LOAN AND SECURITY AGREEMENT

Exhibit 10.1

 

U.S. $48,938,300

LOAN AND SECURITY AGREEMENT

Dated as of September 25, 2008

Among

AMERICREDIT CLASS B NOTE FUNDING TRUST

as the Borrower

AMERICREDIT FINANCIAL SERVICES, INC.

as the Underlying Servicer

AFS SENSUB CORP.

as the Underlying Depositor

WACHOVIA BANK, NATIONAL ASSOCIATION

as the Committed Lender

WACHOVIA CAPITAL MARKETS, LLC

as the Deal Agent

and

WELLS FARGO BANK, NATIONAL ASSOCIATION

as the Collateral Agent and Securities Intermediary

 

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THIS LOAN AND SECURITY AGREEMENT (the “Agreement”) is made as of September 25, 2008, among:

(1) AMERICREDIT CLASS B NOTE FUNDING TRUST, a Delaware statutory trust, (the “Borrower”);

(2) AMERICREDIT FINANCIAL SERVICES, INC., a Delaware corporation, (“AFS”, or the “Underlying Servicer”);

(3) AFS SENSUB CORP., a Nevada corporation (the “Underlying Depositor”);

(4) WACHOVIA BANK, NATIONAL ASSOCIATION a national banking association with its headquarters in Charlotte, North Carolina (“Wachovia” ), as committed lender (the “Committed Lender”);

(5) WACHOVIA CAPITAL MARKETS, LLC, a Delaware limited liability company (“WCM”), as deal agent (the “Deal Agent”); and

(6) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as collateral agent (the “Collateral Agent”) and securities intermediary (“Securities Intermediary”).

IT IS AGREED as follows:

ARTICLE I

DEFINITIONS

Section 1.1. Certain Defined Terms .

(a) Certain capitalized terms used throughout this Agreement are defined above or in this Section 1.1 .

(b) As used in this Agreement and its schedules, exhibits and other attachments, unless the context requires a different meaning, the following terms shall have the following meanings:

Accrual Period : For any Payment Date, the period from and including the Payment Date immediately preceding such Payment Date (or in the case of the first Accrual Period, from and including the Funding Date) to but excluding such Payment Date.

Additional Amount : Defined in Section 2.14(a).

Adjusted Eurodollar Rate : For any Accrual Period, an interest rate per annum equal to a fraction, expressed as a percentage and rounded upwards (if necessary), to the nearest  ¹ / 100 of 1%, (i) the numerator of which is equal to the weighted average LIBOR Market Index Rate for such Accrual Period and (ii) the denominator of which is equal to 100% minus the Eurodollar Reserve Percentage for such Accrual Period.

Administration Agreement : The Administration Agreement, dated as of September 25, 2008, between the Borrower and the Administrator.

Administrator : AFS, as Administrator under the Administration Agreement, or its permitted successors and assigns.

Advance : As defined in Section 2.1.

Advance Rate : If the Funding Date occurs on or prior to December 31, 2008, 95% or, if the Funding Date occurs on or after January 2, 2009 (but in all events prior to the Commitment Termination Date), such percentage as may be determined by the Deal Agent in its sole discretion.

Affected Party : Each of the Lenders, each Investor, each Liquidity Bank, any assignee or participant of any Lender, Investor or Liquidity Bank, WCM, any successor to WCM as Deal Agent, any sub-agent of the Deal Agent, Wachovia and any Liquidity Agent.

Affiliate : With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

Agent’s Account : An account at Wachovia Bank, National Association in the name of Wachovia or at such other account as may be designated by the Deal Agent from time to time.

Aggregate Unpaids : At any time, an amount, equal to the sum of all accrued and unpaid Capital, Yield, Breakage Costs, Hedge Costs and all other amounts owed by the Borrower hereunder, under any Hedging Agreement (including, without limitation, payments in respect of the termination of any such Hedging Agreement or under any other Transaction Document) or by the Borrower or any other Person under any fee letter (including, without limitation, the Fee Letter) delivered in connection with the transactions contemplated by this Agreement (whether due or accrued).

Alternative Rate : An interest rate per annum equal to the Adjusted Eurodollar Rate; provided , however , that the Alternative Rate shall be the Base Rate if a Eurodollar Disruption Event occurs.

AmeriCredit Corp. : AmeriCredit Corp., a Texas corporation.

AmeriCredit Party : Any of the Borrower, the Underlying Servicer or the Underlying Depositor.

Amortization Date : The earliest of (a) the date of the occurrence of an Amortization Event pursuant to Section 10.1 and (b) the Commitment Termination Date.

Amortization Event : Defined in Section 10.1 .

 

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Applicable Law : For any Person, all existing and future applicable laws, rules, regulations (including proposed, temporary and final income tax regulations), statutes, treaties, codes ordinances, permits, certificates, orders and licenses of and interpretations by any Governmental Authority (including, without limitation, usury laws, the Federal Truth in Lending Act, and Regulation Z and Regulation B of the Board of Governors of the Federal Reserve System), and applicable judgments, decrees, injunctions, writs, orders, or line action of any Court, arbitrator or other administrative, judicial, or quasi-judicial tribunal or agency of competent jurisdiction.

Assignment and Acceptance : An assignment and acceptance entered into by an Investor and an Eligible Assignee, and accepted by the Deal Agent, in substantially the form of Exhibit B hereto.

Available Funds . With respect to any Payment Date, all amounts in the Collection Account as of such Payment Date and any investment earnings thereon.

Bankruptcy Code : The United States Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended from time to time.

Base Rate : On any date, a fluctuating interest rate per annum equal to the higher of (a) the Prime Rate or (b) the Federal Funds Rate plus 2.0%.

Benefit Plan : Any employee benefit plan as defined in Section 3(3) of ERISA in respect of which the Borrower or any ERISA Affiliate of the Borrower is, or at any time during the immediately preceding six years was, an “employer” as defined in Section 3(5) of ERISA.

Borrower : AmeriCredit Class B Note Funding Trust, a Delaware statutory trust.

Breakage Costs : Any amount or amounts as shall compensate any Lender for any loss, cost or expense incurred by such Lender (as determined by such Lender (or, in the case of a Conduit Lender, by the Deal Agent on behalf of the Conduit Lender) in such Person’s sole discretion) as a result of a prepayment by the Borrower of Capital or Yield.

Business Day : Any day other than a Saturday or a Sunday on which (a) banks are not required or authorized to be closed in New York City, Charlotte, North Carolina, Wilmington, Delaware, Fort Worth, Texas, or Minneapolis, Minnesota, and (b) if the term “Business Day” is used in connection with the determination of the LIBOR Index Market Rate, dealings in United States dollar deposits are carried on in the London interbank market.

Capital : The amount advanced to the Borrower by the Committed Lender pursuant to Section 2.1(a), reduced from time to time by Collections distributed on account of such Capital pursuant to Section 2.7 ; provided , however , if such Capital shall have been reduced by any distribution and thereafter all or a portion of such distribution is rescinded or must otherwise be returned for any reason, such Capital shall be increased by the amount of such rescinded or returned distribution, as though it had not been made; provided , further , that the aggregate amount of capital may not, at any time, exceed the Initial Facility Limit.

 

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Certificate of Trust : The trust certificate issued pursuant to the Trust Agreement evidencing the beneficial interest in the Borrower.

Change-in-Control : With respect to (i) the Borrower, any of the following: (a) the creation or imposition of any Lien on any of the certificates issued by the Borrower; or (b) the failure by the Underlying Depositor to own 100% of the certificates issued by the Borrower; and (ii) with respect to any other Person, means a change resulting when any Unrelated Person or any Unrelated Persons, acting together, that would constitute a Group together with any Affiliates or Related Persons thereof (in each case also constituting Unrelated Persons) shall at any time either (i) Beneficially Own more than 30% of the aggregate voting power of all classes of Voting Stock of AmeriCredit Corp. or (ii) succeed in having sufficient of its or their nominees elected to the Board of Directors of AmeriCredit Corp. such that such nominees when added to any existing director remaining on the Board of Directors of AmeriCredit Corp. after such election who is an Affiliate or Related Person of such Person or Group, shall constitute a majority of the Board of Directors of AmeriCredit Corp. As used herein, (a) “Beneficially Own” shall mean “beneficially own” as defined in Rule 13d-3 of the Exchange Act, or any successor provision thereto; provided, however, that, for purposes of this definition, a Person shall not be deemed to Beneficially Own securities tendered pursuant to a tender or exchange offer made by or on behalf of such Person or any of such Person’s Affiliates until such tendered securities are accepted for purchase or exchange; (b) “Group” shall mean a “group” for purposes of Section 13(d) of the Exchange Act; (c) “Unrelated Person” shall mean at any time any Person other than AmeriCredit Corp. or any of its Subsidiaries, any of the shareholders of AmeriCredit Corp. on the Closing Date and other than any trust for any employee benefit plan of AmeriCredit Corp. or any of its Subsidiaries; (d) “Related Person” of any Person shall mean any other Person owning (1) 5% or more of the outstanding common stock of such Person or (2) 5% or more of the Voting Stock of such Person; and (e) “Voting Stock” of any Person shall mean the capital stock or other indicia of equity rights of such Person which at the time has the power to vote for the election of one or more members of the Board of Directors (or other governing body) of such Person.

Closing Date : September 25, 2008.

Code : The Internal Revenue Code of 1986, as amended from time to time.

Collateral : Defined in Section 2.2(a)(i).

Collateral Agent : Wells Fargo Bank, National Association.

Collateral Agent Fee Letter : The fee letter between AFS and the Collateral Agent, dated as of September 25, 2008, setting forth the fees to be paid by AFS to the Collateral Agent.

Collection Account : Defined in Section 6.1(a).

Collection Date : The date on which the Aggregate Unpaids have been reduced to zero and indefeasibly paid in full.

Collections : All payments (including amounts received under any Hedging Agreement and proceeds of Related Security) received by the Borrower on or after the Funding Date in respect of the Collateral.

 

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Commercial Paper Notes : On any day, any short-term promissory notes issued by a Conduit Lender, if any.

Committed Lender : The meaning given to such term in the Preamble.

Commitment : For each Investor, the commitment of such Investor to make an Advance to the Borrower in an amount not to exceed the amount set forth opposite such Investor’s name on the Schedule IV to this Agreement.

Commitment Termination Date : 364 days from the Closing Date, or such later date to which the Commitment Termination Date may be extended in the sole discretion of Wachovia and each Investor in accordance with the terms of Section 2.1(b) .

Conduit Lender : Any commercial paper conduit that satisfies the conditions set forth in the definition of “Eligible Assignee” and becomes party hereto by execution of a Joinder, if any.

Contractual Obligation : With respect to any Person, means any provision of any securities issued by such Person or any indenture, mortgage, deed of trust, contract, undertaking, agreement, instrument or other document to which such Person is a party or by which it or any of its property is bound or is subject.

CP Rate : For any day during any Accrual Period, the per annum rate equivalent to the weighted average of the per annum rates paid or payable by the Conduit Lender, if any, from time to time as interest on or otherwise (by means of interest rate hedges or otherwise taking into consideration any incremental carrying costs associated with short-term promissory notes issued by the Conduit Lender, if any, maturing on dates other than those certain dates on which such Conduit Lender is to receive funds) in respect of the promissory notes issued by such Conduit Lender that are allocated, in whole or in part, by the Deal Agent (on behalf of such Conduit Lender) to fund or maintain Capital during such period, as determined by the Deal Agent (on behalf of such Conduit Lender) and reported to the Borrower, which rates shall reflect and give effect to (i) the commissions of placement agents and dealers in respect of such promissory notes, to the extent such commissions are allocated, in whole or in part, to such promissory notes by the Deal Agent (on behalf of such Conduit Lender) and (ii) other borrowings by such Conduit Lender, including, without limitation, borrowings to fund small or odd dollar amounts that are not easily accommodated in the commercial paper market; provided , however , that if any component of such rate is a discount rate, in calculating the CP Rate, the Deal Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum.

Deal Agent : Defined in the preamble of the Agreement.

Defaulting Hedge Breakage Costs : For any Hedging Agreement, any Hedge Breakage Costs other than those payable as the result of (i) an event of default caused by the Hedge Counterparty or (ii) a termination event for which the Hedge Counterparty is the sole “affected party.”

Eligible Assignee : (a) A Person whose short-term rating is at least A-1 from S&P and P-1 from Moody’s, or whose obligations under this Agreement are guaranteed by a Person whose

 

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short-term rating is at least A-1 from S&P and P-1 from Moody’s, or (b) such other Person satisfactory to Wachovia, the Deal Agent and each of the rating agencies rating the Commercial Paper Notes, if any.

Eligible Investments : Any one or more of the following types of investments:

(a) marketable obligations of the United States, the full and timely payment of which are backed by the full faith and credit of the United States of America and that have a maturity of not more than 270 days from the date of acquisition;

(b) marketable obligations, the full and timely payment of which are directly and fully guaranteed by the full faith and credit of the United States and that have a maturity of not more than 270 days from the date of acquisition;

(c) bankers’ acceptances and certificates of deposit and other interest-bearing obligations (in each case having a maturity of not more than 270 days from the date of acquisition) denominated in dollars and issued by any bank with capital, surplus and undivided profits aggregating at least $100,000,000, the short-term obligations of which are rated of least A-1 by S&P and P-1 by Moody’s;

(d) repurchase obligations with a term of not more than ten days for underlying securities of the types described in clauses (a), (b) and (c) above entered into with any bank of the type described in clause (c) above;

(e) commercial paper rated at least A-1 by S&P and P-1 by Moody’s; and

(f) demand deposits, time deposits or certificates of deposit (having original maturities of no more than 365 days) of depository institutions or trust companies incorporated under the laws of the United States of America or any state thereof (or domestic branches of any foreign bank) and subject to supervision and examination by federal or state banking or depository institution authorities; provided , however that at the time such investment, or the commitment to make such investment, is entered into, the short-term debt rating of such depository institution or trust company shall be at least A-1 by S&P and P-1 by Moody’s.

Any of the foregoing Eligible Investments may be purchased by or through the Collateral Agent or any of its Affiliates.

ERISA : The United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

ERISA Affiliate : (a) Any corporation that is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower, (b) a trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Code) with the Borrower, or (c) a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as the Borrower, any corporation described in clause (a) above or any trade or business described in clause (b) above.

 

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Eurocurrency Liabilities : Defined in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

Eurodollar Disruption Event : The occurrence of any of the following: (a) a determination by a Lender that it would be contrary to law or to the directive of any central bank or other governmental authority (whether or not having the force of law) to obtain United States dollars in the London interbank market to make, fund or maintain the Funding, (b) the failure of one or more of the Reference Banks to furnish timely information for purposes of determining the Adjusted Eurodollar Rate, (c) a determination by a Lender that the rate at which deposits of United States dollars are being offered to such Lender in the London interbank market does not accurately reflect the cost to such Lender of making, funding or maintaining the Funding or (d) the inability of a Lender to obtain United States dollars in the London interbank market to make, fund or maintain the Advance.

Eurodollar Reserve Percentage : Of any Reference Bank for any period, for Capital means the percentage applicable during such period (or, if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such period during which any such percentage shall be so applicable) under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for such Reference Bank with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term of one month.

Facility Limit : The Initial Facility Limit or on any date after the first Payment Date, the Facility Limit shall mean the aggregate outstanding Capital on such date, after giving effect to all payments in respect of principal on or prior to such date.

Federal Funds Rate : For any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the federal funds rates as quoted by Wachovia and confirmed in Federal Reserve Board Statistical Release H.15(519) or any successor or substitute publication selected by Wachovia (or, if such day is not a Business Day, for the next preceding Business Day), or, if, for any reason, such rate is not available on any day, the rate determined, in the sole opinion of Wachovia, to be the rate at which federal funds are being offered for sale in the national federal funds market at 9:00 a.m. Charlotte, North Carolina time.

Fee Letter : The Fee Letter, dated as of the date hereof, among the Borrower, the Underlying Servicer, AmeriCredit Corp., the Committed Lender and the Deal Agent, as such letter may be amended, modified, supplemented, restated or replaced from time to time.

Funding : As defined in Section 2.1(a).

Funding Date : The Business Day set forth in the Funding Notice, delivered in accordance with Section 2.1(a).

Funding Notice : The notice, in the form of Exhibit A hereto, delivered in accordance with Section 2.1(a)(i).

 

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GAAP : Generally accepted accounting principles as in effect from time to time in the United States.

Governmental Authority : Any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any body or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over such Person, and any accounting board or authority (whether or not a part of government) which is responsible for the establishment or interpretation of national or international accounting principles, in each case whether foreign or domestic.

Hedge Breakage Costs : For any Hedging Agreement, any amount payable by the Borrower for the early termination of such Hedging Agreement or any portion thereof.

Hedge Costs : For any Hedging Agreement, any amount payable by the Borrower with respect thereto, including any swap payments, any Hedge Breakage Costs, any notional reduction payments and any other amounts due to the Hedge Counterparty.

Hedge Counterparty : Any entity that (a) on the date of entering into any Hedge Transaction (i) is an interest rate swap dealer that is either a Lender or an Affiliate of a Lender, or has been approved in writing by the Deal Agent (which approval shall not be unreasonably withheld), and (ii) unless otherwise agreed to by the Deal Agent, has a long-term unsecured debt rating of not less than “A” by S&P and not less than “A2” by Moody’s (“Long-term Rating Requirement”) and a short-term unsecured debt rating of not less than “A-1” by S&P and not less than “P-1” by Moody’s (“Short-term Rating Requirement”), and (b) in a Hedging Agreement (i) consents to the assignment of the Borrower’s rights under the Hedging Agreement to the Deal Agent pursuant to Section 2.2(a) and (ii) agrees that in the event that Moody’s or S&P reduces its long-term unsecured debt rating below the Long-term Rating Requirement, or reduces its short-term unsecured debt rating below the Short-term Rating Requirement, unless otherwise agreed to by the Deal Agent, it shall transfer its rights and obligations under each Hedging Agreement to another entity that meets the requirements of clause (a) and (b) hereof and has entered into a Hedging Agreement with the Borrower on or prior to the date of such transfer.

Hedge Transaction : Each interest rate cap agreement or other interest rate protection transaction between the Borrower and a Hedge Counterparty that is entered into pursuant to Section 5.3 hereof and is governed by a Hedging Agreement.

Hedging Agreement : Each agreement between the Borrower and a Hedge Counterparty that governs one or more Hedge Transactions entered into pursuant to Section 5.3 hereof , in such form as the Deal Agent shall approve in writing in its sole discretion, and each “Confirmation” thereunder confirming the specific terms of each such Hedge Transaction.

Income Collections : All Collections representing (i) amounts received in respect of interest on the Underlying Class B Note as set forth on the applicable Underlying Monthly Report, (ii) amounts received under any Hedging Agreement and (iii) upon the occurrence of the Amortization Date and the receipt of Proceeds from the disposition of the Collateral, an amount equal to the amount of accrued but unpaid interest on the Underlying Class B Note.

 

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Increased Costs : Any amounts required to be paid by the Borrower to an Affected Party pursuant to Section 2.13 .

Indemnified Amounts : Defined in Section 11.1 .

Indemnified Parties : Defined in Section 11.1 .

Initial Facility Limit : The lesser of (i) $48,938,300 and (ii) the product of the Advance Rate and the initial Underlying Class B Note Principal Balance.

Insolvency Event : With respect to a specified Person, (a) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person or any substantial part of its property in an involuntary case under any applicable Insolvency Law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or ordering the winding-up or liquidation of such Person’s affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (b) the commencement by such Person of a voluntary case under any applicable Insolvency Law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due, or the taking of action by such Person in furtherance of any of the foregoing.

Insolvency Laws : The Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, or similar debtor relief laws from time to time in effect affecting the rights of creditors generally.

Insolvency Proceeding : Any case, action or proceeding before any court or other Governmental Authority relating to any Insolvency Event.

Instrument : Any “instrument” (as defined in Article 9 of the UCC), other than an instrument that constitutes part of chattel paper.

Investor : Each financial institution listed on the signature page of a Joinder under the heading “the Investor(s).”

Investment : With respect to any Person, any direct or indirect loan, advance or investment by such Person in any other Person, whether by means of share purchase, capital contribution, loan or otherwise, excluding the acquisition of the Underlying Class B Note pursuant to the Note Purchase Agreement and excluding commission, travel and similar advances to officers, employees and directors made in the ordinary course of business.

Joinder : Any joinder to this Agreement whereby a Conduit Lender or Hedge Counterparty is made a party to this Agreement in form and substance reasonably satisfactory to the Borrower, the Committed Lender, the Deal Agent and the Collateral Agent.

 

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Lenders’ Percentage : With respect to the payment of Collections in accordance with Section 2.7(b), a percentage equal to the Advance Rate.

Lenders : Collectively, Wachovia, any other Investors, any Conduit Lender and any other Person that agrees, pursuant to the pertinent Joinder or Assignment and Acceptance, as applicable, to make or maintain the Funding pursuant to this Agreement.

LIBOR Market Index Rate : For any day, with respect to any Advance (a) the rate per annum appearing on Reuters Page LIBOR01 (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by WCM from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time for such day, provided, if such day is not a Business Day, the immediately preceding Business Day, as the rate for dollar deposits with a one-month maturity; (b) if for any reason the rate specified in clause (a)  of this definition does not so appear on Reuters Page LIBOR01 (or any successor or substitute page or any such successor to or substitute for such service), the rate per annum appearing on Reuters Screen LIBO page (or any successor or substitute page) as the London interbank offered rate for deposits in dollars at approximately 11:00 a.m., London time, for such day, provided, if such day is not a Business Day, the immediately preceding Business Day, for a one-month maturity; and (c) if the rate specified in clause (a)  of this definition does not so appear on Reuters Page LIBOR01 (or any successor or substitute page or any such successor to or substitute for such service) and if no rate specified in clause (b)  of this definition so appears on Reuters Screen LIBO page (or any successor or substitute page), the interest rate per annum at which dollar deposits of $5,000,000 and for a one-month maturity are offered by the principal London office of Wachovia in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, for such day.

Lien : Any mortgage, lien, pledge, charge, security interest or encumbrance of any kind.

Liquidity Agent : The liquidity agent, if any, named in any Joinder hereto.

Liquidity Agreement : The Liquidity Purchase Agreement, dated as of the date of the applicable Joinder, among the Conduit Lender, as seller, the Investors named therein, WCM, as deal agent and documentation agent and the Liquidity Agent.

Liquidity Bank : With respect to any Conduit Lender, any bank, insurance company or other financial institution extending or having a commitment to extend funds to or for the account of such Conduit Lender (including by an agreement to purchase an assignment of or participation in such Conduit Lender’s portion of the Capital outstanding) under a liquidity agreement.

Liquidity Event : With respect to any Payment Date, the occurrence of (a) a failure of the amounts available thereto to pay the amounts described in Section 2.7(a)(ii) in accordance with the terms of this Agreement or (b) in the event that Funding is being provided by a Conduit Lender, the failure of the related Liquidity Agreement to be in full force and effect.

 

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Material Adverse Effect : With respect to any event or circumstance since August 29, 2008, means a material adverse effect on (a) the general affairs, business management, financial condition, stockholders’ equity, results of operations, regulatory situation or business prospects of any of the AmeriCredit Parties, (b) the validity, enforceability or collectibility of this Agreement or any other Transaction Document, (c) the rights and remedies of the Deal Agent, the Collateral Agent or Secured Parties, (d) the ability of any of the AmeriCredit Parties to perform its obligations under this Agreement or any Transaction Document, or (e) the status, existence, perfection, priority or enforceability of the Collateral Agent’s or any Secured Party’s interest in the Collateral.

Maximum Hedge Fee Rate : As defined in the Fee Letter.

Moody’s : Moody’s Investors Service, Inc., and any successor thereto.

Monthly Report : Defined in Section 5.5(b).

Multiemployer Plan : A “multiemployer plan” as defined in Section 4001(a)(3) of ERISA that is or was at any time during the current year or the immediately preceding five years contributed to by the Borrower or any ERISA Affiliate on behalf of its employees.

Note : The Note of the Borrower, issued to the Deal Agent pursuant to Section 2.1(c) hereof substantially in the form of Exhibit I hereto.

Note Purchase Agreement : The Note Purchase Agreement, dated as of September 25, 2008, substantially in the form of Exhibit H hereto, between the Underlying Depositor and the Borrower, as the same may be amended, restated, supplemented or otherwise modified from time to time.

OFAC : The U.S. Department of the Treasury’s Office of Foreign Assets Control.

Officer’s Certificate : A certificate signed by any officer of the Borrower or the Underlying Servicer, as the case may be, and delivered to the Collateral Agent.

Opinion of Counsel : A written opinion of counsel, which opinion and counsel are reasonably acceptable to the Deal Agent.

Payment Date : The sixth (6 ^th ) day of each calendar month or, if such day is not a Business Day, the next succeeding Business Day.

Person : An individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, sole proprietorship, joint venture, government (or any agency or political subdivision thereof) or other entity.

Prime Rate : The rate announced by Wachovia from time to time as its prime rate in the United States, such rate to change as and when such designated rate changes. The Prime Rate is not intended to be the lowest rate of interest charged by Wachovia in connection with extensions of credit to debtors.

 

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Principal Collections : All Collections which are not Income Collections.

Proceeds : With respect to any portion of the Collateral, whatever is receivable or received when such portion of Collateral is sold, liquidated, foreclosed, exchanged, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes all rights to payment with respect to any insurance relating thereto.

Qualified Institution : Defined in Section 6.1(a) .

Rating Agency : Each of S&P, Moody’s and any other rating agency that has been requested to issue a rating with respect to any Commercial Paper Notes.

Records : The documents, books, records and other information (including, without limitation, computer programs, tapes, discs, punch cards, data processing software and related contracts, records and other media for storage of information) maintained with respect to the Underlying Class B Note.

Reference Bank : Any bank that furnishes information for purposes of determining the Adjusted Eurodollar Rate.

Register : Defined in Section 13.1(c) .

Related Security : With respect to the Underlying Class B Note, all of the Borrower’s right, title and interest in and to:

(i) all Borrower’s Records, documents and writing evidencing or related to the Underlying Class B Note;

(ii) all rights of recovery of the Borrower against the Underlying Issuer;

(iii) all Collections, the Collection Account and all amounts on deposit therein and investments thereof;

(iv) any Hedging Agreement (but not its obligations under) and any payment from time to time due thereunder;

(v) the Note Purchase Agreement; and

(ix) the Proceeds of each of the foregoing.

Required Investors : At a particular time, Investors with Commitments in excess of 50% of the Facility Limit.

Required Principal Distribution : As of any Payment Date, an amount equal to the lesser of (1) (a) the Capital as of the prior Payment Date (after giving effect to all distributions in respect thereof), or in the case of the first Payment Date, the Underlying Closing Date minus (b) the product of (i) (x) prior to the Amortization Date, the Lenders’ Percentage or (y) on or after the Amortization Date, 0% multiplied by (ii) the Underlying Class B Note Principal Balance after giving effect to all distributions in respect thereof on such Payment Date and (2) on or after the Amortization Date, the amount available for application pursuant to Section 2.7(b)(ii).

 

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Responsible Officer : As to any Person any officer of such Person with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

S&P : Standard & Poor’s, a division of The McGraw Hill Companies, Inc., and any successor thereto.

Sanctioned Country : A country subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html , or as otherwise published from time to time.

Sanctioned Person : (i) A person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html , or as otherwise published from time to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or (C) a person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC.

Secured Party : (i) The Deal Agent and each Lender and (ii) each Hedge Counterparty that becomes a party hereto, agreeing to be bound by the terms of this Agreement applicable to a Secured Party, by execution of a Joinder.

Securities Act : The Securities Act of 1933, as amended from time to time.

Securities Intermediary : The meaning given to such term in the Preamble.

Solvent : As to any Person at any time, having a state of affairs such that all of the following conditions are met: (a) the fair value of the property of such Person is greater than the amount of such Person’s liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section 101(32) of the Bankruptcy Code; (b) the present fair salable value of the property of such Person in an orderly liquidation of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (c) such Person is able to realize upon its property and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (e) such Person is not engaged in business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute unreasonably small capital.

Structuring Fee : The structuring fee set forth in the Fee Letter.

 

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Subsidiary : A corporation of which the Underlying Depositor and/or its Subsidiaries own, directly or indirectly, such number of outstanding shares as have more than 50% of the ordinary voting power for the election of directors.

Taxes : Any present or future taxes, levies, imposts, duties, charges, assessments or fees of any nature (including interest, penalties, and additions thereto) that are imposed by any Governmental Authority.

Transaction Documents : This Agreement, the Note Purchase Agreement, the Warrant, each Hedging Agreement, the Trust Agreement, the Administration Agreement, the Fee Letter, the Underlying Transaction Documents, the Liquidity Agreement, if any, the Underlying Note Assignment and any additional document the execution of which is necessary or incidental to carrying out the terms of the foregoing documents.

Trust Agreement : The Trust Agreement dated as of September 25, 2008, between the Underlying Depositor and Wilmington Trust Company pursuant to which the Borrower is formed.

UCC : The Uniform Commercial Code as from time to time in effect in the applicable jurisdiction or jurisdictions.

Underlying Certificate of Trust : The certificate of trust of the Underlying Issuer substantially in the form of the exhibit attached to the Underlying Trust Agreement.

Underlying Class B Note : The Note issued by the Underlying Issuer pursuant to the Underlying Indenture and identified in the Underlying Note Assignment delivered pursuant to the Note Purchase Agreement.

Underlying Class B Note Margin : As defined in the Fee Letter.

Underlying Class B Note Principal Balance : The principal balance of the Underlying Class B Note owned by the Borrower, initially, as set forth in the Underlying Note Assignment delivered pursuant to the Note Purchase Agreement, as reduced from time to time in accordance with the terms of the Underlying Indenture.

Underlying Closing Date : The date specified as the “closing date” in the Underlying Indenture.

Underlying Depositor : AFS SenSub Corp., a Nevada corporation.

Underlying Event of Default : Means an “Event of Default” as defined in the Underlying Indenture.

Underlying Hedge Agreement : Means the ISDA Master Agreement, dated the Underlying Closing Date between the Underlying Issuer and the hedge provider party thereto, including the schedule thereto, any credit support annex thereto and any confirmation, relating to the Underlying Class B Notes, together with any replacement hedge agreement.

 

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Underlying Indenture : The Indenture, between the Underlying Issuer and the Underlying Indenture Trustee, pursuant to which the Underlying Class B Note is issued, as the same may be amended, modified or supplemented in accordance with the terms thereof.

Underlying Indenture Trustee : The indenture trustee named in the Underlying Indenture, together with its permitted successors and assigns in such capacity.

Underlying Issuer : The issuer of the Underlying Class B Note, as identified in the Underlying Note Assignment delivered pursuant to the Note Purchase Agreement which Underlying Issuer shall be a Delaware statutory trust, of which the certificates evidencing ownership of it shall be 100% owned by the Underlying Depositor.

Underlying Lockbox Agreement : The Tri-Party Remittance Processing Agreement, by and among AmeriCredit, JPMorgan Chase Bank, N.A. and the trust collateral agent, as such agreement may be amended or supplemented from time to time.

Underlying Monthly Report : The “Servicer’s Certificate” as defined in the Underlying Sale and Servicing Agreement, as in effect on the Underlying Closing Date.

Underlying Note Assignment : The Note Assignment delivered to the Deal Agent in the form of Exhibit A to the Note Purchase Agreement.

Underlying Offering Document : The preliminary and final Prospectus Supplement, dated on or prior to the Underlying Closing Date, relating to the securities offered by the Underlying Issuer pursuant thereto and issued pursuant to the Underlying Indenture, including the exhibits thereto, together with the related Prospectus.

Underlying Pool Balance : The “Pool Balance” as defined in the Underlying Sale and Servicing Agreement in effect on the Underlying Closing Date.

Underlying Purchase Agreement : The Purchase Agreement between AFS and the Underlying Depositor, pursuant to which the Underlying Depositor acquires the underlying receivables, as such Agreement may be amended from time to time.

Underlying Sale and Servicing Agreement : The Sale and Servicing Agreement, among the Underlying Issuer, the Underlying Depositor, the Underlying Indenture Trustee and the Underlying Servicer, pursuant to which the underlying receivables are serviced, as the same may be amended, modified or supplemented in accordance with the terms thereof.

Underlying Servicer : AmeriCredit Financial Services, Inc., a Delaware corporation.

Underlying Transaction Documents : The Underlying Indenture, the Underlying Certificate of Trust, the Underlying Trust Agreement, the Underlying Purchase Agreement, the Underlying Sale and Servicing Agreement, the Underlying Underwriting Agreement, the Underlying Lockbox Agreement, the Underlying Hedge Agreement, if any, and any additional document the execution of which is necessary or incidental to carrying out the terms of the foregoing documents.

 

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Underlying Trust Agreement : The Amended and Restated Trust Agreement by and between the Underlying Depositor and the Wilmington Trust Company pursuant to which the Underlying Issuer is formed.

Underlying Underwriting Agreement : The Underwriting Agreement among the underwriters set forth in the Underlying Offering Document, the Underlying Depositor and the Underlying Servicer relating to the sale of certain notes issued by the Underlying Issuer on the Underlying Closing Date.

United States : The United States of America.

Unmatured Amortization Event : Any event that, with the giving of notice or the lapse of time, or both, would become an Amortization Event.

Upfront Fee : As defined in the Fee Letter.

Usage Fee : As defined in the Fee Letter.

Warrant : The Warrant of AmeriCredit Corp., dated as of September 25, 2008, by AmeriCredit Corp. issued in favor of Wachovia Investment Holdings, LLC.

Yield : For the Capital with respect to any Accrual Period, the sum of the products (for each day during such Accrual Period) of:

 

where:

 

provided , however , that (i) no provision of this Agreement shall require the payment or permit the collection of Yield in excess of the maximum permitted by Applicable Law and (ii) Yield shall not be considered paid by any distribution if at any time such distribution is rescinded or must otherwise be returned for any reason.

Yield Rate : For any Accrual Period and for the aggregate principal amount of the Advance allocated to such Accrual Period:

(a) to the extent the relevant Lender funded the Advance through the issuance of commercial paper, a rate equal to the CP Rate, or

(b) to the extent the relevant Lender did not fund the Advance through the issuance of commercial paper, a rate equal to the Alternative Rate;

provided , however , the Yield Rate shall be the Base Rate for any Accrual Period for any portion of the Advance as to which (1) a Conduit Lender has funded the acquisition or

 

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maintenance thereof by the assignment of an interest therein to any Liquidity Bank under the Liquidity Agreement on any day other than the first day of such Accrual Period and without giving such Liquidity Bank(s) at least two Business Days’ prior notice of such assignment or (2) any Investor has funded the acquisition thereof on any day other than the first day of such Accrual Period and without such Investor(s) having received at least two Business Days’ prior notice of such funding pursuant to the provisions of Section 2.1(a) . The Yield Rate on the Funding Date shall be the Alternative Rate.

Section 1.2. Other Terms . All accounting terms used but not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and not used but specifically defined herein, are used herein as defined in such Article 9.

Section 1.3. Computation of Time Periods . Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.”

Section 1.4. Interpretation . In each Transaction Document, unless a contrary intention appears:

(i) the singular number includes the plural number and vice versa;

(ii) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by the Transaction Documents;

(iii) reference to any gender includes each other gender;

(iv) reference to any agreement (including any Transaction Document), document or instrument means such agreement, document or instrument as amended, supplemented or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms of the other Transaction Documents, and reference to any promissory note includes any promissory note that is an extension or renewal thereof or a substitute or replacement therefor; and

(v) reference to any Applicable Law means such Applicable Law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder and reference to any section or other provision of any Applicable Law means that provision of such Applicable Law from time to time in effect and constituting the substantive amendment, modification, codification, replacement or reenactment of such section or other provision.

 

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ARTICLE II

THE LOAN FACILITY

Section 2.1. Funding of the Advance; Grant of Security Interest .

(a) (i) On the terms and conditions hereinafter set forth (including, without limitation, the conditions set forth in Section 3.1), the Borrower may, at its option, request a single advance (the “Advance” or the “Funding”). The Deal Agent may act on behalf of and for the benefit of the Lenders in this regard. Subject to the conditions set forth herein, the Committed Lender agrees that it shall make the Advance. Under no circumstances shall any Lender or Liquidity Agent make the Advance if, after giving effect to such Advance, the aggregate Capital outstanding hereunder would exceed the Initial Facility Limit. The Borrower hereby acknowledges that after the Advance has been made, the Lenders shall have no obligation to advance any further amounts hereunder and the Borrower shall have no right to request further advances.

(ii) The Advance hereunder shall be requested by the Borrower delivering to the Deal Agent (with a copy to the Collateral Agent) the duly completed Funding Notice no later than 5:00 p.m. (Charlotte, North Carolina time) at least two (2) Business Days prior to the proposed Funding Date. The Funding Notice shall: (i) specify the desired amount of the Funding which amount must not exceed the Initial Facility Limit; (ii) specify the date of such Funding: and (iii) include a representation that all conditions precedent for the Funding described in Article III hereof have been met. The Funding Notice shall be irrevocable.

(iii) On the date of the Advance, the Committed Lender shall, upon satisfaction of the applicable conditions set forth in Article III, make available to the Borrower in same day funds, at such bank or other location reasonably designated by the Borrower in the Funding Notice given pursuant to this Section 2.1(a), an amount equal to the lesser of (A) the amount requested by the Borrower for the Advance or (B) the Initial Facility Limit.

(b) The Borrower may, within 60 days, but no later than 45 days, prior to the then existing Commitment Termination Date, by written notice to the Deal Agent, make written request for the Lenders to extend the Commitment Termination Date for an additional period of 364 days. The Deal Agent will give prompt notice to each of the Lenders of its receipt of such request for extension of the Commitment Termination Date. Each Lender shall make a determination, in their sole discretion, not less than 15 days prior to the then applicable Commitment Termination Date as to whether or not it will agree to extend the Commitment Termination Date; provided , however , that the failure of any Lender to make a timely response to the Borrower’s request for extension of the Commitment Termination Date shall be deemed to constitute a refusal by such Lender to extend the Commitment Termination Date. The Commitment Termination Date shall only be extended upon the consent of the Lenders.

 

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(c) The Note .

(i) The Borrower’s obligation to pay the principal of and interest on all amounts advanced by the Lenders pursuant to the Funding shall be evidenced by a single promissory note of the Borrower (the “Note”) which shall: (1) be dated the Closing Date; (2) be in the stated principal amount equal to the Initial Facility Limit (as reflected from time to time on the grid attached thereto); (3) bear interest as provided therein; (4) be payable to the order of the Deal Agent for the account of the Lenders, and mature on the Commitment Termination Date; and (5) be substantially in the form of Exhibit I hereto, with blanks appropriately completed in conformity herewith. The Deal Agent shall, and is hereby authorized to, make a notation on the schedule attached to the Note of the date and the amount of the Funding and the date and amount of the payment of principal thereon, and prior to any transfer of the Note, the Deal Agent shall endorse the outstanding principal amount of the Note on the schedule attached thereto; provided , however , that failure to make such notation shall not adversely affect any Lender’s rights with respect to the Note.

(ii) Although the Note shall be dated the Closing Date, interest in respect thereof shall be payable only for the periods during which amounts are outstanding thereunder. In addition, although the stated principal amount of the Note shall be equal to the Initial Facility Limit, the Note shall be enforceable with respect to the Borrower’s obligation to pay the principal thereof only to the extent of the unpaid principal amount of the Capital outstanding thereunder at the time such enforcement shall be sought.

Section 2.2. Acceptance by Collateral Agent .

(a) (i) As security for the prompt and complete payment of the Note and the performance of all of the Borrower’s obligations under the Note, this Agreement and the other Transaction Documents, the Borrower hereby grants to the Collateral Agent, for the benefit of the Secured Parties, without recourse except as provided herein, a security interest in and continuing Lien on all of the Borrower’s property (whether now owned or hereafter acquired or arising, and wherever located) including, without limitation, all of its right, title and interest to: (i) the Underlying Class B Note, and all monies due or to become due in payment thereupon on and after the Underlying Closing Date, including but not limited to all Collections; (ii) all Related Security; and (iii) all income and Proceeds of the foregoing (collectively, the “Collateral”). The foregoing pledge does not constitute an assumption by the Collateral Agent of any obligations of the Borrower to any Person in connection with the Collateral or under any agreement or instrument relating to the Collateral.

(ii) In connection with such grant, the Borrower agrees to record and file, at its own expense, financing statements with respect to the Collateral now existing and hereafter created meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the first priority security interest of the Collateral Agent for the benefit of the Secured Parties in the Collateral, and to deliver a file-stamped copy of such financing statements or other evidence of such filing to the Collateral Agent and the Deal Agent on or prior to the Funding Date. In addition, the Borrower and the Underlying Servicer agree to clearly and unambiguously mark their respective general ledgers and all accounting records and documents and all computer tapes and records to show that the Collateral, has been pledged to the Collateral Agent for the benefit of the Secured Parties hereunder.

 

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(iii) [Reserved.]

(iv) [Reserved.]

(b) The Collateral Agent hereby acknowledges its acceptance, on behalf of the Secured Parties, of the pledge by the Borrower of the Collateral.

Section 2.3. [ Reserved .]

Section 2.4. Determination of Yield . The Deal Agent shall initially determine the applicable Yield Rate and the Yield (including unpaid Yield, if any, due and payable on a prior Payment Date) to be paid by the Borrower with respect to the Advance on each Payment Date for the related Accrual Period. Prior to the next succeeding Payment Date, the Deal Agent shall redetermine the applicable Yield Rate and Yield (including unpaid Yield, if any, due and payable on a prior Payment Date) for the prior Accrual Period and the difference, if any, between (i) the Yield Rate and Yield as initially determined for such Accrual Period and (ii) the Yield Rate and Yield as redetermined on the Payment Date for such Accrual Period. The amount owed in respect of the Yield for the next succeeding Accrual Period, as initially determined by the Deal Agent, shall be either increased or decreased, if necessary and as appropriate, to reflect such difference in the Yield for the most recently completed Accrual Period.

Section 2.5. [ Reserved .]

Section 2.6. Actions with Respect to Advance . The Deal Agent may, with the consent of the Lender that has funded the Advance, take any of the following actions at any time with respect to the Advance: (i) divide the Advance funded by such Lender into two or more portions of having aggregate Capital equal to the Capital of such divided Advance or (ii) combine one portion of the Advance funded by such Lender with another portion of the Advance funded by such Lender with an Accrual Period ending on the same day, creating a new Advance having Capital equal to the Capital of the two portions of Advances combined.

Section 2.7. Settlement Procedures . (a) On each Payment Date, based upon the Underlying Monthly Report and Monthly Report, the Underlying Servicer shall determine, the portion of Available Funds which are Income Collections with respect to such Payment Date and shall so notify the Collateral Agent and the Deal Agent. On such Payment Date, the Collateral Agent shall withdraw the Lenders’ Percentage of Income Collections and investment earnings on amounts on deposit in the Collection Account from the Collection Account and allocate and distribute such amounts to the applicable Person in the following order of priority:

(i) FIRST, to the Hedge Counterparty, the accrued and unpaid Hedge Costs (exclusive of Hedge Breakage Costs) in respect of such Payment Date, if any, and any unpaid Hedge Costs (exclusive of Hedge Breakage Costs) from any prior Payment Date;

(ii) SECOND, all remaining amounts, to the Deal Agent for the account of the Lenders, an amount equal to the sum of any accrued and unpaid (A) Yield and Breakage

 

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Costs and (B) Increased Costs, Indemnified Amounts and any Additional Amounts due in respect of such Payment Date and any such amounts unpaid from any prior Payment Date;

(iii) THIRD, all remaining amounts, to the Deal Agent for the account of the Lenders, any remaining amounts payable pursuant to this Section 2.7(a) as the Usage Fee;

(b) On each Payment Date, the Underlying Servicer shall determine the amount of Available Funds remaining after the distributions set forth in Section 2.7(a) and shall so notify the Collateral Agent and the Deal Agent. On such Payment Date, the Collateral Agent shall withdraw all such amounts from the Collection Account and allocate and distribute such amounts to the applicable Person, in the following order of priority:

(i) FIRST, to the Collateral Agent, any amounts due but unpaid pursuant to Section 2.12(d) and the Collateral Agent Fee Letter;

(ii) SECOND, all remaining amounts, to the Deal Agent for payment to the Lenders, an amount equal to the Required Principal Distribution;

(iii) THIRD, all remaining amounts, to the Hedge Counterparty, any accrued and unpaid Defaulting Hedge Breakage Costs in respect of such Payment Date and any unpaid Defaulting Hedge Breakage Costs from any prior Payment Date;

(iv) FOURTH, from all remaining amounts, to the Borrower, an amount equal to 5.0% of the Principal Collections with respect to such Payment Date;

(v) FIFTH, from all remaining amounts, to the Hedge Counterparty, any remaining accrued and unpaid Hedge Breakage Costs in respect of such Payment Date and any remaining unpaid Hedge Breakage Costs from any prior Payment Date; and

(vi) SIXTH, to the Borrower, any remaining amounts.

Section 2.8. [ Reserved .]

Section 2.9. Collections and Allocations .

(a) Distributions on the Underlying Class B Note . With respect to the Underlying Class B Note pledged hereunder, all distributions made on such Underlying Class B Note shall be made to the Collection Account. To the extent an AmeriCredit Party receives any amounts in respect of the Underlying Class B Note pledged hereunder, it shall promptly (but in no event later than the Business Day after receipt thereof) deposit all such amounts to the Collection Account by wire transfer, in immediately available funds.

(b) Allocation of Collections Between Principal Collections and Income Collections . The Collateral Agent will allocate Collections monthly in accordance with the Monthly Report generated by the Underlying Servicer.

 

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Section 2.10. Payments, Computations, Etc .

(a) Unless otherwise expressly provided herein, all amounts to be paid or deposited by the Borrower hereunder shall be paid or deposited in accordance with the terms hereof no later than 11:00 a.m. (Charlotte, North Carolina time) on the day when due in lawful money of the United States in immediately available funds to the Agent’s Account and the Deal Agent shall distribute such amounts actually received by it to the Persons entitled thereto no later than 2:00 p.m. (Charlotte, North Carolina time). Any amounts received in the Agent’s Account after 11:00 a.m. (Charlotte, North Carolina time) shall be deemed to be received on the next subsequent Business Day and the Deal Agent shall distribute such amounts to the Persons entitled thereto no later than 2:00 p.m. (Charlotte, North Carolina time) on such next subsequent Business Day. All computations of interest and all computations of Yield and other fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed.

(b) Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of Yield, interest or any fee payable hereunder, as the case may be.

(c) If the Advance requested by the Borrower for the Funding Date and approved by a Lender and the Deal Agent pursuant to Section 2.1 , is not, for any reason made or effectuated, as the case may be, on the requested Funding Date, the Borrower shall indemnify such Lender against any reasonable loss, cost or expense incurred by such Lender, including, without limitation, any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain the Funding.

Section 2.11. [ Reserved .]

Section 2.12. Fees .

(a) The Borrower shall pay to the Deal Agent from the Collection Account on each Payment Date, monthly in arrears, the Usage Fee, in accordance with the terms of this Agreement, including Section 2.7 hereof.

(b) AFS shall pay to the Deal Agent, on the Closing Date, the Structuring Fee, the Upfront Fee and, within 30 days of the Closing Date, the reasonable out-of-pocket expenses, in immediately available funds.

(c) AFS shall pay to Dechert, as counsel to the Deal Agent, on the Closing Date, its estimated reasonable fees and out-of-pocket expenses in immediately available funds and shall pay all additional reasonable fees and out-of-pocket expenses of Dechert within thirty (30) Business Days after receiving an invoice for such amounts.

(d) AFS shall pay to the Collateral Agent the fees of the Collateral Agent in such amounts and such manner as is set forth in the Collateral Agent Fee Letter.

 

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Section 2.13. Increased Costs; Capital Adequacy; Illegality .

(a) If either (i) the introduction of or any change (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation of any law or regulation or (ii) the compliance by an Affected Party with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), shall (A) subject an Affected Party to any Tax (except for Taxes on the overall net income of such Affected Party), duty or other charge with respect to the Advance made by it hereunder, or any right to make the Funding hereunder, or on any payment made hereunder, (B) impose, modify or deem applicable any reserve requirement (including, without limitation, any reserve requirement imposed by the Board of Governors of the Federal Reserve System, but excluding any reserve requirement, if any, included in the determination of Yield), special deposit or similar requirement against assets of, deposits with or for the amount of, or credit extended by, any Affected Party or (C) impose any other condition affecting the Advance made by it hereunder or a Lender’s rights hereunder, the result of which is to increase the cost to any Affected Party or to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, then on the Payment Date following demand by such Affected Party (which demand shall be accompanied by a statement setting forth the basis for such demand), the Collateral Agent shall distribute in accordance with Section 2.7(a)(ii) such additional amount or amounts as will compensate such Affected Party for such additional or increased cost incurred or such reduction suffered.

(b) If either (i) the introduction of or any change in or in the interpretation of any law, guideline, rule, regulation, directive or request or (ii) compliance by any Affected Party with any law, guideline, rule, regulation, directive or request from any central bank or other governmental authority or agency (whether or not having the force of law), including, without limitation, compliance by an Affected Party with any request or directive regarding capital adequacy, has or would have the effect of reducing the rate of return on the capital of any Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which any such Affected Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Party with respect to capital adequacy) by an amount deemed by such Affected Party to be material, then on the Payment Date following demand by such Affected Party (which demand shall be accompanied by a statement setting forth the basis for such demand), the Collateral Agent shall distribute in accordance with Section 2.7(a)(ii) such additional amount or amounts as will compensate such Affected Party for such reduction. For avoidance of doubt, any interpretation of Accounting Research Bulletin No. 51 by the Financial Accounting Standards Board shall constitute an adoption, change, request or directive subject to this subsection 2.13(b).

(c) If as a result of any event or circumstance similar to those described in clauses (a) or (b) of this section, any Affected Party is required to compensate a bank or other financial institution providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Agreement or the funding or maintenance of the Advance hereunder, then within ten days after demand by such Affected Party, the Borrower shall pay to such Affected Party such additional amount or amounts as may be necessary to reimburse such Affected Party for any amounts payable or paid by it.

 

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(d) In determining any amount provided for in this section, the Affected Party may use any reasonable averaging and attribution methods. Any Affected Party making a claim under this section shall submit to the Underlying Servicer a written description as to such additional or increased cost or reduction and the calculation thereof, which written description shall be conclusive absent demonstrable error.

(e) If a Lender shall notify the Deal Agent that a Eurodollar Disruption Event as described in clause (a) of the definition of “Eurodollar Disruption Event” has occurred, the Deal Agent shall in turn so notify the Borrower, whereupon all Capital in respect of which Yield accrues at the Adjusted Eurodollar Rate shall immediately be converted into Capital in respect of which Yield accrues at the Base Rate.

Section 2.14. Taxes .

(a) All payments made by the Underlying Issuer and all payments made by the Borrower or any of the AmeriCredit Parties under this Agreement will be made free and clear of and without deduction or withholding for or on account of any Taxes. If any Taxes are required to be withheld from any amounts payable to the Deal Agent, the Liquidity Agent or any Secured Party, then the amount payable to such Person will be increased (such increase, the “ Additional Amount ”) such that every net payment made under this Agreement after withholding for or on account of any Taxes (including, without limitation, any Taxes on such increase) is not less than the amount that would have been paid had no such deduction or withholding been deducted or withheld. The foregoing obligation to pay Additional Amounts, however, will not apply with respect to net income or franchise taxes imposed on a Lender or the Deal Agent, respectively, with respect to payments required to be made by the Borrower or any AmeriCredit Party under this Agreement, by a taxing jurisdiction in which such Lender or Deal Agent is organized, conducts business or is paying taxes as of the Closing Date (as the case may be).

(b) The Borrower will indemnify each Affected Party for the full amount of Taxes payable by such Person in respect of Additional Amounts and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. All payments in respect of this indemnification shall be made on the Payment Date following demand by such Affected Party.

(c) The Borrower will notify the Deal Agent on a quarterly basis of any payments by the Borrower in respect of any Taxes, not including those Taxes paid by AmeriCredit Corp. on a consolidated basis.

(d) If a Lender is not created or organized under the laws of the United States or a political subdivision thereof, such Lender shall deliver to the Borrower, with a copy to the Deal Agent, (i) within 15 days after the date hereof, or, if such Lender becomes a Lender after the Closing Date, the date on which such Lender becomes a Lender hereunder, two (or such other number as may from time to time be prescribed by Applicable Laws) duly completed copies of IRS Form W-8BEN or Form W-8ECI (or any successor forms or other certificates or statements that may be required from time to time by the relevant United States taxing authorities or Applicable Laws), as appropriate, to permit the Borrower to make payments hereunder for the account of such Lender, as the case may be, without deduction or withholding of United States federal income or similar Taxes and (ii) upon the obsolescence of or after the occurrence of any

 

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event requiring a change in, any form or certificate previously delivered pursuant to this Section 2.14(d) , copies (in such numbers as may from time to time be prescribed by Applicable Laws or regulations) of such additional, amended or successor forms, certificates or statements as may be required under Applicable Laws or regulations to permit the Borrower to make payments hereunder for the account of such Lender, without deduction or withholding of United States federal income or similar Taxes.

(e) If, in connection with an agreement or other document providing liquidity support, credit enhancement or other similar support to the Lenders in connection with this Agreement or the funding or maintenance of the Funding hereunder, the Lenders are required to compensate a bank or other financial institution in respect of Taxes under circumstances similar to those described in this section then within 10 days after demand by the Lenders, the Borrower shall pay to the Lenders such additional amount or amounts as may be necessary to reimburse the Lenders for any amounts paid by them.

(f) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this section shall survive the termination of this Agreement.

Section 2.15. Assignment of the Note Purchase Agreement . The Borrower hereby assigns to the Deal Agent, for the ratable benefit of the Secured Parties hereunder, all of the Borrower’s right, title and interest in and to, but none of its obligations under, the Underlying Transaction Documents. The Borrower confirms that the Deal Agent on behalf of the Secured Parties shall have the sole right to enforce the Borrower’s rights and remedies under the Underlying Transaction Document for the benefit of the Secured Parties.

ARTICLE III

CONDITIONS TO THE CLOSING AND THE FUNDING

Section 3.1. Conditions to the Closing and the Funding . The Closing Date shall not occur and no Lender shall be obligated to make the Advance hereunder, nor shall any Lender, the Deal Agent, the Liquidity Agent or the Collateral Agent be obligated to take, fulfill or perform any other action hereunder, until (i) in the case of the Closing Date, the conditions set forth in clauses (a)(i), (d) and (e) have been satisfied and (ii) in the case of the Funding, all of the following conditions, after giving effect to the proposed Advance have been satisfied, in the sole discretion of, or waived in writing by, the Deal Agent:

(a) (i) In the case of the Closing Date, each Transaction Document (other than the Underlying Transaction Documents) shall have been duly executed by, and delivered to, the parties hereto and thereto and the Deal Agent shall have received such other documents, instruments, agreements and legal opinions as the Deal Agent shall request in connection with the transactions contemplated by this Agreement, including, without limitation, all those specified in Schedule of Documents attached hereto as Schedule I, each in form and substance satisfactory to the Deal Agent, and (ii) in the case of the Funding Date, (x) each Transaction Document shall have been duly executed by, and delivered to, the parties hereto and thereto and the Deal Agent shall have received such other documents, instruments, agreements and legal opinions as the Deal Agent shall request in connection with the transactions contemplated by this

 

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Agreement, including, without limitation, all those specified in Schedule of Documents attached hereto as Schedule I, each such Transaction Document, other document, instrument, agreement and legal opinion in form and substance satisfactory to the Deal Agent, in its sole discretion, and (y) the executed Note in the face amount of $48,938,300 shall have been issued by the Borrower.

(b) The Deal Agent shall have received (i) satisfactory evidence that the Borrower, the Underlying Issuer, the Underlying Depositor and the Underlying Servicer have obtained all required consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Transaction Documents to which each is a party and the consummation of the transactions contemplated hereby or thereby or (ii) an Officer’s Certificate from each of the Borrower, the Underlying Issuer, the Underlying Depositor and the Underlying Servicer in form and substance satisfactory to the Deal Agent affirming that no such consents or approvals are required; it being understood that the acceptance of such evidence or officer’s certificate shall in no way limit the recourse of the Deal Agent or any Secured Party against the Borrower, the Underlying Issuer, the Underlying Depositor or the Underlying Servicer for a breach of its representation or warranty that all such consents and approvals have, in fact, been obtained.

(c) The Borrower, the Underlying Issuer, the Underlying Depositor and the Underlying Servicer shall each be in compliance in all material respects with all Applicable Laws and shall have delivered an Officer’s Certificate to the Deal Agent as to this and other closing matters.

(d) The Borrower shall have paid all fees required to be paid by it on the Closing Date, including all fees required hereunder and under the Fee Letter, and shall have reimbursed each Lender, the Deal Agent and the Collateral Agent for all fees, costs and expenses of closing the transactions contemplated hereunder and under the other Transaction Documents, including the attorney fees and any other legal and document preparation costs incurred by any Lender, the Deal Agent and/or the Collateral Agent.

(e) No Amortization Event or Unmatured Amortization Event shall have occurred.

(f) All UCC-1 financing statements necessary to perfect the security interest of the Collateral Agent, for the benefit of the Secured Parties, in the Collateral to be pledged by the Borrower hereunder shall have been filed in the appropriate filing offices by the Borrower.

(g) The Deal Agent has received lien searches relating to the Borrower in all appropriate jurisdictions evidencing the absence of any liens on the Borrower.

(h) The Hedging Agreement shall be in effect.

(i) With respect to the Advance, the Borrower shall have delivered to the Deal Agent, on or prior to the date of the Advance in form and substance satisfactory to the Deal Agent, the Funding Notice.

(j) On the date of the Advance the following statements shall be true and the Borrower shall be deemed to have certified that, after giving effect to the proposed Advance:

(i) The representations and warranties contained in Sections 4.1, 4.3 and 4.4 are true and correct on and as of such day as though made on and as of such day and shall be deemed to have been made on such day;

 

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(ii) On and as of such day, after giving effect to the proposed Advance, the outstanding Capital does not exceed the Initial Facility Limit;

(iii) On and as of such day, the Borrower, the Underlying Issuer, the Underlying Depositor and the Underlying Servicer each has performed all of the agreements contained in this Agreement and the other Transaction Documents to which it is a party to be performed by such person at or prior to such day;

(iv) No law or regulation shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of the Funding by the Lenders in accordance with the provisions hereof; and

(v) all conditions precedent set forth in the Underlying Transaction Documents shall have been satisfied.

(k) The Underlying Class B Note shall be rated at least AA/Aa2 by S&P and Moody’s, respectively.

(l) The Underlying Class B Note shall bear interest on a per annum basis at a rate equal to or greater than the sum of (i) the interpolated swap rate as of the Underlying Closing Date with respect to the Underlying Class B Note, (ii) the Underlying Class B Note Margin and (iii) the Maximum Hedge Fee Rate.

(m) (i) On or prior to the Funding Date, the Deal Agent shall have received copies of all opinions of counsel delivered by or on behalf of the parties to the Underlying Transaction Documents pursuant to the terms of the Underlying Underwriting Agreement and the Note Purchase Agreement, with such opinions of counsel either addressed to the Deal Agent and the Hedge Counterparty or accompanied by a letter permitting the Deal Agent and the Hedge Counterparty to rely on such opinions as if the same were addressed to the Deal Agent and the Hedge Counterparty, (ii) all other documents, opinions, certificates and documents listed on Schedule I hereto shall have been delivered to the Deal Agent, in form and substance satisfactory to the Deal Agent and its counsel and (iii) all conditions required to be satisfied in the Note Purchase Agreement shall have been satisfied.

(n) On or prior to the Funding Date, the Deal Agent shall have received a true and complete copy of all documents, letters and certificates delivered at the closing under the Underlying Underwriting Agreement and the Note Purchase Agreement. The Deal Agent shall have received such other approvals, opinions or documents as the Deal Agent or its counsel may reasonably require.

(o) On or prior to the Funding Date, the Securities Intermediary shall have acknowledged and indicated by book entry that a securities entitlement relating to the Underlying Class B Note has been credited to the Collection Account for the benefit of the Collateral Agent on behalf of the Secured Lenders.

 

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ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.1. Representations and Warranties of the Borrower . The Borrower represents and warrants to the Collateral Agent, the Deal Agent and the Secured Parties on the Closing Date and the Funding Date (except as otherwise expressly provided herein) as follows:

(a) Organization and Good Standing . The Borrower has been duly formed, and is validly existing as a statutory trust in good standing under the laws of the State of Delaware, with all requisite power and authority to own or lease its properties and conduct its business as such business is presently conducted, and the Borrower had at all relevant times, and now has all necessary power, authority and legal right to acquire, own and pledge the Collateral and perform its obligations under this Agreement.

(b) Due Qualification . The Borrower is duly qualified to do business and is in good standing as a statutory trust and has obtained all necessary licenses and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualification, licenses or approvals.

(c) Power and Authority; Due Authorization . The Borrower: (i) has all necessary power, authority and legal right to: (A) execute and deliver this Agreement and the other Transaction Documents to which it is a party, (B) carry out the terms of the Transaction Documents to which it is a party, and (C) transfer and assign the Underlying Class B Note and all other Collateral on the terms and conditions herein provided and (ii) has duly authorized by all necessary action the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party and the transfer and assignment of the Underlying Class B Note and all other Collateral on the terms and conditions herein provided. This Agreement and each other Transaction Document to which it is a party have been duly executed and delivered by it.

(d) Binding Obligation . This Agreement and each other Transaction Document to which the Borrower is a party constitutes a legal, valid and binding obligation of the Borrower, each enforceable against the Borrower in accordance with its terms.

(e) No Violation . The consummation of the transactions contemplated by this Agreement and the other Transaction Documents to which it is a party and the fulfillment of the terms hereof and thereof will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, the Borrower’s certificate of incorporation, bylaws or any Contractual Obligation of the Borrower, (ii) result in the creation or imposition of any Lien upon any of the Borrower’s properties pursuant to the terms of any such Contractual Obligation, other than this Agreement, or (iii) violate any Applicable Law.

(f) No Proceedings . There is no litigation, proceeding or investigation pending or, to the best knowledge of the Borrower, threatened against the Borrower, before any Governmental Authority (i) asserting the invalidity of this Agreement or any other Transaction Document to

 

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which the Borrower is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document to which the Borrower is a party or (iii) seeking any determination or ruling that could reasonably be expected to have Material Adverse Effect.

(g) All Consents Required . All approvals, authorizations, consents, orders or other actions of any Person or of any Governmental Authority (if any) required for the due execution, delivery and performance by the Borrower of this Agreement and any other Transaction Document to which the Borrower is a party have been obtained.

(h) Bulk Sales . The execution, delivery and performance of this Agreement do not require compliance with any “bulk sales” act or similar law by the Borrower.

(i) Solvency . The transactions under this Agreement and any other Transaction Document to which the Borrower is a party do not and will not render the Borrower not Solvent and the Borrower shall deliver to the Deal Agent on the Closing Date a certification in the form of Exhibit F. The Underlying Depositor has confirmed in writing to the Borrower that, so long as the Borrower is Solvent, the Underlying Depositor will not cause the Borrower to file a voluntary petition under the Bankruptcy Code or any other Insolvency Laws.

(j) [ Reserved .]

(k) Taxes . The Borrower has filed or caused to be filed all tax returns that are required to be filed by it. The Borrower has paid or made adequate provisions for the payment of all Taxes and all assessments made against it or any of its property (other than any amount of Tax the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on the books of the Borrower), and no tax lien has been filed and, to the Borrower’s knowledge, no claim is being asserted, with respect to any such Tax, fee or other charge.

(l) Exchange Act Compliance; Regulations T, U and X . None of the transactions contemplated herein (including, without limitation, the use of the proceeds from the pledge of the Collateral) will violate or result in a violation of Section 7 of the Securities Exchange Act, or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II. The Borrower does not own or intend to carry or purchase, and no proceeds from the pledge of the Collateral will be used to carry or purchase, any “margin stock” within the meaning of Regulation U or to extend “purchase credit” within the meaning of Regulation U.

(m) Quality of Title . As of the Funding Date, the Underlying Class B Note, together with the Related Security related thereto, shall, at all times, be owned by the Borrower free and clear of any Lien except as provided in Section 9.1, and upon the Funding, the Collateral Agent as agent for the Secured Parties shall acquire a valid and perfected first priority security interest in the Underlying Class B Note, the Related Security related thereto and all Collections then existing or thereafter arising, free and clear of any Lien, except as provided in Section 9.1. No effective financing statement or other instrument similar in effect covering any Collateral shall at any time be on file in any recording office except such as may be filed in favor of the Collateral Agent in accordance with this Agreement.

 

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(n) Security Interest . The Borrower has granted a security interest (as defined in the UCC) to the Collateral Agent, as agent for the Secured Parties, in the Collateral, which is enforceable in accordance with applicable law upon execution and delivery of this Agreement. Upon the filing of UCC-1 financing statements naming the Collateral Agent as secured party and the Borrower as debtor, or upon the Collateral Agent obtaining control, in the case of that portion of the Collateral which constitutes securities, the Collateral Agent, as agent for the Secured Parties, shall have a first priority perfected security interest in the Collateral. All filings (including, without limitation, such UCC filings) as are necessary in any jurisdiction to perfect the interest of the Collateral Agent, as agent for the Secured Parties, in the Collateral have been made.

(o) Accuracy of Information . All information, financial statements, documents, book record, certificate report or other documents furnished by it, or on its behalf, to the Deal Agent, Collateral Agent or any Lender for purposes of or in connection with this Agreement or any other Transaction Document, or any transaction contemplated hereby or thereby, including, without limitation, the Underlying Offering Document, will be true, correct, complete and accurate in every material respect, on the date such information is stated or certified and with respect to the Underlying Offering Document, it does not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements in the Offering Document, in the light of the circumstances under which they were made, not misleading. Since the furnishing of any such information, report or documents, there has been no change nor any development or event involving a prospective change known to it that would render any of the information, report or document untrue or misleading in any material respect.

(p) Location of Offices . The principal place of business and chief executive office of the Borrower and the office where the Borrower keeps all the Records are located at the address of the Borrower referred to in Section 14.2 hereof or at the office of the Administrator (or at such other locations as to which the notice and other requirements specified in Section 5.2(g) shall have been satisfied).

(q) [ Reserved .]

(r) Tradenames; Place of Business; Correct Legal Name . (i) Except as described in Schedule II , the Borrower has no trade names, fictitious names, assumed names or “doing business as” names or other names under which it has done or is doing business; (ii) the principal place of business and chief executive office of the Borrower are located at the address of the Borrower set forth on the signature pages hereto; and (iii) “AmeriCredit Class B Note Funding Trust” is the correct legal name of the Borrower indicated on the public records of the Borrower’s jurisdiction of organization.

(s) Note Purchase Agreement . As of the Funding Date, the Note Purchase Agreement is the only agreement pursuant to which the Borrower purchased the Underlying Class B Note from the Underlying Depositor.

 

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(t) Value Given . As of the Funding Date, the Borrower shall have given reasonably equivalent value to the Underlying Depositor in consideration for the issuance to the Borrower of the Underlying Class B Note under the Note Purchase Agreement, no such transfer shall have been made for or on account of an antecedent debt owed by the Underlying Issuer to the Borrower, and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Code.

(u) [Reserved .]

(v) Special Purpose Entity . The Borrower is in compliance with Section 5.2(o) hereof.

(w) Confirmation from the Underlying Depositor . The Borrower has received in writing from the Underlying Depositor confirmation that, so long as the Borrower is not “insolvent” within the meaning of the Bankruptcy Code, the Underlying Depositor will not cause the Borrower to file a voluntary petition under the Bankruptcy Code or any other bankruptcy or insolvency laws. Each of the Borrower and the Underlying Servicer is aware that in light of the circumstances described in the preceding sentence and other relevant facts, the filing of a voluntary petition under the Bankruptcy Code for the purpose of making any loan or any other assets of the Borrower available to satisfy claims of the creditors of the Underlying Depositor would not result in making such assets available to satisfy such creditors under the Bankruptcy Code.

(x) Investment Company Act . The Borrower is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

(y) ERISA . The present value of all benefits vested under all “employee pension benefit plans,” as such term is defined in Section 3 of ERISA, maintained by the Borrower, or in which employees of the Borrower are entitled to participate, as from time to time in effect (herein called the “ Pension Plans ”), does not exceed the value of the assets of the Pension Plan allocable to such vested benefits (based on the value of such assets as of the last annual violation date). No prohibited transactions, accumulated funding deficiencies, withdrawals or reportable events have occurred with respect to any Pension Plans that, in the aggregate, could subject the Borrower to any material tax, penalty or other liability. No notice of intent to terminate a Pension Plan has been billed, nor has any Pension Plan been terminated under Section 4041(f) of ERISA, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate, or appoint a trustee to administer a Pension Plan and no event has occurred or condition exists that might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan.

(z) [ Reserved .]

(aa) Representations and Warranties in Note Purchase Agreement . The representations and warranties made by the Underlying Depositor to the Borrower in the Note Purchase Agreement are hereby remade by the Borrower on each date to which they speak in the Note Purchase Agreement as if such representations and warranties were set forth herein. For purposes of this Section 4.2(aa), such representations and warranties are incorporated herein by reference as if made by the Borrower to the Deal Agent, Collateral and to each of the Secured Parties under the terms hereof mutatis mutandis .

 

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(bb) Amount of Underlying Class B Note . The Funding Notice shall provide the outstanding Underlying Class B Note Principal Balance as of the Underlying Closing Date.

(cc) Use of Proceeds . The proceeds of the Funding will be used by the Borrower to purchase the Underlying Class B Note from the Underlying Depositor pursuant to the Note Purchase Agreement.

(dd) Subsidiaries . The Borrower does not have any Subsidiaries.

(ee) Certificates . None of the certificates issued by the Borrower have been sold or pledged to any entity other than the Underlying Depositor.

(ff) OFAC . None of the Borrower, any Subsidiary of the Borrower or any Affiliate of the Borrower (i) is a Sanctioned Person, (ii) has more than 10% of its assets in Sanctioned Countries, or (iii) knowingly derives more than 10% of its operating income from investments in, or transactions with Sanctioned Persons or Sanctioned Countries. The proceeds of the Advance will not knowingly be used and have not knowingly been used to fund any operations in, finance any i