amendmentno5toarloanagtl






Execution Copy    153479441v2   AMENDMENT NO. 5 TO AMENDED AND RESTATED LOAN AGREEMENT  This AMENDMENT NO. 5, dated as of June 23, 2022 (this "Amendment"), is executed  by and among SCFC BUSINESS SERVICES LLC (the "Borrower"), CHARIOT FUNDING  LLC ("Chariot"), and JPMORGAN CHASE BANK, N.A. ("JPMorgan"), in its capacities as  administrative agent (in such capacity, the "Administrative Agent"), as a Committed Lender, and  as the Agent for the JPMorgan Lender Group (in such capacity, the "JPMorgan Agent"), and  amends the Amended and Restated Loan Agreement, dated as of December 31, 2020 (as  amended, restated, supplemented or otherwise modified from time to time, the "Loan  Agreement"), by and among the Borrower, Driveway Finance Corporation ("DFC"), as the  servicer and the collateral custodian, the lenders from time to time parties thereto, the agents   from time to time parties thereto, and JPMorgan, as Administrative Agent and as the account  bank.  Capitalized terms used, but not otherwise defined, herein shall have the meanings ascribed  thereto in the Loan Agreement.  WITNESSETH:  WHEREAS, as of the date of this Amendment, Chariot is the sole Conduit Lender under  the Loan Agreement and JPMorgan is the sole Committed Lender under the Loan Agreement  (Chariot and JPMorgan, together in such respective capacities, the "Lenders");    WHEREAS, the Borrower and the Lenders desire to amend the Loan Agreement, in  accordance with Section 13.01 thereof, on the terms set forth herein;   WHEREAS, the Consenting Lenders desire to provide the waivers set forth below, in  accordance with Section 13.01 of the Loan Agreement; and  NOW, THEREFORE, in consideration of the premises and the mutual agreements  hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of  which are hereby acknowledged, the parties hereto hereby agree as follows:  SECTION 1. Amendment to the Loan Agreement.  Schedule A (Lender  Supplement (JPMorgan Lender Group)) to the Loan Agreement is amended by deleting the  "Mandatory Commitment" row set forth therein in its entirety and replacing it with the  following:  "Mandatory Commitment: $400,000,000"  





 






 - 2 -  153479441v2  SECTION 2. Representations, Warranties and Confirmations.  The Borrower  hereby confirms that all representations and warranties made by it pursuant to Sections 5.01 and  5.02 of the Loan Agreement were true and correct as of the date as of which they were made and  that it is in compliance with all covenants made by it pursuant to the Loan Agreement as of the  date hereof.  By its acknowledgment of this Amendment, DFC hereby confirms that all  representations and warranties made by it pursuant to Section 5.03 of the Loan Agreement were  true and correct as of the date as of which they were made and that it is in compliance with all  covenants made by it pursuant to the Loan Agreement as of the date hereof.  Furthermore, the  Borrower and DFC each hereby represents and warrants as to itself that:  (a) It has the power to execute, deliver and perform this Amendment and the  transactions contemplated hereby.  (b) The execution and delivery of this Amendment and the performance of  this Amendment and the Loan Agreement (as amended hereby) have been duly authorized by it  by all necessary company action (including any necessary action by its members).  (c) This Amendment has been duly executed and delivered on its behalf.  This  Amendment and the Loan Agreement (as amended hereby) constitute its legal, valid and binding  obligations, enforceable against it in accordance with their respective terms, except as  enforcement of such terms may be limited by Insolvency Laws affecting the enforcement of  creditors' rights generally and by the availability of equitable remedies.   (d) It is in compliance in all material respects with all Applicable Laws.  SECTION 3. Effectiveness of Amendment.         (a) This Amendment shall be effective, as of the date hereof, upon (i) the  delivery of a fully executed copy hereof to the Administrative Agent and (ii) the payment to  JPMorgan for its own account, or as directed by JPMorgan, of $250,000, which the parties hereto  agree constitutes "Structuring Fee" for all purposes under the Basic Documents and which shall  be payable subject to all terms and conditions set forth in the Fee Letter (except that such amount  shall be due on the date hereof, rather than on the date of the Fee Letter)   (b) Except as expressly amended by the terms of this Amendment, all terms  and conditions of the Loan Agreement shall remain in full force and effect and are hereby  ratified and confirmed.  This Amendment is effective only for the specific purpose for which it is  given and shall not operate as a consent, waiver, amendment or other modification of any other  term or condition set forth in the Loan Agreement.  Upon the effectiveness of this Amendment,  (i) each reference in the Loan Agreement to "this Agreement" or "this Loan Agreement" or  words of like import shall mean and be references to the Loan Agreement as amended hereby  and (ii) each reference in any other Basic Document to the Loan Agreement or to any terms  defined in the Loan Agreement which are modified hereby shall mean and be references to the  Loan Agreement or to such terms as modified hereby.  The parties hereto acknowledge and agree  that this Amendment shall constitute a Basic Document.  This Amendment does not constitute a  novation or termination of the Loan Agreement or any other Basic Document and all obligations  thereunder are in all respects continuing with only the terms thereof being modified as provided  herein.  





 






 - 3 -  153479441v2  SECTION 4. Amendments, etc.  No provision of this Amendment shall be  waived, amended or otherwise modified except as provided in Section 13.01 of the Loan  Agreement.  SECTION 5. GOVERNING LAW.  THIS AMENDMENT SHALL BE  GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,  THE LAWS OF THE STATE OF NEW YORK.  SECTION 6. Severability.  If one or more of the covenants, agreements,  provisions or terms of this Amendment shall be for any reason whatsoever held invalid, then  such covenants, agreements, provisions or terms shall be deemed severable from the remaining  covenants, agreements, provisions or terms of this Amendment and shall in no way affect the  validity or enforceability of the other provisions of this Amendment or the Loan Agreement as  amended hereby.  SECTION 7. Binding Effect.  This Amendment shall be binding upon and shall  be enforceable by the parties hereto and their respective successors and permitted assigns.  SECTION 8. Captions, etc.  The captions and section numbers appearing in this  Amendment are inserted only as a matter of convenience and do not define, limit, construe or  describe the scope or intent of the provisions of this Amendment.  SECTION 9. Counterparts.  This Amendment 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  Amendment by facsimile or by electronic mail in a ".pdf" file shall be effective as delivery of a  manually executed counterpart of this Amendment.  Each party agrees that this Amendment and  any other documents to be delivered in connection herewith may be electronically signed, and  that any electronic signatures appearing on this Amendment or such other documents are the  same as handwritten signatures for the purposes of validity, enforceability, and admissibility.  [Signature Page Follows]  





 






 





 






[Signature Page to Amendment No. 5 to A&R Loan Agt. (SCFC Business Services LLC)] 153479441v2 CHARIOT FUNDING LLC,   as Conduit Lender By:  JPMORGAN CHASE BANK, N.A.,   as its attorney-in-fact By:   Name: Title: JPMORGAN CHASE BANK N.A.,   as JPMorgan Agent, as a Committed Lender,   and as Administrative Agent By:   Name: Title: Elizabeth S. Trainor Executive Director Elizabeth S. Trainor Executive Director