(MULTICURRENCY--CROSS BORDER)
ISDA-Registered Trademark-
INTERNATIONAL SWAP DEALERS ASSOCIATION, INC.
MASTER AGREEMENT
dated as of December 1, 1998
TOYOTA MOTOR CREDIT CORPORATION and TOYOTA AUTO LEASE TRUST 1998-C have entered
and/or anticipate entering into one or more transactions (each a "Transaction")
that are or will be governed by this Master Agreement, which includes the
schedule (the "Schedule"), and the documents and other confirming evidence (each
a "Confirmation") exchanged between the parties confirming those Transactions.
Accordingly, the parties agree as follows:--
1. INTERPRETATION
(a) DEFINITIONS. The term defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the required
currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing, (2)
the condition precedent that no Early Termination Date in respect of the
relevant Transaction has occurred or been effectively designated and (3)
each other applicable condition precedent specified in this Agreement.
(b) CHANGE OF ACCOUNT. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) NETTING. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party by
whom the larger aggregate amount would have been payable to pay to the other
party the excess of the larger aggregate amount over the smaller aggregate
amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be
made in the Schedule or a Confirmation by specifying that subparagraph (ii)
above will not apply to the Transactions identified as being subject to the
election, together with the starting date (in which case subparagraph (ii) above
will not, or will cease to, apply to such Transactions from such date). This
election may be made separately for different groups of Transactions and will
apply separately to each pairing of Offices through which the parties make and
receive payments or deliveries.
(d) DEDUCTION OR WITHHOLDING FOR TAX.
(i) GROSS-UP. All payments under this Agreement will be made without
any deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving
notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition
to the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure that
the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will equal
the full amount Y would have received had no such deduction or
withholding been required. However, X will not be required to
pay any additional amount to Y to the extent that it would not be
required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure
would not have occurred but for (I) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (II) a
Change in Tax Law.
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(ii) LIABILITY. If:--
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to make
any deduction or withholding in respect of which X would not be
required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) DEFAULT INTEREST; OTHER AMOUNTS. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. REPRESENTATIONS
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) BASIC REPRESENTATIONS.
(i) STATUS. It is duly organised and validly existing under the laws
of the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) POWERS. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which is it a party, to deliver
this Agreement and any other documentation relating to this Agreement that
it is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;
(iii) NO VIOLATION OR CONFLICT. Such execution, delivery and
performance do not violate or conflict with any law applicable to it, any
provision of its constitutional documents, any order or judgment of any
court or other agency of government applicable to it or any of its assets
or any contractual restriction binding on or affecting it or any of its
assets;
(iv) CONSENTS. All governmental and other consents that are required
to have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been complied
with; and
(v) OBLIGATIONS BINDING. Its obligations under this Agreement and
any Credit Support Document to which it is a party constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganisation,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
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(b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would occur as a
result of its entering into or performing its obligations under this
Agreement or any Credit Support Document to which it is a party.
(c) ABSENCE OF LITIGATION. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) PAYER TAX REPRESENTATION. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) PAYEE TAX REPRESENTATIONS. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. AGREEMENTS
Each party agrees with the other that, so long as either party has or may
have any obligation under this Agreement or under any Credit Support Document
to which it is a party:--
(a) FURNISH SPECIFIED INFORMATION. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such
other party or its Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the
legal or commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and to be
delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) MAINTAIN AUTHORISATIONS. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) COMPLY WITH LAWS. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) TAX AGREEMENT. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) PAYMENT OF STAMP TAX. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated.
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organised, managed and controlled, or considered to have its seat, or in
which a branch or office through which it is acting for the purpose of this
Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the other
party against any Stamp Tax levied or imposed upon the other party or in
respect of the other party's execution or performance of this Agreement by
any such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction
with respect to the other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) EVENTS OF DEFAULT. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) BREACH OF AGREEMENT. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) CREDIT SUPPORT DEFAULT.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any
applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of this
Agreement (in either case other than in accordance with its
terms) prior to the satisfaction of all obligations of such party
under each Transaction to which such Credit Support Document
relates without the written consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) MISREPRESENTATION. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) DEFAULT UNDER SPECIFIED TRANSACTION. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party (1)
defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) CROSS DEFAULT. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however
5
described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which has
resulted in such Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on the
due date thereof in an aggregate amount of not less than the applicable
Threshold Amount under such agreements or instruments (after giving effect
to any applicable notice requirement or grace period);
(vii) BANKRUPTCY. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement, or composition with or for the benefit of its
creditors; (4) institutes or has instituted against it a proceeding
seeking a judgment of insolvency or bankruptcy or any other relief
under any bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such proceeding
or petition instituted or presented against it, such proceeding or
petition (A) results in a judgment of insolvency or bankruptcy or
the entry of an order for relief or the making of an order for its
winding-up or liquidation or (B) is not dismissed, discharged,
stayed or restrained in each case within 30 days of the institution
or presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all the assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) MERGER WITHOUT ASSUMPTION. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer:--
(1) the resulting, serving or transferee entity fails to assume all
the obligations of such party or such Credit Support Provider under
this Agreement or any Credit Support Document to which it or its
predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) TERMINATION EVENTS. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any Specified
Entity of such Party of any event specified below constitutes an illegality
if the event is specified in (i) below, a Tax Event if the event specified in
(ii) below or a Tax Event Upon Merger if the event is specified in (iii)
below, and, if specified to be applicable, a Credit Event
6
Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:--
(i) ILLEGALITY. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is entered into, or
due to the promulgation of, or any change in, the interpretation by any
court, tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a result
of a breach by the party of Section 4(b)) for such party (which will be the
Affected Party):--
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other material
provision of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party
to perform, any contingent or other obligation which the party
(or such Credit Support Provider) has under any Credit Support
Document relating to such Transaction;
(ii) TAX EVENT. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on which
a Transaction is entered into (regardless of whether such action is taken
or brought with respect to a party to this Agreement) or (y) a Change in
Tax Law, the party (which will be the Affected Party) will, or there is a
substantial likelihood that it will, on the next succeeding Scheduled
Payment Date (1) be required to pay to the other party an additional amount
in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount is required to be deducted or withheld for or
on account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in
respect of such Tax under Section 2(d)(i)(4) (other than by reason of
Section 2(d)(i)(4)(A) or (B));
(iii) TAX EVENT UPON MERGER. The party (the "Burdened Party") on the
next succeeding Scheduled Payment Date will either (1) be required to pay
an additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which the
other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party ("X"), any
Credit Support Provider of X or any applicable Specified Entity of X
consolidates or amalgamates with, or merges with or into, or transfers all
or substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate, will
be the Affected Party;) or
(v) ADDITIONAL TERMINATION EVENT. If any "Additional Termination
Event" is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
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6. EARLY TERMINATION
(a) RIGHT TO TERMINATE FOLLOWING EVENT OF DEFAULT. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an Illegality
under Section 5(b)(i)(1) or a Tax Event occurs and there is only one
Affected Party, or if a Tax Event Upon Merger occurs and the Burdened Party
is the Affected Party, the Affected Party will, as a condition to its right
to designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days after
it gives notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to
and conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party's policies in effect at
such time would permit it to enter into transactions with the transferee on
the terms proposed.
(iii) TWO AFFECTED PARTIES. If an Illegality under Section 5(b)(i)(1)
or a Tax Event occurs and there are two Affected Parties, each party will
use all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) RIGHT TO TERMINATE. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been effected with
respect to all Affected Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected
Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a Credit
Event Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then
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continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) EFFECT OF DESIGNATION.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount, if
any, payable in respect of an Early Termination Date shall be determined
pursuant to Section 6(e).
(d) CALCULATIONS.
(i) STATEMENT. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in determining
a Market Quotation, the records of the party obtaining such quotation will
be conclusive evidence of the existence and accuracy of such quotation.
(ii) PAYMENT DATE. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event.)
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination
Date to (but excluding) the date such amount is paid, at the Applicable
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an
Event of Default:--
(1) FIRST METHOD AND MARKET QUOTATION. If the First Method and Market
Quotation apply, the Defaulting Party will pay to the Non-defaulting
Party the excess, if a positive number, of (A) the sum of the
Settlement Amount (determined by the Non-defaulting Party) in respect
of the Terminated Transactions and the Termination Currency Equivalent
of the Unpaid Amounts owing to the Non-defaulting Party over (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party.
(2) FIRST METHOD AND LOSS. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this Agreement.
(3) SECOND METHOD AND MARKET QUOTATION. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the sum
of the Settlement Amount (determined by the
9
Non-defaulting Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party less (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party. If that amount is a
positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount to the Defaulting
Party.
(4) SECOND METHOD AND LOSS. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute value
of that amount to the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:--
(1) ONE AFFECTED PARTY. If there is one Affected Party, the
amount payable will be determined in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4),
if Loss applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed
to be references to the Affected Party and the party which is not
the Affected Party, respectively, and, if Loss applies and fewer
than all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) TWO AFFECTED PARTIES. If there are two Affected Parties:--
(A) if Market Quotation applies, each party will determine
a Settlement Amount in respect of the Terminated
Transactions, and an amount will be payable equal to (I) the
sum of (a) one-half of the difference between the Settlement
Amount of the party with the higher Settlement Amount ("X")
and the Settlement Amount of the party with the lower
Settlement Amount ("Y") and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the
Termination Currency Equivalent of the Unpaid Amounts owing
to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with
the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X;
if it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) PRE-ESTIMATE. The parties agree that if Market Quotation applies
an amount recoverable under this Section 6(e) is a reasonable pre-estimate
of loss and not a penalty. Such amount is payable for the loss of bargain
and the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
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7. TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:--
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. CONTRACTUAL CURRENCY
(a) PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency other
than the Contractual Currency, except to the extent such tender results in the
actual receipt by the party to which payment is owed, acting in a reasonable
manner and in good faith in converting the currency so tendered into the
Contractual Currency, of the full amount in the Contractual Currency of all
amounts payable in respect of this Agreement. If for any reason the amount in
the Contractual Currency so received falls short of the amount in the
Contractual Currency payable in respect of this Agreement, the party required to
make the payment will, to the extent permitted by applicable law, immediately
pay such additional amount in the Contractual Currency as may be necessary to
compensate for the shortfall. If for any reason the amount in the Contractual
Currency so received exceeds the amount in the Contractual Currency payable in
respect of this Agreement, the party receiving the payment will refund promptly
the amount of such excess.
(b) JUDGMENTS. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) SEPARATE INDEMNITIES. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) EVIDENCE OF LOSS. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
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9. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) REMEDIES CUMULATIVE. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) COUNTERPARTS AND CONFIRMATIONS.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be deemed an
original.
(ii) The parties intend that they are legally bound by the terms of
each Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall be entered into as soon as
practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of
telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) HEADINGS. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. OFFICES; MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
12
to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. NOTICES
(a) EFFECTIVENESS. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date
it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible form,
it being agreed that the burden of proving receipt will be on the sender
and will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) JURISDICTION. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to the
non-exclusive jurisdiction of the courts of the State of New York and
the United States District Court located in the Borough of Manhattan
in New York City, if this Agreement is expressed to be governed by the
laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying
of venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings,
that such court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1(3)
of the Civil Jurisdiction and Judgments Xxx 0000 or any modification,
extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the
bringing of Proceedings in any other jurisdiction.
(c) SERVICE OF PROCESS. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
13
reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) WAIVER OF IMMUNITIES. Each party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its revenues
and assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds from (i) suit, (ii)
jurisdiction of any court, (iii) relief by way of injunction, order for
specific performance or for recovery of property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution or enforcement of
any judgment to which it or its revenues or assets might otherwise be
entitled in any Proceedings in the courts of any jurisdiction and irrevocably
agrees, to the extent permitted by applicable law, that it will not claim any
such immunity in any Proceedings.
14. DEFINITIONS
As used in this Agreement:--
"ADDITIONAL TERMINATION EVENT" has the meaning specified in Section 5(b).
"AFFECTED PARTY" has the meaning specified in Section 5(b).
"AFFECTED TRANSACTIONS" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"AFFILIATE" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"APPLICABLE RATE" means:--
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of
either party from and after the date (determined in accordance with Section
6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(iii) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases, the Termination Rate.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"CHANGE IN TAX LAW" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after
the date on which the relevant Transaction is entered into.
"CONSENT" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"CREDIT EVENT UPON MERGER" has the meaning specified in Section 5(b).
"CREDIT SUPPORT DOCUMENT" means any agreement or instrument that is specified
as such in this Agreement.
"CREDIT SUPPORT PROVIDER" has the meaning specified in the Schedule.
"DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
14
"DEFAULTING PARTY" has the meaning specified in Section 6(a).
"EARLY TERMINATION DATE" means the date determined in accordance with
Section 6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be imposed
in respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to
such recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of
such jurisdiction, or being or having been organised, present or engaged in a
trade or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding
a connection arising solely from such recipient or related person having
executed, delivered, performed its obligations or received a payment under,
or enforced, this Agreement or a Credit Support Document).
"LAW" includes any treaty, law, rule or regulation (as modified, in the case
of tax matters, by the practice of any relevant governmental revenue
authority) and "LAWFUL" and "UNLAWFUL" will be construed accordingly.
"LOCAL BUSINESS DAY" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) (a) in relation to any obligation
under Section 2(a)(i), in the place(s) specified in the relevant Confirmation
or, if not so specified, as otherwise agreed by the parties in writing or
determined pursuant to provisions contained, or incorporated by reference, in
this Agreement, (b) in relation to any other payment, in the place where the
relevant account is located and, if different, in the principal financial
centre, if any, of the currency of such payment, (c) in relation to any
notice or other communication, including notice contemplated under Section
5(a)(i), in the city specified in the address for notice provided by the
recipient and, in the case of a notice contemplated by Section 2(b), in the
place where the relevant new account is to be located and (d) in relation to
Section 5(a)(v)(2), in the relevant locations for performance with respect to
such Specified Transaction.
"LOSS" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as a negative
number) in connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading
position (or any gain resulting from any of them). Loss includes losses and
costs (or gains) in respect of any payment or delivery required to have been
made (assuming satisfaction of each applicable condition precedent) on or
before the relevant Early Termination Date and not made, except, so as to
avoid duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies.
Loss does not include a party's legal fees and out-of-pocket expenses
referred to under Section 11. A party will determine its Loss as of the
relevant Early Termination Date, or, if that is not reasonably practicable,
as of the earliest date thereafter as is reasonably practicable. A party may
(but need not) determine its Loss by reference to quotations of relevant
rates or prices from one or more leading dealers in the relevant markets.
"MARKET QUOTATION" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an
amount, if any, that would be paid to such party (expressed as a negative
number) or by such party (expressed as a positive number) in consideration of
an agreement between such party (taking into account any existing Credit
Support Document with respect to the obligations of such party) and the
quoting Reference Market-maker to enter into a transaction (the "Replacement
Transaction") that would have the effect of preserving for such party the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in
respect of such Terminated Transaction or group of Terminated Transactions
that would, but for the occurrence of the relevant Early Termination Date, have
15
been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation
will be the quotation remaining after disregarding the highest and lowest
quotations. For this purpose, if more than one quotation has the same highest
value or lowest value, then one of such quotations shall be disregarded. If
fewer than three quotations are provided, it will be deemed that the Market
Quotation in respect of such Terminated Transaction or group of Terminated
Transactions cannot be determined.
"NON-DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"NON-DEFAULTING PARTY" has the meaning specified in Section 6(a).
"OFFICE" means a branch or office of a party, which may be such party's head or
home office.
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"REFERENCE MARKET-MAKERS" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"RELEVANT JURISDICTION" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"SCHEDULED PAYMENT DATE" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"SET-OFF" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"SETTLEMENT AMOUNT" means, with respect to a party and any Early Termination
Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"SPECIFIED ENTITY" has the meaning specified in the Schedule.
16
"SPECIFIED INDEBTEDNESS" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"SPECIFIED TRANSACTION" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"STAMP TAX" means any stamp, registration, documentation or similar tax.
"TAX" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"TERMINATION CURRENCY" has the meaning specified in the Schedule.
"TERMINATION CURRENCY EQUIVALENT" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"TERMINATION EVENT" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"TERMINATION RATE" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"UNPAID AMOUNTS" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market
17
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b)
above shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it shall be
the average of the Termination Currency Equivalents of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
TOYOTA MOTOR CREDIT CORPORATION TOYOTA AUTO LEASE TRUST 1998-C*
................................... ......................................
(Name of Party) (Name of Party)
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
................................ ...................................
Name: Xxxxxx X. Xxxxx Name: XXXXXX X. XXXXXXX
Title: Senior Vice President and Title: Vice President
General Manager
Date: Date:
* U.S. Bank National Association
as 1998-C Securitization
Trustee
18
EXECUTION COPY
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF DECEMBER 1, 1998
BETWEEN
TOYOTA MOTOR CREDIT CORPORATION.
("PARTY A")
AND
TOYOTA AUTO LEASE TRUST 1998-C
("PARTY B")
Part 1. Termination Provisions.
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
and in relation to Party B for the purpose of:
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
(b) "SPECIFIED TRANSACTION" has the meaning specified in Section 14.
(c) The "BREACH OF AGREEMENT" provisions of Section 5(a)(ii) will not
apply to Party B.
The "CREDIT SUPPORT DEFAULT" provisions of Section 5(a)(iii) will not
apply to Party A or Party B.
The "MISREPRESENTATION" provisions of Section 5(a)(iv) will not apply
to Party B.
The "DEFAULT UNDER THE SPECIFIED TRANSACTION" provisions of Section
5(a)(v) will not apply to Party A and will not apply to Party B.
The "CROSS DEFAULT" provisions of Section 5(a)(vi) will not apply to
Party A and will not apply to Party B.
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will not
apply to Party A and will not apply to Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will not
apply to Party A and will not apply to Party B; PROVIDED, HOWEVER,
where an Event of Default specified
in Sections 5(a)(vii) (1), (3), (4), (5), (6) or, to the extent
analogous thereto, (8), is governed by a system of law which does not
permit termination to take place upon or after the occurrence of the
relevant Event of Default in accordance with the terms of this
Agreement, then the Automatic Early Termination provision of Section
6(a) will apply to Party A and Party B.
If an Early Termination Date occurs under Section 6(a) as a result of
Automatic Early Termination, the Defaulting Party shall fully
indemnify the Non-defaulting Party on demand against all expense,
loss, damage or liability that the Non-defaulting Party may incur in
respect of this Agreement and each Transaction as a consequence of
movements in interest, currency, exchange or other relevant rates or
prices or Market Quotations between the Early Termination Date and the
Local Business Day on which the Non-defaulting Party first becomes
aware that the Early Termination Date has occurred under Section 6(a).
The Non-defaulting Party may for this purpose convert any expense,
loss, damage or liability to the Termination Currency.
(f) PAYMENTS ON EARLY TERMINATION. "Market Quotation" and "Second Method"
will apply for the purpose of Section 6(e) of this Agreement;
PROVIDED, HOWEVER, that in the case of an Event of Default as
described under Section 5(a)(i) or 5(a)(vii) with respect to Party A
as the Defaulting Party, the related Settlement Amount, if negative,
will be deemed to be zero.
(g) "TERMINATION CURRENCY" means United States Dollars.
(h) The "TAX EVENT" provisions of Section 5(b)(ii) are hereby amended by
(i) inserting "(I)" after the caption "Tax Event." at the beginning
thereof and (ii) inserting "and (II) at least 51% by Voting Interests
of the Class A Certificateholders (as defined in the Trust Agreement)
and any Adjustable Rate Class B Certificateholders (as defined in the
Trust Agreement) directs the Trustee to terminate this Agreement and
to liquidate the assets of Party B" at the end thereof before the
semicolon.
(i) The "TAX EVENT UPON MERGER" provisions of Section 5(b)(iii) are hereby
amended by (i) inserting "(I)" after the caption "Tax Event Upon
Merger." at the beginning thereof and (ii) inserting "and (II) at
least 51% by Voting Interests of the Class A Certificateholders and
any Adjustable Rate Class B Certificateholders directs the Trustee to
terminate this Agreement and to liquidate the assets of Party B" at
the end thereof before the semicolon.
(j) ADDITIONAL TERMINATION EVENT will apply. Any of the following shall
constitute an Additional Termination Event:
(i) INSOLVENCY OF TRANSFEROR. The Transferor shall file a
petition commencing a voluntary case under any chapter of the
Federal bankruptcy laws; or the Transferor shall file a petition
or answer or consent seeking reorganization, arrangement,
adjustment, or composition under any other similar applicable
Federal law, or shall consent to the filing of any such petition,
answer, or consent; or the Transferor shall appoint, or consent
to the appointment of a custodian,
2
receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or of any
substantial part of its property, or shall make any assignment
for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due; or any
order for relief against the Transferor shall have been entered
by a court having jurisdiction in the premises under any chapter
of the Federal bankruptcy laws; or a decree or order by a court
having jurisdiction in the premises shall have been entered
approving as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of the Transferor under
any other similar applicable Federal Law; or a decree or order of
a court having jurisdiction in the premises for the appointment
of a custodian, receiver, liquidator, trustee, assignee,
sequestrator or other similar official in bankruptcy or
insolvency of the Transferor or of any substantial part of its
property, or for the winding up or liquidation of its affairs,
shall have been entered (in which event Party B shall be the
Affected Party).
(ii) INVESTMENT COMPANY. Party B or the Transferor becomes
subject to registration as an "investment company" for purposes
of the Investment Company Act of 1940, as amended (in which event
Party B shall be the Affected Party).
Part 2. Tax Representations
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, each of Party A and Party B makes the following
representation:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other
party under this Agreement. In making this representation, it may
rely on (i) the accuracy of any representations made by the other
party pursuant to Section 3(f) of this Agreement, (ii) the
satisfaction of the agreement of the other party contained in Section
4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant to
Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii) the
satisfaction of the agreement of the other party contained in Section
4(d) of this Agreement, PROVIDED that it shall not be a breach of this
representation where reliance is placed on clause (ii) and the other
party does not deliver a form or document under Section 4(a)(iii) by
reason of material prejudice to its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement, Party A and Party B make the representations specified
below:
(A) Party A makes the following representation: It is a
corporation duly organized and incorporated under the laws of the
State of California.
(B) Party B makes the following representation: It is a trust
organized or formed under the laws of the State of California.
Part 3. Agreement to Deliver Documents
3
For the purpose of Section 4(a) of this Agreement, each party agrees to
deliver the following documents as applicable:
(a) Tax forms, documents or certificates to be delivered are:
PARTY REQUIRED TO DATE BY WHICH TO BE
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED
------------------ -------------------------- --------------------
Party A and Party B Any document required or reasonably Promptly upon the earlier of
requested to allow the other party to (i) reasonable demand by the
make payments under this Agreement other party and (ii) learning
without any deduction or withholding that the form or document is
for or on account of any Tax or with required
such deduction or withholding tax at
a reduced rate
(b) Other documents to be delivered are:
PARTY REQUIRED TO COVERED BY SECTION
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED 3(d) REPRESENTATION
------------------ -------------------------- ----------------------------- -------------------
Party A and Party B Certificate or other documents At or promptly following the Yes
evidencing the authority of the execution of this Agreement,
party entering into this and, if a Confirmation so
Agreement and the persons acting requires it on or before the
on behalf of such party date set forth therein
Party A and Party B Legal Opinions in the form At or promptly following the No
reasonably acceptable to the execution of this Agreement
other party
Part 4. Miscellaneous
(a) ADDRESSES FOR NOTICES: For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: 00000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Treasury Manager
Telex No.: 3719707
Facsimile No.: 000-000-0000
Answerback: TMSUSA Z
(For all purposes)
4
Address for notices or communications to Party B:
Address: Toyota Auto Lease Trust 1998-C
c/o U.S. Bank National Association
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust/Xxxxx Xxxxxxx
Fax: (000) 000-0000
(For all purposes)
(b) PROCESS AGENT. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not Applicable
Party B appoints as its Process Agent: Not Applicable
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. Party A will be the Calculation Agent. All
calculations by the Calculation Agent (the "CA") shall be made in good
faith and through the exercise of the CA's commercially reasonable
judgment.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
Party A: Not Applicable
Party B: Not Applicable
(g) CREDIT SUPPORT PROVIDER.
Party A: Not Applicable
Party B: Not Applicable
(h) GOVERNING LAW. This Agreement and each Confirmation will be governed
by and construed in accordance with the laws of the State of New York,
without reference to its choice of law doctrine.
(i) WAIVER OF JURY TRIAL. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury
in respect of any proceedings relating to this Agreement.
5
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
Part 5. Other Provisions
(a) GROSS-UP, LIABILITY. Neither Party A nor Party B will in any
circumstance be required to pay additional amounts in respect of any
Indemnifiable Tax or be under any obligation to pay to the other any
amount in respect of any liability of such other for or on account of
any Tax and, accordingly, Section 2(d)(i)(4) and Section 2(d)(ii) of
this Agreement shall not apply.
(b) EARLY TERMINATION.
(i) Section 6(b)(ii) is hereby amended to read in its entirety as
follows:
TRANSFER TO AVOID TERMINATION EVENT.
(1) If an Illegality under Section 5(b)(i)(1) or a Tax Event or a Tax
Event Upon Merger occurs, if Party A is the Affected Party it will,
and, if Party B is the Affected Party it may request Party A to, as a
condition to its right, if any, to designate an Early Termination Date
under Section 6(b)(iv), use all reasonable efforts (which will not
require Party A to incur a loss, excluding immaterial, incidental
expenses) to transfer within 20 days after it gives notice under
Section 6(b)(i) all its rights and obligations under this Agreement in
respect of the Affected Transactions to another of its Offices so
that such Termination Event ceases to exist.
If Party A is not able to make such a transfer it will give notice to
the other party to that effect within such 20 day period.
Any such transfer under this Section 6(b)(ii)(1) will be subject to
and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with
the transferee on the terms proposed.
(2) No transfer or substitution pursuant to this Section 6(b)(ii)
shall occur unless and until the Trustee has received the written
affirmation of each of Standard & Poor's and Xxxxx'x that such
transfer or substitution shall not adversely affect the then-current
ratings of the Certificates (as defined in the Trust Agreement).
(c) Section 6(b)(iii) shall not apply.
(d) Section 6(b)(iv) is hereby amended by (i) deleting (A) the words "a
Credit Event Upon Merger" and (B) the words "or a Tax Event Upon
Merger occurs and the Burdened Party is not the Affected Party," from
clause (2) of said Section 6(b)(iv) and (ii) deleting the words from
and including "either party in the case of" to the end of Section
6(b)(iv) and adding the words "either party in the case of an
Illegality or an Additional Termination Event, or Party B in the case
of a Tax Event or a Tax Event upon Merger may, by not more than 20
days notice to the other party and provided that the relevant
Termination Event is then continuing, designate a day not earlier
than the day such notice is effective
6
as an Early Termination Date in respect of all Affected
Transactions." at the end of said Section 6(b)(iv).
(e) Any termination payment payable pursuant to Section 6(e) shall be
computed separately for each Transaction hereunder and any amount
owed by either Party A or Party B with respect to the termination of
any such Transaction shall not be netted against any other amounts
due under this Agreement.
(f) Section 7 is hereby amended to read in its entirety as follows:
Except as stated under Section 6(b)(ii) and as provided in this
Section 7, and except for the assignment by way of security in favor
of the Trustee under the Trust Agreement, neither Party A nor Party
B is permitted to assign, novate or transfer as a whole or in part
any of its rights, obligations or interests under this Agreement.
Party A may transfer this Agreement to another party (the
"Transferee"), on ten Business Days' prior written notice, PROVIDED
that (i) such notice shall be accompanied by a guarantee of Party A
of such Transferee's obligations in form and substance reasonably
satisfactory to the Trustee; (ii) Party A delivers an opinion of
independent counsel of recognized standing in form and substance
reasonably satisfactory to the Trustee confirming that as of the
date of such transfer the Transferee will not, as a result of such
transfer, be required to withhold or deduct on account of tax under
this Agreement; (iii) a Termination Event or Event of Default does
not occur under this Agreement as a result of such transfer and (iv)
the Trustee has received written affirmation of Standard & Poor's
and Xxxxx'x (or their successors) that such transfer shall not
adversely affect the then-current ratings of the Certificates. In
addition, in the event the long-term debt rating of Party A is
reduced to a level below "Aa3" by Xxxxx'x (or its successor) or "AA"
by Standard & Poor's (or its successor) or the short-term debt
rating of Party A is reduced to a level below P-1 by Xxxxx'x or A-1+
by Standard Poor's, Party A may assign this Agreement to another
party (or otherwise obtain a replacement swap agreement on
substantially the same terms as this Agreement) and thereby be
released from its obligations under this Agreement, PROVIDED that
(i) such Transferee, by a written instrument, accepts all of the
obligations of Party A under this Agreement to the reasonable
satisfaction of the Trustee, (ii) Party A delivers an opinion of
independent counsel of recognized standing in form and substance
reasonably satisfactory to the Trustee confirming that as of the
date of such transfer the Transferee will not, as a result of such
transfer, be required to withhold or deduct on account of tax under
this Agreement, (iii) a Termination Event or Event of Default does
not occur under this Agreement as a result of such transfer and (iv)
the ratings assigned to the Certificates after such assignment and
release will be at least equal to the ratings assigned by Xxxxx'x
and Standard & Poor's (or their successors) to the Certificates at
the time of such reduction of the rating of Party A's long-term
debt. Any cost of such transfer will be borne by Party A or such
Transferee and not by Party B. In addition, in the event that Party
A does not elect to assign this Agreement or obtain a replacement
swap agreement after such a reduction in rating, Party A may (but
shall not be obligated to) establish any other arrangement
satisfactory to Moody's and Standard & Poor's such that the ratings
of the Certificates by the applicable rating agency will not be
withdrawn or reduced.
7
(g) ADDITIONAL REPRESENTATIONS. Section 3 is hereby amended by adding at
the end thereof the following Subparagraphs:
(g) It is entering into this Agreement and any other documentation
relating to this Agreement as principal (and not as agent or in any
other capacity, fiduciary or otherwise).
(h) It is an "eligible swap participant" as defined in 17 C.F.R.
Section 35.1(b)(2) and has entered into this Agreement and each
Transaction in connection with its line of business including
financial intermediation services or the financing of its business.
(i) It hereby acknowledges and agrees that this Agreement and each
Transaction hereunder or thereunder is intended to be a "swap
agreement" as that term is defined in the U.S. Bankruptcy Code (as
amended from time to time) and that the rights granted to each party
under Section 6 include a contractual right to terminate a "swap
agreement" and to offset and net out termination values and payment
amounts in connection therewith.
(h) AMENDMENTS. Section 9(b) of this Agreement is hereby amended to read:
AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing and executed by each
of the parties; PROVIDED, HOWEVER, that all such amendments,
modifications or waivers shall require the written affirmation of
each of Standard & Poor's and Moody's that such amendments,
modifications or waivers shall not adversely affect the then-current
ratings of the Certificates.
(i) CONFIRMATIONS. Each Confirmation supplements, forms part of, and
will be read and construed as one with this Agreement.
(j) ADDITIONAL DEFINITIONS. Terms defined or referred to in the Trust
Agreement shall bear the same respective meanings herein. "Trust
Agreement" shall mean the 1998-C Securitization Trust Agreement,
dated as of December 1, 1998, between Toyota Leasing, Inc. and U.S.
Bank National Association, as trustee.
(k) INTEREST RATE AND CURRENCY EXCHANGES DEFINITIONS. Reference is
hereby made to the 1991 ISDA Definitions (the "Definitions"),
published by the International Swaps and Derivatives Association,
Inc., which are hereby incorporated by reference herein without
regard to any revision or subsequent edition thereof.
(l) PAYMENTS FROM PARTY B. Notwithstanding anything contained in this
Agreement to the contrary, any amount required to be paid by Party B
pursuant to this Agreement will be payable only to the extent and in
accordance with the priority provided in the Trust Agreement.
(m) NO SET-OFF. Without affecting the provisions of this Agreement
requiring the calculation of certain net payment amounts, all
payments under this Agreement will be made without set-off or
counterclaims.
8
(n) INCONSISTENCY. In the event of an inconsistency among or between
any of the following documents, the relevant document first listed
below shall govern.
(i) Part 5(l) of the Schedule;
(ii) Confirmation;
(iii) Schedule;
(iv) Definitions;
(v) Sections 1 through 14 of this Agreement.
(o) DEFAULT INTEREST; OTHER AMOUNTS. Section 2(e) of this Agreement is
hereby amended by adding the following at the end of the first
sentence thereof:
; PROVIDED, HOWEVER, that this Section 2(e) shall not apply to
either Party A or Party B if its failure to pay is caused solely by
such party becoming required to deduct or withhold on account of any
Tax as set out in Section 2(d)(i).
9
IN WITNESS WHEREOF, the parties have executed this Schedule by their
duly authorized officers as of December 1, 1998.
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Senior Vice President and General
Manager
Date:
TOYOTA AUTO LEASE TRUST 1998-C
By: U.S. BANK NATIONAL ASSOCIATION,
as 1998-C Securitization Trustee
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Date:
10
EXECUTION COPY
Class A-1 Confirmation to the
ISDA Master Agreement
dated as of December 1, 1998
Toyota Auto Lease Trust 1998-C
c/o U.S. Bank National Association
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Transaction Ref. No. 1 between Toyota Motor Credit Corporation
("Party A") and Toyota Auto Lease Trust 1998-C ("Party B")
Dear Sirs:
The purpose of this letter agreement is to confirm the terms and
conditions of the Swap Transaction entered into between you and us on the
Trade Date specified below (the "Transaction"). This letter agreement
constitutes a "Confirmation" as referred to in the ISDA Master Agreement
specified below.
The definitions and provisions contained in the 1991 ISDA Definitions
(as published by the International Swaps and Derivatives Association,
Inc.)(the "Definitions") are incorporated in this Confirmation. In the event of
any inconsistency between those Definitions and this Confirmation, this
Confirmation will govern.
1. This Confirmation supplements, forms part of, and is subject to, the ISDA
Master Agreement, dated as of December 1, 1998, as amended and supplemented
from time to time (the "Agreement"), between you and us. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified below. Expressions used herein and not defined herein or in the
Definitions shall bear the meaning ascribed thereto in the Agreement.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Party A: Toyota Motor Credit Corporation
Party B: Toyota Auto Lease Trust 1998-C
Trade Date: November 19, 1998
Effective Date: December 3, 1998
Termination Date: Class A-1 Targeted Maturity Date (as
defined in the Trust Agreement), subject
to adjustment in accordance with the
Following Business Day Convention;
provided, however, that if the
Termination Date is extended in
accordance with the provisions of
paragraph 4 hereof,
"Termination Date" shall have the
meaning given to such term in
paragraph 4.
Party A Floating Amounts:
Party A Floating Rate
Payer: Party A
Party A Floating Rate
Payer Notional Amount: The Class A-1 Certificate Balance (as
defined in the Trust Agreement) on the
last day of the applicable Calculation
Period.
Party A Floating Rate Payer
Period End Dates: Each March 25, June 25, September 25
and December 25, commencing on March 25,
1999, up to and including the Termination
Date, subject to adjustment in accordance
with the Following Business Day
Convention.
Party A Floating Rate Payer
Payment Dates: Each March 25, June 25, September 25
and December 25, commencing on March 25,
1999, up to and including the Termination
Date, subject to adjustment in
accordance with the Following Business
Day Convention.
Party A Floating Rate Option: USD-LIBOR-BBA.
Designated Maturity: 3 months, with the exception of the
initial Calculation Period, in which case
the Designated Maturity shall be the
linear interpolation of four and three
months.
Spread: Plus .23%
Party A Floating Rate
for the initial
Calculation Period: 5.243258% (excluding the Spread)
Party A Floating Rate
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period.
Compounding: Inapplicable.
2
Party B Fixed Amounts:
Party B Fixed Rate Payer: Party B
Party B Fixed Rate Payer
Notional Amount: The Class A-1 Certificate Balance on
the last day of the applicable
Calculation Period.
Party B Fixed Rate Payer
Period End Dates: Each March 25, June 25, September 25
and December 25, commencing on March 25,
1999, up to and including the
Termination Date, with no adjustment,
with the exception of the Termination
Date, which shall be subject to
adjustment in accordance with the
Following Business Day Convention.
Party B Fixed Rate Payer
Payment Dates: Each March 25, June 25, September 25
and December 25, commencing on March
25, 1999, up to and including the
Termination Date, subject to adjustment
in accordance with the Following
Business Day Convention.
Party B Fixed Rate: 5.265%
Party B Fixed Rate
Day Count Fraction: 30/360
Business Days: "Business Day" as defined in the Trust
Agreement
Calculation Agent: Party A
3. Details of Variation to Agreement:
Taxation: If, as a result of the occurrence of any of the events described in
Section 5(b)(ii) or 5(b)(iii) of the Agreement, on any Party B Fixed Rate
Payer Payment Date Party A receives a payment from Party B from which an
amount has been deducted or withheld for or on account of a Tax, the payment
obligations of Party B hereunder with respect to such Payment Date shall be
reduced by the amount of any taxes so deducted or withheld and Party A's
payment obligations with respect to such Payment Date shall be reduced in
proportion to the amount by which Party B's payment obligations are so
reduced. If, as a result of the occurrence of any of the events described in
Section 5(b)(ii) or 5(b)(iii) of the Agreement, on any Party A Floating Rate
Payer Payment Date Party B receives a payment from Party A from which an
amount has been deducted or withheld for or on account of a Tax, the payment
obligations of Party A hereunder
3
with respect to such Payment Date shall be reduced by the amount of any taxes
so deducted or withheld and the payment obligations of Party B with respect
to such Payment Date shall remain the same.
Interest Deferral: If on any Party B Fixed Rate Payer Payment Date, the
amount allocated under the Trust Agreement and paid by Party B to Party A is
less than the Party B Fixed Amount due on such date (the amount of any such
insufficiency, the "Swap Interest Shortfall Amount"), the obligation of
Party A to pay Party A Floating Amounts on the corresponding Party A Floating
Rate Payer Payment Date will be reduced in the same proportion as the
proportion that such Swap Interest Shortfall Amount represents of the Party B
Fixed Amount otherwise due on such date. If on a subsequent Party B Fixed
Rate Payer Payment Date, amounts are available and are paid by Party B to
Party A pursuant to the Trust Agreement to reimburse all or any part of such
Swap Interest Shortfall Amount, then the obligation of Party A to pay Party A
Floating Amounts on the corresponding Party A Floating Rate Payer Payment
Date will be increased in the same proportion as the proportion that the
amount of such reimbursement represents of the Party B Fixed Amount otherwise
due on such date. If a Swap Interest Shortfall Amount shall exist on any
Early Termination Date, for purposes or computing the Market Quotation, the
aggregate amount of all outstanding Swap Interest Shortfall Amounts shall be
due on the first Party B Fixed Rate Payer Payment Date following the Early
Termination Date and the amount due from Party A on the first Party A
Floating Rate Payer Payment Date following the Early Termination Date will be
increased in the same proportion as the proportion that the amount of such
outstanding Swap Interest Shortfall Amounts represents of the Party B Fixed
Amount that would otherwise be due on such date.
Extension: If on the Termination Date, the Class A-1 Certificate Balance has
not been reduced to zero, the Termination Date shall be extended to the
Extension Period End Date, being the earlier of (i) the Party A Floating Rate
Payer Payment Date (as defined in Section 4 below) on which the Class A-1
Certificate Balance is reduced to zero and (ii) the Stated Maturity Date (as
defined in the Trust Agreement) for the Class A-1 Certificates, subject to
adjustment in accordance with the Following Business Day Convention. The
period from the Class A-1 Targeted Maturity Date to the Extension Period End
Date is referred to herein as the "Extension Period".
4. During the Extension Period, instead of the Party B Fixed Amounts and
the Party A Floating Amounts described above in Section 2, the following
provisions will be applicable:
Party A Floating Amount
Floating Rate Payer: Party A
Party A Floating Rate
Payer Notional Amount: The Class A-1 Certificate
Balance on the last day of the
applicable Calculation Period.
Initial Extension Period
Calculation Period: Commencing on the Class A-1
Targeted Maturity Date.
4
Party A Floating Rate Payer
Period End Dates: The 25th day of each month
commencing January 25, 2001,
subject to adjustment in
accordance with the Following
Business Day Convention.
Party A Floating Rate Payer
Payment Dates: The 25th day of each month
commencing January 25, 2001,
subject to adjustment in
accordance with the Following
Business Day Convention.
Party A Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 month
Spread: Plus 0.26%
Floating Rate
Day Count Fraction: Actual/360
Reset Dates: First day of each Calculation
Period.
Compounding: Inapplicable.
Party B Fixed Amount
Fixed Rate Payer: Payer B
Party B Fixed Rate
Payer Notional Amount: The Class A-1 Certificate
Balance on the last day of the
Calculation Period.
Initial Extension Period
Calculation Period: Commencing on the Class A-1
Targeted Maturity Date.
Party B Fixed Rate
Payer Period End Dates: (i) the 25th day of each month,
with no adjustment and (ii) the
Extension Period End Date, which
shall be subject to adjustment
in accordance with the Following
Business Day Convention.
Party B Fixed Rate
5
Payer Payment Dates: The 25th day of each month,
subject to adjustment in
accordance with the Following
Business Day Convention, and the
Extension Period End Date,
subject to adjustment in
accordance with the Following
Business Day Convention.
Party B Fixed Rate: 5.265%
Fixed Rate
Day Count Fraction: 30/360
Reset Dates: First day of each Calculation
Period.
5. Account Details
Payments to Party A:
Account for Payments in USD: Bank of America, Concord,
California
ABA No. 000-000-000
A/C No. 12351-07564
A/C Toyota Motor Credit
Corporation
Payments to Party B:
Account for Payments in USD: U.S. Bank National Association
ABA # 000000000
180121167365
47300121
Acct# 77085461
6. Party A Documentation and Operations Officers
Documentation: Xxxxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
Operations: Xxxxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
7. Relationship between Parties:
Each party will be deemed to represent to the other party on the date
on which it enters into the Agreement that (absent a written agreement
between the parties that expressly imposes affirmative obligations to the
contrary):
6
NON-RELIANCE. It is acting for its own account, and it has made its
own independent decisions to enter into the Agreement and as to
whether the Agreement is appropriate or proper for it based upon its
own judgment and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or oral)
of the other party as investment advice or as a recommendation to
enter into the Agreement; it being understood that information and
explanations related to the terms and conditions of the Agreement
shall not be considered investment advice or a recommendation to
enter into the Agreement. No communication (written or oral)
received from the other party shall be deemed to be an assurance or
guarantee as to the expected results of the Agreement.
ASSESSMENT AND UNDERSTANDING. It is capable of assessing the merits
of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of the Agreement. It is also capable of
assuming, and assumes, the risks of the Agreement.
STATUS OF PARTIES. The other party is not acting as a fiduciary for
or as adviser to it in respect of the Agreement.
8. Governing Law: New York
7
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this Class A-1 Confirmation enclosed
for that purpose and returning it to us.
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Senior Vice President
and General Manager
Confirmed as of the date first written:
TOYOTA AUTO LEASE TRUST 1998-C
By: U.S. BANK NATIONAL ASSOCIATION,
as 1998-C Securitization Trustee
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
EXECUTION COPY
Class A-2 Confirmation to the
ISDA Master Agreement
dated as of December 1, 1998
Toyota Auto Lease Trust 1998-C
c/o U.S. Bank National Association
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Transaction Ref. No. 2 between Toyota Motor Credit Corporation ("Party
A") and Toyota Auto Lease Trust 1998-C ("Party B")
Dear Sirs:
The purpose of this letter agreement is to confirm the terms and
conditions of the Swap Transaction entered into between you and us on the Trade
Date specified below (the "Transaction"). This letter agreement constitutes a
"Confirmation" as referred to in the ISDA Master Agreement specified below.
The definitions and provisions contained in the 1991 ISDA Definitions
(as published by the International Swaps and Derivations Association, Inc.)(the
"Definitions") are incorporated in this Confirmation. In the event of any
inconsistency between those Definitions and this Confirmation, this Confirmation
will govern.
1. This Confirmation supplements, forms part of, and is subject to, the ISDA
Master Agreement, dated as of December 1, 1998, as amended and supplemented
from time to time (the "Agreement"), between you and us. All provisions
contained in the Agreement govern this Confirmation except as expressly modified
below. Expressions used herein and not defined herein or in the Definitions
shall bear the meaning ascribed thereto in the Agreement.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Party A: Toyota Motor Credit Corporation
Party B: Toyota Auto Lease Trust 1998-C
Trade Date: November 19, 1998
Effective Date: December 3, 1998
Termination Date: Class A-2 Targeted Maturity Date (as
defined in the Trust Agreement), subject
to adjustment in accordance with the
Following Business Day Convention;
provided, however, that if the
Termination Date is extended in
accordance with the provisions of
paragraph 4 hereof,
"Termination Date" shall have the
meaning given to such term in paragraph
4.
Party A Floating Amounts:
Party A Floating Rate
Payer: Party A
Party A Floating Rate
Payer Notional Amount: The Class A-2 Certificate Balance (as
defined in the Trust Agreement) on the
last day of the applicable Calculation
Period.
Party A Floating Rate Payer
Period End Dates: Each March 25, June 25, September 25 and
December 25, commencing on March 25,
1999, up to and including the
Termination Date, subject to adjustment
in accordance with the Following
Business Day Convention.
Party A Floating Rate Payer
Payment Dates: Each March 25, June 25, September 25 and
December 25, commencing on March 25,
1999, up to and including the
Termination Date, subject to adjustment
in accordance with the Following
Business Day Convention.
Party A Floating Rate Option: USD-LIBOR-BBA.
Designated Maturity: 3 months, with the exception of the
initial Calculation Period, in which
case the Designated Maturity shall be
the linear interpolation of four and
three months.
Spread: Plus 0.27%
Party A Floating Rate
for the initial
Calculation Period: 5.243258% (excluding the Spread)
Party A Floating Rate
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period.
Compounding: Inapplicable.
2
Party B Fixed Amounts:
Party B Fixed Rate Payer: Party B
Party B Fixed Rate Payer
Notional Amount: The Class A-2 Certificate Balance on the
last day of the applicable Calculation
Period.
Party B Fixed Rate Payer
Period End Dates: Each March 25, June 25, September 25 and
December 25, commencing on March 25,
1999, up to and including the
Termination Date, with no adjustment,
with the Exception of the Termination
Date, which shall be subject to
adjustment in accordance with the
Following Business Day Convention.
Party B Fixed Rate Payer
Payment Dates: Each March 25, June 25, September 25 and
December 25, commencing on March 25,
1999, up to and including the
Termination Date, subject to adjustment
in accordance with the Following
Business Day Convention.
Party B Fixed Rate: 5.413%
Party B Fixed Rate
Day Count Fraction: 30/360
Business Days: "Business Day" as defined in the Trust
Agreement
Calculation Agent: Party A
3. Details of Variation to Agreement:
Taxation: If, as a result of the occurrence of any of the events described in
Section 5(b)(ii) or 5(b)(iii) of the Agreement, on any Party B Fixed Rate Payer
Payment Date Party A receives a payment from Party B from which an amount has
been deducted or withheld for or on account of a Tax, the payment obligations of
Party B hereunder with respect to such Payment Date shall be reduced by the
amount of any taxes so deducted or withheld and Party A's payment obligations
with respect to such Payment Date shall be reduced in proportion to the amount
by which Party B's payment obligations are so reduced. If, as a result of the
occurrence of any of the events described in Section 5(b)(ii) or 5(b)(iii) of
the Agreement, on any Party A Floating Rate Payer Payment Date Party B receives
a payment from Party A from which an amount has been deducted or withheld for or
on account of a Tax, the payment obligations of Party A hereunder
3
with respect to such Payment Date shall be reduced by the amount of any taxes
so deducted or withheld and the payment obligations of Party B with respect
to such Payment Date shall remain the same.
Interest Deferral: If on any Party B Fixed Rate Payer Payment Date, the
amount allocated under the Trust Agreement and paid by Party B to Party A is
less than the Party B Fixed Amount due on such date (the amount of any such
insufficiency, the "Swap Interest Shortfall Amount"), the obligation of
Party A to pay Party A Floating Amounts on the corresponding Party A Floating
Rate Payer Payment Date will be reduced in the same proportion as the
proportion that such Swap Interest Shortfall Amount represents of the Party B
Fixed Amount otherwise due on such date. If on a subsequent Party B Fixed
Rate Payer Payment Date, amounts are available and are paid by Party B to
Party A pursuant to the Trust Agreement to reimburse all or any part of such
Swap Interest Shortfall Amount, then the obligation of Party A to pay Party A
Floating Amounts on the corresponding Party A Floating Rate Payer Payment
Date will be increased in the same proportion as the proportion that the
amount of such reimbursement represents of the Party B Fixed Amount otherwise
due on such date. If a Swap Interest Shortfall Amount shall exist on any
Early Termination Date, for purposes of computing the Market Quotation, the
aggregate amount of all outstanding Swap Interest Shortfall Amounts shall be
due on the first Party B Fixed Rate Payer Payment Date following the Early
Termination Date and the amount due from Party A on the first Party A
Floating Rate Payer Payment Date following the Early Termination Date will be
increased in the same proportion as the proportion that the amount of such
outstanding Swap Interest Shortfall Amounts represents of the Party B Fixed
Amount that would otherwise be due on such date.
Extension: If on the Termination Date, the Class A-2 Certificate Balance has
not been reduced to zero, the Termination Date shall be extended to the
Extension Period End Date, being the earlier of (i) the Party A Floating Rate
Payer Payment Date (as defined in Section 4 below) on which the Class A-2
Certificate Balance is reduced to zero and (ii) the Stated Maturity Date (as
defined in the Trust Agreement) for the Class A-2 Certificates, subject to
adjustment in accordance with the Following Business Day Convention. The
period from the Class A-2 Targeted Maturity Date to the Extension Period End
Date is referred to herein as the "Extension Period".
4. During the Extension Period, instead of the Party B Fixed Amounts and
the Party A Floating Amounts described above in Section 2, the following
provisions will be applicable:
Party A Floating Amount
Floating Rate Payer: Party A
Party A Floating Rate
Payer Notional Amount: The Class A-2 Certificate
Balance on the last day of the
applicable Calculation Period.
Initial Extension Period
Calculation Period: Commencing on the Class A-2
Targeted Maturity Date.
4
Party A Floating Rate Payer
Period End Dates: The 25th day of each month
commencing January 25, 2002,
subject to adjustment in
accordance with the Following
Business Day Convention.
Party A Floating Rate Payer
Payment Dates: The 25th day of each month
commencing January 25, 2002,
subject to adjustment in
accordance with the Following
Business Day Convention.
Party A Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 month
Spread: Plus 0.30%
Floating Rate
Day Count Fraction: Actual/360
Reset Dates: First day of each Calculation
Period.
Compounding: Inapplicable.
Party B Fixed Amount
Fixed Rate Payer: Party B
Party B Fixed Rate
Payer Notional Amount: The Class A-2 Certificate
Balance on the last day of the
Calculation Period.
Initial Extension Period
Calculation Period: Commencing on the Class A-2
Targeted Maturity Date.
Party B Fixed Rate
Payer Period End Dates: (i) The 25th day of each month,
with no adjustment and (ii) the
Extension Period End Date, which
shall be subject to adjustment
in accordance with the Following
Business Day Convention.
Party B Fixed Rate
5
Payer Payment Dates: The 25th day of each month,
subject to adjustment in
accordance with the Following
Business Day Convention, and the
Extension Period End Date,
subject to adjustment in
accordance with the Following
Business Day Convention.
Party B Fixed Rate: 5.413%
Fixed Rate
Day Count Fraction: 30/360
Reset Dates: First day of each Calculation
Period.
5. Account Details
Payments to Party A:
Account for Payments in USD: Bank of America, Concord,
California
ABA No. 000-000-000
A/C No. 12351-07564
A/C Toyota Motor Credit
Corporation
Payments to Party B:
Account for Payments in USD: U.S. Bank National Association
ABA # 000000000
180121167365
47300121
Acct# 77085461
6. Party A Documentation and Operations Officers
Documentation: Xxxxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
Operations: Xxxxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
7. Relationship between Parties:
Each party will be deemed to represent to the other party on the date
on which it enters into the Agreement that (absent a written agreement
between the parties that expressly imposes affirmative obligations to the
contrary):
6
NON-RELIANCE. It is acting for its own account, and it has made its own
independent decisions to enter into the Agreement and as to whether the
Agreement is appropriate or proper for it based upon its own judgement and
upon advice from such advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into the Agreement; it
being understood that information and explanations related to the terms and
conditions of the Agreement shall not be considered investment advice or a
recommendation to enter into the Agreement. No communication (written or
oral) received from the other party shall be deemed to be an assurance or
guarantee as to the expected results of the Agreement.
ASSESSMENT AND UNDERSTANDING. It is capable of assessing the merits of and
understanding (on its own behalf or through independent professional
advice), and understands and accepts, the terms, conditions and risks of
the Agreement. It is also capable of assuming, and assumes, the risks of
the Agreement.
STATUS OF PARTIES. The other party is not acting as a fiduciary for or as
adviser to it in respect of the Agreement.
8. Governing Law: New York
7
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Class A-2 Confirmation enclosed for that
purpose and returning it to us.
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
Senior Vice President
and General Manager
Confirmed as of the date first written:
TOYOTA AUTO LEASE TRUST 1998-C
By: U.S. BANK NATIONAL ASSOCIATION,
as 1998-C Securitization Trustee
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
EXECUTION COPY
Class A-3 Confirmation to the
ISDA Master Agreement
dated as of December 1, 1998
Toyota Auto Lease Trust 1998-C
c/o U.S. Bank National Association
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Transaction Ref. No. 3 between Toyota Motor Credit Corporation ("Party A")
and Toyota Auto Lease Trust 1998-C ("Party B")
Dear Sirs:
The purpose of this letter agreement is to confirm the terms and conditions
of the Swap Transaction entered into between you and us on the Trade Date
specified below (the "Transaction"). This letter agreement constitutes a
"Confirmation" as referred to in the ISDA Master Agreement specified below.
The definitions and provisions contained in the 1991 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc.) (the
"Definitions") are incorporated in this Confirmation. In the event of any
inconsistency between those Definitions and this Confirmation, this Confirmation
will govern.
1. This Confirmation supplements, forms part of, and is subject to , the ISDA
Master Agreement, dated as of December 1, 1998, as amended and supplemented from
time to time (the "Agreement"), between you and us. All provisions contained in
the Agreement govern this Confirmation except as expressly modified below.
Expressions used herein and not defined herein or in the Definitions shall bear
the meaning ascribed thereto in the Agreement.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Party A: Toyota Motor Credit Corporation
Party B: Toyota Auto Lease Trust 1998-C
Trade Date: November 19, 1998
Effective Date: December 3, 1998
Termination Date: Class A-3 Targeted Maturity Date
(as defined in the Trust
Agreement), subject to adjustment
in accordance with the Following
Business Day Convention; provided,
however, that if the Termination
Date is extended in accordance with
the provisions of paragraph 4
hereof,
"Termination Date" shall have the
meaning given to such term in
paragraph 4.
Party A Floating Amounts:
Party A Floating Rate
Payer: Party A
Party A Floating Rate
Payer Notional Amount: The Class A-3 Certificate Balance
(as defined in the Trust Agreement)
on the last day of the applicable
Calculation Period.
Party A Floating Rate Payer
Period End Dates: Each March 25, June 25, September
25 and December 25, commencing on
March 25, 1999, up to and including
the Termination Date, subject to
adjustment in accordance with the
Following Business Day Convention.
Party A Floating Rate Payer
Payment Dates: Each March 25, June 25, September
25 and December 25, commencing on
March 25, 1999, up to and including
the Termination Date, subject to
adjustment in accordance with the
Following Business Day Convention.
Party A Floating Rate Option: USD-LIBOR-BBA.
Designated Maturity: 3 months, with the exception of the
initial Calculation Period, in
which case the Designated Maturity
shall be the linear interpolation
of four and three months.
Spread: Plus 0.32%
Party A Floating Rate
for the initial
Calculation Period: 5.243258% (excluding the Spread)
Party A Floating Rate
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period.
Compounding: Inapplicable.
2
Party B Fixed Amounts:
Party B Fixed Rate Payer: Party B
Party B Fixed Rate Payer
Notional Amount: The Class A-3 Certificate Balance
on the last day of the applicable
Calculation Period.
Party B Fixed Rate Payer
Period End Dates: Each March 25, June 25, September
25 and December 25, commencing on
March 25, 1999, up to and including
the Termination Date, with no
adjustment, with the exception of
the Termination Date, which shall
be subject to adjustment in
accordance with the Following
Business Day Convention.
Party B Fixed Rate Payer
Payment Dates: Each March 25, June 25, September 25 and
December 25, commencing on March 25,
1999, up to and including the
Termination Date, subject to adjustment
in accordance with the Following
Business Day Convention.
Party B Fixed Rate: 5.463%
Party B Fixed Rate
Day Count Fraction: 30/360
Business Days: "Business Day" as defined in the
Trust Agreement
Calculation Agent: Party A
3. Details of Variation to Agreement:
Taxation: If, as a result of the occurrence of any of the events described in
Section 5(b)(ii)or 5(b)(iii) of the Agreement, on any Party B Fixed Rate Payer
Payment Date Party A receives a payment from Party B from which an amount had
been deducted or withheld for or on account of a Tax, the payment obligations of
Party B hereunder with respect to such Payment Date shall be reduced by the
amount of any taxes so deducted or withheld and Party A's payment obligations
with respect to such Payment Date shall be reduced in proportion to the amount
by which Party B's payment obligations are so reduced. If, as a result of the
occurrence of any of the events described in Section 5(b)(ii) or 5(b)(iii) of
the Agreement, on any Party A Floating Rate Payer Payment Date Party B receives
a payment from Party A from which an amount has been deducted or withheld for or
on account of a Tax, the payment obligations of Party A hereunder
3
with respect to such Payment Date shall be reduced by the amount of any taxes so
deducted or withheld and the payment obligations of Party B with respect to such
Payment Date shall remain the same.
Interest Deferral: If on any Party B Fixed Rate Payer Payment Date, the amount
allocated under the Trust Agreement and paid by Party B to Party A is less than
the Party B Fixed Amount due on such date (the amount of any such insufficiency,
the "Swap Interest Shortfall Amount"), the obligation of Party A to pay Party A
Floating Amounts on the corresponding Party A Floating Rate Payer Payment Date
will be reduced in the same proportion as the proportion that such Swap Interest
Shortfall Amount represents of the Party B Fixed Amount otherwise due on such
date. If on a subsequent Party B Fixed Rate Payer Payment Date, amounts are
available and are paid by Party B to Party A pursuant to the Trust Agreement to
reimburse all or any part of such Swap Interest Shortfall Amount then the
obligation of Party A to pay Party A Floating Amounts on the corresponding Party
A Floating Rate Payer Payment Date will be increased in the same proportion as
the proportion that the amount of such reimbursement represents of the Party B
Fixed Amount otherwise due on such date. If a Swap Interest Shortfall Amount
shall exist on any Early Termination Date, for purposes of computing the Market
Quotation, the aggregate amount of all outstanding Swap Interest Shortfall
Amounts shall be due on the first Party B Fixed Rate Payer Payment Date
following the Early Termination Date and the amount due from Party A on the
first Party A Floating Rate Payer Payment Date following the Early Termination
Date will be increased in the same proportion as the proportion that the amount
of such outstanding Swap Interest Shortfall Amounts represents of the Party B
Fixed Amount that would otherwise be due on such date.
Extension: If on the Termination Date, the Class A-3 Certificate Balance has
not been reduced to zero, the Termination Date shall be extended to the
Extension Period End Date, being the earlier of (i) the Party A Floating Rate
Payer Payment Date (as defined in Section 4 below) on which the Class A-3
Certificate Balance is reduced to zero and (ii) the Stated Maturity Date (as
defined in the Trust Agreement) for the Class A-3 Certificates, subject to
adjustment in accordance with the Following Business Day Convention. The period
from the Class A-3 Targeted Maturity Date to the Extension Period End Date is
referred to herein as the "Extension Period".
4. During the Extension Period, instead of the Party B Fixed Amounts and the
Party A Floating Amounts described above in Section 2, the following provisions
will be applicable:
Party A Floating Amount
Floating Rate Payer: Party A
Party A Floating Rate
Payer Notional Amount: The Class A-3 Certificate
Balance on the last day of the
applicable Calculation Period.
Initial Extension Period
Calculation Period: Commencing on the Class A-3
Targeted Maturity Date.
4
Party A Floating Rate Payer
Period End Dates: The 25th day of each month
commencing April 25, 2002,
subject to adjustment in
accordance with the Following
Business Day Convention.
Party A Floating Rate Payer
Payment Dates: The 25th day of each month
commencing April 25, 2002,
subject to adjustment in
accordance with the Following
Business Day Convention.
Party A Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 month
Spread: Plus 0.35%
Floating Rate
Day Count Fraction: Actual/360
Reset Dates: First day of each Calculation
Period.
Compounding: Inapplicable.
Party B Fixed Amount
Fixed Rate Payer: Party B
Party B Fixed Rate
Payer Notional Amount: The Class A-3 Certificate
Balance on the last day of the
Calculation Period.
Initial Extension Period
Calculation Period: Commencing on the Class A-3
Targeted Maturity Date.
Party B Fixed Rate
Payer Period End Dates: (i) The 25th day of each month, with
no adjustment and (ii) the Extension
Period End Date, which shall be subject
to adjustment in accordance with the
Following Business Day Convention.
Party B Fixed Rate
5
Payer Payment Dates: The 25th day of each month,
subject to adjustment in
accordance with the Following
Business Day Convention, and
the Extension Period End Date,
subject to adjustment in
accordance with the Following
Business Day Convention.
Party B Fixed Rate: 5.463%
Fixed Rate
Day Count Fraction: 30/360
Reset Dates: First day of each Calculation
Period.
5. Account Details
Payments to Party A:
Account for Payments in USD: Bank of America, Concord,
California
ABA No. 000-000-000
A/C No. 12351-07564
A/C Toyota Motor Credit
Corporation
Payments to Party B:
Accounts for Payments in USD: U.S. Bank National Association
ABA #000000000
180121167365
47300121
Acct# 77085461
6. Party A Documentation and Operations Officers
Documentation: Xxxxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
Operations: Xxxxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
7. Relationship between Parties:
Each party will be deemed to represent to the other party on the date on
which it enters into the Agreement that (absent a written agreement between the
parties that expressly imposes affirmative obligations to the contrary):
6
NON-RELIANCE. It is acting for its own account, and it has made its
own independent decisions to enter into the Agreement and as to
whether the Agreement is appropriate or proper for it based upon its
own judgment and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or oral)
of the other party as investment advice or as a recommendation to
enter into the Agreement; it being understood that information and
explanations related to the terms and conditions of the Agreement
shall not be considered investment advice or a recommendation to enter
into the Agreement. No communication (written or oral) received from
the other party shall be deemed to be an assurance or guarantee as to
the expected results of the Agreement.
ASSESSMENT AND UNDERSTANDING. It is capable of assessing the merits of
and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of the Agreement. It is also capable of assuming,
and assumes, the risks of the Agreement.
STATUS OF PARTIES. The other party is not acting as a fiduciary for or
as adviser to it in respect of the Agreement.
8. Governing Law: New York
7
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Class A-3 Confirmation enclosed for
that purpose and returning it to us.
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Senior Vice President
and General Manager
Confirmed as of the date first written:
TOYOTA AUTO LEASE TRUST 1998-C
By: U.S. BANK NATIONAL ASSOCIATION,
as 1998-C Securitization Trustee
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
EXECUTION COPY
Class B Confirmation to the
ISDA Master Agreement
dated as of December 1, 1998
Toyota Auto Lease Trust 1998-C
c/o U.S. Bank National Association
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Transaction Ref. No. 4 between Toyota Motor Credit Corporation
("Party A") and Toyota Auto Lease Trust 1998-C ("Party B")
Dear Sirs:
The purpose of this letter agreement is to confirm the terms and
conditions of the Swap Transaction entered into between you and us on the
Trade Date specified below (the "Transaction"). This letter agreement
constitutes a "Confirmation" as referred to in the ISDA Master Agreement
specified below.
The definitions and provisions contained in the 1991 ISDA
Definitions (as published by the International Swaps and Derivatives
Association, Inc.)(the "Definitions") are incorporated in this Confirmation.
In the event of any inconsistency between those Definitions and this
Confirmation, this Confirmation will govern.
1. This Confirmation supplements, forms part of, and is subject to, the ISDA
Master Agreement, dated as of December 1, 1998, as amended and supplemented
from time to time (the "Agreement"), between you and us. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified below. Expressions used herein and not defined herein or in the
Definitions shall bear the meaning ascribed thereto in the Agreement.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Party A: Toyota Motor Credit Corporation
Party B: Toyota Auto Lease Trust 1998-C
Trade Date: November 19, 1998
Effective Date: December 3, 1998
Termination Date: Class B Targeted Maturity Date (as
defined in the Trust Agreement), subject
to adjustment in accordance with the
Following Business Day Convention;
provided, however, that if the
Termination Date is extended in
accordance with the provisions of
paragraph 4 hereof,
"Termination Date" shall have the
meaning given to such term in
paragraph 4.
Party A Floating Amounts:
Party A Floating Rate
Payer: Party A
Party A Floating Rate
Payer Notional Amount: The Class B Certificate Balance (as
defined in the Trust Agreement) on the
last day of the applicable Calculation
Period.
Party A Floating Rate Payer
Period End Dates: Each March 25, June 25, September 25
and December 25, commencing on March 25,
1999, up to and including the Termination
Date, subject to adjustment in accordance
with the Following Business Day
Convention.
Party A Floating Rate Payer
Payment Dates: Each March 25, June 25, September 25
and December 25, commencing on March 25,
1999, up to and including the Termination
Date, subject to adjustment in accordance
with the Following Business Day
Convention.
Party A Floating Rate
Option: USD-LIBOR-BBA.
Designated Maturity: 3 months, with the exception of the
initial Calculation Period, in which case
the Designated Maturity shall be the
linear interpolation of four and three
months.
Spread: Plus 2.00%
Party A Floating Rate
for the initial
Calculation Period: 5.243258% (excluding the Spread)
Party A Floating Rate
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period.
Compounding: Inapplicable.
2
Party B Fixed Amounts:
Party B Fixed Rate Payer: Party B
Party B Fixed Rate Payer
Notional Amount: The Class B Certificate Balance on the
last day of the applicable Calculation
Period.
Party B Fixed Rate Payer
Period End Dates: Each March 25, June 25, September 25
and December 25, commencing on March 25,
1999, up to and including the Termination
Date, with no adjustment, with the
exception of the Termination Date, which
shall be subject to adjustment in
accordance with the Following Business
Day Convention.
Party B Fixed Rate Payer
Payment Dates: Each March 25, June 25, September 25
and December 25, commencing on March 25,
1999, up to and including the Termination
Date, subject to adjustment in
accordance with the Following Business
Day Convention.
Party B Fixed Rate: 6.959%
Party B Fixed Rate
Day Count Fraction: 30/360
Business Days: "Business Day" as defined in the Trust
Agreement
Calculation Agent: Party A
3. Details of Variation to Agreement:
Taxation: If, as a result of the occurrence of any of the events described in
Section 5(b)(ii) or 5(b)(iii) of the Agreement, on any Party B Fixed Rate
Payer Payment Date Party A receives a payment from Party B from which an
amount has been deducted or withheld for or on account of a Tax, the payment
obligations of Party B hereunder with respect to such Payment Date shall be
reduced by the amount of any taxes so deducted or withheld and Party A's
payment obligations with respect to such Payment Date shall be reduced in
proportion to the amount by which Party B's payment obligations are so reduced.
If, as a result of the occurrence of any of the events described in Section
5(b)(ii) or 5(b)(iii) of the Agreement, on any Party A Floating Rate Payer
Payment Date Party B receives a payment from Party A from which an amount has
been deducted or withheld for or on account of a Tax, the payment obligations
of Party A hereunder
3
with respect to such Payment Date shall be reduced by the amount of any taxes
so deducted or withheld and the payment obligations of Party B with respect to
such Payment Date shall remain the same.
Interest Deferral: If on any Party B Fixed Rate Payer Payment Date, the
amount allocated under the Trust Agreement and paid by Party B to Party A is
less than the Party B Fixed Amount due on such date (the amount of any such
insufficiency, the "Swap Interest Shortfall Amount"), the obligation of Party
A to pay Party A Floating Amounts on the corresponding Party A Floating Rate
Payer Payment Date will be reduced in the same proportion as the proportion
that such Swap Interest Shortfall Amount represents of the Party B Fixed
Amount otherwise due on such date. If on a subsequent Party B Fixed Rate
Payer Payment Date, amounts are available and are paid by Party B to Party A
pursuant to the Trust Agreement to reimburse all or any part of such Swap
Interest Shortfall Amount, then the obligation of Party A to pay Party A
Floating Amounts on the corresponding Party A Floating Rate Payer Payment
Date will be increased in the same proportion as the proportion that the
amount of such reimbursement represents of the Party B Fixed Amount otherwise
due on such date. If a Swap Interest Shortfall Amount shall exist on any
Early Termination Date, for purposes of computing the Market Quotation, the
aggregate amount of all outstanding Swap Interest Shortfall Amounts shall be
due on the first Party B Fixed Rate Payer Payment Date following the Early
Termination Date and the amount due from Party A on the first Party A
Floating Rate Payer Payment Date following the Early Termination Date will be
increased in the same proportion as the proportion that the amount of such
outstanding Swap Interest Shortfall Amounts represents of the Party B Fixed
Amount that would otherwise be due on such date.
Extension: If on the Termination Date, the Class B Certificate Balance has
not been reduced to zero, the Termination Date shall be extended to the
Extension Period End Date, being the earlier of (i) the Party A Floating Rate
Payer Payment Date (as defined in Section 4 below) on which the Class B
Certificate Balance is reduced to zero and (ii) the Stated Maturity Date (as
defined in the Trust Agreement) for the Class B Certificates, subject to
adjustment in accordance with the Following Business Day Convention. The
period from the Class B Targeted Maturity Date to the Extension Period End
Date is referred to herein as the "Extension Period".
4. During the Extension Period, instead of the Party B Fixed Amounts and the
Party A Floating Amounts described above in Section 2, the following
provisions will be applicable:
Party A Floating Amount
Floating Rate Payer: Party A
Party A Floating Rate
Payer Notional Amount: The Class B Certificate Balance on the
last day of the applicable Calculation
Period.
Initial Extension Period
Calculation Period: Commencing on the Class B Targeted
Maturity Date.
4
Party A Floating Rate Payer
Period End Dates: The 25th day of each month commencing
January 25, 2004, subject to adjustment
in accordance with the Following Business
Day Convention.
Party A Floating Rate Payer
Payment Dates: The 25th day of each month commencing
January 25, 2004, subject to adjustment
in accordance with the Following Business
Day Convention.
Party A Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 month
Spread: Plus 2.03%
Floating Rate
Day Count Fraction: Actual/360
Reset Dates: First day of each Calculation Period.
Compounding: Inapplicable.
Party B Fixed Amount
Fixed Rate Payer: Party B
Party B Fixed Rate
Payer Notional Amount: The Class B Certificate Balance on the
last day of the Calculation Period.
Initial Extension Period
Calculation Period: Commencing on the Class B Targeted
Maturity Date
Party B Fixed Rate
Payer Period End Dates: (i) The 25th day of each month, with
no adjustment and (ii) the Extension
Period End Date, which shall be subject
to adjustment in accordance with the
Following Business Day Convention.
Party B Fixed Rate
Payer Payment Dates: The 25th day of each month, subject to
adjustment in accordance with the
Following Business Day Convention, and
5
the Extension Period End Date, subject
to adjustment in accordance with the
Following Business Day Convention.
Party B Fixed Rate: 6.959%
Fixed Rate
Day Count Fraction: 30/360
Reset Dates: First day of each Calculation Period.
5. Account Details
Payments to Party A:
Account for Payments in USD: Bank of America, Concord, California
ABA No. 000-000-000
A/C No. 12351-07564
A/C Toyota Motor Credit Corporation
Payments to Party B:
Account for Payments in USD: U.S. Bank National Association
ABA # 000000000
180121167365
47300121
Acct# 77085461
6. Party A Documentation and Operations Officers
Documentation: Xxxxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
Operations: Xxxxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
7. Relationship between Parties:
Each party will be deemed to represent to the other party on the date on
which it enters into the Agreement that (absent a written agreement between
the parties that expressly imposes affirmative obligations to the contrary):
NON-RELIANCE. It is acting for its own account, and it has made its own
independent decisions to enter into the Agreement and as to whether the
Agreement is appropriate or proper for it based upon its own judgment and
upon advice from such advisers as it has deemed necessary. It is not relying
on any communication (written or oral) of the other
6
party as investment advice or as a recommendation to enter into the
Agreement; it being understood that information and explanations
related to the terms and conditions of the Agreement shall not be
considered investment advice or a recommendation to enter into the
Agreement. No communication (written or oral) received from the other
party shall be deemed to be an assurance or guarantee as to the
expected results of the Agreement.
ASSESSMENT AND UNDERSTANDING. It is capable of assessing the merits
of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of the Agreement. It is also capable of assuming,
and assumes, the risks of the Agreement.
STATUS OF PARTIES. The other party is not acting as a fiduciary
for or as adviser to it in respect of the Agreement.
8. Governing Law: New York
7
Please confirm that the foregoing correctly sets forth the terms
of our agreement by executing the copy of this Adjustable Rate Class B
Confirmation enclosed for that purpose and returning it to us.
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Senior Vice President
and General Manager
Confirmed as of the date first written:
TOYOTA AUTO LEASE TRUST 1998-C
By: U.S. BANK NATIONAL ASSOCIATION,
as 1998-C Securitization Trustee
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
