DB1/144571698.3執行副本總括修正案第2號(本修正案)日期為2024年2月16日的第2號總括修正案由DFC商業服務有限責任公司(“借款人”)、車道金融公司(以前稱為南方下跌金融公司(“DFC”)的俄勒岡州公司)、作為賣方(在該身份下是賣方)、作為服務者(在該身份下是“服務者”)、作為抵押品託管人(在該身份下是“抵押品託管人”)、在本合同簽名頁上列出的貸款人(“貸款人”)、本合同簽名頁上所列的代理人(“代理人”)和瑞穗銀行有限公司。(“瑞穗”)以行政代理人(“行政代理人”)的身份，修訂(I)由借款人、服務商、抵押品託管人、貸款人、不時的代理人以及瑞穗(行政代理人和賬户銀行)之間於2022年11月1日訂立的貸款協議(經不時修訂、重述、補充或以其他方式修改的“貸款協議”)，及(Ii)DFC與借款人於2022年11月1日訂立的購買協議(經修訂，不時重述、補充或以其他方式修改《購買協議》)。此處使用的大寫術語，但未另作定義，應具有貸款協議中賦予該術語的含義。證明人：鑑於，DFC和借款人希望根據本協議第7.01節修訂《購買協議》，而借款人和貸款人希望根據第13節修訂《貸款協議》。根據《購買協議》第01條和《貸款協議》第13.01條的規定；因此，考慮到下文所述的房屋和相互協議，並出於其他良好和有價值的對價，雙方特此同意如下：第1節.修訂《貸款協議》。根據本修正案的效力，包括但不限於滿足下文第4節規定的有效性條件，現對貸款協議進行修訂，納入作為附件A的貸款協議標記副本上顯示的黑線更改(不言而喻，刪除了顯示為“刪除”的措辭，增加了顯示為“雙下劃線”的措辭)。第二節《採購協議》修正案根據本修正案的效力，包括但不限於滿足以下第4節規定的DB1/144571698.3 2的有效性條件，現對購買協議第6.01節進行修訂，並將其全文重述如下：“第6.01節應收賬款回購。賣方特此與買方約定並同意，如果就任何應收賬款而言：(I)賣方違反了第3.03節所述的陳述和保證；(Ii)未能向抵押品託管人交付要求包括在應收賬款檔案中的任何文件；或(Iii)託管人以外的任何人實際擁有最初簽署的應收款有形合同，賣方和借款人表示該有形合同在第2號綜合修正案生效日期之前已經丟失或銷燬，則發現上述第(I)、(Ii)或(Iii)款中任何一項所述情況的一方應立即向本購買協議的其他各方和行政代理髮出書面通知。賣方應應買方或行政代理的書面要求，在該違約尚未得到糾正或放棄的情況下，在書面通知該違約或未能交貨後，回購該等應收款及相關財產，金額相當於貸款協議下的下一個付款日的應收款發行價。放行價款應匯入收款賬户，按照借款協議的規定予以運用。第三節陳述、保證和確認。借款人特此確認，借款人根據貸款協議第5.01和5.02節作出的所有陳述和擔保在作出之日是真實和正確的，並且截至本協議之日符合借款人根據貸款協議作出的所有契諾。在承認本修正案的同時，DFC特此確認其根據第5條作出的所有陳述和保證。 此外，借款人和DFC各自在此聲明並保證：（a）有權執行、交付和履行本修正案以及由此設想的交易。 (b)本修訂案的簽署和交付以及本修訂案和貸款協議（經此處修訂）的履行已通過所有必要的公司行動（包括其成員的任何必要行動）獲得其正式授權。 (c)本修正案已代表其正式簽署和交付。 本修訂案和貸款協議（經此處修訂）構成其合法、有效且具有約束力的義務，可根據其各自條款對其執行，除非該等條款的執行可能受到影響債權人權利執行的破產法的限制
DB1/144571698.3 3一般情況下，以及是否有衡平補救辦法。(D)它在所有實質性方面都符合所有適用的法律。第4節修正案的效力(A)本修正案自本修正案之日起生效，自行政代理收到各方正式簽署的本修正案副本之日起生效。(B)除本修訂條款明文修訂外，貸款協議及購買協議的所有條款及條件將繼續具有十足效力及效力，並於此予以批准及確認。本修正案僅就其特定目的有效，不應作為對貸款協議或購買協議中規定的任何其他條款或條件的同意、豁免、修訂或其他修改。本修訂生效後，(I)貸款協議中凡提及“本協議”或“本貸款協議”或類似含義的字眼，均指經修訂的貸款協議，(Ii)凡提及“本協議”或“本採購協議”或類似含義的詞語，均指經修訂的購買協議，及(Iii)在任何其他基本文件中，凡提及貸款協議或購買協議或貸款協議或購買協議所界定的任何條款並於此作出修改後，均指並視為提及貸款協議或購買協議(視何者適用而定)或經修改的該等條款。雙方承認並同意本修正案應構成一份基本文件。此項修訂並不構成貸款協議、購買協議或任何其他基本文件的續訂或終止，而上述各項下的所有責任在各方面均繼續存在，只是其條款按本文所述予以修改。第5節修正案等。除貸款協議第13.01節所規定的外，不得放棄、修改或以其他方式修改本修正案的任何條款。第六節適用法律。本修正案受紐約州法律管轄，並根據紐約州法律進行解釋和解釋。第7節.可分割性如果本修正案的一個或多個契諾、協議、條款或條款因任何原因無效，則該等契諾、協議、條款或條款應被視為可與本修正案的其餘契諾、協議、條款或條款分開，且不得影響本修正案的其他條款或經修訂的貸款協議的有效性或可執行性。第8節具有約束力。本修正案對本協議雙方及其各自的繼承人和允許的受讓人具有約束力，並可由其強制執行。DB1/144571698.3 4第9條標題等本修正案中插入的標題和章節編號僅為方便起見，並不定義、限制、解釋或描述本修正案條款的範圍或意圖。第10節對應方本修正案可由任何數量的副本簽署，也可由本合同的不同各方以單獨的副本簽署，當如此簽署時，每個副本應被視為正本，當所有副本合併在一起時，應構成一個相同的協議。通過傳真或電子郵件以“.pdf”文件形式交付本修正案簽名頁的已簽署副本應與手動交付本修正案副本一樣有效。各方同意，本修正案和與本修正案相關的任何其他文件可以使用電子簽名，出於有效性、可執行性和可採納性的目的，本修正案或此類其他文件中出現的任何電子簽名與手寫簽名相同。第11節費用及開支借款人和DFC同意支付行政代理和貸款人因本修正案的準備、安排、執行和執行而產生的所有合理費用、費用和自付費用(如適用)(包括Morgan，Lewis&Bockius，LLP、行政代理和貸款人的律師的所有合理律師費和支出，應根據貸款協議第2.09(E)節支付)。[簽名頁如下]
貸款協議(DFC Business Services，LLC)第2號修正案簽名頁瑞穗銀行作為瑞穗代理人、承諾貸款人和行政代理人：_姓名：傑裏米·易卜拉欣標題：管理董事
附件符合貸款協議(附件)DB1/139452285.4144571789.3貸款協議符合日期為2023年7月20日的第1號綜合修正案第2號綜合修正案日期為2024年2月16日DFC商業服務有限責任公司作為借款人、車道金融公司作為服務商和抵押品託管人、本合同的不時出借人、不時的各方代理人、作為行政代理的瑞穗銀行和截至2022年11月1日的賬户銀行
I DB1/139452285.4144571789.3目錄頁第一條定義；建築第1.01節。定義1第1.02節。會計術語和定義4546第1.03節。時間段的計算4546第1.04節。第2.01條解釋第4546條第二款貸款。貸款4546第2.02條。籌資機制4647第2.03節。減少承擔額4748第2.04節。承諾的延期4849第2.05節。利息計算和支付分配4950第2.06節。和解程序5152第2.07節。付款、計算等5253第2.08節。募集和分配；資金投資5354第2.09節。手續費。5455第2.10節。增加了成本，減少了回報。5556第2.11節。税金。5657第2.12條。外賣。6062第2.13節。開户銀行。6263第2.14節。[已保留]6567第2.15節。替換貸款組6567第2.16節。讓承諾的貸款人違約。6667第2.17條。替代利率。6768條第三安全節第3.01條。抵押品。6869第3.02節。釋放抵押品；沒有法律上的所有權。7071第3.03節。擔保物權的保護；行政代理，作為事實代理人。7172第3.04節。採購協議的轉讓7173第3.05節。放棄某些法律7273 DB1/139452285.4144571789.3第二頁第四條成交條件和貸款第4.01節。本協議生效的條件7274第4.02節。所有貸款的先決條件7375第五條陳述和保證第5.01條。借款人的陳述和擔保7476第5.02節。借款人關於應收賬款7981第5.03節的陳述和擔保。服務商7981的陳述和保證第5.04節。重新轉移某些應收款。8183第六條公約第6.01節。借款人的扶持契諾8284第6.02節。借款人的消極契諾8991第6.03節。借款人與套期保值有關的契諾9194第6.04節。服務機構的平權契約9496第6.05節。服務機構的消極契約9699第七條應收款的管理和服務第7.01節。維修指定98101第7.02節。維修賠償98101第7.03節。服務人員的職責99101第7.04節。收款102105第7.05節。服務商推進103105第7.06節。由服務商支付某些費用103106第7.07節。報告和審計。104106第7.08節。關於合規105107第7.09節的季度報表。Backup Servicer；簽訂備份服務協議。105108第7.10節。後備服務商承擔職責或指定繼任服務商後的權利；責任105108第7.11節。服務商和其他人的責任限制106109第7.12節。該服務商不得辭職107109第7.13節。服務商終止事件107110第7.14節。任命繼任服務員109112
DB1/139452285.4144571789.3第7.15頁。服務機構的合併或合併、承擔義務或辭職111114第7.16節。借款人的責任112115第7.17節。應收賬款文件保管112115第7.18節。抵押品託管人的職責112115條第八條終止事件第8.01節。終止事件115118第8.02節。聲明終止日期發生時採取的行動118121第8.03節。行使補救措施120123第8.04節。放棄某些法律120123第8.05節。授權書120123條第九條賠償條款第9.01條。借款人賠償121124第9.02節。服務商的賠償123127第9.03節。備份服務程序作為後繼服務程序的賠償125128第十條管理代理程序和代理程序第110節。授權和行動125129第10.02節。職責轉授126129第10.03節。免責條款126130第10.04節。Reliance 126130第10.05節。不依賴代理人和其他貸款人127131第10.06節。賠償128132第10.07節。以個人身份行事的代理128133第10.08條。繼任者管理代理129133第10.09節。錯誤的付款。129134第十一條作業；參與第11.01節。分配和參與130135 db1/139452285.4144571789.3第四頁第12條關於保密的相互契約第12.01節。借款人、服務商、後備服務商、賬户銀行和抵押品託管人的契約133138第12.02節。行政代理、代理和貸款人的契約133138第12.03節。税務處理和税務結構的非保密性135140第13條雜項第13.01條。修訂及豁免135140第13.02條。通知等136141第13.03條。不得放棄，權利和補救136141第13.04條。約束力136141第13.05節。本協議期限136141第13.06節。適用法律；同意管轄權；放棄對地點136142的異議第13.07條。放棄陪審團審訊137142第13.08條。費用及開支137142第13.09節。沒有破產程序137143第13.10條。對某些當事人的追索權138143第13.11條。愛國者法案遵從性138144第13.12條。等價物執行；電子簽名；可分割性；集成138144附表A-貸款人補充(瑞穗貸款集團)SA-1附表B-合格應收標準SB-1附表C-應收款附表SC-1附表D-應收文件位置SD-1附表E-[已保留]SE-1表F-財務契約(Lithia)SF-1表G-經批准的備份服務商SG-1表H-託管帳户SH-1
DB1/139452285.4144571789.3第v頁展示附件A-資金申請表A-1附件B-轉讓和驗收表格B-1附件C-信用證和催收政策C-1附件D-授權書表格D-1取出放行表格E-1附件F-1月報表格F-1表格G-1美國納税符合證書G-1表格G-1 DB1/139452285.4144571789.3本貸款協議，日期為2022年11月1日(經修訂、補充或以其他方式不時修改的本《協議》)，DFC Business Services，LLC，是一家特拉華州的有限責任公司，作為借款人(“借款人”)、Driveway Finance Corporation、俄勒岡州的一家公司(前稱為南方下跌金融公司(“DFC”))、服務機構(以該等身份提供服務)及抵押品託管人(“抵押品託管人”)為抵押方(定義見本協議)、本協議不時的貸款方當事人(定義為“貸款人”)、貸款集團的代理人(定義為“代理”)及瑞穗銀行有限公司。作為貸款人和代理人的行政代理(在這種情況下，稱為“行政代理”)和作為開户銀行(在這種情況下，稱為“開户銀行”)。S：鑑於借款人是為了購買和持有各種資產而成立的，包括機動車零售分期銷售合同、在該等機動車零售分期銷售合同上或就該等機動車零售分期銷售合同收到的金額以及上述收益；鑑於借款人已要求貸款人不時向借款人發放貸款，所得款項將用於支付本協議所述的機動車零售分期付款合同的購買價格；鑑於貸款人已同意按照本協議所述條款和條件向借款人提供此類貸款。因此，現在，考慮到房屋和其他良好和有價值的對價，雙方同意如下：第一條定義；建造第1.01節。定義。除文意另有所指外，本文中使用的下列詞語和短語應具有下列含義：“賬户銀行”具有序言中賦予該術語的含義。“賬户抵押品”是指託收賬户和對衝準備金賬户，連同所有現金、證券、金融資產(如當時在相關國家有效的UCC第8-102(A)(9)節所界定的)和不時存入或貸記到託收賬户或對衝準備金賬户的投資和其他財產，以及上述各項的所有收益。“調整本金餘額”是指，截至任何日期的應收賬款，(I)如果相關的超額利差至少等於該應收賬款的目標利率，則本金
DB1/139452285.4144571789.3 2應收賬款的餘額，以及(Ii)如果截至該日期的相關超額利差小於該應收賬款的目標利率，則(A)如果該應收賬款的APR小於相關的要求利率，則該應收賬款上剩餘的所有計劃付款(包括逾期計劃付款)的現值(使用等於相關要求利率的貼現率計算)，假設所有該等計劃付款在該日期之後及時支付，或(B)如果該應收賬款的APR等於或大於相關的要求利率，截至該日期的應收賬款本金餘額“行政代理”具有前言中賦予該術語的含義。“行政代理人的賬户”是指行政代理人向借款人和每個代理人指定的一個或多個賬户，作為本合同項下的行政代理人的賬户。“顧問”是指會計師、律師、顧問、顧問、信用增強者、流動資金提供者和類似上述各項的人員，以及上述各項各自的董事、高級管理人員、員工和經理。“附屬公司”對個人而言，是指控制、被該人控制或與該人共同控制的任何其他人。就本定義而言，“控制”在用於任何特定人時，是指直接或間接地通過有表決權證券的所有權、合同或其他方式指導該人的管理和政策的權力；而“控制”或“受控”一詞具有與前述有關的含義。“代理人”指特定貸款人集團的代理人，如相關貸款人補充資料所示，截至任何日期，“代理人”指截至該日期的所有貸款人集團的所有代理人。“未償還貸款總額”是指在任何日期，借款人或初始服務機構對擔保方、行政代理、備份服務機構、賬户銀行、受賠方和任何後續服務機構在本協議和其他基本文件項下所欠(無論是到期還是應計)的(I)未償還貸款、(Ii)所有應計但未付利息和(Iii)所有計劃費、結構費、未用承諾費、套期保證費、賠款金額和其他債務的總和。“協議”具有序言中賦予此類術語的含義。“備用基本利率”指，就任何日期而言，年利率等於(I)該日生效的最優惠利率，(Ii)該日生效的NYFRB利率加1/2，及(Iii)Daily Simple Sofr加1%中的最大者。因最優惠利率、NYFRB利率或每日簡單SOFR的變化而導致的備用基本利率的任何變化，應分別自基本利率、NYFRB利率或每日簡單SOFR的此類變化的生效日期起生效。如果根據第2.17節將備用基本利率用作備用利率(為免生疑問，僅在根據第2.17(B)節確定基準DB1/139452285.4144571789.3替換之前)，則備用基本利率應為上文第(I)和(Ii)項中的較大者，並且應在不參考上文第(Iii)條的情況下確定。為免生疑問，如果根據前述規定確定的備用基本利率將低於0%，則就本協議而言，該利率應被視為0%。“第1號修正案生效日期”指2023年7月20日。“分期還款期”是指自終止之日起至未償還貸款減至零、所有其他未清償貸款全部付清之日止的期間。“融資金額”，就應收款而言，是指根據此類條款向相關融資車輛的購買價格預付的總金額，以及任何相關成本，包括税金、所有權和許可費，以及配件、保險費、服務和保修合同、通常作為合同一部分融資的其他項目以及相關成本方面的預付款。“附屬費用”是指(I)滯納金、(Ii)延期費用、(Iii)預付款費用、(Iv)透支費用，以及(V)服務商或其代表收到的與應收款有關的所有其他管理費或適用法律允許的類似費用。“年度百分比利率”或“APR”，就應收賬款而言，是指在此類應收賬款中列明的財務費用的年利率，如“年度百分比利率”(在聯邦“貸款法”的含義內)。如果在適用的供資日期之後，(1)由於涉及相關債務人的破產程序或(2)根據《軍人民事救濟法》或類似的州法律，應收賬款截至該供資日期的年利率減少，則“年利率”或“年利率”應指這種降低的利率。“反腐敗法”係指美國或任何州不時適用於DFC、Lithia、借款人或其各自的附屬公司或子公司的有關賄賂或腐敗的所有法律、規則和條例。 “轉讓和接受”是指分包商與符合資格的受託人之間的轉讓和接受協議，其形式基本上與本協議附件B相同。
DB1/139452285.4144571789.3 4“可用金額”是指在任何一天，貸款金額超過該日未償還貸款的正金額(如果有)。“可用資金”是指在任何付款日期和相關的收款期內，在相關收款期內收到的存入收款賬户的收款。“備份服務商”是指(I)管理代理合理接受並且(Ii)根據按照第7.09節簽訂的備份服務協議被指定為“備份服務商”的人員。“備份服務協議”是指服務機構、借款人和下列人員簽訂的協議：(I)列於本合同附表G(行政代理可自行決定隨時更新該協議)，或(Ii)行政代理以其他方式合理地接受，並根據該協議同意擔任備份服務機構，根據該協議，該人同意(A)履行其中規定的與應收款有關的某些服務職責，包括但不限於每月向行政代理和貸款人提供備份服務機構證書；(B)受基本文件中規定的與備份服務相關的條款和條款的約束，但備份服務協議中明確修改或放棄的任何條款和條款除外(經行政代理明確同意)，以及(C)如果初始服務根據本協議的條款辭職或被終止，則接替服務機構的角色。“備份服務費”是指(I)在指定備份服務商之前收取0美元，以及(Ii)此後按照備份服務協議的規定向備份服務商支付的費用。09和之後的每個收款期，(A)相當於分數的百分比，(1)分子是備份服務費，(2)分母是相關收款期內的日均池餘額，乘以(B)12。“破產法”是指美國破產法(美國破產法第11章)。《巴塞爾協議II》是指巴塞爾銀行監管委員會發布的第二份《巴塞爾協議》。《巴塞爾協議III》是指巴塞爾銀行監管委員會發布的第三份《巴塞爾協議》。“基本文件”係指本協議、購買協議、每份購買協議附錄、費用函、所有套期保值協議、控制協議、履約保證、每份電子保管庫服務協議、備份服務協議(如果有)以及任何其他文件、證書、意見、協議或撰寫DB1/139452285.4144571789.3 5的文件、證書、意見、協議或DB1/139452285.4144571789.3 5簽署本協議或任何其他前述文件所預期的交易所必需或附帶的文件。“基準”是指，對於由承諾貸款人提供資金或維護的未償還貸款部分，最初是Daily Simple Sofr；前提是，如果對於Daily Simple Sofr或當時的基準發生了基準轉換事件和相關的基準替換日期，則“基準”是指適用的基準替換，前提是該基準替換已根據第2.17節(B)款的規定替換了該先前基準利率。如果根據上述規定確定的基準替代量將低於最低限額，則就本協定和其他基本文件而言，基準替代量將被視為最低限額。“基準替換調整”是指，對於用未經調整的基準替換的任何設置替換當時的基準、利差調整或用於計算或確定該利差調整的方法(可以是正值、負值或零)，由管理代理和借款人選擇並適當考慮(I)任何選擇或建議的利差調整，或用於計算或確定該利差調整的方法，有關政府機構於適用基準更換日期以適用的未經調整基準取代該基準，及/或(Ii)任何發展中或當時盛行的釐定利差調整的市場慣例，或計算或釐定該利差調整的方法，以取代該基準，以取代當時美元銀團信貸安排的適用未經調整基準。對於任何基準替換，“符合更改的基準替換”是指任何技術、行政或操作更改(包括對“備用基本利率”的定義、“營業日”的定義、“美國 政府證券營業日”、“付息期”的定義、確定利率和支付利息的時間和頻率、借款請求或預付款的時間、轉換或延續通知、回顧期的長度、破碎條款的適用性以及其他技術、行政、或運營事宜）行政代理認為可能適合反映此類基準替代的採用和實施，並允許由行政代理人以與市場實踐基本一致的方式（或者，如果行政代理人決定採用此類市場實踐的任何部分在行政上不可行，或者如果行政代理人確定沒有市場實踐來管理此類實踐）
DB1/139452285.4144571789.3 6基準替換以管理代理認為與本協議和其他基本文件的管理有關的合理必要的其他管理方式存在)。“基準更換日期”就任何基準而言，是指與當時的基準有關的下列事件中最早發生的：(I)在“基準過渡事件”定義第(I)或(Ii)款的情況下，(A)其中提及的公開聲明或信息發佈的日期和(B)該基準的管理人永久或無限期停止提供該基準(或其組成部分)的日期；或(Ii)在“基準過渡事件”定義第(Iii)款的情況下，指監管機構確定並宣佈該基準(或用於計算該基準的已公佈組成部分)的管理人不再具有代表性的第一個日期；但這種不具代表性將參照該第(Iii)款中引用的最新聲明或出版物來確定。為免生疑問，(1)如果導致基準更換日期的事件發生在與任何確定的基準時間相同但早於基準時間的同一天，則基準更換日期將被視為發生在該確定的基準時間之前，以及(2)在第(I)或(Ii)款中關於任何基準的“基準更換日期”將被視為發生在關於該基準的適用事件發生時(或在計算該基準時使用的已公佈的組成部分)。就任何基準而言，“基準過渡事件”是指與當時的基準有關的以下一項或多項事件的發生：(1)由該基準的管理人或代表該基準的管理人(或在計算其時使用的已公佈的部分)發表的公開聲明或發佈的信息，宣佈該管理人已經停止或將永久或無限期地停止提供該基準(或其部分)；但條件是，在該聲明或公佈之時，沒有繼任管理人將繼續提供該基準(或其部分)；(2)監管監督人為該基準(或用於計算該基準的已公佈組成部分)的管理人、聯邦儲備委員會、紐約聯邦儲備銀行、對該基準(或該組成部分)的管理人具有管轄權的破產官員、對該基準(或該組成部分)的管理人具有管轄權的解決機構、或對該基準(或該組成部分)的管理人具有類似破產或清算權的法院或實體DB1/139452285.4144571789.3 7的公開聲明或信息發佈，在每個情況下，聲明該基準(或該組成部分)的管理人已經停止或將永久或無限期地停止提供該基準(或其組成部分)；但在該聲明或公佈時，沒有繼任管理人將繼續提供該基準(或其組成部分)；或(Iii)監管機構對該基準(或用於計算該基準的已公佈組成部分)的管理人發表的公開聲明或發佈的信息，宣佈該基準(或其組成部分)不再具有代表性，或自規定的未來日期起將不再具有代表性。為免生疑問，如果就任何基準(或在其計算中使用的已公佈組成部分)已發生上述公開聲明或信息公佈，則將被視為已就任何基準發生“基準過渡事件”。“基準不可用期間”對於任何基準而言，是指(I)自根據該定義第(I)或(Ii)款進行基準更換之日起的期間(如有)，如果此時沒有基準更換就本定義項下和根據第2.17節的任何基本文件的所有目的替換該當時的基準，以及(Ii)截至基準替換就本定義下的所有目的和根據第2.17節的任何基本文件替換該當時的基準之時為止。“受益所有權證明”是指按照受益所有權規則的要求進行的關於受益所有權的證明。“受益所有權規則”係指“美國聯邦判例彙編”第31編1010.230節。“福利計劃”是指每個(I)僱員退休金計劃(如《僱員退休保障條例》第3(2)節所界定的)，(Ii)《守則》第4975(E)(1)節所述的計劃，包括根據《守則》第4975(G)節不受豁免的個人退休賬户或Keogh計劃，以及(Iii)因僱員福利計劃或計劃對此類實體的投資而其基本資產包括“計劃資產”(如《僱員福利計劃條例》第3(42)節和勞工部條例2510.3-101節所界定)的任何實體。“借款人”一詞的含義與序言中給出的含義相同。“借款人基本單據”是指借款人作為一方當事人或受其約束的所有基本單據。“借款人賬户”是指借款人不時以書面形式通知行政代理的借款人銀行賬户。
DB1/139452285.4144571789.3 8“借款基數”是指，在任何確定日期，借款基數等於(A)在該日期實施相關的應收款增減後的合格集合淨餘額減去(B)截至該日期所需的超額抵押後的差額，減去(C)借款人在該日期所擁有的所有應收款的經調整本金餘額合計。在相關應收賬款發出之日後180天仍未取得其定義第(I)或(Ii)款所述類型的所有權證書的(條件是，如果在該180天之後獲得任何此類所有權證書，則不再根據第(C)款扣除相關應收賬款的調整本金餘額)，加上(Ii)在該日期存放在託收賬户的本金付款的收款金額(但只限於該等本金付款已被分配以減少該等本金付款所涉及的相關應收賬款的本金餘額)。“借款基數不足”是指在任何確定日期，(1)未償還貸款超過(2)借款基數的正數(如有)。“破損成本”是指(I)因提前三個工作日向貸款人發出書面通知而預付貸款(及其利息)而對貸款人產生的任何實際損失、成本或支出(但不包括損失利潤)進行賠償的金額，以及(Ii)根據第2.07(C)條應支付給任何貸款人的金額。“所有權證書”，就融資車輛而言，是指(I)與之相關的所有權證書原件，(Ii)如果適用的所有權登記處簽發了代替所有權證書的信件或其他形式的留置權證據(包括電子所有權)，留置權登記信件的原件，或(Iii)在發放第(I)或(Ii)款所述類型的所有權證書之前，發給適用的所有權登記人的用於簽發所有權證書原件或留置權登記信件或表格(視情況而定)的函件及其所有附件的複印件，在上述所有情況下，應指定相關債務人為該融資工具的所有人，並指定DFC、借款人或行政代理為擔保方。對於在以電子方式確認留置權持有人權益的國家登記的融資車輛，“所有權證書”可以包括由第三方服務提供者或有關所有權登記處發出的電子記錄通知，其中表明擔保當事人對融資車輛的留置權記錄在適用國家電子留置權和所有權系統上的所有權證書原件上。“控制權變更”指(I)DFC直接或間接擁有借款人少於100%的會員權益，或(Ii)Lithia直接或間接擁有DFC少於51%的投票權和股權。“截止日期”是指2022年11月1日。DB1/139452285.4144571789.3 9“代碼”是指1986年的國內收入代碼。“抵押品”具有第3.01(A)節中賦予該術語的含義。“抵押品託管人”具有序言中賦予這一術語的含義。 就任何確定日期而言，“收款期”是指前一個日曆月，但第一個付款日期或之前發生的日期除外，在這種情況下，該術語是指從初始截止日期（不包括初始截止日期）起至2022年11月30日（包括2022年11月30日）的期間。“收款”是指(I)服務機構(包括從DFC或借款人)從任何債務人或代表任何債務人收到的任何應收款的所有現金收款或其他現金收益，包括根據第5.04節存放在收款賬户中的所有釋放價格金額、保險收益、收款賬户中的投資收益和所有回收；(Ii)服務機構(包括從DFC或借款人)就任何應收款項(不包括可能由服務機構保留的輔助費用)、融資工具或任何其他抵押品收到的任何其他資金，(Iii)借款人根據任何套期保值協議或套期保值交易收到的所有付款，及(Iv)任何服務商墊款。“承諾”對於任何貸款人或貸款人集團而言，是指該貸款人或貸款人集團為貸款提供資金的承諾，其總額不超過相關貸款人補充條款中所列的“承諾”金額，因為該金額可根據本合同條款不時修改。“承諾終止日期”是指2026年7月20日，或者，對於任何承諾的貸款人來説，根據第2.04(A)節的規定，承諾終止日期可以延長到該較晚的日期。“承諾貸款人”指在任何貸款人補編或轉讓和承兑中被指定為“承諾貸款人”的任何人，根據該轉讓和承兑成為本協議的一方，以及該承諾貸款人的任何受讓人，在該受讓人根據其各自的轉讓和承諾承擔的承諾部分的範圍內，在任何日期，“承諾貸款人”是指截至該日期的所有前述人員。
DB1/139452285.4144571789.3 10“管道投資組合延遲比率”指，就任何釐定日期而言，相當於一個分數的百分比，(I)分子是在最近完成的收款期內獲準延期的所有應收款的本金結餘總額，(Ii)分母是截至收款期最後一天的應收款本金結餘總額。“管道投資組合拖欠率”是指，就任何確定日期而言，相當於分數的百分比，(1)分子是截至最近完成的收款期最後一天的所有拖欠應收款的本金餘額合計，(2)分母是截至該收款期最後一天的集合餘額。“管道投資組合淨損失率(Non-Prime)”指就任何確定日期而言，(I)分數的百分比等值的乘積，(A)其分子為(1)在最近完成的收款期內成為違約的所有非Prime應收款的合計本金餘額減去(2)於該收款期內收到的所有非Prime應收款的全部收回款項的差額，以及(B)其分母為截至該收款期首日的所有非Prime應收款的合計本金餘額十二倍。“保密信息”是指在任何時間(包括在本協議日期之前)關於借款人、DFC或其任何關聯公司及其各自的業務和財務信息、應收款和服務組合的任何形式的任何信息、數據、文件和材料，包括(I)以書面、口頭、磁性或任何其他媒介傳輸的信息，(Ii)此類信息的全部或部分的所有副本和複製件，以及(Iii)包含、反映或生成此類信息的所有摘要、分析、彙編、研究、筆記或其他記錄；但就某人而言，“機密信息”不包括以下信息：(A)該人已經知道，並且這種知識不是從該人所知道的負有保密義務的任何其他實體那裏獲得的，或者被禁止向該人傳輸這種信息；(B)由於該人的任何作為或不作為，是或已經成為公共領域的一部分；(C)是或曾經合法地向該人披露，而不受第三方披露的限制；(D)是或不是由該人獨立開發的；或(E)在本協議項下披露之前，從第三方那裏合法和獨立地向該人提供的信息，而該第三方不知道該人負有保密義務或以其他方式被禁止傳輸此類信息。DB1/139452285.4144571789.3 11“關聯所得税”是指對淨收入(無論面值多少)徵收或衡量的其他關聯税，或者是特許經營税或分支機構利潤税。“同意”或“同意”是指行政代理的同意或行為，該同意或行動已經所需貸款人或同意貸款人批准(視情況而定)。“合同”是指債務人就融資工具簽署的任何零售分期付款銷售合同，根據該合同，DFC在正常業務過程中向該債務人提供信貸，並以相關融資工具為擔保。“合同義務”對任何人來説，是指該人發行的任何證券的任何規定，或該人作為當事一方的任何契據、抵押、信託契據、合同、承諾、協議、文書或其他文件，或該人或其任何財產受其約束或約束的任何契約、抵押、信託契據、合同、承諾、協議、文書或其他文件。“控制協議”是指借款人瑞穗銀行(作為託管代理和銀行)與行政代理之間於2022年11月1日簽訂的某些託管和控制協議。對於應收賬款，“應收賬款損失”是指，如果破產程序中具有適當管轄權的法院發佈了一項命令，減少對該應收賬款的欠款，或以其他方式修改或重組對該應收賬款進行的預定付款，該數額等於該應收賬款本金餘額的該減少額或如此修改或重組的預定付款的淨現值(使用該法院在該順序中指定的合同率或利率中的較低者作為貼現率)。“Cram Down Lost”應被視為在訂單輸入之日發生。“信用證和託收政策”是指，對於(I)初始服務機構，指在截止日期生效的、可根據本協議不時修改、修改或補充的服務機構的信用證和託收政策，或(Ii)任何後續服務機構，該等後續服務機構的慣例信用證和託收政策，在每種情況下，均根據本協議不時修訂。 “信貸支持附件”具有第6.03（b）條賦予該術語的含義。“截止日期”是指，就在融資日轉移給借款人的借款而言，即該融資日前三個日曆日的日期。“每日簡單SOFR”是指，就任何日期而言（“SOFR利率日”），每年的利率等於（i）該日期的SOFR中的較大者（該日期，相關的“SOFR確定日期”），即在以下日期之前五個美國政府證券營業日：（a）如果該SOFR利率日是美國政府證券營業日，例如SOFR利率日，或（b）如果該SOFR利率日不是美國政府證券營業日，美國政府證券營業日
DB1/139452285.4144571789.3在SOFR匯率日之前12天，在每種情況下，SOFR由SOFR管理員在SOFR管理員的網站上發佈，並且(Ii)0%。因SOFR變更而導致的每日簡易SOFR的任何變更，應自SOFR的該變更生效之日起生效，而無需通知借款人。“經銷商”指由Lithia全資擁有的汽車經銷商，該汽車經銷商協助向債務人提供融資車輛的信貸，並且DFC根據相關經銷商協議通過該汽車發起合同和相關應收賬款。“交易商協議”是指交易商和DFC之間關於交易商促進DFC承銷合同和相關應收款的條款和條件的現有協議。“債務與權益比率”是指，就任何確定日期而言，(I)等於DFC的總負債除以(Ii)等於DFC的有形淨值的金額。“債務收入比”是指，就任何應收賬款和相關債務人而言，(I)(A)所有相關債務人和任何相關共同債務人(但沒有相關擔保人)在應收賬款產生時的每月固定付款義務(包括抵押貸款和其他貸款付款、租金、信用卡付款、學生貸款付款和子女撫養費)的總和，由DFC根據當時有效的信貸和催收政策確定，加上(B)相關合同項下的每月預定付款，除以(Ii)所有相關債務人和任何相關共同債務人(但沒有相關擔保人)根據DFC根據當時有效的信貸和收款政策確定的緊接應收賬款產生日期前一個日曆月的月總收入之和。75%。“應收賬款違約”是指(I)根據信用證和託收政策被視為或必須被視為“違約”的任何應收賬款，(Ii)服務機構已真誠地確定已停止付款且不太可能恢復付款的任何應收賬款，(Iii)自相關到期日起120天以上仍未支付的(A)50美元和(B)任何預定付款的10%或以上，或(Iv)相關融資工具已被收回的任何應收賬款。“違約承諾貸款人”是指任何承諾的貸款人，由行政代理機構確定：(I)未能按照第2.01條為其提供貸款的任何義務提供資金，儘管第4.02條規定的所有融資條件以及第4.01條關於初始貸款的所有條件已根據第4.01條的條款得到滿足或免除，但在本協議要求其提供資金的日期的三個工作日內，(Ii)已書面通知行政代理機構或借款人它不打算履行此類融資義務；或已就本協議項下的此類融資義務發表公開聲明，或(Iii)已成為破產事件的對象；但承諾貸款人不得當作違約承諾貸款人DB1/139452285.4144571789。 “延期”是指，就任何應收賬款或服務投資組合應收賬款而言，服務商向義務人授予的延期，其中（i）在相關到期日豁免一項或多項計劃付款的全部或任何部分，並且（ii）該義務人應在不遲於相關合同的最終到期日之前到期（服務商可能已因此類延期而延長最終到期日）。 就本定義而言，對於所有相關定義術語而言，非應收賬款的每項服務投資組合應收賬款的“義務人”、“計劃付款”和“合同”應視為“應收賬款”。“拖欠應收賬款”指(I)任何應收賬款，(A)50美元和(B)任何預定付款的10%或以上中較大者，自相關到期日起60天或更長時間內仍未支付，以及(Ii)非違約應收賬款。“衍生品”是指任何(1)交易所交易或場外交易的遠期、期貨、期權、掉期、帽、領、下限或外匯合約，或上述合約的任何組合，不論是實物交割或現金結算，涉及任何利率、利率指數、貨幣、貨幣匯率、貨幣匯率指數、債務工具、債務價格、債務指數、存託工具、存託價格、存託指數、權益工具、權益價格、權益指數、商品、商品價格或商品指數；(2)類似的交易、合約、工具、承諾或證券；或(3)交易、合約、工具、保證或證券，包含上述任何一項的承諾或擔保。“DFC”一詞的含義與序言中給出的含義相同。“多德-弗蘭克法案”是指“多德-弗蘭克華爾街改革和消費者保護法案”(PUB.L.111-203，H.R.4173)。“美元”或“美元”是指美國的合法貨幣。“提前採用增加了成本”具有第2.10節中賦予該術語的含義。“提早採用增加成本的表述”具有第2.10節中賦予該術語的含義。“提前攤銷事項”是指在任何確定日期：(I)截至任何報告日期，立即三個收款期的管道投資組合淨損失率(Prime)的算術平均值
DB1/139452285.4144571789.3 14在該報告日期之前超過4.00%(前提是，根據該條款不會發生提前攤銷事件)；(Ii)截至任何報告日期，緊接該報告日期之前的三個收集日期的管道投資組合淨損失率(非Prime)的算術平均值大於6.00%(前提是，(Ii)如果在該三個收集期間中的任何一個期間發生重大提取日期，則不會發生該條款下的提前攤銷事件)；(Iii)截至任何報告日期，緊接該報告日期之前的三個收款期的管道組合拖欠率的算術平均值大於4.00%(條件是，如果在該三個收款期中的任何一個收款期內發生重大的取出日期，則不會根據本條款(Iii)發生提前攤銷事件)；(Iv)截至任何報告日期，緊接該報告日期之前的三個收款期的管道投資組合延遲比率的算術平均值大於1.50%(前提是，在第(Iv)條下，如果在該三個收款期的任何一個收款期內發生重大的取出日期，則不會發生提前攤銷事件)；。(V)存在至少三個營業日都未修復的借款基礎不足；。條件是，如果這種借款基數不足的情況沒有發生，則不會根據第(V)款發生提前攤銷事件，除非該借款基數不足在最初存在這種借款基數不足的收款期之後的第三個收款期內在報告日期繼續存在；(Vi)發生違反任何財務契約(Lithia)或任何財務契約(DFC)的行為；(Vii)發生任何服務商終止事件(第7.13節(L)、(M)、(N)或(O)款所述類型的服務商終止事件除外)；(Viii)發生終止事件；或(Ix)發生重大不利變化。只要同意的貸款人可以書面形式放棄任何提前攤銷事件，並向行政代理和服務機構提供一份副本。“選擇期”是指從根據第2.04(A)節提出延期請求之日開始，至(I)第45 DB1/139452285.4144571789.3號15個日曆日或(Ii)相關承諾終止日期前15個日曆日(以較早者為準)結束的期間。“電子合同”是指構成證明任何應收賬款的“電子動產紙”(根據當時在有關國家有效的“UCC”第9條的規定和定義)的合同。“電子保管庫”是指電子保管庫，其中電子合同的保管應通過第三方電子保管庫提供商以電子形式進行維護，該第三方電子保管庫提供商根據相關的電子保管庫服務協議啟用電子合同。“電子保險庫提供商”是指(I)RouteOne LLC、(Ii)Deert Track，Inc.或(Iii)經管理代理書面批准的電子保險庫運行所在技術平臺的任何其他第三方提供商。“電子保險庫服務協議”是指抵押品託管人和電子保險庫提供者之間的協議，根據該協議，電子保險庫提供者維護相關的電子保險庫。“電子保管庫系統”是指電子保管庫服務提供商根據電子保管庫服務協議提供的電子保管庫系統，該電子保管庫系統具有管理代理可以合理接受的特徵，該協議允許電子簽約。“合格受讓人”是指(I)瑞穗銀行，(Ii)任何其他承諾的貸款人，(Iii)由貸款人、代理人或行政代理人或其任何關聯公司管理的多賣方商業資產擔保票據管道，其商業票據被標準普爾評為至少“A-1”，被穆迪評為“Prime-1”。(Iv)代理人可接受的任何其他人，該人與被轉讓的承諾書部分有關，而借款人在轉讓前已就該承諾書部分以書面同意(借款人的同意不得無理拒絕)；但在服務商終止事件或終止事件發生和繼續期間，不需要借款人的同意。“合資格的集合餘額”是指在任何確定日期，所有符合條件的應收款的調整本金餘額的總和。“合格應收賬款”是指，在任何確定日期，(I)相關應收賬款文件由擔保品託管人擁有或“控制”(在相關國家有效的UCC第9-105節的含義內)，(Ii)借款人作為資金申請的一部分交付給行政代理人的應收賬款明細表上確定的任何應收賬款，以及(Iii)在每個情況下，在該確定日期滿足本合同附表B規定的每項資格要求的任何應收賬款。“僱員退休收入保障法”是指1974年頒佈的《僱員退休收入保障法》，以及根據該法頒佈的條例和裁決。“ERISA聯屬公司”指(1)與借款人屬於同一受控集團公司(按守則第414(B)節的含義)的任何公司，(2)a
DB1/139452285.4144571789.3 16與借款人在共同控制下(本守則第414(C)節所指的)或(Iii)與借款人屬於同一附屬服務組(本守則第414(M)節所指的)的貿易或業務(不論是否合併)、上文第(I)款所述的任何公司或上文第(Ii)款所述的任何貿易或業務。“超額集中金額”是指截至確定日期且無重複的：(1)正差額(如有)：(A)有關債務人在應收款最集中的州的應收款開票地址截至該日的合資格應收款的經調整本金餘額合計減去(B)相當於(1)43.0%乘以(2)該日合格集合餘額的乘積；(2)如有正差額，(A)有關義務人在應收款第二集中的國家的應收賬款的經調整本金餘額合計減去(B)相當於(1)33.0%乘以(2)該日的合資格集合餘額的乘積；(3)(A)有關義務人的應收款匯票地址位於應收款匯票地址第三高的國家的合資格應收款經調整本金餘額的正差額減去(B)相當於(1)23.0%乘以(2)該日的合資格匯兑餘額的乘積；(4)以下各項的正差額：(A)有關債務人在上文第(I)、(Ii)和(Iii)款所述國家以外的任何國家有開票地址的合格應收款的經調整本金餘額合計，減去(B)相當於(1)20.0%乘以(2)該日合格集合餘額的乘積；(5)無重複的(A)正差額(如有的話)：(1)相關債務人的FICO分數低於700的合資格應收款的調整本金餘額合計減去(2)(A)75.0%乘以(B)截至該日期的合資格集合餘額加上(B)正差額(如有)的總和，(1)相關債務人的FICO分數低於620的合格應收款的調整本金餘額合計減去(2)(A)20.0%乘以(B)截至該日期的合格集合餘額的乘積(C)正差額(1)相關債務人的FICO分數低於550的合格應收款的調整本金餘額合計減去(A)10.0%乘以(B)截至該日期的合格集合餘額的乘積，在所有情況下，沒有這種FICO分數的應收款被視為FICO分數為零；DB1/139452285.4144571789.3 17(Vi)下列各項的正差額：(A)相關債務人沒有FICO分數或FICO分數為零的合資格應收款的調整本金餘額總額減去(1)5.0%乘以(2)截至該日期的合資格集合餘額的乘積；(Vii)(A)在承保時有關貸款與價值比率大於125%的合資格應收賬款的經調整本金結餘總額減去(B)(1)30.0%乘以(2)截至該日期的合資格集合結餘的乘積；(Viii)(A)原始本金結餘大於40,000美元的合資格應收賬款的經調整本金結餘總額減去(B)(1)60.0%乘(2)截至該日期的合資格集合結餘的乘積(如有)的正差額；(Ix)以下各項的正差額(如有的話)：(A)合資格應收賬款的經調整本金餘額合計，而該等合資格應收賬款或在任何先前日期是(但在該決定日期不再是)已償還組合違約應收款的本金餘額減去(B)(1)1.0%乘以(2)截至該日期的合資格集合餘額的乘積；(X)(A)相關融資工具為二手工具的合資格應收款的調整本金餘額合計減去(B)(1)80.085.0%乘以(2)截至該日期的合資格集合餘額的乘積(如有)的正差額；(Xi)(A)原始到期日超過75個月的合資格應收款的經調整本金餘額總額減去(B)(1)27.5%乘以(2)截至該日期的合資格集合餘額的乘積(如有)的正差額；(十二)在承銷時FICO分數低於660的合格應收款的經調整本金餘額合計，需要從該日期的合格集合餘額中減去該餘額，以使所有合格應收款(不包括沒有FICO分數或FICO分數為零的應收款)的加權平均FICO分數為660，該加權平均使用承銷時每一種此類應收款的FICO分數計算；(Xiii)在承銷時貸款與價值比率超過118%的合資格應收賬款的經調整本金結餘總額，需要從該日的合資格集合結餘中扣除，才能使所有合資格應收賬款在承銷時的加權平均貸款與價值比率等於118%；。(Xiv)當時付款與收入比率超過12.0%的合資格應收賬款的經調整本金結餘總額。
DB1/139452285.4144571789.3 SB-1 Schedule B合格應收款標準“合格應收款”是指滿足以下所有條件的應收款：1.由DFC(I)根據現有的經銷商協議或(Ii)在賣方根據購買協議向借款人出售、轉讓和轉讓此類應收款前七(7)天以上通過在線平臺發起的；2.在承保時，相關義務人或作為其最近的賬單地址提供的位於美國的地址；3.相關債務人不是(A)DFC或Lithia的僱員，(B)船隊客户或(C)美國政府或任何州或其他政府實體的任何機構、部門或機構；4.原始期限至少為12個月但不超過84個月；5.本金餘額至少為500美元，但不超過(A)如果相關債務人在承保時FICO評分超過740,150,000美元或其他(B)100,000美元；6.構成當時在有關國家有效的《UCC》第9條所界定的“帳户”、“有形動產紙”、“電子動產紙”或“無形付款”的“賬户”；7.以美元支付；8.根據下列合同產生的債務：(A)已由合同當事人妥善執行，(B)代表債務人真正的、合法的、有效的和有約束力的書面付款義務，其全部效力和效力可由合同持有人按照合同條款強制執行，但須受破產、破產、重組或其他影響債權人權利一般執行的類似法律的影響；(C)載有習慣法和可執行條款，以使合同持有人對受該合同約束的財產的權利和補救充分，足以實現合同所規定的利益；9.不受債務人的任何撤銷、取消、抵銷、申索、反申索或抗辯(包括高利貸抗辯)的權利或任何未決的法律程序的約束，或據借款人所知受到威脅，債務人或任何政府當局聲稱相關合同是非法或不可執行的；10.不要求債務人同意或接受關於轉讓、出售或轉讓DFC在其下的權利和義務的通知；DB1/139452285.4144571789.3 SB-2 11.相關合同要求債務人根據信用證和託收政策(如果適用)，將相關融資車輛納入以全面和碰撞保險為特徵的個人實物損害保險；12.以相關融資工具上以借款人為受益人的有效的、存續的和可強制執行的、無任何留置權的、以借款人為受益人的有效的、存續的和可強制執行的第一優先權擔保權益為擔保，該擔保權益已由借款人有效地轉讓給管理代理人，並且在任何司法管轄區內給予行政代理人第一優先權的完善擔保權益均已作出；13.Lithia、DFC或其任何關聯公司均未直接或間接地就應收賬款向任何債務人支付或借出任何預定付款或根據該等應收賬款到期或將到期的任何其他款項，以使應收賬款成為現行；14.借款人對該等應收賬款擁有良好且不可轉讓的所有權，並且是該等應收賬款的唯一所有人，不受其他人的留置權(準許留置權除外)的影響，賣方有權以擔保當事人的名義轉讓、出售和保留該等應收賬款，且不享有任何留置權以外的任何留置權；15.在承保時應已遵守並將繼續遵守法律的所有要求，包括所有消費者保護法和高利貸法，並且據借款人所知，其起源沒有欺詐或失實陳述；16.起源於賣方的正常業務過程，並符合信用證和託收政策；17.如果(A)關於此類應收款的合同是當時在有關國家有效的《統一商法典》第9條所界定的“有形動產票據”，(1)只有一份相關合同的籤立原件，(2)此類合同要麼(A)由抵押品託管人所有，要麼(B)在《總括修正案第2號》生效日期之前丟失或銷燬，並且不為抵押品託管人以外的任何人實際佔有，(3)此類合同未被出售、轉讓、轉讓、或由DFC質押給借款人以外的任何人，以及(Iv)該合同沒有加蓋印花或以其他方式標記，以顯示借款人以外的任何人的任何利益；或(B)如果與該等應收款有關的合同是當時在相關國家有效的《UCC》第9條所界定的“電子動產紙”，則(1)只有一份與《UCC》第9條所指的當時在相關國家有效的合同有關的權威副本，(2)這種權威副本是唯一的、可識別的和不可更改的(但在增加或修改指定的受讓人和其他人的情況下，抵押品託管人的參與除外)
DB1/139452285.4144571789.3SB-3而不是容易識別為授權或未經授權版本的版本)，(Iii)這種權威副本已傳達給擔保品託管人，並由擔保品託管人或代表擔保品託管人維護，完全是為了擔保當事人的利益，(Iv)權威副本的每份副本和副本的任何副本都可以容易地識別為非權威副本，(V)相關應收賬款的建立方式是，增加或改變該合同的權威副本的指定受讓人的所有副本或修訂必須在抵押品託管人的參與下製作，(Vi)相關應收賬款的確定方式是，合同的所有權威副本的所有修訂都可以很容易地識別為授權或未經授權的修訂，以及(Vii)傳達給抵押品託管人的該權威副本沒有標記或符號表明其已被質押、轉讓或以其他方式傳達給任何人，該合同未被DFC出售、轉讓、轉讓或質押給借款人以外的任何人；18.有關債務人(A)未身故及(B)不是未決破產程序的標的；19.借款人取得該等應收款時，該債務人並非逾期30天或拖欠應收款，及(B)不是違約應收款或拖欠應收款；20.在承保時貸款與價值比率未超過160%；21.在承保時(沒有FICO分數或FICO分數為零的應收款除外)的FICO分數不低於450；22.支付與收入比例不超過20%的；債務收入比不超過60%的；關於(A)相關合同涉及汽車零售購買，(B)根據該合同可分配給利息的付款部分和可分配給本金的部分是按照簡單利率法確定的，(C)該合同規定了固定利率和每月付款水平(前提是，應收款第一個月和最後幾個月的付款可能與付款水平最小不同)，以及(D)該合同下的每月付款完全攤銷融資金額，並在原始期限內按相關APR產生利息；25.相關合同(A)由DFC根據在承銷該合同時有效的信用證和託收政策承保，(B)在所有重要方面滿足在承銷該合同時有效的信用證和託收政策的要求，以及(C)滿足在發起合同時有效的所有適用法律；除信用證和託收政策外，服務機構未對相關合同進行任何方面的修改、修改、放棄、延長或變更的；DB1/139452285.4144571789.3 SB-4 27。應收賬款明細表中所列信息在有關截止日期開業時在所有重要方面均屬真實和正確的；對於這類貸款，DFC並無採用遴選程序，認定此類應收賬款不如DFC發起或獲得的其他符合資格標準的可比機動車貸款更可取或更有價值；以及29.未予延期的，除非因延期而延期的所有預定付款或部分款項已由有關債務人在准予延期後支付。
DB1/139452285.4144571789.3 SC-1應收賬款附表C應收賬款(原始交付給行政代理)DB1/139452285.4144571789.3 SD-1 LP 07728 5911弗雷斯卡博士NJ La Palma CA 90623 F7 07728 PC 811路33 8700水星巷州Pico Rivera Freehold CA 90660 NJ 2A 07728 218 W.Yard路。F2 Feura Bush紐約郵編12067 M1 811路33 OPM#000738房間PG 26南米德爾塞克斯大道9W號南樓ID港Ewen Monroe NY Freehold 12466 NJ 2 08831 4561 Oak Fair Blvd。新澤西州坦帕，佛羅裏達州33610 M2 07728 5 26南米德爾塞克斯大道。橡樹集市大道4758號。F1坦帕門羅FL 33610新澤西州地址BT 08831 700Burning Tree路F3富勒頓，加利福尼亞州811號公路33 OPM#000738室92833 CR 811路33 OPM#000738室1 12958中途廣場6298西44大道。附表D應收文件地點車道金融公司梅德福德北巴特利特街150號，或97501 Iron Mountain Information Management，LLC，地點如下：Spokane Cerritos WA Freehold 99224 CA Freehold 90703新澤西州
DB1/139452285.4144571789.3 SE-1文件附表E 1.DFC Business Services，LLC簽訂的截至截止日期的貸款協議，由DFC Business Services，LLC簽署，由DFC Business Services，LLC作為借款人(“借款人”)、車道金融公司(“DFC”)、作為服務機構(以該身份為“服務機構”)以及作為擔保當事人(定義如下)的抵押品託管人、不時的貸款人、貸款集團的代理人(定義如下)和瑞穗銀行有限公司簽訂。作為貸款人和代理人的行政代理(“行政代理”)和開户銀行。2.DFC與借款人之間的購買協議，日期為截止日期。3.作為託管代理和銀行的借款人瑞穗銀行與行政代理之間的託管和控制協議，日期為截止日期。4.DFC、借款人和行政代理人之間的費用函，日期為截止日期。5.Lithia Motors，Inc.的性能保證，日期為截止日期。6.借款人發給行政代理人的授權書，日期為截止日期。7.Morgan，Lewis&Bockius LLP對某些真實銷售事項的意見，日期為成交日期。8.Morgan，Lewis&Bockius LLP對某些非合併銷售事項的意見，日期為截止日期。9.Morgan，Lewis&Bockius LLP對某些擔保權益事項的意見，日期為成交日期。10.Morgan，Lewis&Bockius LLP在截止日期對某些公司事項的意見，包括對沃爾克規則的意見。11.Morgan，Lewis&Bockius LLP關於用RouteOne LLC控制電子動產紙的意見，日期為成交日期。12.Morgan，Lewis&Bockius LLP的意見，日期為截止日期。13.Stoel Rives LLP的意見，日期為關閉日期，關於俄勒岡州法律規定的某些公司和擔保權益事項的意見。14.Fry，Frank，Harris，Sriver&Jacobson LLP在截止日期就DB1/139452285.4144571789.3 SE-2關於Lithia Motors，Inc.的某些事宜的意見。
DB 1/ 139452285.4144571789.3 * -除非得到行政代理人的同意，否則對Lithia貸款協議做出的任何修改、授予的豁免或其他修改均不得在本協議下生效。SF-1附表F財務契約（Lithia）“財務契約（Lithia）”是指以下各項：（i）截至任何確定日期，截至最近完成的財政季度最後一天的連續四個財政季度的比率（a）（1）EBITDART，減去（2）有關公司或任何子公司股權的股息和其他分配（向公司或另一家子公司支付的股息或其他分配除外），減去（3）根據第13條最後一句第（z）（ii）條從非貸款方的人回購股權所花費的金額。10)加(3)租金或租賃費，不得低於1.20至1.0；及(Ii)於任何釐定日期，Lithia及Lithia的所有相關附屬公司的綜合比率為：(A)(1)所有出資債務的當時未償還本金餘額(減去(A)無限制現金及現金等價物加(B)在公關賬户中持有的任何金額加上(C)由雙重附屬公司或筒倉附屬公司設立的賬户中作為應付樓面票據(或其利息)抵銷的任何金額)，減去(2)新車輛平面圖貸款、新車輛週轉貸款、舊車平面圖貸款當時未償還本金餘額的總和，二手車輛擺動DB1/139452285.4144571789.3*-除非得到行政代理的同意，否則不得對Lithia貸款協議進行任何修改、豁免或其他修改，以改變根據本條款允許的融資債務金額。SF-2額度貸款、服務貸款人車輛平面圖貸款、服務貸款人車輛週轉額度貸款、任何其他服務貸款人平面圖融資的本金、Lithia貸款協議*第13.10節(O)款允許的融資債務(但僅限於構成平面圖融資的範圍)、Lithia貸款協議*第13.10款(P)允許的融資債務(但僅在構成平面圖融資的範圍內)，Lithia Loan協議*第13.10節(R)分段允許的有擔保債務(但僅限於Lithia非擔保的範圍)和Lithia Loan協議第13.10節(S)分段允許的有擔保債務*，以及第13節(F)分段允許的有擔保債務(無重複)。根據Lithia Loan協議*(但僅在構成樓面平面圖融資的範圍內)，Lithia Loan協議*第13.10節(P)分節允許的有擔保債務(但僅在構成樓面平面圖融資的範圍內)、Lithia Loan協議*第13.10節(R)分節允許的有擔保債務(但僅限於Lithia非擔保的範圍)，以及Lithia Loan協議*第13.10節(S)允許的有擔保債務，在截至該日期的測算期內均不得大於5.75至1.0。就上述金融契約(LITHIA)而言，“LITHIA貸款協議”是指在2021年4月29日由LITHIA、LITHIA的子公司、作為出借方的每一家金融機構以及作為出借方代理人的美國銀行全國協會之間於2021年4月29日簽署的第四份修訂和重新簽署的貸款協議，該協議是指在第1號修正案生效日期或之前根據其條款修訂的，而“LITHIA的相關子公司”是指，截至任何確定日期，截至該日根據Lithia貸款協議被定義為Lithia的“附屬公司”的所有實體(不影響在截止日期或之後對“附屬公司”相關定義的任何修訂，行政代理同意的修訂除外)。此外，所有大寫的術語
DB1/139452285.4144571789.3*-除非得到行政代理的同意，否則對Lithia Loan協議的任何修改、給予的豁免或與Lithia Loan協議相關的其他修改都不應生效，這些修改將改變本節允許的融資債務金額。未在協議第1.01節中定義的SF-3前述金融契諾(Lithia)具有Lithia貸款協議中賦予的含義，但不影響對Lithia貸款協議作出的任何修訂、給予的豁免或在截止日期或之後就Lithia貸款協議作出的其他修改，除非得到行政代理的同意。DB1/139452285.4144571789.3 SG-1 Schedule G批准的備份服務VerventInc.
Db1/139452285.4144571789.3SH-1賬户名稱對衝準備金賬户賬户編號H15-740-008576 Schedule H託管賬户集合賬户H15-740-008568 DB1/139452285.4144571789.3 A-1資金申請表_根據日期為2022年11月1日的貸款協議(經不時修訂、重述、補充或以其他方式修改，“貸款協議”)，借款人、作為服務機構及抵押品託管人的Driveway Finance Corporation、不時作為貸款一方的貸款人、不時為貸款人集團的代理以及作為行政代理及開户銀行的瑞穗銀行，有權代表借款人籤立及交付本融資請求。本文中使用的未另有定義的大寫術語應具有貸款協議中賦予該術語的含義。借款人特此請求根據貸款協議，於_鑑於上述情況，以下籤署人代表借款人證明如下：1.截至本合同日期，借款基數為_。申請貸款生效後，貸款餘額不超過借款基數，不存在借款基數不足的情況。此資金申請附有一份真實、完整和正確的借款基數及其所有組成部分的計算。2.截至本貸款生效日，申請貸款生效後的超額集中金額將為：_[•]DB1/139452285.4144571789.3 A-2對其所得款項的運用，如同在本協議之日及截至該日一樣；(B)此種貸款或其所得款項的運用並未發生或將產生任何事件，構成終止事件或未到期終止事件；(C)借款人實質上遵守了《貸款協議》中規定的各項協議；(D)未發生服務商終止事件或未到期服務商終止事件；以及(E)借款人沒有對應收款使用逆向選擇程序，應收款將在供資日成為抵押品的一部分。4.申請的貸款在供資日不會超過可用金額，在實施申請的貸款後，未償還的貸款將不會超過借款基數。5.在實施所要求的貸款後，(A)借款人將被完全對衝，或(B)根據貸款協議第6.03節的規定，至少等於對衝儲備賬户所需金額的金額將存入對衝儲備賬户。6.隨函附上一份真實、正確和完整的《採購協議》附表A，其中反映了將在籌資日成為抵押品一部分的所有應收款，其中反映的每一筆應收款都是合格的應收款。7.應收款的截止日期為20_年。DFC Business Services，LLC by：名稱：標題：DB1/139452285.4144571789.3 B-1日期為_作為行政代理人(“行政代理人”)和開户銀行。此處使用的未另有定義的大寫術語應具有貸款協議中賦予該術語的含義。_包括轉讓人承諾的利息和出借人由轉讓人提供的墊款。在完成此類出售和轉讓後，受讓人的承諾和貸款人墊款金額將如本合同附表1第2節所述。轉讓人聲明並保證，它是其在本協議項下轉讓的權益的合法和實益所有人，並且該權益不受任何留置權的影響。轉讓人和受讓人向對方和貸款協議其他各方確認並同意：(I)除本協議規定外，轉讓人不對貸款協議中或與貸款協議相關的任何陳述、擔保或陳述，或貸款協議或根據貸款協議提供的任何其他文書或文件的簽署、合法性、有效性、可執行性、真實性、充分性或價值不承擔任何責任；(2)受讓人確認其已收到一份《貸款協議》副本，以及其認為適當的財務報表和其他文件和資料的副本，以便作出自己的信用分析和決定以進行此類轉讓和接受；(3)受讓人將在不依賴行政代理、轉讓人或貸款協議的任何其他貸款方的情況下，根據其當時認為適當的文件和資料，繼續在根據貸款協議採取或不採取行動時作出自己的信貸決定；(4)受讓人和受讓人確認受讓人是合格的受讓人；(V)受讓人指定並授權行政代理以代理人的身份代表其採取行動，並行使本協議條款授予該代理人的權力以及合理附帶的權力；(Vi)受讓人同意將按照其條款履行所有
DB1/139452285.4144571789.3 B-2，即貸款協議條款要求其作為貸款人履行的義務，包括第十二條的保密規定；以及(Vii)本次轉讓和接受符合貸款協議第十一條規定的此類轉讓和接受的所有其他要求。在轉讓人和受讓人簽署並接受本轉讓後，將交付給行政代理接受。本轉讓和接受的生效日期(“轉讓日期”)應為行政代理接受該轉讓和接受的日期，除非本合同附表1第3節規定了較晚的日期。轉讓人和受讓人同意向行政代理人償還行政代理人因本次委派和驗收而產生的所有合理費用、成本和開支(包括行政代理人的合理費用和律師的自付費用)。行政代理接受後，受讓人即為貸款協議的一方，並在本轉讓和接受中規定的範圍內，享有出借人在該協議下的權利和義務，但條件是，轉讓人在其根據本轉讓和接受所轉讓的這些權利的範圍內，應放棄其轉讓的權利並免除其在貸款協議下的已轉讓的義務(如果轉讓和接受涉及轉讓人在貸款協議下的全部或剩餘部分權利和義務，則轉讓人應不再是貸款協議的一方)。在行政代理接受後，自轉讓日期起及之後，行政代理應根據貸款協議向受讓人支付或安排支付與本協議轉讓的利息有關的所有款項(包括但不限於本金、利息和相關費用的所有付款)。轉讓人和受讓人應在轉讓日期之前直接對貸款協議項下的付款進行所有適當的調整。本轉讓和承兑應受紐約州法律管轄，並根據紐約州法律進行解釋。DB1/139452285.4144571789.3B-3茲證明，轉讓人和受讓人已於__
DB1/139452285.4144571789.3 B-4$_
向管理代理提交文件
DB1/139452285.4144571789.3 D-1附件D授權書本授權書(“授權書”)由DFC Business Services，LLC(“授權人”)作為行政代理(“授權人”)籤立並交付給瑞穗銀行有限公司，根據(I)截至2022年11月1日的貸款協議(經不時修訂、重述、補充或以其他方式修改的“貸款協議”)，授權書由設保人、借款人(以借款人身份)、車道金融公司作為服務機構和抵押品託管人、貸款方、貸款方集團的代理方，以及作為行政代理和開户行的瑞穗銀行，以及(Ii)其他基本文件。本文中使用的未另有定義的大寫術語應具有貸款協議中賦予該術語的含義。任何被提交本授權書的人，作為授權其採取本授權書所述的一項或多項訴訟的人，不得就授權採取下述任何行動的授權，或關於本授權書的任何條件的存在或履行，向Grantor進行查詢或尋求確認，該條件旨在無條件地授予代理人採取和執行本授權書所述行動的授權，並且Grantor不可撤銷地放棄在法律或衡平法上對依賴或承認根據本授權書授權行事的任何個人或實體提起任何訴訟或訴訟的權利。在此授予的授權書與利息相結合，在所有合計的欠款已全部支付且律師已提供其書面同意之前，Grantor不得撤銷或取消該授權書。設保人在此不可撤銷地組成並任命律師(以及由律師指定的所有高級人員、僱員或代理人)為其真實和合法的受權人，具有完全不可撤銷的權力和權力，取代其位置和位置，並以其名義或以律師本人的名義，不時根據律師的酌情決定權，採取任何和所有適當的行動，並籤立和交付為實現貸款協議的目的可能必要或適宜的任何和所有文件和文書，並在不限制前述規定的一般性的情況下，特此授予律師以下權力和權利：在任何終止事件發生時和繼續期間，在未通知或未經其同意的情況下，採取下列行動：(A)行使設保人在《購買協議》項下的所有權利和特權(包括每份《購買協議補充協議》)；(B)支付或解除對格蘭特或格蘭特財產徵收或施加或威脅到的任何税項、留置權或其他產權負擔；。(C)如果格蘭特不對該等訴訟、訴訟或程序進行抗辯，或者如果律師認為它沒有以能夠最大限度地向律師追回的方式進行抗辯，則對針對格蘭特提起的任何訴訟、訴訟或程序進行抗辯，並就上述任何訴訟、訴訟或程序進行和解、妥協或調整，並就此提出律師認為適當的免責或免除；(D)在任何具司法管轄權的法院或在任何仲裁員席前提出或進行任何申索、訴訟、訴訟或法律程序，或採取任何其他由律師認為適當的其他行動，以收取應付予格蘭特的任何及所有該等款項，並強制執行有關格蘭特財產的任何其他權利；(E)出售、轉讓、質押、就任何格蘭特財產訂立任何協議或以其他方式處理，並就該等出售或訴訟籤立任何DB1/139452285.4144571789.3 D-2背書、轉讓或其他與該等財產有關的轉讓文書；及(F)促使當時由Grantor聘用的註冊會計師應律師的要求，隨時並不時迅速地準備和交付根據貸款協議或任何其他基本文件由Grantor或代表Grantor準備的任何報告，就所有目的而言，就像律師是其財產的絕對所有者一樣，並隨時或不時由律師選擇和Grantor支付費用，作出律師合理認為必要的所有行為和其他事情，以完善、保存或變現其財產或資產以及行政代理人的留置權。作為擔保當事人的代理人，盡其所能充分和有效地履行。設保人在法律允許的範圍內，在法律允許的範圍內，批准上述代理人應依法作出或導致作出的一切行為。本委託書於20_DFC商業服務有限責任公司：名稱：標題：於20_
公證印章
DB1/139452285.4144571789.3 E-1外購放行表格請參閲日期為2022年11月1日的貸款協議(經不時修訂、重述、補充或以其他方式修改的《貸款協議》)，該貸款協議由DFC Business Services，LLC作為借款人(“借款人”)、車道金融公司作為服務者(以該身份為“服務者”)和抵押品託管人(以該身份稱為“抵押品託管人”)、不時的貸款人、不時的當事人、代理人和瑞穗銀行有限公司組成。作為行政代理(“行政代理”)和開户銀行。未在此定義的大寫術語應具有貸款協議中給出的該術語的含義。借款人和服務商特此聲明並保證，貸款協議和其他基本文件中的每一項條件，包括但不限於交付(I)實質上按附件1所附形式的已籤立的取出日期證書和(I)實質上按附件2所附形式的已籤立通知。根據貸款協議第2.12(A)(Iv)節將_存入托收賬户，行政代理特此解除其對下列各項的所有權利、所有權和利益，包括其留置權：(A)借款人將在相關提取中轉讓並在本合同附表一中描述的應收款(“提取應收款”和該附表，“提取應收款明細表”)，連同相關合同，無論是現在存在的還是以後獲得的，以及由此證明的任何賬户或義務，其任何擔保，與其相關的所有收款，以及在有關的提取日期或之後，任何人為支付上述任何款項而到期應付或收取的所有款項(包括根據任何擔保或類似的增信措施就任何該等應收賬款而作出的任何付款)；(B)借款人在融資車輛中與取得的應收款(包括收回的車輛)有關的所有權益，或在證明任何該等融資車輛的任何抵押權益的任何文件或書面文件中的所有權益，以及每一輛該等融資車輛的每項抵押權益，不論是現時存在的或以後取得的，包括出售或以其他方式處置該等融資車輛所得的所有收益；DB1/139452285.4144571789.3 E-2(D)借款人在所有記錄、協議和文書中的權利、所有權和權益，包括借款人對DFC和/或任何交易商關於外賣應收款的追索權；DB1/139452285.4144571789.3 E-2(D)借款人在所有記錄、文件和文字中的所有權益；(E)借款人在所有保險單下就與應收外賣有關的融資車輛而享有的所有付款權利中的所有權益，包括因債務人就該融資車輛的任何失責而從任何來源收取的任何款項，以及就任何該等保險單提出申索或退還保費所得的任何收益，不論是現時存在的或日後取得的，以及該等收益的全部；(F)借款人在所有擔保、彌償、保證、保險(以及其收益和保費退還)中的所有權益，以及不時支持或保證支付外購應收款的任何性質的其他協議或安排中的所有權益；。(G)借款人在所有服務合同和與外購應收款相關的其他合同和協議下獲得付款的所有權利中的所有權益，以及借款人在針對相關交易商的所有追索權中的所有權益(不包括任何交易商儲備中的任何權利和相關交易商協議下的權利)；。(H)以借款人為受益人或轉讓或轉讓給借款人的留置權、擔保物和其他產權負擔，以及外賣應收款，不論是現在存在的還是以後購買的，以及相關的融資工具，無論是現在存在的還是以後購買的；。(I)與上述有關並與外賣應收款有關的所有款項、存款、資金和工具；。(J)借款人於購買協議內及與購買協議有關的所有權利、所有權及權益(包括每一份購買協議副刊)，涉及外賣應收賬款及其下的補救措施，以及將借款人根據購買協議或與該等外賣應收賬款有關而向DFC提交的所有UCC融資報表轉讓予行政代理；及(K)上述與外賣應收賬款有關的所有收入及收益。
服務商和借款方特此指示抵押品託管人向_
DB1/139452285.4144571789.3 E-3於20_執行。DFC Business Services，LLC作為借款人：名稱：標題：Driveway Finance Corporation作為服務商和抵押品託管人：名稱：標題：瑞穗銀行作為行政代理：名稱：標題：DB1/139452285.4144571789.3 E-4附件1 Driveway Finance Corporation(“DFC”)作為服務商(“服務商”)，根據貸款協議第2.12(A)節的規定提供本證書，日期為2022年11月1日(經修訂，在DFC Business Services，LLC作為借款人、服務商、DFC作為抵押品託管人、貸款人不時作為本協議當事人、不時代理本協議各方以及作為行政代理和開户銀行的DFC商業服務有限責任公司之間，並特此證明，截至本貸款協議日期，借款人在相關購買日期有足夠的資金按照貸款協議進行購買(在必要的情況下，考慮到：出售抵押品的收益(如適用的話)；(B)在取得生效後，行政代理在取得日期解除有關應收款，借款人或有關應收款在取得日期轉讓，(A)不存在借款基礎不足，(B)未到期終止事件、終止事件、服務商終止事件或經通知或時間流逝即為服務商終止事件，或兩者均已發生或由該等提取所導致的事件，以及(C)貸款協議仍然適用的拖欠應收款和違約應收款的比例，在實施該項提取後不得高於該項提取之前的比例；(C)借款人已向行政代理提交了一份清單，其中列明瞭根據該等提取產生的應收款不得發放的所有合同；及(D)借款人已向收款賬户存入一筆相當於與應收款相關的所有未償還的維修商預付款的金額。本文中使用的未另有定義的大寫術語應具有貸款協議中賦予該術語的含義。
DB1/139452285.4144571789.3 E-5在此見證下，服務機構已安排本證書於20_Driveway Finance Corporation by：名稱：標題：DB1/139452285.4144571789.3 E-6附件2通知格式Driveway Finance Corporation 150N.Bartlett Street Medford，Oregon 97501_貸款協議“)由DFC Business Services，LLC，作為借款人(”借款人“)、車道財務公司(作為服務商和抵押品託管人)、貸款人不時作為當事人、代理人不時與瑞穗銀行(”瑞穗銀行“)作為行政代理(”行政代理“)及開户銀行之間訂立。根據貸款協議第2.12(A)(I)節的規定，借款人於20_本文中使用的未另有定義的大寫術語應具有貸款協議中賦予該術語的含義。非常真誠的您，DFC Business Services，LLC by：姓名：標題：
DB1/139452285.4144571789.3 E-7已收回應收賬款發放明細表DB1/139452285.4144571789.3 F-1附件F月報表格
向行政代理人備案
DB1/139452285.4144571789.3 G-1附G表格美國税務合規性證書DB1/139452285.4144571789.3 G-2名稱：附G-1
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美國税務合規證書(適用於非美國聯邦所得税合夥企業的外國貸款人)茲參考截至2022年11月1日的貸款協議(經不時修訂、補充或以其他方式修改的《貸款協議》)，DFC Business Services，LLC作為借款人、車道金融公司、作為服務商和抵押品託管人、作為不時的貸款人、不時的代理人、作為行政代理和賬户銀行的瑞穗銀行有限公司之間的貸款協議。根據《貸款協議》第2.14節的規定，簽署人茲證明：(I)它是提供本證書的貸款的唯一記錄和實益所有人(S)，(Ii)它不是《守則》第881(C)(3)(A)節所指的銀行，(Iii)不是守則第871(H)(3)(B)節所指的借款人的10%股東，及(Iv)不是守則第881(C)(3)(C)節所述與借款人有關的受控外國公司。簽署人已向行政代理和借款人提供了美國國税局W-8BEN或W-8BEN-E表格上的非美國人身份證書。簽署本證書即表示簽字人同意：(1)如果本證書上提供的信息發生變化，簽字人應立即通知借款人和行政代理，(2)簽字人應始終向借款人和行政代理提供一份填寫妥當且當前有效的證書，無論是在向簽字人支付每筆款項的日曆年度，還是在付款前兩個日曆年度中的任何一年。除本協議另有規定外，貸款協議中定義並在本協議中使用的術語應具有貸款協議中賦予它們的含義。標題：日期：_20
貸款人名稱
DB1/139452285.4144571789.3 G-3名稱：證物G-2
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美國税務合規證書(適用於非美國聯邦所得税合夥企業的外國參與者)茲參考日期為2022年11月1日的貸款協議(經不時修訂、補充或以其他方式修改的《貸款協議》)，該協議由DFC Business Services，LLC作為借款人、車道金融公司、服務機構和抵押品託管人、不時的貸款人、不時的代理人和作為行政代理和賬户銀行的瑞穗銀行共同簽署。根據貸款協議第2.14節的規定，簽署人特此證明：(I)它是為其提供本證書的參與的唯一記錄和實益所有人，(Ii)它不是守則第881(C)(3)(A)節所指的銀行，(Iii)它不是守則第871(H)(3)(B)條所指的借款人的10%股東，以及(Iv)該公司並非守則第881(C)(3)(C)節所述與借款人有關的受管制外國公司。簽字人已在美國國税局W-8BEN或W-8BEN-E表格上向其參與貸款人提供了其非美國人身份的證書。簽署本證書即表示簽字人同意：(1)如果本證書上提供的信息發生變化，簽字人應立即以書面形式通知貸款人，(2)簽字人應始終向貸款人提供一份填寫正確且目前有效的證書，無論是在每次付款給簽字人的日曆年度，還是在付款前兩個日曆年度中的任何一個。除本協議另有規定外，貸款協議中定義並在本協議中使用的術語應具有貸款協議中賦予它們的含義。標題：日期：_20[參賽者姓名]DB1/139452285.4144571789.3 G-4名稱：證物G-3
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美國税務合規證書(適用於為美國聯邦所得税目的的合夥企業的外國參與者)茲參考截至2022年11月1日的貸款協議(經不時修訂、補充或以其他方式修改)，DFC Business Services，LLC作為借款人、車道金融公司作為借款人和抵押品託管人、貸款人不時作為貸款人、代理不時作為代理人以及瑞穗銀行有限公司作為行政代理和賬户銀行。根據《貸款協議》第2.14節的規定，簽署人特此證明：(I)它是提供本證書的參與的唯一記錄所有者，(Ii)其直接或間接合作夥伴/成員是該參與的唯一實益擁有人，(Iii)就此類參與而言，簽署人或其任何直接或間接合作夥伴/成員都不是根據《守則》第881(C)(3)(A)條所指在其正常貿易或業務過程中籤訂的貸款協議提供信貸的銀行，(Iv)其直接或間接合作夥伴/成員均不是守則第871(H)(3)(B)節所指的借款人的10%股東，及(V)其直接或間接合作夥伴/成員均不是守則第881(C)(3)(C)節所述與借款人有關的受控外國公司。簽署人已向其參與貸款人提供IRS表格W-8IMY，並附上其每一名申索投資組合利息豁免的合夥人/成員的下列表格之一：(I)申請投資組合利息豁免的每一名合夥人/成員的IRS表格W-8BEN或W-8BEN-E或(Ii)IRS表格W-8IMY，連同每一名申請投資組合利息豁免的合夥人/成員的實益擁有人提供的W-8BEN或IRS表格W-8BEN-E。簽署本證書即表示簽字人同意：(1)如果本證書上提供的信息發生變化，簽字人應立即通知貸款人；(2)簽字人應始終向貸款人提供一份填寫妥當且當前有效的證書，無論是在每次付款給簽字人的日曆年度，還是在付款前兩個日曆年度中的任何一個。除本協議另有規定外，貸款協議中定義並在本協議中使用的術語應具有貸款協議中賦予它們的含義。標題：日期：_20
參賽者姓名
DB1/139452285.4144571789.3 G-5名稱：證物G-4
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美國税務合規證書(適用於為美國聯邦所得税目的的合夥的外國貸款人)茲提及DFC Business Services，LLC作為借款人、車道金融公司作為服務商和抵押品託管人、貸款人不時作為借款人、代理不時與瑞穗銀行以及瑞穗銀行作為行政代理和開户銀行簽訂的截至2022年11月1日的貸款協議(經不時修訂、補充或以其他方式修改)。根據《貸款協議》第2.14節的規定，簽署人茲證明：(I)它是提供本證書的貸款的唯一記錄所有人(S)，(Ii)其直接或間接合夥人/成員是該貸款的唯一實益所有人(S)，(Iii)就根據本貸款協議或任何其他借款人基本文件進行的信貸展期而言，以下籤署人或其任何直接或間接合作夥伴/成員均不是根據本守則第881(C)(3)(A)條所指在其正常貿易或業務過程中訂立的貸款協議提供信貸的銀行；(Iv)其直接或間接合作夥伴/成員均不是本守則第871(H)(3)(B)條所指借款人的10%股東；及(V)其直接或間接合作夥伴/成員均不是本守則第881(C)(3)(C)條所述與借款人有關的受控外國公司。簽署人已向行政代理及借款人提供IRS表格W-8IMY，並附上其每一名申索投資組合權益豁免的合夥人/成員提供的下列表格之一：(I)申請投資組合權益豁免的每一名合夥人/成員的IRS表格W-8BEN或W-8BEN-E或(Ii)IRS表格W-8IMY，連同申請投資組合權益豁免的每一名該等合夥人/成員的實益擁有人提供的W-8BEN或IRS表格W-8BEN-E。簽署本證書即表示簽字人同意：(1)如果本證書上提供的信息發生變化，簽字人應立即通知借款人和行政代理，(2)簽字人應始終向借款人和行政代理提供一份填寫妥當且當前有效的證書，無論是在向簽字人支付每筆款項的日曆年度，還是在付款前兩個日曆年度中的任何一年。除本協議另有規定外，貸款協議中定義並在本協議中使用的術語應具有貸款協議中賦予它們的含義。標題：作者：
貸款人名稱
DB1/139452285.4144571789.3 G-6日期：20
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DB1/ 139452285.4144571789.3 86 receives notice of, or obtains knowledge of, the occurrence of any Termination Event, Unmatured Termination Event, Step-up Event, Early Amortization Event, Servicer Termination and Unmatured Servicer Termination Event. (j) Taxes. The Borrower will file and pay any and all Taxes, including those required to meet the obligations of the Basic Documents, except Taxes that the Borrower is contesting in good faith and by appropriate legal proceedings the validity, applicability or amount thereof and such contest does not materially endanger any right or interest of the Secured Parties under the Basic Documents. (k) Liens. The Borrower will not create, or participate in the creation of, or permit to exist, any Liens (other than Permitted Liens) with respect to the Lockbox Account or the Collection Account. (l) Reporting. The Borrower will furnish or cause to be furnished to the Administrative Agent, each Agent and, to the extent requested by a Hedge Counterparty, such Hedge Counterparty: (i) Monthly Report. Not later than each Reporting Date, a Monthly Report. (ii) Quarterly Report. By the 15th of each February, May, August and November, a Quarterly Report, including information as of the previous month-end, as to the Receivables such as collections, delinquencies, losses, recoveries, cash flows and such other information as reasonably requested by the Administrative Agent. (iii) Financial Statements. (A)Within 60 days after the end of the first three quarterly fiscal periods of each fiscal year of DFC, the unaudited unconsolidated balance sheets of DFC as at the end of such period and the related unaudited unconsolidated statements of income and retained earnings for DFC for such period, setting forth in comparative figures for the previous fiscal quarter (to the extent such prior quarterly financial statements were delivered pursuant to this Section or are otherwise available), accompanied by a certificate of a Responsible Officer of DFC, which certificate shall state that each such unconsolidated financial statement fairly presents the financial condition of DFC in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year end audit adjustments). (B) Within 60 days after the end of the first three quarterly fiscal periods of each fiscal year of the Performance Guarantor, the unaudited consolidated balance sheets of the Performance Guarantor as at the end of such period and the related unaudited consolidated statements of income and retained earnings for the Performance Guarantor for such period, DB1/ 139452285.4144571789.3 87 setting forth in comparative figures for the previous quarter (to the extent such prior quarter financial statements were delivered pursuant to this Section or are otherwise available), accompanied by a certificate of a Responsible Officer of the Performance Guarantor, which certificate shall state that each such consolidated financial statement fairly presents the financial condition of the Performance Guarantor in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year end audit adjustments). Notwithstanding the foregoing, if any such report is timely filed with the Securities and Exchange Commission and is publicly available on its the Electronic Data Gathering, Analysis and Retrieval (EDGAR) system on the date that the related report would otherwise be due hereunder, such report shall be deemed to have been timely delivered in accordance with this subclause. (C) Within 120 days after each fiscal year of (i) DFC, the unaudited consolidated balance sheets of DFC as of the end of such fiscal year and the related unaudited consolidated statements of income and retained earnings and of cash flows for DFC for such year and (ii) the Performance Guarantor, the audited consolidated balance sheets of the Performance Guarantor as at the end of such fiscal year and the related audited consolidated statements of income and retained earnings and of cash flows for the Performance Guarantor for such year, setting forth in comparative form the figures for the previous year, accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern (other than a qualification as to going concern based solely on the tenor of the Commitments hereunder) and shall state that each consolidated financial statement fairly presents the financial condition and results of operations of the Performance Guarantor at the end of, and for, such fiscal year in accordance with GAAP. Notwithstanding the foregoing, if any such report is timely filed with the Securities and Exchange Commission and is publicly available on its the Electronic Data Gathering, Analysis and Retrieval (EDGAR) system on the date that the related report would otherwise be due hereunder, such report shall be deemed to have been timely delivered in accordance with this subclause. (D)Within 120 days of the end of each fiscal year of DFC, a certificate of a Responsible Officer of DFC, which certificate shall state that the unaudited consolidated balance sheets of DFC delivered pursuant to subclause (C) fairly present the financial condition of DFC in accordance with GAAP, consistently applied, at the end of, and for, such fiscal year. Within 120 days of the end of each fiscal year of the Performance Guarantor, a certificate of a Responsible Officer of the Performance Guarantor, which certificate shall state that the audited consolidated balance sheets of the Performance Guarantor delivered, or deemed to have been delivered, pursuant to subclause (C) fairly present
DB1/ 139452285.4144571789.3 88 the financial condition of the Performance Guarantor in accordance with GAAP, consistently applied, as at the end of, and for, such fiscal year. (iv) Representations. Promptly following the Borrower's obtaining knowledge of the same, the Borrower shall notify the Administrative Agent that any representation or warranty set forth in Section 5.01 or 5.02 was incorrect in any material respect at the time it was given or deemed to have been given, and at the same time shall deliver to the Administrative Agent a written notice setting forth in reasonable detail the nature of such facts and circumstances. In particular, but without limiting the foregoing, the Borrower shall notify the Administrative Agent in the manner set forth in the preceding sentence before any Funding Date of any facts or circumstances within the knowledge of the Borrower which would render any of such representations and warranties untrue in any material respect at the date when they were made or deemed to have been made. (v) Proceedings. As soon as possible and in any event within two Business Days of the date on which the Borrower receives notice of, or obtains knowledge of, the same, the Borrower shall provide notice of any settlement of, material judgment (including a material judgment with respect to the liability phase of a bifurcated trial) in or commencement of any labor controversy (of a material nature), litigation, action, suit or proceeding before any court or Governmental Authority, domestic or foreign, affecting the Borrower or any of its Affiliates that would reasonably be expected to have a Material Adverse Effect. (vi) Notice of Material Events. Promptly following any Responsible Officer of the Borrower obtaining knowledge the same, the Borrower shall provide notice of any other event or circumstances that, in the reasonable judgment of the Borrower, would reasonably be expected to have a Material Adverse Effect. (m) Anti-Corruption Laws and Sanctions. The Borrower will remain subsect to, and enforce, Lithia's policies and procedures designed to ensure compliance by Lithia and its Subsidiaries and each of their respective Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. (n) Beneficial Ownership Certification. From time to time any Lender that has a reasonable basis for requesting such a certification may request that the Borrower deliver, and within five Business Days of each such request the Borrower shall execute and deliver to such Lender, a Beneficial Ownership Certification, in form and substance reasonably acceptable to such Lender. Furthermore, promptly following any change that would result in a change to the status of the Borrower as an excluded "Legal Entity Customer" under the Beneficial Ownership Rule, the Borrower shall execute and deliver to each Lender a Beneficial Ownership Certification, in form and substance reasonably acceptable to each such Lender. DB1/ 139452285.4144571789.3 89 (o) Special Purpose Entity. The Borrower shall take or perform each of the following actions (and the Borrower has not heretofore failed to take or perform any such actions in the past): (i) maintain its own separate deposit and other bank accounts and funds to which no other Person has any access (except to the extent permitted under the Basic Documents) which accounts shall be maintained in the name of the Borrower; (ii) maintain full books of accounts and records (financial or other) and financial statements separate from those of any other Person (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise); (iii) at all times hold itself out to the public and all other Persons as a legal entity separate from the and any other Person; (iv) have its own board of directors; (v) file its own tax returns separate from those of any other Person, if any, as may be required under applicable law, to the extent (A) not part of a consolidated group filing a consolidated return or returns or (B) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law; (vi) ensure that any consolidated financial statements of any Affiliate or any other Person that are filed with the Securities Exchange Commission or any other governmental authority or are furnished to any creditors of any Affiliate or any other Person include notes clearly stating that the Borrower is a separate corporate entity and that its assets are available first and foremost to satisfy the claims of the creditors of the Borrower; and (vii) except as contemplated by the Basic Documents, not commingle its assets with assets of any other Person and maintain the assets of the Borrower in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate; (viii) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (ix) disclose, and cause each Member to disclose, in its financial statements the effects of all transactions between such Member and the Borrower in a manner which makes it clear that (A) the Borrower is a separate legal entity, (B) the assets of the Borrower are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (C) neither such Member nor any Affiliate thereof is liable or responsible for the debts of the Borrower;
DB1/ 139452285.4144571789.3 90 (x) pay its own liabilities and expenses only out of its own funds; (xi) except for capital contributions or capital distributions permitted under the terms and conditions of the Borrower's Formation Documents, not enter into any transaction with an Affiliate of the Borrower except on arm's length terms; (xii) compensate (either directly or through reimbursement of the Borrower's allocable share of any shared expenses) all employees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliates, in each case, from the Borrower's own funds and either maintain a sufficient number of employees, and/or employ sufficient consultants or agents, in light of its contemplated operations; provided, the foregoing shall not require the Members to make any additional capital contributions to the Borrower; (xiii) except as expressly permitted under any of the Basic Documents, pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Borrower's allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Borrower's allocable share thereof) paid by any Affiliates; provided, the foregoing shall not require the Members to make any additional capital contributions to the Borrower; (xiv) not hold out its credit or assets as being available to satisfy the obligations of any other Person; (xv) maintain office space separate and clearly delineated from the office space of any Affiliate; (xvi) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including for shared office space and for services performed by an employee of an Affiliate; (xvii) cause (A) all written communications, including letters, invoices, purchase orders, and contracts, of the Borrower to be made solely in the name of the Borrower, (B) the Borrower to have its own tax identification number, stationery, checks and business forms, separate from those of any other Person, (C) all Affiliates not to use the stationery or business forms of the Borrower, and cause the Borrower not to use the stationery or business forms of any Affiliate, and (D) all Affiliates not to conduct business in the name of the Borrower, and cause the Borrower not to conduct business in the name of any Affiliate; (xviii) except as expressly permitted by any of the Basic Documents, direct creditors of the Borrower to send invoices and other statements of account of the Borrower directly to the Borrower and not to any Affiliate and cause the DB1/ 139452285.4144571789.3 91 Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Borrower; (xix) except as expressly permitted by any of the Basic Documents, not acquire obligations or securities of or make loans or advances to or grant a security interest in or pledge its assets for the benefit of the Member, any Affiliate or any other Person; (xx) correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person except as may be required for income tax purposes; (xxi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, and refrain from engaging in a business for which its remaining property represents an unreasonably small capital; provided, however, the foregoing shall not require the Members to make any additional capital contributions to the Borrower; (xxii) practice and adhere to all limited liability company procedures and formalities to the extent required by the Borrower's Formation Documents or all other appropriate constituent documents and applicable law; (xxiii) except for the other Basic Documents, not acquire any obligations or securities of the Member or of any Affiliate of the Borrower; (xxiv) cause the directors, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower; and (xxv) at all times will have at least one director that qualifies as an "Independent Director" (as such term is defined in the Borrower's Formation Documents). Section 6.02. Negative Covenants of the Borrower. From the date hereof until the Facility Termination Date: (a) Other Business. The Borrower will not (i) engage in any business other than the transactions contemplated by the Basic Documents, (ii) incur any Indebtedness, obligation, liability or contingent obligation of any kind (including guaranteeing any obligation) other than pursuant to this Agreement, any other Basic Document or under any Hedging Agreement required by Section 6.03 or (iii) form any Subsidiary or make any Investments in any other Person. (b) Receivables Not to be Evidenced by Instruments. The Borrower will take no action to cause any Receivable that is not, as of the related Funding Date, evidenced
DB1/ 139452285.4144571789.3 92 by an Instrument, to be so evidenced except in connection with the enforcement or collection of such Receivable. (c) Security Interests. The Borrower will not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien (other than Permitted Liens) on any portion of the Collateral, whether now existing or hereafter transferred hereunder, or any interest therein, and the Borrower will not sell, pledge, assign or suffer to exist any Lien on its interest, if any, hereunder. The Borrower will promptly notify the Administrative Agent of the existence of any Lien (other than a Permitted Lien) on any portion of the Collateral and the Borrower shall defend the right, title and interest of the Administrative Agent in, to and under such Collateral, against all claims of third parties; provided, that nothing in this subsection shall prevent or be deemed to prohibit the Borrower from suffering to exist Permitted Liens upon any portion of the Collateral. (d) Mergers, Acquisitions, Sales, Etc. The Borrower will not be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock or membership interests of any class of, or any partnership or joint venture interest in, any other Person, or, sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any portion of the Collateral or any interest therein (other than pursuant hereto). (e) Distributions. The Borrower shall not declare or pay, directly or indirectly, any dividend or make any other distribution (whether in cash or other property) with respect to the profits, assets or capital of the Borrower or any Person's interest therein, or purchase, redeem or otherwise acquire for value any of its capital stock now or hereafter outstanding, except that so long as no Termination Event or Unmatured Termination Event has occurred and is continuing or would result therefrom, the Borrower may distribute to holders of its membership interest funds distributed to the Borrower pursuant to Section 2.06(xi), subject to Applicable Law. (f) Change of Name or Location of Receivable Files. The Borrower shall not (i) change its name or state of organization, move the location of its principal place of business and chief executive office, and the offices where it keeps the Records from the location referred to in Section 13.02 or (ii) move, or consent to the Collateral Custodian or the Servicer moving, the Receivable Files from the location thereof on the Closing Date, unless the Borrower has given at least 30 days' written notice to the Administrative Agent and has taken all actions required under the UCC of each relevant jurisdiction in order to continue the first priority perfected security interest of the Administrative Agent in the Collateral. (g) True Sale. Except for purposes of GAAP, the Borrower will not account for or treat the transactions contemplated by the Purchase Agreement in any manner other than as the sale, or absolute assignment, of the Receivables and other Collateral by DFC to the Borrower. DB1/ 139452285.4144571789.3 93 (h) ERISA Matters. The Borrower will not establish, maintain or contribute to or have any liability (contingent or otherwise) with respect to any Pension Plan or Multiemployer Plan or otherwise be a "benefit plan investor" under Section 3(42) of ERISA. The Borrower will not engage or permit any ERISA Affiliate to engage in any prohibited transaction under Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available or has not previously been obtained from the United States Department of Labor and which would result in a Material Adverse Effect. (i) Formation Documents; Purchase Agreement. The Borrower will not amend, modify, waive or terminate any provision of its Formation Documents or of the Purchase Agreement (including any Purchase Agreement Supplement) in any respect which would be reasonably expected to materially and adversely affect the Administrative Agent or any other Secured Party, without the prior, written consent of the Administrative Agent. (j) Changes in Payment Instructions. The Borrower will not add or make any change, or permit the Servicer to make any change, in its instructions to Obligors regarding payments to be made to the Borrower or the Servicer or payments to be made to the Lockboxes or the Lockbox Account, unless the Administrative Agent has Consented to such change in writing and has received duly executed copies of all documentation related thereto, which documentation shall be satisfactory in form and substance to the Administrative Agent. (k) Extension or Amendment. The Borrower will not, except as otherwise permitted in Section 7.03(c)(i), extend, amend or otherwise modify, or permit the Servicer to extend, amend or otherwise modify, the terms of any Contract. (l) No Assignments. The Borrower will not assign or delegate, grant any interest in or permit any Lien (other than Permitted Liens) to exist upon any of its rights, obligations or duties under this Agreement without the prior written Consent of the Administrative Agent. (m) Anti-Corruption Laws and Sanctions. The Borrower will not request any Loan, and the Borrower shall not use any Loan, and shall procure that its directors, officers, employees and agents (if any) shall not use, the proceeds of any Loan (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto. Section 6.03. Covenant of the Borrower Relating to Hedging. (a) Beginning on the date that is thirty days after the date of the Initial Loan, the Borrower shall at all times that the Loans Outstanding are greater than zero, (i) maintain one or more Hedge Transactions in form and substance satisfactory to the Administrative Agent, each
DB1/ 139452285.4144571789.3 94 of which may be in the form of an interest rate swap or an interest rate cap transaction and/or (ii) maintain amounts on deposit in the Hedge Reserve Account, in all cases to ensure that either (x) the Borrower is Fully Hedged or (y) if the Borrower is not Fully Hedged, an amount not less than the Hedge Reserve Account Required Amount is at all times on deposit in the Hedge Reserve Account; provided, that if on any date any Mandatory Hedging Condition exists, then within two (2) Business Days of such date the Borrower must be Fully Hedged, and the Borrower must remain Fully Hedged at all times thereafter while a Mandatory Hedging Condition exists, regardless of whether any amounts are then on deposit in the Hedge Reserve Account. If at any time the Hedge Reserve Account Required Amount is greater than zero, then (A) no later than three Business Days prior to each Funding Date and no later than three Business Days prior to each Payment Date the Borrower (or the initial Servicer on behalf of the Borrower) shall obtain a quote for the purchase price of an interest rate cap that allows it to recalculate the Hedge Reserve Account Required Amount on such date and (B) beginning on the related Funding Date or Payment Date, as applicable, such quote shall be used to determine the "Hedge Reserve Account Required Amount" until the next succeeding Funding Date or Payment Date, as applicable. It is acknowledged and agreed that any Hedge Transaction entered into by the Administrative Agent on behalf of the Borrower pursuant to Section 2.08(f) shall be deemed to have been entered into by the Borrower for purposes of Borrower's obligations under this Section 6.03(a). (b) Each Hedge Transaction shall be entered into with a Hedge Counterparty and be governed by a Hedging Agreement. Any Hedge Transaction that is in the form of an interest rate swap shall provide for the payment on each Payment Date to the Hedge Counterparty of an amount calculated by reference to the notional amount thereunder and a fixed rate of interest per annum and for the payment on each Payment Date to the Borrower of an amount calculated by reference to the same notional amount thereunder and a floating rate of interest (per annum equal to SOFR or a related rate), in each case for each day during the related Interest Period. Furthermore, (i) the notional amount of each such Hedge Transaction shall amortize monthly based on an assumed "ABS Rate" agreed upon by the Borrower and the Administrative Agent, (ii) the "Termination Events" and "Events of Default" that are applicable under each such Hedge Transaction shall have been approved by the Required Lenders to the Administrative Agent prior to the effectiveness of such Hedge Transaction, and (iii) each such Hedge Transaction shall have a final maturity date reflecting the expected repayment of the Receivables, taking into account anticipated losses and prepayments. If a Hedge Counterparty, other than a Hedge Counterparty as defined in clause (i) of the definition thereof, met the Short-Term Ratings Requirement and/or the Long-Term Ratings Requirement at the time the related Hedge Transaction was entered into and is downgraded or has any ratings withdrawn such that it no longer meets the Short-Term Ratings Requirement and/or the Long-Term Ratings Requirement, as applicable, then within thirty (30) days of the related downgrade or withdrawal either (A) the Borrower must enter into a new Hedging Agreement or (B) the Hedge Counterparty must post collateral pursuant to a credit support annex in an amount satisfactory to the Required Lenders. (c) If on any date any Hedge Transactions are in the form of interest rate swaps and the aggregate notional amount under all outstanding Hedge Transactions as of such date is either (x) less than 95% of the Loans Outstanding as of such date (after giving effect to any changes to the Loans Outstanding on such date) or (y) more than 105% of the Loans Outstanding as of such date (after giving effect to any changes to the Loans Outstanding on such date), then on the related "Adjustment Date" (which shall be either such date (if such date is a Payment Date) or DB1/ 139452285.4144571789.3 95 otherwise the next Business Day after such date that is a Payment Date), the Administrative Agent may direct the Borrower to enter into one or more Hedge Transactions, increase the notional amount of one or more Hedge Transactions, or decrease the notional amount of one or more Hedge Transactions, in all cases as necessary such that immediately thereafter the aggregate notional amount under all Hedge Transactions is neither (I) less than 95% of the Loans Outstanding as of the Adjustment Date (after giving effect to any changes to the Loans Outstanding on such date) nor (II) more than one 105% of the Loans Outstanding as of the Adjustment Date (after giving effect to any changes to the Loans Outstanding on such date). (d) The Borrower shall establish and thereafter maintain a segregated trust account in the name of the Borrower with respect to each Hedge Counterparty (each, a "Hedge Counterparty Collateral Account;) with a Qualified Institution in trust and for the benefit of the Lenders and the related Hedge Counterparty. In the event that pursuant to the terms of the applicable Hedging Agreement, the related Hedge Counterparty is required to deposit cash or securities as collateral to secure its obligations ("Posted Collateral"), the Borrower shall deposit all Posted Collateral received from the Hedge Counterparty into the Hedge Counterparty Collateral Account. All sums on deposit and securities held in any Hedge Counterparty Collateral Account shall be used only for the purposes set forth in the related credit support annex ("Credit Support Annex") to the Hedging Agreement. The only permitted withdrawal from or application of funds on deposit in, or otherwise to the credit of, a Hedge Counterparty Collateral Account shall be (i) for application to the obligations of the applicable Hedge Counterparty under the related Hedging Agreement in accordance with the terms of the related Credit Support Annex and (ii) to return collateral to the Hedge Counterparty when and as required by the Credit Support Annex. Amounts on deposit in each Hedge Counterparty Collateral Account shall be invested at the written direction of the related Hedge Counterparty, and all investment earnings actually received on amounts on deposit in a Hedge Counterparty Collateral Account or distributions on securities held as Posted Collateral shall be distributed to the related Hedge Counterparty in accordance with the terms of the related Credit Support Annex. Any amounts applied by the Borrower to the obligations of the Hedge Counterparty under the Hedging Agreement in accordance with the terms of the Credit Support Annex shall be deposited in the Collection Account and applied in accordance with Section 2.06 of this Agreement. The Borrower agrees to give the Hedge Counterparty prompt notice if it obtains knowledge that the Hedge Counterparty Collateral Account or any funds on deposit therein or otherwise to the credit of the Hedge Counterparty Collateral Account, shall or have become subject to any writ, order, judgment, warrant of attachment, execution or similar process. (e) Within 30 days after the occurrence of any event defined as an "Event of Default" or "Termination Event" in a Hedging Agreement, the Borrower shall cause such Hedge Counterparty to assign its obligations under the Hedging Agreement to a new Hedge Counterparty which satisfies the requirements set forth in the definition of "Hedge Counterparty.” (f) The Borrower shall deliver to the Administrative Agent a copy of all documents related to any Hedging Agreement, including confirmations, schedules and an aggregate notional amortization schedule.
DB1/ 139452285.4144571789.3 96 (g) All reasonably documented out-of-pocket costs and expenses (including reasonable legal fees and disbursements) incurred by the Administrative Agent and the Lenders incurred with each Hedge Transaction shall be paid by the Borrower. (h) As additional security hereunder, the Borrower has granted a security interest to the Administrative Agent all right, title and interest of the Borrower in the Hedge Collateral. The Borrower acknowledges that, as a result of that pledge, the Borrower may not, without the prior written Consent of the Administrative Agent, exercise any rights under any Hedging Agreement or Hedge Transaction, except for the Borrower's right under any Hedging Agreement to enter into Hedge Transactions in order to meet the Borrower's obligations hereunder. Nothing herein shall have the effect of releasing the Borrower from any of its obligations under any Hedging Agreement or any Hedge Transaction, nor be construed as requiring the consent of any Secured Party for the performance by the Borrower of any such obligations. Section 6.04. Affirmative Covenants of the Servicer. From the date hereof until the Facility Termination Date: (a) Compliance with Law. The Servicer will comply in all material respects with all Applicable Laws, including those with respect to the Contracts, the Receivables, the related Financed Vehicles, the Receivable Files or any part thereof and any collection efforts on behalf of the Receivables or related Financed Vehicles, except to the extent that the Servicer's failure to so comply would not have a Material Adverse Effect. (b) Preservation of Corporate Existence. The Servicer will preserve and maintain its existence, rights, franchises and privileges in its State of formation, and shall qualify and remain qualified in good standing as a foreign limited liability company in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification has had, or could reasonably be expected to have, a Material Adverse Effect. (c) Obligations and Compliance with Receivables. The Servicer will fulfill and comply with all obligations on the part of the Borrower to be fulfilled or complied with under or in connection with each Receivable and will do nothing to impair the rights of the Administrative Agent in, to and under the Collateral. The Servicer will comply with the terms and conditions of this Agreement relating to the obligation of the Borrower to remove Receivables from the Collateral pursuant to this Agreement and the obligation of the Seller, under the Purchase Agreement, to reacquire Receivables from the Borrower pursuant to the Purchase Agreement. (d) Performance and Compliance with Servicer Basic Documents. The initial Servicer will timely and fully perform and comply with all provisions, covenants and other promises required to be observed by it under the Servicer Basic Documents. (e) Keeping of Records and Books of Account. The Servicer will maintain and implement administrative and operating procedures (including an ability to recreate records evidencing Receivables, including the Receivable Files, in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records DB1/ 139452285.4144571789.3 97 and other information reasonably necessary or advisable for the collection of all Receivables, including the Receivable Files. (f) Preservation of Security Interest. The Servicer will execute and file such financing and continuation statements and any other documents that may be required by any law or regulation of any Governmental Authority to preserve and protect fully the security interest of the Administrative Agent in, to and under the Collateral; provided, that in the case of any Successor Servicer, the Successor Servicer shall execute and file such documents (as prepared by the Borrower or the Administrative Agent) only upon the written direction of the Borrower or the Administrative Agent and any action taken by the Successor Servicer pursuant to this clause shall be a reimbursable expense paid in accordance with the provisions of Section 2.06. The Servicer will defend the right, title and interest of the Borrower, the Secured Parties, the Administrative Agent and the Collateral Custodian in, to and under the Collateral against all claims of third parties claiming through or under the Servicer; provided, that in the case of any Successor Servicer, such action or defense shall only be taken at the written direction of the Borrower or the Administrative Agent and, so long as the need for such defense or action was not caused by the Successor Servicer's gross negligence, bad faith or willful misconduct, any action taken by the Successor Servicer pursuant to this clause shall be a reimbursable expense paid in accordance with the provisions of Section 2.06. (g) Credit and Collection Policy. The Servicer will comply in all material respects with the Credit and Collection Policy in regard to each Receivable. (h) Monthly Reports. Not later than each Reporting Date, the Servicer will provide to the Administrative Agent and, to the extent requested or required by a Hedge Counterparty, such Hedge Counterparty, a Monthly Report. (i) Termination Events and Servicer Termination Events. The Servicer will furnish to the Administrative Agent, the Backup Servicer and each Hedge Counterparty, within one Business Day after a Responsible Officer of the Servicer has actual knowledge thereof, notice of the occurrence of an Unmatured Termination Event, a Termination Event, an Unmatured Servicer Termination Event or a Servicer Termination Event. (j) Other. The Servicer will furnish to the Administrative Agent, from time to time, such other information, documents, records or reports respecting the Collateral or the condition or operations, financial or otherwise, of the Servicer as the Administrative Agent may from time to time reasonably request in order to protect the interests of the Administrative Agent or Lenders under or as contemplated by this Agreement. (k) Notice Regarding Collateral. The Servicer shall advise the Collateral Custodian (if other than DFC) and the Administrative Agent in writing in reasonable detail promptly following its actual knowledge or receipt of written notice of (i) any Lien (other than a Permitted Lien) asserted or claim made against any portion of the Collateral, (ii) the occurrence of any breach in any material respect by the Servicer of any of its representations, warranties and covenants contained herein relating to the Receivables
DB1/ 139452285.4144571789.3 98 and (iii) the occurrence of any other event which would reasonably be expected to have a material adverse effect on the security interest of the Administrative Agent on behalf of the Secured Parties in the Collateral or the collectability of all or a material portion of the Receivables. (l) Additional Information. The Servicer shall, within five Business Days of its receipt thereof, respond to reasonable written directions or written requests for information that the Borrower, the Administrative Agent, any Lender or the Collateral Custodian might have with respect to the administration of the Receivables. (m) Financial Statements. The initial Servicer shall provide to the Administrative Agent, each Agent and each Lender, the financial statements described in Section 6.01(l)(iii). (n) Accounting Policy. The initial Servicer will notify the Administrative Agent within five Business Days of its implementation of any material change in the its accounting policies. (o) Additional Covenants. The Servicer shall (i) promptly notify the Borrower, the Administrative Agent or the Collateral Custodian (if other than DFC) of the occurrence of any event which would require that the Borrower make or cause to be made any filings, reports, notices or applications or seek any consents or authorizations from any and all Governmental Authorities in accordance with the relevant UCC and any State vehicle license or registration authority as may be necessary or advisable to create, maintain and protect a first priority security interest of the Administrative Agent in, to and on the Financed Vehicles and a first priority security interest of the Administrative Agent in, to and on the Collateral, and (ii) take all reasonable action necessary to maximize the returns pursuant to the Insurance Policies. (p) Anti-Corruption Laws and Sanctions. The initial Servicer will remain subject to and enforce Lithia's policies and procedures designed to ensure compliance by Lithia and its Subsidiaries and each of their respective Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. Section 6.05. Negative Covenants of the Servicer. From the date hereof until the Facility Termination Date: (a) Lockboxes; Accounts. The Servicer shall not create or participate in the creation of, or solely in the case of the initial Servicer, permit to exist, any Liens (other than Permitted Liens) with respect to the Lockboxes, the Lockbox Account, the Collection Account, or the Hedge Reserve Account. The Servicer shall not enter into any "control agreement" (as defined in the relevant UCC) with respect to the Lockboxes, the Lockbox Account, the Collection Account, or the Hedge Reserve Account (other than the Control Agreement, with respect to the Collection Account and the Hedge Reserve Account). Without the prior written Consent of the Administrative Agent, the Servicer shall not move the Lockboxes, the Lockbox Account, the Collection Account, or the DB1/ 139452285.4144571789.3 99 Hedge Reserve Account to an institution other than the one at which it is held as of the Closing Date. (b) Change of Name or Location of Receivable Files. The initial Servicer shall not change its name or its state of organization, move the location of its principal place of business and chief executive office, and the offices where it keeps records concerning the Receivables (including the Receivable Files) from the location referred to in Section 13.02, unless the initial Servicer has given at least 30 days' prior written notice to the Administrative Agent and has taken all actions required under the UCC of each relevant jurisdiction in order to continue the first priority perfected security interest of the Administrative Agent, as agent for the Secured Parties, in the Collateral. (c) Credit and Collection Policy. The Servicer will not amend, modify, restate or replace, in whole or in part, in any material respect, the Credit and Collection Policy, without the prior written Consent of the Administrative Agent, which consent shall not be unreasonably withheld. If the Administrative Agent does not provide its written consent to, or rejection of, a proposed material amendment, modification, restatement or replacement of the Credit and Collection Policy within 10 Business Days of its receipt of notice thereof from the Servicer, then the Administrative Agent will be deemed to have consented to such amendment, modification, restatement or replacement. (d) Change in Payment Instructions to Obligors. The initial Servicer will not make any change in its instructions to the Obligors regarding payments to be made to the Borrower or the Servicer, except as otherwise permitted by the Credit and Collection Policy, or payments to be made to the Lockboxes or the Lockbox Account, unless the Administrative Agent has Consented to such change and has received duly executed documentation related thereto. (e) Extension or Amendment of Contracts. The Servicer will not, except as otherwise permitted in Section 7.03(c)(i), extend, amend or otherwise modify the terms of any Contract. (f) [Reserved]. (g) No Liens. Other than as permitted by this Agreement, the Servicer shall not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien (other than the Lien created by this Agreement) on all or any portion of the Collateral or any interest therein; and the Servicer shall defend the right, title and interest of the Administrative Agent on behalf of the Secured Parties in, to and under the Collateral against all claims of third parties claiming through or under the Servicer. (h) Release; Additional Covenants. The Servicer shall not (i) release any Financed Vehicle securing any Receivable from the security interest granted therein by such Receivable in whole or in part except (A) in the event of payment in full by the Obligor thereunder or upon transfer of such Financed Vehicle to a purchaser following repossession by the Servicer or (B) to an insurer in exchange for Insurance Proceeds paid
DB1/ 139452285.4144571789.3 100 by such insurer resulting from a claim for the total insured value of a Financed Vehicle, or (ii) take any action that would reasonably be expected to impair the rights of the Borrower, the Secured Parties or the Collateral Custodian in the Collateral. Notwithstanding any other provision of this Agreement, the Servicer may release any Financed Vehicle from the security interest created by the related Receivable when the Servicer deposits into the Collection Account an amount equal to the related Release Price or the entire amount of Insurance Proceeds, Recoveries and other Collections it has received or expects to receive with respect to such Receivable and such Financed Vehicle. (i) ERISA. The Servicer will not (A) engage or permit any ERISA Affiliate to engage in any prohibited transaction for which an exemption is not available or has not previously been obtained from the United States Department of Labor and which would result in a Material Adverse Effect, or (B) to the extent it would result in a Material Adverse Effect (i) permit to exist any accumulated funding deficiency, as defined in Section 302(a) of ERISA and Section 412(a) of the Code, or funding deficiency with respect to any Benefit Plan other than a Multiemployer Plan, (ii) fail to make any payments to a Multiemployer Plan that the Servicer or any such ERISA Affiliate may be required to make under the agreement relating to such Multiemployer Plan or any law pertaining thereto, (iii) terminate any Pension Plan so as to result in any liability or (iv) permit to exist any occurrence of any Reportable Event. (j) Anti-Corruption Laws and Sanctions. The initial Servicer will not request any Loan, and none of the initial Servicer, any Subsidiary or Affiliate or the Servicer shall use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Loan (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto. ARTICLE SEVEN ADMINISTRATION AND SERVICING OF RECEIVABLES Section 7.01. Designation of Servicing. The Administrative Agent and the Borrower, at the direction of and on behalf of the Administrative Agent, hereby appoint DFC, as Servicer to manage, collect and administer each of the Receivables and the other Collateral, and to enforce its respective rights and interests in and under the Collateral and DFC hereby accepts such appointment and agrees to perform the duties and responsibilities of the Servicer pursuant to the terms hereof. Section 7.02. Servicing Compensation. As compensation for its servicing activities hereunder and reimbursement for its expenses, the Servicer shall be entitled to receive the Servicing Fee to the extent of funds available therefor pursuant to Section 2.06(ii). The Servicer DB1/ 139452285.4144571789.3 101 shall further be entitled to retain as additional servicing compensation any and all Ancillary Fees from Obligors. Section 7.03. Duties of the Servicer. (a) Standard of Care. The Servicer agrees that its servicing and collection of the Receivables shall be carried out in accordance with the Credit and Collection Policy and Applicable Law and, to the extent more exacting, the degree of skill and attention that the Servicer exercises with respect to all comparable motor vehicle receivables that it services for itself or others. (b) Records Held in Trust. The Servicer shall hold in trust for the Secured Parties all records which evidence or relate to all or any part of the Collateral. The outgoing Servicer shall promptly deliver to any Successor Servicer, and the Successor Servicer shall hold in trust for the Borrower and the Secured Parties ,all records which evidence or relate to all or any part of the Collateral. (c) Collection Practices. (i) The Servicer shall be responsible for collection of payments called for under the terms and provisions of the Contracts related to the Receivables, as and when the same shall become due. The Servicer, in making collection of Receivable payments pursuant to this Agreement, shall be acting as agent for the Borrower, and shall be deemed to be holding such funds in trust on behalf of and as agent for the Borrower. The Servicer, consistent with the Credit and Collection Policy in effect at the time of acting, shall service, manage, administer and make collections on the Receivables on behalf of the Borrower and shall have full power and authority to do any and all things which it may deem necessary or desirable in connection therewith which are consistent with this Agreement. The Servicer may in its discretion grant extensions, rebates or adjustments on a Contract or amend or modify any Contract (including modifying the APR or the amount of the Scheduled Payments) as permitted by the Credit and Collection Policy then in effect. If any such modification occurs after the Termination Date, such Receivable must be repurchased by the initial Servicer pursuant to Section 5.04(b). The Servicer may in its discretion waive any late payment charge or any other fees, not including interest on the Principal Balance, that may be collected in the ordinary course of servicing a Receivable. The Servicer shall also enforce all rights of the Borrower under the Purchase Agreement (including each Purchase Agreement Supplement) including the right to require DFC to repurchase Receivables for breaches of representations and warranties made by DFC. (ii) Consistent with the Credit and Collection Policy, if any Receivable is past due or delinquent, in whole or in part, the Servicer will make reasonable and customary efforts to contact the Obligor. The Servicer shall continue its efforts to obtain payment from an Obligor who is past due or delinquent on a Receivable until the related Financed Vehicle has been repossessed and sold or the Servicer has determined that all amounts collectable on the Receivable have been
DB1/ 139452285.4144571789.3 102 collected. The Servicer shall use commercially reasonable efforts, consistent with the Credit and Collection Policy and the standard of care set forth in Section 7.03(a), to collect funds on a Defaulted Receivable and by the close of business on the second Business Day following receipt of such Collections to cause such Collections to be deposited into the Collection Account. (iii) In the event a Receivable becomes a Defaulted Receivable, the Servicer, itself or through the use of independent contractors or agents shall, consistent with the Credit and Collection Policy, repossess or otherwise convert the ownership of the Financed Vehicle securing any such Receivable. All costs and expenses incurred by the Servicer in connection with the repossession of the Financed Vehicles securing such Receivables shall be reimbursed to the Servicer (other than overhead), to the extent not previously recouped by the Servicer from Recoveries on the Payment Date immediately succeeding the Collection Period in which the Servicer delivered to the Administrative Agent an itemized statement of such costs and expenses. Notwithstanding the foregoing and consistent with the terms of this Agreement, the Servicer shall not be obligated to repossess or take any action with respect to a Defaulted Receivable if, in its reasonable judgment consistent with the Credit and Collection Policy, the Recoveries would not be increased. (iv) The Servicer shall deposit or cause to be deposited by electronic funds transfer all Collections to the Collection Account no later than two Business Days after the earlier of the deposit of such amounts into the Lockbox Account or the receipt of such amounts by or on behalf of the Servicer or the Borrower. Notwithstanding the foregoing, in no event shall any Successor Servicer be obligated to transfer funds in excess of the available funds in the Lockbox Account. (v) Notwithstanding the provisions of subclause (iv), at any time that (A) DFC is the Servicer, (B) Lithia has long-term unsecured debt ratings of not less than "BB+" by Standard & Poor's and not less than "Ba1" by Moody's, and (C) no Early Amortization Event, Termination Event, or Servicer Termination Event has occurred and is continuing, the Servicer may make a single monthly deposit of Collections to the Collection Account in immediately available funds, provided that such deposit is made not later than 3:00 p.m., New York City time, on the second Business Day preceding the Payment Date following the Collection Period with respect to which such Collections relate. (d) Collection; Recourse; Sales of Financed Vehicles. The Servicer, itself or through the use of independent contractors or agents, is authorized to follow practices consistent with the Credit and Collection Policy in its servicing of automotive receivables, which may include reasonable efforts to realize rights of recourse against any Dealer and selling a Financed Vehicle at public or private sale; provided, that the Servicer, itself or through the use of independent contractor or agents shall, in accordance with the Credit and Collection Policy, attempt to maximize the sales proceeds for each repossessed Financed Vehicle. The foregoing shall be subject to the provision that, in any case in which a Financed Vehicle shall have suffered damage, the Servicer shall not expend funds for the repair or the repossession of such Financed Vehicle unless the Servicer shall determine in its discretion that such repair or repossession DB1/ 139452285.4144571789.3 103 would increase the Recoveries in an amount greater than the cost of repairs. Notwithstanding the foregoing and consistent with the terms of this Agreement, the Servicer shall not be obligated to repossess or take any action with respect to a repossessed Financed Vehicle if, in its reasonable judgment and consistent with the Credit and Collection Policy, the Recoveries would not be increased. (e) Insurance. The Servicer shall: (i) on behalf of the Borrower, administer and enforce all rights and responsibilities of the Borrower, as owner of the Receivables, provided for in the Insurance Policies relating to the Receivables; (ii) administer the filings of claims under the Insurance Policies by filing the appropriate notices related to claims, including initial notices of loss, as well as claims with the respective carriers or their authorized agents all in accordance with the terms of the Insurance Policies; and use reasonable efforts to file such claims on a timely basis after obtaining knowledge of the events giving rise to such claims. (iii) utilize such notices, claim forms and claim procedures as are required by the respective insurance carriers; (iv) upon receipt of notice that an Obligor's physical damage insurance covering a Financed Vehicle related to a Receivable has lapsed or is otherwise not in force, notify such Obligor that each Obligor is required to maintain physical damage insurance covering a Financed Vehicle throughout the term of the related Receivable; (v) not be required to pay any premiums or, other than administering the filing of claims and performing reporting requirements specified in the Insurance Policies in connection with filing such claims, perform any obligations of the named insured under such Insurance Policies; and (vi) not be responsible to the Borrower, the Secured Parties or the Collateral Custodian for any (A) act or omission to act done in order to comply with the requirements or satisfy any provisions of the Insurance Policies or (B) act, absent willful misconduct or negligence, or omission to act done in compliance with this Agreement. In the case of any inconsistency between this Agreement and the terms of any Insurance Policy, the Servicer shall comply with the latter. (f) Obligation to Restore. In the event of any physical loss or damage to a Financed Vehicle related to a Receivable from any cause, whether through accidental means or otherwise, the Servicer shall have no obligation to cause the affected Financed Vehicle to be restored or repaired. However, the Servicer shall comply with the provisions of any insurance policy or policies directly or indirectly related to any physical loss or damage to a Financed Vehicle.
DB1/ 139452285.4144571789.3 104 (g) Security Interests. The Borrower hereby directs the Servicer to take or cause to be taken such steps as are necessary, to maintain perfection of the security interest created by each such Receivable in the related Financed Vehicle. The Servicer shall, at the direction of the Borrower, the Administrative Agent or the Collateral Custodian (if other than DFC), take any action necessary to preserve and protect the security interests of the Borrower, the Secured Parties and the Collateral Custodian in the Receivables, including any action specified in any Opinion of Counsel delivered to the Servicer. For the avoidance of doubt, any action taken by the Successor Servicer pursuant to this clause shall be a reimbursable expense paid in accordance with the provisions of Section 2.06. (h) Realization on Financed Vehicles. The Servicer represents, warrants and covenants that in the event that the Servicer realizes upon any Financed Vehicle, the methods utilized by the Servicer to realize upon such Receivable or otherwise enforce any provisions of such Receivable, will be conducted in accordance with the provisions of this Agreement, the Credit and Collection Policy and Applicable Law. (i) Recordkeeping. The Servicer shall: (i) maintain legible copies (in electronic or hard-copy form, in the discretion of the Servicer) or originals of all documents in its Receivable File with respect to each Receivable and the Financed Vehicle related thereto; and (ii) keep books and records, reasonably satisfactory to the Administrative Agent, pertaining to each Receivable and shall make periodic reports in accordance with this Agreement; such records may not be destroyed or otherwise disposed of except as provided herein and as allowed by Applicable Law, all documents, whether developed or originated by the Servicer or not, reasonably required to document or to properly administer any Receivable shall remain at all times the property of the Borrower and shall be held in trust by the Servicer; the Servicer shall not acquire any property rights with respect to such records, and shall not have the right to possession of them except as subject to the conditions stated in this Agreement; and the Servicer shall bear the entire cost of restoration in the event any Receivable File shall become damaged, lost or destroyed while in the Servicer's possession or control (j) Control of Electronic Contracts. The Servicer, in its capacity as Collateral Custodian, shall at all times maintain "control" (within the meaning of the UCC as then in effect in the relevant State) of the Electronic Contracts. Neither the Collateral Custodian nor the Borrower will communicate, or permit any custodian or vaulting agent thereof to communicate, an authoritative copy of any Electronic Contract to any Person other than the Electronic Vault Provider, the Servicer, the Borrower or the Administrative Agent. Section 7.04. Collection of Payments. DB1/ 139452285.4144571789.3 105 (a) Payments to the Lockboxes or the Lockbox Account. On or before the relevant Funding Date, the initial Servicer shall have instructed all related Obligors to make all payments in respect of the related Receivables directly to the Lockboxes or the Lockbox Account. (b) Establishment of Accounts. On or before the Closing Date, the Servicer shall cause the Collection Account and the Hedge Reserve Account to be established with the Account Bank. Each of the Collection Account and the Hedge Reserve Account shall at all times be subject to the Control Agreement. (c) Adjustments. If the Servicer (i) makes a deposit into the Collection Account in respect of a collection of a Receivable and such collection was received by the Servicer in the form of a check that is not honored for any reason, (ii) makes a mistake with respect to the amount of any collection and deposits an amount that is less than or more than the actual amount of such collection or (iii) is entitled to reimbursement of any Ancillary Fees in accordance with Section 7.02, the Servicer shall appropriately adjust the amount subsequently deposited into the Collection Account to reflect such dishonored check, mistake or reimbursement (as applicable). Any Scheduled Payment in respect of which a dishonored check is received shall be deemed not to have been paid. Section 7.05. Servicer Advances. For each Collection Period, if the Servicer determines that any Scheduled Payment (or portion thereof) that was due and payable pursuant to a Receivable during such Collection Period was not received prior to the last day of such Collection Period, the Servicer may, but is not obligated to, make an advance in an amount up to the amount of such delinquent Scheduled Payment (or portion thereof); in addition, if on any day there are not sufficient funds on deposit in the Collection Account to pay accrued Interest, the Servicer may, but is not obligated to, make an advance in the amount necessary to pay such Interest (each, a "Servicer Advance"), in each case if the Servicer reasonably believes that the Servicer Advance will be recovered from subsequent payments with respect to such Receivable. The Servicer will deposit any Servicer Advances into the Collection Account on or prior to 2:00 p.m., New York City time, on the related Payment Date, in immediately available funds. The Servicer shall be entitled to reimbursement of Servicer Advances from subsequent payments on or in respect of the Receivable with respect to which a Servicer Advance was made, including collections of any prepayments, amounts deposited in the Collection Account for the repurchase of the Receivable for a breach of a representation or warranty and, if the Servicer determines that a Servicer Advance will not be recovered from the Receivable to which it relates, from collections related to other Receivables. Notwithstanding anything to the contrary set forth herein, no Successor Servicer will be required to make any Servicer Advance. Section 7.06. Payment of Certain Expenses by Servicer. Except for such amounts and expenses for which the Servicer is entitled to reimbursement as provided herein, the Servicer will be required to pay all expenses incurred by it in connection with its activities under this Agreement, including the fees and disbursements of independent certified public accountants, Taxes imposed on the Servicer, expenses incurred in connection with payments and reports pursuant to this Agreement, fees and expenses of subservicers and agents of the Servicer, and all other fees and expenses not expressly stated under this Agreement for the account of the Borrower. The initial Servicer will be required to pay all reasonable fees and expenses owing to any bank or trust company in connection with the maintenance of the Collection Account. The
DB1/ 139452285.4144571789.3 106 initial Servicer shall be required to pay such expenses for its own account and shall not be entitled to any payment therefor other than the Servicing Fee. Section 7.07. Reports and Audit. (a) Monthly Reports. On each Reporting Date, the Servicer will provide to the Borrower, the Administrative Agent, the Backup Servicer and, to the extent requested or required by a Hedge Counterparty, such Hedge Counterparty, a Monthly Report. No such Monthly Report is required to have been executed by a Responsible Officer unless such Monthly Report is delivered on a Funding Date. (b) Quarterly Report. By the 15th of each February, May, August and November, commencing in November 2022, the Servicer will provide a Quarterly Report to the Administrative Agent and, to the extent requested or required by a Hedge Counterparty, such Hedge Counterparty. The Administrative Agent or a Hedge Counterparty may request such report more frequently if required by regulators or to comply with Applicable Law (including Basel II and Basel III). (c) Serviced Portfolio Information. Upon the reasonable request of the Administrative Agent, the initial Servicer shall provide, at its own expense, the Administrative Agent with information on the Serviced Portfolio regarding delinquencies, loss-to-liquidations, annualized losses and such other information as the Administrative Agent may request, but solely to the extent that such data is available to the Servicer without undue administrative burden or cost. (d) Audit. Once during each calendar year (commencing in 2023), at such times during normal business hours as are reasonably convenient to the Borrower or the Servicer, as the case may be, at the sole cost and expense of the Servicer (provided, that such costs and expenses are reasonable and customary for similar types of inspections in the industry and do not exceed $75,000 per annum) and upon reasonable request of the Administrative Agent and prior written notice to the Borrower or the Servicer, as the case may be, the Borrower or the Servicer, as the case may be, shall permit such Person or Persons as the Administrative Agent may designate (including the Backup Servicer or an independent accounting firm), with the approval of the Required Lenders, to conduct, on behalf of all of them, audits or to visit and inspect any of the properties of the Borrower or the Servicer where the Receivable Files are located, as the case may be, to examine the Receivable Files, internal controls and procedures maintained by the Borrower or Servicer, as the case may be, and take copies and extracts therefrom, and to discuss the affairs of the Borrower and the Servicer with their respective officers and employees (which employees, except after the occurrence and during the continuation of a Termination Event or Servicer Termination Event, shall be designated by the Borrower or the Servicer, as the case may be) and, upon written notice to the Borrower or the Servicer, as the case may be, independent accountants. The scope of any audit or inspection will be a scope agreed upon between the Servicer and the Administrative Agent. The Administrative Agent may request to take the foregoing actions more than once per calendar year if it has a commercially reasonable basis for requesting such actions, but any additional inspections and audits shall be at the expense of the Administrative Agent. After the occurrence and during the continuation of a Termination Event, Unmatured Termination Event, Unmatured Servicer Termination Event or Servicer Termination Event, the Administrative Agent, the Backup Servicer and their respective representatives shall DB1/ 139452285.4144571789.3 107 be permitted to take the foregoing actions without being subject to any limitation on the number of audits, visits or inspections that may be conducted during a calendar year and such audits, visits or inspections shall be at the sole cost and expense of the Servicer and such costs and expenses shall not be subject to a cap; provided, that the Administrative Agent and its representatives shall make reasonable efforts to coordinate, and provide a prior written notice of, such audits, visits and inspections. The Borrower or the Servicer, as the case may be, hereby authorizes such officers, employees and independent accountants to discuss with the Administrative Agent and its representatives, the affairs of the Borrower or the Servicer, as the case may be. The Servicer shall reimburse the Administrative Agent for all reasonable fees, costs and expenses incurred by or on behalf of the Secured Parties in connection with the foregoing actions promptly upon receipt of a written invoice therefor. Nothing in this subsection shall affect the obligation of the Servicer to observe any Applicable Law prohibiting the disclosure of information regarding the Obligors, and the failure of the Servicer to provide access to information as a result of such obligation shall not constitute a breach of this subsection. In the case of any Successor Servicer, any fees or expenses of the Servicer referenced in this Section shall be reimbursable in accordance with the provisions of Section 2.06. Section 7.08. Quarterly Statement as to Compliance. The initial Servicer shall deliver to the Administrative Agent, within 30 days after the end of each calendar quarter (beginning with the calendar quarter ending on December 31, 2022), an Officer's Certificate, stating that (a) a review of the activities of the Servicer during the preceding quarterly period (or since the Closing Date in the case of the first such Officer's Certificate) and of its performance under this Agreement has been made under such officer's supervision and (b) to the best of such officer's knowledge, based on such review, the Servicer has fulfilled all its obligations under this Agreement throughout such quarter (or such shorter period in the case of the first such Officer's Certificate), or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such officer and the nature and status thereof. Section 7.09. Backup Servicer; Entry into Backup Servicing Agreement. (a) If at any time the Performance Guarantor's long-term unsecured debt is no longer rated at least (i) "BB+" by Standard & Poor's and (ii) "Ba1" by Moody's, then within 60 Business Days the Servicer and the Borrower shall enter into a Backup Servicing Agreement. At all times that a Backup Servicing Agreement is in effect, (i) the Servicer shall perform all of its duties thereunder and (ii) the Borrower shall both perform all of its duties thereunder and shall cause the Servicer to consult with the Backup Servicer as may be necessary from time to time to perform or carry out the Backup Servicer's obligations thereunder, including the obligation, if requested in writing by the Administrative Agent, to succeed to the duties and obligations of the Servicer pursuant hereto. (b) The Backup Servicer shall be entitled to recover its fees and reimbursable costs as set forth in the Backup Servicing Agreement in accordance with Section 2.06 (but only to the extent that the same have not been paid by the Servicer). Section 7.10. Rights After Assumption of Duties by Backup Servicer or Designation of Successor Servicer; Liability. At any time following the assumption of the duties of the Servicer
DB1/ 139452285.4144571789.3 108 by the Backup Servicer, in its capacity as Successor Servicer, or the designation of a Successor Servicer (other than the Backup Servicer) pursuant to Section 7.14 as a result of the occurrence of a Servicer Termination Event: (a) The Servicer, on behalf of the Borrower, shall, at the Administrative Agent's request, (i) assemble all of the records relating to the Collateral, including all Receivable Files, and shall make the same available to the Administrative Agent, the Backup Servicer or any Successor Servicer at a place selected by the Administrative Agent, and (ii) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Collateral in a manner acceptable to the Administrative Agent, the Backup Servicer or such other Successor Servicer and shall, no later than two Business Days after receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to, or at the direction of, the Administrative Agent. (b) The Borrower hereby authorizes the Administrative Agent to take or cause to be taken any and all steps in the Borrower's name and on behalf of the Borrower necessary or desirable, in the determination of the Administrative Agent, to collect all amounts due under the Collateral, including endorsing the Borrower's name on checks and other instruments representing Collections and enforcing the Receivables. (c) The Successor Servicer shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Successor Servicer in such capacity herein. Such liability is limited to only those actions taken or omitted to be taken by the Successor Servicer and caused through its gross negligence, bad faith or willful misconduct. No implied covenants or obligations shall be read into this Agreement against the Successor Servicer and, in the absence of bad faith on its part, the Successor Servicer may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Successor Servicer and conforming to the requirements of this Agreement. (d) The Successor Servicer shall not be charged with actual or constructive knowledge of any Termination Event or Unmatured Termination Event unless a Responsible Officer of the Successor Servicer obtains actual knowledge of such event or the Successor Servicer receives written notice of such event from the Borrower, the Servicer or the Administrative Agent. (e) The Successor Servicer shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of its duties hereunder, or in the exercise of any of its rights or powers, if the repayment of such funds or adequate indemnity against such risks or liability is not reasonably assured to it in writing prior to the expenditure of such funds or the incurrence of financial liability. Section 7.11. Limitation on Liability of the Servicer and Others. Except as expressly provided herein, neither the Servicer nor any of its directors or officers or employees or agents shall be under any liability to the Secured Parties or any other Person for any action taken or for refraining from the taking of any action pursuant to this Agreement; provided, that this provision DB1/ 139452285.4144571789.3 109 shall not protect the Servicer or any such Person against any liability that would otherwise be imposed by reason of its willful misconduct, bad faith or negligence in the performance of duties or by reason of its willful misconduct hereunder. Section 7.12. The Servicer Not to Resign. The Servicer shall resign only with the prior written consent of the Administrative Agent (acting at the direction of the Required Lenders) or if the Servicer provides an Opinion of Counsel to the Administrative Agent to the effect that such Servicer is no longer permitted by law to act as Servicer hereunder. No termination or resignation of the Servicer hereunder shall be effective until a Successor Servicer, acceptable to the Administrative Agent has accepted its appointment as Successor Servicer hereunder and has agreed to be bound by the terms of this Agreement. Section 7.13. Servicer Termination Events. The occurrence and continuance of any of the following events shall constitute a "Servicer Termination Event" hereunder: (a) any failure by the Servicer to make any payment, transfer or deposit as required by it as required by any Basic Document, to which it is a party, which failure is not remedied within two Business Days; (b) any failure by the Servicer to deliver the Monthly Report by the Reporting Date, which failure is not remedied within one Business Day; (c) an Insolvency Event shall occur with respect to the Servicer; (d) any failure by the Servicer duly to observe or perform in any other covenant or agreement of the Servicer set forth in this Agreement or the other Basic Documents to which the Servicer is a party, which such failure materially and adversely affects the rights or interests of the Secured Parties and remains unremedied for 30 days after the earlier of knowledge thereof by the Servicer or after the date on which written notice of such failure shall have been given to the Servicer; (e) any representation, warranty or certification made by the Servicer in any Basic Document to which it is a party or in any certificate delivered pursuant to any Basic Document to which it is a party shall prove to have been false or otherwise incorrect in any respect when made, deemed made, or delivered, which such incorrect representation, warranty or certification materially and adversely affects the rights or interests of the Secured Parties and, if able to be cured, shall not have been cured for 30 days after the earlier of the date on which the Servicer first has knowledge thereof or the date on which written notice of such failure shall have been given to the Servicer; (f) DFC shall fail to pay any principal of or premium or interest on any Indebtedness having a principal amount of $5,000,000 or greater, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of DFC, or any other event, shall occur and shall continue after the
DB1/ 139452285.4144571789.3 110 applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; (g) any material provision of any Basic Document to which the Servicer is a party shall in whole or in part, cease to be in full force and effect or cease to be the legally valid, binding and enforceable obligation of the Servicer; (h) (i) one or more final nonappealable judgments shall be entered against the Servicer by one or more courts of competent jurisdiction assessing monetary damages, individually or in the aggregate over any calendar year, in excess of $1,000,000; (ii) one or more monetary settlements shall be entered into by the Servicer with any Person, individually or in the aggregate over any calendar year, in excess of $1,000,000; (iii) the IRS shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any assets of the Servicer and such Lien shall not have been released within 30 days; or (iv) the Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Servicer and such Lien shall not have been released within 30 days; (i) any Change in Control shall occur with respect to DFC; (j) a Termination Event shall have occurred and is continuing and shall not have been waived; (k) the Performance Guaranty shall cease to be in full force and effect (other than in accordance with its terms) or the Performance Guarantor shall assert that it is not bound by, or otherwise seek to terminate or disaffirm its obligations under, the Performance Guaranty, or shall otherwise claim that the Performance Guaranty is in any way invalid or unenforceable; (l) as of any Reporting Date, the arithmetic mean of the Serviced Portfolio Delinquency Ratio for the three previous Collection Periods is greater than 6.00%; (m) as of any Reporting Date, the arithmetic mean of the Serviced Portfolio Net Loss Ratio (Prime) for the three previous Collection Periods is greater than 6.00%; (n) as of any Reporting Date, the arithmetic mean of the Serviced Portfolio Net Loss Ratio (Non-Prime) for the three previous Collection Periods is greater than 8.50%; or (o) as of any Reporting Date, the arithmetic mean of the Serviced Portfolio Deferral Ratio for the three previous Collection Periods is greater than 2.00%. DB1/ 139452285.4144571789.3 111 Notwithstanding the foregoing, if any delay or failure of performance referred to above shall have been caused by a Force Majeure Event, the applicable grace period referred to above shall be extended for 10 Business Days (and if no grace period is stated above, the applicable grace period shall be 10 Business Days). Upon the occurrence of any of the foregoing, notwithstanding anything herein to the contrary, the Termination Date shall occur and, so long as any such Servicer Termination Event shall not have been remedied within any applicable cure period or waived in writing by the Required Lenders, the following shall immediately occur without further action: (i) the Revolving Period shall terminate and no further Loans will be made; (ii) the Administrative Agent (acting at the direction of or with the consent of the Required Lenders) by written notice to the Servicer (with a copy to each Agent, Lender, Hedge Counterparty, the Backup Servicer and Collateral Custodian) (each, a "Servicer Termination Notice"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement; (iii) the Administrative Agent may direct the Servicer to direct Collections to an account other than the Lockbox Account or the Collection Account; and (iv) the Administrative Agent may cause the Collateral Custodian to deliver, or cause to be delivered, the Receivable Files and the related accounts and records maintained by the Collateral Custodian to the Administrative Agent, or its agent or designee, at such place as the Administrative Agent may reasonably designate. Section 7.14. Appointment of Successor Servicer. (a) On and after the receipt by the Servicer of a Servicer Termination Notice, the Servicer shall continue to perform all servicing functions under this Agreement until the date specified in the Servicer Termination Notice or otherwise specified by the Administrative Agent in writing or, if no such date is specified in such Servicer Termination Notice or otherwise specified by the Administrative Agent, until a date mutually agreed upon by the Servicer, the Administrative Agent and the Backup Servicer. The Administrative Agent may, in its discretion, at the time described in the immediately preceding sentence, appoint the Backup Servicer as the Successor Servicer hereunder in accordance with this Agreement and the Backup Servicing Agreement., in which case the Backup Servicer shall assume all obligations of the Servicer hereunder, and all authority and power of the Servicer under this Agreement shall pass to and be vested in the Backup Servicer as Successor Servicer. All actions taken by the Administrative Agent pursuant to this Section shall be taken upon the request or approval of the Required Lenders. (b) In the event that there is no Backup Servicer at the time that the Servicer is terminated hereunder, or the Administrative Agent does not so appoint the Backup Servicer to succeed the Servicer as Successor Servicer hereunder, or the Backup Servicer is unable to assume such obligations on such date, the Administrative Agent shall as promptly as possible appoint a successor servicer (each such party so appointed or, as applicable, the Backup Servicer as successor to the Servicer, collectively, the "Successor Servicer"), and such Successor Servicer shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent. (c) Upon the termination and removal of the Servicer, the predecessor Servicer shall cooperate with the Successor Servicer in effecting the termination of the rights and
DB1/ 139452285.4144571789.3 112 responsibilities of the predecessor Servicer under this Agreement, including the transfer to the Successor Servicer for administration by it of all cash amounts that shall at the time be held by the predecessor Servicer for deposit, or shall thereafter be received, with respect to a Receivable, and the related accounts and records maintained by the Servicer. In the case that the Successor Servicer shall not agree to perform any duties or obligations of the Servicer hereunder, such duties or obligations may be performed or delegated by the Administrative Agent. (d) The Administrative Agent shall have the same rights of removal and termination for cause with respect to the Successor Servicer as with respect to DFC as the Servicer. (e) The Successor Servicer shall act as Servicer hereunder and shall, subject to the availability of sufficient funds in the Collection Account pursuant to Section 2.06 (up to the Servicing Fee), receive as compensation therefor the Servicing Fee pursuant to Section 2.06. (f) All reasonable out-of-pocket costs and expenses (including attorneys’ fees and disbursements) incurred in connection with the transferring of Receivables to the Successor Servicer, converting the Servicer's data to the computer system of the Successor Servicer, and amending this Agreement to reflect such succession as Servicer pursuant to this Section shall be paid by the predecessor Servicer upon presentation of reasonable transition expenses (the "Transition Expenses"). In no event shall the Successor Servicer be responsible for any Transition Expenses. If the predecessor Servicer fails to pay the Transition Expenses, the Transition Expenses shall be payable pursuant to Section 2.06. (g) Upon its appointment, the Successor Servicer shall be the successor in all respects to the Servicer with respect to servicing functions under this Agreement and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof, and all references in this Agreement to the Servicer shall be deemed to refer to the Successor Servicer; provided, that any Successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor becomes the Successor Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer; (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer; (iii) no obligation to pay any Taxes required to be paid by the Servicer; (iv) no obligation to pay any of the fees and expenses of any other party to this Agreement; (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including DFC; and (vi) no obligation to service the Receivables in accordance with the Credit and Collection Policy, but shall use its customary credit and collection policies for similar assets or those policies to be agreed to with the Administrative Agent. The indemnification obligations of the Successor Servicer are expressly limited to those instances of gross negligence, bad faith or willful misconduct of the Successor Servicer. Furthermore, to the extent that the Backup Servicing Agreement provides that any representations, warranties, covenants, or other agreements made hereunder by the Servicer, or obligations undertaken hereunder by the Servicer, shall not be made or performed, or shall be made or performed in an alternative manner, by the Backup Servicer in the event that the Backup Servicer becomes the Successor Servicer hereunder, the Borrower, the Administrative Agent, the Agents, the Collateral Custodian and the Lenders agree that the representations, warranties, covenants, other agreement and other obligations of the Servicer hereunder shall not DB1/ 139452285.4144571789.3 113 be applicable with respect to, or shall be modified with respect to, the Backup Servicer in its capacity as Successor Servicer and in the manner set forth in the Backup Servicing Agreement. (h) All authority and power granted to the Servicer under this Agreement shall automatically cease and terminate upon termination of this Agreement and shall pass to and be vested in the Borrower and the Borrower is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Borrower in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing of the Receivables. Section 7.15. Merger or Consolidation, Assumption of Obligations or Resignation of the Servicer. Any Person (a) into which the Servicer may be merged or consolidated, (b) which may result from any merger or consolidation to which the Servicer may be a party, (c) which may succeed to the properties and assets of the Servicer substantially as a whole or (d) which may succeed to the duties and obligations of the Servicer under this Agreement following the resignation of the Servicer, which Person executes an agreement of assumption acceptable to the Administrative Agent to perform every obligation of the Servicer hereunder, shall, with the prior written Consent of the Administrative Agent (which Consent shall not be unreasonably withheld), be the successor to the Servicer under this Agreement without further act on the part of any of the parties to this Agreement; provided, that: (i) prior written notice of such consolidation, merger, succession or resignation shall be delivered by the Servicer to the Administrative Agent and the Collateral Custodian (if other than DFC); (ii) immediately after giving effect to such consolidation, merger, succession or resignation, no Servicer Termination Event and no Unmatured Servicer Termination Event shall have occurred and is continuing; (iii) no Termination Event or Unmatured Termination Event would occur as result of such consolidation, merger, succession or resignation; (iv) the Servicer shall have delivered to the Borrower, the Administrative Agent, and the Collateral Custodian (if other than DFC) an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger, succession or resignation and such agreement of assumption comply with this Section and that all conditions precedent provided for in this Agreement and the other Basic Documents to which it is a party relating to such transaction have been complied with and, in the case of the Opinion of Counsel, that such agreement of assumption is legal, valid and binding with respect to the Servicer and such other matters as the Administrative Agent may reasonably request; and (v) the Servicer shall have delivered to the Borrower, the Administrative Agent, and the Collateral Custodian an Opinion of Counsel to the effect that either: (A) in the opinion of such counsel, all financing statements,
DB1/ 139452285.4144571789.3 114 continuation statements and amendments and notations on Certificates of Title thereto have been executed and filed that are necessary to preserve and protect the interest of the Borrower, the Secured Parties, the Administrative Agent and the Collateral Custodian in the Receivables and reciting the details of such filings or (B) no such action shall be necessary to preserve and protect such interest. Section 7.16. Responsibilities of the Borrower. Anything herein to the contrary notwithstanding, the Borrower shall (i) perform, or cause the Servicer to perform, all of its obligations under the Receivables to the same extent as if a security interest in such Receivables had not been granted hereunder, and the exercise by the Administrative Agent of its rights hereunder shall not relieve the Borrower from such obligations and (ii) pay when due, from funds available to the Borrower under Section 2.06(xi), any Taxes, including any sales taxes payable in connection with the Receivables and their creation and satisfaction. No Secured Party shall have any obligation or liability with respect to any Receivable, nor shall any of them be obligated to perform any of the obligations of the Borrower thereunder. Section 7.17. Custody of Receivable Files. To assure uniform quality in servicing the Receivables and to reduce administrative costs, the Administrative Agent, on behalf of the Secured Parties, hereby revocably appoints the Collateral Custodian as its agent, and the Collateral Custodian hereby accepts such appointment, to act as custodian, on behalf of the Secured Parties, of the Receivables and the Receivable Files. Section 7.18. Duties of Collateral Custodian. (a) Safekeeping. With respect to the documents constituting each Receivable File, the Collateral Custodian shall (i) act exclusively as the custodian for, and the agent and bailee (as such term is used in Section 9-313 of the UCC) of, the Secured Parties, (ii) hold all documents constituting such Receivable Files received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent. The Collateral Custodian shall maintain such accurate and complete accounts, records and computer systems pertaining to each Receivable File as shall enable the Servicer and the Borrower to comply with this Agreement. In performing its duties as custodian, the Collateral Custodian shall act with reasonable care, using that degree of skill and attention that it exercises with respect to the files of comparable motor vehicle installment sale contracts and installment loans that the Collateral Custodian holds for itself or others. The Collateral Custodian shall maintain continuous custody of the Receivable Files and such other documents received by it in secure, fire resistant facilities. Each Receivable shall be identified on the books and records of the Collateral Custodian in a manner that (i) indicates that the Receivable is held by the Collateral Custodian on behalf of the Secured Parties, and (ii) is otherwise necessary, as reasonably determined by the Collateral Custodian to comply with the terms of this Agreement. The Collateral Custodian shall report to the Administrative Agent any failure on its part to hold the Receivable Files and to maintain its accounts, records and computer systems as herein provided and take appropriate action to remedy any such failure. Nothing herein shall be deemed to require an initial review or any periodic review of the Receivable Files by the Secured Parties, and none of the Secured Parties DB1/ 139452285.4144571789.3 115 shall be liable or responsible for any action or failure to act by the Servicer in its capacity as custodian hereunder. (b) Maintenance of and Access to Records. The Collateral Custodian shall maintain each Receivable File at one of the locations specified in Schedule D or, if a material portion of the Receivables Files are to be held in any other location, the Collateral Custodian will provide 30 days' prior written notice thereof to the Administrative Agent, each Agent and each Lender. The Collateral Custodian may temporarily move individual Receivable Files or any portion thereof without notice as necessary to conduct collection and other servicing activities in accordance with its customary practices and procedures. The Collateral Custodian shall make available to the Secured Parties or their duly authorized representatives, attorneys or auditors a list of locations of the Receivable Files, the Receivable Files and the related accounts, records and computer systems maintained by the Servicer at such times during normal business hours as any Secured Party shall reasonably request. (c) Title to Receivables. The Receivable Files and the other documents delivered to the Collateral Custodian will be delivered from time to time to the Collateral Custodian for the sole purpose of holding for safekeeping. The Collateral Custodian shall not at any time have, or in any way attempt to assert, any interest in any Receivable held by it as custodian hereunder or in the related Receivable File, other than for collecting or enforcing such Receivable for the benefit of the Administrative Agent on behalf of the Secured Parties. (d) Instructions; Authority to Act. The Collateral Custodian shall be deemed to have received proper instructions with respect to the Receivable Files upon its receipt of written instructions signed by a Responsible Officer of the Administrative Agent (acting at the direction of the Required Lenders). (e) Indemnification by Collateral Custodian. The Collateral Custodian, in its capacity as custodian of the Receivable Files, shall indemnify and hold harmless the Secured Parties and each of their respective officers, directors, employees and agents from and against any and all loss, liability or expense that may be imposed on, incurred or asserted against the Secured Parties and each of their respective officers, directors, employees and agents as the result of any improper act or omission in any way relating to the maintenance and custody of the Receivable Files by the Collateral Custodian; provided, that the Collateral Custodian shall not be liable for any portion of any such loss, liability or expense resulting from the willful misfeasance, bad faith or gross negligence of any Secured Party. (f) Effective Period and Termination. The Collateral Custodian's appointment as custodian shall become effective as of the Closing Date and shall continue in full force and effect until terminated pursuant to this Section. If the initial Servicer is terminated following a Servicer Termination Event, the appointment of the Collateral Custodian as custodian hereunder may be terminated by the Administrative Agent. As soon as practicable after any such resignation or termination of such appointment, the Administrative Agent shall appoint a successor Collateral Custodian to be custodian of the Receivable Files and the accounts and records relating thereto and the Collateral Custodian shall, at its sole cost and expense, (i) deliver, or cause to be delivered, the Receivable Files and the related accounts and records maintained by the Collateral Custodian to such successor Collateral Custodian, or its agent or designee, as the case may be, at
DB1/ 139452285.4144571789.3 116 such place as such successor Collateral Custodian may reasonably designate and (ii) otherwise cooperate with the successor Collateral Custodian in affecting the termination of the rights and responsibilities of the predecessor Collateral Custodian under this Agreement. From and after the appointment of a successor Collateral Custodian, the predecessor Collateral Custodian shall continue to perform all custodial functions under this Agreement until the date specified by the Administrative Agent in writing or, if no such date is specified, until a date mutually agreed upon by the predecessor Collateral Custodian and the Administrative Agent. The Administrative Agent may, in its discretion, at the time described in immediately preceding sentence, appoint the Backup Servicer as the successor Collateral Custodian hereunder, and the Backup Servicer shall on such date assume all obligations of the Collateral Custodian hereunder, and all authority and power of the predecessor Collateral Custodian under this Agreement shall pass to and be vested in the Backup Servicer. The Administrative Agent shall have the same rights of removal and termination for cause with respect to the Backup Servicer or any other successor Collateral Custodian as with respect to DFC as the Collateral Custodian. (g) Inspection. The Collateral Custodian shall permit the Administrative Agent, the Servicer, the Backup Servicer and each Lender or their designee, upon reasonable prior notice and during the Servicer's regular business hours and at the reasonable expense of the Borrower, to periodically, at the discretion of the Administrative Agent (acting at the direction of the Required Lenders), the Servicer, the Backup Servicer and each Lender, conduct an audit of the Receivables and Receivable Files. Notwithstanding the foregoing, for so long as DFC is the Collateral Custodian, the right to conduct inspections of the Collateral Custodian shall be governed by the provisions of Section 7.07(d). (h) Delegation of Duties. (i) The Collateral Custodian may perform any of its duties through one or more custodial agents without the consent of any Person, except as set forth in clause (iii) below. No such delegation will relieve the Collateral Custodian of its responsibilities with respect to such duties and the Collateral Custodian will remain primarily responsible with respect to such duties, and the Collateral Custodian acknowledges that it remains primarily responsible for the safeguarding of all such Receivable Files and shall be liable for any acts or omissions of such custodial agents while acting on its behalf. The Collateral Custodian will be responsible for the fees of any such custodial agents. (ii) (A) With respect to the Electronic Contracts, the Collateral Custodian has engaged or may engage one or more an Electronic Vault Providers to hold such Electronic Contracts and (B) with respect to Tangible Contracts, the Collateral Custodian has engaged each of Record Xpress of California and Iron Mountain Information Management, LLC to act as a custodial agent to hold such signed documentation and other contents of the related Receivable File on its behalf. (iii) Upon termination of, or resignation by, any custodial agent or the appointment of any new custodial agent, the Collateral Custodian shall provide DB1/ 139452285.4144571789.3 117 written notice of such termination, resignation or appointment to the Administrative Agent. ARTICLE EIGHT TERMINATION EVENTS Section 8.01. Termination Events. (a) Each of the following events shall constitute a "Termination Event": (i) failure by the Borrower to (A) make any payment, transfer or deposit required by the terms of any Basic Document on the day such payment, transfer or deposit is required to be made (including any payment of Interest, Program Fees or Unused Commitment Fees on any Payment Date but excluding payments of any Loans Outstanding) and such failure continues unremedied for three Business Days, (ii) failure by the Borrower to deliver the Monthly Report on the Reporting Date, and such failure continues unremedied for two Business Days; (iii) failure of the Borrower to pay in full the Loans Outstanding by the Payment Date occurring in the 90th month following the expiration of the latest Commitment Termination Date or to pay any Monthly Principal Payment Amount when the same becomes due and payable pursuant to the terms of the Basic Documents and such failure continues unremedied for one Business Day; (iv) any failure by the Borrower, the Seller or the Performance Guarantor duly to observe or perform any other covenant or agreement of the Borrower, the Seller or the Performance Guarantor, respectively, set forth in this Agreement or the other Basic Documents to which the Borrower, the Seller or the Performance Guarantor, respectively, is a party, which failure materially and adversely affects the rights or interests of the Secured Parties and such failure remains unremedied for 30 days after the earlier of knowledge thereof by the Borrower, the Seller or the Performance Guarantor, as applicable, or after the date on which written notice of such failure shall have been given by the other parties or by the Administrative Agent to the Borrower, the Seller or the Performance Guarantor, as applicable; (v) any representation or warranty made by the Borrower, the Seller or the Performance Guarantor in any Basic Document to which it is a party or in any Funding Request, Monthly Report, Quarterly Report or other report, certificate or notice delivered pursuant to any Basic Document to which it is a party, shall prove to have been false or otherwise incorrect in any respect when made, deemed made or delivered, which such false or incorrect representation, warranty or information materially and adversely affects the rights or interests of the Secured Parties and, if able to be cured, shall not have been cured for 30 days after the earlier of the date on
DB1/ 139452285.4144571789.3 118 which the Borrower, the Seller, or the Performance Guarantor, as applicable, first has knowledge thereof or the date on which written notice of such failure shall have been given to the Borrower, the Seller, or the Performance Guarantor, as applicable; provided, that no Termination Event shall have occurred under this clause for breaches of representations or warranties that are cured by the repurchase of the related Receivable pursuant to Section 5.04 hereof; (vi) an Insolvency Event shall occur with respect to the Borrower, the Seller or the Performance Guarantor; (vii) the Administrative Agent shall fail for any reason to have a valid, first priority perfected security interest in all, or any material portion of, the Collateral, which failure shall not have been cured for ten days after the earlier of the date on which the Borrower or DFC first has knowledge thereof or the date on which written notice of such failure shall have been given to the Borrower or DFC; (viii) (A) one or more final nonappealable judgments shall be entered against the Borrower, the Seller or the Performance Guarantor by one or more courts of competent jurisdiction assessing monetary damages, individually or in the aggregate over any calendar year, in excess of $25,000, $1,000,000 or $1,000,000, respectively; or (B) one or more monetary settlements shall be entered into by the Borrower, the Seller or the Performance Guarantor with any Person, individually or in the aggregate over any calendar year, in excess of $25,000, $1,000,000 or $1,000,000 respectively; (C) the IRS shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any assets of the Borrower, the Seller or the Performance Guarantor and such Lien shall not have been released within 30 days; or (D) the Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower, the Seller or the Performance Guarantor and such Lien shall not have been released within 30 days; (ix) the Borrower, the Seller or the Performance Guarantor shall fail to pay any principal of or premium or interest on any Indebtedness having a principal amount of $0 or greater (with respect to the Borrower) or $10,000,000 or greater (with respect to the Seller or the Performance Guarantor), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or any other default under any agreement or instrument relating to any such Indebtedness of the Borrower, the Seller, or the Performance Guarantor, as applicable, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease DB1/ 139452285.4144571789.3 119 such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; (x) any Change in Control shall occur; (xi) at any time, the Loans Outstanding exceed the Net Eligible Pool Balance and continues unremedied for one Business Day; (xii) the Performance Guaranty shall cease to be in full force and effect (other than in accordance with its terms) or the Borrower, the Servicer or the Performance Guarantor shall assert that it is not bound by, or otherwise seek to terminate or disaffirm its obligations under, the Performance Guaranty, or shall otherwise claim that the Performance Guaranty is in any way invalid or unenforceable; (xiii) either (A) any Basic Document shall, in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower, the Seller, DFC (in its capacity as Servicer or Collateral Custodian) or the Performance Guarantor or (B) any of the Borrower, the Seller, DFC (in its capacity as Servicer or Collateral Custodian) or the Performance Guarantor shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability of any Basic Document; (xiv) any Servicer Termination Event (other than a Servicer Termination Event of the type specified in subsections (l), (m), (n) or (o) of Section 7.13) occurs; (xv) (A) failure on the part of the Borrower (x) to establish one or more Hedge Transactions in fulfillment of the requirements set forth in Section 6.03 within thirty days of the date on which the Initial Loan is made hereunder or (y) at any time thereafter to both (1) maintain one or more Hedge Transactions having notional amounts which, in the aggregate, equal at least 100% of the Loans Outstanding and (2) cause an amount that is at least equal to the Hedge Reserve Account Required Amount to be on deposit in the Hedge Reserve Account; (B) failure on the part of the Borrower within thirty days of receiving direction from the Administrative Agent pursuant to Section 6.03(c) to enter into one or more Hedge Transactions, increase the notional amount of one or more Hedge Transactions, or decrease the notional amount of one or more Hedge Transactions, in each case as directed by the Administrative Agent and in the manner set forth in such Section 6.03(c); or (C) any other failure on the part of the Borrower to maintain one or more Hedge Transactions in fulfillment of the requirements set forth in Section 6.03; (xvi) the Borrower shall fail to have an Independent Director as required by Section 6.01(o) at any time; (xvii) the representation of the Borrower set forth in Section 5.01(w) fails to be true and correct at any time;
DB1/ 139452285.4144571789.3 120 (xviii) as of any Reporting Date, if no Significant Take-out Date occurred during any of the three previous Collection Periods, the arithmetic mean of the Conduit Portfolio Net Loss Ratio (Prime) for such three previous Collection Periods is greater than 5.50%; (xix) as of any Reporting Date, if no Take-out Date occurred during any of the three previous Collection Periods, the arithmetic mean of the Conduit Portfolio Net Loss Ratio (Non-Prime) for such three previous Collection Periods is greater than 7.50%; and (xx) as of any Reporting Date, if no Take-out Date occurred during any of the three previous Collection Periods, the arithmetic mean of the Conduit Portfolio Delinquency Ratio for such three previous Collection Periods is greater than 5.50%; provided, that any Termination Event may be waived in a writing by the Consenting Lenders to the Borrower, with a copy to the Administrative Agent and the Servicer. Notwithstanding the foregoing, if any delay or failure referred to above shall have been caused by a Force Majeure Event, the applicable grace period referred to above shall be extended for 10 Business Days (and if no grace period is stated above, the applicable grace period shall be 10 Business Days). (b) Upon the occurrence of any Termination Event, the Administrative Agent shall, at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Termination Date to have occurred, without demand, protest or future notice of any kind, all of which are hereby expressly waived by the Borrower, and, upon such declaration, all Loans and all other amounts owing by the Borrower under this Agreement shall be accelerated and become immediately due and payable; provided, that in the event that a Termination Event described in Section 8.01(a)(vi) has occurred, the Termination Date shall automatically occur, without demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. (c) Upon the automatic occurrence or declaration of the occurrence of the Termination Date in accordance with Section 8.01(b), the following shall immediately occur without further action: (i) the Revolving Period shall terminate and no further Loans will be made, (ii) Interest on all Loans Outstanding will be calculated using the Default Rate, and (iii) no further Program Fees will accrue. Section 8.02. Actions Upon Declaration of the Occurrence of the Termination Date. Upon the automatic occurrence or declaration of the occurrence of the Termination Date following the occurrence of a Termination Event in accordance with Section 8.01(b), the Administrative Agent may, or at the direction of the Required Lenders, shall, exercise in respect of the Collateral the following remedial actions, in addition to any and all other rights and remedies otherwise available to it, including rights available hereunder and all of the rights and DB1/ 139452285.4144571789.3 121 remedies of a secured party upon default under the UCC (such rights and remedies to be cumulative and nonexclusive): (a) The Administrative Agent may, without notice to the Borrower except as required by law and at any time or from time to time, charge, set-off and otherwise apply all or any part of the Loans Outstanding, any Interest accrued thereon and/or any other amount due and owing to any Secured Party against amounts payable to the Borrower from the Collection Account or any part of such account in accordance with the priorities required by Section 2.06. (b) The Administrative Agent may take any action permitted under the Basic Documents, including, without limitation, delivering any shifting control or similar notice under the Control Agreement. (c) Consistent with the rights and remedies of a secured party under the UCC (and except as otherwise required by the UCC), the Administrative Agent may, on behalf of itself and the Lenders and without notice except as specified below, solicit and accept bids for and sell the Collateral or any part of the Collateral in one or more parcels at public or private sale, at any exchange, broker's board or at the Administrative Agent's offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Administrative Agent may deem commercially reasonable. The Borrower agrees that, to the extent notice of sale shall be required by law, at least ten Business Days' notice to the Borrower of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Administrative Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed for such sale, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Every such sale shall operate to divest all right, title, interest, claim and demand whatsoever of the Borrower in and to the Collateral so sold, and shall be a perpetual bar, both at law and in equity, against the Borrower or any Person claiming the Collateral sold through the Borrower and its successors or assigns. (d) Upon the completion of any sale under Section 8.02(c), the Borrower will deliver or cause to be delivered all of the Collateral sold to the purchaser or purchasers at such sale on the date of sale, or within a reasonable time thereafter if it shall be impractical to make immediate delivery, but in any event full title and right of possession to such property shall pass to such purchaser or purchasers forthwith upon the completion of such sale. Nevertheless, if so requested by the Administrative Agent or by any purchaser, the Borrower shall confirm any such sale or transfer by executing and delivering to such purchaser all proper instruments of conveyance and transfer and release as may be designated in any such request. (e) At any sale under Section 8.02(c), DFC, the Performance Guarantor, the Administrative Agent or any Secured Party may bid for and purchase the property offered for sale and, upon compliance with the terms of sale, may hold, retain and dispose of such property without further accountability therefor. Any Secured Party purchasing
DB1/ 139452285.4144571789.3 122 property at a sale under Section 8.02(c) may set off the purchase price of such property against amounts owing to such Secured Party in full payment of such purchase price. (f) The Administrative Agent may direct the Servicer to direct Collections to an account other than the Lockbox Account or the Collection Account. (g) The Administrative Agent may exercise at the Borrower's sole expense any and all rights and remedies of the Borrower under or in connection with the Collateral. Section 8.03. Exercise of Remedies. No failure or delay on the part of the Administrative Agent to exercise any right, power or privilege under this Agreement and no course of dealing between the Borrower, on the one hand, and the Administrative Agent, any Agent or the Secured Parties, on the other hand, shall operate as a waiver of such right, power or privilege, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. The rights and remedies expressly provided in this Agreement are cumulative and not exclusive of any rights or remedies which the Secured Parties would otherwise have pursuant to law or equity. No notice to or demand on any party in any case shall entitle such party to any other or further notice or demand in similar or other circumstances, or constitute a waiver of the right of the other party to any other or further action in any circumstances without notice or demand. Section 8.04. Waiver of Certain Laws. The Borrower agrees, to the full extent that it may lawfully so agree, that neither it nor anyone claiming through or under it will set up, claim or seek to take advantage of any appraisal, valuation, stay, extension or redemption law now or hereafter in force in any locality where any Collateral may be situated in order to prevent, hinder or delay the enforcement or foreclosure of this Agreement, or the absolute sale of any of the Collateral or any part thereof, or the final and absolute putting into possession thereof, immediately after such sale, of the purchasers thereof, and the Borrower, for itself and all who may at any time claim through or under it, hereby waives, to the full extent that it may be lawful so to do, the benefit of all such laws, and any and all right to have any of the properties or assets constituting the Collateral marshaled upon any such sale, and agrees that the Administrative Agent or any court having jurisdiction to foreclose the security interests granted in this Agreement may sell the Collateral as an entirety or such parcels as the Administrative Agent or such court may determine. Section 8.05. Power of Attorney. The Borrower hereby irrevocably appoints the Administrative Agent its true and lawful attorney (with full power of substitution) in its name, place and stead and at its expense, in connection with the enforcement of the rights and remedies provided for in this Article, including: (i) to give any necessary receipts or acquittance for amounts collected or received hereunder, (ii) to make all necessary transfers of the Collateral in connection with any sale or other disposition made pursuant hereto, (iii) to execute and deliver for value all necessary or appropriate bills of sale, assignments and other instruments in connection with any such sale or other disposition, the Borrower thereby ratifying and confirming all that such attorney (or any substitute) shall lawfully do hereunder and pursuant hereto and (iv) to sign any agreements, orders or other documents in connection with or pursuant DB1/ 139452285.4144571789.3 123 to any Basic Document. In furtherance of the foregoing, the Borrower shall deliver to the Administrative Agent an executed power of attorney in the form of Exhibit D on the Closing Date. If so requested by the Administrative Agent, directly or through a purchaser of any of the Collateral, the Borrower shall ratify and confirm any such sale or other disposition by executing and delivering to the Administrative Agent or such purchaser all proper bills of sale, assignments, releases and other instruments as may be designated in any such request. ARTICLE NINE INDEMNIFICATION Section 9.01. Indemnities by the Borrower. Without limiting any other rights which the Administrative Agent, each Agent, each Lender or its assignee, the Backup Servicer (including in its capacity as Successor Servicer), the Account Bank, the Collateral Custodian (if not DFC), the Servicer (if not DFC) or any of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, each Agent, each Secured Party, the Backup Servicer, including if it is then acting as Successor Servicer, the Account Bank, the Collateral Custodian (if not DFC) and each of their respective Affiliates and officers, directors, employees and agents thereof (collectively, the "Indemnified Parties") from and against any and all reasonable and documented fees, damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees, court costs, and expenses (collectively, the "Indemnified Amounts") awarded against or incurred by, any such Indemnified Party arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from the gross negligence, bad faith, or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from: (i) any Receivable represented by the Borrower to be an Eligible Receivable which is not at the applicable time an Eligible Receivable; (ii) reliance on any representation or warranty made or deemed made by the Borrower or any of its respective officers under or in connection with this Agreement or any other Basic Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered; (iii) the failure by the Borrower to comply with any term, provision or covenant contained in this Agreement or any other Basic Document, or a failure by the Borrower to comply with any Applicable Law with respect to any Contract or Receivable, the related Financed Vehicle or the non-conformity of any Contract with any such Applicable Law; (iv) the failure to vest and maintain vested in the Administrative Agent a valid and enforceable security interest in any or all of the Collateral or a valid and enforceable first priority perfected security interest in any or all of the Collateral;
DB1/ 139452285.4144571789.3 124 (v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to the Collateral, whether at the time of a Loan or at any subsequent time and as required by the Basic Documents; (vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the related Obligor) of an Obligor to the payment of any Receivable comprising a portion of the Collateral which is, or is purported to be, an Eligible Receivable (including a defense based on the Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale or financing of the Financed Vehicle related to such Receivable (other than as a result of the bankruptcy or insolvency of the related Obligor); (vii) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with any Contract or the related Financed Vehicle; (viii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including sales, excise or personal property taxes payable in connection with the Collateral; (ix) any repayment or disgorgement by any Agent or a Secured Party of any amount previously distributed in reduction of the Loans Outstanding or payment of Interest, any other Obligation or any other amount due hereunder or under any Hedging Agreement, in each case which amount such entity believes in good faith is required to be repaid or disgorged; (x) any litigation, proceeding or investigation relating to arising from the Basic Documents, the transactions contemplated hereby and thereby, the use of proceeds of the Loans or any other investigation, litigation or proceeding relating to the Borrower in which any Indemnified Party becomes involved as a result of any of the transactions contemplated by the Basic Documents; (xi) the use of the proceeds of any Loan; (xii) any failure by the Borrower to give reasonably equivalent value to the Seller in consideration for the transfer by the Seller to the Borrower of any of the Receivables and the related Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including any provision of the Bankruptcy Code; (xiii) the commingling by the Borrower of any Collections with other funds; (xiv) any claim brought by any Person arising from any activity by the Borrower in servicing, administering or collecting any Receivable; DB1/ 139452285.4144571789.3 125 (xv) the failure of the Lockbox Bank to remit any amounts or items of payment held in the Lockbox Account pursuant to the instructions of the Administrative Agent given in accordance with this Agreement or the other Basic Documents, whether by reason or the exercise of setoff rights or otherwise; (xvi) all reasonable and documented fees, costs and expenses (including reasonable legal fees and expenses) incurred by any Lender or the Administrative Agent in connection with any amendments or supplements or waivers or consents (including review and analysis thereof) with respect to the Basic Documents or any other document or instrument delivered pursuant hereto or thereto (whether or not the same is finally agreed to) if the same is requested by the Borrower, or is required or necessary under the Basic Documents; or (xvii) any and all Sanctions against, and all reasonable costs and expenses (including attorneys’ fees and disbursements) incurred in connection with the defense thereof by the Administrative Agent or any Lender or Agent as a result of funding all or any portion of the Loans or the acceptance of payments or of Collateral due under the Basic Documents. Notwithstanding the foregoing, in no event shall any Indemnified Party be indemnified against any Indemnified Amounts to the extent such Indemnified Amounts are or result from (A) Excluded Taxes, (B) non-payment by any Obligor of any amount that is due and payable under the related Receivable, or (C) any loss in value of any Financed Vehicle or Permitted Investments for reasons that are not caused by the Borrower. For the avoidance of doubt, the terms of this Section 9.01 shall not apply to any indemnification relating to Taxes, which will be governed by the terms of Section 2.11. Any amounts subject to the indemnification provisions of this Section shall be paid by the Borrower solely pursuant to the provisions of Section 2.06 in the order and priority set forth therein not later than the first Payment Date following written demand therefor. Section 9.02. Indemnities by the Servicer. Without limiting any other rights which the Administrative Agent, each Agent, each Lender or its assignee, the Backup Servicer, the Account Bank, the Collateral Custodian (if not DFC) or any of their respective Affiliates may have hereunder or under Applicable Law, the initial Servicer hereby agrees to indemnify the Indemnified Parties from and against any and all Indemnified Amounts awarded against or incurred by, any such Indemnified Party arising out of or as a result of the failure of the initial Servicer to perform its obligations under this Agreement, excluding, however, Indemnified Amounts to the extent resulting from the gross negligence, bad faith or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the initial Servicer shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from: (i) reliance on any representation or warranty made or deemed made by the Servicer or any of its respective officers under or in connection with this Agreement or any other Basic Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
DB1/ 139452285.4144571789.3 126 (ii) the failure by the Servicer to comply with any term, provision or covenant contained in this Agreement or any other Basic Document to which it is a party or a failure by the Servicer to comply with any term, provision or covenant contained in any agreement executed in connection with this Agreement or any other Basic Document, or with any Applicable Law with respect to any Contract or Receivable, the related Financed Vehicle or the non-conformity of any Contract with any such Applicable Law and any failure by DFC to perform its respective duties under the Contracts and Receivables included as a part of the Collateral; (iii) for so long as DFC is the Servicer, the failure to vest and maintain vested in the Administrative Agent a valid and enforceable security interest in any or all of the Collateral or a valid and enforceable first priority perfected security interest in any or all of the Collateral; (iv) for so long as DFC is the Servicer, the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to the Collateral, whether at the time of a Loan or at any subsequent time and as required by the Basic Documents; (v) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the related Obligor) of an Obligor to the payment of any Receivable comprising a portion of the Collateral which is, or is purported to be, an Eligible Receivable (including a defense based on the Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale or financing of the Financed Vehicle related to such Receivable (other than as a result of the bankruptcy or insolvency of the related Obligor); (vi) any failure by the Servicer to perform its duties or obligations in accordance with the provisions of this Agreement; (vii) the failure by the Servicer to pay when due any Taxes for which the Servicer is liable, including sales, excise or personal property taxes payable in connection with the Collateral; (viii) any litigation, proceeding or investigation relating to arising from the obligation of the Servicer under the Basic Documents to which it is a party, the transactions contemplated hereby and thereby, or any other investigation, litigation or proceeding relating to the Servicer in which any Indemnified Party becomes involved as a result of any of the transactions contemplated by such Basic Documents; (ix) any claim brought by any Person arising from any activity by the Servicer in servicing, administering or collecting any Receivable; DB1/ 139452285.4144571789.3 127 (x) to the extent caused by actions or inactions of the Servicer, the failure of the Lockbox Bank to remit any amounts or items of payment held in the Lockbox Account pursuant to the instructions of the Administrative Agent given in accordance with this Agreement or the other Basic Documents, whether by reason or the exercise of setoff rights or otherwise; and (xi) all reasonable and documented fees, costs and expenses (including reasonable legal fees and expenses) incurred by any Lender or the Administrative Agent in connection with any amendments or supplements or waivers or consents (including review and analysis thereof) with respect to the Basic Documents or any other document or instrument delivered pursuant hereto or thereto (whether or not the same is finally agreed to) if the same is requested by the Servicer. Notwithstanding the foregoing, in no event shall any Indemnified Party be indemnified against any Indemnified Amounts to the extent such Indemnified Amounts are or result from (A) Excluded Taxes, (B) non-payment by any Obligor of any amount that is due and payable under the related Receivable, or (C) any loss in value of any Financed Vehicle or Permitted Investments for reasons that are not caused by the Servicer. Any amounts subject to the indemnification provisions of this Section shall be paid by the Servicer to the related Indemnified Party within 20 Business Days following written demand therefor. Section 9.03. Indemnities by the Backup Servicer in its Capacity as the Successor Servicer. Notwithstanding any indemnification obligations that the Backup Servicer may assume in a Backup Servicing Agreement, in no event shall the Backup Servicer, in its capacity as Successor Servicer, have (a) any liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the Backup Servicer becomes the Successor Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer or (b) any liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including DFC. ARTICLE TEN THE ADMINISTRATIVE AGENT AND THE AGENTS Section 10.01. Authorization and Action. (a) Each Lender and each Secured Party (other than the Administrative Agent) hereby designates and appoints Mizuho Bank (and Mizuho Bank accepts such designation and appointment) as Administrative Agent hereunder, and authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of this Agreement together with such powers as are reasonably incidental thereto. In performing its functions and duties hereunder, the Administrative Agent shall act solely as agent for the Secured Parties and does not assume nor shall be deemed to have assumed any obligation or relationship of trust or agency with or for the Borrower or any of its successors or assigns. The Administrative Agent shall not be required to
DB1/ 139452285.4144571789.3 128 take any action which exposes it to personal liability or which is contrary to this Agreement or Applicable Law. The appointment and authority of the Administrative Agent hereunder shall terminate at the indefeasible payment in full of the Aggregate Unpaids. (b) Each Lender hereby irrevocably designates and appoints the related Agent as the agent of such Lender under this Agreement, and each such Lender irrevocably authorizes such Agent, as the agent for such Lender, to take such action on its behalf under the provisions of the Basic Documents and to exercise such powers and perform such duties thereunder as are expressly delegated to such Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. (c) Notwithstanding any provision to the contrary elsewhere in this Agreement, neither the Administrative Agent nor any Agent (the Administrative Agent and each Agent being referred to in this Article as an "Agent") shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against the Administrative Agent or any Agent. (d) The Administrative Agent shall promptly distribute to each Agent (if such Agent is not otherwise required to receive such notice), who shall promptly distribute to each related Lender all notices, requests for consent and other information received by the Administrative Agent under this Agreement. Section 10.02. Delegation of Duties. Each Agent may execute any of its duties under any of the Basic Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. Section 10.03. Exculpatory Provisions. Neither any Agent nor any of its directors, officers, agents or employees shall be (i) liable for any action lawfully taken or omitted to be taken by it or them under or in connection with this Agreement (except for its, their or such Person's own gross negligence or willful misconduct or, in the case of any Agent, the breach of its obligations expressly set forth in this Agreement) or (ii) responsible in any manner to any of the Secured Parties for any recitals, statements, representations or warranties made by the Borrower, the Servicer, DFC, the Backup Servicer or the Collateral Custodian contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received under or in connection with, this Agreement or any other Basic Document to which it is a party for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document furnished in connection herewith, or for any failure of the Borrower to perform its obligations hereunder, or for the satisfaction of any condition specified in Article Four. No Agent shall be under any obligation to any Secured Party to ascertain or to inquire as to the observance or performance of any of the agreements or covenants contained in, or conditions of, this Agreement, or to inspect the properties, books or records of the Borrower. No Agent shall be deemed to have knowledge of any Termination Event, Servicer DB1/ 139452285.4144571789.3 129 Termination Event, Step-up Event , Stop-Funding Event, or Early Amortization Event unless it has received written notice thereof from the Borrower, the Servicer or a Secured Party. Section 10.04. Reliance. (a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, written statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Agent), independent accountants and other experts selected by such Agent. (b) Each Agent shall be fully justified in failing or refusing to take any action under any of the Basic Documents unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by, in the case of (i) the Administrative Agent, the Lenders or (ii) an Agent, the Lenders or by the Lenders in its Lender Group, against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. (c) The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under any of the Basic Documents in accordance with a request of the Required Lenders (or their Agents), and such request and any action taken or failure to act pursuant thereto shall be binding upon all present and future Lenders. (d) Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under any of the Basic Documents in accordance with a request of (i) Owners in its Lender Group having Invested Percentages aggregating greater than 50% of the aggregate Invested Percentages of all Owners in such Lender Group and (ii) Lenders in its Lender Group having Commitments aggregating greater than 50% of the aggregate Commitments of all Lenders in such Lender Group, and such request and any action taken or failure to act pursuant thereto shall be binding upon all present and future Lenders in such Lender Group. (e) No Agent shall be deemed to have knowledge or notice of the occurrence of any breach of this Agreement or the occurrence of any Servicer Termination Event, Early Amortization Event, Step-up Event, Stop-Funding Event, or Termination Event unless it has received notice from the Borrower, the Servicer, the Backup Servicer or any Lender, referring to this Agreement and describing such event. In the event that the Administrative Agent receives such a notice, it shall promptly give notice thereof to each Agent, and in the event any Agent receives such a notice, it shall promptly give notice thereof to the Lenders in its Lender Group. The Administrative Agent shall take such action with respect to such event as shall be reasonably directed by the Required Lenders, and each Agent shall take such action with respect to such event as shall be reasonably directed by (i) all Owners in its Lender Group and (ii) all Lenders in its Lender Group; provided, that unless and until such Agent shall have received such directions, such Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such event as it shall deem advisable in the best interests of the Lenders or of the Lenders in its Lender Group, as applicable.
DB1/ 139452285.4144571789.3 130 Section 10.05. Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that no Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of the Borrower, the Servicer, DFC, the Backup Servicer or the Collateral Custodian shall be deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender represents to each Agent that it has, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, financial and other condition and creditworthiness of the Borrower, the Servicer, DFC, the Backup Servicer or the Collateral Custodian and the Receivables and made its own decision to purchase its interest in the Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own analysis, appraisals and decisions in taking or not taking action under any of the Basic Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Borrower, the Servicer, DFC, the Backup Servicer or the Collateral Custodian and the Receivables. Except for notices, reports and other documents received by an Agent hereunder, no Agent shall have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Borrower, the Servicer, DFC, the Backup Servicer or the Collateral Custodian or the Receivables which may come into the possession of such Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates. Section 10.06. Indemnification. The Lenders (i) agree to indemnify the Administrative Agent in its capacity as such (without limiting the obligation (if any) of the Borrower or the Servicer to reimburse the Administrative Agent for any such amounts), ratably according to their respective Commitments (or, if the Commitments have terminated, Invested Percentages) and (ii) in each Lender Group agree to indemnify the Agent for such Lender Group in its capacity as such (without limiting the obligation (if any) of the Borrower and the Servicer to reimburse such Agent for any such amounts), ratably according to their respective Commitments (or, if the Commitments have terminated, Invested Percentages), in each case from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including at any time following the payment of the obligations under this Agreement, including the Loans Outstanding) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of this Agreement, or any documents contemplated by or referred to herein or the transactions contemplated hereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; provided, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of an Agent resulting from its own gross negligence or willful misconduct. The provisions of this Section shall survive the payment of the obligations under this Agreement, including the Loans Outstanding, the termination of this Agreement, and any resignation or removal of the applicable Agent. DB1/ 139452285.4144571789.3 131 Section 10.07. Agents in their Individual Capacity. Each Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Borrower and any other party to a Basic Document as though it were not an Agent hereunder. In addition, the Lenders acknowledge that one or more Persons which are Agents may act (i) as administrator, sponsor or agent for one or more Lenders and in such capacity act and may continue to act on behalf of each such Lender in connection with its business, and (ii) as the agent for certain financial institutions under the liquidity and credit enhancement agreements relating to this Agreement to which any one or more Lenders is party and in various other capacities relating to the business of any such Lender under various agreements. Any such Person, in its capacity as Agent, shall not, by virtue of its acting in any such other capacities, be deemed to have duties or responsibilities hereunder or be held to a standard of care in connection with the performance of its duties as an Agent other than as expressly provided in this Agreement. Any Person which is an Agent may act as an Agent without regard to and without additional duties or liabilities arising from its role as such administrator or agent or arising from its acting in any such other capacity. None of the provisions to this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. Section 10.08. Successor Administrative Agent. The Administrative Agent may assign its rights and obligations hereunder with the consent of the Required Lenders and upon ten days' notice to the Lenders and the Borrower. The Administrative Agent may resign as Administrative Agent upon ten days' notice to the Lenders, each Agent and the Borrower with such resignation becoming effective upon a successor agent succeeding to the rights, powers and duties of the Administrative Agent pursuant to this Section. If the Administrative Agent shall resign as Administrative Agent under this Agreement, then the Required Lenders shall appoint a successor administrative agent. Any successor administrative agent shall succeed to the rights, powers and duties of resigning Administrative Agent, and the term "Administrative Agent" shall mean such successor administrative agent effective upon its appointment, and the former Administrative Agent's rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement. After the retiring Administrative Agent's resignation as Administrative Agent, the provisions of this Article shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement. Section 10.09. Erroneous Payments. (a) Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a "Payment") were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the
DB1/ 139452285.4144571789.3 132 date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this Section 10.09(a) shall be conclusive, absent manifest error. (b) Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a "Payment Notice") or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. (c) The Borrower hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower. (d) Each party's obligations under this Section 10.09 shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Basic Document. ARTICLE ELEVEN ASSIGNMENTS; PARTICIPATIONS Section 11.01. Assignments and Participations. (a) Each Lender may upon at least 30 days' notice to the Administrative Agent and the Agents assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement; provided, that (i) each such assignment shall be of a constant, and not a varying percentage of all of the assigning Lender's rights and obligations under this DB1/ 139452285.4144571789.3 133 Agreement, (ii) the amount of the Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment), except if being assigned to an Affiliate of the Lender, shall in no event be less than the lesser of (A) $5,000,000 or an integral multiple of $1,000,000 in excess of that amount and (B) the full amount of the assigning Lender's Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent (with a copy to the Borrower), for its recording in the Lender Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 or such lesser amount as shall be approved by the Administrative Agent, (v) the parties to each such assignment shall have agreed to reimburse the Administrative Agent for all reasonable fees, costs and expenses (including the reasonable fees and disbursements of counsel for the Administrative Agent) incurred by the Administrative Agent in connection with such assignment, (vi) each Person that becomes a Lender under an Assignment and Acceptance shall agree to be bound by the confidentiality provisions of Article Twelve and (vii) there shall be no increased costs, expenses or Taxes incurred by the Administrative Agent or any Lender Group upon assignment or participation. Upon such execution, delivery and recording by the Administrative Agent, from and after the effective date specified in each Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assignee confirms that it has received a copy of this Agreement, together with copies of such financial statements and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iii) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (iv) such assigning Lender and such assignee confirm that such assignee is an Eligible Assignee; (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to such agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
DB1/ 139452285.4144571789.3 134 (c) The Administrative Agent shall maintain at its address referred to herein a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names, addresses and Commitment of each Lender and the Principal Amount (and stated interest) of each Loan made by each Lender from time to time (the "Lender Register"). The entries in the Lender Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower and the Lenders shall treat each Person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement. The Lender Register shall be available for inspection by any Agent or Lender at any reasonable time and from time to time upon reasonable prior notice. (d) Subject to the provisions of Section 11.01(a), upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed, accept such Assignment and Acceptance, and the Administrative Agent shall then record the information contained therein in the Lender Register. (e) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and each Loan owned by it); provided, that (i) such Lender's obligations under this Agreement (including its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (iv) the Borrower provides its prior written consent to the sale of such participation (such consent of the Borrower not to be unreasonably withheld). Notwithstanding anything herein to the contrary, each participant shall have the rights of a Lender (including any right to receive payment) under Sections 2.10 and 2.11; provided, that no participant shall be entitled to receive payment under either such Section in excess of the amount that would have been payable under such Section by the Borrower to the Lender granting its participation had such participation not been granted, and no Lender granting a participation shall be entitled to receive payment under either such Section in an amount which exceeds the sum of (i) the amount to which such Lender is entitled under such Section with respect to any portion of any Loan owned by such Lender which is not subject to any participation plus (ii) the aggregate amount to which its participants are entitled under such Sections with respect to the amounts of their respective participations. With respect to any participation described in this Section, the participant's rights as set forth in the agreement between such participant and the applicable Lender to agree to or to restrict such Lender's ability to agree to any modification, waiver or release of any of the terms of this Agreement or to exercise or refrain from exercising any powers or rights which such Lender may have under or in respect of this Agreement shall be limited to the right to consent to any of the matters set forth in Section 11.01. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant's interest in the obligations under this Agreement (the "Participant Register"); provided, that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any Commitment or Loan or its other DB1/ 139452285.4144571789.3 135 obligations under the Agreement) to any person except to (A) the Administrative Agent and (B) the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. (f) Each Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information, including Confidential Information, relating to the Borrower furnished to such Lender by or on behalf of the Borrower. (g) Nothing herein shall prohibit any Lender from (i) pledging or assigning as Collateral any of its rights under this Agreement to any Federal Reserve Bank or any other Governmental Authority in accordance with Applicable Law or (ii) pledging or granting a security interest in all or any portion of its rights (including payments to it under this Agreement and the other Basic Documents) under this Agreement to a collateral trustee in order to comply with Rule 3a-7 under the Investment Company Act; provided, that in each case, (A) any such pledge or Collateral assignment may be made without compliance with Section 11.01(a) or 11.01(b) and (B) no such pledge or grant of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto. ARTICLE TWELVE MUTUAL COVENANTS REGARDING CONFIDENTIALITY Section 12.01. Covenants of the Borrower, the Servicer, the Backup Servicer, the Account Bank and the Collateral Custodian. Each of the Borrower, the Servicer, the Backup Servicer, the Account Bank and the Collateral Custodian severally and with respect to itself only, covenants and agrees to hold in confidence, and not disclose to any Person, the terms of this Agreement (including any fees payable in connection with this Agreement or the identity of a Lender under this Agreement), except as the Administrative Agent and the Required Lenders may have consented to in writing prior to any proposed disclosure, except it may disclose such information (a) to its officers, directors, employees, agents, counsel, accountants, auditors, subservicers, advisors or representatives, (b) to the extent such information has become available to the public other than as a result of a disclosure by or through the Borrower, the Servicer, the Backup Servicer, the Account Bank or the Collateral Custodian, (c) to Mizuho Bank or its Affiliates or (d) to the extent it should be (i) required by Applicable Law (including filing a copy of this Agreement and the other Basic Documents (other than the Fee Letter and excluding from any such copy the identity of each Lender)) as exhibits to filings required to be made with the Securities and Exchange Commission, or in connection with any legal or regulatory proceeding or (ii) requested by any Governmental Authority to disclose such information; provided, that in the case of clause (d)(i), the Borrower, the Servicer, the Backup Servicer, the Account Bank or the Collateral Custodian, as applicable, will use all reasonable efforts to maintain confidentiality
DB1/ 139452285.4144571789.3 136 and will (unless otherwise prohibited by law) notify the Agent or Lender of its intention to make any such disclosure prior to making such disclosure. Section 12.02. Covenants of the Administrative Agent, the Agents and the Lenders. (a) Each of the Administrative Agent, each Agent and each Lender covenants and agrees that it will not disclose any of the Confidential Information at any time received or obtained by it without the Borrower's prior written consent; provided, that it may disclose any such Confidential Information (i) in connection with participations and assignments pursuant to Section 11.01, (ii) to its officers, directors or employees or to Mizuho Bank or its Affiliates, each of which shall be informed by it of the confidential nature of the Confidential Information and shall have agreed to keep such information confidential, and (iii) to its or its Affiliates’ Advisors (provided that such Advisors are advised of the confidential nature of such information and such Advisors are obligated to keep such information confidential pursuant to the terms of their engagement or applicable professional rules). Each of the Administrative Agent, each Agent and each Lender agrees to be responsible for any breach of this Agreement by its Affiliates and Advisors, and it agrees that its Affiliates and Advisors will be advised by it of the confidential nature of such information and that it shall cause its Affiliates to be bound by this Agreement. Notwithstanding the foregoing, with respect to participations and assignments pursuant to Section 11.01 involving an Eligible Assignee other than an entity satisfying clause (i) of the definition of "Eligible Assignee", Confidential Information may not be provided to prospective participants or assignees before the execution of an Assignment and Acceptance, unless such Confidential Information is covered under a separate confidentiality agreement between the assigning Lender and such prospective participant or assignee pursuant to which such prospective participant or assignee shall agree to the provisions set forth in this Article. (b) Each of the Administrative Agent, each Agent and each Lender acknowledges and agrees that any Confidential Information provided to it, in whatever form, is the sole property of the Borrower or DFC, as applicable. Neither such Person nor its Affiliates or Advisors shall use any of the Confidential Information now or hereafter received or obtained from or through the Borrower, DFC or any of their respective Affiliates for any purpose other than for purposes of engaging in, or as otherwise contemplated by, the transactions contemplated by the Basic Documents. (c) If the Administrative Agent, any Agent, a Lender or any of their respective Affiliates or Advisors are legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any Confidential Information, the related entity shall, to the extent permitted by law, promptly notify the Borrower and DFC in writing of such requirement so that the Borrower and/or DFC, at their sole cost and expense, may seek a protective order or other appropriate remedy and/or waive compliance with the provisions hereof. The Administrative Agent, each Agent and each Lender or any of their respective Affiliates or Advisors agree to use its reasonable efforts, upon the written request of the Borrower or DFC, as applicable, to obtain or assist the Borrower or DFC, as applicable, in obtaining any such protective order. Failing the reasonably timely entry of a protective order or the reasonably timely receipt of a waiver hereunder, it may disclose, without DB1/ 139452285.4144571789.3 137 liability hereunder, that portion (and only that portion) of the Confidential Information that in the opinion of such party's counsel, it is legally compelled to disclose. (d) Notwithstanding the foregoing, it is understood that the Administrative Agent, each Agent and each Lender or its Affiliates may be required to disclose (and may so disclose, without liability hereunder, provided that it complies with the following sentence) the Confidential Information or portions thereof (i) at the request of a bank examiner or other regulatory authority or in connection with an examination of it or its Affiliates by a bank examiner or other regulatory authority, including in connection with the regulator compliance policy of Administrative Agent, any Agent or any Lender, (ii) to any nationally recognized statistical rating organization (within the meaning of the Exchange Act) (an "NRSRO") in compliance with Rule 17g-5 under the Exchange Act (or any similar rule or regulation in any relevant jurisdiction), each of which shall be informed by Administrative Agent, such Agent, such Lender or such Affiliate, as applicable, of the confidential nature of the Confidential Information and shall have agreed to keep such information confidential, or (iii) to any collateral trustee appointed by such Lender to comply with Rule 3a-7 under the Investment Company Act; provided, that such collateral trustee is informed of the confidential nature of such information and such collateral trustee agrees in writing to keep such Confidential Information subject to an agreement with substantially similar terms as provided herein. (e) It is understood and agreed that no failure or delay by the Borrower, the Servicer, the Backup Servicer, the Collateral Custodian, the Administrative Agent, the Account Bank, each Agent or any Lender in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Section 12.03. Non-Confidentiality of Tax Treatment and Tax Structure. Notwithstanding anything to the contrary contained herein or in any document related to the transactions contemplated hereby, in connection with Treasury Regulations Section 1.6011-4, Section 301.6111-1T and Section 301.6112-1, the parties hereby agree that, from the commencement of discussions with respect to the transactions described herein, each party hereto (and each of its employees, representatives, Advisors, Affiliates or agents) is permitted to disclose to any and all persons of any kind (other than limitations imposed by State or federal securities laws), the structure and tax aspects of the transactions, and all materials of any kind (including opinions or other tax analyses) that are provided to each such party related to such structure and tax aspects. In this regard, each party hereto acknowledges and agrees that this disclosure of the structure or tax aspects of the transactions is not limited in any way by an express or implied understanding or agreement, oral or written (whether or not such understanding or agreement is legally binding) except as is reasonably necessary to comply with state and federal securities laws. Furthermore, each party hereto acknowledges and agrees that it does not know or have reason to know that its use or disclosure of information relating to the structure or tax aspects of the transactions is limited in any other manner (such as where the transactions are claimed to be proprietary or exclusive) for the benefit of any other Person (other than as it may be limited by State or federal securities laws).
DB1/ 139452285.4144571789.3 138 ARTICLE THIRTEEN MISCELLANEOUS Section 13.01. Amendments and Waivers. This Agreement may be amended, waived or modified by the written agreement of the Borrower and the Required Lenders. The Administrative Agent shall provide a copy of each such proposed amendment, waiver or other modification to the Account Bank, the Backup Servicer and each Hedge Counterparty. No amendment, waiver or other modification which could have a material adverse effect on the rights or obligations of the Account Bank, the Backup Servicer (including, in its capacity as Successor Servicer) or any Hedge Counterparty shall be effective against the Account Bank, the Backup Servicer or such Hedge Counterparty, as applicable, without the prior written agreement of the Account Bank, the Backup Servicer or such Hedge Counterparty, as applicable. Notwithstanding anything in this Section or in any Basic Document to the contrary, following the determination of a Benchmark Replacement, this Agreement may be amended by the Administrative Agent without the consent of any other Person and, except as provided in Section 2.17(d), without satisfying any other amendment provisions of this Agreement or any other Basic Document, to implement a Benchmark Replacement and any Benchmark Replacement Conforming Changes. For the avoidance of doubt, any Benchmark Replacement Conforming Changes in any amendment to this Agreement may be retroactive (including retroactive to, but not before, the Benchmark Replacement Date) and this Agreement may be amended more than once in connection with any Benchmark Replacement Conforming Changes. Section 13.02. Notices, Etc. All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including communication by e-mail or facsimile copy) and e-mailed, mailed, transmitted or delivered, as to each party hereto, at its address set forth under its name on the signature pages hereof or specified in such party's Assignment and Acceptance or at such other address as shall be designated by such party in a written notice to the other parties hereto. All such notices and communications shall be effective, upon receipt, or in the case of notice by (a) mail, five days after being deposited in the United States mail, first class postage prepaid, (b) facsimile copy, when receipt is confirmed by telephone, except that notices and communications pursuant to Article Two shall not be effective until received with respect to any notice sent by mail or (c) notice by an e-mail, when receipt is confirmed by telephone or by reply e-mail from the recipient. Section 13.03. No Waiver, Rights and Remedies. No failure on the part of any Agent or any Secured Party or any assignee of any Secured Party to exercise, and no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right. The rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law. Section 13.04. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Borrower, the Servicer, the Backup Servicer, the Collateral Custodian, the Account Bank, the Administrative Agent, each Agent, the Secured Parties and their respective successors DB1/ 139452285.4144571789.3 139 and permitted assigns and, in addition, each Hedge Counterparty shall be an express third-party beneficiary of this Agreement. Section 13.05. Term of this Agreement. This Agreement shall remain in full force and effect until the Facility Termination Date; provided, that (a) the rights and remedies with respect to any breach of any representation and warranty made or deemed made by the Borrower pursuant to Article Five and the indemnification and payment provisions of Article Ten and Section 2.11, (b) the confidentiality provisions of Article Twelve, (c) the provisions of Section 13.10 and (d) any other provision of this Agreement expressly stated to survive, shall be continuing and shall survive any termination of this Agreement. Section 13.06. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN § 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HERETO HEREBY AGREES TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. Section 13.07. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY. Section 13.08. Costs and Expenses. In addition to the rights of indemnification granted to the Administrative Agent, each Agent, the Secured Parties, the Account Bank, the Collateral Custodian and the Backup Servicer and its or their Affiliates and officers, directors, employees and agents thereof under Article Nine, the Borrower agrees to pay on demand all reasonable out-of-pocket costs and expenses (other than Taxes) of the Administrative Agent, each Agent, the Secured Parties, the Account Bank and the Backup Servicer incurred in connection with the administration (including periodic auditing), amendment or modification of, or any waiver or consent issued in connection with, this Agreement and the other documents to be delivered hereunder or in connection herewith, including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent, each Agent, the other Secured Parties, the Account Bank and the Backup Servicer (including, if it is then acting as the Successor Servicer) with respect thereto and with respect to advising such entities as to their respective rights and remedies under
DB1/ 139452285.4144571789.3 140 this Agreement and the other documents to be delivered hereunder or in connection herewith, and all costs and expenses, if any (including reasonable counsel fees and expenses), incurred by such entities in connection with the enforcement of this Agreement and the other documents to be delivered hereunder or in connection herewith. Section 13.09. No Insolvency Proceedings. (a) Notwithstanding any prior termination of this Agreement, no Lender shall, prior to the date which is one year and one day after the final payment of the Aggregate Unpaids, petition, cooperate with or encourage any other Person in petitioning or otherwise invoke the process of any Governmental Authority for the purpose of commencing or sustaining an Insolvency Proceeding against the Borrower under any United States federal or State Insolvency Laws or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Borrower or any substantial part of its property or ordering the winding up or liquidation of the affairs of the Borrower. (b) Notwithstanding any prior termination of this Agreement, each party to this Agreement hereby agrees that it shall not institute against, or join any other person in instituting against, any Lender any Insolvency Proceeding, for one year and one day after the latest maturing Commercial Paper Note or other debt security issued by such Lender is paid. Section 13.10. Recourse Against Certain Parties. (a) No recourse under or with respect to any obligation, covenant or agreement (including the payment of any fees or any other obligations) of each Agent or any Secured Party as contained in this Agreement or any other agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any such Person or any manager or administrator of such Person or any incorporator, affiliate, stockholder, officer, employee or director of such Person or of the Borrower or of any such manager or administrator, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Agents and any Secured Party contained in this Agreement and all of the other agreements, instruments and documents entered into by it pursuant hereto or in connection herewith are, in each case, solely the corporate obligations of such Person, and that no personal liability whatsoever shall attach to or be incurred by any administrator of any such Person or any incorporator, stockholder, affiliate, officer, employee or director of such Person or of any such administrator, as such, or any other of them, under or by reason of any of the obligations, covenants or agreements of such Person contained in this Agreement or in any other such instruments, documents or agreements, or that are implied therefrom, and that any and all personal liability of every such administrator of such Person and each incorporator, stockholder, affiliate, officer, employee or director of such Person or of any such administrator, or any of them, for breaches by such Person of any such obligations, covenants or agreements, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement. The provisions of this Section shall survive the termination of this Agreement. DB1/ 139452285.4144571789.3 141 Section 13.11. Patriot Act Compliance. The Administrative Agent hereby notifies the Borrower that pursuant to the requirements of the Patriot Act, it, and each other Lender and the Account Bank, may be required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower, organizational documentation, director and shareholder information, and other information that will allow the Administrative Agent, each Lender and the Account Bank to identify the Borrower in accordance with the Patriot Act. This notice is given in accordance with the requirements of the Patriot Act and is effective for the Administrative Agent, each Lender and the Account Bank. Section 13.12. Execution in Counterparts; Electronic Signatures; Severability; Integration. This Agreement may be executed in any number of counterparts and by different parties hereto in separate 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. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by electronic mail in a “.pdf” file shall be effective as delivery of a manually executed counterpart of this Agreement. Each party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. This Agreement contains the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all prior oral or written understandings other than any fee letter contemplated hereby. Section 13.13. Limitation on Consequential, Indirect and Certain Other Damages. (a) No claim may be made by the Borrower, the Servicer, the Performance Guarantor or any of their Affiliates against the Administrative Agent, any Lender Group Agent, any Lender or any of their Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages arising out of or related to the transactions contemplated by this Agreement or the other Basic Documents, or any act, omission or event occurring in connection therewith and each of the Borrower and the Servicer, to the fullest extent permitted by Applicable Law, hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. (b) No claim may be made by the Administrative Agent, any Lender Group Agent, any Lender or any of their Affiliates against the Borrower, the Servicer, the Performance Guarantor or any of their Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages arising out of or related to the transactions contemplated by this Agreement or the other Basic Documents, or any act, omission or event occurring in connection therewith and each of the Administrative Agent, each Lender Group Agent and each Lender, to the fullest extent permitted by Applicable Law, hereby waives,
DB1/ 139452285.4144571789.3 142 releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. [Remainder intentionally left blank] DB1/ 139452285.4144571789.3 [Loan Agreement] 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. THE BORROWER: DFC BUSINESS SERVICES, LLC By: Name: Title: Address for Notices: DFC Business Services, LLC 150 N. Bartlett Street Medford, Oregon 97501-5920 Attention: Charles Lietz E-mail: charleslietz@lithia.com with a copy to: Lithia Motors, Inc. Legal Department 150 N. Bartlett Street Medford, Oregon 97501-5920 Attention: Edward Impert E-mail: eimpert@lithia.com
DB1/ 139452285.4144571789.3 [Loan Agreement] THE SERVICER AND COLLATERAL CUSTODIAN: DRIVEWAY FINANCE CORPORATION By: Name: Charles Lietz Title: President Address for Notices: Driveway Finance Corporation 150 N. Bartlett Street Medford, Oregon 97501-5920 Attention: Charles Lietz E-mail: charleslietz@lithia.com with a copy to: Lithia Motors, Inc. Legal Department 150 N. Bartlett Street Medford, Oregon 97501-5920 Attention: Edward Impert E-mail: eimpert@lithia.com DB1/ 139452285.4144571789.3 [Loan Agreement] MIZUHO BANK, LTD. By: Name: Title: Address for Notices: Mizuho Bank, Ltd. 1271 Avenue of the Americas New York, NY 10020 Attention: Securitized Products / David Krafchik Email: david.krafchik@mizuhogroup.com, johan.andreasson@mizuhogroup.com, LAU_Agent@mizuhogroup.com THE ADMINISTRATIVE AGENT AND ACCOUNT BANK: MIZUHO BANK, LTD. By: Name: Title: Address for Notices: Mizuho Bank, Ltd. 1271 Avenue of the Americas New York, NY 10020 Attention: Securitized Products / David Krafchik Email: david.krafchik@mizuhogroup.com, johan.andreasson@mizuhogroup.com, LAU_Agent@mizuhogroup.com COMMITTED LENDER:
DB1/ 139452285.4144571789.3 [Loan Agreement] MIZUHO AGENT: MIZUHO BANK, LTD. By: Name: Title: Address for Notices: Mizuho Bank, Ltd. 1271 Avenue of the Americas New York, NY 10020 Attention: Securitized Products / David Krafchik Email: david.krafchik@mizuhogroup.com, johan.andreasson@mizuhogroup.com, LAU_Agent@mizuhogroup.com DB1/ 139452285.4144571789.3 SA-1 Agent: Committed Lender: Mizuho Bank, Ltd. Mizuho Bank, Ltd. Lender Group: Address for Notices and Investing Office: Mizuho Bank, Ltd. 1271 Avenue of the Americas New York, NY 10020 Attention: Securitized Products / David Krafchik david.krafchik@mizuhogroup.com johan.andreasson@mizuhogroup.com LAU_Agent@mizuhogroup.com Address for Notices: Mizuho Wire Information: Mizuho Bank, Ltd. 1271 Avenue of the Americas New York, NY 10020 Attention: Securitized Products / David Krafchik david.krafchik@mizuhogroup.com johan.andreasson@mizuhogroup.com LAU_Agent@mizuhogroup.com Bank name: Mizuho Bank, Ltd., New York Branch ABA: 026004307 Account Name: ISA Loan Agency Account #: H79-740-005344 Attention: LAU/Lithia Securitization SCHEDULE A LENDER SUPPLEMENT (MIZUHO LENDER GROUP) Commitment: $750,000,000
DB1/ 139452285.4144571789.3 SB-1 SCHEDULE B ELIGIBLE RECEIVABLE CRITERIA An "Eligible Receivable" means a Receivable as to which all of the following conditions are satisfied: 1. which was originated by DFC (i) under an existing Dealer Agreement or (ii) via the Online Platform more than seven (7) days prior to the sale, assignment and transfer of such Receivable by the Seller to the Borrower pursuant to the Purchase Agreement; 2. which at the time of underwriting, the related Obligor provided as its most recent billing address an address located in a State of the United States; 3. for which the related Obligor is not (a) an employee of DFC or Lithia, (b) a fleet customer or (c) the U.S. government or any State or any agency, department or instrumentality of the U.S. government or any State or other government entity; 4. which has an original term to maturity of at least 12 months but not more than 84 months; 5. which has a Principal Balance of at least $500 but not more than (a) if the related Obligor had a FICO Score of more than 740 at the time of underwriting, $150,000 or otherwise (b) $100,000; 6. which constitutes an "account," ""tangible chattel paper," "electronic chattel paper," or a "payment intangible" under and as defined in Article 9 of the UCC as then in effect in the relevant State; 7. which is payable in U.S. Dollars; 8. which arises under a Contract which (a) has been properly executed by the parties thereto, (b) represents the genuine, legal, valid and binding payment obligation in writing of the Obligor, in full force and effect, enforceable by the holder thereof in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights generally, and (c) contains customary and enforceable provisions so as to render the rights and remedies of the holder thereof against the property subject to such Contract adequate for the realization of the benefits provided thereby; 9. which is not subject to any right of rescission, cancellation, set-off, claim, counterclaim or defense (including the defense of usury) of the Obligor or any proceedings pending or, to the best of the Borrower's knowledge threatened, wherein the Obligor or any Governmental Authority has alleged the related Contract is illegal or unenforceable; 10. which does not require the Obligor to consent to or receive notice of the transfer, sale or assignment of the rights and duties of DFC thereunder; DB1/ 139452285.4144571789.3 SB-2 11. with respect to which the related Contract requires the Obligor to cause the related Financed Vehicle to be covered by an individual physical damage insurance policy featuring comprehensive and collision coverage, in accordance with the Credit and Collection Policy (if applicable); 12. which is secured by a valid, subsisting and enforceable first priority perfected security interest, free and clear of any Lien, in favor of the Borrower in the related Financed Vehicle with respect to which all filings have been made, which security interest has been validly assigned by the Borrower to the Administrative Agent and with respect to which all filings necessary in any jurisdiction to give the Administrative Agent a first priority perfected security interest in such Receivable have been made; 13. none of Lithia, DFC or any of their Affiliates have given or loaned to any Obligor with respect to a Receivable, directly or indirectly, any Scheduled Payment or other amounts due or to become due under such Receivable in order to make the Receivable current; 14. to which the Borrower has good and indefeasible title to and was the sole owner of such Receivable, free of Liens (other than Permitted Liens) of others and to which the Seller had the full right to transfer, sell and encumber such Receivable free and clear of any Liens other than the Liens in favor of the Administrative Agent on behalf of the Secured Parties; 15. which shall have complied with, at the time of its underwriting, and shall remain in compliance with, all Requirements of Law, including all consumer protection and usury laws and which, to the best of the Borrower's knowledge, was originated without fraud or misrepresentation; 16. which was originated in the ordinary course of business of the Seller and in accordance with the Credit and Collection Policy; 17. with respect to which, either (a) if the Contract with respect to such Receivable is "tangible chattel paper" under and as defined in Article 9 of the UCC as then in effect in the relevant Statea Tangible Contract, (i) there is only one original executed copy of the related Contract, (ii) such Contract is either (A) in the possession of the Collateral Custodian or (B) was lost or destroyed prior to the Omnibus Amendment No. 2 Effective Date and is not in the physical possession of any Person other than the Collateral Custodian, (iii) such Contract has not been sold, transferred, assigned, or pledged by DFC to any Person other than the Borrower, and (iv) such Contract has not been stamped or otherwise marked to show any interest of any Person other than the Borrower; or (b) if the Contract with respect to such Receivable is "electronic chattel paper" under and as defined in Article 9 of the UCC as then in effect in the relevant Statean Electronic Contract, (i) there is only one authoritative copy of the relatedsuch Contract within the meaning of Article 9 of the UCC as then in effect in the relevant State, (ii) such authoritative copy is unique, identifiable, and unalterable (other than with the participation of the Collateral Custodian in the case of an addition or amendment of an identified assignee and other
DB1/ 139452285.4144571789.3 SB-3 than a revision that is readily identifiable as an authorized or unauthorized revision), (iii) such authoritative copy has been communicated to and is maintained by or on behalf of the Collateral Custodian solely for the benefit of the Secured Parties, (iv) each copy of the authoritative copy and any copy of a copy are readily identifiable as copies that are not the authoritative copy, (v) the related Receivable was established in a manner such that all copies or revisions that add or change an identified assignee of the authoritative copy of such Contract must be made with the participation of the Collateral Custodian, (vi) the related Receivable was established in a manner such that all revisions of the authoritative copy of the Contract is readily identifiable as an authorized or unauthorized revision, and (vii) such authoritative copy communicated to the Collateral Custodian has no marks or notations indicating that it has been pledged, assigned, or otherwise conveyed to any person such Contract has not been sold, transferred, assigned or pledged by DFC to any Person other than the Borrower; 18. with respect to which the related Obligor is (a) not deceased and (b) not the subject of a pending bankruptcy proceeding; 19. which (a) at the time such Receivable was acquired by the Borrower was not more than 30 days past due or a Defaulted Receivable and (b) is not a Defaulted Receivable or a Delinquent Receivable; 20. which at the time of underwriting did not have a Loan-to-Value Ratio of greater than 160%; 21. which at the time of underwriting (other than Receivables that do not have a FICO Score or have a FICO Score of zero) did not have a FICO Score of less than 450; 22. with respect to which the Payment-to-Income Ratio does not exceed 20%; 23. with respect to which the Debt-to-Income Ratio does not exceed 60%; 24. with respect to which (a) the related Contract relates to the retail purchase of a motor vehicle, (b) the portion of a payment allocable to interest and the portion allocable to principal under such Contract are determined in accordance with the Simple Interest Method, (c) such Contract provides for a fixed interest rate and level monthly payments (provided, that the payments in the first and last months of the Receivable may be minimally different from the level payment), and (d) the monthly payments under such Contract fully amortize the amount financed and yield interest at the related APR over its original term; 25. with respect to which the related Contract (a) was underwritten by DFC in accordance with the Credit and Collection Policy in effect at the time of underwriting of such Contract, (b) satisfied in all material respects the requirements of the Credit and Collection Policy in effect at the time of underwriting of such Contract, and (c) satisfied all Applicable Law in effect at the time of origination; 26. which the related Contract has not been amended, modified, waived, extended or altered by the Servicer in any respect except in accordance with the Credit and Collection Policy; DB1/ 139452285.4144571789.3 SB-4 27. with respect to which the information set forth in the Schedule of Receivables is true and correct in all material respects as of the opening of business on the related Cutoff Date; 28. with respect to which DFC used no selection procedures that identified such Receivable as being less desirable or valuable than other comparable motor vehicle loans originated or acquired by DFC that otherwise meet the eligibility criteria; and 29. with respect to which no Deferral has been granted, unless all Scheduled Payments or portions thereof that that were deferred pursuant to such Deferral were paid by the related Obligor subsequent to the granting of such Deferral.
DB1/ 139452285.4144571789.3 SC-1 SCHEDULE C SCHEDULE OF RECEIVABLES (Original delivered to the Administrative Agent) DB1/ 139452285.4144571789.3 SD-1 LP 07728 5911 Fresca Dr. NJ La Palma CA 90623 F7 07728 PC 811 Route 33 8700 Mercury Lane State Pico Rivera Freehold CA 90660 NJ 2A 07728 218 W. Yard Rd. F2 Feura Bush NY ZIP 12067 M1 811 Route 33 OPM# 000738 RM PG 26 South Middlesex Ave. Route 9W South Building ID Port Ewen Monroe NY Freehold 12466 NJ 2 08831 4561 Oak Fair Blvd. NJ Tampa FL 33610 M2 07728 5 26 South Middlesex Ave. 4758 Oak Fair Blvd. F1 Tampa Monroe FL 33610 NJ Address BT 08831 700 Burning Tree Rd. F3 Fullerton CA 811 Route 33 OPM# 000738 RM 92833 CR 811 Route 33 OPM# 000738 RM 1 12958 Midway Place 6298 W 44th Ave. SCHEDULE D LOCATION OF RECEIVABLE FILES Driveway Finance Corporation 150 North Bartlett Street Medford, OR 97501 Iron Mountain Information Management, LLC, at the following locations: Spokane Cerritos WA Freehold 99224 CA Freehold 90703 NJ City
DB1/ 139452285.4144571789.3 SE-1 SCHEDULE E SCHEDULE OF DOCUMENTS 1. Loan Agreement, dated as of the Closing Date, by and among DFC Business Services, LLC, as borrower (the "Borrower"), Driveway Finance Corporation ("DFC"), as servicer (in such capacity, the "Servicer") and as collateral custodian for the Secured Parties (as defined therein), the Lenders from time to time parties thereto, the Agents for the Lender Groups (as defined therein) from time to time parties thereto (the "Agents"), and Mizuho Bank, Ltd., as administrative agent for the Lenders and the Agents (the "Administrative Agent") and as account bank. 2. Purchase Agreement, dated as of the Closing Date, between DFC and the Borrower. 3. Escrow and Control Agreement, dated as of the Closing Date, among the Borrower, Mizuho Bank, Ltd., as escrow agent and bank, and the Administrative Agent. 4. Fee Letter, dated as of the Closing Date, among DFC, the Borrower and the Administrative Agent. 5. Performance Guaranty of Lithia Motors, Inc., dated the Closing Date. 6. Power of Attorney, dated as of the Closing Date, from the Borrower to the Administrative Agent. 7. Opinion of Morgan, Lewis & Bockius LLP, dated the Closing Date, as to certain true sale matters. 8. Opinion of Morgan, Lewis & Bockius LLP, dated the Closing Date, as to certain non-consolidation sale matters. 9. Opinion of Morgan, Lewis & Bockius LLP, dated the Closing Date, as to certain security interest matters. 10. Opinion of Morgan, Lewis & Bockius LLP, dated the Closing Date, as to certain corporate matters, including an opinion as to the Volcker Rule. 11. Opinion of Morgan, Lewis & Bockius LLP, dated the Closing Date, as to control of electronic chattel paper vaulted with RouteOne LLC. 12. Opinion of Morgan, Lewis & Bockius LLP, dated as of the Closing Date, as to control of electronic chattel paper vaulted with Dealertrack, Inc. 13. Opinion of Stoel Rives LLP, dated the Closing Date, as to certain corporate and security interest matters under Oregon law. 14. Opinion of Fried, Frank, Harris, Shriver & Jacobson LLP, dated the Closing Date, as to DB1/ 139452285.4144571789.3 SE-2 certain matters relating to Lithia Motors, Inc.
DB1/ 139452285.4144571789.3 * - No amendments that are made to, waivers that are granted with respect to, or other modifications that are made with respect to the Lithia Loan Agreement that would change the amount of Funded Debt that is permitted under such Section shall be given effect hereunder unless consented to by the Administrative Agent. SF-1 SCHEDULE F FINANCIAL COVENANTS (LITHIA) "Financial Covenants (Lithia)" means each of: (i) as of any date of determination, the ratio for the four consecutive fiscal quarters ending on the last day of the most recently completed fiscal quarter of (a) (1) EBITDAR, minus (2) dividends and other distributions in respect of Equity Interests of the Company or any Subsidiary (except to the extent such dividends or other distributions are paid to the Company or another Subsidiary), minus (3) amounts expended to repurchase Equity Interests from a Person that is not a Loan Party in accordance with clause (z)(ii) of the last sentence of Section 13.4 and equal to the amount in excess of the Equity Interest Repurchase Threshold for such Measurement Period, minus (4) income tax expense to the extent paid in cash, minus (5) an allowance for maintenance capital expenditures in an amount equal to $85,000 for each Dealership location, plus (6) if any Permitted Acquisition has occurred during any Measurement Period, Pro Forma EBITDAR minus rental or lease expense attributable to any new Acquisition Subsidiary or business acquired in connection with such Permitted Acquisition, as applicable, calculated as if the Permitted Acquisition had occurred on the first day of such Measurement Period (it being understood and agreed that Pro Forma EBITDAR minus rental or lease expense may not be included in this calculation to the extent that it results in an annualized increase of more than 10% in Lithia's consolidated EBITDAR minus rental or lease expense prior to such adjustment, unless Lithia provides to the Agent and the Required Lenders the supporting calculations for such adjustment and such other information as they may reasonably request to determine the accuracy of such calculations); to (b) the sum for the applicable Measurement Period of (1) cash interest, plus (2) required principal payments on Indebtedness (excluding principal payments on Indebtedness described in subsection (r) of Section 13.10) plus (3) rental or lease expense, shall not be less than 1.20 to 1.0; and (ii) as of any date of determination, the ratio for Lithia and all Related Subsidiaries of Lithia on a consolidated basis of (a) (1) the then outstanding principal balance of all Funded Debt (minus the sum of (A) unrestricted cash and cash equivalents plus (B) any amounts held in the PR Accounts plus (C) any amounts held in accounts established by Dual Subsidiaries or Silo Subsidiaries as an offset to floorplan notes payable (or interest thereon), minus (2) the sum of the then outstanding principal balance of the New Vehicle Floorplan Loans, New Vehicle Swing Line Loans, Used Vehicle Floorplan Loans, Used Vehicle Swing DB1/ 139452285.4144571789.3 * - No amendments that are made to, waivers that are granted with respect to, or other modifications that are made with respect to the Lithia Loan Agreement that would change the amount of Funded Debt that is permitted under such Section shall be given effect hereunder unless consented to by the Administrative Agent. SF-2 Line Loans, Service Loaner Vehicle Floorplan Loans, Service Loaner Vehicle Swing Line Loans, principal amount of any Other Service Loaner Floorplan Financing, Funded Debt permitted under subsection (o) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent constituting floor plan financing), Funded Debt permitted under subsection (p) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent constituting floor plan financing), Funded Debt permitted under subsection (r) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent not guaranteed by Lithia) and Funded Debt permitted under subsection (s) of Section 13.10 of the Lithia Loan Agreement* and, without duplication, Funded Debt permitted under subsection (f) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent the underlying indebtedness that is guaranteed constitutes floor plan financing), plus (3) six times rental or lease expense for the Measurement Period ending on such date; to (b) (1) Pro Forma EBITDAR for the Measurement Period ending on such date (it being understood and agreed that Pro Forma EBITDAR minus rental or lease expense may not be included in this calculation to the extent that it results in an annualized increase of more than 10% in Lithia’s consolidated EBITDAR minus rental or lease expense prior to such adjustment, unless Lithia provides to the Agent and the Required Lenders the supporting calculations for such adjustment and such other information as they may reasonably request to determine the accuracy of such calculations), minus (2) interest expense with respect to the New Vehicle Floorplan Loans, New Vehicle Swing Line Loans, Used Vehicle Floorplan Loans, Used Vehicle Swing Line Loans, Service Loaner Vehicle Floorplan Loans, Service Loaner Vehicle Swing Line Loans and Funded Debt permitted under subsection (o) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent constituting floor plan financing), Funded Debt permitted under subsection (p) of Section 13.10 of the Lithia Loan Agreement* but only to the extent constituting floor plan financing), Funded Debt permitted under subsection (r) of Section 13.10 of the Lithia Loan Agreement* (but only to the extent not guaranteed by Lithia) and Funded Debt permitted under subsection(s) of Section 13.10 of the Lithia Loan Agreement*, in each case for the Measurement Period ending on such date, shall not be greater than 5.75 to 1.0. For purposes of the foregoing Financial Covenants (Lithia), "Lithia Loan Agreement" means the Fourth Amended and Restated Loan Agreement, dated as of April 29, 2021, by and among Lithia, Lithia's subsidiaries that are from time to time parties thereto, each financial institution that is from time to time party thereto as a lender, and U.S. Bank National Association, as agent for the lenders thereunder, as amended in accordance with its terms on or prior to the Amendment No. 1 Effective Date and "Related Subsidiaries of Lithia" means, as of any date of determination, all entities that are defined as "subsidiaries" of Lithia in accordance with the Lithia Loan Agreement as of such date (without giving effect to any amendments to the related definition of "subsidiary" on or after the Closing Date other than those that have been consented to by the Administrative Agent). Furthermore, all capitalized terms used in the
DB1/ 139452285.4144571789.3 * - No amendments that are made to, waivers that are granted with respect to, or other modifications that are made with respect to the Lithia Loan Agreement that would change the amount of Funded Debt that is permitted under such Section shall be given effect hereunder unless consented to by the Administrative Agent. SF-3 foregoing Financial Covenants (Lithia) that are not defined in Section 1.01 of the Agreement have the meanings assigned thereto in the Lithia Loan Agreement, without giving effect to any amendments that are made to, waivers that are granted with respect to, or other modifications that are made with respect to the Lithia Loan Agreement on or after the Closing Date unless the same have been consented to by the Administrative Agent. DB1/ 139452285.4144571789.3 SG-1 SCHEDULE G APPROVED BACKUP SERVICERS Vervent Inc.
DB1/ 139452285.4144571789.3 SH-1 Account Name Hedge Reserve Account Account Number H15-740-008576 SCHEDULE H ESCROW ACCOUNTS Collection Account H15-740-008568 DB1/ 139452285.4144571789.3 A-1 EXHIBIT A FORM OF FUNDING REQUEST ____________, 20__ Mizuho Bank, Ltd. as Administrative Agent, Account Bank and as Mizuho Agent 1271 Avenue of the Americas New York, NY 10020 Attention: Securitized Products / David Krafchik Re: DFC Business Services, LLC – Loan Agreement Ladies and Gentlemen: The undersigned is a Responsible Officer of DFC Business Services, LLC (the "Borrower") and is authorized to execute and deliver this Funding Request on behalf of the Borrower pursuant to the Loan Agreement, dated as of November 1, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among the Borrower, Driveway Finance Corporation, as servicer and collateral custodian, the Lenders from time to time party thereto, the Agents for the Lender Groups from time to time parties thereto, and Mizuho Bank, Ltd., as administrative agent and account bank. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Loan Agreement. The Borrower hereby requests that a Loan be made under the Loan Agreement on __________, ____ in the amount of $__________. In connection with the foregoing, the undersigned hereby certifies, on behalf of the Borrower, as follows: 1. As of the date hereof, the Borrowing Base is __________. After giving effect to the requested Loan, the Loans Outstanding will not exceed the Borrowing Base and no Borrowing Base Deficiency will exist. Attached to this Funding Request is a true, complete and correct calculation of such Borrowing Base and all components thereof. 2. As of the date hereof, the Excess Concentration Amount after giving effect to the requested Loan will be: ______ 3. All of the conditions applicable to the requested Loan as set forth in the Loan Agreement have been satisfied as of the date hereof and will remain satisfied to the date of such Loan, including: (a) each of the representations and warranties contained in Article Five of the Loan Agreement are true and correct in all respects on and as of the date hereof, before and after giving effect to the Loan and to
DB1/ 139452285.4144571789.3 A-2 the application of the proceeds therefrom as though made on and as of the date hereof; (b) no event has occurred and is continuing, or would result from such Loan or from the application of the proceeds therefrom, which constitutes a Termination Event or Unmatured Termination Event; (c) the Borrower is in material compliance with each of its agreements set forth in the Loan Agreement; (d) no Servicer Termination Event or Unmatured Servicer Termination Event has occurred; and (e) no adverse selection procedures were used by the Borrower with respect to the Receivables which will become a part of the Collateral on the Funding Date. 4. The requested Loan will not, on the Funding Date, exceed the Available Amount and after giving effect to the requested Loan, the Loans Outstanding will not exceed the Borrowing Base. 5. After giving effect to the requested Loan, either (a) the Borrower will be Fully Hedged or (b) an amount that is at least equal to the Hedge Reserve Account Required Amount will be on deposit in the Hedge Reserve Account, as required by Section 6.03 of the Loan Agreement. 6. Attached hereto is a true, correct and complete Schedule A to the Purchase Agreement, reflecting all Receivables which will become part of the Collateral on the Funding Date, each Receivable reflected thereon being an Eligible Receivable. 7. The Cutoff Date with respect to the Receivables is , 20_ . DFC BUSINESS SERVICES, LLC By: Name: Title: DB1/ 139452285.4144571789.3 B-1 EXHIBIT B FORM OF ASSIGNMENT AND ACCEPTANCE Dated __________, 20_ Reference is made to the Loan Agreement, dated as of November 1, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among DFC Business Services, LLC, as borrower, Driveway Finance Corporation, as servicer and collateral custodian, the Lenders from time to time party thereto, the Agents for the Lender Groups from time to time parties thereto, and Mizuho Bank, Ltd., as administrative agent (the "Administrative Agent") and account bank. Capitalized terms used herein that are not otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement. __________________ (the "Assignor") and ___________________ (the "Assignee") agree as follows: The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, that interest in and to all of the Assignor's rights and obligations under the Loan Agreement as of the date hereof which represents the percentage interest specified in Section 1 of Schedule 1 hereto of all outstanding rights and obligations of the Assignor under the Loan Agreement, including such interest in the Commitment of the Assignor and the Lender Advances made by the Assignor. After giving effect to such sale and assignment, the Commitment and the amount of Lender Advances made by the Assignee will be as set forth in Section 2 of Schedule 1 hereto. The Assignor represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any Lien. The Assignor and the Assignee confirm to and agree with each other and the other parties to Loan Agreement that: (i) other than as provided herein, the Assignor makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Loan Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Agreement or any other instrument or document furnished pursuant thereto; (ii) the Assignee confirms that it has received a copy of the Loan Agreement, together with copies of such financial statements and other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iii) the Assignee will, independently and without reliance upon the Administrative Agent, the Assignor or any other Lender party to the Loan Agreement and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Agreement; (iv) the Assignor and the Assignee confirm that the Assignee is an Eligible Assignee; (v) the Assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to such agent by the terms hereof, together with such powers as are reasonably incidental thereto; (vi) the Assignee agrees that it will perform in accordance with their terms all
DB1/ 139452285.4144571789.3 B-2 of the obligations which by the terms of the Loan Agreement are required to be performed by it as a Lender, including the confidentiality provisions of Article Twelve; and (vii) this Assignment and Acceptance meets all other requirements for such an Assignment and Acceptance set forth in Article Eleven of the Loan Agreement. Following the execution of this Assignment and Acceptance by the Assignor and the Assignee, it will be delivered to the Administrative Agent for acceptance. The effective date of this Assignment and Acceptance (the "Assignment Date") shall be the date of acceptance thereof by the Administrative Agent, unless a later date is specified in Section 3 of Schedule 1 hereto. The Assignor and the Assignee agree to reimburse the Administrative Agent for all reasonable fees, costs and expenses (including reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent) incurred by the Administrative Agent in connection with this Assignment and Acceptance. Upon such acceptance by the Administrative Agent, the Assignee shall be a party to the Loan Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Lender thereunder, provided, that the Assignor shall, to the extent such rights have been assigned by it under this Assignment and Acceptance, relinquish its assigned rights and be released from its assigned obligations under the Loan Agreement (and, in the case of an Assignment and Acceptance coving all or the remaining portion of an assigning Assignor's rights and obligations under the Loan Agreement, Assignor shall cease to be a party thereto). Upon such acceptance by the Administrative Agent, from and after the Assignment Date, the Administrative Agent shall make, or cause to be made, all payments under the Loan Agreement in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Loan Agreement for periods prior to the Assignment Date directly between themselves. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. DB1/ 139452285.4144571789.3 B-3 IN WITNESS WHEREOF, the Assignor and the Assignee have executed this Assignment and Acceptance as of the __ day of ________, 20_ . _______________, as Assignor By: Name: Title: _______________, as Assignee By: Name: Title:
DB1/ 139452285.4144571789.3 B-4 $_____________ Percentage Interest: Aggregate Lender Advances Owing to the Assignee: ________% $_____________ Section 1. Section 3. Section 2. Assignment Date: _____________, 20_ Schedule 1 to Assignment and Acceptance Dated _________, 20_ Assignee's Commitment: DB1/ 139452285.4144571789.3 C-1 EXHIBIT C CREDIT AND COLLECTION POLICY [On file with the Administrative Agent]
DB1/ 139452285.4144571789.3 D-1 EXHIBIT D FORM OF POWER OF ATTORNEY This Power of Attorney (this "Power of Attorney") is executed and delivered by DFC Business Services, LLC ("Grantor") to Mizuho Bank, Ltd., as Administrative Agent ("Attorney"), pursuant to (i) the Loan Agreement, dated as of November 1, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among Grantor, as borrower (in such capacity, the "Borrower"), Driveway Finance Corporation, as servicer and collateral custodian, the Lenders from time to time party thereto, the Agents for the Lender Groups from time to time parties thereto, and Mizuho Bank, Ltd., as administrative agent and account bank, and (ii) the other Basic Documents. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Loan Agreement. No person to whom this Power of Attorney is presented, as authority for Attorney to take any action or actions contemplated hereby, shall inquire into or seek confirmation from Grantor as to the authority of Attorney to take any action described below, or as to the existence of or fulfillment of any condition to this Power of Attorney, which is intended to grant to Attorney unconditionally the authority to take and perform the actions contemplated herein, and Grantor irrevocably waives any right to commence any suit or action, in law or equity, against any person or entity that acts in reliance upon or acknowledges the authority granted under this Power of Attorney. The power of attorney granted hereby is coupled with an interest and may not be revoked or canceled by Grantor until all Aggregate Unpaids have been indefeasibly paid in full and Attorney has provided its written consent thereto. Grantor hereby irrevocably constitutes and appoints Attorney (and all officers, employees or agents designated by Attorney), with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in its place and stead and in its name or in Attorney's own name, from time to time in Attorney's discretion, to take any and all appropriate action and to execute and deliver any and all documents and instruments that may be necessary or desirable to accomplish the purposes of the Loan Agreement, and, without limiting the generality of the foregoing, hereby grants to Attorney the power and right, on its behalf, without notice to or assent by it, upon the occurrence and during the continuance of any Termination Event, to do the following: (a) exercise all rights and privileges of Grantor under the Purchase Agreement (including each Purchase Agreement Supplement); (b) pay or discharge any taxes, Liens or other encumbrances levied or placed on or threatened against Grantor or Grantor's property; (c) defend any suit, action or proceeding brought against Grantor if Grantor does not defend such suit, action or proceeding or if Attorney believes that it is not pursuing such defense in a manner that will maximize the recovery to Attorney, and settle, compromise or adjust any suit, action or proceeding described above and, in connection therewith, give such discharges or releases as Attorney may deem appropriate; (d) file or prosecute any claim, litigation, suit or proceeding in any court of competent jurisdiction or before any arbitrator, or take any other action otherwise deemed appropriate by Attorney for the purpose of collecting any and all such moneys due to Grantor whenever payable and to enforce any other right in respect of Grantor's property; (e) sell, transfer, pledge, make any agreement with respect to or otherwise deal with, any of Grantor's property, and execute, in connection with such sale or action, any DB1/ 139452285.4144571789.3 D-2 endorsements, assignments or other instruments of conveyance or transfer in connection therewith; and (f) cause the certified public accountants then engaged by Grantor to prepare and deliver to Attorney at any time and from time to time, promptly upon Attorney's request, any reports required to be prepared by or on behalf of Grantor under the Loan Agreement or any other Basic Document, all as though Attorney were the absolute owner of its property for all purposes, and to do, at Attorney's option and Grantor's expense, at any time or from time to time, all acts and other things that Attorney reasonably deems necessary to perfect, preserve, or realize upon its property or assets and the Liens of the Administrative Agent, as agent for the Secured Parties thereon, all as fully and effectively as it might do. Grantor hereby ratifies, to the extent permitted by law, all that said attorneys shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, this Power of Attorney is executed by Grantor as of this __ day of ________ 20__. DFC BUSINESS SERVICES, LLC By: Name: Title: Sworn to and subscribed before me this __ day of ________, 20__ _____________________________________ Notary Public [NOTARY SEAL]
DB1/ 139452285.4144571789.3 E-1 EXHIBIT E FORM OF TAKE-OUT RELEASE Reference is hereby made to the Loan Agreement, dated as of November 1, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among DFC Business Services, LLC, as borrower (the "Borrower"), Driveway Finance Corporation, as servicer (in such capacity, the "Servicer") and collateral custodian (in such capacity, the "Collateral Custodian"), the lenders from time to time parties thereto, the agents from time to time parties thereto and Mizuho Bank, Ltd., as the administrative agent (the "Administrative Agent") and account bank. Capitalized terms not defined herein shall have the meaning given such terms in the Loan Agreement. The Borrower and the Servicer hereby represent and warrant that each condition in the Loan Agreement and each other Basic Document, to the consummation of the Take-out to which this Take-out Release relates, has been satisfied, including but not limited to delivery of (i) the executed Take-out Date Certificate, in substantially the form attached hereto as Annex 1 and (i) the executed notice, in substantially the form attached hereto as Annex 2. Upon deposit in the Collection Account of $___________ in accordance with Section 2.12(a)(iv) of the Loan Agreement in immediately available funds, the Administrative Agent hereby releases all of its right, title and interest, including its Lien, in and to the following: (a) the Receivables to be transferred by the Borrower in the related Take-out and described in Schedule I hereto (the "Take-out Receivables" and such Schedule, the "Schedule of Take-out Receivables"), together with the related Contracts, whether now existing or hereafter acquired, and any accounts or obligations evidenced thereby, any guarantee thereof, all Collections related thereto, and all monies due (including any payments made under any guarantee or similar credit enhancement with respect to any such Take-out Receivables) to become due or received by any Person in payment of any of the foregoing on or after the related Take-out Date; (b) all of the Borrower's interest in the Financed Vehicles relating to the Take-out Receivables (including repossessed vehicles) or in any document or writing evidencing any security interest in any such Financed Vehicle and each security interest in each such Financed Vehicle, whether now existing or hereafter acquired, including all proceeds from any sale or other disposition of such Financed Vehicles; (c) all Receivable Files and the Schedule of Take-out Receivables, relating to the Take-out Receivables, whether now existing or hereafter acquired, and all right, title and interest of the Borrower in and to the documents, agreements and instruments included in such Receivable Files, including rights of recourse of the Borrower against DFC and/or any Dealer with respect to the Take-out Receivables; DB1/ 139452285.4144571789.3 E-2 (d) all of the Borrower's interest in all Records, documents and writings evidencing or related to the Take-out Receivables or the related Contracts; (e) all of the Borrower's interest in all rights to payment under all Insurance Policies with respect to a Financed Vehicle related to a Take-out Receivable, including any monies collected from whatever source in connection with any default of an Obligor with respect to such Financed Vehicle and any proceeds from claims or refunds of premiums on any such Insurance Policy, whether now existing or hereafter acquired, and all proceeds thereof; (f) all of the Borrower's interest in all guaranties, indemnities, warranties, insurance (and proceeds and premium refunds thereof) and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Take-out Receivables, whether pursuant to the related Contracts or otherwise; (g) all of the Borrower's interest in all rights to payment under all service contracts and other contracts and agreements associated with the Take-out Receivables and all of the Borrower's interest in all recourse rights against the related dealer (excluding any rights in any dealer reserve and rights under the related Dealer Agreement); (h) Liens, guaranties and other encumbrances in favor of or assigned or transferred to the Borrower in and to the Take-out Receivables, whether now existing or hereafter acquired, and the related Financed Vehicles, whether now existing or hereafter acquired; (i) all, monies, deposits, funds, and instruments relating to the foregoing and related to the Take-out Receivables; (j) all of the Borrower's right, title and interest in and to the Purchase Agreement (including each Purchase Agreement Supplement), relating to the Take-out Receivables and remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against DFC under or in connection with the Purchase Agreement and relating to such Take-out Receivables; and (k) all income and proceeds of the foregoing related to the Take-out Receivables. [The Servicer and the Borrower hereby direct the Collateral Custodian to deliver the Receivable Files for the Take-out Receivables to __________________________________.]
DB1/ 139452285.4144571789.3 E-3 Executed as of __________, 20_ . DFC BUSINESS SERVICES, LLC, as Borrower By: Name: Title: DRIVEWAY FINANCE CORPORATION, as Servicer and Collateral Custodian By: Name: Title: MIZUHO BANK, LTD., as the Administrative Agent By: Name: Title: DB1/ 139452285.4144571789.3 E-4 ANNEX 1 DRIVEWAY FINANCE CORPORATION TAKE-OUT DATE CERTIFICATE PURSUANT TO SECTION 2.12(a) OF THE LOAN AGREEMENT Driveway Finance Corporation ("DFC"), as the servicer (the "Servicer"), delivers this certificate pursuant to Section 2.12(a) of the Loan Agreement, dated as of November 1, 2022(as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among DFC Business Services, LLC, as the borrower, the Servicer, DFC, as collateral custodian, the lenders from time to time parties hereto, the agents from time to time parties hereto and Mizuho Bank, Ltd., as the administrative agent and account bank, and hereby certifies, as of the date hereof, the following: (a) the Borrower has sufficient funds on the related Take-out Date to effect the Take-out in accordance with the Loan Agreement (taking into account, to the extent necessary, the proceeds of sales of the Collateral in the Take-out, if applicable); (b) after giving effect of the Take-out, the release by the Administrative Agent of the related Receivables on the Take-out Date and the transfer by the Borrower or the related Receivables on the Take-out Date, (A) no Borrowing Base Deficiency exists, (B) neither an Unmatured Termination Event, a Termination Event, a Servicer Termination Event or an event that with notice or the passage of time, or both, would be a Servicer Termination Event, has occurred or results from such Take-out, and (C) the proportion of Delinquent Receivables and Defaulted Receivables that will remain subject to the Loan Agreement shall be no higher after giving effect to such Take-out than prior to such Take-out; (c) the Borrower has delivered to the Administrative Agent a list specifying all Contracts under which the Receivables not to be released pursuant to such Take-out arose; and (d) the Borrower has deposited into the Collection Account an amount equal to all Unreimbursed Servicer Advances associated with the Receivables to be released. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Loan Agreement.
DB1/ 139452285.4144571789.3 E-5 IN WITNESS WHEREOF, the Servicer has caused this certificate to be executed on its behalf this ___ day of _________, 20_ . DRIVEWAY FINANCE CORPORATION By: Name: Title: DB1/ 139452285.4144571789.3 E-6 ANNEX 2 FORM OF NOTICE Driveway Finance Corporation 150 N. Bartlett Street Medford, Oregon 97501 __________, 20_ Mizuho Bank, Ltd. as Administrative Agent, Account Bank and as Mizuho Agent 1271 Avenue of the Americas New York, NY 10020 Attention: Securitized Products / David Krafchik Re: DFC Business Services, LLC – Loan Agreement Ladies and Gentlemen: Reference is made to the Loan Agreement, dated as of November 1, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), among DFC Business Services, LLC, as borrower (the "Borrower"), Driveway Finance Corporation, as servicer and collateral custodian, the lenders from time to time parties thereto, the agents from time to time parties thereto and Mizuho Bank, Ltd., as administrative agent (the "Administrative Agent") and account bank. Pursuant to Section 2.12(a)(i) of the Loan Agreement, the Borrower gives notice of its intent to effect a Take-out on or about __________, 20_ (which date is no fewer than 10 Business Days after the date of delivery of this notice to the Administrative Agent). Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Loan Agreement. Very truly yours, DFC BUSINESS SERVICES, LLC By: Name: Title:
DB1/ 139452285.4144571789.3 E-7 Schedule I to Take-out Release SCHEDULE OF REMOVED RECEIVABLES DB1/ 139452285.4144571789.3 F-1 EXHIBIT F FORM OF MONTHLY REPORT [On File with the Administrative Agent]
DB1/ 139452285.4144571789.3 G-1 EXHIBIT G FORMS OF U.S. TAX COMPLIANCE CERTIFICATES DB1/ 139452285.4144571789.3 G-2 Name: EXHIBIT G-1 [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Loan Agreement, dated as of November 1, 2022 (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement"), among DFC Business Services, LLC, as Borrower, Driveway Finance Corporation, as Servicer and as Collateral Custodian, the Lenders from time to time parties thereto, the Agents from time to time parties thereto, and Mizuho Bank, Ltd., as Administrative Agent and Account Bank. Pursuant to the provisions of Section 2.14 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. Title: By: Date: ________ __, 20[][NAME OF LENDER]
DB1/ 139452285.4144571789.3 G-3 Name: EXHIBIT G-2 [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Loan Agreement, dated as of November 1, 2022 (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement"), among DFC Business Services, LLC, as Borrower, Driveway Finance Corporation, as Servicer and as Collateral Custodian, the Lenders from time to time parties thereto, the Agents from time to time parties thereto, and Mizuho Bank, Ltd., as Administrative Agent and Account Bank. Pursuant to the provisions of Section 2.14 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. Title: By: Date: ________ __, 20[][NAME OF PARTICIPANT] DB1/ 139452285.4144571789.3 G-4 Name: EXHIBIT G-3 [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Loan Agreement, dated as of November 1, 2022 (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement"), among DFC Business Services, LLC, as Borrower, Driveway Finance Corporation, as Servicer and as Collateral Custodian, the Lenders from time to time parties thereto, the Agents from time to time parties thereto, and Mizuho Bank, Ltd., as Administrative Agent and Account Bank. Pursuant to the provisions of Section 2.14 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. Title: By: Date: ________ __, 20[][NAME OF PARTICIPANT]
DB1/ 139452285.4144571789.3 G-5 Name: EXHIBIT G-4 [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Loan Agreement, dated as of November 1, 2022 (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement"), among DFC Business Services, LLC, as Borrower, Driveway Finance Corporation, as Servicer and as Collateral Custodian, the Lenders from time to time parties thereto, the Agents from time to time parties thereto, and Mizuho Bank, Ltd., as Administrative Agent and Account Bank. Pursuant to the provisions of Section 2.14 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s), (iii) with respect to the extension of credit pursuant to this Loan Agreement or any other Borrower Basic Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. Title: By: [NAME OF LENDER] DB1/ 139452285.4144571789.3 G-6 Date: ________ __, 20[]
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