EXHIBIT 10.3
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of October 12, 2001
THE CHASE MANHATTAN BANK and MMCA AUTO OWNER TRUST 2001-3
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 Martet 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 absointe 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:--
(i) 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
(ii) 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:--
(i) 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;
(ii) 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;
(iii) 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
(iv) 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:--
(i) 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
(ii) 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.
THE CHASE MANHATTAN BANK MMCA AUTO OWNER TRUST 2001-3*
By: /s/ Xxxx X'Xxxxxx By: /s/ Xxxxx Xxxxxxx
----------------------------- --------------------------------------
Name: Xxxx X'Xxxxxx Name: Xxxxx Xxxxxxx
Title:Vice President Title: Financial Services Officer
Date: October 12, 2001 Date: October 12, 2001
* By: Wilmington Trust Company,
not in its individual capacity nor as
a principal to this Agreement, but
solely as Owner Trustee
SCHEDULE to the ISDA Master Agreement
Dated as of October 12, 2001
between
THE CHASE MANHATTAN BANK ("CMB")
and
MMCA AUTO OWNER TRUST 2001-3 (the "Trust")
Part 1 Termination Provisions.
(a) "Specified Entity" means:
(i) in relation to CMB: 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 CMB or to the Trust.
(d) The "Credit Support Default" provisions of Section 5(a)(iii), if
applicable, will apply to CMB and will not apply to the Trust.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) will not apply
to CMB or to the Trust.
(f) The "Default under Specified Transaction" provisions of Section 5(a)(v)
will not apply to CMB or to the Trust.
(g) The "Cross Default" provisions of Section 5(a)(vi) will not apply to
CMB or to the Trust.
(h) The "Merger Without Assumption" provisions of Section 5(a)(viii) will
apply to CMB and will apply to the Trust.
(i) The "Tax Event" provision of Section 5(b)(ii) will apply to CMB 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 CMB 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 CMB or to the Trust.
(l) The "Automatic Early Termination" provision of Section 6(a) will not
apply to CMB 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 CMB 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 CMB 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 CMB 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 CMB under this
Agreement gives rise to an Event of Default under the
Indenture, it will be treated as an Event of Default by
CMB and not an Additional Termination Event.
(ii) Amendments Made Without Consent of CMB. 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 adversely
affect any of CMB's 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 CMB, which consent shall not be unreasonably
withheld (in which case the Trust will be the Affected
Party).
(iii) Downgrade of CMB. It shall be an Additional Termination
Event with CMB the Affected Party if:
(i) the long-term Credit Rating of CMB is suspended
or withdrawn or downgraded below "A2" by Xxxxx'x
and, within 30 days of such suspension,
withdrawal or downgrade CMB 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 CMB 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 CMB's 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;
(ii) the long-term and the short-term Credit Rating
of CMB is downgraded below "A-" or "A-1,"
respectively, by S&P, and CMB shall fail to (a)
use reasonable efforts to assign 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 20 days of such downgrade, fail
to deliver or post collateral reasonably
acceptable to the Trust and acceptable 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, CMB shall continue to
use reasonable efforts to assign its rights and
obligations under this Agreement to a
replacement counterparty; or
(iii) the long-term or the short-term Credit Rating of
CMB is suspended or withdrawn or downgraded
below "A" or "F1", respectively, by Fitch and,
within 30 days of such suspension, withdrawal or
downgrade CMB shall fail to (a) deliver or post
collateral reasonably acceptable to the Trust
and acceptable to Fitch in amounts sufficient or
in accordance with the standards of Fitch (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 or (c) establish other
arrangements necessary (including, without
limitation, causing an entity with ratings such
that if CMB 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 CMB's or its Credit
Support Provider's obligations under this
Agreement in form and substance reasonably
satisfactory to Fitch), if any, in each case so
that Fitch confirms the ratings of the Notes
that were in effect immediately prior to such
suspension, withdrawal or downgrade.
(iv) Failure to Maintain Security Interest. It shall
be an Additional Termination Event with the
Trust the Affected Party if the Trust fails to
maintain the first priority perfected security
interest of CMB in the Collateral under the
Indenture.
Part 2 Tax Representations.
(a) Payer Tax Representations. For the purposes of Section 3(e) of this
Agreement, CMB 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.
Payee Tax Representations.
(i) For the purpose of Section 3(f) of this
Agreement, CMB represents to the Trust that it
is a bank organized under the laws of the State
of New York.
(ii) For the purpose of Section 3(f) of this
Agreement, the Trust represents to CMB that it
is a business trust organized and existing under
the laws of the State of Delaware.
(iii) CMB 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
CMB and the Trust 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:
CMB 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
Party's capacity to Agreement
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.
CMB 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).
CMB 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.
CMB 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 CMB and the
Trust shall be as follows:
TO CMB:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxx (Derivatives Marketing)
Tel: (000) 000-0000
Fax: (000) 000-0000
The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department - Capital Markets Group
Fax: (000) 000-0000
TO THE TRUST:
MMCA Auto Owner Trust 2001-3
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:
CMB 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:
CMB is not a Multibranch Party.
The Trust is not a Multibranch Party.
(e) The Calculation Agent shall be CMB.
(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.
(g) Credit Support Provider.
Credit Support Provider means, in relation to CMB, Not Applicable.
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 Mitsubishi Motors Credit
of America, Inc.
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):
(i) Non-Reliance. It is acting for its own account,
and it has made its own independent decisions to
enter into that Transaction and as to whether
that Transaction is appropriate or proper for it
based upon its own judgment and upon advice from
such 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.
(ii) 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.
(iii) 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:
(i) each Transaction is intended to be exempt from,
or otherwise not subject to regulation under,
the Commodity Exchange Act; and
(ii) 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 CMB any amount in respect of any
liability of CMB 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 CMB 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 CMB. CMB represents that the description of CMB
as set forth on page 46 of the Prospectus dated October
3, 2001 has been furnished and approved by CMB and is
true and correct as of the date hereof.
(iv) Non-Petition. CMB 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. CMB 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,
CMB may assign its rights and delegate its obligations
under any Transaction, in whole or in part, to any
Affiliate of CMB (an "Assignee"), effective (the
"Effective Transfer Date") upon delivery to Counterparty
of an executed acceptance and assumption by the Assignee
of the transferred obligations of CMB under the
Transaction(s) (the "Transferred Obligations"); provided
that (x) no such transfer to an Assignee shall occur if
(i) Counterparty shall, as a result of such transfer, be
required to pay to CMB 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 Counterparty would have been required to pay to CMB
in the absence of such transfer; (ii) CMB 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
CMB 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) CMB 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) CMB 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 Assignee
and Counterparty, provided that, if, on the Effective Transfer
Date, Assignee and Counterparty have not entered into an ISDA
Master Agreement, Assignee and Counterparty shall be deemed to
have entered into an ISDA Master Agreement that is substantially
identical to this Agreement, including this Schedule. At least ten
Business Days prior to any such transfer CMB shall notify
Counterparty 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
Counterparty shall promptly notify each Rating Agency of such
transfer.
(vi) The Trust Pledge. Notwithstanding Section 7 of this
Agreement to the contrary, CMB 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
CMB. CMB shall be entitled to rely on any notice or
communication from the Indenture Trustee to that effect.
CMB acknowledges that the Trust will pledge substantially
all its assets to the Indenture Trustee for the benefit
of the Noteholders and CMB 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 CMB 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, CMB 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,
CMB 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, CMB 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 CMB 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 CMB 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 CMB's 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 CMB with a copy of the
proposed amendment or supplement and shall obtain the
consent of CMB 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
CMB and makes clear that CMB has no longer than ten
Business Days to object to such amendment or supplement,
CMB's consent will be deemed to have been given if CMB
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.
(e) 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.
(f) Limited Transactions. CMB 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 four Confirmations dated the date
hereof.
(g) Notices to Noteholders. The Trust shall provide CMB with copies of all
notices required to be given to the holders of the Notes, and upon request,
shall provide CMB with any other notices which could be requested by the
holders of the Notes.
(h) Further Representations of the Trust:
(i) Each of the Class A-2 Notes, Class A-3 Notes, Class A-4
Notes and Class B Notes are rated "Aaa" by Xxxxx'x, "AAA"
by S&P and "AAA" by Fitch as to the timely payment of
interest and principal and without regard to third party
credit enhancement.
(ii) All conditions precedent to the issuance of the Notes
under the Indenture have been satisfied.
(iii) Each of the documents to which it is a party has been
duly authorized, executed and delivered by it.
(iv) 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.
(v) 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.
(vi) 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, Mitsubishi Motors Credit of America, Inc., 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 CMB 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 CMB, 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 October 1, 2001, as amended, supplemented or
otherwise modified and in effect, by and among the Trust,
Mitsubishi Motors Credit of America, Inc., 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-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.
"Closing Date" shall mean October 12, 2001.
"Credit Rating" means, with respect to CMB, the issuer
rating of CMB without regard to whether or not such rating is
under review with positive or negative implications.
"Fitch" shall mean Fitch, Inc.
"Indenture" shall mean the indenture dated as of October
1, 2001, 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 and the Class B
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 CMB, 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.
"Payment Date" shall mean the fifteenth (15th) day of
each month or, if such day is not a Business Day, the immediately
following Business Day, commencing November 15, 2001.
"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
dated as of October 1, 2001, as from time to time amended,
supplemented or otherwise modified and in effect, between
Mitsubishi Motors Credit of America, Inc. and MMCA Auto
Receivables Trust.
"Rating Agencies" shall mean Moody's, S&P or Fitch, 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, a division of The
XxXxxx-Xxxx Companies, Inc.
"Sale and Servicing Agreement" shall mean the sale and
servicing agreement dated as of October 1, 2001, as amended,
supplemented or otherwise modified and in effect, by and among the
Trust, MMCA Auto Receivables Trust, as seller, and Mitsubishi
Motors Credit of America, Inc., as servicer.
"Seller" shall mean MMCA Auto Receivables Trust.
"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 October 1, 2001, as amended,
supplemented or otherwise modified and in effect, by and among
MMCA Auto Receivables Trust, 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.
THE CHASE MANHATTAN BANK MMCA AUTO OWNER TRUST 2001-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
nor as a principal to this
Agreement, but solely as Owner
Trustee
By: /s/ Xxxx X'Xxxxxx By: /s/ Xxxxx Xxxxxxx
------------------------ -------------------------------------
Name: Xxxx X'Xxxxxx Name: Xxxxx Xxxxxxx
Title: Vice President Title: Financial Services Officer
EXHIBIT A
[Form of SWAP Confirmation]
[Date]
To: [ ]
From: MMCA Auto Owner Trust 2001-3
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 [ ] Interest Rate Swap
--------------------------------------------------------------
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 2001-3 (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 [ ], 2001, 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: [ ].
Effective Date: [ ].
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- ] Notes on the first day of such
Calculation Period. The Trust shall
determine the Notional Amount for each
Calculation Period and shall inform [ ]
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- ] Notes has been reduced to
zero, or [ ] 15, [ ], whichever is the
earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on [ ], subject to adjustment
in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month,
with Adjustment.
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 on [ ], subject to adjustment
in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month,
with Adjustment.
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 (2) New York and London Business
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.
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: [ ]
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 2001-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
nor as a principal to this
Agreement, but solely as Owner
Trustee
By: ______________________________
Name:
Title:
[ ]
By: ______________________________
Name:
Title:
Class A-2 Swap Confirmation
October 12, 2001
To: THE CHASE MANHATTAN BANK
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
From: MMCA Auto Owner Trust 2001-3
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 2001-3 Class A-2 Notes
Interest Rate Swap
----------------------------------------------------
CMB Reference: 4318863A/59404036
MMCA Reference: To be advised
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between The Chase
Manhattan Bank ("CMB") and MMCA Auto Owner Trust 2001-3 (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 October 12, 2001, 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: October 3, 2001.
Effective Date: October 12, 2001.
Notional Amount: The Notional Amount initially shall equal
$244,000,000.00 and for any subsequent
Calculation Period shall be equal to the
aggregate principal balance of the Class
A-2 Notes on the first day of such
Calculation Period. The Trust shall
determine the Notional Amount for each
Calculation Period and shall notify CMB 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-2 Notes has been
reduced to zero, or the
Fixed Rate Payer Payment
Date occurring on February
18, 2003, whichever is the
earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on November 15, 2001, 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 Following Business Day Convention.
Fixed Rate: 2.895000%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: CMB.
Floating Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on November 15, 2001, 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 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 (2)
New York and London Business 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: plus 0.18%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: 3.53125% (excluding spread).
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 CMB: The Chase Manhattan Bank
New York
ABA #: 000000000
Account #: 000-0-000000
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA #: 26009687
Account #: To be advised
Misc.
CMB Operations Contact: Tel: (000) 000-0000/3063
Fax: (000) 000-0000/9262/9263
Calculation Agent: CMB.
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 2001-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
nor as a principal to this
Agreement, but solely as Owner
Trustee
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President, Chase Manhattan Bank
SCHEDULE 1
---------------------------------------------------------------------
Start: End: A-2 Notional
Balance
---------------------------------------------------------------------
October 12, 2001 November 15, 2001 USD 244,000,000.00
---------------------------------------------------------------------
November 15, 2001 December 17, 2001 USD 244,000,000.00
---------------------------------------------------------------------
December 17, 2001 January 15, 2002 USD 244,000,000.00
---------------------------------------------------------------------
January 15, 2002 February 15, 2002 USD 244,000,000.00
---------------------------------------------------------------------
February 15, 2002 March 15, 2002 USD 244,000,000.00
---------------------------------------------------------------------
March 15, 2002 April 15, 2002 USD 244,000,000.00
---------------------------------------------------------------------
April 15, 2002 May 15, 2002 USD 244,000,000.00
---------------------------------------------------------------------
May 15, 2002 June 17, 2002 USD 244,000,000.00
---------------------------------------------------------------------
June 17, 2002 July 15, 2002 USD 222,363,010.00
---------------------------------------------------------------------
July 15, 2002 August 15, 2002 USD 193,755,284.00
---------------------------------------------------------------------
August 15, 2002 September 16, 2002 USD 164,856,039.00
---------------------------------------------------------------------
September 16, 2002 October 15, 2002 USD 136,107,792.00
---------------------------------------------------------------------
October 15, 2002 November 15, 2002 USD 106,858,871.00
---------------------------------------------------------------------
November 15, 2002 December 16, 2002 USD 76,300,284.00
---------------------------------------------------------------------
December 16, 2002 January 15, 2003 USD 45,864,382.00
---------------------------------------------------------------------
January 15, 2003 February 18, 2003 USD 15,782,186.00
---------------------------------------------------------------------
Class A-3 Swap Confirmation
October 12, 2001
To: THE CHASE MANHATTAN BANK
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
From: MMCA Auto Owner Trust 2001-3
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 2001-3 Class A-3 Notes
Interest Rate Swap
----------------------------------------------------
CMB Reference: 4318427A/59404041
MMCA Reference: To be advised
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between The Chase
Manhattan Bank ("CMB") and MMCA Auto Owner Trust 2001-3 (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 October 12, 2001, 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: October 3, 2001.
Effective Date: October 12, 2001.
Notional Amount: The Notional Amount initially shall equal
$437,000,000.00 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 CMB 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 on July 15,
2004, whichever is the
earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on November 15, 2001, 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 Following Business Day Convention.
Fixed Rate: 3.636000%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: CMB.
Floating Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on November 15, 2001, 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 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 (2)
New York and London Business 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: plus 0.25%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: 2.53125% (excluding spread).
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 CMB: The Chase Manhattan Bank
New York
ABA #: 000000000
Account #: 000-0-000000
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA #: 26009687
Account #: To be advised
Misc.
CMB Operations Contact: Tel: (000) 000-0000/3063
Fax: (000) 000-0000/9262/9263
Calculation Agent: CMB.
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 2001-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
nor as a principal to this
Agreement, but solely as Owner
Trustee
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President, Chase Manhattan Bank
SCHEDULE 1
---------------------------------------------------------------------
Start: End: A-3 Notional
Balance
---------------------------------------------------------------------
October 12, 2001 November 15, 2001 USD 437,000,000.00
---------------------------------------------------------------------
November 15, 2001 December 17, 2001 USD 437,000,000.00
---------------------------------------------------------------------
December 17, 2001 January 15, 2001 USD 437,000,000.00
---------------------------------------------------------------------
January 15, 2002 February 15, 2002 USD 437,000,000.00
---------------------------------------------------------------------
February 15, 2002 March 15, 2002 USD 437,000,000.00
---------------------------------------------------------------------
March 15, 2002 April 15, 2002 USD 437,000,000.00
---------------------------------------------------------------------
April 15, 2002 May 15, 2002 USD 437,000,000.00
---------------------------------------------------------------------
May 15, 2002 June 17, 2002 USD 437,000,000.00
---------------------------------------------------------------------
June 17, 2002 July 15, 2002 USD 437,000,000.00
---------------------------------------------------------------------
July 15, 2002 August 15, 2002 USD 437,000,000.00
---------------------------------------------------------------------
August 15, 2002 September 16, 2002 USD 437,000,000.00
---------------------------------------------------------------------
September 16, 2002 October 15, 2002 USD 437,000,000.00
---------------------------------------------------------------------
October 15, 2002 November 15, 2002 USD 437,000,000.00
---------------------------------------------------------------------
November 15, 2002 December 16, 2002 USD 437,000,000.00
---------------------------------------------------------------------
December 16, 2002 January 15, 2003 USD 437,000,000.00
---------------------------------------------------------------------
January 15, 2003 February 18, 2003 USD 437,000,000.00
---------------------------------------------------------------------
February 18, 2003 March 17, 2003 USD 423,058,728.00
---------------------------------------------------------------------
March 17, 2003 April 15, 2003 USD 393,696,728.00
---------------------------------------------------------------------
April 15, 2003 May 15, 2003 USD 364,702,499.00
---------------------------------------------------------------------
May 15, 2003 June 16, 2003 USD 336,080,046.00
---------------------------------------------------------------------
June 16, 2003 July 15, 2003 USD 307,834,018.00
---------------------------------------------------------------------
July 15, 2003 August 15, 2003 USD 279,997,970.00
---------------------------------------------------------------------
August 15, 2003 September 15, 2003 USD 252,553,940.00
---------------------------------------------------------------------
September 15, 2003 October 15, 2003 USD 225,499,558.00
---------------------------------------------------------------------
October 15, 2003 November 17, 2003 USD 198,839,673.00
---------------------------------------------------------------------
November 17, 2003 December 15, 2003 USD 172,579,189.00
---------------------------------------------------------------------
December 15, 2003 January 15, 2004 USD 146,723,067.00
---------------------------------------------------------------------
January 15, 2004 February 17, 2004 USD 121,276,324.00
---------------------------------------------------------------------
February 17, 2004 March 15, 2004 USD 96,244,036.00
---------------------------------------------------------------------
March 15, 2004 April 15, 2004 USD 71,631,335.00
---------------------------------------------------------------------
April 15, 2004 May 17, 2004 USD 47,443,413.00
---------------------------------------------------------------------
May 17, 2004 June 15, 2004 USD 23,685,523.00
---------------------------------------------------------------------
June 15, 2004 July 15, 2004 USD 362,975.00
---------------------------------------------------------------------
Class A-4 Swap Confirmation
October 12, 2001
To: THE CHASE MANHATTAN BANK
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
From: MMCA Auto Owner Trust 2001-3
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 2001-3 Class A-4
Notes Interest Rate Swap
----------------------------------------------
CMB Reference: 4318119A/59404046
MMCA Reference: To be advised
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between The Chase
Manhattan Bank ("CMB") and MMCA Auto Owner Trust 2001-3 (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 October 12, 2001, 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: October 3, 2001.
Effective Date: October 12, 2001.
Notional Amount: The Notional Amount initially shall equal
$399,400,000.00 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 CMB 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 on March 15,
2006, whichever is the
earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on November 15, 2001, 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 Following Business Day Convention.
Fixed Rate: 4.448000%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: CMB.
Floating Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on November 15, 2001, 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 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 (2)
New York and London Business 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: plus 0.30%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: 2.53125% (excluding spread).
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 CMB: The Chase Manhattan Bank
New York
ABA #: 000000000
Account #: 000-0-000000
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA #: 26009687
Account #: To be advised
Misc.
CMB Operations Contact: Tel: (000) 000-0000/3063
Fax: (000) 000-0000/9262/9263
Calculation Agent: CMB.
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 2001-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
nor as a principal to this
Agreement, but solely as Owner
Trustee
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President, Chase Manhattan Bank
SCHEDULE 1
-------------------------------------------------------------------
Start: End: A-4 Notional
Balance
-------------------------------------------------------------------
October 12, 2001 November 15, 2001 USD 399,400,000.00
-------------------------------------------------------------------
November 15, 2001 December 17, 2001 USD 399,400,000.00
-------------------------------------------------------------------
December 17, 2001 January 15, 2001 USD 399,400,000.00
-------------------------------------------------------------------
January 15, 2002 February 15, 2002 USD 399,400,000.00
-------------------------------------------------------------------
February 15, 2002 March 15, 2002 USD 399,400,000.00
-------------------------------------------------------------------
March 15, 2002 April 15, 2002 USD 399,400,000.00
-------------------------------------------------------------------
April 15, 2002 May 15, 2002 USD 399,400,000.00
-------------------------------------------------------------------
May 15, 2002 June 17, 2002 USD 399,400,000.00
-------------------------------------------------------------------
June 17, 2002 July 15, 2002 USD 399,400,000.00
-------------------------------------------------------------------
July 15, 2002 August 15, 2002 USD 399,400,000.00
-------------------------------------------------------------------
August 15, 2002 September 16, 2002 USD 399,400,000.00
-------------------------------------------------------------------
September 16, 2002 October 15, 2002 USD 399,400,000.00
-------------------------------------------------------------------
October 15, 2002 November 15, 2002 USD 399,400,000.00
-------------------------------------------------------------------
November 15, 2002 December 16, 2002 USD 399,400,000.00
-------------------------------------------------------------------
December 16, 2002 January 15, 2003 USD 399,400,000.00
-------------------------------------------------------------------
January 15, 2003 February 18, 2003 USD 399,400,000.00
-------------------------------------------------------------------
February 18, 2003 March 17, 2003 USD 399,400,000.00
-------------------------------------------------------------------
March 17, 2003 April 15, 2003 USD 399,400,000.00
-------------------------------------------------------------------
April 15, 2003 May 15, 2003 USD 399,400,000.00
-------------------------------------------------------------------
May 15, 2003 June 16, 2003 USD 399,400,000.00
-------------------------------------------------------------------
June 16, 2003 July 15, 2003 USD 399,400,000.00
-------------------------------------------------------------------
July 15, 2003 August 15, 2003 USD 399,400,000.00
-------------------------------------------------------------------
August 15, 2003 September 15, 2003 USD 399,400,000.00
-------------------------------------------------------------------
September 15, 2003 October 15, 2003 USD 399,400,000.00
-------------------------------------------------------------------
October 15, 2003 November 17, 2003 USD 399,400,000.00
-------------------------------------------------------------------
November 17, 2003 December 15, 2003 USD 399,400,000.00
-------------------------------------------------------------------
December 15, 2003 January 15, 2004 USD 399,400,000.00
-------------------------------------------------------------------
January 15, 2004 February 17, 2004 USD 399,400,000.00
-------------------------------------------------------------------
February 17, 2004 March 15, 2004 USD 399,400,000.00
-------------------------------------------------------------------
March 15, 2004 April 15, 2004 USD 399,400,000.00
-------------------------------------------------------------------
April 15, 2004 May 17, 2004 USD 399,400,000.00
-------------------------------------------------------------------
May 17, 2004 June 15, 2004 USD 399,400,000.00
-------------------------------------------------------------------
June 15, 2004 July 15, 2004 USD 399,400,000.00
-------------------------------------------------------------------
July 15, 2004 August 16, 2004 USD 376,881,143.00
-------------------------------------------------------------------
August 16, 2004 September 15, 2004 USD 354,512,041.00
-------------------------------------------------------------------
September 15, 2004 October 15, 2004 USD 332,997,283.00
-------------------------------------------------------------------
October 15, 2004 November 15, 2004 USD 311,919,073.00
-------------------------------------------------------------------
November 15, 2004 December 15, 2004 USD 291,282,829.00
-------------------------------------------------------------------
December 15, 2004 January 18, 2005 USD 271,094,029.00
-------------------------------------------------------------------
January 18, 2005 February 15, 2005 USD 251,358,217.00
-------------------------------------------------------------------
February 15, 2005 March 15, 2005 USD 232,080,998.00
-------------------------------------------------------------------
March 15, 2005 April 15, 2005 USD 213,268,044.00
-------------------------------------------------------------------
April 15, 2005 May 16, 2005 USD 194,925,091.00
-------------------------------------------------------------------
May 16, 2005 June 15, 2005 USD 177,057,941.00
-------------------------------------------------------------------
June 15, 2005 July 15, 2005 USD 159,672,464.00
-------------------------------------------------------------------
July 15, 2005 August 15, 2005 USD 142,774,597.00
-------------------------------------------------------------------
August 15, 2005 September 15, 2005 USD 125,537,022.00
-------------------------------------------------------------------
September 15, 2005 October 17, 2005 USD 110,003,182.00
-------------------------------------------------------------------
October 17, 2005 November 15, 2005 USD 94,953,231.00
-------------------------------------------------------------------
November 15, 2005 December 15, 2005 USD 80,393,120.00
-------------------------------------------------------------------
December 15, 2005 January 17, 2006 USD 66,328,867.00
-------------------------------------------------------------------
January 17, 2006 February 15, 2006 USD 52,767,797.00
-------------------------------------------------------------------
February 15, 2006 March 15, 2006 USD 39,714,749.00
-------------------------------------------------------------------
Class B Swap Confirmation
October 12, 2001
To: THE CHASE MANHATTAN BANK
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
From: MMCA Auto Owner Trust 2001-3
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 2001-3 Class B
Notes Interest Rate Swap
--------------------------------------------
CMB Reference: 4317463A/59404043
MMCA Reference: To be advised
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between The Chase
Manhattan Bank ("CMB") and MMCA Auto Owner Trust 2001-3 (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 October 12, 2001, 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: October 3, 2001.
Effective Date: October 12, 2001.
Notional Amount: The Notional Amount initially shall equal
$98,440,000.00 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 CMB 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 on
March 15, 2006, whichever is the earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on November 15, 2001, 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 Following Business Day Convention.
Fixed Rate: 4.7000%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: CMB.
Floating Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on November 15, 2001, 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 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 (2)
New York and London Business 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: plus 0.95%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: 2.53125% (excluding spread).
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 CMB: The Chase Manhattan Bank New York ABA #:
000000000 Account #: 000-0-000000
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company New
York, NY ABA #: 00000000 Account #: To be
advised
Misc.
CMB Operations Contact: Tel: (000) 000-0000/3063
Fax: (000) 000-0000/9262/9263
Calculation Agent: CMB.
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 2001-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
nor as a principal to this
Agreement, but solely as Owner
Trustee
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President, Chase Manhattan Bank
SCHEDULE 1
-------------------------------------------------------------------
Start: End: B Notional
Balance
-------------------------------------------------------------------
October 12, 2001 November 15, 2001 USD 98,440,000.00
-------------------------------------------------------------------
November 15, 2001 December 17, 2001 USD 98,440,000.00
-------------------------------------------------------------------
December 17, 2001 January 15, 2001 USD 98,440,000.00
-------------------------------------------------------------------
January 15, 2002 February 15, 2002 USD 98,440,000.00
-------------------------------------------------------------------
February 15, 2002 March 15, 2002 USD 98,440,000.00
-------------------------------------------------------------------
March 15, 2002 April 15, 2002 USD 98,440,000.00
-------------------------------------------------------------------
April 15, 2002 May 15, 2002 USD 98,440,000.00
-------------------------------------------------------------------
May 15, 2002 June 17, 2002 USD 98,440,000.00
-------------------------------------------------------------------
June 17, 2002 July 15, 2002 USD 96,468,559.00
-------------------------------------------------------------------
July 15, 2002 August 15, 2002 USD 93,861,983.00
-------------------------------------------------------------------
August 15, 2002 September 16, 2002 USD 91,228,845.00
-------------------------------------------------------------------
September 16, 2002 October 15, 2002 USD 88,609,466.00
-------------------------------------------------------------------
October 15, 2002 November 15, 2002 USD 85,944,468.00
-------------------------------------------------------------------
November 15, 2002 December 16, 2002 USD 83,160,141.00
-------------------------------------------------------------------
December 16, 2002 January 15, 2003 USD 90,386,992.00
-------------------------------------------------------------------
January 15, 2003 February 18, 2003 USD 77,646,070.00
-------------------------------------------------------------------
February 18, 2003 March 17, 2003 USD 74,937,781.00
-------------------------------------------------------------------
March 17, 2003 April 15, 2003 USD 72,262,534.00
-------------------------------------------------------------------
April 15, 2003 May 15, 2003 USD 69,620,742.00
-------------------------------------------------------------------
May 15, 2003 June 16, 2003 USD 67,012,825.00
-------------------------------------------------------------------
June 16, 2003 July 15, 2003 USD 64,439,205.00
-------------------------------------------------------------------
July 15, 2003 August 15, 2003 USD 61,902,940.00
-------------------------------------------------------------------
August 15, 2003 September 15, 2003 USD 59,402,393.00
-------------------------------------------------------------------
September 15, 2003 October 15, 2003 USD 56,937,350.00
-------------------------------------------------------------------
October 15, 2003 November 17, 2003 USD 54,508,250.00
-------------------------------------------------------------------
November 17, 2003 December 15, 2003 USD 52,115,542.00
-------------------------------------------------------------------
December 15, 2003 January 15, 2004 USD 49,759,677.00
-------------------------------------------------------------------
January 15, 2004 February 17, 2004 USD 47,441,112.00
-------------------------------------------------------------------
February 17, 2004 March 15, 2004 USD 45,160,310.00
-------------------------------------------------------------------
March 15, 2004 April 15, 2004 USD 42,917,738.00
-------------------------------------------------------------------
April 15, 2004 May 17, 2004 USD 40,713,870.00
-------------------------------------------------------------------
May 17, 2004 June 15, 2004 USD 38,549,184.00
-------------------------------------------------------------------
June 15, 2004 July 15, 2004 USD 36,424.164.00
-------------------------------------------------------------------
July 15, 2004 August 16, 2004 USD 34,339,300.00
-------------------------------------------------------------------
August 16, 2004 September 15, 2004 USD 32,301,153.00
-------------------------------------------------------------------
September 15, 2004 October 15, 2004 USD 30,340,848.00
-------------------------------------------------------------------
October 15, 2004 November 15, 2004 USD 28,420,320.00
-------------------------------------------------------------------
November 15, 2004 December 15, 2004 USD 26,540,061.00
-------------------------------------------------------------------
December 15, 2004 January 18, 2005 USD 24,700,570.00
-------------------------------------------------------------------
January 18, 2005 February 15, 2005 USD 22,902,354.00
-------------------------------------------------------------------
February 15, 2005 March 15, 2005 USD 21,145,921.00
-------------------------------------------------------------------
March 15, 2005 April 15, 2005 USD 19,431,790.00
-------------------------------------------------------------------
April 15, 2005 May 16, 2005 USD 17,760,483.00
-------------------------------------------------------------------
May 16, 2005 June 15, 2005 USD 16,132,528.00
-------------------------------------------------------------------
June 15, 2005 July 15, 2005 USD 14,548,461.00
-------------------------------------------------------------------
July 15, 2005 August 15, 2005 USD 13,008,822.00
-------------------------------------------------------------------
August 15, 2005 September 15, 2005 USD 11,438,231.00
-------------------------------------------------------------------
September 15, 2005 October 17, 2005 USD 10,022,874.00
-------------------------------------------------------------------
October 17, 2005 November 15, 2005 USD 8,651,607.00
-------------------------------------------------------------------
November 15, 2005 December 15, 2005 USD 7,324,971.00
-------------------------------------------------------------------
December 15, 2005 January 17, 2006 USD 6,043,515.00
-------------------------------------------------------------------
January 17, 2006 February 15, 2006 USD 4,807,906.00
-------------------------------------------------------------------
February 15, 2006 March 15, 2006 USD 3,618,586.00
-------------------------------------------------------------------
