EXHIBIT 10.3
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December [ ], 2002
[____________________] and MMCA Auto Owner Trust 2002-5 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 terms 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 purposes 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.
(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 organized and validly existing under the laws
of the jurisdiction of its organization 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 it is 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)).
(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 inequity 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, 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 (l) 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 (l) a
default, event of default or other similar condition or event
(however 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 its 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, surviving 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 is 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 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 an 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.
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 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
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.
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 he 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 he sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
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 he 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 organization 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 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 answer back 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 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 the 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 Rate (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, authorization, 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.
"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 organized, 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
center, 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 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 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 he 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, organized, 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:--
(e) 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
(f) 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.
"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, basic 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 am. (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 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.
_____________________________________ MMCA Auto Owner Trust 2002-5
(Name of Party) ________________________________
(Name of Party)
By: _________________________________ By:________________________________
Name: Name:
Title: Title:
Date: Date:
SCHEDULE to the ISDA Master Agreement
Dated as of December [ ], 2002
between
[ ] ("[ ]")
and
MMCA AUTO OWNER TRUST 2002-5 (the "Trust")
Part 1 Termination Provisions.
(a) "Specified Entity" means:
(i) in relation to [ ]: Not Applicable.
(ii) in relation to the Trust: Not Applicable.
(b) "Specified Transaction" shall have the meaning specified in Section 14 of
this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) will not apply to
[ ] or to the Trust.
(d) The "Credit Support Default" provisions of Section 5(a)(iii), if
applicable, will apply to [ ] and will not apply to the Trust.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) will not apply to [
] or to the Trust.
(f) The "Default under Specified Transaction" provisions of Section 5(a)(v)
will not apply to [ ] or to the Trust.
(g) The "Cross Default" provisions of Section 5(a)(vi) will not apply to [ ] or
to the Trust.
(h) The "Merger Without Assumption" provisions of Section 5(a)(viii) will apply
to [ ] and will apply to the Trust.
(i) The "Tax Event" provision of Section 5(b)(ii) will apply to [ ] and
will not apply to the Trust, so that only the Trust may designate an
Early Termination Date in respect of such event.
(j) The "Tax Event Upon Merger" provision of Section 5(b)(iii) will apply to [
] and will not apply to the Trust, so that only the Trust may designate an
Early Termination Date in respect of such event.
(k) The "Credit Event Upon Merger" provision in Section 5(b)(iv), will not
apply to [ ] or to the Trust.
(l) The "Automatic Early Termination" provision of Section 6(a) will not apply
to [ ] or to the Trust.
(m) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply unless the Trust is the Non-defaulting
Party or the party which is not the Affected Party, as the case may
be, and the Trust enters into a replacement Transaction on or prior to
the Early Termination Date, in which event Loss will apply.
(ii) The Second Method will apply, provided, however, that any payments
payable by the Trust to [ ] hereunder will be pari passu and pro rata
with payments of interest made on the Class A Notes from Total
Available Funds pursuant to Section 2.8 of the Indenture.
(n) "Termination Currency" means United States Dollars.
(o) "Additional Termination Event". The following shall constitute an
Additional Termination Event:
(i) Acceleration or Liquidation of the Notes. It shall be an Additional
Termination Event with the Trust the sole Affected Party if [ ] or the
Trust elects to terminate the Transactions (1) following an Event of
Default as defined in Section 5.1(i) or Section 5.1(ii) of the
Indenture which has resulted in an acceleration of the Notes, provided
such acceleration has not been rescinded and annulled pursuant to
Section 5.2(b) of the Indenture, or (2) upon a liquidation of the
Trust Estate pursuant to Section 5.4(a)(iv) or Section 5.4(b) of the
Indenture. In such event, either [ ] or the Trust may, by not more
than 20 days notice to the other party and provided such Additional
Termination Event is continuing, designate a day not earlier than the
day such notice is effective as an Early Termination Date in respect
of all Affected Transactions. If an event or circumstance which would
constitute an Event of Default by [ ] under this Agreement gives rise
to an Event of Default under the Indenture, it will be treated as an
Event of Default by [ ] and not an Additional Termination Event.
(ii) Amendments Made Without Consent of [ ]. It shall be an Additional
Termination Event if any amendment or supplement to the Indenture or
to any of the Receivables Transfer and Servicing Agreements which
would materially adversely affect any of [ ]' rights or obligations
under this Agreement or modify the obligations of, or impair the
ability of the Trust to fully perform any of the Trust's obligations
under, this Agreement is made without the consent of [ ], which
consent shall not be unreasonably withheld (in which case the Trust
will be the Affected Party).
(iii) Downgrade of [ ] ("[Parent]"). It shall be an Additional Termination
Event with [ ] the Affected Party if:
(1) the long-term or the short-term Credit Rating of [PARENT] is
suspended or withdrawn or downgraded below "A" or "F1,"
respectively, by Fitch Ratings and, within 30 days of such
suspension, withdrawal or downgrade [ ] shall fail to (a) deliver
or post collateral reasonably acceptable to the Trust and
acceptable to Fitch Ratings in amounts sufficient or in
accordance with the standards of Fitch Ratings (as such standards
may be modified while any Transaction is still outstanding), to
secure its obligations under this Agreement, (b) assign its
rights and obligations under this Agreement to a replacement
counterparty reasonably acceptable to the Trust and to Fitch
Ratings or (c) establish other arrangements necessary (including,
without limitation, causing an entity with ratings such that if [
] or its Credit Support Provider had such ratings, this
Additional Termination Event would not have occurred, to
guarantee or provide an indemnity in respect of [ ]' or its
Credit Support Provider's obligations under this Agreement in
form and substance reasonably satisfactory to Fitch Ratings), if
any, in each case so that Fitch Ratings confirms the ratings of
the Notes that were in effect immediately prior to such
suspension, withdrawal or downgrade;
(2) the short-term Credit Rating of [PARENT] is downgraded below
"A-1" by S&P, and [PARENT] shall fail to (a) use reasonable
efforts to assign (at its own cost or benefit) its rights and
obligations under this Agreement to a replacement counterparty
acceptable to the Trust and to S&P and (b) if such an assignment
has not occurred within 30 days of such downgrade, fail to
deliver or post collateral reasonably acceptable to the Trust and
sufficient to satisfy the Rating Agency Condition with respect to
S&P (as designated in an approved Credit Support Annex) to secure
its obligations under this Agreement; provided, that
notwithstanding the posting of the collateral and the addition of
the Credit Support Annex, [PARENT] shall continue to use
reasonable efforts to assign its rights and obligations under
this Agreement to a replacement counterparty; or
(3) the long-term Credit Rating of [PARENT] is suspended or withdrawn
or downgraded below "A2" by Xxxxx'x and, within 30 days of such
suspension, withdrawal or downgrade [ ] shall fail to (a) deliver
or post collateral reasonably acceptable to the Trust and
acceptable to Xxxxx'x in amounts sufficient or in accordance with
the standards of Xxxxx'x (as such standards may be modified while
any Transaction is still outstanding), to secure its obligations
under this Agreement, (b) assign its rights and obligations under
this Agreement to a replacement counterparty reasonably
acceptable to the Trust and to Xxxxx'x or (c) establish other
arrangements necessary (including, without limitation, causing an
entity with ratings such that if [ ] or its Credit Support
Provider had such ratings, this Additional Termination Event
would not have occurred, to guarantee or provide an indemnity in
respect of [ ]' or its Credit Support Provider's obligations
under this Agreement in form and substance reasonably
satisfactory to Xxxxx'x), if any, in each case so that Xxxxx'x
confirms the ratings of the Notes that were in effect immediately
prior to such suspension, withdrawal or downgrade.
Part 2 Tax Representations.
(a) Payer Tax Representations. For the purposes of Section 3(e) of this
Agreement, [ ] and the Trust will each make the following
representations to the other:
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, each party 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.
(i) For the purpose of Section 3(f) of this Agreement, [ ] represents to
the Trust that it is a corporation organized under the laws of the
State of Delaware.
(ii) For the purpose of Section 3(f) of this Agreement, the Trust
represents to [ ] that it is a statutory trust organized and existing
under the laws of the State of Delaware.
(iii) [ ] represents that it is an exempt recipient under Treasury
Regulation Section 1.6049-4(c)(1)(ii), and the Trust represents that
it is wholly-owned by a "United States person" and disregarded as an
entity separate from its owner for U.S. federal tax purposes.
Part 3 Documents to be delivered.
(a) For the purpose of Section 4(a)(i), the documents to be delivered are:
Party required to Form/Document/ Date by which to be delivered Section 3(d)
deliver document Certificate Representation
[ ] An executed United States (i) Upon execution of this Applicable
Internal Revenue Service Form Agreement, (ii) promptly upon
W-9 (or any successor reasonable demand by the
thereto). other party and (iii)
promptly upon
learning that
any such form
previously
provided by
such party has
become obsolete
or incorrect.
(b) For the purposes of Section 4(a)(ii), the other documents to be delivered
are as follows:
Party required to Form/Document/ Date by which to be delivered Section 3(d)
deliver document Certificate representation:
[ ] and the Trust Evidence of the Upon or prior to the execution Applicable
authority, incumbency and and delivery of this Agreement
specimen signature of and, with respect to any
each person executing Confirmation upon request by
this Agreement or any the other party.
Confirmation, Credit
Support Document or other
document entered into in
connection with this
Agreement on its behalf
or on behalf of a Credit
Support Provider or
otherwise, as the case
may be.
The Trust Certified copies of As soon as practicable after Applicable
documents evidencing each the execution of this Agreement
Party's capacity to
execute and deliver this
Agreement, the
Confirmation and any
Credit Support Document
(if applicable), and to
perform its obligations
hereunder or thereunder
as may be reasonably
requested by the other
party.
[ ] A copy of the annual Promptly after request by the Applicable
report of its Credit Trust.
Support Provider,
including annual audited
financial statements of
its Credit Support
Provider prepared in
accordance with generally
accepted accounting
principles in the country
in which its Credit
Support Provider is
organized.
The Trust Monthly reports to On or prior to each Monthly Applicable
noteholders and to Payment Date.
holders of the
certificate (and all
other such notices
required to be given to
noteholders and to
holders of the
certificate, as specified
in the Indenture).
[ ] and the Trust A legal opinion in form On or prior to the Closing Not Applicable
and substance Date.
satisfactory to the other
party.
The Trust A copy of the executed As soon as practical after the Not Applicable
Indenture and of each of Closing Date.
the Receivables Transfer
and Servicing Agreements.
[ ] and the Trust Such other documents as Promptly upon request of the Not Applicable
the other party may other party.
reasonably request.
Part 4 Miscellaneous.
(a) Address for Notices. For the purpose of Section 12(a) of this Agreement,
the addresses for notices and communications to [ ] and the Trust shall be
as follows:
TO [ ]:
[ ]
TO THE TRUST:
MMCA Auto Owner Trust 2002-5
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) Process Agent. For the purposes of Section 13(c) of this Agreement:
[ ] appoints as its Process Agent: Not Applicable
The Trust appoints as its Process Agent: Not Applicable
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For purposes of Section 10(c) of this Agreement:
(i) [ ] is not a Multibranch Party.
(ii) The Trust is not a Multibranch Party.
(e) The Calculation Agent shall be [ ].
(f) Credit Support Documents.
"Credit Support Document" means a credit support annex, if any, and any
other document which by its terms secures, guarantees or otherwise supports
either or both parties' obligations under this Agreement, including, but not
limited to, the guarantee of [PARENT].
(g) Credit Support Provider.
Credit Support Provider means, in relation to [ ], [PARENT]. Credit Support
Provider means, in relation to the Trust, Not Applicable.
(h) Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York (without
reference to its choice of law doctrine) except that the capacity, power or
authority of the Trust to enter into this Agreement and any issue relating
to the interpretation of the Trust's Trust Agreement will be governed and
construed in accordance with the laws of the State of Delaware.
(i) "Affiliate" will have the meaning specified in Section 14 of this
Agreement, but as to the Trust, "Affiliate" will not include the Owner
Trustee, the Indenture Trustee or MMCA and as to [ ], "Affiliate" shall not
include [ ].
Part 5 Other Provisions.
(a) Representations.
(i) Non-Reliance, Etc. Each party will be deemed to represent to the other
party on the date that it enters into a Transaction that (absent a
written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
(1) 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 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 that Transaction; it being
understood that information and explanations related to the terms
and conditions of a Transaction shall not be considered to be
investment advice or a recommendation to enter into that
Transaction. 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 that Transaction.
(2) 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 and conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the risks of that Transaction.
(3) Status of Parties. The other party is not acting as a fiduciary
for or adviser to it in respect of that Transaction.
(ii) Commodity Exchange Act. Each party represents to the other party on
and as of the date hereof and on each date on which a Transaction is
entered into between them that:
(1) each Transaction is intended to be exempt from, or otherwise not
subject to regulation under, the Commodity Exchange Act; and
(2) such party is an "eligible contract participant" within the
meaning of the United States Commodity Exchange Act.
(b) Consent to Recording.
Each party consents to the recording of the telephone conversations of
trading and marketing and/or other personnel of the parties and their
Affiliates in connection with this Agreement.
(c) Section 3(a)(iii) is hereby amended by inserting the words "or investment
policies, guidelines, procedures or restrictions" immediately following the
word "documents."
(d) Tax Provisions.
(i) The definition of Tax Event, Section 5(b)(ii), is hereby modified by
adding the following provision at the end thereof:
"provided, however, that for purposes of clarification, the parties
acknowledge that the introduction or proposal of legislation shall
not, in and of itself, give rise to a presumption that a Tax Event has
occurred."
(ii) The Trust will not be required to pay additional amounts in respect of
an Indemnifiable Tax or be under any obligation to pay to [ ] any
amount in respect of any liability of [ ] for or on account of any
Tax.
(e) No Set Off.
Notwithstanding any setoff right contained in any other agreement between
the Trust or any Affiliate or Credit Support Provider of the Trust, on the
one hand, and [ ] or any Affiliate or Credit Support Provider of the Trust,
on the other, whether now in existence or hereafter entered into unless
such agreement shall specifically refer to this paragraph (e), each party
agrees that all payments required to be made by it under this Agreement
shall be made without setoff or counterclaim for, and that it shall not
withhold payment or delivery under this Agreement in respect of, any
default by the other party or any Affiliate or Credit Support Provider of
the other party under any such other agreement or any amount relating to
any such other agreement. For purposes of this paragraph (e), "Affiliate"
shall have the meaning specified in Section 14 of this Agreement.
(f) Additional Acknowledgments and Agreements of the Parties.
(i) Financial Statements. Notwithstanding Section 5(a)(ii), the failure of
either party to deliver any financial statement or monthly report
referenced in Part 3 of this Schedule shall not constitute an Event of
Default under Section 5(a)(ii).
(ii) Bankruptcy Code. Without limiting the applicability, if any, of any
other provision of the U.S. Bankruptcy Code as amended (the
"Bankruptcy Code") (including without limitation Sections 362, 546,
556, and 560 thereof and the applicable definitions in Section 101
thereof), the parties acknowledge and agree that all Transactions
entered into hereunder will constitute "forward contracts" or "swap
agreements" as defined in Section 101 of the Bankruptcy Code or
"commodity contracts" as defined in Section 761 of the Bankruptcy
Code, that the rights of the parties under Section 6 of this Agreement
will constitute contractual rights to liquidate Transactions, that any
margin or collateral provided under any margin, collateral, security,
pledge, or similar agreement related hereto will constitute a "margin
payment" as defined in Section 101 of the Bankruptcy Code, and that
the parties are entities entitled to the rights under, and protections
afforded by, Sections 362, 546, 556, and 560 of the Bankruptcy Code.
(iii) Regarding [ ]. [ ] represents that the description of [ ] as set
forth on page 53 of the Prospectus dated December [ ], 2002 has been
furnished and approved by [ ] and is true and correct as of the date
hereof.
(iv) Non-Petition. [ ] covenants and agrees that it will not, prior to the
date which is one year and one day following the payment in full of
all of the Notes and the Certificate and the expiration of all
applicable preference periods under the United States Bankruptcy Code
or other applicable law relating to any such payment, acquiesce,
petition or otherwise invoke the process of any governmental or
judicial authority for the purpose of commencing a case (whether
voluntary or involuntary), cause any other person to commence a case
or join any other person in commencing a case against the Trust under
any bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Trust or any substantial part of its property
or ordering the winding up or liquidation of the affairs of the Trust.
[ ] agrees that it has recourse against the Trust only to the extent
of the assets of the Trust and the proceeds thereof, and any claims
against the Trust shall be extinguished when the assets of the Trust
are exhausted.
(v) Transfer. Notwithstanding the provisions of Section 7, [ ] may assign
its rights and delegate its obligations under any Transaction, in
whole or in part, to any Affiliate of [ ] (an "Assignee"), effective
(the "Effective Transfer Date") upon delivery to the Trust of both (a)
an executed acceptance and assumption by the Assignee of the
transferred obligations of [ ] under the Transaction(s) (the
"Transferred Obligations"); and (b) an executed guarantee of [PARENT],
of the Transferred Obligations, substantially identical to the Credit
Support Document with respect to [ ]; provided that (x) no such
transfer to an Assignee shall occur if (i) the Trust shall, as a
result of such transfer, be required to pay to [ ] or the Assignee an
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))
greater than the amount in respect of which the Trust would have been
required to pay to [ ] in the absence of such transfer; (ii) [ ] or
the Assignee shall, as a result of such transfer, be required to
withhold or deduct on account of a Tax under Section 2(d)(i) (except
in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) an amount
in excess of that which [ ] would have been required to withhold or
deduct in the absence of such transfer, unless the Assignee would be
required to make additional payments pursuant to Section 2(d)(i)(4)
corresponding to such excess; or (iii) an Event of Default, Potential
Event of Default or Termination Event would occur hereunder as a
result of such transfer; (y) [ ] shall pay any fees and expenses
incurred by or on the part of either party as a result of such
transfer; and (z) no such transfer to an Assignee shall occur unless
the Rating Agencies confirm that such transfer will not cause the
reduction, suspension or withdrawal of their then current rating on
any of the Notes.
On the Effective Transfer Date, (a) [ ] shall be released from all
obligations and liabilities arising under the Transferred Obligations;
and (b) the Transferred Obligations shall cease to be Transaction(s)
under this Agreement and shall be deemed to be Transaction(s) under
the ISDA Master Agreement between the Assignee and the Trust, provided
that, if, on the Effective Transfer Date, the Assignee and the Trust
have not entered into an ISDA Master Agreement, the Assignee and the
Trust shall be deemed to have entered into an ISDA Master Agreement
that is substantially identical to this Agreement, including this
Schedule. At least 10 Business Days prior to any such transfer [ ]
shall notify the Trust in writing of its intent to transfer its rights
and delegate its obligations hereunder in accordance with the terms
hereof, and shall state in writing that such transfer shall conform to
the requirements of this Part 5(e)(iv), whereupon the Trust shall
promptly notify each Rating Agency of such transfer.
(vi) The Trust Pledge. Notwithstanding Section 7 of this Agreement to the
contrary, [ ] acknowledges that the Trust will pledge its rights under
this Agreement to the Indenture Trustee (as defined in the Indenture)
for the benefit of the Noteholders (as defined in the Indenture)
pursuant to the Indenture and agrees to such pledge. The Indenture
Trustee shall not be deemed to be a party to this Agreement, provided,
however, that the Indenture Trustee, acting on behalf of the holders
of the Notes, shall have the right to enforce this Agreement against [
]. [ ] shall be entitled to rely on any notice or communication from
the Indenture Trustee to that effect. [ ] acknowledges that the Trust
will pledge substantially all its assets to the Indenture Trustee for
the benefit of the Noteholders and [ ] and that all payments
hereunder, including payments on early termination, will be made in
accordance with the priority of payment provisions of the Indenture
and the Sale and Servicing Agreement and on the Payment Dates
specified therein.
(vii) Limited Recourse. The liability of the Trust in relation to this
Agreement and any Transaction hereunder is limited in recourse to the
assets of the Trust and proceeds thereof applied in accordance with
the Indenture and the Sale and Servicing Agreement. With respect to
any amounts payable to [ ] by the Trust under this Agreement, such
amounts shall be limited to the Total Available Funds as provided in
and subject to Section 2.8(a) of the Indenture. Upon exhaustion of the
assets of the Trust and proceeds thereof in accordance with the
Indenture and the Sale and Servicing Agreement, [ ] shall not be
entitled to take any further steps against the Trust to recover any
sums due but still unpaid hereunder or thereunder, all claims in
respect of which shall be extinguished. No recourse may be taken for
the payment of any amount owing in respect of any obligation of, or
claim against, the Trust arising out of or based upon this Agreement
or any Transaction hereunder against any holder of a beneficial
interest, employee, officer or Affiliate thereof and no recourse shall
be taken for the payment of any amount owing in respect of any
obligation of, or claim against, the Trust based upon or arising out
of this Agreement against the Administrator, the Seller, the Servicer,
the Indenture Trustee, the Owner Trustee or any stockholder, holder of
a beneficial interest, employee, officer, director, incorporator or
Affiliate thereof; provided, however, that the foregoing shall not
relieve any such person or entity from any liability they might
otherwise have as a result of willful misconduct, bad faith or
negligence.
In furtherance of and not in derogation of the foregoing, [ ]
acknowledges and agrees that it shall have no right, title or interest
hereunder in or to the Other Assets of the Seller. To the extent that,
notwithstanding the agreements and provisions contained in the
preceding paragraph, [ ] either (i) asserts hereunder an interest or
claim to, or benefit from, Other Assets, or (ii) is deemed hereunder
to have any such interest, claim to, or benefit in or from Other
Assets, whether by operation of law, legal process, pursuant to
applicable provisions of insolvency laws or otherwise (including by
virtue of Section 1111(b) of the Bankruptcy Code or any successor
provision having similar effect under the Bankruptcy Code), then [ ]
further acknowledges and agrees that any such interest, claim or
benefit in or from Other Assets is and shall be expressly subordinated
to the indefeasible payment in full, which, under the terms of the
relevant documents relating to the securitization or conveyance of
such Other Assets, are entitled to be paid from, entitled to the
benefits of, or otherwise secured by such Other Assets (whether or not
any such entitlement or security interest is legally perfected or
otherwise entitled to a priority of distributions or application under
applicable law, including insolvency laws, and whether or not asserted
against the Seller), including the payment of post-petition interest
on such other obligations and liabilities. This subordination
agreement shall be deemed a subordination agreement within the meaning
of Section 510(a) of the Bankruptcy Code. The Trust further
acknowledges and agrees that no adequate remedy at law exists for a
breach of this Part 5(e)(vii) and the terms of this Part 5(e)(vii) may
be enforced by an action for specific performance. The provisions of
this Part 5(e)(vii) shall be for the third party benefit of those
entitled to rely thereon and shall survive the termination of this
Agreement.
(viii) No Amendment without Prior Confirmation by Rating Agencies. Section
9(b) of this Agreement is hereby amended by adding the following at
the end of such Section: ", and unless the Rating Agencies confirm
that such amendment will not cause the reduction, suspension or
withdrawal of their then current rating on any of the Notes, unless
such amendment clarifies any term or provision, corrects any
inconsistency, cures any ambiguity, or corrects any typographical
error in the Agreement."
(ix) Consent by [ ] to Amendments to Certain Documents. Before any
amendment or supplement is made to the Receivables Transfer and
Servicing Agreements or to the Indenture which would adversely affect
any of [ ]' rights or obligations under this Agreement or modify the
obligations of, or impair the ability of the Trust to fully perform
any of the Trust's obligations under, this Agreement, the Trust shall
provide [ ] with a copy of the proposed amendment or supplement and
shall obtain the consent of [ ] to such amendment or supplement prior
to its adoption, which consent shall not be unreasonably withheld;
provided that so long as a copy of the proposed amendment or
supplement has been delivered in accordance with Section 12 of the
Agreement to each of the parties listed in Part 4(a) (Address for
Notices) with respect to [ ] and makes clear that [ ] has no longer
than 10 Business Days to object to such amendment or supplement, [ ]'
consent will be deemed to have been given if [ ] does not object in
writing within ten Business Days of receipt of a written request for
such consent.
(x) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance,
shall be held to be invalid or unenforceable (in whole or in part) for
any reason, the remaining terms, provisions, covenants, and conditions
hereof shall continue in full force and effect as if this Agreement
had been executed with the invalid or unenforceable portion
eliminated, so long as this Agreement as so modified continues to
express, without material change, the original intentions of the
parties as to the subject matter of this Agreement and the deletion of
such portion of this Agreement will not substantially impair the
respective benefits or expectations of the parties to this Agreement;
provided, however, that this severability provision shall not be
applicable if any provision of Section 1, 2, 5, 6 or 13 (or any
definition or provision in Section 14 to the extent it relates to, or
is used in connection with, any such Section) shall be so held to be
invalid or unenforceable.
(g) Waiver of Right to Trial by Jury. Each of the parties hereby irrevocably
waives any and all right to a trial by jury with respect to any legal
proceeding arising out of or relating to this Agreement or any Transaction.
(h) Limited Transactions. [ ] and the Trust each agrees and acknowledges that
the only Transactions that are or will be governed by this Agreement are
the Transactions evidenced by the Confirmation dated the date hereof.
(i) Notices to Noteholders. The Trust shall provide [ ] with copies of all
notices required to be given to the holders of the Notes, and upon request,
shall provide [ ] with any other notices which could be requested by the
holders of the Notes.
(j) Further Representations of the Trust:
(i) The Class A-3 Notes are rated "Aaa" by Xxxxx'x Investor Services,
Inc., "AAA" by S&P and "AAA" by Fitch Ratings as to the timely payment
of interest and principal and without regard to third party credit
enhancement.
(ii) The Class A-4 Notes are rated "Aaa" by Xxxxx'x Investor Services,
Inc., "AAA" by S&P and "AAA" by Fitch Ratings as to the timely payment
of interest and principal and without regard to third party credit
enhancement.
(iii) The Class B Notes are rated "[Aa3]" by Xxxxx'x Investor Services,
Inc., "AA" by S&P and "AA" by Fitch Ratings as to the timely payment
of interest and principal and without regard to third party credit
enhancement.
(iv) The Class C Notes are rated "[A1]" by Xxxxx'x Investor Services, Inc.,
"A" by S&P and "A" by Fitch Ratings as to the timely payment of
interest and principal and without regard to third party credit
enhancement.
(v) All conditions precedent to the issuance of the Notes under the
Indenture have been satisfied.
(vi) Each of the documents to which it is a party has been duly authorized,
executed and delivered by it.
(vii) Assuming the due authorization, execution and delivery thereof by the
other parties thereto, each of the Indenture and the other documents
to which the Trust is a party constitutes the legal, valid and binding
obligations of the Trust, enforceable against the Trust in accordance
with the terms thereof, subject to applicable bankruptcy, insolvency
and similar laws or legal principles affecting creditors' rights
generally, and subject, as to enforceability, to general principles of
equity regardless of whether enforcement is sought in a proceeding in
equity or at law.
(viii) The Indenture and the other documents to which the Trust is a party
are in full force and effect on the date hereof and there have been no
amendments or waivers or modifications of any of the terms thereof
since the original execution and delivery of the Indenture and the
other documents to which the Trust is a party, except such as may have
been delivered to the Trust.
(ix) To the best of its knowledge no event of default or event which would
with the passage of time or the giving of notice constitute an event
of default has occurred and is continuing under any of the documents
to which the Trust is a party.
(k) Immunity of Persons Related to the Trust. No representation or agreement
contained in this Agreement shall be deemed to be the covenant or agreement
of any trustee, officer, attorney, agent or employee of the Trust, MMCA,
any Affiliate thereof or any Credit Support Provider thereof in an
individual capacity.
(l) Limitation of Trustee's Liability. It is expressly understood and agreed by
the parties hereto that (a) this Agreement is executed and delivered by
Wilmington Trust Company, not individually nor as a party to this
Agreement, but solely as Owner Trustee of the Trust, in the exercise of the
powers and authority conferred and vested in it, (b) the representations,
undertakings and agreements herein made on the part of the Trust are made
and intended not as personal representations, undertakings and agreements
by Wilmington Trust Company, but are made and intended for the purpose of
binding only the Trust, (c) nothing herein contained shall be construed as
creating any liability of Wilmington Trust Company, individually, to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties who are
signatories to this Agreement and by any person claiming by, through or
under such parties and (d) under no circumstances shall Wilmington Trust
Company be personally liable for the payment of any indebtedness of the
Trust or expenses of [ ] or the Trust or be liable for the breach or
failure of any obligation, representation, warranty or covenant, made or
undertaken by the Trust under this Agreement.
(m) Netting of Payments. Clause (ii) of Section 2(c) will not apply to any
amounts payable with respect to Transactions from the date of this
Agreement.
(n) Additional Swap Agreements. The Trust agrees that it will not enter into
additional swap agreements (other than any swap agreement in replacement of
any Transaction hereunder) without (i) the express prior written consent of
[ ], which consent shall not be unreasonably withheld and (ii) Rating
Agency Confirmation.
(o) Notices. Section 12(a) is amended by adding in the third line thereof after
the phrase "messaging system" and before the ")" the words, "; provided,
however, any such notice or other communication may be given by facsimile
transmission if telex is unavailable, no telex number is supplied to the
party providing notice, or if answer back confirmation is not received from
the party to whom the telex is sent."
(p) Additional Definitions.
"Administration Agreement" shall mean the administration
agreement dated as of December 1, 2002, as amended, supplemented or otherwise
modified and in effect, by and among the Trust, MMCA, and Bank of
Tokyo-Mitsubishi Trust Company.
"Administrator" shall have the meaning assigned thereto in the
Administration Agreement.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions or trust companies in New York,
New York, Wilmington, Delaware or Los Angeles, California are authorized or
obligated by law, regulation or executive order to remain closed.
"Certificate" means the Certificate issued by the Trust
pursuant to the Trust Agreement.
"Class A-1 Notes" means the Class A-1 Notes issued by the
Trust pursuant to the Indenture.
"Class A-2 Notes" means the Class A-2 Notes issued by the
Trust pursuant to the Indenture.
"Class A-3 Notes" means the Class A-3 Notes issued by the
Trust pursuant to the Indenture.
"Class A-4 Notes" means the Class A-4 Notes issued by the
Trust pursuant to the Indenture.
"Class B Notes" means the Class B Notes issued by the Trust
pursuant to the Indenture.
"Class C Notes" means the Class C Notes issued by the Trust
pursuant to the Indenture.
"Closing Date" shall mean December [ ], 2002.
"Credit Rating" means, with respect to [ ], the issuer rating
of the head office of [PARENT] without regard to whether or not such rating is
under review with positive or negative implications.
"Fitch Ratings" shall mean Fitch, Inc., doing business as
Fitch Ratings.
"Indenture" shall mean the indenture dated as of December 1,
2002, as amended, supplemented or otherwise modified and in effect, between the
Trust and Bank of Tokyo-Mitsubishi Trust Company, as Indenture Trustee.
"Indenture Trustee" shall mean Bank of Tokyo-Mitsubishi Trust
Company, or any successor or replacement thereto pursuant to the Indenture.
"MMCA" shall mean Mitsubishi Motors Credit of America, Inc.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C
Notes issued by the Trust pursuant to the Indenture.
"Other Assets" shall mean any assets (or interests therein)
(other than the receivables and related property conveyed to the Trust pursuant
to the Sale and Servicing Agreement) conveyed or purported to be conveyed by the
Seller to another Person or Persons other than [ ], whether by way of a sale,
capital contribution or by virtue of the granting of a lien.
"Owner Trustee" means Wilmington Trust Company, a Delaware
Banking Corporation, not in its individual capacity nor as a principal to this
Agreement, but solely as Owner Trustee under the Trust Agreement, its successors
in interest and any successor trustee under the Trust Agreement.
"Person" shall mean any individual, corporation, estate,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Payment Date" shall mean the 15th day of each month or, if
such day is not a Business Day, the immediately following Business Day,
commencing [ ], 2002.
"Purchase Agreement" shall mean the purchase agreement dated
as of December 1, 2002, as from time to time amended, supplemented or otherwise
modified and in effect, between MMCA and MMCA Auto Receivables Trust II.
"Rating Agencies" shall mean Moody's, S&P or Fitch Ratings, or
any substitute rating agency that the Seller (as defined in the Indenture)
requests to rate the Notes.
"Rating Agency Confirmation" means, with respect to any
action, that each Rating Agency shall have been given prior written notice
thereof and that each of the Rating Agencies shall have notified the Seller, the
Servicer, the Indenture Trustee and the Owner Trustee that such action shall not
result in a reduction or withdrawal of the then current rating assigned to any
Class of Notes.
"Receivables Transfer and Servicing Agreements" shall mean
collectively the Purchase Agreement, the Sale and Servicing Agreement, the Trust
Agreement and the Administration Agreement.
"S&P" shall mean Standard & Poor's Ratings Service, a division
of The XxXxxx-Xxxx Companies, Inc.
"Sale and Servicing Agreement" shall mean the sale and
servicing agreement dated as of December 1, 2002, as amended, supplemented or
otherwise modified and in effect, by and among the Trust, MMCA Auto Receivables
Trust II, as seller, and MMCA, as servicer.
"Seller" shall mean MMCA Auto Receivables Trust II.
"Servicer" means MMCA, in its capacity as Servicer under the
Sale and Servicing Agreement and each successor thereto appointed and acting
pursuant to the Sale and Servicing Agreement.
"Total Available Funds" has the meaning as set forth in the
Sale and Servicing Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement dated as of December 1, 2002, as amended, supplemented or otherwise
modified and in effect, by and among MMCA Auto Receivables Trust II, as
depositor, and Wilmington Trust Company, as owner trustee.
"Trust Estate" shall mean all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of the Indenture for the benefit of the Noteholders and the
Swap Counterparties (including, without limitation, all property and interests
granted to the Indenture Trustee), including all proceeds thereof.
IN WITNESS WHEREOF, the parties have executed this Schedule to the
Master Agreement on the respective dates specified below with effect from the
date specified on the first page of this document.
[ ] MMCA AUTO OWNER TRUST 2002-5
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
nor as a principal to this
Agreement, but solely as Owner
Trustee
By: ______________________________ By: ________________________________
Name: Name:
Title: Title:
Class A-3 Swap Confirmation
---------------------------
December [ ], 2002
To: [ ]
From: MMCA Auto Owner Trust 2002-5
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
Re: Confirmation Relating to MMCA 2002-5 Class A-3 Notes Interest Rate Swap
-----------------------------------------------------------------------
[ ] Reference: [ ]
MMCA Reference: [ ]
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the terms and
conditions of the Swap Transaction entered into between [ ] ("[ ]") and MMCA
Auto Owner Trust 2002-5 (the "Trust") on the Trade Date listed below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
ISDA Master Agreement specified below.
The definitions and provisions contained in the 2000 ISDA
Definitions, together with the Annex to the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. For these purposes,
all references in those Definitions to a "Transaction" shall be deemed to
apply to the Transaction referred to herein. In the event of any inconsistency
between the Definitions and this Confirmation, the terms of this Confirmation
shall govern.
This Confirmation supplements, forms part of and is subject to the
ISDA Master Agreement dated as of December [ ], 2002, as amended and
supplemented from time to time (the "Agreement") between you and us. All
provisions contained in or incorporated by reference in the Agreement upon its
execution will govern this Confirmation except as expressly modified below. 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.
The terms of the particular Transaction to which this Confirmation
relates are as follows:
Trade Date: December [ ], 2002.
Effective Date: December [ ], 2002.
Notional Amount: The Notional Amount initially shall equal $[ ] and for any
subsequent Calculation Period shall be equal to the aggregate
principal balance of the Class A-3 Notes on the first day of such
Calculation Period. The Trust shall determine the Notional Amount
for each Calculation Period and shall notify [ ] of such
determination by the 15th day of the calendar month in which such
Calculation Period begins; provided, however, unless otherwise
agreed, if such notification is not received by the 12th day of the
calendar month in which such Calculation Period ends, the Notional
Amount for any Calculation Period shall be the amount set forth on
the attached Schedule 1.
Termination Date: The date on which the aggregate outstanding principal balance of
the Class A-3 Notes has been reduced to zero, or the Fixed Rate
Payer Payment Date occurring in [ ], whichever is the
earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month commencing (with a long first
payment) on [ ], 2002, up to and including the Termination
Date, subject to adjustment in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month, subject to adjustment in
accordance with the Modified Following Business Day Convention.
Fixed Rate: [ ]%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: [ ].
Floating Rate Payer
Payment Dates: The 15th day of each calendar month commencing (with a long first
payment) on [ ], 2002, up to and including the Termination
Date, subject to adjustment in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month, subject to adjustment in
accordance with the Modified Following Business Day Convention.
Floating Rate Option: USD-LIBOR-BBA. Notwithstanding Section 7.1 of the Definitions, the
Floating Rate shall be determined on the day that is two New York
and London Banking Days prior to the Reset Date. The rate
determined in accordance with the Floating Rate Option shall be
rounded, if necessary, to the nearest 1/100,000 of 1% (.0000001).
Designated Maturity: One month.
Spread: [ ]%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: [ ]%.
Reset Dates: The first day of each Floating Rate Payer Calculation Period.
Business Days: New York, New York, Wilmington, Delaware and Los Angeles,
California.
Account Details
Payments to [ ]: [ ]
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA #: 26009687
Account #: 00000000
Misc.
Calculation Agent: [ ].
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing this Confirmation and returning it to us.
Best Regards,
MMCA AUTO OWNER TRUST 2002-5
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor as a
principal to this Agreement, but solely
as Owner Trustee
By: _______________________________
Name:
Title:
Accepted and confirmed as of the Trade Date written above:
[ ]
By: _______________________________
Name:
Title:
SCHEDULE 1
----------
---------------------------------------------------------
| Start: | End: | Notional Balance |
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
---------------------------------------------------------
Class A-4 Swap Confirmation
---------------------------
December [ ], 2002
To: [ ]
From: MMCA Auto Owner Trust 2002-5
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
Re: Confirmation Relating to MMCA 2002-5 Class A-4 Notes Interest Rate Swap
-----------------------------------------------------------------------
[ ] Reference: [ ]
MMCA Reference: [ ]
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the terms and
conditions of the Swap Transaction entered into between [ ] ("[ ]") and MMCA
Auto Owner Trust 2002-5 (the "Trust") on the Trade Date listed below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
ISDA Master Agreement specified below.
The definitions and provisions contained in the 2000 ISDA
Definitions, together with the Annex to the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. For these purposes,
all references in those Definitions to a "Transaction" shall be deemed to
apply to the Transaction referred to herein. In the event of any inconsistency
between the Definitions and this Confirmation, the terms of this Confirmation
shall govern.
This Confirmation supplements, forms part of and is subject to the
ISDA Master Agreement dated as of December [ ], 2002, as amended and
supplemented from time to time (the "Agreement") between you and us. All
provisions contained in or incorporated by reference in the Agreement upon its
execution will govern this Confirmation except as expressly modified below. 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.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Trade Date: December [ ], 2002.
Effective Date: December [ ], 2002.
Notional Amount: The Notional Amount initially shall equal $[ ] and for any
subsequent Calculation Period shall be equal to the aggregate
principal balance of the Class A-4 Notes on the first day of such
Calculation Period. The Trust shall determine the Notional Amount
for each Calculation Period and shall notify [ ] of such
determination by the 15th day of the calendar month in which such
Calculation Period begins; provided, however, unless otherwise
agreed, if such notification is not received by the 12th day of the
calendar month in which such Calculation Period ends, the Notional
Amount for any Calculation Period shall be the amount set forth on
the attached Schedule 1.
Termination Date: The date on which the aggregate outstanding principal balance of
the Class A-4 Notes has been reduced to zero, or the Fixed Rate
Payer Payment Date occurring in [ ], whichever is the
earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month commencing (with a long first
payment) on [ ], 2002, up to and including the Termination
Date, subject to adjustment in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month, subject to adjustment in
accordance with the Modified Following Business Day Convention.
Fixed Rate: [ ]%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: [ ].
Floating Rate Payer
Payment Dates: The 15th day of each calendar month commencing (with a long first
payment) on [ ], 2002, up to and including the Termination
Date, subject to adjustment in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month, subject to adjustment in
accordance with the Modified Following Business Day Convention.
Floating Rate Option: USD-LIBOR-BBA. Notwithstanding Section 7.1 of the Definitions, the
Floating Rate shall be determined on the day that is two New York
and London Banking Days prior to the Reset Date. The rate
determined in accordance with the Floating Rate Option shall be
rounded, if necessary, to the nearest 1/100,000 of 1% (.0000001).
Designated Maturity: One month.
Spread: [ ]%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: [ ]%.
Reset Dates: The first day of each Floating Rate Payer Calculation Period.
Business Days: New York, New York, Wilmington, Delaware and Los Angeles,
California.
Account Details
Payments to [ ]: [ ]
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA #: 26009687
Account #: 00000000
Misc.
Calculation Agent: [ ].
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing this Confirmation and returning it to us.
Best Regards,
MMCA AUTO OWNER TRUST 2002-5
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor
as a principal to this Agreement,
but solely as Owner Trustee
By: _______________________________
Name:
Title:
Accepted and confirmed as of the
Trade Date written above:
[ ]
By: _______________________________
Name:
Title:
SCHEDULE 1
----------
---------------------------------------------------------
| Start: | End: | Notional Balance |
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
---------------------------------------------------------
Class B Swap Confirmation
-------------------------
December [ ], 2002
To: [ ]
From: MMCA Auto Owner Trust 2002-5
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
Re: Confirmation Relating to MMCA 2002-5 Class B Notes Interest Rate Swap
---------------------------------------------------------------------
[ ] Reference: [ ]
MMCA Reference: [ ]
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the terms and
conditions of the Swap Transaction entered into between [ ] ("[ ]") and MMCA
Auto Owner Trust 2002-5 (the "Trust") on the Trade Date listed below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
ISDA Master Agreement specified below.
The definitions and provisions contained in the 2000 ISDA
Definitions, together with the Annex to the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. For these purposes,
all references in those Definitions to a "Transaction" shall be deemed to
apply to the Transaction referred to herein. In the event of any inconsistency
between the Definitions and this Confirmation, the terms of this Confirmation
shall govern.
This Confirmation supplements, forms part of and is subject to the
ISDA Master Agreement dated as of December [ ], 2002, as amended and
supplemented from time to time (the "Agreement") between you and us. All
provisions contained in or incorporated by reference in the Agreement upon its
execution will govern this Confirmation except as expressly modified below. 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.
xxx
The terms of the particular Transaction to which this Confirmation
relates are as follows:
Trade Date: December [ ], 2002.
Effective Date: December [ ], 2002.
Notional Amount: The Notional Amount initially shall equal $[ ] and for any
subsequent Calculation Period shall be equal to the aggregate
principal balance of the Class B Notes on the first day of such
Calculation Period. The Trust shall determine the Notional Amount
for each Calculation Period and shall notify [ ] of such
determination by the 15th day of the calendar month in which such
Calculation Period begins; provided, however, unless otherwise
agreed, if such notification is not received by the 12th day of the
calendar month in which such Calculation Period ends, the Notional
Amount for any Calculation Period shall be the amount set forth on
the attached Schedule 1.
Termination Date: The date on which the aggregate outstanding principal balance of
the Class B Notes has been reduced to zero, or the Fixed Rate Payer
Payment Date occurring in [ ], whichever is the earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month commencing (with a long first
payment) on [ ], 2002, up to and including the Termination
Date, subject to adjustment in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month, subject to adjustment in
accordance with the Modified Following Business Day Convention.
Fixed Rate: [ ]%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: [ ].
Floating Rate Payer
Payment Dates: The 15th day of each calendar month commencing (with a long first
payment) on [ ], 2002, up to and including the Termination
Date, subject to adjustment in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month, subject to adjustment in
accordance with the Modified Following Business Day Convention.
Floating Rate Option: USD-LIBOR-BBA. Notwithstanding Section 7.1 of the Definitions, the
Floating Rate shall be determined on the day that is two New York
and London Banking Days prior to the Reset Date. The rate
determined in accordance with the Floating Rate Option shall be
rounded, if necessary, to the nearest 1/100,000 of 1% (.0000001).
Designated Maturity: One month.
Spread: [ ]%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: [ ]%.
Reset Dates: The first day of each Floating Rate Payer Calculation Period.
Business Days: New York, New York, Wilmington, Delaware and Los Angeles,
California.
Account Details
Payments to [ ]: [ ]
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA #: 26009687
Account #: 00000000
Misc.
Calculation Agent: [ ].
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing this Confirmation and returning it to us.
Best Regards,
MMCA AUTO OWNER TRUST 2002-5
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor
as a principal to this Agreement,
but solely as Owner Trustee
By: _______________________________
Name:
Title:
Accepted and confirmed as of the
Trade Date written above:
[ ]
By: _______________________________
Name:
Title:
SCHEDULE 1
----------
---------------------------------------------------------
| Start: | End: | Notional Balance |
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
|---------------|----------------|-----------------------|
---------------------------------------------------------
Class C Swap Confirmation
-------------------------
December [ ], 2002
To: [ ]
From: MMCA Auto Owner Trust 2002-5
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
Re: Confirmation Relating to MMCA 2002-5 Class C Notes Interest Rate Swap
--- ---------------------------------------------------------------------
[ ] Reference: [ ]
MMCA Reference: [ ]
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the terms and
conditions of the Swap Transaction entered into between [ ] ("[ ]") and MMCA
Auto Owner Trust 2002-5 (the "Trust") on the Trade Date listed below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
ISDA Master Agreement specified below.
The definitions and provisions contained in the 2000 ISDA
Definitions, together with the Annex to the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. For these purposes,
all references in those Definitions to a "Transaction" shall be deemed to
apply to the Transaction referred to herein. In the event of any inconsistency
between the Definitions and this Confirmation, the terms of this Confirmation
shall govern.
This Confirmation supplements, forms part of and is subject to the
ISDA Master Agreement dated as of December [ ], 2002, as amended and
supplemented from time to time (the "Agreement") between you and us. All
provisions contained in or incorporated by reference in the Agreement upon its
execution will govern this Confirmation except as expressly modified below. 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.
The terms of the particular Transaction to which this Confirmation
relates are as follows:
Trade Date: December [ ], 2002.
Effective Date: December [ ], 2002.
Notional Amount: The Notional Amount initially shall equal $[ ] and for any
subsequent Calculation Period shall be equal to the aggregate
principal balance of the Class C Notes on the first day of such
Calculation Period. The Trust shall determine the Notional Amount
for each Calculation Period and shall notify [ ] of such
determination by the 15th day of the calendar month in which such
Calculation Period begins; provided, however, unless otherwise
agreed, if such notification is not received by the 12th day of the
calendar month in which such Calculation Period ends, the Notional
Amount for any Calculation Period shall be the amount set forth on
the attached Schedule 1.
Termination Date: The date on which the aggregate outstanding principal balance of
the Class C Notes has been reduced to zero, or the Fixed Rate Payer
Payment Date occurring in [ ], whichever is the earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month commencing (with a long first
payment) on [ ], 2002, up to and including the Termination
Date, subject to adjustment in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month, subject to adjustment in
accordance with the Modified Following Business Day Convention.
Fixed Rate: [ ]%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: [ ].
Floating Rate Payer
Payment Dates: The 15th day of each calendar month commencing (with a long first
payment) on [ ], 2002, up to and including the Termination
Date, subject to adjustment in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month, subject to adjustment in
accordance with the Modified Following Business Day Convention.
Floating Rate Option: USD-LIBOR-BBA. Notwithstanding Section 7.1 of the Definitions, the
Floating Rate shall be determined on the day that is two New York
and London Banking Days prior to the Reset Date. The rate
determined in accordance with the Floating Rate Option shall be
rounded, if necessary, to the nearest 1/100,000 of 1% (.0000001).
Designated Maturity: One month.
Spread: [ ]%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: [ ]%.
Reset Dates: The first day of each Floating Rate Payer Calculation Period.
Business Days: New York, New York, Wilmington, Delaware and Los Angeles,
California.
Account Details
Payments to [ ]: [ ]
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA #: 26009687
Account #: 00000000
Misc.
Calculation Agent: [ ].
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing this Confirmation and returning it to us.
Best Regards,
MMCA AUTO OWNER TRUST 2002-5
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor
as a principal to this Agreement,
but solely as Owner Trustee
By: _______________________________
Name:
Title:
Accepted and confirmed as of the
Trade Date written above:
[ ]
By: _______________________________
Name:
Title:
SCHEDULE 1
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| Start: | End: | Notional Balance |
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