Exhibit 10.12
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000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Tel 000-000-0000
Fax 000-000-0000
Bank of America N.A.
TO: Chesapeake Funding LLC (formerly Greyhound Funding LLC)
ATTN:
TEL:
FAX:
FROM: Bank of America, N.A.
000 Xxxxx Xxxxxx Xxxxx - Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
ATTN:
Date:
Our Reference No.
Internal Tracking Nos.
The purpose of this letter agreement is to confirm the terms and conditions of
the Transaction entered into between Chesapeake Funding LLC (formerly Greyhound
Funding LLC) and Bank of America, N.A. (each a "party" and together "the
parties") on the Trade Date specified below (the "Transaction"). This letter
agreement constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified in paragraph 1 below (the "Agreement").
This letter agreement constitutes a "Confirmation" and the definitions and
provisions contained in the 2000 ISDA Definitions, as published by the
International Swaps and Derivatives Association, Inc. (the "Definitions") are
incorporated into this Confirmation. In the event of any inconsistency between
the Definitions and this Confirmation, this Confirmation will govern.
1. This Confirmation evidences a complete binding agreement between the parties
as to the terms of the Transaction to which this Confirmation relates. In
addition, the parties agree that for the purposes of this Transaction, this
Confirmation will supplement, form a part of, and be subject to an agreement in
the form of the 1992 ISDA Master Agreement (Multicurrency-Cross Border) as if
the parties had executed an agreement in such form (but without any Schedule
except for the election of (i) the laws of the State of New York (without
reference to conflict of law provisions thereof) as the governing law and (ii)
USD as the Termination Currency) on the Trade Date of the Transaction (the
"Agreement"). In the event of any inconsistency between the provisions of that
agreement and this Confirmation, this Confirmation will prevail for the purpose
of this Transaction.
Each party represents to the other party and will be deemed to represent to the
other party on the date on which it enters into a Transaction that (absent a
written agreement between the parties that expressly imposes affirmative
obligations to the contrary for that Transaction)
(i) Non-Reliance. It is acting for its own account, and it has made its own
independent decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon its own judgment and
upon advice from such advisors 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 that Transaction; it being understood that
information and explanations related to the terms and conditions of a
Transaction shall not be considered investment advice or a recommendation to
enter into that Transaction. Further, such party has not received from the other
party any assurance or guarantee as to the expected results of that Transaction.
(ii) Evaluation and Understanding. It is capable of evaluation and
understanding (on its own behalf or through independent professional advice),
and understands and accepts, the terms, conditions and risks of that
Transaction. It is also capable of assuming, and assumes, the financial and
other risks of that Transaction.
(iii) Status of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of that Transaction.
In this Confirmation "Party A" means Bank of America, N.A. and "Party B"
means Chesapeake Funding LLC.
2. The terms of this Transaction to which this Confirmation relates are as
follows:
Notional Amount:
Trade Date:
Effective Date:
Termination Date: ( ) , subject to adjustment in accordance with the
(Following / Modified Following / Preceding) Business Day
Convention
Amortization: APPLICABLE (See Schedule A attached hereto)
Fixed Amounts:
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Fixed Payer: Party B
Fixed Rate Payer
Payment Dates: ( ), subject to adjustment in accordance with the
(Following / Modified Following / Preceding) Business Day
Convention
Fixed Amount:
Floating Amounts:
Floating Rate
Payer: Party A
Cap Rate:
Floating Rate Payer
Payment Dates: The ( ) of each Month, commencing ( ) and ending on the
Termination Date), subject to adjustment in accordance with
the (Following / Modified Following/ Preceding) Business Day
Convention
Floating Rate
for the Initial
Calculation
Period: To Be Set
Floating Rate
Option: USD-LIBOR-BBA
Designated
Maturity: 1 Month
Spread:
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Business Days: New York, London
Calculation Agent: Party A
3. Recording of Conversations:
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Each party to this Transaction acknowledges and agrees to the tape
recording of conversations between the parties to this Transaction whether
by one or other or both of the parties or their agents, and that any such
tape recordings may be submitted in evidence in any Proceedings relating to
the Agreement and/or this Transaction.
4. Account Details:
Payments to Bank of America, N.A.:
USD
NAME: BANK OF AMERICA NA
CITY: NEW YORK
ABA #: 000000000
ATTN: BOFAUS3N
NAME: BANK OF AMERICA NA
CITY: CHARLOTTE
ACCT: 6550219386
ATTN: RATE DERIVATIVE SETTLEMENTS
ATTN: XXXXXX0XXXX
Chesapeake Funding LLC
USD
NAME: JPMorgan Chase Bank
CITY: New York
ABA #: 000000000
ATTN: XXXXXX00
NAME: General Collection Acct.
ACCT: 507889037
ATTN: Chesapeake Funding LLC
5. Offices:
The Office of Party A
for this Transaction is: Charlotte, NC
Please send reset notices to fax no.
(312-234-3603)
The Office of
Party B for this
Transaction is: New York
6. Additional Provisions: Notwithstanding the terms of Sections 5 and 6 of
the Master Agreement, if Party B has satisfied its
payment obligations under Section 2(a)(i) of the
Agreement,
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then unless Party A is required pursuant to
appropriate proceedings to return to Party B or
otherwise returns to Party B upon demand of Party
B any portion of such payment, (a) the occurrence
of an event described in Section 5(a) of the
Agreement with respect to Party B shall not
constitute an Event of Default or Potential Event
of Default with respect to Party B as the
Defaulting Party and (b) Party A shall be entitled
to designate an Early Termination Event pursuant
to Section 6 of the Agreement only as a result of
a Termination Event set forth in either Section
5(b)(i) or Section 5(b)(ii) of the Agreement with
respect to Party A as the Affected Party or
Section 5(b)(iii) of the Agreement with respect to
Party A as the Burdened Party. For purposes of the
Transaction to which this Confirmation relates,
Party B's only obligation under Section 2(a)(i) of
the Agreement is to pay the Fixed Amount on the
Fixed Rate Payer Payment Date.
7. Transfer, Amendment and
Assignment: No transfer, amendment or assignment of this
Transaction shall be permitted by either party
unless each of Xxxxx'x Investor s Services, Inc.
("Xxxxx'x") and Standard & Poors Ratings Group, a
Division of the XxXxxx-Xxxx Companies, Inc.
("S&P") has been provided notice of such transfer,
amendment or assignment and confirms in writing
(including by facsimile transmission) within five
Business Days after such notice is given that it
will not downgrade, withdraw or modify its
then-current rating of the [Insert Name of Trust].
8. Proceedings: Party A shall not institute against or cause any
other person to institute against, or join any
other person in instituting against, Party B any
bankruptcy, reorganization, arrangement,
insolvency or liquidation
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proceedings, or other proceedings under any
federal or state bankruptcy or similar law for a
period of one year and one day following payment
in full of the [Insert Name of Trust].
9. Set-off: The provisions for Set-off set forth in Section
6(e) of the Agreement shall not apply for purposes
of this Transaction.
10. Downgrade: If a Ratings Event (as defined below) occurs with
respect to Party A, then Party A shall, at its own
expense, (i) assign this Transactions hereunder to
a third party within thirty (30) days of such
Ratings Event that meets or exceeds, or as to
which any applicable credit support provider meets
or exceeds, the Approved Ratings Thresholds (as
defined below) and that is approved by Party B on
terms substantially similar to this Confirmation
and (ii) deliver collateral, in an amount equal to
the Exposure (as defined below), and an executed
ISDA Credit Support Annex (satisfactory to Party
B) within thirty (30) days of such Ratings Event
and subject to S&P's and Xxxxx'x written
confirmation that delivery of such collateral in
the context of such downgrade will not result in a
withdrawal, qualification or downgrade of the then
current ratings assigned to the [Insert
Description of Notes Issued under Trust] (the
"Notes"). For avoidance of doubt, a downgrade of
the rating on the Notes could occur in the event
that Party A does not post sufficient collateral.
For purposes of this Transaction, a "Ratings
Event" shall occur with respect to Party A, if
short-term certificates of deposit cease to be
rated at least "A-1" by S&P, and at least "P-1" by
Xxxxx'x (including in connection with a merger,
consolidation or other similar transaction by
Party A) such ratings being referred to herein as
the "Approved Ratings Thresholds." Only with
respect to such Ratings Event, "Exposure" shall
mean the
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greater of the following: (i) the xxxx-to-market
value of the Transaction as of the Valuation Date
(as such term is defined in the ISDA Credit
Support Annex); (ii) the amount of the next
payment due under the Transaction and (iii) one
percent of the Notional Amount for the respective
Calculation Period.
Please confirm that the foregoing correctly sets forth the terms and conditions
of our agreement by returning via telecopier an executed copy of this
Confirmation to the attention of Global Derivative Operations fax no. (312)
000-0000.
Yours Sincerely,
Bank of America, N.A.
DRAFT
Authorized Signatory
Accepted and confirmed as of the date first written:
Chesapeake Funding LLC
By:________________________________
Name:______________________________
Title: ____________________________
Our Reference
SCHEDULE A TO CONFIRMATION
AMORTIZATION SCHEDULE
CALCULATION PERIOD NOTIONAL AMOUNT
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