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EXHIBIT 10.1
SCHEDULE
TO THE
ISDA MASTER AGREEMENT
DATED AS OF MARCH 13, 2001
BETWEEN
XXXXXXX XXXXX CAPITAL SERVICES, INC. ("PARTY A" OR "MLCS")
AND
FORD CREDIT AUTO OWNER TRUST 2001-B ("PARTY B")
PART 1. TERMINATION PROVISIONS.
(a) "SPECIFIED ENTITY" means:
(i) in relation to Party A: Not Applicable.
(ii) in relation to Party B: 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 Party A and will not apply to Party B.
(d) The "CREDIT SUPPORT DEFAULT" provisions of Section 5(a)(iii), if
applicable, will apply to Party A but not to Party B.
(e) The "MISREPRESENTATION" provisions of Section 5(a)(iv) will not apply
to Party A and will not apply to Party B.
(f) The "DEFAULT UNDER SPECIFIED TRANSACTION" provisions of Section 5(a)(v)
will not apply to Party A and will not apply to Party B.
(g) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to Party
A but not to Party B.
With regard to Party A, "Threshold Amount" means $100,000,000.
(h) The "MERGER WITHOUT ASSUMPTIONS" provisions of Section 5(a)(vii) will
not apply to Party A and will not apply to Party B.
(i) The "CREDIT EVENT UPON MERGER" provision in Section 5(b)(iv), will not
apply to Party A and not apply to Party B.
(j) The "TAX EVENT" provision of Section 5(b)(ii) will apply to Party B and
will not apply to Party A.
(k) The "TAX EVENT UPON MERGER" provision of Section 5(b)(iii) will apply
to Party B and will not apply to Party A.
(l) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not
apply to Party A and will not apply to Party B.
(m) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
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(i) Market Quotation will apply unless Party B is the
Non-defaulting Party or the party which is not the Affected
Party, as the case may be, and Party B 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.
(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 Party B the sole Affected
Party if Party A or Party B 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 Indenture Trust Estate pursuant to Section 5.4(iv) of the
Indenture. In such event, either Party A or Party B 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 Party A under this Agreement
gives rise to an Event of Default under the Indenture, it will
be treated as an Event of Default by Party A and not an
Additional Termination Event.
(ii) AMENDMENTS MADE WITHOUT CONSENT OF PARTY A. It shall be an
Additional Termination Event with Party B the Affected Party
if any amendment or supplement to the Indenture or to any of
the Receivables Transfer and Servicing Agreements which would
adversely affect any of Party A's rights or obligations under
this Agreement or modify the obligations of, or impair the
ability of Party B to fully perform any of Party B's
obligations under, this Agreement is made without the consent
of Party A, which consent shall not be unreasonably withheld,
provided that Party A's consent will be deemed to have been
given if Party A does not object in writing within ten
Business Days of receipt of a written request for such
consent.
(iii) DOWNGRADE OF PARTY A. It shall be an Additional Termination
Event with Party A the Affected Party if (1) the Credit Rating
of Party A is downgraded below "A2" by Xxxxx'x or "A" by
Fitch, or is suspended or withdrawn by either Rating Agency,
(2) the short-term Credit Rating of Party A is downgraded
below a rating of "A-1" by S&P, or is suspended or withdrawn
by such Rating Agency, or (3) notice is given to Party B by
any Rating Agency that the credit support, if any, with
respect to Party A is no longer deemed adequate to maintain
the then-current ratings of the Notes, and within 30 days of
such downgrade, suspension, withdrawal or notification, Party
A shall fail to either (X) deliver or post collateral
acceptable to Party B in amounts sufficient to secure its
obligations under this Agreement, (Y) assign its rights and
obligations under this Agreement to a replacement counterparty
acceptable to Party B or (Z) establish other arrangements
necessary, if any, in each case so that the Rating Agencies
confirm the ratings of the Notes that were in effect
immediately prior to such downgrade, suspension, withdrawal or
notification.
PART 2. TAX REPRESENTATIONS.
(a) PAYER TAX REPRESENTATIONS. For the purposes of Section 3(e) of this
Agreement, Party A and Party B 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:
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(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, Party A
represents to Party B 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, Party B
represents to Party A that it is a business trust organized
and existing under the laws of the State of Delaware.
It is (A) a "UNITED STATES PERSON" as defined in Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended,
or (B) 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
Party A and Party B An executed United States (i) Upon execution of this Applicable
Internal Revenue Service Agreement, (ii) promptly upon
Form 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:
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PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH TO BE DELIVERED SECTION 3(D)
DELIVER DOCUMENT CERTIFICATE REPRESENTATION:
Party A and Party B Evidence of the Upon or prior to the execution Applicable
authority, incumbency and delivery of this Agreement
and specimen signature and, with respect to any
of 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.
Party A and Party B Certified copies of Upon request by the other Applicable
documents evidencing party.
each Party's capacity to
execute and deliver this
Agreement, each
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.
Party A Annual audited financial Promptly after request by Applicable
statements of its Credit Party B.
Support Provider
prepared in accordance
with generally accepted
accounting principles in
the country in which its
Credit Support Provider
is organized.
Party B Monthly reports to On or prior to each Monthly Applicable
noteholders and Distribution Date.
certificateholders as
specified in the
Indenture (and all other
such notices required to
be given to the Swap
Counterparties under the
Indenture).
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Party A and Party B A legal opinion in form On or prior to the Closing Not Applicable
and substance Date.
satisfactory to the
other party.
Party A An officer's certificate On or prior to the Closing Not Applicable
affirming the Date.
information under
"Description of Swap
Counterparty" provided
to Party B for use in
Party B's offering
materials
Party B A copy of the executed As soon as practical after the Party B
Indenture and of each of Closing Date.
the Receivables Transfer
and Servicing Agreements.
Party A and Party B 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 Party A and
Party B shall be as follows:
TO PARTY A:
Xxxxxxx Xxxxx Capital Services, Inc.
Xxxxxxx Xxxxx World Headquarters
4 World Financial Center
New York, New York 10080
Attention: Swap Group
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
and with respect to Sections 5, 6 and 7 and any change to
Party B's address, telephone number or facsimile number, with
copy to:
CICG Counsel
Xxxxxxx Xxxxx World Headquarters
4 World Financial Center
New York, New York 10080
Attention: Swaps Legal
Facsimile No.: (000) 000-0000
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TO PARTY B:
The Bank of New York,
as Owner Trustee for Ford Credit Auto Owner Trust 2001-B
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx
Attention: Asset-Backed Finance Unit
With copies to:
The Chase Manhattan Bank,
as Indenture Trustee for Ford Credit Auto Owner Trust 2001-B
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx
Attention: Xxxxxxx X. Xxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
and
Ford Motor Credit Company
Ford Motor Company
World Headquarters
Office of the General Counsel
Attention of the Secretary
Xxx Xxxxxxxx Xxxx
Xxxxx 0000-X0
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
(b) PROCESS AGENT. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Party A.
Party B appoints as its Process Agent: The Bank of New York,
As Owner Trustee for Ford
Credit Auto Owner Trust
2001-B
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(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) Party A is not a Multibranch Party.
(ii) Party B is not a Multibranch Party.
(e) The CALCULATION AGENT shall be Ford Motor Credit Company, as
Administrator of Party B pursuant to the Administration Agreement.
(f) CREDIT SUPPORT DOCUMENTS.
Party A: Guarantee of Xxxxxxx Xxxxx & Co., Inc. ("ML&Co.") in the form
attached hereto as Exhibit A.
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Party B: Not Applicable.
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A, ML&Co. Credit
Support Provider means in relation to Party B, 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).
(i) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
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;
(2) such party is an "eligible contract participant"
within the meaning of the United States Commodity
Exchange Act.
(3) such party is entering into each Transaction in
connection with its line of business and not for
purposes of speculation.
(b) CONSENT TO RECORDING.
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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) 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) Party B will not be required to pay additional amounts in
respect of an Indemnifiable Tax or be under any obligation to
pay to Party A any amount in respect of any liability of Party
A for or on account of any Tax.
(d) NO SET OFF.
Notwithstanding any setoff right contained in any other
agreement between Party B or any affiliate or Credit Support Provider
of Party B, on the one hand, and Party A or any Affiliate or Credit
Support Provider of Party B, on the other, whether now in existence or
hereafter entered into unless such agreement shall specifically refer
to this paragraph (d), 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 (d), "Affiliate" shall have
the meaning specified in Section 14 of this Agreement.
(e) 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) NON-PETITION. Party A 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, Class C Certificates and
Class D Certificates 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
authority for the purpose of commencing a case (whether
voluntary or involuntary) against Party B under any
bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of Party B or any
substantial part of its property or ordering the winding up or
liquidation of the affairs of Party B. Party A agrees that it
has recourse against Party B only to the extent of
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the assets of the Party B and the proceeds thereof, and any
claims against Party B shall be extinguished when the assets
of Party B are exhausted.
(iv) TRANSFER. Notwithstanding the provisions of Section 7, Party A
may assign its rights and delegate its obligations under any
Transaction, in whole or in part, to any Affiliate of ML & Co.
(an "Assignee"), effective (the "Effective Transfer Date")
upon delivery to the Administrator of both (a) an executed
acceptance and assumption by the Assignee of the transferred
obligations of MLCS under the Transaction (the "Transferred
Obligations"); and (b) an executed guarantee of ML & Co., of
the Transferred Obligations, substantially identical to the
Credit Support Document with respect to MLCS; provided, that
no transfer to an Assignee shall occur if (i) MLCS 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 MLCS would have
been required to withhold or deduct in the absence of such
transfer, unless the Assignee would be 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; (ii) an Event
of Default, Potential Event of Default or Termination Event
would occur hereunder as a result of such transfer or (iii)
any of the Rating Agencies shall reduce, suspend or withdraw
their ratings of the Notes as a result of such transfer; and
provided, further, that MLCS shall pay any fees and expenses
incurred by or on the part of either party as a result of such
transfer.
On the Effective Transfer Date, (a) MLCS shall be released
from all obligations and liabilities arising under the
Transferred Obligations; and (b) the Transferred Obligations
shall cease to be a Transaction under this Agreement and shall
be deemed to be Transaction under the ISDA Master Agreement
between Assignee and Party B, provided that, if, on the
Effective Transfer Date, Assignee and Party B have not entered
into an ISDA Master Agreement, Assignee and Party B shall be
deemed to have entered into an ISDA Master Agreement that is
substantially identical to this Agreement, including this
Schedule. At least 15 days prior to any such transfer MLCS
shall notify the Administrator 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 Administrator shall promptly
notify each Rating Agency of such transfer.
(v) PARTY B PLEDGE. Notwithstanding Section 7 of this Agreement to
the contrary, Party A acknowledges that Party B 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 Party A. Party A shall be entitled to rely on any
notice or communication from the Indenture Trustee to that
effect. Party A acknowledges that Party B will pledge
substantially all its assets to the Indenture Trustee for the
benefit of the Noteholders and Party A 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
Distribution Dates specified therein.
(vi) LIMITED RECOURSE. The liability of Party B in relation to this
Agreement and any Transaction hereunder is limited in recourse
to the assets of Party B and proceeds thereof applied in
accordance with the Indenture and the Sale and Servicing
Agreement. Upon exhaustion of the assets of Party B and
proceeds thereof in accordance with the Indenture and the Sale
and Servicing Agreement, Party A shall not be entitled to take
any further steps against Party B 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, Party B 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
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obligation of, or claim against, Party B based upon or arising
out of this Agreement against the Administrator, the Seller,
the Servicer, the Indenture Trustee, the Owner Trustee, the
Delaware 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,
Party A acknowledges and agrees that it shall have no right,
title or interest in or to the Other Assets of the Seller. To
the extent that, notwithstanding the agreements and provisions
contained in the preceding paragraph, Party A either (i)
asserts an interest or claim to, or benefit from, Other
Assets, or (ii) is deemed 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 Party A
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. Party B further acknowledges and
agrees that no adequate remedy at law exists for a breach of
this Part 5(e)(vi) and the terms of this Part 5(e)(vi) may be
enforced by an action for specific performance. The provisions
of this Part 5(e)(vi) shall be for the third party benefit of
those entitled to rely thereon and shall survive the
termination of this Agreement.
(vii) CONSENT BY PARTY A 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 Party A's rights or obligations
under this Agreement or modify the obligations of, or impair
the ability of Party B to fully perform any of Party B's
obligations under, this Agreement, Party B shall provide Party
A with a copy of the proposed amendment or supplement and
shall obtain the consent of Party A to such amendment or
supplement prior to its adoption, which consent shall not be
unreasonably withheld; provided that Party A's consent will be
deemed to have been given if Party A does not object in
writing within ten Business Days of receipt of a written
request for such consent.
(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, the Class C Certificates or the
Class D Certificates, unless such amendment clarifies any term
or provision, corrects any inconsistency, cures any ambiguity,
or corrects any typographical error in the Agreement."
(ix) 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 2, 5, 6 or
13 (or any definition or provision in Section 14 (other than
the definitions of "Applicable Rate", "Default
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Rate" and "non-default rate") to the extent it relates to, or
is used in connection with any such Section) shall be so held
to be invalid or unenforceable.
(f) 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.
(g) SINGLE TRANSACTION. Party A and Party B each agrees and acknowledges
that the only Transaction that is or will be governed by this Agreement
is the Transaction evidenced by the Confirmation dated the date hereof.
(h) ADDITIONAL DEFINITIONS.
"ADMINISTRATION AGREEMENT" shall mean the administration agreement
(including Appendix A thereto) dated as of March 1, 2001, as amended,
supplemented or otherwise modified and in effect, by and among Party B,
Ford Motor Credit Company, and The Chase Manhattan Bank.
"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 or the State of Delaware are authorized or obligated by law,
regulation or executive order to remain closed.
"CLASS A NOTES" means the Class A Notes issued by Party B pursuant to
the Indenture.
"CLASS A-3 NOTES" means the Class A-3 Notes issued by Party B pursuant
to the Indenture.
"CLASS C CERTIFICATES" means the Class C Certificates issued by Party B
pursuant to the Trust Agreement.
"CLASS D CERTIFICATES" means the Class D Certificates issued by Party B
pursuant to the Trust Agreement.
"CLOSING DATE" shall mean March 22, 2001.
"CREDIT RATING" means, with respect to Party A, the issuer rating of
the head office of Xxxxxxx Xxxxx & Co. Inc. without regard to whether
or not such rating is under review with positive or negative
implications.
"DISTRIBUTION DATE" shall mean the fifteenth (15th) day of each
calendar month or, if such day is not a Business Day, the next
succeeding Business Day, commencing April 16, 2001.
"FITCH" means Fitch, Inc.
"INDENTURE" shall mean the indenture dated as of March 1, 2001
(including Appendix A thereto), as amended, supplemented or otherwise
modified and in effect, between Party B and The Chase Manhattan Bank,
as Indenture Trustee.
"INDENTURE 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 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.
"INDENTURE TRUSTEE" shall mean The Chase Manhattan Bank or any
successor or replacement thereto pursuant to the Indenture.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
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"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 A-5 Notes and the Class B
Notes issued by Party B pursuant to the Indenture.
"OTHER ASSETS" shall mean any assets (or interests therein) (other than
the receivables and related property conveyed to Party B pursuant to
the Sale and Servicing Agreement) conveyed or purported to be conveyed
by the Seller to another Person or Persons other than Party A, whether
by way of a sale, capital contribution or by virtue of the granting of
a lien.
"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.
"PURCHASE AGREEMENT" shall mean the purchase agreement (including
Appendix A thereto) dated as of March 1, 2001, as from time to time
amended, supplemented or otherwise modified and in effect, between Ford
Motor Credit Company and Ford Credit Auto Receivables Two LLC.
"RATING AGENCIES" shall mean Xxxxx'x, S&P and Fitch or any substitute
rating agency that the Seller (as defined in the Indenture) requests to
rate the Notes.
"RECEIVABLES TRANSFER AND SERVICING AGREEMENTS" shall mean collectively
the Purchase Agreement, the Sale and Servicing Agreement, the Trust
Agreement and the Administration Agreement.
"SALE AND SERVICING AGREEMENT" shall mean the sale and servicing
agreement (including Appendix A thereto) dated as of March 1, 2001, as
amended, supplemented or otherwise modified and in effect, by and among
Party B, Ford Credit Auto Receivables Two LLC, as seller, and Ford
Motor Credit Company, as servicer.
"SELLER" shall mean Ford Credit Auto Receivables Two LLC, a Delaware
limited liability company, pursuant to the Sale and Servicing
Agreement.
"S&P" shall mean Standard & Poor's Rating Services, a division of the
XxXxxx-Xxxx Companies, Inc.
"TRUST AGREEMENT" shall mean the Amended and Restated Trust Agreement
(including Appendix A thereto), dated as of March 1, 2001, as amended,
supplemented or otherwise modified and in effect, by and among Ford
Credit Auto Receivables Two LLC, the Bank of New York (Delaware), as
Delaware Trustee and The Bank of New York, as Owner Trustee.
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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.
XXXXXXX XXXXX CAPITAL SERVICES, INC. FORD CREDIT AUTO OWNER TRUST 2001-B
By: THE BANK OF NEW YORK
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxx Xxxxx
--------------------------- -----------------------------
Name: Xxxxx X. Xxxx Name: Xxxx Xxxxx
Title: Designated Signatory Title: Assistant Treasurer
Date: Date:
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EXHIBIT A - Form of Confirmation
[Date]
To: Xxxxxxx Xxxxx Capital Services, Inc.
[ ]
Contact: [ ]
Tel: (212) [ ]
From: Ford Credit Auto Owner Trust 2001-B
c/o The Bank of New York, as
owner trustee
ABS Finance Xxxx
000 Xxxxxxx Xxxxxx
12E Floor
New York, NY 10286
Contact: Xxxx Xxxxx
Tel: (000) 000-0000
Re: Interest Rate Swap Reference No. [ ]
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the terms and
conditions of the Swap Transaction entered into between Xxxxxxx Xxxxx Capital
Services, Inc. ("Party A") and Ford Credit Auto Owner Trust 2001-B ("Party B")
on the Trade Date listed below (the "Transaction"). This letter constitutes a
"Confirmation" as referred to in the ISDA Agreement specified below.
The definitions and provisions contained in the 1991 ISDA
Definitions (as published by the International Swap Dealers Association, Inc.)
are incorporated into this Confirmation. In the event of any inconsistency
between those definitions and this Confirmation, this Confirmation will govern.
1. This Confirmation supplements, forms part of, and is subject
to, the Master Agreement dated as of March [ ], 2001, as amended and
supplemented from time to time (the "Agreement") between you and us. All
provisions contained in the Agreement govern this Confirmation except as
expressly modified below. Other capitalized terms used herein and not otherwise
defined shall have the meanings given them in the Indenture referred to in the
Agreement. In the event of any inconsistency between those terms and this
Confirmation, this Confirmation will govern.
2. The terms of the particular Transaction to which this
Confirmation relates are as follows:
Party A: Xxxxxxx Xxxxx Capital Services, Inc.
Party B: Ford Credit Auto Owner Trust 2001-B.
Trade Date: [ ].
Effective Date: [ ].
Notional Amount: [The Notional Amount initially shall equal [ ] and
shall decrease by an amount equal to the amount of the
reduction in the aggregate principal balance of the Class
[A- ] Notes on each Distribution Date.
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Decreases in the Notional Amount with respect to the calculation
of Fixed Amounts shall take effect as of the Period End Date
occurring in the month of the Distribution Date. Party B
shall determine the Notional Amount and shall inform Party A
of such determination by the twelfth day of each calendar
month. ]
Termination Date: The date the aggregate outstanding principal balance of the
Class A-[ ] Notes has been reduced to zero.
Fixed Amounts
Fixed Rate Payer: Party B.
Fixed Rate Payer
Payment Date: The 15th day of each calendar month, subject to adjustment
in accordance with the Following Business Day Convention.
Period End Date: The 15th day of each calendar month, with No Adjustment.
Fixed Rate: [ ]%.
Fixed Rate Day
Count Fraction: 30/360.
Floating Amounts
Floating Rate Payer: Party A.
Floating Rate Payer
Payment Dates: The 15th day of each calendar month, subject to adjustment
in accordance with the Following Business Day Convention.
Floating Rate for initial
Calculation Period: [ ]
Floating Rate Option: [USD-LIBOR-BBA.]
Designated Maturity: One month.
Spread: [Spread] basis points.
Floating Rate Day
Count Fraction: Actual/360.
Reset Dates: The first day of each Floating Rate Payer Calculation Period.
Business Days: New York and Delaware.
3. Account Details
Payments to Party A: Xxxxxxx Xxxxx Capital Services, Inc.
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XXX#:
Xxxx. #
Xxxx. Name:
Ref: Ford 2001-B
Payments to Party B: The Chase Manhattan Bank
ABA# 000-000-000
Account #: [ ]
Account Name: ITS Incoming Wire House Account
Ref: Ford 2001-B
Party A Operations Contact: [ ]
Party B Operations Contact: The Chase Manhattan Bank
Corporate Trust Administration
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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Please confirm that the foregoing correctly sets forth the
terms of our agreement by executing this Confirmation and returning it to us.
Best Regards,
FORD CREDIT AUTO OWNER TRUST 2001-B
By: THE BANK OF NEW YORK
not in its individual capacity but solely as Owner Trustee
By:______________________________
Name:
Title:
XXXXXXX XXXXX CAPITAL SERVICES, INC.
By:______________________________
Name:
Title:
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