SECOND AMENDED AND RESTATED CLASS B NOTE PURCHASE AGREEMENT

Exhibit 10.22

 

 

SECOND AMENDED AND RESTATED

CLASS B NOTE PURCHASE AGREEMENT

 

Dated as of November 5, 2003

 

among

 

AMERICREDIT MASTER TRUST,

as Issuer

 

AMERICREDIT FUNDING CORP. VII

as a Seller,

 

AMERICREDIT FINANCIAL SERVICES, INC.,

as a Seller and as Servicer,

 

THE CLASS B PURCHASERS PARTIES HERETO,

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

Administrative Agent

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

as an Agent,

 

and

 

THE OTHER AGENTS PARTIES HERETO

 

 

Relating to

AmeriCredit Master Trust

Floating Rate Asset Backed Notes, Class B

 

Table of Contents

 

Table of Contents

(continued)

 

 

 

(ii)

SECOND AMENDED AND RESTATED CLASS B NOTE PURCHASE AGREEMENT, dated as of November 5, 2003, by and among AMERICREDIT MASTER TRUST, a Delaware statutory trust (the “ Issuer ”) AmeriCredit Funding Corp. VII, a Delaware corporation (“ AFC ”), individually and in its capacity as a seller (in such capacity, a “ Seller ”), AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation (“ AmeriCredit ”), individually, in its capacity as a Seller (together with AFC, the “ Sellers ”) and in its capacity as servicer (in such capacity, the “ Servicer ”), the CLASS B PURCHASERS (as hereinafter defined) from time to time parties hereto, DEUTSCHE BANK AG, a German banking corporation acting through its New York Branch (“ DBNY ”), as an agent, and the other AGENTS for the Purchaser Groups from time to time parties hereto (each such party, together with their respective successors in such capacity, an “ Agent ”), and, DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative agent (together with its successors in such capacity, the “ Administrative Agent ”).

 

W I T N E S S E T H :

 

WHEREAS, the Issuer, AFC, as a Seller, AmeriCredit, as a Seller and Servicer, certain Class B Purchasers, certain Agents, and DBNY, as an Agent and as the initial Administrative Agent, are parties to a certain Amended and Restated Class B Note Purchase Agreement dated as of February 22, 2002 (the “ Existing Class B Note Purchase Agreement ”);

 

WHEREAS, the parties hereto desire to amend and restate the Existing Class B Note Purchase Agreement in the manner, and on the terms and conditions, herein provided;

 

WHEREAS, the Sellers, the Servicer, the Issuer and Bank One, NA, a national banking association, as Backup Servicer (including its successors in such capacity, the “ Backup Servicer ”) and Trust Collateral Agent (including its successors in such capacity, the “ Trust Collateral Agent ”) are parties to the Second Amended and Restated Sale and Servicing Agreement, dated as of November 5, 2003 (as the same may from time to time be amended, modified or otherwise supplemented, the “ Sale and Servicing Agreement ”);

 

WHEREAS, the Issuer, the Administrative Agent, the Trust Collateral Agent and Bank One, NA, as Trustee (including its successors in such capacity, the “ Trustee ”) are parties to the Second Amended and Restated Indenture, dated as of November 5, 2003 (as the same from time to time be amended, supplemented or otherwise modified, the “ Indenture ”);

 

WHEREAS, the Issuer proposes to issue and sell pursuant to the Indenture its Class A-1 Floating Rate Asset Backed Notes (the “ Class A-1 Notes ”), Class A-2 Floating Rate Asset Backed Notes, (the “ Class A-2 Notes ”), Class S Swingline Asset Backed Notes, (the “ Class S Notes ”), Class B Floating Rate Asset Backed Notes (the “ Class B Notes ”) and Class C Floating Rate Asset Backed Notes (the “ Class C Notes ”);

 

WHEREAS, the Issuer also proposes to issue pursuant to the Indenture additional classes of notes to be designated as the Class D Asset Backed Notes (the “ Class D Notes ”) and Class E Asset Backed Notes (the “ Class E Notes ”);

 

WHEREAS, Class E Notes are subordinate to each other class of Notes, the Class D Notes are subordinate to the Class A-1 and A-2 Notes, the Class B Notes, the Class S

Notes and the Class C Notes, the Class C Notes are subordinate to the Class A-1 and A-2 Notes and the Class B Notes and, as set forth in the Indenture, to the Class S Notes, and the Class B Notes are subordinate to the Class A-1 and A-2 Notes and, as set forth in the Indenture, to the Class S Notes;

 

WHEREAS, the Issuer proposes to establish a Reserve Account (the “ Reserve Account ”) and a Collateral Account (the “ Collateral Account ”) with the Trustee pursuant to the terms of the Indenture for the benefit of the holders of the Class A Notes, the Class S Notes, the Class B Notes and the Class C Notes;

 

WHEREAS, the Class B Purchasers are willing to purchase the Class B Notes in the amount of the Class B Initial Principal Balance (as defined in the Indenture) on the Closing Date (as hereinafter defined) and from time to time thereafter to advance Additional Class B Principal Amounts (as defined in the Indenture) on the terms and conditions provided for herein;

 

NOW THEREFORE, in consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby expressly acknowledged, the parties hereto agree that the Existing Class B Note Purchase Agreement shall be amended and restated in its entirety as follows:

 

ARTICLE 1  DEFINITIONS

 

1.1 Definitions . All capitalized terms used herein as defined terms and not defined herein shall have the meanings given to them in Annex A to the Sale and Servicing Agreement or the Indenture.

 

“ Adjusted Commitment ” shall mean on any date of determination, with respect to a Committed Purchaser for a CP Conduit, such Committed Purchaser’s Commitment minus the sum of (a) the Class B Principal Balance held by such Committed Purchaser plus (b) the aggregate outstanding principal amount of its Support Advances to such CP Conduit (but excluding any Support Advances made to fund such CP Conduit’s obligations to pay interest, fees or other similar amounts relating to the funding of its making or maintaining its purchases hereunder).

 

“ Adjusted Eurodollar Rate ” shall mean, for any Fixed Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) equivalent to the rate determined pursuant to the following formula:

 

Adjusted Eurodollar Rate		=		LIBOR Rate
				1-LIBOR Reserve Percentage

 

on the first day of such Fixed Period.

 

“ Administrative Agent ” has the meaning specified in the preamble to this Agreement.

 

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“ AFC ” has the meaning specified in the preamble to this Agreement and includes any successor or permitted assignee thereof as provided in the Indenture, the Sale and Servicing Agreement and this Agreement.

 

“ Affected Party ” shall mean, with respect to any CP Conduit, any Support Party of such CP Conduit or any related Agent.

 

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

 

“ Agreement ” shall mean this Class B Note Purchase Agreement, as amended, supplemented or otherwise modified from time to time.

 

“ Alternative Rate ” for any Borrowing means a rate per annum equal to the Applicable LIBOR Spread per annum above the Adjusted Eurodollar Rate for such Borrowing; provided , however , that in the case of

 

(a) any Fixed Period on or after the first day on which a Committed Purchaser shall have notified the related Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for such Committed Purchaser to fund such Borrowing at the Alternative Rate set forth above (and such Committed Purchaser shall not have subsequently notified such Agent that such circumstances no longer exist),

 

(b) any Fixed Period of less than seven days,

 

(c) in the event the Adjusted Eurodollar Rate is not reasonably available to any Agent for such a Fixed Period or does not adequately and fairly reflect the cost to a Committed Purchaser of funding such Borrowing, or

 

(d) any Fixed Period as to which the related Borrowing will not be funded by issuance of commercial paper, as determined by the related Agent (on behalf of a Noncommitted Purchaser) later than 12:00 noon (New York City time) on the second Business Day preceding the first day of such Fixed Period,

 

the “ Alternative Rate ” shall be a floating rate per annum equal to the Prime Rate in effect on each day of such Fixed Period; provided , further , that the Administrative Agent (with the consent of the Committed Purchasers) and the Issuer may agree in writing from time to time upon a different “ Alternative Rate .”

 

“ AmeriCredit ” has the meaning specified in the preamble to this Agreement and includes any successor or permitted assignee thereof as provided in the Indenture, the Sale and Servicing Agreement and this Agreement.

 

“ Applicable LIBOR Spread ” shall mean, with respect to a Purchaser Group, the rate identified as its “Applicable LIBOR Spread” in the Supplemental Fee Letter to which the Agent for such Purchaser Group is a party.

 

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“ Assignee ” and “ Assignment ” have the respective meanings specified in subsection 8.1(e) of this Agreement.

 

“ Borrowing Notice ” shall mean a notice, substantially in the form of Exhibit D , delivered by the Issuer to the Administrative Agent and each Agent pursuant to Section 12.6(a) of the Indenture and subsection 2.1(c) of this Agreement, requesting an advance of an Additional Class B Principal Amount.

 

“ Class B Average Principal Balance ” shall mean, with respect to any period, the sum of the Class B Principal Balances for each of the days during such period, divided by the number of days in such period.

 

“ Class B Commitment Fee ” has the meaning specified in subsection 2.3(c) of this Agreement.

 

“ Class B Commitment Fee Rate ” shall be .75%.

 

“ Class B Facility Limit ” shall mean, for any day, the lesser of the Class B Borrowing Base and the Total Commitment on such day.

 

“ Class B Mandatory Partial Amortization Amount ” shall mean, with respect to a Partial Expiration Event, the sum of (i) the aggregate Percentage Interests of all Committed Purchasers which became Nonextending Class B Purchasers upon the occurrence of such Partial Expiration Event, times the Class B Principal Balance on the date on which such Partial Expiration Event occurred, plus (ii) for each such Committed Purchaser, such Committed Purchaser’s Liquidity Percentage times its related CP Conduit’s Percentage Interest of the Class B Principal Balance on the date on which such Partial Expiration Event occurred, in each case after giving effect to all purchases of and payments in respect of the Class B Principal Balance occurring through and including such date.

 

“ Class B Monthly Costs and Expenses ” shall mean on any date of determination any amounts then due and payable by the Issuer or either Seller (determined without regard to limitations on the sources of payment thereof) pursuant to this Agreement, other than Class B Monthly Interest and Fees and the Class B Principal Balance.

 

“ Class B Monthly Interest and Fees ” shall mean, for any Interest Period, the sum of (i) interest on the Class B Principal Balance for the Interest Period ended on the related Distribution Date computed pursuant to subsection 2.3(a) or 2.3(b), as applicable, plus or minus (as the case may be) (ii) any Estimated Interest Adjustment for the immediately preceding Interest Period, plus (iii) the Class B Usage Fee with respect to such Interest Period, plus (iv) the Class B Commitment Fee with respect to such Interest Period.

 

“ Class B Owners ” shall mean the Class B Purchasers that are owners of record of the Class B Notes or, with respect to any Class B Note held by an Agent hereunder as nominee on behalf of Class B Purchasers in a Purchaser Group, the Class B Purchasers that are beneficial owners of such Class B Note as reflected on the books of such Agent in accordance with this Agreement and the Related Documents.

 

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“ Class B Principal Balance ” shall mean, with respect to any date, an amount equal to the excess of (a) the sum of (i) the Class B Initial Principal Balance, plus (ii) the aggregate principal amounts of any Additional Class B Principal Amounts advanced pursuant to Section 12.6(a) of the Indenture, over (b) the aggregate amount of any principal payments made to Class B Owners pursuant to the Sale and Servicing Agreement and the Indenture through and including such date.

 

“ Class B Purchasers ” shall mean, collectively, the CP Conduits and the Committed Purchasers.

 

“ Class B Notes ” has the meaning specified in the recitals to this Agreement.

 

“ Class B Usage Fee ” has the meaning specified in subsection 2.3(c) of this Agreement.

 

“ Class B Usage Fee Rate ” shall mean the applicable rate or rates identified as the “Class B Usage Fee Rate” in the Supplemental Fee Letter entered into on the Initial Closing Date between the Issuer and the Administrative Agent, for the benefit of, among others, the Class B Purchasers.

 

“ Collateral Receipt ” means a Custodian’s Acknowledgment in the form of Schedule A to the Custodian Agreement.

 

“ Commercial Paper Notes ” shall mean, with respect to a CP Conduit, the short-term promissory notes or extendable money market notes issued by such CP Conduit which are allocated by such CP Conduit as its funding for its purchasing or maintaining its Percentage Interest of the Class B Principal Balance hereunder.

 

“ Commercial Paper Rate ” shall mean, with respect to a CP Conduit, the rate identified as its “Commercial Paper Rate” in the Supplemental Fee Letter to which such CP Conduit or its Agent is a party.

 

“ Commitment ” shall mean, for any Committed Purchaser, the maximum amount of such Class B Purchaser’s commitment to purchase a portion of the Class B Principal Balance, as set forth on Schedule I hereto or the Transfer Supplement or Joinder Supplement by which such Committed Purchaser became a party to this Agreement or assumed the Commitment (or a portion thereof) of another Class B Purchaser, as such amount may be adjusted from time to time pursuant to Section 2.2 of this Agreement or pursuant to Transfer Supplement(s) executed by such Class B Purchaser and its Assignee(s) and delivered pursuant to Section 8.1 of this Agreement. In the event that a Committed Purchaser which maintains a portion of its Commitment hereunder in relation to more than one CP Conduit, such Class B Purchaser shall be deemed to have issued separate Commitments hereunder in each such capacity.

 

“ Commitment Termination Date ” shall mean, with respect to a Committed Purchaser, November 5, 2006, as such date may be extended by such Committed Purchaser from time to time in accordance with subsection 2.2(c) hereof.

 

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“ Committed Purchaser ” shall mean, with respect to a CP Conduit, each Class B Purchaser identified as a Committed Purchaser for such CP Conduit on the signature pages hereto or in the Transfer Supplement or Joinder Supplement pursuant to which such CP Conduit became a party hereto, and any Assignee of such Class B Purchaser to the extent such Assignee has assumed, pursuant to a Transfer Supplement, the Commitment of such Class B Purchaser.

 

“ Conduit Borrower ” shall mean an entity which is designated as a Conduit Borrower on the signature pages hereto or in the Transfer Supplement or Joinder Supplement pursuant to which it became a party to this Agreement, which entity will fund its purchases of Class B Notes hereunder by borrowing from a specified financing conduit.

 

“ CP Conduit ” shall mean any Class B Purchaser which is designated as a CP Conduit on the signature pages hereto or in the Transfer Supplement or Joinder Supplement pursuant to which it became a party to this Agreement; provided , however , that if the entity signing this Agreement or such Transfer Supplement or Joinder Supplement specifies on the related signature page that it is a Conduit Borrower with respect to a financing conduit identified on such signature page, then, with respect to such Class B Purchaser, “CP Conduit” shall mean, collectively, such Conduit Borrower and such specified financing conduit.

 

“ CP Conduit Consolidation Event ” shall mean the occurrence of any of the following events (i) the Securities and Exchange Commission, any banking regulatory authority or any other official body having jurisdiction over any Committed Purchaser or Agent or any of the Affiliates of such Committed Purchaser or Agent, shall require the consolidation of the assets and liabilities of any CP Conduit on the balance sheet of such Committed Purchaser, Agent or Affiliate, or shall require that capital be maintained with respect thereto under any capital requirements as if such assets were owned by such Committed Purchaser, Agent or Affiliate, (ii) the independent auditors for any such Committed Purchaser, Agent or Affiliate shall have advised such Committed Purchaser, Agent or Affiliate in writing that in their opinion such consolidation is required by GAAP or applicable law, rule or regulations, (iii) any Affected Party shall determine that any arrangement or transaction contemplated by this Agreement or any Related Documents will impose any adverse regulatory impact on such Affected Party, including, without limitation, any cost or expense described in Section 2.4 hereof; or (iv) any CP Conduit shall determine that it may be required to register as an investment company under the Investment Company Act of 1940, as amended.

 

“ DBNY ” has the meaning specified in the preamble to this Agreement.

 

“ Dissenting Purchaser ” has the meaning specified in subsection 2.2(c) of this Agreement.

 

“ Downgraded Purchaser ” has the meaning specified in subsection 8.1(j) of this Agreement.

 

“ Election Period ” has the meaning specified in subsection 2.2(c) of this Agreement.

 

“ Estimated Interest Adjustment ” has the meaning specified in subsection 2.3(i) of this Agreement.

 

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“ Excluded Taxes ” has the meaning specified in subsection 2.5(a) of this Agreement.

 

“ Fixed Period ” means with respect to any Borrowing (or portion thereof):

 

(a) the period commencing on the date of the initial funding of such Borrowing (or such portion) and ending such number of days thereafter as the Issuer shall select in accordance with Section 2.3(b) ; and

 

(b) thereafter, each period commencing on the last day of the immediately preceding Fixed Period for such Borrowing (or such portion) and ending such number of days thereafter as the Issuer shall then select in accordance with Section 2.3(b) ;

 

provided , however , that:

 

(i) any Fixed Period in respect of which interest on the Class B Notes is computed by reference to the Alternative Rate shall be a period of from one to and including 29 days (if reasonably available to the Agents), or a period of one month (or such longer period as is agreed to by the Issuer and the Agents), as the Issuer may select by written notice to the Agents furnished not later than 12:00 noon (New York City time) on the second Business Day preceding the first day of such Fixed Period;

 

(ii) any such Fixed Period (other than a Fixed Period consisting of one day) that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day (unless the related Borrowing shall be accruing interest at a rate determined by reference to the LIBOR Rate, in which case if such succeeding Business Day is in a different calendar month, such Fixed Period shall instead be shortened to the next preceding Business Day);

 

(iii) in the case of Fixed Periods of one day, (A) the initial Fixed Period shall be the day of the initial funding of such Borrowing, and (B) any subsequently occurring Fixed Period that is one day shall, if the immediately preceding Fixed Period is more than one day, be the last day of such immediately preceding Fixed Period, and if the immediately preceding Fixed Period is one day, shall be the next day following such immediately preceding Fixed Period;

 

(iv) if any Fixed Period for any Borrowing that commences before the Stated Maturity Date would otherwise end on a date occurring after the Stated Maturity Date, such Fixed Period shall end on the Stated Maturity Date and the duration of each such Fixed Period that commences on or after the Stated Maturity Date or the date on which the payment of principal on the Notes has been accelerated, if any , shall be of such duration as shall be selected by the Agents; and

 

(v) if the Alternative Rate becomes applicable to any Borrowing previously funded at the Commercial Paper Rate or if the Alternative Rate applicable to any Borrowing changes from the Adjusted Eurodollar Rate to the

 

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Prime Rate, the Fixed Period previously selected for such Borrowing shall terminate and the Fixed Period for such Borrowing shall be that selected by the Issuer by written notice to the Agents after it receives notice of such change.

 

“ Governmental Authority ” shall mean any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

“ Indemnitee ” has the meaning specified in subsection 2.6(a) of this Agreement.

 

“ Indenture ” has the meaning specified in the recitals to this Agreement.

 

“ Interest Period ” shall mean, with respect to any Distribution Date, the period from and including the Distribution Date immediately preceding such Distribution Date (or, in the case of the first Distribution Date, from and including the Closing Date) to but excluding such Distribution Date.

 

“ Interest Rate Determination Date ” shall mean, for any Interest Period, the Business Day immediately preceding the Determination Date for such Interest Period.

 

“ Investing Office ” shall mean initially, the office of any Class B Purchaser (if any) designated as such, on the signature pages hereto or in the Transfer Supplement or the Joinder Supplement by which it became a party to this Agreement, and thereafter, such other office of such Class B Purchaser or such Assignee as may be designated in writing to the applicable Agent, the Administrative Agent, the Servicer and the Trustee by such Class B Purchaser or Assignee.

 

“ Joinder Supplement ” means an agreement among one or more Class B Purchasers, the Issuer, AmeriCredit, an Agent and the Administrative Agent in the form of Exhibit C hereto (appropriately completed).

 

“ LIBOR Rate ” shall mean, with respect to any Fixed Period, the rate per annum shown on Telerate Page 3750 as the composite offered rate for London interbank deposits for a period equal to such Fixed Period, as shown under the heading “USD” as of 11:00 a.m., London time, two Business Days prior to the first day of such Fixed Period; provided that in the event no such rate is shown, the LIBOR Rate shall be the rate per annum based on the rates at which Dollar deposits for a period equal to such Fixed Period are displayed on page “LIBOR” of the Reuters Monitor Money Rates Service or such other page as may replace the LIBOR page on that service for the purpose of displaying London interbank offered rates of major banks as of 11:00 a.m., London time, two London Business Days prior to the first day of such Fixed Period (it being understood that if at least two such rates appear on such page, the rate will be the arithmetic mean of such displayed rates); provided further that in the event fewer than two such rates are displayed, or if no such rate is relevant, the LIBOR Rate shall be a rate per annum at which deposits in Dollars are offered by the principal office of Deutsche Bank AG in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Fixed Period for delivery on such first day and for a period equal to such Fixed Period.

 

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“ LIBOR Reserve Percentage ” shall mean, with respect to any Fixed Period, a percentage (expressed as a decimal) equal to the weighted average of the percentages in effect during such Interest Period, as prescribed by the Board of Governors of the Federal Reserve System (or any successor thereto) for determining the maximum reserve requirements applicable to “Eurocurrency liabilities” pursuant to Regulation D or any other applicable regulation of the Federal Reserve Board (or any successor thereto) which prescribes reserve requirements applicable to “Eurocurrency liabilities” as currently defined in Regulation D.

 

“ Liquidity Percentage ” shall mean, for a Committed Purchaser for a CP Conduit, such Committed Purchaser’s Adjusted Commitment with respect to such CP Conduit as a percentage of the aggregate Adjusted Commitments of all Committed Purchasers for such CP Conduit.

 

“ Majority Class B Owners ” shall mean, at any time, Class B Owners having more than 51% of the aggregate Percentage Interests of all Class B Owners.

 

“ Majority Class B Purchasers ” shall mean, at any time, Committed Purchasers having Commitments aggregating more than 51% of the Total Commitment.

 

“ Maximum Purchase Amount ” shall mean, for any CP Conduit, the aggregate Commitments of its Committed Purchasers, as set forth on Schedule I hereto.

 

“ Nonextending Class B Purchaser ” shall mean, after its respective Commitment Termination Date, each Committed Purchaser which has declined to extend such Commitment Termination Date in accordance with subsection 2.2(c) hereof.

 

“ Partial Expiration Event ” has the meaning specified in subsection 2.2(c) of this Agreement.

 

“ Participant ” has the meaning specified in subsection 8.1(d) of this Agreement.

 

“ Participation ” has the meaning specified in subsection 8.1(d) of the Agreement.

 

“ Percentage Interest ” shall mean, as to any Class B Purchaser at any time of determination, the percentage equivalent of a fraction the numerator of which shall be an amount equal to the portion of the unpaid principal amount of the Class B Principal Balance owing to such Class B Purchaser (or, if no amount of the Class B Principal Balance is outstanding, the amount of its Commitment, if any) at such time (after giving effect to all Assignments effective on or prior to such time of determination) and the denominator of which shall be an amount equal to the aggregate Class B Principal Balance (or, if no amount of the Class B Principal Balance is outstanding, the Total Commitment) at such time.

 

“ Permitted Transferee ” shall mean (i) each Class B Purchaser, each Support Party, each Agent (in its individual capacity), the Administrative Agent (in its individual capacity) and, with respect to each transferring Class B Purchaser, any commercial paper conduit administered by the related Agent, (ii) each other Person who has been consented to as a potential Transferee by the Sellers (which consent shall not be withheld (except for a commercially reasonable purpose or reason) or delayed) and (iii) after the occurrence of an Event of Default, any other Person.

 

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“ Prime Rate ” shall mean, for any day, a fluctuating rate of interest per annum equal to the higher of: (i) a fluctuating rate of interest per annum equal to the “Prime Rate” most recently published in the Wall Street Journal and described as “the base rate on corporate loans posted by at least 75% of the nation’s 30 largest banks”, and (ii) 0.50% above the rate per annum at which Deutsche Bank AG, New York Branch, as a branch of a foreign bank, in its reasonable discretion, can acquire federal funds in the interbank overnight federal funds market, through brokers of recognized standing or otherwise, as most recently determined by Deutsche Bank AG, New York Branch. The Prime Rate is not necessarily intended to be the lowest rate of interest determined by Deutsche Bank AG or Deutsche Bank AG, New York Branch, in connection with extensions of credit.

 

“ Purchase Date ” shall mean the Closing Date and each Borrowing Date.

 

“ Purchase Termination Date ” shall mean, for each Class B Purchaser, the earliest to occur of (i) the Commitment Termination Date for such Purchaser or, with respect to a Class B Purchaser which is a CP Conduit, the first date on which Commitment Termination Dates for all its Committed Purchasers have occurred, (ii) the date of any termination of the Total Commitment, in whole, by the Issuer pursuant to Section 2.2 and (iii) the effective date on which the Commitments are terminated or deemed terminated pursuant to Section 2.8.

 

“ Purchaser Group ” shall mean each group of Class B Purchasers consisting of (i) a CP Conduit, and (ii) the Committed Purchasers with respect to such CP Conduit. The initial Class B Purchaser Group shall be the Gemini Purchaser Group, which shall consist of Gemini Securitization Corp., as the CP Conduit, and DBNY, as the Committed Purchaser. The Agent for the Gemini Purchaser Group shall be DBNY.

 

“ Purchaser Percentage ” shall mean, with respect to a CP Conduit, its Maximum Purchase Amount as a percentage of the Total Commitment.

 

“ Regulatory Change ” shall mean, as to each Class B Purchaser, any change occurring after the date of the execution and delivery of this Agreement or, if later, the date of the execution and delivery of the Transfer Supplement or the Joinder Supplement by which it became party to this Agreement; in the case of a Participant, any change occurring after the date on which its Participation became effective, or in the case of an Support Party, any change occurring after the date it became such an Support Party, in any (or the adoption after such date of any new):

 

(i) United States Federal or state law or foreign law applicable to such Class B Purchaser, Participant or Support Party; or

 

(ii) regulation, interpretation, directive, guideline or request (whether or not having the force of law) applicable to such Class B Purchaser, Participant or Support Party of any court or other judicial authority or any Governmental Authority charged with the interpretation or administration of any law referred to in clause (i) or of any fiscal, monetary or other Governmental Authority or central bank having jurisdiction over such Class B Purchaser, Participant or Support Party.

 

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“ Related Documents ” shall mean, collectively, this Agreement (including all effective Supplemental Fee Letters, Transfer Supplements, and Joinder Supplements), the other Note Purchase Agreements, the Indenture, the Sale and Servicing Agreement, the Notes, and all supplements, agreements and instruments related thereto.

 

“ Replacement Purchaser ” has the meaning specified in subsection 2.5(d).

 

“ Required Class B Owners ” shall mean, at any time, Class B Owners having more than 66-2/3% of the aggregate Percentage Interests of all Class B Owners.

 

“ Required Class B Purchasers ” shall mean, at any time, Committed Purchasers having Commitments aggregating more than 66-2/3% of the Total Commitment.

 

“ Requirement of Law ” shall mean, as to any Person, any law, treaty, rule or regulation, or determination of an arbitrator or Governmental Authority, in each case applicable to or binding upon such Person or to which such Person is subject, whether federal, state or local (including usury laws, the Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of Governors of the Federal Reserve System).

 

“ Reserve Account ” has the meaning specified in the recitals to this Agreement.

 

“ Sale and Servicing Agreement ” has the meaning specified in the recitals to this Agreement.

 

“ Supplemental Fee Letter ” shall mean each letter agreement, designated therein as a Supplemental Fee Letter and then in effect, between the Sellers and an Agent, as such letter agreement may be amended or otherwise modified from time to time.

 

“ Support Advances ” shall mean, with respect to a Committed Purchaser and its related CP Conduit, any participation held by such Committed Purchaser in such CP Conduit’s Percentage Interest in the Class B Principal Balance which was purchased from such CP Conduit pursuant to a Support Facility and any loans or other advances made by such Committed Purchaser to such CP Conduit pursuant to a Support Facility to fund such CP Conduit’s making or maintaining its purchases hereunder.

 

“ Support Facility ” shall mean any liquidity or credit support agreement with a CP Conduit which relates to this Agreement (including any agreement to purchase an assignment of or participation in Class B Notes).

 

“ Support Party ” shall mean any other bank, insurance company or other financial institution extending or having a commitment to extend funds to or for the account of a CP Conduit (including by agreement to purchase an assignment of or participation in Class B Notes or by swap agreement) under a Support Facility. Each Committed Purchaser for a CP Conduit (other than a Committed Purchaser which is also a CP Conduit) shall be deemed to be a Support Party for such CP Conduit.

 

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“ Taxes ” has the meaning specified in subsection 2.5(a) of this Agreement.

 

“ Telerate Page 3750 ” shall mean the display page currently so designated on the Bridge Telerate Markets Report (or such other page as may replace that page on that service or any service which is a successor thereto for the purpose of displaying comparable rates or prices).

 

“ Termination Date ” shall mean the first date on which the Purchase Termination Date for all Class B Purchasers has occurred.

 

“ Termination Event ” shall mean:

 

(a) the occurrence of any Event of Default or Servicer Termination Event or the occurrence of an event or condition which would be an Event of Default or Servicer Termination Event but for a waiver of such event by the Noteholders or the Trustee (unless waived by the Required Class B Owners and Required Class B Purchasers);

 

(b) any breach on the part of the Issuer, AFC, either Seller, AmeriCredit or the Servicer of any representation or warranty made or deemed made in this Agreement, which breach continues unremedied for a period of 30 days after the earlier of the date on which the Issuer, AFC, such Seller, AmeriCredit or the Servicer, as the case may be, shall have had actual knowledge of such breach and the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Issuer, AFC, such Seller, AmeriCredit or the Servicer, as the case may be, by the Administrative Agent, Required Class B Owners or Required Class B Purchasers; provided , however , that a Termination Event shall be deemed not to have occurred under this clause (b) with respect to a breach of a representation or warranty made or deemed made in this Agreement with respect to a Receivable if the Seller has accepted reassignment of such Receivable in accordance with the terms and conditions of the Sale and Servicing Agreement;

 

(c) any failure on the part of the Issuer, AFC, either Seller, AmeriCredit or the Servicer duly to observe or perform in any material respect any of the covenants or agreements on its part to be observed or performed contained in this Agreement (other than as provided in clauses (a) or (b) above) which continues unremedied for a period of 30 days after the earlier of the date on which the Issuer, AFC, such Seller, AmeriCredit or the Servicer, as the case may be, shall have had actual knowledge of such breach and the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Issuer, AFC, such Seller, AmeriCredit or the Servicer, as the case may be, by the Administrative Agent, Required Class B Owners or Required Class B Purchasers.

 

“ Total Commitment ” shall mean, on any date of determination, the aggregate Commitments of the Committed Purchasers.

 

“ Transfer ” has the meaning specified in subsection 8.1(c) of this Agreement.

 

“ Transfer Supplement ” has the meaning specified in subsection 8.1(e) of this Agreement.

 

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“ Transferee ” has the meaning specified in subsection 8.1(c) of this Agreement.

 

“ Trustee ” has the meaning specified in the recitals to this Agreement.

 

“ written ” or “ in writing ” (and other variations thereof) shall mean any form of written communication or a communication by means of telex, telecopier device, telegraph or cable.

 

1.2 Other Definitional Provisions .

 

(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto.

 

(b) The words “hereof”, “herein”, and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; and Section, subsection and Exhibit references are to this Agreement, unless otherwise specified. The words “including” and “include” shall be deemed to be followed by the words “without limitation”.

 

ARTICLE 2  AMOUNT AND TERMS OF COMMITMENTS

 

2.1 Purchases .

 

(a) On and subject to the terms and conditions of this Agreement, on the Closing Date each initial CP Conduit may, in its sole discretion, purchase its Purchaser Percentage of the Class B Initial Principal Balance for a purchase price equal to the portion the Class B Initial Principal Balance so purchased.

 

(b) (i) On and subject to the terms and conditions of this Agreement and prior to the related Purchase Termination Date, each CP Conduit may, in its sole discretion, purchase its Purchaser Percentage of any Additional Class B Principal Amount offered for purchase pursuant to Section 12.6(a) of the Indenture and subsection 2.1(c) hereof.

 

(ii) Subject to the provisions of Section 2.1(g) hereof and so long as the related Swingline Borrowing was funded in compliance with the terms of Section 12.6(b) of the Indenture, the Committed Purchasers agree to make purchases of Additional Class B Principal Amounts on or prior to the related Commitment Termination Date to refund Swingline Borrowings and/or to purchase participations in Swingline Borrowings in accordance with Section 12.6(b) of the Indenture. The obligation of Committed Purchaser to so purchase Additional Class B Principal Amounts and/or participations in Swingline Borrowings pursuant to Section 12.6(b) of the Indenture shall be absolute, irrevocable and unconditional, and not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right which such Committed Purchaser or the Issuer may have against the Class S Noteholders, the Issuer, either Seller, the Servicer, the Trustee, the Administrative Agent or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default (including the occurrence of any Insolvency Event with respect to the Issuer), (iii) any Borrowing Base Deficiency or any adverse change in the Collateral or in the condition

 

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(financial or other) of the Issuer, either Seller or the Servicer, (iv) any breach of the Indenture or any Basic Document by the Issuer, either Seller, the Servicer, the Trust Collateral Agent, the Custodian, the Backup Servicer, the Administrative Agent or the Trustee, (v) the failure of the conditions set forth in Section 3.2 of this Agreement to have been or to be satisfied, or (vii) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. Any purchase of a participation in a Swingline Borrowing shall be deemed to increase the Class B Principal Balance for purposes of this Agreement.

 

(c) Each purchase of any Additional Class B Principal Amount hereunder on the applicable Borrowing Date shall be in accordance with the provisions of Section 12.6(a) of the Indenture upon delivery of a Borrowing Notice by the Issuer to the Administrative Agent received no later than 11:00 a.m., New York City time, at least one Business Day prior to such Borrowing Date, and the Administrative Agent shall give notice of any such Borrowing to the related Agents by telecopier before 2:00 p.m., New York City time, on the day it receives notice from the Issuer. Each Borrowing Notice shall (i) identify the relevant Borrowing Date, (ii) set forth the Additional Class B Principal Amount which is requested from the Class B Purchasers on such Borrowing Date and the desired duration of the Fixed Period for such Additional Class B Principal Amount, (iii) specify an account in the United States to which payment for the purchase price of such Additional Class B Principal Amount is to be made, and (iv) certify that the applicable conditions to the purchase of such Additional Class B Principal Amount contained in Section 3.2 hereto have been satisfied. Each Borrowing Notice shall be irrevocable and shall specify an Additional Class A-1 Principal Amount, an Additional Class A-2 Principal Amount an Additional Class B Principal Amount, and/or an Additional Class C Principal Amount which, except in the case of borrowings the proceeds of which are used to repay Swingline Borrowings, in the aggregate equal at least $50,000,000 and in an integral multiple of $1,000,000. The Issuer may not deliver more than two Borrowing Notices hereunder or under the Class A-1 Purchase Agreement, Class A-2 Purchase Agreement or the Class C Purchase Agreement in any calendar week. The Administrative Agent shall promptly forward a copy of each Borrowing Notice received by it to each Agent and each Class B Purchaser.

 

(d) Each CP Conduit shall notify the Agent for its Purchaser Group by 10:00 a.m., New York City time, on the applicable Purchase Date whether it has elected to make the purchase offered to it pursuant to subsection 2.1(a) or 2.1(b) of this Agreement. In the event that a CP Conduit shall not have timely provided such notice, such CP Conduit shall be deemed to have elected not to make such purchase. Such Agent shall notify each Committed Purchaser for such CP Conduit on or prior to 11:00 a.m., New York City time, on the applicable Purchase Date if such CP Conduit has not elected to purchase its entire Purchaser Percentage of the Class B Initial Principal Balance or the Additional Class B Principal Amount, as the case may be, which notice shall specify (i) the identity of such CP Conduit, (ii) the portion of the Class B Initial Principal Balance or the Additional Class B Principal Amount, as the case may be, which such CP Conduit has not elected to purchase as provided above, and (iii) the respective Liquidity Percentages of such Committed Purchasers on such Purchase Date (as determined by such Agent in good faith; for purposes of such determination, such Agent shall be entitled to rely conclusively on the most recent information provided by such CP Conduit or its agent or by the agent for its Support Parties). Subject to receiving such notice and to the satisfaction of the applicable conditions set forth in Article 3 hereof, each of such CP Conduit’s Committed Purchasers shall make a purchase of Class B Notes on the applicable Purchase Date in an amount

 

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equal to its Liquidity Percentage of the portion of the Class B Initial Principal Balance or the Additional Class B Principal Amount, as the case may be, which such CP Conduit has not elected to purchase, for a purchase price equal to its share of the Class B Initial Principal Balance or the Additional Class B Principal Amount, as applicable, so purchased.

 

(e) Each Class B Purchaser’s purchase price payable pursuant to subsection 2.1(a), 2.1(b) or 2.1(d) of this Agreement shall be made available to the Agent for its Purchaser Group, subject to the fulfillment of the applicable conditions set forth in Article 3 hereof, at or prior to 2:00 p.m., New York City time, on the applicable Purchase Date, by deposit of immediately available funds to an account of such Agent specified in subsection 9.2(b) of this Agreement. Such Agent shall promptly notify the Servicer in the event that any Class B Purchaser either fails to make such funds available to such Agent before such time or notifies such Agent that it will not make such funds available to such Agent before such time. Subject to (i) such Agent’s receipt of such funds and (ii) the fulfillment of the applicable conditions set forth in Article 3 hereof, as determined by such Agent, such Agent will not later than 4:00 p.m., New York City time, on such Purchase Date make such funds available, in the same type of funds received, by wire transfer thereof to the account in the United States specified by the Issuer in the applicable Borrowing Notice or, in the case of the purchase on the Closing Date, specified in writing by the Issuer to such Agent not later than the Business Day prior to the Closing Date.

 

(f) In the event that notwithstanding the fulfillment of the applicable conditions set forth in Article 3 hereof with respect to a purchase, a CP Conduit elected to make a purchase on a Purchase Date but failed to make its purchase price available to the Agent for its Purchaser Group when required by subsection 2.1(e) of this Agreement, such CP Conduit shall be deemed to have rescinded its election to make such purchase, and neither the Issuer nor any other party shall have any claim against such CP Conduit by reason of its failure to timely make such purchase. In any such case, such Agent shall give notice of such failure not later than 2:30 p.m., New York City time, on the Purchase Date to each Committed Purchaser for such CP Conduit and to the Issuer and the Servicer, which notice shall specify (i) the identity of such CP Conduit, (ii) the amount of the purchase which it had elected but failed to make and (iii) the respective Liquidity Percentages of such Committed Purchasers on such Purchase Date (as determined by such Agent in good faith; for purposes of such determination, such Agent shall be entitled to rely conclusively on the most recent information provided by such CP Conduit or its agent or by the agent for its Support Parties). Subject to receiving such notice, each of such CP Conduit’s Committed Purchasers shall purchase a portion of the Class B Principal Balance in an amount equal to its Liquidity Percentage of the amount described in clause (ii) above at or before 4:00 p.m., New York City time, on such Purchase Date and otherwise in accordance with subsection 2.1(d) of this Agreement. Subject to such Agent’s receipt of such funds, such Agent will not later than 5:00 p.m., New York City time, on such Purchase Date make such funds available, in the same type of funds received, by wire transfer thereof to the account of the Issuer described in subsection 2.1(e) of this Agreement, which payment shall be deemed to be timely for purposes of the Indenture.

 

(g) In no event shall a Committed Purchaser be required on any date to purchase an Additional Class B Principal Amount or a participation in Swingline Borrowings which would result in its Percentage Interest of the Class B Principal Balance, determined after giving effect to such purchase, exceeding its Commitment. In no event may any Additional

 

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Class B Principal Amount be offered for purchase hereunder or under Section 12.6(a) of the Indenture, nor shall any Class B Purchaser be obligated to purchase any Additional Class B Principal Amount, to the extent that, after giving effect to such Additional Class B Principal Amount, the Class B Principal Balance would exceed the Class B Facility Limit.

 

2.2 Reductions and Extensions of Commitments .

 

(a) At any time the Issuer may, upon at least two Business Days’ prior written notice to the Administrative Agent, reduce the Total Commitment. Each partial reduction shall be in an aggregate amount of $25,000,000 or integral multiples of $5,000,000 in excess thereof (or such other amount requested by the Issuer to which the Administrative Agent consents). Reductions of the aggregate Commitments pursuant to this subsection 2.2(a) of this Agreement shall be allocated (x) to the Maximum Purchase Amount of each CP Conduit, pro rata based on the Purchaser Percentage represented by such Maximum Purchase Amount, and (y) to the aggregate Commitments of Committed Purchasers for each CP Conduit pro rata based on their respective Liquidity Percentages, provided that if the Commercial Paper Notes of any CP Conduit are not rated at least A-1 or the equivalent by any two of S&P, Moody’s and Fitch Rating Services, the Issuer may allocate a non- pro rata portion of any such reduction to the Maximum Purchase Amount of such CP Conduit and may allocate a non- pro rata portion of any such reduction to the Commitment of any Committed Purchaser for such CP Conduit which is a Downgraded Purchaser (it being understood that the Issuer will allocate any reduction of the Maximum Purchase Amounts of any CP Conduit pro rata according to its Maximum Purchase Amounts, if any, under each of the Class A-1 Note Purchase Agreement, the Class A-2 Note Purchase Agreement, the Class B Note Purchase Agreement and the Class C Note Purchase Agreement).

 

(b) On the Purchase Termination Date for a Committed Purchaser, the Commitment of such Class B Purchaser shall be automatically reduced to zero.

 

(c) So long as no Termination Event has occurred and is continuing, the Issuer may request, through the Administrative Agent, that each Class B Purchaser consent to an extension of the Commitment Termination Date for such period as the Issuer may specify (the “ Extension Length ”), which decision will be made by each Class B Purchaser in its sole discretion, provided that on the date of the effectiveness of any such extension, and after giving effect to such extension, the Commitment Termination Date will not be more than three years from such date. Upon receipt of any such request, the Administrative Agent shall promptly notify each Agent thereof, which shall notify each Class B Purchaser in its Purchaser Group thereof. Not more than 60 days following the date of a request for an extension (such 60-day period, the “ Election Period ”), each Class B Purchaser shall notify the Agent for its Purchaser Group of its willingness or refusal to so consent to an extension of the Commitment Termination Date, and such Agent shall notify the Issuer and the Administrative Agent of such willingness or refusal by each Class B Purchaser not later than the Business Day following the last day of the Election Period. Any Class B Purchaser which notifies the applicable Agent of its refusal to consent to the extension or which does not expressly notify such Agent that it is willing to consent to an extension of the Commitment Termination Date during the applicable Election Period shall be deemed to be a (x) Nonextending Class B Purchaser after the Commitment Termination Date then in effect (such occurrence, unless such Nonextending Class B Purchaser

 

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is replaced pursuant to subsection 2.2(d) of this Agreement or unless the Purchase Termination Date shall have occurred, a “ Partial Expiration Event ”) and (y) “ Dissenting Purchaser ” from the date of its refusal notice or the end of the applicable Election Period. If a Class B Purchaser has agreed to extend its Commitment Termination Date, and, at the end of the applicable Election Period no Termination Event shall have occurred, the Commitment Termination Date for such Class B Purchaser then in effect shall be extended to the date which is the Extension Length after its then current Commitment Expiration Date.

 

(d) Within two Business Days following the end of an Election Period, the Agent for each Purchaser Group shall notify each other Class B Purchaser in such Purchaser Group, the Administrative Agent, the Issuer and the Servicer of the identity of any Dissenting Purchaser and the amount of its Commitment, if any. Any of such Agent, the Issuer or, if the Dissenting Purchaser is a Committed Purchaser, the affected CP Conduit, may (but shall not be required to) request one or more other Class B Purchasers in such Purchaser Group, with the consent of the Agent (which shall not be unreasonably withheld) and, if the Dissenting Purchaser is a Committed Purchaser, the affected CP Conduit in its sole discretion, or seek another financial institution reasonably acceptable to such Agent and, if the Dissenting Purchaser is a Committed Purchaser acceptable to the affected CP Conduit in its sole discretion, to acquire all or a portion of the Commitment of the Dissenting Purchaser and all amounts payable to it hereunder and under the Sale and Servicing Agreement and the Indenture in accordance with Section 8.1 of this Agreement. Each Dissenting Purchaser hereby agrees to assign all or a portion of its Commitment and the amounts payable to it hereunder and under the Sale and Servicing Agreement and the Indenture to a replacement investor identified by the Agent for its Purchaser Group in accordance with the preceding sentence, subject to ratable payment of such Dissenting Purchaser’s Percentage Interest of the Class B Principal Balance, together with all accrued and unpaid interest thereon, and a ratable portion of all fees and other amounts due to it hereunder.

 

(e) If a Partial Expiration Event shall have occurred, the Issuer shall give a notice pursuant to Section 10.4 of the Indenture to cause a Limited Amortization Period to commence with the first Collection Period after the applicable Commitment Termination Date, and shall specify with respect to such Limited Amortization Period a Class B Limited Amortization Amount at least equal to the related Class B Mandatory Partial Amortization Amount.

 

2.3 Interest, Fees, Expenses, Payments, Etc .

 

(a) Interest shall accrue on the Class B Principal Balance during each Interest Period at the following rates:

 

(i) Each CP Conduit’s Percentage Interest of the Class B Principal Balance shall bear interest on each day during each Interest Period at a rate per annum equal to such CP Conduit’s Commercial Paper Rate for such day, except as otherwise provided in clause (ii) below.

 

(ii) If and to the extent that, and only for so long as, a CP Conduit at any time determines in good faith that it is unable to raise or is precluded or prohibited

 

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from raising, or that it is not advisable to raise, funds through the issuance of Commercial Paper Notes in the commercial paper market of the United States to finance its purchase or maintenance of its Percentage Interest of the Class B Principal Balance or any portion thereof (which determination may be based on any allocation method employed in good faith by such CP Conduit), including by reason of market conditions or by reason of insufficient availability under any of its Support Facilities or the downgrading of any of its Support Parties, upon notice from such CP Conduit to the Agent for its Purchaser Group and the Administrative Agent, such portion of such CP Conduit’s Percentage Interest of the Class B Principal Balance shall bear interest at a rate per annum equal to the Alternative Rate, rather than as otherwise determined pursuant to clause (i) above.

 

(iii) Each Committed Purchaser’s (other than a Committed Purchaser which is a CP Conduit) Percentage Interest of the Class B Principal Balance shall bear interest for each Interest Period at a rate per annum equal to the Alternative Rate.

 

(b) The Issuer shall select the duration of the initial and each subsequent Fixed Period relating to each Borrowing subject to the limitations set forth in the definition of Fixed Period. The Issuer shall give the Administrative Agent and each Agent written notice of such selections (i) with respect to each initial Fixed Period, in the related Borrowing Notice and (ii) with respect to each subsequent Fixed Period, in a notice in the form of Exhibit E hereto, delivered prior to 11:00 a.m., New York City time, on the day before the first day of such Fixed Period, provided that if the Issuer shall fail to deliver any such notice, it shall be deemed to have selected a Fixed Period of one day. Unless consented to by each Agent, the aggregate number of Fixed Periods for all Borrowings outstanding at any one time hereunder shall not exceed 10. (A CP Conduit may issue Commercial Paper Notes with such maturities as it determines in its sole discretion regardless of the Fixed Period selected by the Issuer.)

 

(c) The Class B Purchasers shall be entitled to be paid, as a part of Class B Monthly Interest and Fees payable on each Distribution Date, (i) a fee (the “ Class B Usage Fee ”) in the aggregate amount equal to the Class B Average Principal Balance for the immediately preceding Interest Period times a rate per annum equal to the Class B Usage Fee Rate, plus (ii) a fee (the “ Class B Commitment Fee ”) in the aggregate amount equal to (A) the Total Commitment times (B) a rate per annum equal to the Class B Commitment Fee Rate. In addition, the Issuer agrees to pay to the Administrative Agent, for the account of itself or the Agents and Class B Purchasers, as the case may be, the amounts set forth in Section 1 of the Supplemental Fee Letter entered into on the Closing Date between the Issuer and the Administrative Agent at the times specified therein.

 

(d) The principal of and Class B Monthly Interest and Fees in respect of the Class B Notes shall be paid as provided in the Sale and Servicing Agreement and the Indenture. In the case of Class B Notes held by an Agent as agent for members of its Purchaser Group, such Agent shall allocate to the Class B Owners in its Purchaser Group each payment in respect of the Class B Notes received by such Agent in its capacity as Class B Noteholder as provided herein. Payments in reduction of the portion of the Class B Principal Balance evidenced by a Class B Note shall be allocated and applied to Class B Owners of such Class B Note pro rata based on their respective Percentage Interests of the Class B Principal Balance, or in any such case in such other proportions as each affected Class B Purchaser may agree upon in writing from time to

 

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time with such Agent and the Issuer; provided that from and after the occurrence of a Partial Expiration Event until the earlier to occur of (i) the Purchase Termination Date and (ii) the date on which (A) the aggregate amount of payments in reduction of the Class B Principal Balance made after the date of the occurrence of the related Partial Expiration Event equals (B) the related Class B Mandatory Partial Amortization Amount, payments in reduction of the portion of the Class B Principal Balance shall be allocated and applied to Nonextending Class B Purchasers and related CP Conduits pro rata based on their respective shares of the Class B Principal Balance which were used to determine such Class B Mandatory Partial Amortization Amount. Payments of interest in respect of the portion of the Class B Principal Balance evidenced by a Class B Note shall be allocated and applied to Class B Owners of such Class B Note pro rata based upon the respective amounts of interest due and payable to them, determined as provided above in subsection 2.3(a). Payments of the Class B Usage Fee shall be allocated and paid to Class B Owners pro rata based upon their respective interest in the Class B Principal Balance for the applicable Interest Period. Payments of the Class B Commitment Fee shall be allocated and paid to the Agent for each Purchaser Group pro rata based on the aggregate Commitments of the Class B Purchasers in such Purchaser Group. Each Class B Purchaser in a Purchaser Group shall be entitled to receive the share of the Class B Commitment Fee allocated to such Purchaser Group as may be agreed upon from time to time between such Class B Purchaser and the Agent for such Purchaser Group.

 

(e) Any principal, interest (including interest payable pursuant to this clause (e)), fees or other amounts due and payable hereunder (without regard to any limitations set forth herein on the sources from which such amount may be paid) which are not paid to the Administrative Agent or the Agents, as the case may be, prior to the times set forth in Section 2.3(g) on the due date thereof (whether due pursuant to acceleration or otherwise) shall accrue interest (after as well as before judgment) at the Prime Rate from time to time in effect plus 2.0% per annum from and including the due date thereof to but excluding the date such amount is actually paid. Accrued and unpaid interest in respect of overdue Class B Monthly Interest and Fees, shall be payable as a part of Class B Monthly Interest and Fees on each Distribution Date. Any overdue principal, any accrued and unpaid interest payable pursuant to this subsection 2.3(e) in respect of overdue fees or other amounts not described in the preceding sentence shall be payable on demand and in any event on each Distribution Date by the party obligated to pay such overdue amount.

 

(f) Unless otherwise specified in an applicable Supplemental Fee Letter, interest calculated by reference to the Commercial Paper Rate or the Adjusted Eurodollar Rate shall be calculated on the basis of a 360-day year for the actual days elapsed. Interest calculated by reference to the Prime Rate shall be calculated on the basis of a 365- or 366-day year, as applicable, for the actual days elapsed. Class B Usage Fees, Class B Commitment Fees and other periodic fees or amounts payable hereunder shall be calculated, unless otherwise specified in the Supplemental Fee Letter, on the basis of a 360-day year and for the actual days elapsed.

 

(g) All payments to be made hereunder or under the Sale and Servicing Agreement or the Indenture, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim in United States dollars and in immediately available funds and shall be made (x) in the case of payments due on an Interim Distribution Date, prior to 2:30 p.m., New York City time, on the due date thereof to each Agent at its account specified on the

 

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signature pages hereof or as otherwise directed pursuant to subsection 9.2(b) hereof, and (y) in the case of all other payments, including payments due on Distribution Dates, prior to 12:00 noon, New York City time, on the due date thereof to the Administrative Agent at its account specified in subsection 9.2(b) hereof. Payments received by an Agent or the Administrative Agent after 2:30 p.m., New York City time, shall be deemed to have been made on the next Business Day. The Administrative Agent will distribute such payments received by it to the Agents promptly upon receipt, but no later than 2:00 p.m., New York City time, on the day received if such payment is received prior to 12:00 noon, New York City time, and no later than noon, New York City time, on the Business Day after such payment is received if received after 12:00 noon, New York City time. Notwithstanding anything herein to the contrary, if any payment due hereunder becomes due and payable on a day other than a Business Day, the payment date thereof shall be extended to the next succeeding Business Day and interest shall accrue thereon at the applicable rate during such extension. To the extent that (i) the Trustee, the Issuer or the Servicer makes a payment to the Administrative Agent or an Agent or Class B Purchaser or (ii) the Administrative Agent or an Agent or Class B Purchaser receives or is deemed to have received any payment or proceeds for application to an obligation, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy or insolvency law, state or Federal law, common law, or for equitable cause, then, to the extent such payment or proceeds are set aside, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received or deemed received by the Administrative Agent or such Agent or Class B Purchaser, as the case may be.

 

(h) If its Percentage Interest of the Class B Principal Balance then exceeds zero, each CP Conduit shall notify the Agent for its Purchaser Group at or before 4:00 p.m. on the date on which the Alternative Rate becomes applicable to its Percentage Interest of the Class B Principal Balance or a portion thereof pursuant to subsection 2.3(a)(ii) of this Agreement, of the applicability thereof. Each CP Conduit shall notify such Agent at or before 4:00 p.m., New York City time, on each Interest Rate Determination Date of (x) the estimate of the interest payable to such CP Conduit for the Interest Period ending on the succeeding Distribution Date (such notification may be based on such CP Conduit’s good faith estimate of the Commercial Paper Rate if the actual rate is not then known to such CP Conduit) and (y) the amount of any variation between interest payable to such CP Conduit for the preceding Interest Period based on such notices and estimates and interest which should have been payable to such CP Conduit for such Interest Period based on its final determination of the Commercial Paper Rate for such Interest Period. The amount of any shortfall in interest based on such variation shall be included in the portion of Class B Monthly Interest and Fees payable to such CP Conduit on the following Distribution Date, and the amount of any overpayment of interest to such CP Conduit based on such variation shall be credited, dollar for dollar, against the portion of Class B Monthly Interest and Fees otherwise payable to such CP Conduit for the following Interest Period. Each determination by a CP Conduit of its applicable Commercial Paper Rate pursuant to this Agreement shall be conclusive and binding on the Class B Purchasers, each Agent, the Administrative Agent, the Issuer, the Servicer and the Trustee in the absence of manifest error.

 

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(i) If the Percentage Interest of the Class B Principal Balance of a CP Conduit then exceeds zero, the Agent for its Purchaser Group shall notify the Issuer and the Servicer before 4:00 p.m. on the date on which the Alternative Rate becomes applicable to the Percentage Interest of the Class B Principal Balance of such Class B Purchaser in such Purchaser Group (or a portion thereof) pursuant to subsection 2.3(a)(ii) of this Agreement, of the occurrence thereof. On each date on which the Alternative Rate is applicable to any portion of the Class B Principal Balance and the Adjusted Eurodollar Rate or the Prime Rate changes, the Administrative Agent shall notify the Issuer and the Servicer of the Alternative Rate and the Prime Rate, if then applicable to any portion of the Class B Principal Balance. For such purposes, the Agents may rely conclusively on notices from CP Conduits as to the interest rate or rates from time to time applicable to their respective Percentage Interest of the Class B Principal Balance. Each Agent shall notify the Administrative Agent on or before each Interest Rate Determination Date of (x) the interest payable to the Class B Purchasers in its Purchaser Group for the Interest Period ending on the succeeding Distribution Date (such notification from an Agent may be based on each CP Conduit’s notices and estimates of the Commercial Paper Rate as provided to such Agent pursuant to subsection 2.3(h) hereof) and (y) the amount of any variation between the amount of interest payable on the Percentage Interest of the Class B Principal Balance of Class B Purchasers in its Purchaser Group based on notices and estimates delivered pursuant to this subsection 2.3(i) and the actual amount thereof for the preceding Interest Period. The amount of any shortfall in interest based on such variation shall be a positive “ Estimated Interest Adjustment ” for such Interest Period, and the amount of any overpayment of interest based on such variation shall be a negative “ Estimated Interest Adjustment ” for such Interest Period. Any positive Estimated Interest Adjustment for an Interest Period shall be deemed not due on the Distribution Date for such Interest Period, but shall be due on the Distribution Date related to the next succeeding Interest Period and in any event on the final Distribution Date for Class B Notes. An Estimated Interest Adjustment shall not bear interest, unless not paid when due as provided in the preceding sentence. Each determination of the Commercial Paper Rate, the Alternative Rate and the Prime Rate by the Administrative Agent or an Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Class B Purchasers, the Issuer, the Administrative Agent, the Servicer and the Trustee in the absence of manifest error.

 

(j) On the Business Day prior to each Interim Distribution Date, each Class B Purchaser shall notify the Agent for its Purchaser Group, and each Agent shall notify the Administrative Agent, of the amount of interest accrued and unpaid on the portion of the Class B Principal Balance held by such Class B Purchaser or Purchaser Group, as the case may be, which is scheduled to be repaid on such Interim Distribution Date.

 

(k) Notwithstanding anything contained herein or in the Supplemental Fee Letter, from and after the occurrence of a Termination Event, whether or not declared, the Class B Principal Balance shall accrue interest (after as well as before judgment) at the Prime Rate from time to time in effect plus 2.0%.

 

2.4 Requirements of Law .

 

(a) In the event that any Class B Purchaser shall have reasonably determined that any Regulatory Change shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or

 

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for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, such Class B Purchaser and the result of any of the foregoing is to increase the cost to such Class B Purchaser, by an amount which such Class B Purchaser deems to be material, of maintaining its Commitment or its interest in the Class B Notes or to reduce any amount receivable in respect thereof, then, in any such case, after submission by such Class B Purchaser to the Agent for its Purchaser Group of a written request therefor and the submission by such Agent to the Issuer and the Servicer of such written request therefor, such Class B Purchaser (through the Agent for its Purchaser Group) shall be entitled to be paid, but only to the extent funds are then or thereafter become available therefor pursuant to subsection 5.5(a) or subsection 5.5(b) of the Sale and Servicing Agreement, any additional amounts necessary to compensate such Class B Purchaser for such increased cost or reduced amount receivable, to the extent not already reflected in the applicable interest rate, no later than the Distribution Date following receipt by the Issuer and the Servicer of such request for compensation under this subsection 2.4(a), if such request is received by the Issuer and the Servicer no later than five Business Days prior to the Determination Date related to such Distribution Date, and otherwise on the following Distribution Date (or, if earlier, on the Termination Date).

 

(b) In the event that any Class B Purchaser shall have reasonably determined that any Regulatory Change regarding capital adequacy has the effect of reducing the rate of return on such Class B Purchaser’s capital or on the capital of any Person controlling such Class B Purchaser as a consequence of its obligations hereunder or its maintenance of its Commitment or its interest in the Class B Notes to a level below that which such Class B Purchaser or such Person could have achieved but for such Regulatory Change (taking into consideration such Class B Purchaser’s or such Person’s policies with respect to capital adequacy) by an amount deemed by such Class B Purchaser or such Person to be material, then , from time to time, after submission by such Class B Purchaser to the Agent for its Purchaser Group of a written request therefor and submission by such Agent to the Issuer and the Servicer of such written request therefor, such Class B Purchaser (through the Agent for its Purchaser Group) shall be entitled to be paid, but only to the extent funds are then or thereafter become available therefor pursuant subsection 5.5(a) or subsection 5.5(b) of the Sale and Servicing Agreement, such additional amount or amounts as will compensate such Class B Purchaser or such Person, as applicable, for such reduction, no later than the Distribution Date following receipt by the Issuer and the Servicer of such request for compensation under this subsection 2.4(b) of this Agreement, if such request is received by the Issuer and the Servicer no later than five Business Days prior to the Determination Date related to such Distribution Date, and otherwise on the following Distribution Date (or, if earlier, on the Termination Date). Nothing in this subsection 2.4(b) shall be deemed to require the Issuer to pay any amount to a Class B Purchaser to the extent such Class B Purchaser has been compensated therefor under another provision of this Agreement or to the extent such amount is already reflected in the applicable interest rate.

 

(c) Each Class B Purchaser agrees that it shall use its reasonable efforts to reduce or eliminate any claim for compensation pursuant to subsections 2.4(a) and 2.4(b) of this Agreement, including but not limited to designating a different Investing Office for its Class B Notes (or any interest therein) if such designation will avoid the need for, or reduce the amount of, any increased amounts referred to in subsection 2.4(a) or 2.4(b) hereof and will not, in the reasonable opinion of such Class B Purchaser, be unlawful or otherwise disadvantageous to such

 

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Class B Purchaser or inconsistent with its policies or result in any unreimbursed cost or expense to such Class B Purchaser or in an increase in the aggregate amount payable under subsections 2.4(a) and 2.4(b) hereof. . If such claim is not eliminated by any such designation or no such designation is done and the Class B Purchaser does not waive payment of such amount, the Issuer shall have the right to procure a replacement purchaser which is not so affected and which is reasonably acceptable to the Agent for the related Purchaser Group and the Administrative Agent (a “ Replacement Purchaser ”) to replace such Class B Purchaser. No replacement of a Class B Purchaser shall be effected pursuant to this subsection 2.4(c) if, after giving effect thereto, any amounts shall be owing to the replaced Class B Purchaser hereunder. Each affected Class B Purchaser hereby agrees to take, at the Issuer’s expense, all actions necessary to permit a Replacement Purchaser to succeed to its rights and obligations hereunder.

 

Notwithstanding the foregoing, (i) if the Class B Purchaser being replaced pursuant to this subsection is a Committed Purchaser, the Replacement Purchaser shall be acceptable to such the related CP Conduit and (ii) if the Class B Purchaser being replaced pursuant to this subsection is a CP Conduit, the Replacement Purchaser shall be acceptable to all related Committed Purchasers; and it shall be a condition of such replacement Committed Purchaser that such Replacement Purchaser enter into substitute Support Facilities for those to which the Class B Purchaser being replaced is a party on terms mutually acceptable to the parties thereto. In the event that a proposed Replacement Purchaser designated by the Issuer and approved by the applicable Agent and the Administrative Agent as provided in this subsection is not acceptable to the applicable CP Conduit or the applicable Committed Purchasers, as applicable, or has not within a reasonable period entered into applicable Support Facilities, and another replacement Class B Purchaser has not been promptly procured as provided in this subsection with the consent of all affected parties, then any Class B Purchaser which failed to consent to such replacement or to enter into such Support Facilities may be replaced by a Replacement Purchaser as provided in this subsection.

 

(d) Each Class B Purchaser claiming increased amounts described in subsection 2.4(a) or 2.4(b) of this Agreement will furnish to the Agent for its Purchaser Group (together with its request for compensation) a certificate prepared in good faith setting forth the basis and the calculation of the amount (in reasonable detail) of each request by such Class B Purchaser for any such increased amounts referred to in subsection 2.4(a) or 2.4(b) hereof. Any such certificate shall be conclusive absent manifest error, and such Agent shall deliver a copy thereof to the Issuer and the Servicer. Failure on the part of any Class B Purchaser to demand compensation for any amount pursuant to subsection 2.4(a) or 2.4(b) hereof with respect to any period shall not constitute a waiver of such Class B Purchaser’s right to demand compensation with respect to such period; provided , however , notwithstanding the foregoing provisions of this Section 2.4, a Class B Purchaser shall not be compensated for any such amount relating to any period ending, and of which such Class B Purchaser has had knowledge, more than six months prior to the date that such Class B Purchaser notifies the Issuer and the Servicer in writing thereof or for any amounts resulting from a change by any Class B Purchaser of its Investing Office (other than changes required by law or changes made pursuant to subsection 2.4(c)).

 

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2.5 Taxes .

 

(a) All payments made to the Class B Purchasers, the Agents or the Administrative Agent under this Agreement and the Sale and Servicing Agreement and the Indenture (including all amounts payable with respect to the Class B Notes) shall, to the extent allowed by law, be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority (collectively, “ Taxes ”), excluding (i) income taxes (including branch profit taxes, minimum taxes and taxes computed under alternative methods, at least one of which is based on or measured by net income), franchise taxes (imposed in lieu of income taxes), or any other taxes based on or measured by the net income of such Class B Purchaser, Participant, Agent or the Administrative Agent (as the case may be) or the gross receipts or income of such Class B Purchaser, Participant, Agent or the Administrative Agent, as the case may be; (ii) any Taxes that would not have been imposed but for the failure of such Class B Purchaser, Participant, Agent or the Administrative Agent, as applicable, to provide and keep current (to the extent legally able) any certification or other documentation required to qualify for an exemption from, or reduced rate of, any such Taxes or required by this Agreement to be furnished by such Class B Purchaser, Participant, Agent or the Administrative Agent, as applicable; and (iii) any Taxes imposed as a result of a change by any Class B Purchaser or Participant of its Investing Office (other than changes mandated by this Agreement, including subsection 2.4(c) hereof, or required by law) (all such excluded taxes being hereinafter called “ Excluded Taxes ”).

 

If, as a result of any change in law, treaty or regulation or in the interpretation or administration thereof by any governmental or regulatory agency or body charged with the administration or interpretation thereof, or the adoption of any law, treaty or regulation, any Taxes, other than Excluded Taxes, are required to be withheld from any amounts payable to a Class B Purchaser or Agent or the Administrative Agent hereunder or under the Sale and Servicing Agreement or the Indenture, then after submission by any Class B Purchaser to the Agent for its Purchaser Group (in the case of an amount payable to a Class B Purchaser) and by any Agent or the Administrative Agent to the Issuer and the Servicer of a written request therefor, the amounts so payable to such Class B Purchaser or Agent or the Administrative Agent, as applicable, shall be increased, and such Class B Purchaser (through the applicable Agent) or Agent or the Administrative Agent, as applicable, shall be entitled to be paid (in the case of payments from a Seller or the Issuer, only to the extent funds are then or thereafter available therefor pursuant to clause (xx) of subsection 5.5(a) or (xix) of subsection 5.5(b) of the Sale and Servicing Agreement), the amount of such increase to the extent necessary to yield to such Class B Purchaser or Agent or the Administrative Agent, as applicable (after payment of all such Taxes) interest or any such other amounts payable hereunder or thereunder at the rates or in the amounts specified in this Agreement or in the Sale and Servicing Agreement and the Indenture, as applicable, no later than the Distribution Date following receipt by the Issuer and the Servicer of a request for such additional amounts under this subsection 2.5(a), if such request is received by the Issuer and the Servicer no later than five Business Days prior to the Determination Date related to such Distribution Date, and otherwise on the following Distribution Date (or, if earlier, on the Termination Date); provided , however , that the amounts so payable to such Class B Purchaser or Agent or the Administrative Agent shall not be

 

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increased pursuant to this subsection 2.5(a) if such requirement to withhold results from the failure of such Person to comply with subsection 2.5(c) hereof. Whenever any Taxes are payable on or with respect to amounts distributed to a Class B Purchaser or Agent or the Administrative Agent, as promptly as possible thereafter the Issuer and the Servicer shall send to the Agent, on behalf of such Class B Purchaser, or to such Agent or the Administrative Agent, as applicable, a certified copy of an original official receipt showing payment thereof. Notwithstanding any other provisions of this Section 2.5, the Servicer shall not have any liability under this Section 2.5 for the payment of Taxes except for Taxes (other than Excluded Taxes) assessed on indemnification payments made or required to be made by the Servicer for its own account under Section 2.6 of this Agreement. If the Issuer, the Sellers or the Servicer, as applicable, fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to the Agent, on behalf of itself or such Class B Purchaser, or to such Agent or the Administrative Agent, as applicable, the required receipts or other required documentary evidence, such Class B Purchaser (through the applicable Agent) or Agent or the Administrative Agent, as applicable, shall be entitled to be paid, in the case of a failure by the Issuer or AFC, only to the extent funds are then or thereafter available therefor pursuant to clause (xx) of subsection 5.5(a) or (xix) of subsection 5.5(b) of the Sale and Servicing Agreement) or in the case of a failure by the Servicer, by such entity, as the case may be, any incremental taxes, interest or penalties that may become payable by such Class B Purchaser or Agent or the Administrative Agent, as applicable, as a result of any such failure no later than the Distribution Date following receipt by the Issuer and the Servicer of such request for payment under this subsection 2.5(a), if such request is received by the Issuer and the Servicer no later than five Business Days prior to the Determination Date related to such Distribution Date, and otherwise on the following Distribution Date (or, if earlier, on the Termination Date).

 

(b) A Class B Purchaser claiming increased amounts under subsection 2.5(a) hereof for Taxes paid or payable by such Class B Purchaser will furnish to the applicable Agent a certificate prepared in good faith setting forth the basis and amount of each request by such Class B Purchaser for such Taxes, and such Agent shall deliver a copy thereof to the Issuer and the Servicer. An Agent or the Administrative Agent claiming increased amounts under subsection 2.5(a) hereof for its own account for Taxes paid or payable by such Agent or the Administrative Agent, as applicable, will furnish to the Issuer and the Servicer a certificate prepared in good faith setting forth the basis and amount of each request by the Agent or the Administrative Agent for such Taxes. Any such certificate of a Class B Purchaser or Agent or the Administrative Agent shall be conclusive absent manifest error. Failure on the part of any Class B Purchaser or Agent or the Administrative Agent to demand additional amounts pursuant to subsection 2.5(a) of this Agreement with respect to any period shall not constitute a waiver of the right of such Class B Purchaser or Agent or the Administrative Agent, as the case may be, to demand compensation with respect to such period. All such amounts shall be due and payable to such Class B Purchaser (through the applicable Agent) or Agent or the Administrative Agent, as the case may be, on the Distribution Date following receipt by the Issuer and the Servicer of such certificate, if such certificate is received by the Issuer and the Servicer at least five Business Days prior to the Determination Date related to such Distribution Date and otherwise shall be due and payable on the following Distribution Date (or, if earlier, on the Termination Date).

 

(c) Each Class B Purchaser and each Participant holding an interest in Class B Notes agrees that prior to the date on which the first interest or fee payment hereunder is due

 

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thereto, it will deliver to the Issuer, the Servicer, the Trustee, the applicable Agent and the Administrative Agent (i) if such Class B Purchaser or Participant is not incorporated under the laws of the United States or any State thereof, two duly completed copies of the U.S. Internal Revenue Service Form W-8ECI or Form W-8BEN claiming treaty benefits, or in either case successor applicable forms required to evidence that the Class B Purchaser or Participant is entitled to receive payments under this Agreement and with respect to the Class B Notes without deduction or withholding of any United States federal income taxes, (ii) in the case of any other Class B Purchaser or Participant, a duly completed U.S. Internal Revenue Service Form W-9 or successor applicable or required forms, and (iii) such other forms and information as may be required to confirm the availability of any applicable exemption from United States federal, state or local withholding taxes. Each Class B Purchaser or Participant holding an interest in Class B Notes also agrees to deliver to the Issuer, the Servicer, the Trustee, the applicable Agent and the Administrative Agent two further copies of such Form W-8ECI, Form W-8BEN claiming treaty benefits or Form W-9, or such successor applicable forms or other manner of certification, as the case may be, on or before the date that any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it hereunder, and such extensions or renewals thereof as may reasonably be requested by an Agent or the Administrative Agent, unless in any such case, solely as a result of a change in treaty, law or regulation occurring prior to the date on which any such delivery would otherwise be required, the Class B Purchaser is no longer eligible to deliver then-applicable form set forth above and so advises the Issuer, the applicable Agent and the Administrative Agent. Each Class B Purchaser certifies, represents and warrants as of the Closing Date, each Assignee and each Participant (in either case other than a Support Party) shall certify, represent and warrant as a condition of acquiring its Assignment or Participation as of the effective date of the Transfer Supplement to which it is a party or of such Participation, as the case may be, and each Support Party shall certify, represent and warrant as of the effective date of its becoming a Support Party, that (x) it is entitled to receive payments under this Agreement and with respect to the Class B Notes without deduction or withholding of any United States federal income taxes and (y) it is entitled to an exemption from United States backup withholding tax.

 

(d) Each Class B Purchaser agrees that it shall use its reasonable efforts to designate a different Investing Office if such designation will eliminate or reduce any amount due under this Section 2.5 and will not, in the reasonable opinion of such Class B Purchaser, be unlawful or otherwise disadvantageous to such Class B Purchaser or inconsistent with its policies or result in any unreimbursed cost or expense to such Class B Purchaser. If such amount is not eliminated by any such designation or no such designation is done and the Class B Purchaser does not waive payment of such amount, the Issuer shall have the right to procure a replacement purchaser which is not so affected and which is reasonably acceptable to the Agent for the related Purchaser Group and the Administrative Agent (a “ Replacement Purchaser ”) to replace such Class B Purchaser. No replacement of a Class B Purchaser shall be effected pursuant to this subsection 2.5(d) if, after giving effect thereto, any amounts shall be owing to the replaced Class B Purchaser hereunder. Each affected Class B Purchaser hereby agrees to take all actions necessary to permit a Replacement Purchaser to succeed to its rights and obligations hereunder.

 

Notwithstanding the foregoing, (i) if the Class B Purchaser being replaced pursuant to this subsection is a Committed Purchaser, the Replacement Purchaser shall be acceptable to the related CP Conduit and (ii) if the Class B Purchaser being replaced pursuant to

 

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this subsection is a CP Conduit, the Replacement Purchaser shall be acceptable to all related Committed Purchasers; and it shall be a condition of such replacement Committed Purchaser that such Replacement Purchaser enter into substitute Support Facilities for those to which the Class B Purchaser being replaced is a party on terms mutually acceptable to the parties thereto. In the event that a proposed Replacement Purchaser designated by the Issuer and approved by the applicable Agent and the Administrative Agent as provided in this subsection is not acceptable to the applicable CP Conduit or the applicable Committed Purchasers, as applicable, or has not within a reasonable period entered into applicable Support Facilities, and another replacement Class B Purchaser has not been promptly procured as provided in this subsection with the consent of all affected parties, then any Class B Purchaser which failed to consent to such replacement or to enter into such Support Facilities may be replaced by a Replacement Purchaser as provided in this subsection.

 

2.6 Indemnification .

 

(a) Without limiting any other rights which any such Person may have hereunder or under applicable law, AmeriCredit hereby agrees to indemnify each of the Administrative Agent, the Agents, and the Class B Purchasers, and each other Affected Party and each of their Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called an “ Indemnitee ”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “ Indemnified Amounts ”) awarded against or incurred by any of them arising out of or relating to any Transaction Document or the transactions contemplated thereby or the use of proceeds therefrom by the Issuer, including (without limitation) in respect of the funding of any Borrowing or in respect of any Receivable, excluding , however , (a) Indemnified Amounts to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnitee or its agent or subcontractor, (b) except as otherwise provided herein, non-payment by any obligor of an amount due and payable with respect to a Receivable, (c) any loss in value of any Financed Vehicle or Eligible Investment due to changes in market conditions or for other reasons beyond the control of AmeriCredit or the Issuer, (d) any Excluded Tax or (e) any amount which represents legal, accounting or other costs incurred by any Indemnitee in respect of any legal action between such Indemnitee and AmeriCredit or any Affiliate of AmeriCredit if a court of competent jurisdiction makes a final determination that AmeriCredit is the prevailing party. Without limiti