executedamendmentno3toar






EXECUTION COPY 150870610v5 AMENDMENT NO. 3 TO AMENDED AND RESTATED LOAN AGREEMENT This AMENDMENT NO. 3, dated as of November 10, 2021 (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; 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. Amendments to the Loan Agreement.  The Loan Agreement is  hereby amended as follows: (a) Section 1.01 is amended by deleting the definitions of "Account  Collateral," "Basic Documents," "Lockbox Account," "Lockboxes," "Permitted Liens," and  "Stop-Funding Event" set forth therein in their entirety and replacing them, respectively, with the  following: "'Account Collateral' means, the Collection Account, together with all  cash, securities, financial assets (as defined in Section 8-102(a)(9) of the UCC)  and investments and other property from time to time deposited or credited to the  Collection Account and all proceeds thereof." "'Basic Documents' means this Agreement, the Purchase Agreement, each  Purchase Agreement Supplement, the Fee Letter, all Hedging Agreements, the  Control Agreement, the Performance Guaranty, and any other document,  certificate, opinion, agreement or writing the execution of which is necessary or  incidental to carrying out the transactions contemplated by this Agreement or any  of the other foregoing documents." 





 






- 2 - 150870610v5 "'Lockbox Account' means one or more deposit accounts established and  maintained at the Lockbox Bank by DFC." "'Lockboxes' means one or more post office boxes or operating accounts  established by DFC and maintained at the Lockbox Bank." "'Permitted Liens' means (i) Liens in favor of the Borrower created  pursuant to the Purchase Agreement, (ii) Liens in favor of any Agent or the  Administrative Agent, as agent for the Secured Parties created pursuant to this  Agreement or any other Basic Document, (iii) Liens for taxes and assessments not  yet due or for taxes which the Borrower is contesting in good faith and by  appropriate legal proceedings the validity, applicability or amount thereof and  such contest does not materially endanger any right or interest of the Secured  Parties under the Basic Documents, (iv) Liens arising in the ordinary course of  business by virtue of any contractual, statutory or common law provision relating  to banker's Liens, rights of set-off or similar rights and remedies covering deposit  or securities accounts (including funds or other assets credited thereto) or other  funds maintained with a depository institution or securities intermediary, (v)  Liens created pursuant to the Control Agreement, and (vi) mechanics' liens and  other liens arising by operation of law." "'Stop-Funding Event' means the occurrence of any of the following: (i) as of any Reporting Date, the arithmetic mean of the  Serviced Portfolio Delinquency Ratio for the three previous Collection  Periods is greater than 4.50%; (ii) as of any Reporting Date, the arithmetic mean of the  Serviced Portfolio Net Loss Ratio (Prime) for the three previous  Collection Periods is greater than 6.00%; (iii) 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 11.50%;  (iv) either (a) no Backup Servicing Agreement has been  executed and become effective by the date required by Section 7.09(a) or  (b) after the date on which the Borrower initially enters into a Backup  Servicing Agreement, such Backup Servicing Agreement is thereafter  terminated without the consent of the Required Lenders; or (v) the Servicer has not received written confirmation from the  Administrative Agent on or prior to September 30, 2022 that either (A) in  the commercially reasonable judgment of the Administrative Agent, any  arrangement that is then in place and that provides the Administrative  Agent, on behalf of the lenders, with protections relating to Collections  prior to their deposit to the Collection Account is sufficient to provide the  Administrative Agent and the Lenders with substantially similar  





 






- 3 - 150870610v5 protections, or a substantially similar level of protections, with respect to  Collections as they had prior to the termination of the Amended and  Restated Blocked Account Control Agreement, dated as of December 31,  2020, by and among DFC, the Administrative Agent, and the Lockbox  Bank (provided, that the Administrative Agent acknowledges and agrees  that entry by the Servicer into one or more commercially reasonable  agreements that together (1) appoint a 'collateral agent' (or similarly  named party) who is reasonably acceptable to the Administrative Agent, (2) who has 'control' (within the meaning of the UCC) of the Lockbox  Account and any other account or accounts into which Collections are  then being deposited prior to their deposit to the Collection Account, on  behalf of all parties who, from time to time, have interests in amounts on  deposit in the Lockbox Account and any such other account or accounts (including the Administrative Agent and the Lenders with respect to  Collections while on deposit in the Lockbox Account or such other  account or accounts), and (3) contain intercreditor provisions governing all  such interestholders' rights with respect to the respective deposits in which  each has an interest, will be deemed to be an arrangement that provides  substantially similar protections, or a substantially similar level of  protections, with respect to Collections as required by this subclause (A)) or (B) the Administrative Agent has, in its sole discretion, waived the  requirement to implement arrangements of the type described in clause  (A). Any Stop-Funding Event that occurs will be deemed to be continuing until the  earlier of (a) either (1) with respect to the Stop-Funding Events set forth in clauses  (i), (ii) and (iii), the first Reporting Date on which none of the events described in  such clauses exists, (2) with respect to the Stop-Funding Event set forth in clause  (iv), the first date thereafter on which a Backup Servicing Agreement becomes  effective in accordance with the terms of this Agreement or (b) the effective date  of any waiver that is provided by the Required Lenders with respect to the related  Step-up Event, or (3) with respect to the Stop-Funding Event set forth in clause  (v), the first date thereafter on which the requirements of subclause (A) or (B)  thereof are satisfied." (b) Section 1.01 is further amended by deleting the definition of  "Blocked  Account Control Agreement," set forth therein in its entirety. (c) Section 2.08 is amended by deleting clauses (a), (b) and (c) thereof in their  entirety and replacing them with the following: "(a) On or before the applicable Funding Date, the Borrower or the  Servicer shall direct and instruct all related Obligors to make payments in respect  of the related Receivables that are made (i) by mail to be made directly to the  Lockboxes and (ii) by electronic payments to be made to the Lockbox Account.   On and after the applicable Funding Date, the Borrower and the Servicer shall use  commercially reasonable efforts to ensure that all Collections are deposited to the  





 






- 4 - 150870610v5 Lockbox Account (unless this Agreement specifically provides that such  Collections are to be deposited directly to the Collection Account). (b) The Servicer shall instruct the Lockbox Bank to remove all  Collections from the Lockbox Account and deposit such amounts into the  Collection Account within two Business Days of their deposit to the Lockbox  Account.  The Servicer and the Borrower shall deposit all other Collections to the  Collection Account as soon as practicable, but in no event later than two Business  Days after receipt thereof, and at all times prior to such deposit to the Collection  Account the Servicer or the Borrower, as applicable, shall hold such Collections  in trust for the benefit of the Administrative Agent.  Notwithstanding the  foregoing, the Servicer shall be permitted to make all deposits in accordance with  Section 7.03(c)(v) whenever the conditions set forth in that Section are satisfied. (c) The Servicer shall be entitled to retain and to reimbursement of all  amounts remitted by or on behalf of the Obligors to the Servicer under the terms  of, or with respect to, the related Receivables, that represent Ancillary Fees." (d) Section 3.01 is amended by deleting sub-clauses (a)(iv) and (a)(xiii)  thereof in their entirety and replacing them, respectively, with the following: "(iv) the Borrower's rights to Collections on deposit in the Lockbox  Account;" "(xiii) all deposit accounts, monies, deposits, funds, accounts and  instruments relating to the foregoing (subject to the Control Agreement);" (e) Section 3.06 is deleted in its entirety and replaced with the following: "Section 3.06  [Reserved]." (f) Section 5.01 is amended by deleting clause (o) thereof in its entirety and  replacing it with the following: "(o) Lockboxes; Lockbox Account; Collection Account.  None of the  Lockboxes, the Lockbox Account nor any interest therein is currently pledged or  assigned to any party.  The Collection Account or any interest therein has not  been pledged or assigned to any party other than the Administrative Agent." (g) Section 5.03 is amended by deleting clause (j) thereof in its entirety and  replacing it with the following: "(j) Lockbox Account; Collection Account.  Neither the Lockbox  Account nor amounts on deposit therein is currently subject to a pledge made by  the Servicer and neither is currently subject to a control agreement entered into by  the Servicer.  The Servicer has neither pledged nor entered into a control  agreement (other than the Control Agreement) with respect to the Collection  Account or amounts on deposit therein." 





 






- 5 - 150870610v5 (h) Section 6.05 is amended by deleting clause (a) thereof in its entirety and  replacing it with the following: "(a) Lockboxes; Lockbox Account; Collection Account.  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 or the Collection Account.  The Servicer  shall not enter into any "control agreement" (as defined in the relevant UCC) with  respect to the Lockboxes, the Lockbox Account or the Collection Account (other  than the Control Agreement).  Without the prior written Consent of the  Administrative Agent, the Servicer shall not move the Lockboxes, the Lockbox  Account or the Collection Account to an institution other than the one at which it  is held as of the Closing Date." (i) Section 7.03 is amended by deleting sub-clauses (c)(ii) and (c)(iv) thereof  in their entirety and replacing them, respectively, with the following: "(ii) Consistent with the Credit and Collection Policy, if any Receivable  is past due or delinquent, in whole or in part, the Servicer will make reasonable  and customary efforts to contact the Obligor.  The Servicer shall continue its  efforts to obtain payment from an Obligor who is past due or delinquent on a  Receivable until the related Financed Vehicle has been repossessed and sold or  the Servicer has determined that all amounts collectable on the Receivable have  been collected.  The Servicer shall use commercially reasonable efforts, consistent  with the Credit and Collection Policy and the standard of care set forth in Section  7.03(a), to collect funds on a Defaulted Receivable and by the close of business  on the second Business Day following receipt of such Collections to cause such  Collections to be deposited into the Collection Account." "(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." (j) Section 8.02 is amended by deleting clause (b) thereof in its entirety and  replacing it with the following: "(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." (k) Schedule E is amended by deleting Item 4 thereof in its entirety and  replacing it with the following: "4. [Reserved]." 





 






- 6 - 150870610v5 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 effectiveness of  the termination of the Amended and Restated Blocked Account Control Agreement, dated as of  December 31, 2020, by and among DFC, the Administrative Agent, and the Lockbox Bank.  (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. 





 






- 7 - 150870610v5 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. 3 to A&R Loan Agt. (SCFC Business Services LLC)]    CHARIOT FUNDING LLC,    as Conduit Lender    By:  JPMORGAN CHASE BANK, N.A.,    as its attorney-in-fact    By:            Name:  Title:  JPMORGAN CHASE BANK N.A.,    as JPMorgan Agent, as a Committed Lender,    and as Administrative Agent  By:           Name:  Title:    Elizabeth S. Trainor Executive Director Elizabeth S. Trainor Executive Director