DB1/144571698.3执行副本总括修正案第2号(本修正案)日期为2024年2月16日的第2号总括修正案由DFC商业服务有限责任公司(“借款人”)、车道金融公司(以前称为南方下跌金融公司(“DFC”)的俄勒冈州公司)、作为卖方(在该身份下是卖方)、作为服务者(在该身份下是“服务者”)、作为抵押品托管人(在该身份下是“抵押品托管人”)、在本合同签名页上列出的贷款人(“贷款人”)、本合同签名页上所列的代理人(“代理人”)和瑞穗银行有限公司。(“瑞穗”)以行政代理人(“行政代理人”)的身份，修订(I)由借款人、服务商、抵押品托管人、贷款人、不时的代理人以及瑞穗(行政代理人和账户银行)之间于2022年11月1日订立的贷款协议(经不时修订、重述、补充或以其他方式修改的“贷款协议”)，及(Ii)DFC与借款人于2022年11月1日订立的购买协议(经修订，不时重述、补充或以其他方式修改《购买协议》)。此处使用的大写术语，但未另作定义，应具有贷款协议中赋予该术语的含义。证明人：鉴于，DFC和借款人希望根据本协议第7.01节修订《购买协议》，而借款人和贷款人希望根据第13节修订《贷款协议》。根据《购买协议》第01条和《贷款协议》第13.01条的规定；因此，考虑到下文所述的房屋和相互协议，并出于其他良好和有价值的对价，双方特此同意如下：第1节.修订《贷款协议》。根据本修正案的效力，包括但不限于满足下文第4节规定的有效性条件，现对贷款协议进行修订，纳入作为附件A的贷款协议标记副本上显示的黑线更改(不言而喻，删除了显示为“删除”的措辞，增加了显示为“双下划线”的措辞)。第二节《采购协议》修正案根据本修正案的效力，包括但不限于满足以下第4节规定的DB1/144571698.3 2的有效性条件，现对购买协议第6.01节进行修订，并将其全文重述如下：“第6.01节应收账款回购。卖方特此与买方约定并同意，如果就任何应收账款而言：(I)卖方违反了第3.03节所述的陈述和保证；(Ii)未能向抵押品托管人交付要求包括在应收账款档案中的任何文件；或(Iii)托管人以外的任何人实际拥有最初签署的应收款有形合同，卖方和借款人表示该有形合同在第2号综合修正案生效日期之前已经丢失或销毁，则发现上述第(I)、(Ii)或(Iii)款中任何一项所述情况的一方应立即向本购买协议的其他各方和行政代理发出书面通知。卖方应应买方或行政代理的书面要求，在该违约尚未得到纠正或放弃的情况下，在书面通知该违约或未能交货后，回购该等应收款及相关财产，金额相当于贷款协议下的下一个付款日的应收款发行价。放行价款应汇入收款账户，按照借款协议的规定予以运用。第三节陈述、保证和确认。借款人特此确认，借款人根据贷款协议第5.01和5.02节作出的所有陈述和担保在作出之日是真实和正确的，并且截至本协议之日符合借款人根据贷款协议作出的所有契诺。在承认本修正案的同时，DFC特此确认其根据第5条作出的所有陈述和保证。 此外，借款人和DFC各自在此声明并保证：（a）有权执行、交付和履行本修正案以及由此设想的交易。 (b)本修订案的签署和交付以及本修订案和贷款协议（经此处修订）的履行已通过所有必要的公司行动（包括其成员的任何必要行动）获得其正式授权。 (c)本修正案已代表其正式签署和交付。 本修订案和贷款协议（经此处修订）构成其合法、有效且具有约束力的义务，可根据其各自条款对其执行，除非该等条款的执行可能受到影响债权人权利执行的破产法的限制
DB1/144571698.3 3一般情况下，以及是否有衡平补救办法。(D)它在所有实质性方面都符合所有适用的法律。第4节修正案的效力(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签署的本修正案副本之日起生效。(B)除本修订条款明文修订外，贷款协议及购买协议的所有条款及条件将继续具有十足效力及效力，并于此予以批准及确认。本修正案仅就其特定目的有效，不应作为对贷款协议或购买协议中规定的任何其他条款或条件的同意、豁免、修订或其他修改。本修订生效后，(I)贷款协议中凡提及“本协议”或“本贷款协议”或类似含义的字眼，均指经修订的贷款协议，(Ii)凡提及“本协议”或“本采购协议”或类似含义的词语，均指经修订的购买协议，及(Iii)在任何其他基本文件中，凡提及贷款协议或购买协议或贷款协议或购买协议所界定的任何条款并于此作出修改后，均指并视为提及贷款协议或购买协议(视何者适用而定)或经修改的该等条款。双方承认并同意本修正案应构成一份基本文件。此项修订并不构成贷款协议、购买协议或任何其他基本文件的续订或终止，而上述各项下的所有责任在各方面均继续存在，只是其条款按本文所述予以修改。第5节修正案等。除贷款协议第13.01节所规定的外，不得放弃、修改或以其他方式修改本修正案的任何条款。第六节适用法律。本修正案受纽约州法律管辖，并根据纽约州法律进行解释和解释。第7节.可分割性如果本修正案的一个或多个契诺、协议、条款或条款因任何原因无效，则该等契诺、协议、条款或条款应被视为可与本修正案的其余契诺、协议、条款或条款分开，且不得影响本修正案的其他条款或经修订的贷款协议的有效性或可执行性。第8节具有约束力。本修正案对本协议双方及其各自的继承人和允许的受让人具有约束力，并可由其强制执行。DB1/144571698.3 4第9条标题等本修正案中插入的标题和章节编号仅为方便起见，并不定义、限制、解释或描述本修正案条款的范围或意图。第10节对应方本修正案可由任何数量的副本签署，也可由本合同的不同各方以单独的副本签署，当如此签署时，每个副本应被视为正本，当所有副本合并在一起时，应构成一个相同的协议。通过传真或电子邮件以“.pdf”文件形式交付本修正案签名页的已签署副本应与手动交付本修正案副本一样有效。各方同意，本修正案和与本修正案相关的任何其他文件可以使用电子签名，出于有效性、可执行性和可采纳性的目的，本修正案或此类其他文件中出现的任何电子签名与手写签名相同。第11节费用及开支借款人和DFC同意支付行政代理和贷款人因本修正案的准备、安排、执行和执行而产生的所有合理费用、费用和自付费用(如适用)(包括Morgan，Lewis&Bockius，LLP、行政代理和贷款人的律师的所有合理律师费和支出，应根据贷款协议第2.09(E)节支付)。[签名页如下]
贷款协议(DFC Business Services，LLC)第2号修正案签名页瑞穗银行作为瑞穗代理人、承诺贷款人和行政代理人：_姓名：杰里米·易卜拉欣标题：管理董事
附件符合贷款协议(附件)DB1/139452285.4144571789.3贷款协议符合日期为2023年7月20日的第1号综合修正案第2号综合修正案日期为2024年2月16日DFC商业服务有限责任公司作为借款人、车道金融公司作为服务商和抵押品托管人、本合同的不时出借人、不时的各方代理人、作为行政代理的瑞穗银行和截至2022年11月1日的账户银行
I DB1/139452285.4144571789.3目录页第一条定义；建筑第1.01节。定义1第1.02节。会计术语和定义4546第1.03节。时间段的计算4546第1.04节。第2.01条解释第4546条第二款贷款。贷款4546第2.02条。筹资机制4647第2.03节。减少承担额4748第2.04节。承诺的延期4849第2.05节。利息计算和支付分配4950第2.06节。和解程序5152第2.07节。付款、计算等5253第2.08节。募集和分配；资金投资5354第2.09节。手续费。5455第2.10节。增加了成本，减少了回报。5556第2.11节。税金。5657第2.12条。外卖。6062第2.13节。开户银行。6263第2.14节。[已保留]6567第2.15节。替换贷款组6567第2.16节。让承诺的贷款人违约。6667第2.17条。替代利率。6768条第三安全节第3.01条。抵押品。6869第3.02节。释放抵押品；没有法律上的所有权。7071第3.03节。担保物权的保护；行政代理，作为事实代理人。7172第3.04节。采购协议的转让7173第3.05节。放弃某些法律7273 DB1/139452285.4144571789.3第二页第四条成交条件和贷款第4.01节。本协议生效的条件7274第4.02节。所有贷款的先决条件7375第五条陈述和保证第5.01条。借款人的陈述和担保7476第5.02节。借款人关于应收账款7981第5.03节的陈述和担保。服务商7981的陈述和保证第5.04节。重新转移某些应收款。8183第六条公约第6.01节。借款人的扶持契诺8284第6.02节。借款人的消极契诺8991第6.03节。借款人与套期保值有关的契诺9194第6.04节。服务机构的平权契约9496第6.05节。服务机构的消极契约9699第七条应收款的管理和服务第7.01节。维修指定98101第7.02节。维修赔偿98101第7.03节。服务人员的职责99101第7.04节。收款102105第7.05节。服务商推进103105第7.06节。由服务商支付某些费用103106第7.07节。报告和审计。104106第7.08节。关于合规105107第7.09节的季度报表。Backup Servicer；签订备份服务协议。105108第7.10节。后备服务商承担职责或指定继任服务商后的权利；责任105108第7.11节。服务商和其他人的责任限制106109第7.12节。该服务商不得辞职107109第7.13节。服务商终止事件107110第7.14节。任命继任服务员109112
DB1/139452285.4144571789.3第7.15页。服务机构的合并或合并、承担义务或辞职111114第7.16节。借款人的责任112115第7.17节。应收账款文件保管112115第7.18节。抵押品托管人的职责112115条第八条终止事件第8.01节。终止事件115118第8.02节。声明终止日期发生时采取的行动118121第8.03节。行使补救措施120123第8.04节。放弃某些法律120123第8.05节。授权书120123条第九条赔偿条款第9.01条。借款人赔偿121124第9.02节。服务商的赔偿123127第9.03节。备份服务程序作为后继服务程序的赔偿125128第十条管理代理程序和代理程序第110节。授权和行动125129第10.02节。职责转授126129第10.03节。免责条款126130第10.04节。Reliance 126130第10.05节。不依赖代理人和其他贷款人127131第10.06节。赔偿128132第10.07节。以个人身份行事的代理128133第10.08条。继任者管理代理129133第10.09节。错误的付款。129134第十一条作业；参与第11.01节。分配和参与130135 db1/139452285.4144571789.3第四页第12条关于保密的相互契约第12.01节。借款人、服务商、后备服务商、账户银行和抵押品托管人的契约133138第12.02节。行政代理、代理和贷款人的契约133138第12.03节。税务处理和税务结构的非保密性135140第13条杂项第13.01条。修订及豁免135140第13.02条。通知等136141第13.03条。不得放弃，权利和补救136141第13.04条。约束力136141第13.05节。本协议期限136141第13.06节。适用法律；同意管辖权；放弃对地点136142的异议第13.07条。放弃陪审团审讯137142第13.08条。费用及开支137142第13.09节。没有破产程序137143第13.10条。对某些当事人的追索权138143第13.11条。爱国者法案遵从性138144第13.12条。等价物执行；电子签名；可分割性；集成138144附表A-贷款人补充(瑞穗贷款集团)SA-1附表B-合格应收标准SB-1附表C-应收款附表SC-1附表D-应收文件位置SD-1附表E-[已保留]SE-1表F-财务契约(Lithia)SF-1表G-经批准的备份服务商SG-1表H-托管帐户SH-1
DB1/139452285.4144571789.3第v页展示附件A-资金申请表A-1附件B-转让和验收表格B-1附件C-信用证和催收政策C-1附件D-授权书表格D-1取出放行表格E-1附件F-1月报表格F-1表格G-1美国纳税符合证书G-1表格G-1 DB1/139452285.4144571789.3本贷款协议，日期为2022年11月1日(经修订、补充或以其他方式不时修改的本《协议》)，DFC Business Services，LLC，是一家特拉华州的有限责任公司，作为借款人(“借款人”)、Driveway Finance Corporation、俄勒冈州的一家公司(前称为南方下跌金融公司(“DFC”))、服务机构(以该等身份提供服务)及抵押品托管人(“抵押品托管人”)为抵押方(定义见本协议)、本协议不时的贷款方当事人(定义为“贷款人”)、贷款集团的代理人(定义为“代理”)及瑞穗银行有限公司。作为贷款人和代理人的行政代理(在这种情况下，称为“行政代理”)和作为开户银行(在这种情况下，称为“开户银行”)。S：鉴于借款人是为了购买和持有各种资产而成立的，包括机动车零售分期销售合同、在该等机动车零售分期销售合同上或就该等机动车零售分期销售合同收到的金额以及上述收益；鉴于借款人已要求贷款人不时向借款人发放贷款，所得款项将用于支付本协议所述的机动车零售分期付款合同的购买价格；鉴于贷款人已同意按照本协议所述条款和条件向借款人提供此类贷款。因此，现在，考虑到房屋和其他良好和有价值的对价，双方同意如下：第一条定义；建造第1.01节。定义。除文意另有所指外，本文中使用的下列词语和短语应具有下列含义：“账户银行”具有序言中赋予该术语的含义。“账户抵押品”是指托收账户和对冲准备金账户，连同所有现金、证券、金融资产(如当时在相关国家有效的UCC第8-102(A)(9)节所界定的)和不时存入或贷记到托收账户或对冲准备金账户的投资和其他财产，以及上述各项的所有收益。“调整本金余额”是指，截至任何日期的应收账款，(I)如果相关的超额利差至少等于该应收账款的目标利率，则本金
DB1/139452285.4144571789.3 2应收账款的余额，以及(Ii)如果截至该日期的相关超额利差小于该应收账款的目标利率，则(A)如果该应收账款的APR小于相关的要求利率，则该应收账款上剩余的所有计划付款(包括逾期计划付款)的现值(使用等于相关要求利率的贴现率计算)，假设所有该等计划付款在该日期之后及时支付，或(B)如果该应收账款的APR等于或大于相关的要求利率，截至该日期的应收账款本金余额“行政代理”具有前言中赋予该术语的含义。“行政代理人的账户”是指行政代理人向借款人和每个代理人指定的一个或多个账户，作为本合同项下的行政代理人的账户。“顾问”是指会计师、律师、顾问、顾问、信用增强者、流动资金提供者和类似上述各项的人员，以及上述各项各自的董事、高级管理人员、员工和经理。“附属公司”对个人而言，是指控制、被该人控制或与该人共同控制的任何其他人。就本定义而言，“控制”在用于任何特定人时，是指直接或间接地通过有表决权证券的所有权、合同或其他方式指导该人的管理和政策的权力；而“控制”或“受控”一词具有与前述有关的含义。“代理人”指特定贷款人集团的代理人，如相关贷款人补充资料所示，截至任何日期，“代理人”指截至该日期的所有贷款人集团的所有代理人。“未偿还贷款总额”是指在任何日期，借款人或初始服务机构对担保方、行政代理、备份服务机构、账户银行、受赔方和任何后续服务机构在本协议和其他基本文件项下所欠(无论是到期还是应计)的(I)未偿还贷款、(Ii)所有应计但未付利息和(Iii)所有计划费、结构费、未用承诺费、套期保证费、赔款金额和其他债务的总和。“协议”具有序言中赋予此类术语的含义。“备用基本利率”指，就任何日期而言，年利率等于(I)该日生效的最优惠利率，(Ii)该日生效的NYFRB利率加1/2，及(Iii)Daily Simple Sofr加1%中的最大者。因最优惠利率、NYFRB利率或每日简单SOFR的变化而导致的备用基本利率的任何变化，应分别自基本利率、NYFRB利率或每日简单SOFR的此类变化的生效日期起生效。如果根据第2.17节将备用基本利率用作备用利率(为免生疑问，仅在根据第2.17(B)节确定基准DB1/139452285.4144571789.3替换之前)，则备用基本利率应为上文第(I)和(Ii)项中的较大者，并且应在不参考上文第(Iii)条的情况下确定。为免生疑问，如果根据前述规定确定的备用基本利率将低于0%，则就本协议而言，该利率应被视为0%。“第1号修正案生效日期”指2023年7月20日。“分期还款期”是指自终止之日起至未偿还贷款减至零、所有其他未清偿贷款全部付清之日止的期间。“融资金额”，就应收款而言，是指根据此类条款向相关融资车辆的购买价格预付的总金额，以及任何相关成本，包括税金、所有权和许可费，以及配件、保险费、服务和保修合同、通常作为合同一部分融资的其他项目以及相关成本方面的预付款。“附属费用”是指(I)滞纳金、(Ii)延期费用、(Iii)预付款费用、(Iv)透支费用，以及(V)服务商或其代表收到的与应收款有关的所有其他管理费或适用法律允许的类似费用。“年度百分比利率”或“APR”，就应收账款而言，是指在此类应收账款中列明的财务费用的年利率，如“年度百分比利率”(在联邦“贷款法”的含义内)。如果在适用的供资日期之后，(1)由于涉及相关债务人的破产程序或(2)根据《军人民事救济法》或类似的州法律，应收账款截至该供资日期的年利率减少，则“年利率”或“年利率”应指这种降低的利率。“反腐败法”系指美国或任何州不时适用于DFC、Lithia、借款人或其各自的附属公司或子公司的有关贿赂或腐败的所有法律、规则和条例。 “转让和接受”是指分包商与符合资格的受托人之间的转让和接受协议，其形式基本上与本协议附件B相同。
DB1/139452285.4144571789.3 4“可用金额”是指在任何一天，贷款金额超过该日未偿还贷款的正金额(如果有)。“可用资金”是指在任何付款日期和相关的收款期内，在相关收款期内收到的存入收款账户的收款。“备份服务商”是指(I)管理代理合理接受并且(Ii)根据按照第7.09节签订的备份服务协议被指定为“备份服务商”的人员。“备份服务协议”是指服务机构、借款人和下列人员签订的协议：(I)列于本合同附表G(行政代理可自行决定随时更新该协议)，或(Ii)行政代理以其他方式合理地接受，并根据该协议同意担任备份服务机构，根据该协议，该人同意(A)履行其中规定的与应收款有关的某些服务职责，包括但不限于每月向行政代理和贷款人提供备份服务机构证书；(B)受基本文件中规定的与备份服务相关的条款和条款的约束，但备份服务协议中明确修改或放弃的任何条款和条款除外(经行政代理明确同意)，以及(C)如果初始服务根据本协议的条款辞职或被终止，则接替服务机构的角色。“备份服务费”是指(I)在指定备份服务商之前收取0美元，以及(Ii)此后按照备份服务协议的规定向备份服务商支付的费用。09和之后的每个收款期，(A)相当于分数的百分比，(1)分子是备份服务费，(2)分母是相关收款期内的日均池余额，乘以(B)12。“破产法”是指美国破产法(美国破产法第11章)。《巴塞尔协议II》是指巴塞尔银行监管委员会发布的第二份《巴塞尔协议》。《巴塞尔协议III》是指巴塞尔银行监管委员会发布的第三份《巴塞尔协议》。“基本文件”系指本协议、购买协议、每份购买协议附录、费用函、所有套期保值协议、控制协议、履约保证、每份电子保管库服务协议、备份服务协议(如果有)以及任何其他文件、证书、意见、协议或撰写DB1/139452285.4144571789.3 5的文件、证书、意见、协议或DB1/139452285.4144571789.3 5签署本协议或任何其他前述文件所预期的交易所必需或附带的文件。“基准”是指，对于由承诺贷款人提供资金或维护的未偿还贷款部分，最初是Daily Simple Sofr；前提是，如果对于Daily Simple Sofr或当时的基准发生了基准转换事件和相关的基准替换日期，则“基准”是指适用的基准替换，前提是该基准替换已根据第2.17节(B)款的规定替换了该先前基准利率。如果根据上述规定确定的基准替代量将低于最低限额，则就本协定和其他基本文件而言，基准替代量将被视为最低限额。“基准替换调整”是指，对于用未经调整的基准替换的任何设置替换当时的基准、利差调整或用于计算或确定该利差调整的方法(可以是正值、负值或零)，由管理代理和借款人选择并适当考虑(I)任何选择或建议的利差调整，或用于计算或确定该利差调整的方法，有关政府机构于适用基准更换日期以适用的未经调整基准取代该基准，及/或(Ii)任何发展中或当时盛行的厘定利差调整的市场惯例，或计算或厘定该利差调整的方法，以取代该基准，以取代当时美元银团信贷安排的适用未经调整基准。对于任何基准替换，“符合更改的基准替换”是指任何技术、行政或操作更改(包括对“备用基本利率”的定义、“营业日”的定义、“美国 政府证券营业日”、“付息期”的定义、确定利率和支付利息的时间和频率、借款请求或预付款的时间、转换或延续通知、回顾期的长度、破碎条款的适用性以及其他技术、行政、或运营事宜）行政代理认为可能适合反映此类基准替代的采用和实施，并允许由行政代理人以与市场实践基本一致的方式（或者，如果行政代理人决定采用此类市场实践的任何部分在行政上不可行，或者如果行政代理人确定没有市场实践来管理此类实践）
DB1/139452285.4144571789.3 6基准替换以管理代理认为与本协议和其他基本文件的管理有关的合理必要的其他管理方式存在)。“基准更换日期”就任何基准而言，是指与当时的基准有关的下列事件中最早发生的：(I)在“基准过渡事件”定义第(I)或(Ii)款的情况下，(A)其中提及的公开声明或信息发布的日期和(B)该基准的管理人永久或无限期停止提供该基准(或其组成部分)的日期；或(Ii)在“基准过渡事件”定义第(Iii)款的情况下，指监管机构确定并宣布该基准(或用于计算该基准的已公布组成部分)的管理人不再具有代表性的第一个日期；但这种不具代表性将参照该第(Iii)款中引用的最新声明或出版物来确定。为免生疑问，(1)如果导致基准更换日期的事件发生在与任何确定的基准时间相同但早于基准时间的同一天，则基准更换日期将被视为发生在该确定的基准时间之前，以及(2)在第(I)或(Ii)款中关于任何基准的“基准更换日期”将被视为发生在关于该基准的适用事件发生时(或在计算该基准时使用的已公布的组成部分)。就任何基准而言，“基准过渡事件”是指与当时的基准有关的以下一项或多项事件的发生：(1)由该基准的管理人或代表该基准的管理人(或在计算其时使用的已公布的部分)发表的公开声明或发布的信息，宣布该管理人已经停止或将永久或无限期地停止提供该基准(或其部分)；但条件是，在该声明或公布之时，没有继任管理人将继续提供该基准(或其部分)；(2)监管监督人为该基准(或用于计算该基准的已公布组成部分)的管理人、联邦储备委员会、纽约联邦储备银行、对该基准(或该组成部分)的管理人具有管辖权的破产官员、对该基准(或该组成部分)的管理人具有管辖权的解决机构、或对该基准(或该组成部分)的管理人具有类似破产或清算权的法院或实体DB1/139452285.4144571789.3 7的公开声明或信息发布，在每个情况下，声明该基准(或该组成部分)的管理人已经停止或将永久或无限期地停止提供该基准(或其组成部分)；但在该声明或公布时，没有继任管理人将继续提供该基准(或其组成部分)；或(Iii)监管机构对该基准(或用于计算该基准的已公布组成部分)的管理人发表的公开声明或发布的信息，宣布该基准(或其组成部分)不再具有代表性，或自规定的未来日期起将不再具有代表性。为免生疑问，如果就任何基准(或在其计算中使用的已公布组成部分)已发生上述公开声明或信息公布，则将被视为已就任何基准发生“基准过渡事件”。“基准不可用期间”对于任何基准而言，是指(I)自根据该定义第(I)或(Ii)款进行基准更换之日起的期间(如有)，如果此时没有基准更换就本定义项下和根据第2.17节的任何基本文件的所有目的替换该当时的基准，以及(Ii)截至基准替换就本定义下的所有目的和根据第2.17节的任何基本文件替换该当时的基准之时为止。“受益所有权证明”是指按照受益所有权规则的要求进行的关于受益所有权的证明。“受益所有权规则”系指“美国联邦判例汇编”第31编1010.230节。“福利计划”是指每个(I)雇员退休金计划(如《雇员退休保障条例》第3(2)节所界定的)，(Ii)《守则》第4975(E)(1)节所述的计划，包括根据《守则》第4975(G)节不受豁免的个人退休账户或Keogh计划，以及(Iii)因雇员福利计划或计划对此类实体的投资而其基本资产包括“计划资产”(如《雇员福利计划条例》第3(42)节和劳工部条例2510.3-101节所界定)的任何实体。“借款人”一词的含义与序言中给出的含义相同。“借款人基本单据”是指借款人作为一方当事人或受其约束的所有基本单据。“借款人账户”是指借款人不时以书面形式通知行政代理的借款人银行账户。
DB1/139452285.4144571789.3 8“借款基数”是指，在任何确定日期，借款基数等于(A)在该日期实施相关的应收款增减后的合格集合净余额减去(B)截至该日期所需的超额抵押后的差额，减去(C)借款人在该日期所拥有的所有应收款的经调整本金余额合计。在相关应收账款发出之日后180天仍未取得其定义第(I)或(Ii)款所述类型的所有权证书的(条件是，如果在该180天之后获得任何此类所有权证书，则不再根据第(C)款扣除相关应收账款的调整本金余额)，加上(Ii)在该日期存放在托收账户的本金付款的收款金额(但只限于该等本金付款已被分配以减少该等本金付款所涉及的相关应收账款的本金余额)。“借款基数不足”是指在任何确定日期，(1)未偿还贷款超过(2)借款基数的正数(如有)。“破损成本”是指(I)因提前三个工作日向贷款人发出书面通知而预付贷款(及其利息)而对贷款人产生的任何实际损失、成本或支出(但不包括损失利润)进行赔偿的金额，以及(Ii)根据第2.07(C)条应支付给任何贷款人的金额。“所有权证书”，就融资车辆而言，是指(I)与之相关的所有权证书原件，(Ii)如果适用的所有权登记处签发了代替所有权证书的信件或其他形式的留置权证据(包括电子所有权)，留置权登记信件的原件，或(Iii)在发放第(I)或(Ii)款所述类型的所有权证书之前，发给适用的所有权登记人的用于签发所有权证书原件或留置权登记信件或表格(视情况而定)的函件及其所有附件的复印件，在上述所有情况下，应指定相关债务人为该融资工具的所有人，并指定DFC、借款人或行政代理为担保方。对于在以电子方式确认留置权持有人权益的国家登记的融资车辆，“所有权证书”可以包括由第三方服务提供者或有关所有权登记处发出的电子记录通知，其中表明担保当事人对融资车辆的留置权记录在适用国家电子留置权和所有权系统上的所有权证书原件上。“控制权变更”指(I)DFC直接或间接拥有借款人少于100%的会员权益，或(Ii)Lithia直接或间接拥有DFC少于51%的投票权和股权。“截止日期”是指2022年11月1日。DB1/139452285.4144571789.3 9“代码”是指1986年的国内收入代码。“抵押品”具有第3.01(A)节中赋予该术语的含义。“抵押品托管人”具有序言中赋予这一术语的含义。 就任何确定日期而言，“收款期”是指前一个日历月，但第一个付款日期或之前发生的日期除外，在这种情况下，该术语是指从初始截止日期（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）的期间。“收款”是指(I)服务机构(包括从DFC或借款人)从任何债务人或代表任何债务人收到的任何应收款的所有现金收款或其他现金收益，包括根据第5.04节存放在收款账户中的所有释放价格金额、保险收益、收款账户中的投资收益和所有回收；(Ii)服务机构(包括从DFC或借款人)就任何应收款项(不包括可能由服务机构保留的辅助费用)、融资工具或任何其他抵押品收到的任何其他资金，(Iii)借款人根据任何套期保值协议或套期保值交易收到的所有付款，及(Iv)任何服务商垫款。“承诺”对于任何贷款人或贷款人集团而言，是指该贷款人或贷款人集团为贷款提供资金的承诺，其总额不超过相关贷款人补充条款中所列的“承诺”金额，因为该金额可根据本合同条款不时修改。“承诺终止日期”是指2026年7月20日，或者，对于任何承诺的贷款人来说，根据第2.04(A)节的规定，承诺终止日期可以延长到该较晚的日期。“承诺贷款人”指在任何贷款人补编或转让和承兑中被指定为“承诺贷款人”的任何人，根据该转让和承兑成为本协议的一方，以及该承诺贷款人的任何受让人，在该受让人根据其各自的转让和承诺承担的承诺部分的范围内，在任何日期，“承诺贷款人”是指截至该日期的所有前述人员。
DB1/139452285.4144571789.3 10“管道投资组合延迟比率”指，就任何厘定日期而言，相当于一个分数的百分比，(I)分子是在最近完成的收款期内获准延期的所有应收款的本金结余总额，(Ii)分母是截至收款期最后一天的应收款本金结余总额。“管道投资组合拖欠率”是指，就任何确定日期而言，相当于分数的百分比，(1)分子是截至最近完成的收款期最后一天的所有拖欠应收款的本金余额合计，(2)分母是截至该收款期最后一天的集合余额。“管道投资组合净损失率(Non-Prime)”指就任何确定日期而言，(I)分数的百分比等值的乘积，(A)其分子为(1)在最近完成的收款期内成为违约的所有非Prime应收款的合计本金余额减去(2)于该收款期内收到的所有非Prime应收款的全部收回款项的差额，以及(B)其分母为截至该收款期首日的所有非Prime应收款的合计本金余额十二倍。“保密信息”是指在任何时间(包括在本协议日期之前)关于借款人、DFC或其任何关联公司及其各自的业务和财务信息、应收款和服务组合的任何形式的任何信息、数据、文件和材料，包括(I)以书面、口头、磁性或任何其他媒介传输的信息，(Ii)此类信息的全部或部分的所有副本和复制件，以及(Iii)包含、反映或生成此类信息的所有摘要、分析、汇编、研究、笔记或其他记录；但就某人而言，“机密信息”不包括以下信息：(A)该人已经知道，并且这种知识不是从该人所知道的负有保密义务的任何其他实体那里获得的，或者被禁止向该人传输这种信息；(B)由于该人的任何作为或不作为，是或已经成为公共领域的一部分；(C)是或曾经合法地向该人披露，而不受第三方披露的限制；(D)是或不是由该人独立开发的；或(E)在本协议项下披露之前，从第三方那里合法和独立地向该人提供的信息，而该第三方不知道该人负有保密义务或以其他方式被禁止传输此类信息。DB1/139452285.4144571789.3 11“关联所得税”是指对净收入(无论面值多少)征收或衡量的其他关联税，或者是特许经营税或分支机构利润税。“同意”或“同意”是指行政代理的同意或行为，该同意或行动已经所需贷款人或同意贷款人批准(视情况而定)。“合同”是指债务人就融资工具签署的任何零售分期付款销售合同，根据该合同，DFC在正常业务过程中向该债务人提供信贷，并以相关融资工具为担保。“合同义务”对任何人来说，是指该人发行的任何证券的任何规定，或该人作为当事一方的任何契据、抵押、信托契据、合同、承诺、协议、文书或其他文件，或该人或其任何财产受其约束或约束的任何契约、抵押、信托契据、合同、承诺、协议、文书或其他文件。“控制协议”是指借款人瑞穗银行(作为托管代理和银行)与行政代理之间于2022年11月1日签订的某些托管和控制协议。对于应收账款，“应收账款损失”是指，如果破产程序中具有适当管辖权的法院发布了一项命令，减少对该应收账款的欠款，或以其他方式修改或重组对该应收账款进行的预定付款，该数额等于该应收账款本金余额的该减少额或如此修改或重组的预定付款的净现值(使用该法院在该顺序中指定的合同率或利率中的较低者作为贴现率)。“Cram Down Lost”应被视为在订单输入之日发生。“信用证和托收政策”是指，对于(I)初始服务机构，指在截止日期生效的、可根据本协议不时修改、修改或补充的服务机构的信用证和托收政策，或(Ii)任何后续服务机构，该等后续服务机构的惯例信用证和托收政策，在每种情况下，均根据本协议不时修订。 “信贷支持附件”具有第6.03（b）条赋予该术语的含义。“截止日期”是指，就在融资日转移给借款人的借款而言，即该融资日前三个日历日的日期。“每日简单SOFR”是指，就任何日期而言（“SOFR利率日”），每年的利率等于（i）该日期的SOFR中的较大者（该日期，相关的“SOFR确定日期”），即在以下日期之前五个美国政府证券营业日：（a）如果该SOFR利率日是美国政府证券营业日，例如SOFR利率日，或（b）如果该SOFR利率日不是美国政府证券营业日，美国政府证券营业日
DB1/139452285.4144571789.3在SOFR汇率日之前12天，在每种情况下，SOFR由SOFR管理员在SOFR管理员的网站上发布，并且(Ii)0%。因SOFR变更而导致的每日简易SOFR的任何变更，应自SOFR的该变更生效之日起生效，而无需通知借款人。“经销商”指由Lithia全资拥有的汽车经销商，该汽车经销商协助向债务人提供融资车辆的信贷，并且DFC根据相关经销商协议通过该汽车发起合同和相关应收账款。“交易商协议”是指交易商和DFC之间关于交易商促进DFC承销合同和相关应收款的条款和条件的现有协议。“债务与权益比率”是指，就任何确定日期而言，(I)等于DFC的总负债除以(Ii)等于DFC的有形净值的金额。“债务收入比”是指，就任何应收账款和相关债务人而言，(I)(A)所有相关债务人和任何相关共同债务人(但没有相关担保人)在应收账款产生时的每月固定付款义务(包括抵押贷款和其他贷款付款、租金、信用卡付款、学生贷款付款和子女抚养费)的总和，由DFC根据当时有效的信贷和催收政策确定，加上(B)相关合同项下的每月预定付款，除以(Ii)所有相关债务人和任何相关共同债务人(但没有相关担保人)根据DFC根据当时有效的信贷和收款政策确定的紧接应收账款产生日期前一个日历月的月总收入之和。75%。“应收账款违约”是指(I)根据信用证和托收政策被视为或必须被视为“违约”的任何应收账款，(Ii)服务机构已真诚地确定已停止付款且不太可能恢复付款的任何应收账款，(Iii)自相关到期日起120天以上仍未支付的(A)50美元和(B)任何预定付款的10%或以上，或(Iv)相关融资工具已被收回的任何应收账款。“违约承诺贷款人”是指任何承诺的贷款人，由行政代理机构确定：(I)未能按照第2.01条为其提供贷款的任何义务提供资金，尽管第4.02条规定的所有融资条件以及第4.01条关于初始贷款的所有条件已根据第4.01条的条款得到满足或免除，但在本协议要求其提供资金的日期的三个工作日内，(Ii)已书面通知行政代理机构或借款人它不打算履行此类融资义务；或已就本协议项下的此类融资义务发表公开声明，或(Iii)已成为破产事件的对象；但承诺贷款人不得当作违约承诺贷款人DB1/139452285.4144571789。 “延期”是指，就任何应收账款或服务投资组合应收账款而言，服务商向义务人授予的延期，其中（i）在相关到期日豁免一项或多项计划付款的全部或任何部分，并且（ii）该义务人应在不迟于相关合同的最终到期日之前到期（服务商可能已因此类延期而延长最终到期日）。 就本定义而言，对于所有相关定义术语而言，非应收账款的每项服务投资组合应收账款的“义务人”、“计划付款”和“合同”应视为“应收账款”。“拖欠应收账款”指(I)任何应收账款，(A)50美元和(B)任何预定付款的10%或以上中较大者，自相关到期日起60天或更长时间内仍未支付，以及(Ii)非违约应收账款。“衍生品”是指任何(1)交易所交易或场外交易的远期、期货、期权、掉期、帽、领、下限或外汇合约，或上述合约的任何组合，不论是实物交割或现金结算，涉及任何利率、利率指数、货币、货币汇率、货币汇率指数、债务工具、债务价格、债务指数、存托工具、存托价格、存托指数、权益工具、权益价格、权益指数、商品、商品价格或商品指数；(2)类似的交易、合约、工具、承诺或证券；或(3)交易、合约、工具、保证或证券，包含上述任何一项的承诺或担保。“DFC”一词的含义与序言中给出的含义相同。“多德-弗兰克法案”是指“多德-弗兰克华尔街改革和消费者保护法案”(PUB.L.111-203，H.R.4173)。“美元”或“美元”是指美国的合法货币。“提前采用增加了成本”具有第2.10节中赋予该术语的含义。“提早采用增加成本的表述”具有第2.10节中赋予该术语的含义。“提前摊销事项”是指在任何确定日期：(I)截至任何报告日期，立即三个收款期的管道投资组合净损失率(Prime)的算术平均值
DB1/139452285.4144571789.3 14在该报告日期之前超过4.00%(前提是，根据该条款不会发生提前摊销事件)；(Ii)截至任何报告日期，紧接该报告日期之前的三个收集日期的管道投资组合净损失率(非Prime)的算术平均值大于6.00%(前提是，(Ii)如果在该三个收集期间中的任何一个期间发生重大提取日期，则不会发生该条款下的提前摊销事件)；(Iii)截至任何报告日期，紧接该报告日期之前的三个收款期的管道组合拖欠率的算术平均值大于4.00%(条件是，如果在该三个收款期中的任何一个收款期内发生重大的取出日期，则不会根据本条款(Iii)发生提前摊销事件)；(Iv)截至任何报告日期，紧接该报告日期之前的三个收款期的管道投资组合延迟比率的算术平均值大于1.50%(前提是，在第(Iv)条下，如果在该三个收款期的任何一个收款期内发生重大的取出日期，则不会发生提前摊销事件)；。(V)存在至少三个营业日都未修复的借款基础不足；。条件是，如果这种借款基数不足的情况没有发生，则不会根据第(V)款发生提前摊销事件，除非该借款基数不足在最初存在这种借款基数不足的收款期之后的第三个收款期内在报告日期继续存在；(Vi)发生违反任何财务契约(Lithia)或任何财务契约(DFC)的行为；(Vii)发生任何服务商终止事件(第7.13节(L)、(M)、(N)或(O)款所述类型的服务商终止事件除外)；(Viii)发生终止事件；或(Ix)发生重大不利变化。只要同意的贷款人可以书面形式放弃任何提前摊销事件，并向行政代理和服务机构提供一份副本。“选择期”是指从根据第2.04(A)节提出延期请求之日开始，至(I)第45 DB1/139452285.4144571789.3号15个日历日或(Ii)相关承诺终止日期前15个日历日(以较早者为准)结束的期间。“电子合同”是指构成证明任何应收账款的“电子动产纸”(根据当时在有关国家有效的“UCC”第9条的规定和定义)的合同。“电子保管库”是指电子保管库，其中电子合同的保管应通过第三方电子保管库提供商以电子形式进行维护，该第三方电子保管库提供商根据相关的电子保管库服务协议启用电子合同。“电子保险库提供商”是指(I)RouteOne LLC、(Ii)Deert Track，Inc.或(Iii)经管理代理书面批准的电子保险库运行所在技术平台的任何其他第三方提供商。“电子保险库服务协议”是指抵押品托管人和电子保险库提供者之间的协议，根据该协议，电子保险库提供者维护相关的电子保险库。“电子保管库系统”是指电子保管库服务提供商根据电子保管库服务协议提供的电子保管库系统，该电子保管库系统具有管理代理可以合理接受的特征，该协议允许电子签约。“合格受让人”是指(I)瑞穗银行，(Ii)任何其他承诺的贷款人，(Iii)由贷款人、代理人或行政代理人或其任何关联公司管理的多卖方商业资产担保票据管道，其商业票据被标准普尔评为至少“A-1”，被穆迪评为“Prime-1”。(Iv)代理人可接受的任何其他人，该人与被转让的承诺书部分有关，而借款人在转让前已就该承诺书部分以书面同意(借款人的同意不得无理拒绝)；但在服务商终止事件或终止事件发生和继续期间，不需要借款人的同意。“合资格的集合余额”是指在任何确定日期，所有符合条件的应收款的调整本金余额的总和。“合格应收账款”是指，在任何确定日期，(I)相关应收账款文件由担保品托管人拥有或“控制”(在相关国家有效的UCC第9-105节的含义内)，(Ii)借款人作为资金申请的一部分交付给行政代理人的应收账款明细表上确定的任何应收账款，以及(Iii)在每个情况下，在该确定日期满足本合同附表B规定的每项资格要求的任何应收账款。“雇员退休收入保障法”是指1974年颁布的《雇员退休收入保障法》，以及根据该法颁布的条例和裁决。“ERISA联属公司”指(1)与借款人属于同一受控集团公司(按守则第414(B)节的含义)的任何公司，(2)a
DB1/139452285.4144571789.3 16与借款人在共同控制下(本守则第414(C)节所指的)或(Iii)与借款人属于同一附属服务组(本守则第414(M)节所指的)的贸易或业务(不论是否合并)、上文第(I)款所述的任何公司或上文第(Ii)款所述的任何贸易或业务。“超额集中金额”是指截至确定日期且无重复的：(1)正差额(如有)：(A)有关债务人在应收款最集中的州的应收款开票地址截至该日的合资格应收款的经调整本金余额合计减去(B)相当于(1)43.0%乘以(2)该日合格集合余额的乘积；(2)如有正差额，(A)有关义务人在应收款第二集中的国家的应收账款的经调整本金余额合计减去(B)相当于(1)33.0%乘以(2)该日的合资格集合余额的乘积；(3)(A)有关义务人的应收款汇票地址位于应收款汇票地址第三高的国家的合资格应收款经调整本金余额的正差额减去(B)相当于(1)23.0%乘以(2)该日的合资格汇兑余额的乘积；(4)以下各项的正差额：(A)有关债务人在上文第(I)、(Ii)和(Iii)款所述国家以外的任何国家有开票地址的合格应收款的经调整本金余额合计，减去(B)相当于(1)20.0%乘以(2)该日合格集合余额的乘积；(5)无重复的(A)正差额(如有的话)：(1)相关债务人的FICO分数低于700的合资格应收款的调整本金余额合计减去(2)(A)75.0%乘以(B)截至该日期的合资格集合余额加上(B)正差额(如有)的总和，(1)相关债务人的FICO分数低于620的合格应收款的调整本金余额合计减去(2)(A)20.0%乘以(B)截至该日期的合格集合余额的乘积(C)正差额(1)相关债务人的FICO分数低于550的合格应收款的调整本金余额合计减去(A)10.0%乘以(B)截至该日期的合格集合余额的乘积，在所有情况下，没有这种FICO分数的应收款被视为FICO分数为零；DB1/139452285.4144571789.3 17(Vi)下列各项的正差额：(A)相关债务人没有FICO分数或FICO分数为零的合资格应收款的调整本金余额总额减去(1)5.0%乘以(2)截至该日期的合资格集合余额的乘积；(Vii)(A)在承保时有关贷款与价值比率大于125%的合资格应收账款的经调整本金结余总额减去(B)(1)30.0%乘以(2)截至该日期的合资格集合结余的乘积；(Viii)(A)原始本金结余大于40,000美元的合资格应收账款的经调整本金结余总额减去(B)(1)60.0%乘(2)截至该日期的合资格集合结余的乘积(如有)的正差额；(Ix)以下各项的正差额(如有的话)：(A)合资格应收账款的经调整本金余额合计，而该等合资格应收账款或在任何先前日期是(但在该决定日期不再是)已偿还组合违约应收款的本金余额减去(B)(1)1.0%乘以(2)截至该日期的合资格集合余额的乘积；(X)(A)相关融资工具为二手工具的合资格应收款的调整本金余额合计减去(B)(1)80.085.0%乘以(2)截至该日期的合资格集合余额的乘积(如有)的正差额；(Xi)(A)原始到期日超过75个月的合资格应收款的经调整本金余额总额减去(B)(1)27.5%乘以(2)截至该日期的合资格集合余额的乘积(如有)的正差额；(十二)在承销时FICO分数低于660的合格应收款的经调整本金余额合计，需要从该日期的合格集合余额中减去该余额，以使所有合格应收款(不包括没有FICO分数或FICO分数为零的应收款)的加权平均FICO分数为660，该加权平均使用承销时每一种此类应收款的FICO分数计算；(Xiii)在承销时贷款与价值比率超过118%的合资格应收账款的经调整本金结余总额，需要从该日的合资格集合结余中扣除，才能使所有合资格应收账款在承销时的加权平均贷款与价值比率等于118%；。(Xiv)当时付款与收入比率超过12.0%的合资格应收账款的经调整本金结余总额。
DB1/139452285.4144571789.3 SB-1 Schedule B合格应收款标准“合格应收款”是指满足以下所有条件的应收款：1.由DFC(I)根据现有的经销商协议或(Ii)在卖方根据购买协议向借款人出售、转让和转让此类应收款前七(7)天以上通过在线平台发起的；2.在承保时，相关义务人或作为其最近的账单地址提供的位于美国的地址；3.相关债务人不是(A)DFC或Lithia的雇员，(B)船队客户或(C)美国政府或任何州或其他政府实体的任何机构、部门或机构；4.原始期限至少为12个月但不超过84个月；5.本金余额至少为500美元，但不超过(A)如果相关债务人在承保时FICO评分超过740,150,000美元或其他(B)100,000美元；6.构成当时在有关国家有效的《UCC》第9条所界定的“帐户”、“有形动产纸”、“电子动产纸”或“无形付款”的“账户”；7.以美元支付；8.根据下列合同产生的债务：(A)已由合同当事人妥善执行，(B)代表债务人真正的、合法的、有效的和有约束力的书面付款义务，其全部效力和效力可由合同持有人按照合同条款强制执行，但须受破产、破产、重组或其他影响债权人权利一般执行的类似法律的影响；(C)载有习惯法和可执行条款，以使合同持有人对受该合同约束的财产的权利和补救充分，足以实现合同所规定的利益；9.不受债务人的任何撤销、取消、抵销、申索、反申索或抗辩(包括高利贷抗辩)的权利或任何未决的法律程序的约束，或据借款人所知受到威胁，债务人或任何政府当局声称相关合同是非法或不可执行的；10.不要求债务人同意或接受关于转让、出售或转让DFC在其下的权利和义务的通知；DB1/139452285.4144571789.3 SB-2 11.相关合同要求债务人根据信用证和托收政策(如果适用)，将相关融资车辆纳入以全面和碰撞保险为特征的个人实物损害保险；12.以相关融资工具上以借款人为受益人的有效的、存续的和可强制执行的、无任何留置权的、以借款人为受益人的有效的、存续的和可强制执行的第一优先权担保权益为担保，该担保权益已由借款人有效地转让给管理代理人，并且在任何司法管辖区内给予行政代理人第一优先权的完善担保权益均已作出；13.Lithia、DFC或其任何关联公司均未直接或间接地就应收账款向任何债务人支付或借出任何预定付款或根据该等应收账款到期或将到期的任何其他款项，以使应收账款成为现行；14.借款人对该等应收账款拥有良好且不可转让的所有权，并且是该等应收账款的唯一所有人，不受其他人的留置权(准许留置权除外)的影响，卖方有权以担保当事人的名义转让、出售和保留该等应收账款，且不享有任何留置权以外的任何留置权；15.在承保时应已遵守并将继续遵守法律的所有要求，包括所有消费者保护法和高利贷法，并且据借款人所知，其起源没有欺诈或失实陈述；16.起源于卖方的正常业务过程，并符合信用证和托收政策；17.如果(A)关于此类应收款的合同是当时在有关国家有效的《统一商法典》第9条所界定的“有形动产票据”，(1)只有一份相关合同的签立原件，(2)此类合同要么(A)由抵押品托管人所有，要么(B)在《总括修正案第2号》生效日期之前丢失或销毁，并且不为抵押品托管人以外的任何人实际占有，(3)此类合同未被出售、转让、转让、或由DFC质押给借款人以外的任何人，以及(Iv)该合同没有加盖印花或以其他方式标记，以显示借款人以外的任何人的任何利益；或(B)如果与该等应收款有关的合同是当时在相关国家有效的《UCC》第9条所界定的“电子动产纸”，则(1)只有一份与《UCC》第9条所指的当时在相关国家有效的合同有关的权威副本，(2)这种权威副本是唯一的、可识别的和不可更改的(但在增加或修改指定的受让人和其他人的情况下，抵押品托管人的参与除外)
DB1/139452285.4144571789.3SB-3而不是容易识别为授权或未经授权版本的版本)，(Iii)这种权威副本已传达给担保品托管人，并由担保品托管人或代表担保品托管人维护，完全是为了担保当事人的利益，(Iv)权威副本的每份副本和副本的任何副本都可以容易地识别为非权威副本，(V)相关应收账款的建立方式是，增加或改变该合同的权威副本的指定受让人的所有副本或修订必须在抵押品托管人的参与下制作，(Vi)相关应收账款的确定方式是，合同的所有权威副本的所有修订都可以很容易地识别为授权或未经授权的修订，以及(Vii)传达给抵押品托管人的该权威副本没有标记或符号表明其已被质押、转让或以其他方式传达给任何人，该合同未被DFC出售、转让、转让或质押给借款人以外的任何人；18.有关债务人(A)未身故及(B)不是未决破产程序的标的；19.借款人取得该等应收款时，该债务人并非逾期30天或拖欠应收款，及(B)不是违约应收款或拖欠应收款；20.在承保时贷款与价值比率未超过160%；21.在承保时(没有FICO分数或FICO分数为零的应收款除外)的FICO分数不低于450；22.支付与收入比例不超过20%的；债务收入比不超过60%的；关于(A)相关合同涉及汽车零售购买，(B)根据该合同可分配给利息的付款部分和可分配给本金的部分是按照简单利率法确定的，(C)该合同规定了固定利率和每月付款水平(前提是，应收款第一个月和最后几个月的付款可能与付款水平最小不同)，以及(D)该合同下的每月付款完全摊销融资金额，并在原始期限内按相关APR产生利息；25.相关合同(A)由DFC根据在承销该合同时有效的信用证和托收政策承保，(B)在所有重要方面满足在承销该合同时有效的信用证和托收政策的要求，以及(C)满足在发起合同时有效的所有适用法律；除信用证和托收政策外，服务机构未对相关合同进行任何方面的修改、修改、放弃、延长或变更的；DB1/139452285.4144571789.3 SB-4 27。应收账款明细表中所列信息在有关截止日期开业时在所有重要方面均属真实和正确的；对于这类贷款，DFC并无采用遴选程序，认定此类应收账款不如DFC发起或获得的其他符合资格标准的可比机动车贷款更可取或更有价值；以及29.未予延期的，除非因延期而延期的所有预定付款或部分款项已由有关债务人在准予延期后支付。
DB1/139452285.4144571789.3 SC-1应收账款附表C应收账款(原始交付给行政代理)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纽约邮编12067 M1 811路33 OPM#000738房间PG 26南米德尔塞克斯大道9W号南楼ID港Ewen Monroe NY Freehold 12466 NJ 2 08831 4561 Oak Fair Blvd。新泽西州坦帕，佛罗里达州33610 M2 07728 5 26南米德尔塞克斯大道。橡树集市大道4758号。F1坦帕门罗FL 33610新泽西州地址BT 08831 700Burning Tree路F3富勒顿，加利福尼亚州811号公路33 OPM#000738室92833 CR 811路33 OPM#000738室1 12958中途广场6298西44大道。附表D应收文件地点车道金融公司梅德福德北巴特利特街150号，或97501 Iron Mountain Information Management，LLC，地点如下：Spokane Cerritos WA Freehold 99224 CA Freehold 90703新泽西州
DB1/139452285.4144571789.3 SE-1文件附表E 1.DFC Business Services，LLC签订的截至截止日期的贷款协议，由DFC Business Services，LLC签署，由DFC Business Services，LLC作为借款人(“借款人”)、车道金融公司(“DFC”)、作为服务机构(以该身份为“服务机构”)以及作为担保当事人(定义如下)的抵押品托管人、不时的贷款人、贷款集团的代理人(定义如下)和瑞穗银行有限公司签订。作为贷款人和代理人的行政代理(“行政代理”)和开户银行。2.DFC与借款人之间的购买协议，日期为截止日期。3.作为托管代理和银行的借款人瑞穗银行与行政代理之间的托管和控制协议，日期为截止日期。4.DFC、借款人和行政代理人之间的费用函，日期为截止日期。5.Lithia Motors，Inc.的性能保证，日期为截止日期。6.借款人发给行政代理人的授权书，日期为截止日期。7.Morgan，Lewis&Bockius LLP对某些真实销售事项的意见，日期为成交日期。8.Morgan，Lewis&Bockius LLP对某些非合并销售事项的意见，日期为截止日期。9.Morgan，Lewis&Bockius LLP对某些担保权益事项的意见，日期为成交日期。10.Morgan，Lewis&Bockius LLP在截止日期对某些公司事项的意见，包括对沃尔克规则的意见。11.Morgan，Lewis&Bockius LLP关于用RouteOne LLC控制电子动产纸的意见，日期为成交日期。12.Morgan，Lewis&Bockius LLP的意见，日期为截止日期。13.Stoel Rives LLP的意见，日期为关闭日期，关于俄勒冈州法律规定的某些公司和担保权益事项的意见。14.Fry，Frank，Harris，Sriver&Jacobson LLP在截止日期就DB1/139452285.4144571789.3 SE-2关于Lithia Motors，Inc.的某些事宜的意见。
DB 1/ 139452285.4144571789.3 * -除非得到行政代理人的同意，否则对Lithia贷款协议做出的任何修改、授予的豁免或其他修改均不得在本协议下生效。SF-1附表F财务契约（Lithia）“财务契约（Lithia）”是指以下各项：（i）截至任何确定日期，截至最近完成的财政季度最后一天的连续四个财政季度的比率（a）（1）EBITDART，减去（2）有关公司或任何子公司股权的股息和其他分配（向公司或另一家子公司支付的股息或其他分配除外），减去（3）根据第13条最后一句第（z）（ii）条从非贷款方的人回购股权所花费的金额。10)加(3)租金或租赁费，不得低于1.20至1.0；及(Ii)于任何厘定日期，Lithia及Lithia的所有相关附属公司的综合比率为：(A)(1)所有出资债务的当时未偿还本金余额(减去(A)无限制现金及现金等价物加(B)在公关账户中持有的任何金额加上(C)由双重附属公司或筒仓附属公司设立的账户中作为应付楼面票据(或其利息)抵销的任何金额)，减去(2)新车辆平面图贷款、新车辆周转贷款、旧车平面图贷款当时未偿还本金余额的总和，二手车辆摆动DB1/139452285.4144571789.3*-除非得到行政代理的同意，否则不得对Lithia贷款协议进行任何修改、豁免或其他修改，以改变根据本条款允许的融资债务金额。SF-2额度贷款、服务贷款人车辆平面图贷款、服务贷款人车辆周转额度贷款、任何其他服务贷款人平面图融资的本金、Lithia贷款协议*第13.10节(O)款允许的融资债务(但仅限于构成平面图融资的范围)、Lithia贷款协议*第13.10款(P)允许的融资债务(但仅在构成平面图融资的范围内)，Lithia Loan协议*第13.10节(R)分段允许的有担保债务(但仅限于Lithia非担保的范围)和Lithia Loan协议第13.10节(S)分段允许的有担保债务*，以及第13节(F)分段允许的有担保债务(无重复)。根据Lithia Loan协议*(但仅在构成楼面平面图融资的范围内)，Lithia Loan协议*第13.10节(P)分节允许的有担保债务(但仅在构成楼面平面图融资的范围内)、Lithia Loan协议*第13.10节(R)分节允许的有担保债务(但仅限于Lithia非担保的范围)，以及Lithia Loan协议*第13.10节(S)允许的有担保债务，在截至该日期的测算期内均不得大于5.75至1.0。就上述金融契约(LITHIA)而言，“LITHIA贷款协议”是指在2021年4月29日由LITHIA、LITHIA的子公司、作为出借方的每一家金融机构以及作为出借方代理人的美国银行全国协会之间于2021年4月29日签署的第四份修订和重新签署的贷款协议，该协议是指在第1号修正案生效日期或之前根据其条款修订的，而“LITHIA的相关子公司”是指，截至任何确定日期，截至该日根据Lithia贷款协议被定义为Lithia的“附属公司”的所有实体(不影响在截止日期或之后对“附属公司”相关定义的任何修订，行政代理同意的修订除外)。此外，所有大写的术语
DB1/139452285.4144571789.3*-除非得到行政代理的同意，否则对Lithia Loan协议的任何修改、给予的豁免或与Lithia Loan协议相关的其他修改都不应生效，这些修改将改变本节允许的融资债务金额。未在协议第1.01节中定义的SF-3前述金融契诺(Lithia)具有Lithia贷款协议中赋予的含义，但不影响对Lithia贷款协议作出的任何修订、给予的豁免或在截止日期或之后就Lithia贷款协议作出的其他修改，除非得到行政代理的同意。DB1/139452285.4144571789.3 SG-1 Schedule G批准的备份服务VerventInc.
Db1/139452285.4144571789.3SH-1账户名称对冲准备金账户账户编号H15-740-008576 Schedule H托管账户集合账户H15-740-008568 DB1/139452285.4144571789.3 A-1资金申请表_根据日期为2022年11月1日的贷款协议(经不时修订、重述、补充或以其他方式修改，“贷款协议”)，借款人、作为服务机构及抵押品托管人的Driveway Finance Corporation、不时作为贷款一方的贷款人、不时为贷款人集团的代理以及作为行政代理及开户银行的瑞穗银行，有权代表借款人签立及交付本融资请求。本文中使用的未另有定义的大写术语应具有贷款协议中赋予该术语的含义。借款人特此请求根据贷款协议，于_鉴于上述情况，以下签署人代表借款人证明如下：1.截至本合同日期，借款基数为_。申请贷款生效后，贷款余额不超过借款基数，不存在借款基数不足的情况。此资金申请附有一份真实、完整和正确的借款基数及其所有组成部分的计算。2.截至本贷款生效日，申请贷款生效后的超额集中金额将为：_[•]DB1/139452285.4144571789.3 A-2对其所得款项的运用，如同在本协议之日及截至该日一样；(B)此种贷款或其所得款项的运用并未发生或将产生任何事件，构成终止事件或未到期终止事件；(C)借款人实质上遵守了《贷款协议》中规定的各项协议；(D)未发生服务商终止事件或未到期服务商终止事件；以及(E)借款人没有对应收款使用逆向选择程序，应收款将在供资日成为抵押品的一部分。4.申请的贷款在供资日不会超过可用金额，在实施申请的贷款后，未偿还的贷款将不会超过借款基数。5.在实施所要求的贷款后，(A)借款人将被完全对冲，或(B)根据贷款协议第6.03节的规定，至少等于对冲储备账户所需金额的金额将存入对冲储备账户。6.随函附上一份真实、正确和完整的《采购协议》附表A，其中反映了将在筹资日成为抵押品一部分的所有应收款，其中反映的每一笔应收款都是合格的应收款。7.应收款的截止日期为20_年。DFC Business Services，LLC by：名称：标题：DB1/139452285.4144571789.3 B-1日期为_作为行政代理人(“行政代理人”)和开户银行。此处使用的未另有定义的大写术语应具有贷款协议中赋予该术语的含义。_包括转让人承诺的利息和出借人由转让人提供的垫款。在完成此类出售和转让后，受让人的承诺和贷款人垫款金额将如本合同附表1第2节所述。转让人声明并保证，它是其在本协议项下转让的权益的合法和实益所有人，并且该权益不受任何留置权的影响。转让人和受让人向对方和贷款协议其他各方确认并同意：(I)除本协议规定外，转让人不对贷款协议中或与贷款协议相关的任何陈述、担保或陈述，或贷款协议或根据贷款协议提供的任何其他文书或文件的签署、合法性、有效性、可执行性、真实性、充分性或价值不承担任何责任；(2)受让人确认其已收到一份《贷款协议》副本，以及其认为适当的财务报表和其他文件和资料的副本，以便作出自己的信用分析和决定以进行此类转让和接受；(3)受让人将在不依赖行政代理、转让人或贷款协议的任何其他贷款方的情况下，根据其当时认为适当的文件和资料，继续在根据贷款协议采取或不采取行动时作出自己的信贷决定；(4)受让人和受让人确认受让人是合格的受让人；(V)受让人指定并授权行政代理以代理人的身份代表其采取行动，并行使本协议条款授予该代理人的权力以及合理附带的权力；(Vi)受让人同意将按照其条款履行所有
DB1/139452285.4144571789.3 B-2，即贷款协议条款要求其作为贷款人履行的义务，包括第十二条的保密规定；以及(Vii)本次转让和接受符合贷款协议第十一条规定的此类转让和接受的所有其他要求。在转让人和受让人签署并接受本转让后，将交付给行政代理接受。本转让和接受的生效日期(“转让日期”)应为行政代理接受该转让和接受的日期，除非本合同附表1第3节规定了较晚的日期。转让人和受让人同意向行政代理人偿还行政代理人因本次委派和验收而产生的所有合理费用、成本和开支(包括行政代理人的合理费用和律师的自付费用)。行政代理接受后，受让人即为贷款协议的一方，并在本转让和接受中规定的范围内，享有出借人在该协议下的权利和义务，但条件是，转让人在其根据本转让和接受所转让的这些权利的范围内，应放弃其转让的权利并免除其在贷款协议下的已转让的义务(如果转让和接受涉及转让人在贷款协议下的全部或剩余部分权利和义务，则转让人应不再是贷款协议的一方)。在行政代理接受后，自转让日期起及之后，行政代理应根据贷款协议向受让人支付或安排支付与本协议转让的利息有关的所有款项(包括但不限于本金、利息和相关费用的所有付款)。转让人和受让人应在转让日期之前直接对贷款协议项下的付款进行所有适当的调整。本转让和承兑应受纽约州法律管辖，并根据纽约州法律进行解释。DB1/139452285.4144571789.3B-3兹证明，转让人和受让人已于__
DB1/139452285.4144571789.3 B-4$_
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DB1/139452285.4144571789.3 D-1附件D授权书本授权书(“授权书”)由DFC Business Services，LLC(“授权人”)作为行政代理(“授权人”)签立并交付给瑞穗银行有限公司，根据(I)截至2022年11月1日的贷款协议(经不时修订、重述、补充或以其他方式修改的“贷款协议”)，授权书由设保人、借款人(以借款人身份)、车道金融公司作为服务机构和抵押品托管人、贷款方、贷款方集团的代理方，以及作为行政代理和开户行的瑞穗银行，以及(Ii)其他基本文件。本文中使用的未另有定义的大写术语应具有贷款协议中赋予该术语的含义。任何被提交本授权书的人，作为授权其采取本授权书所述的一项或多项诉讼的人，不得就授权采取下述任何行动的授权，或关于本授权书的任何条件的存在或履行，向Grantor进行查询或寻求确认，该条件旨在无条件地授予代理人采取和执行本授权书所述行动的授权，并且Grantor不可撤销地放弃在法律或衡平法上对依赖或承认根据本授权书授权行事的任何个人或实体提起任何诉讼或诉讼的权利。在此授予的授权书与利息相结合，在所有合计的欠款已全部支付且律师已提供其书面同意之前，Grantor不得撤销或取消该授权书。设保人在此不可撤销地组成并任命律师(以及由律师指定的所有高级人员、雇员或代理人)为其真实和合法的受权人，具有完全不可撤销的权力和权力，取代其位置和位置，并以其名义或以律师本人的名义，不时根据律师的酌情决定权，采取任何和所有适当的行动，并签立和交付为实现贷款协议的目的可能必要或适宜的任何和所有文件和文书，并在不限制前述规定的一般性的情况下，特此授予律师以下权力和权利：在任何终止事件发生时和继续期间，在未通知或未经其同意的情况下，采取下列行动：(A)行使设保人在《购买协议》项下的所有权利和特权(包括每份《购买协议补充协议》)；(B)支付或解除对格兰特或格兰特财产征收或施加或威胁到的任何税项、留置权或其他产权负担；。(C)如果格兰特不对该等诉讼、诉讼或程序进行抗辩，或者如果律师认为它没有以能够最大限度地向律师追回的方式进行抗辩，则对针对格兰特提起的任何诉讼、诉讼或程序进行抗辩，并就上述任何诉讼、诉讼或程序进行和解、妥协或调整，并就此提出律师认为适当的免责或免除；(D)在任何具司法管辖权的法院或在任何仲裁员席前提出或进行任何申索、诉讼、诉讼或法律程序，或采取任何其他由律师认为适当的其他行动，以收取应付予格兰特的任何及所有该等款项，并强制执行有关格兰特财产的任何其他权利；(E)出售、转让、质押、就任何格兰特财产订立任何协议或以其他方式处理，并就该等出售或诉讼签立任何DB1/139452285.4144571789.3 D-2背书、转让或其他与该等财产有关的转让文书；及(F)促使当时由Grantor聘用的注册会计师应律师的要求，随时并不时迅速地准备和交付根据贷款协议或任何其他基本文件由Grantor或代表Grantor准备的任何报告，就所有目的而言，就像律师是其财产的绝对所有者一样，并随时或不时由律师选择和Grantor支付费用，作出律师合理认为必要的所有行为和其他事情，以完善、保存或变现其财产或资产以及行政代理人的留置权。作为担保当事人的代理人，尽其所能充分和有效地履行。设保人在法律允许的范围内，在法律允许的范围内，批准上述代理人应依法作出或导致作出的一切行为。本委托书于20_DFC商业服务有限责任公司：名称：标题：于20_
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DB1/139452285.4144571789.3 E-1外购放行表格请参阅日期为2022年11月1日的贷款协议(经不时修订、重述、补充或以其他方式修改的《贷款协议》)，该贷款协议由DFC Business Services，LLC作为借款人(“借款人”)、车道金融公司作为服务者(以该身份为“服务者”)和抵押品托管人(以该身份称为“抵押品托管人”)、不时的贷款人、不时的当事人、代理人和瑞穗银行有限公司组成。作为行政代理(“行政代理”)和开户银行。未在此定义的大写术语应具有贷款协议中给出的该术语的含义。借款人和服务商特此声明并保证，贷款协议和其他基本文件中的每一项条件，包括但不限于交付(I)实质上按附件1所附形式的已签立的取出日期证书和(I)实质上按附件2所附形式的已签立通知。根据贷款协议第2.12(A)(Iv)节将_存入托收账户，行政代理特此解除其对下列各项的所有权利、所有权和利益，包括其留置权：(A)借款人将在相关提取中转让并在本合同附表一中描述的应收款(“提取应收款”和该附表，“提取应收款明细表”)，连同相关合同，无论是现在存在的还是以后获得的，以及由此证明的任何账户或义务，其任何担保，与其相关的所有收款，以及在有关的提取日期或之后，任何人为支付上述任何款项而到期应付或收取的所有款项(包括根据任何担保或类似的增信措施就任何该等应收账款而作出的任何付款)；(B)借款人在融资车辆中与取得的应收款(包括收回的车辆)有关的所有权益，或在证明任何该等融资车辆的任何抵押权益的任何文件或书面文件中的所有权益，以及每一辆该等融资车辆的每项抵押权益，不论是现时存在的或以后取得的，包括出售或以其他方式处置该等融资车辆所得的所有收益；DB1/139452285.4144571789.3 E-2(D)借款人在所有记录、协议和文书中的权利、所有权和权益，包括借款人对DFC和/或任何交易商关于外卖应收款的追索权；DB1/139452285.4144571789.3 E-2(D)借款人在所有记录、文件和文字中的所有权益；(E)借款人在所有保险单下就与应收外卖有关的融资车辆而享有的所有付款权利中的所有权益，包括因债务人就该融资车辆的任何失责而从任何来源收取的任何款项，以及就任何该等保险单提出申索或退还保费所得的任何收益，不论是现时存在的或日后取得的，以及该等收益的全部；(F)借款人在所有担保、弥偿、保证、保险(以及其收益和保费退还)中的所有权益，以及不时支持或保证支付外购应收款的任何性质的其他协议或安排中的所有权益；。(G)借款人在所有服务合同和与外购应收款相关的其他合同和协议下获得付款的所有权利中的所有权益，以及借款人在针对相关交易商的所有追索权中的所有权益(不包括任何交易商储备中的任何权利和相关交易商协议下的权利)；。(H)以借款人为受益人或转让或转让给借款人的留置权、担保物和其他产权负担，以及外卖应收款，不论是现在存在的还是以后购买的，以及相关的融资工具，无论是现在存在的还是以后购买的；。(I)与上述有关并与外卖应收款有关的所有款项、存款、资金和工具；。(J)借款人于购买协议内及与购买协议有关的所有权利、所有权及权益(包括每一份购买协议副刊)，涉及外卖应收账款及其下的补救措施，以及将借款人根据购买协议或与该等外卖应收账款有关而向DFC提交的所有UCC融资报表转让予行政代理；及(K)上述与外卖应收账款有关的所有收入及收益。
服务商和借款方特此指示抵押品托管人向_
DB1/139452285.4144571789.3 E-3于20_执行。DFC Business Services，LLC作为借款人：名称：标题：Driveway Finance Corporation作为服务商和抵押品托管人：名称：标题：瑞穗银行作为行政代理：名称：标题：DB1/139452285.4144571789.3 E-4附件1 Driveway Finance Corporation(“DFC”)作为服务商(“服务商”)，根据贷款协议第2.12(A)节的规定提供本证书，日期为2022年11月1日(经修订，在DFC Business Services，LLC作为借款人、服务商、DFC作为抵押品托管人、贷款人不时作为本协议当事人、不时代理本协议各方以及作为行政代理和开户银行的DFC商业服务有限责任公司之间，并特此证明，截至本贷款协议日期，借款人在相关购买日期有足够的资金按照贷款协议进行购买(在必要的情况下，考虑到：出售抵押品的收益(如适用的话)；(B)在取得生效后，行政代理在取得日期解除有关应收款，借款人或有关应收款在取得日期转让，(A)不存在借款基础不足，(B)未到期终止事件、终止事件、服务商终止事件或经通知或时间流逝即为服务商终止事件，或两者均已发生或由该等提取所导致的事件，以及(C)贷款协议仍然适用的拖欠应收款和违约应收款的比例，在实施该项提取后不得高于该项提取之前的比例；(C)借款人已向行政代理提交了一份清单，其中列明了根据该等提取产生的应收款不得发放的所有合同；及(D)借款人已向收款账户存入一笔相当于与应收款相关的所有未偿还的维修商预付款的金额。本文中使用的未另有定义的大写术语应具有贷款协议中赋予该术语的含义。
DB1/139452285.4144571789.3 E-5在此见证下，服务机构已安排本证书于20_Driveway Finance Corporation by：名称：标题：DB1/139452285.4144571789.3 E-6附件2通知格式Driveway Finance Corporation 150N.Bartlett Street Medford，Oregon 97501_贷款协议“)由DFC Business Services，LLC，作为借款人(”借款人“)、车道财务公司(作为服务商和抵押品托管人)、贷款人不时作为当事人、代理人不时与瑞穗银行(”瑞穗银行“)作为行政代理(”行政代理“)及开户银行之间订立。根据贷款协议第2.12(A)(I)节的规定，借款人于20_本文中使用的未另有定义的大写术语应具有贷款协议中赋予该术语的含义。非常真诚的您，DFC Business Services，LLC by：姓名：标题：
DB1/139452285.4144571789.3 E-7已收回应收账款发放明细表DB1/139452285.4144571789.3 F-1附件F月报表格
向行政代理人备案
DB1/139452285.4144571789.3 G-1附G表格美国税务合规性证书DB1/139452285.4144571789.3 G-2名称：附G-1
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美国税务合规证书(适用于非美国联邦所得税合伙企业的外国贷款人)兹参考截至2022年11月1日的贷款协议(经不时修订、补充或以其他方式修改的《贷款协议》)，DFC Business Services，LLC作为借款人、车道金融公司、作为服务商和抵押品托管人、作为不时的贷款人、不时的代理人、作为行政代理和账户银行的瑞穗银行有限公司之间的贷款协议。根据《贷款协议》第2.14节的规定，签署人兹证明：(I)它是提供本证书的贷款的唯一记录和实益所有人(S)，(Ii)它不是《守则》第881(C)(3)(A)节所指的银行，(Iii)不是守则第871(H)(3)(B)节所指的借款人的10%股东，及(Iv)不是守则第881(C)(3)(C)节所述与借款人有关的受控外国公司。签署人已向行政代理和借款人提供了美国国税局W-8BEN或W-8BEN-E表格上的非美国人身份证书。签署本证书即表示签字人同意：(1)如果本证书上提供的信息发生变化，签字人应立即通知借款人和行政代理，(2)签字人应始终向借款人和行政代理提供一份填写妥当且当前有效的证书，无论是在向签字人支付每笔款项的日历年度，还是在付款前两个日历年度中的任何一年。除本协议另有规定外，贷款协议中定义并在本协议中使用的术语应具有贷款协议中赋予它们的含义。标题：日期：_20
贷款人名称
DB1/139452285.4144571789.3 G-3名称：证物G-2
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美国税务合规证书(适用于非美国联邦所得税合伙企业的外国参与者)兹参考日期为2022年11月1日的贷款协议(经不时修订、补充或以其他方式修改的《贷款协议》)，该协议由DFC Business Services，LLC作为借款人、车道金融公司、服务机构和抵押品托管人、不时的贷款人、不时的代理人和作为行政代理和账户银行的瑞穗银行共同签署。根据贷款协议第2.14节的规定，签署人特此证明：(I)它是为其提供本证书的参与的唯一记录和实益所有人，(Ii)它不是守则第881(C)(3)(A)节所指的银行，(Iii)它不是守则第871(H)(3)(B)条所指的借款人的10%股东，以及(Iv)该公司并非守则第881(C)(3)(C)节所述与借款人有关的受管制外国公司。签字人已在美国国税局W-8BEN或W-8BEN-E表格上向其参与贷款人提供了其非美国人身份的证书。签署本证书即表示签字人同意：(1)如果本证书上提供的信息发生变化，签字人应立即以书面形式通知贷款人，(2)签字人应始终向贷款人提供一份填写正确且目前有效的证书，无论是在每次付款给签字人的日历年度，还是在付款前两个日历年度中的任何一个。除本协议另有规定外，贷款协议中定义并在本协议中使用的术语应具有贷款协议中赋予它们的含义。标题：日期：_20[参赛者姓名]DB1/139452285.4144571789.3 G-4名称：证物G-3
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美国税务合规证书(适用于为美国联邦所得税目的的合伙企业的外国参与者)兹参考截至2022年11月1日的贷款协议(经不时修订、补充或以其他方式修改)，DFC Business Services，LLC作为借款人、车道金融公司作为借款人和抵押品托管人、贷款人不时作为贷款人、代理不时作为代理人以及瑞穗银行有限公司作为行政代理和账户银行。根据《贷款协议》第2.14节的规定，签署人特此证明：(I)它是提供本证书的参与的唯一记录所有者，(Ii)其直接或间接合作伙伴/成员是该参与的唯一实益拥有人，(Iii)就此类参与而言，签署人或其任何直接或间接合作伙伴/成员都不是根据《守则》第881(C)(3)(A)条所指在其正常贸易或业务过程中签订的贷款协议提供信贷的银行，(Iv)其直接或间接合作伙伴/成员均不是守则第871(H)(3)(B)节所指的借款人的10%股东，及(V)其直接或间接合作伙伴/成员均不是守则第881(C)(3)(C)节所述与借款人有关的受控外国公司。签署人已向其参与贷款人提供IRS表格W-8IMY，并附上其每一名申索投资组合利息豁免的合伙人/成员的下列表格之一：(I)申请投资组合利息豁免的每一名合伙人/成员的IRS表格W-8BEN或W-8BEN-E或(Ii)IRS表格W-8IMY，连同每一名申请投资组合利息豁免的合伙人/成员的实益拥有人提供的W-8BEN或IRS表格W-8BEN-E。签署本证书即表示签字人同意：(1)如果本证书上提供的信息发生变化，签字人应立即通知贷款人；(2)签字人应始终向贷款人提供一份填写妥当且当前有效的证书，无论是在每次付款给签字人的日历年度，还是在付款前两个日历年度中的任何一个。除本协议另有规定外，贷款协议中定义并在本协议中使用的术语应具有贷款协议中赋予它们的含义。标题：日期：_20
参赛者姓名
DB1/139452285.4144571789.3 G-5名称：证物G-4
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美国税务合规证书(适用于为美国联邦所得税目的的合伙的外国贷款人)兹提及DFC Business Services，LLC作为借款人、车道金融公司作为服务商和抵押品托管人、贷款人不时作为借款人、代理不时与瑞穗银行以及瑞穗银行作为行政代理和开户银行签订的截至2022年11月1日的贷款协议(经不时修订、补充或以其他方式修改)。根据《贷款协议》第2.14节的规定，签署人兹证明：(I)它是提供本证书的贷款的唯一记录所有人(S)，(Ii)其直接或间接合伙人/成员是该贷款的唯一实益所有人(S)，(Iii)就根据本贷款协议或任何其他借款人基本文件进行的信贷展期而言，以下签署人或其任何直接或间接合作伙伴/成员均不是根据本守则第881(C)(3)(A)条所指在其正常贸易或业务过程中订立的贷款协议提供信贷的银行；(Iv)其直接或间接合作伙伴/成员均不是本守则第871(H)(3)(B)条所指借款人的10%股东；及(V)其直接或间接合作伙伴/成员均不是本守则第881(C)(3)(C)条所述与借款人有关的受控外国公司。签署人已向行政代理及借款人提供IRS表格W-8IMY，并附上其每一名申索投资组合权益豁免的合伙人/成员提供的下列表格之一：(I)申请投资组合权益豁免的每一名合伙人/成员的IRS表格W-8BEN或W-8BEN-E或(Ii)IRS表格W-8IMY，连同申请投资组合权益豁免的每一名该等合伙人/成员的实益拥有人提供的W-8BEN或IRS表格W-8BEN-E。签署本证书即表示签字人同意：(1)如果本证书上提供的信息发生变化，签字人应立即通知借款人和行政代理，(2)签字人应始终向借款人和行政代理提供一份填写妥当且当前有效的证书，无论是在向签字人支付每笔款项的日历年度，还是在付款前两个日历年度中的任何一年。除本协议另有规定外，贷款协议中定义并在本协议中使用的术语应具有贷款协议中赋予它们的含义。标题：作者：
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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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