percentage x (G)

(v)

Excess concentration

if (iv) > (v), then (v) - (iv)

—

(sum l)

(O)

Reduction to NRPB

Special Concentration Percentage - Minimum Curtailment Payment

Receivables (excluding Rental) w/ curtailment pymt [*], but [*]

(i)

[*] concentration limit

(ii)

Excess Concentration

if (i) > (ii), then (i) - (ii)

(P)

Reduction to NRPB

Special Concentration Percentage - Maximum Terms

[*] to [*] Day Terms

(i)

[*] Concentration Percentage x (G)

(ii)

Excess Concentration

if (i) > (ii), then (ii) - (i)

(Q)

Reduction to NRPB

[*] to [*] Day Terms

(iii)

[*] Concentration Percentage x (G)

(iv)

Excess Concentration

if (iii) > (iv), then (iv) - (iii)

(R)

Reduction to NRPB

Special Concentration Percentage - Auction Credit

Total Auction Credits

(i)

[*] concentration limit

(ii)

Excess Concentration

if (i) > (ii), then (i) - (ii)

(S)

Reduction to NRPB

Total of discounts and excess concentrations

(Sum H through S)

(T)

Net Receivables Pool Balance

(G) + (T)

SECTION III - Required Reserves

[*]

Month Delinquency Ratio

[*]

#REF!

Loss Reserve Ratio (Calculated Below)

#REF!

Minimum Loss Percentage

#REF!

Loss Percentage [*]

#REF!

Loss Percentage (1-Loss Percentage)

—

#REF!

XI.

Loss Reserve Calculation

Fairway

BMO Xxxxxx

Saratoga

Deutche Bank

Fifth Third

Total

#REF!

Total Investment

#REF!

Cash wired in from collection accounts

#REF!

Loss Percentage/(1-Loss Percentage)

#REF!

Loss Reserve [A - B * C]

#REF!

loss reserve - default % component:

[*] Avg Default Ratio

[*]

#REF!

[*]

#REF!

[*]

#REF!

Outstanding Balance of Eligible Receivables

#REF!

Loss Reserve Ratios [G * H/I]

#REF!

XII.

Required Cash Reserve Account

#REF!

Has Level I Trigger Ever Occurred

#REF!

Calculation Date of Most Recent Level I Trigger Violation

#REF!

[*]

Level I Trigger

#REF!

[*]

Level I Trigger

#REF!

[*]

Level I Trigger

#REF!

Calculation Date Level I Trigger was Cured

Has the Level I Trigger been cured for [*]?

Level I Trigger Applicable (occurred and not cured for [*]) ?

Cash Reserve Percentage

Aggregate Investments

Required Cash Reserve Amount [A * B]

Actual Cash Reserve Balance

Violation

XIII.

Total Reserves

Loss Reserve

Cash Reserve [from XII. C)]

Total Reserve $ [A + B]

Total Reserve % [A + B] / XI.(A)

Investment + Loss Reserve C) + XI.A)

XIV.

Liquidation Account Balance

Fairway

BMO Xxxxxx

Saratoga

Deutche Bank

Fifth Third

Total

[*] Backup Servicing Fee calculation

Liquidation Account Balance

[*]

Last Billing Paid

[*]

Unaffiliated Servicing Fee (not previously set aside)

[*]

Backup Serv. Fees [*] (not previously set aside)

[*]

Transition Expenses (if any, not previously set aside)

[*]

Discount

[*]

Utilization Fee (From Billing)

[*]

Facility Fee (From Billing)

Note Placement Fees

Note: Items D, E and F are limited to Libor + [*]

Minimum Balance

Excess Cash/(Deficit)

Compliance?

In Compliance

SECTION IV - Performance Triggers

XVI.

Termination Events - Month End Only

Participation Test

Aggregate Investments

Aggregate unfulfilled Deferred Purchases

Loss Reserve Calculation

Cash wired from collection account

Excess Cash in Liquidation Account

Investment + Loss Reserve - Cash wired

Net Receivable Pool Balance + Excess in Liq. Acct

Participation % [5) / 6)]

Participation % Limit

In Compliance

Default Ratio Test

For Reference: calculation of numerator

Receivables [*] days past due + Write-offs and Notes [*] past due

Sep-12

#REF!

ADD

Sep-12

+ A/R conv to Notes [*] past due (Ref Tab 1 for details)

[*] days

Receivables Originated [*] prior (Cash Disbur.)

Total Write-offs

Default Ratio [1/2]

Total Conv to Notes

Maximum [*] Default Ratio

In Compliance

DEDUCT

Write-Offs [*]

[*] Avg Default Ratio

Conv to notes [*]

Maximum [*] Avg Default Ratio

In Compliance

Total Defaulted

Delinquency Ratio Test

Sep-12

#REF!

Total Delinquent Receivables

Outstanding Balance of Pool Receivables

Delinquency Ratio [1/2]

Maximum[*] Delinquency Ratio

In Compliance

[*] Avg Delinquency Ratio

Maximum [*] Avg Delinquency Ratio

In Compliance

Net Spread Test

Sep-12

#REF!

Finance Charge Collections

Discount Expensed During Month (actual)

Monthly Facility Fees (includes pgm fee & insur premium)

Monthly Utilization Fee (includes Use & NonUse fees)

Backup Servicing Fees (Xxxxx Fargo) and Unaffiliated Servicer Fees

Transition Expenses (if any)

Servicer Fee [*]

Other Fees > $100

Receivables [*] Days Past Due

10)

Write-offs/Non-Cash AJE's

11)

A/R Converted to Notes

Subtotal

12)

Add Back 10) & 11) greater than [*] days old

13)

Recoveries

14)

Collections on defaulted receivables

15)

Excess Finance Collections

16)

Average Aggregate Balance Pool Receivables

3 month arithmetic avg

17)

Net Spread [*]

18)

Minimum Net Spread (current month)

Compliance [*]

19)

Minimum Net Spread ([*] arithmetic average)

Compliance [*]

20)

[*] Avg Net Spread (level I)

Minimum Net Spread

Compliance

Payment Rate

Sep-12

#REF!

Collections of principal on all Pool Receivables (excl. Collections of principal on Spec. Ineligible Receivables)

Beginning agg O/S Balance of Pool Receivables (excl. Collections of principal on Spec. Ineligible Receivables)

Payment Rate

[*] avg Payment Rate

Minimum[*] avg Payment Rate

Minimum Eligible Receivables

Eligible Receivables

Minimum Eligible Receivables

Compliance [1 > 2]

SECTION V - Financial Triggers & Covenants

Tangible Net Worth Test

Servicer - Automotive Finance Corporation

AFC's Shareholder's Equity

AFC's Intangible Assets

Tangible Net Worth [A-B]

Minimum Tangible Net Worth

Compliance [C > D]

In Compliance

Seller - AFC Funding Corporation

Funding Shareholder's Equity

Funding Corp's Intangible Assets

Tangible Net Worth [A-B]

Minimum Tangible Net Worth

Compliance [C > D]

In Compliance

Servicer's Debt + Investment Limitation

Maximum Debt ([*] + unfulfilled deferred purchases)

All Debt (incl. Intercompany; Excl RPA Invstmnt, unfulfilled def purchases, CAD Securitization) & Receivables Sold

Compliance (A > B)

Servicer's Debt/Equity Ratio

All Debt

AFC Shareholder's Equity

Debt:Equity

Compliance (A/B < = [*])

5.00x

Seller Liquidity

AFC cash and cash equivalents

Minimum cash and equivalents

AFC unrestricted cash

Minimum unrestricted cash

Termination Event test



	Annex B-1

ANNEX C

FORM OF JOINDER AGREEMENT

THIS JOINDER AGREEMENT (this “Agreement”), dated as of [__________], is among AFC Funding Corporation (the “Seller”), Automotive Finance Corporation, as servicer (the “Servicer”), [___________________], as a purchaser (the “______________ Purchaser”), [____________________], as purchaser agent for [_______________] Purchaser (the “_____________ Purchaser Agent”), and BMO Capital Markets Corp. and as agent (the “Agent”).

BACKGROUND

The Seller, the Servicer, and the Agent are parties to a certain Fifth Amended and Restated Receivables Purchase Agreement, dated as of June 21, 2013 (as amended through the date hereof, the “Receivables Purchase Agreement”). Capitalized terms used but not defined herein have the meanings assigned to them in the Receivables Purchase Agreement.

NOW, THEREFORE, the parties hereto hereby agree as follows:

SECTION 1.SECTION 1. This letter constitutes a Joinder Agreement pursuant to Section 1.12 of the Receivables Purchase Agreement. The Seller desires the [_________________] Purchaser to become a Purchaser and the [_________________] Purchaser Agent to become a Purchaser Agent under the Receivables Purchase Agreement and upon the terms and subject to the conditions set forth in the Receivables Purchase Agreement, and the [_________________] Purchaser agrees to become a Purchaser and the [_________________] Purchaser Agent agrees to become a Purchaser Agent thereunder.

Seller hereby represents and warrants to each of the [_________________] Purchaser, the [_________________] Purchaser Agent and the Agent as of the date hereof, as follows:

(i) the representations and warranties contained in Exhibit III and Exhibit VII to the Receivables Purchase Agreement are true and correct on and as of such date of such Purchase as though made on and as of such date;

(ii) no event has occurred and is continuing, or would result from such Purchase, that constitutes a Termination Event or Unmatured Termination Event;

(iii) the sum of the aggregate of the Participations does not exceed 100%; and

(iv) the amount on deposit in the Cash Reserve Account is equal to or greater than the Cash Reserve.

SECTION 2. Upon execution and delivery of this Agreement by the Seller, each of the [______________] Purchaser, [______________] Purchaser Agent and the Agent, satisfaction of

the other conditions to assignment specified in Section 1.12 of the Receivables Purchase Agreement and receipt by the Agent of counterparts of this Agreement (whether by facsimile or otherwise) executed by each of the parties hereto, each of the [______________] Purchaser and the [______________] Purchaser Agent shall become a party to, and have the rights and obligations of a Purchaser and Purchaser Agent, respectively, under, the Receivables Purchase Agreement.

SECTION 3. (a) The Maximum Purchase Amount of the [__________] Purchaser shall be as set forth on the signature page hereto.

(b) All notices and other communications hereunder or under the Receivables Purchase Agreement to the [______________] Purchaser and the [______________] Purchaser Agent shall be sent or delivered to [______________] Purchaser and [______________] Purchaser Agent at the address set forth under their names on the signature pages hereof.

SECTION 4. Each party hereto hereby covenants and agrees that it will not institute against, or join any other Person in instituting against, any Purchaser, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any federal or state bankruptcy or similar law, for one year and one day after the latest maturing Note issued by such Purchaser is paid in full. The covenant contained in this paragraph shall survive any termination of the Receivables Purchase Agreement.

SECTION 5. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF INDIANA. This Agreement may not be amended, supplemented or waived except pursuant to a writing signed by the party to be charged. This Agreement may be executed in counterparts, and by the different parties on different counterparts, each of which shall constitute an original, but all together shall constitute one and the same agreement.

(continued on following page)

IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized officers as of the date first above written.

[______________________________], as a [_________]

Purchaser

By:_________________________________________________

Name Printed:________________________________________

Title:_______________________________________________

Address:

______________________________________________

Attention:______________________________________

E-Mail:________________________________________

Telephone:_____________________________________

Facsimile:______________________________________

Maximum Purchase Amount: $ [ _____________]

With a copy to:

_________________________________________________

Attention:______________________________________

E-Mail:________________________________________

Telephone:_____________________________________

Facsimile:______________________________________



	S-1	Joinder Agreement ([________])

[__________________________], as Purchaser Agent for

the [_______] Purchaser

By:_________________________________________________

Name Printed:________________________________________

Title:_______________________________________________

Address:

______________________________________________

Attention:______________________________________

E-Mail:________________________________________

Telephone:_____________________________________

Facsimile:______________________________________



	S-2	Joinder Agreement ([________])

BMO CAPITAL MARKETS CORP.,

as Agent

By:____________________________

Name Printed:____________________

Title:___________________________



	S-3	Joinder Agreement ([________])

AFC FUNDING CORPORATION, as Seller

By:____________________________

Name Printed:____________________

Title:___________________________



	S-4	Joinder Agreement ([________])

AUTOMOTIVE FINANCE CORPORATION, as Servicer

By:____________________________

Name Printed:____________________

Title:___________________________



	S-5	Joinder Agreement ([________])

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FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of June 21, 2013 among AFC FUNDING CORPORATION, as Seller, AUTOMOTIVE FINANCE CORPORATION, as Servicer, The entities from time to time parties hereto as Purchasers or Purchaser Agents...

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