Common use of Representations, Warranties and Covenants with respect to ERISA Clause in Contracts

Representations, Warranties and Covenants with respect to ERISA. (a) By acquiring a Series 2018-2 Note (or interest therein), each purchaser and subsequent transferee shall be deemed to represent and warrant that either (i) it is not (and for so long as it holds such Series 2018-2 Note will not be), is not acting on behalf of (and for so long as it holds such Series 2018-2 Note will not be acting on behalf of), and is not investing the assets of a Benefit Plan or a governmental plan, church plan or non-U.S. plan that is subject to any Similar Law or (ii) its acquisition, continued holding and disposition of such Series 2018-2 Note will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code or a violation of any Similar Law. Benefit Plans may not acquire the Series 2018-2 Notes at any time that the Series 2018-2 Notes do not have a current investment grade rating from a nationally recognized statistical rating organization. (b) By acquiring a Series 2018-2 Note (or interest therein), each purchaser and subsequent transferee that is a Benefit Plan, and any Plan Fiduciary, shall be deemed to represent and warrant that the decision to acquire the Series 2018-2 Note (or interest therein) has been made by the Plan Fiduciary and the Plan Fiduciary is an “independent fiduciary with financial expertise” as described in 29 C.F.R. Sec. 2510.3-21(c)(1). Specifically, this requires the Benefit Plan and Plan Fiduciary to represent and warrant that: (i) The Plan Fiduciary is independent of the Transferor, the Trust, any underwriter of such Series 2018-2 Note and their respective Affiliates (for purposes of this Section, the “Transaction Parties”), and such Plan Fiduciary either (A) is a bank as defined in Section 202 of the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or similar institution that is regulated and supervised and subject to periodic examination by a U.S. state or U.S. federal agency, (B) is an insurance carrier which is qualified under the laws of more than one U.S. state to perform the services of managing, acquiring or disposing of assets of an employee benefit plan described in Section 3(3) of ERISA or any plan described in Section 4975(e)(1)(A) of the Code; (C) is an investment adviser registered under the Advisers Act, or, if not registered as an investment advisor under the Advisers Act by reason of paragraph (1) of Section 203A of the Advisors Act, is registered as an investment advisor under the laws of the U.S. state in which it maintains its principal office and place of business, (D) is a broker-dealer registered under the Securities Exchange Act or (E) holds or has under its management or control, total assets of at least $50,000,000; provided, that this clause (E) shall not be satisfied if such Plan Fiduciary is either (1) an individual directing his or her own individual retirement account or a relative of such individual or (2) a participant or beneficiary of such Benefit Plan purchasing such Series 2018-2 Note or a relative of such participant or beneficiary; (ii) the Plan Fiduciary is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies, including the acquisition by such Benefit Plan of such Series 2018-2 Note; (iii) the Plan Fiduciary is a “fiduciary” with respect to such Benefit Plan within the meaning of Section 3(21) of ERISA, Section 4975 of the Code, or both, and is responsible for exercising independent judgment in evaluating such Benefit Plan’s acquisition of such Series 2018-2 Note; (iv) none of the Transaction Parties has exercised any authority to cause such Benefit Plan to invest in the Series 2018-2 Notes or to negotiate the terms of such Benefit Plan’s investment in the Series 2018-2 Notes; and (v) the Plan Fiduciary has been informed by the Transaction Parties (A) that none of the Transaction Parties is undertaking to provide impartial investment advice or to give advice in a fiduciary capacity, and no such entity has given investment advice or otherwise made a recommendation, in connection with such Benefit Plan’s acquisition of such Series 2018-2 Note (other than advice, if any, given by an underwriter to an independent fiduciary that meets the requirements of Section 3.1(b)(i) above) and (B) of the existence and nature of the Transaction Parties’ financial interests in such Benefit Plan’s acquisition of such Series 2018-2 Note, as described in the prospectus with respect to the Series 2018-2 Notes.

Representations, Warranties and Covenants with respect to ERISA. (a) By acquiring a Series 20182017-2 Note (or interest therein), each purchaser and subsequent transferee shall be deemed to represent and warrant that either (i) it is not (and for so long as it holds such Series 20182017-2 Note will not be), is not acting on behalf of (and for so long as it holds such Series 20182017-2 Note will not be acting on behalf of), and is not investing the assets of a Benefit Plan or a governmental plan, church plan or non-U.S. plan that is subject to any Similar Law or (ii) its acquisition, continued holding and disposition of such Series 20182017-2 Note will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code or a violation of any Similar Law. Benefit Plans may not acquire the Series 20182017-2 Notes at any time that the Series 20182017-2 Notes do not have a current investment grade rating from a nationally recognized statistical rating organization. (b) By acquiring a Series 20182017-2 Note (or interest therein), each purchaser and subsequent transferee that is a Benefit Plan, and any Plan Fiduciary, shall be deemed to represent and warrant that the decision to acquire the Series 20182017-2 Note (or interest therein) has been made by the Plan Fiduciary and the Plan Fiduciary is an “independent fiduciary with financial expertise” as described in 29 C.F.R. Sec. 2510.3-21(c)(1). Specifically, this requires the Benefit Plan and Plan Fiduciary to represent and warrant that: (i) The Plan Fiduciary is independent of the Transferor, the Trust, any underwriter of such Series 20182017-2 Note and their respective Affiliates (for purposes of this Section, the “Transaction Parties”), and such Plan Fiduciary either (A) is a bank as defined in Section 202 of the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or similar institution that is regulated and supervised and subject to periodic examination by a U.S. state or U.S. federal agency, (B) is an insurance carrier which is qualified under the laws of more than one U.S. state to perform the services of managing, acquiring or disposing of assets of an employee benefit plan described in Section 3(3) of ERISA or any plan described in Section 4975(e)(1)(A) of the Code; (C) is an investment adviser registered under the Advisers Act, or, if not registered as an investment advisor under the Advisers Act by reason of paragraph (1) of Section 203A of the Advisors Act, is registered as an investment advisor under the laws of the U.S. state in which it maintains its principal office and place of business, (D) is a broker-dealer registered under the Securities Exchange Act or (E) holds or has under its management or control, total assets of at least $50,000,000; provided, that this clause (E) shall not be satisfied if such Plan Fiduciary is either (1) an individual directing his or her own individual retirement account or a relative of such individual or (2) a participant or beneficiary of such Benefit Plan purchasing such Series 20182017-2 Note or a relative of such participant or beneficiary; (ii) the Plan Fiduciary is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies, including the acquisition by such Benefit Plan of such Series 20182017-2 Note; (iii) the Plan Fiduciary is a “fiduciary” with respect to such Benefit Plan within the meaning of Section 3(21) of ERISA, Section 4975 of the Code, or both, and is responsible for exercising independent judgment in evaluating such Benefit Plan’s acquisition of such Series 20182017-2 Note; (iv) none of the Transaction Parties has exercised any authority to cause such Benefit Plan to invest in the Series 20182017-2 Notes or to negotiate the terms of such Benefit Plan’s investment in the Series 20182017-2 Notes; and (v) the Plan Fiduciary has been informed by the Transaction Parties (A) that none of the Transaction Parties is undertaking to provide impartial investment advice or to give advice in a fiduciary capacity, and no such entity has given investment advice or otherwise made a recommendation, in connection with such Benefit Plan’s acquisition of such Series 20182017-2 Note (other than advice, if any, given by an underwriter to an independent fiduciary that meets the requirements of Section 3.1(b)(i) above) and (B) of the existence and nature of the Transaction Parties’ financial interests in such Benefit Plan’s acquisition of such Series 20182017-2 Note, as described in the prospectus with respect to the Series 20182017-2 Notes.