Exhibit 99.1
(Multicurrency--Cross Border)
SCHEDULE
to the
Master Agreement
dated as of December 20, 2001
between
Credit Suisse First Boston International, and Capital One Auto Finance Trust 2001-B,
organized under the laws of England organized under the laws of the State of
Delaware
("Counterparty") ("Capital One")
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Counterparty for the purpose
of:--
Section 5(a)(v) (Default Under Specified Transaction) ......... Not applicable.
Section 5(a)(vi) (Cross Default) .............................. None.
Section 5(a)(vii) (Bankruptcy) ................................ None.
Section 5(b)(iv) (Credit Event Upon Merger) ................... None.
and in relation to Capital One for the purpose of:--
Section 5(a)(v) (Default Under Specified Transaction) ......... Not applicable.
Section 5(a)(vi) (Cross Default) .............................. None.
Section 5(a)(vii) (Bankruptcy) ................................ None.
Section 5(b)(iv) (Credit Event Upon Merger) ................... None.
(b) "Specified Transaction" will have the meaning specified in Section 14
of this Agreement.
The "Breach of Agreement" provisions of Section 5(a)(ii), the "Credit
Support Default" provisions of Section 5(a)(iii) (other than an Event
of Default under Section 9.01(b)(i) or (ii) of the Indenture (as
defined below) or an Event of Insolvency under Section 9.01(b)(iv) or
(v) of the Indenture), the "Misrepresentation" provisions of Section
5(a)(iv), and the "Default Under Specified Transactions" provisions of
Section 5(a)(v) will not apply to Capital One or Counterparty.
(c) The "Cross Default" provisions of Section 5(a)(vi) will not apply to
Counterparty and will not apply to Capital One.
The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will not
apply to Counterparty and will not apply to Capital One.
(d) Credit Event Upon Merger. The "Credit Event Upon Merger" provision
(Section 5(b)(iv)) will not apply to Counterparty and will not apply to
Capital One.
(e) The "Automatic Early Termination" provision of Section 6(a) will not
apply to Counterparty or Capital One.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "Termination Currency" means United States Dollars.
(h) Additional Termination Event will apply. Each of the following shall
constitute an Additional Termination Event in connection with any
Transactions to which the Interest Rate Swap Insurance Policy issued on
December 20, 2001 (the "Swap Policy") by MBIA Insurance Corporation
("MBIA"), insuring the obligations of Capital One as principal, for the
benefit of Counterparty as beneficiary, relates ("Insured
Transactions"):
(A) MBIA fails to meet its payment obligations under the
Swap Policy and such failure is continuing with
respect to MBIA under the Swap Policy; or
(B) MBIA fails at any time during the term of this
Agreement to have (a) a claim paying ability rating
of at least A- or higher from Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. ("S&P") or (b) a financial strength
rating of at least A3 or higher from Xxxxx'x
Investors Service, Inc. ("Moody's"); provided,
however, that additionally:
(X) an Event of Default has occurred or is
continuing with respect to Capital One as the
Defaulting Party; or
(Y) a Termination Event has occurred or is
continuing with respect to Capital One.
For the purpose of the foregoing Termination Event,
the "Affected Party" shall be Capital One.
(C) MBIA is dissolved or becomes insolvent (other than
pursuant to Section 5(a)(vii)).
For the purpose of the foregoing Termination Event,
the "Affected Party" shall be Capital One.
(D) The long-term senior unsecured debt rating of
Counterparty from
(a) S&P is withdrawn or suspended, or falls to or
below "A+"; or
(b) Xxxxx'x is withdrawn, or suspended, or falls to
or below "A1"; and
Counterparty has not, within 30 days, executed a
collateral agreement with Capital One, MBIA and a
third-party collateral agent providing for the
collateralization of Counterparty's obligations under
the Agreement as measured by the estimated Settlement
Amount, such amount to be established by Counterparty
monthly and on demand, collateral to be
marked-to-market weekly; provided that the
collateral, collateral levels, collateral agent and
terms of such collateral agreement must all be
reasonably satisfactory to MBIA (a "Collateral
Agreement") and shall in event exceed the S&P
Criteria (as defined below).
For the purpose of the foregoing Termination Event,
the "Affected Party" shall be Counterparty.
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(E) Counterparty's long-term senior unsecured debt rating
from (a) S&P is withdrawn or suspended, or falls to
or below "BBB+"; or (b) from Xxxxx'x is withdrawn or
suspended, or falls to or below "Baa1."
For the purpose of the foregoing Termination Event,
the "Affected Party" shall be Counterparty.
(i) Substitution Event. If Counterparty's S&P short term rating drops below
`A-1,' then Counterparty shall endeavor to find a replacement
counterparty (acceptable to MBIA) promptly. Counterparty shall continue
to perform its obligation until a suitable substitute acceptable to
MBIA is in place. The cost to find a substitute should be borne by
Counterparty. If, after 30 days, it still has not found a substitute,
and until a replacement is in place, Counterparty shall post the
greatest of:
(x) the xxxx-to-market value of the swap,
(y) the amount of the next payment that is due, or
(z) one percent of the outstanding notional
principal
(the "S&P Criteria").
(j) MBIA Provisions. The following provisions shall apply to Insured
Transactions:
(i) Designation of Early Termination Date. Notwithstanding
anything to the contrary in Section 6 of this Agreement, if
any:
(A) Event of Default in respect of any Insured
Transaction under this Agreement occurs, or
(B) Termination Event in respect of any Insured
Transaction under this Agreement occurs (other than
the Additional Termination Event described at Part
1(h)(A), (B), or (C) above),
then, in either case, neither Counterparty nor Capital One
shall designate an Early Termination Date in respect of any
such Insured Transaction unless:
(Y) MBIA has failed to pay any payment due to
Counterparty under the terms and conditions of the
Swap Policy; or
(Z) MBIA has otherwise consented in writing to such
designation.
(ii) Isolation of Insured Transactions in designating an Early
Termination Date. Notwithstanding Section 6 of this Agreement,
any designation of an Early Termination Date in respect of the
Insured Transactions by MBIA or by Counterparty with the
consent of MBIA pursuant to paragraph (i) above shall apply
only to the Insured Transactions and not to any other
Transaction under this Agreement, unless Counterparty shall
designate an Early Termination Date in respect of such other
Transaction. Nothing contained in this paragraph (ii) shall
affect the rights of Counterparty under this Agreement to
designate an Early Termination Date in respect of any
Transaction other than the Insured Transactions, which
designation shall not apply to the Insured Transactions unless
expressly provided in such designation and unless MBIA shall
have designated, or consented to the designation by
Counterparty of, an Early Termination Date in respect of the
Insured Transactions in accordance with paragraph (i) above.
(iii) MBIA-directed termination. If any Event of Default under this
Agreement occurs with respect to Capital One as the Defaulting
Party, then MBIA (so long as it has not failed to pay any
payment
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due to Counterparty under the terms and conditions of the Swap
Policy) shall have the right (but not the obligation) upon
notice to Counterparty to designate an Early Termination Date
with respect to Capital One with the same effect as if such
designation were made by Counterparty. For purposes of the
foregoing sentence, an Event of Default with respect to
Capital One shall be considered to be continuing,
notwithstanding any payment by MBIA under the Swap Policy. The
parties acknowledge that, except as the Swap Policy may be
otherwise endorsed, unless MBIA designates an Early
Termination Date (as opposed to merely consenting to such
designation by one of the parties) payments due from Capital
One because an Early Termination Date has been designated will
not be insured.
(iv) Replacement. Counterparty agrees that if Capital One,
Counterparty, or MBIA exercises its right to designate an
Early Termination Date pursuant to this Part 1(i), then
Counterparty may, or upon the request of MBIA or Capital One
with the consent of MBIA, Counterparty shall, in each case
within 30 days of such downgrade, procure a replacement
Transaction at its own expense (and at no expense to Capital
One) with a swap counterparty acceptable to MBIA on the same
terms as this Agreement mutatis mutandis, or else with such
amendments to the terms of this Agreement as have been
approved by MBIA and will not cause the S&P or Xxxxx'x rating
on the Notes then outstanding to be withdrawn, reduced, or
suspended.
(k) Bankruptcy. Subsection (2) of Section 5(a)(vii) will not apply to
Capital One.
Part 2. Tax Representations.
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, each of Counterparty and Capital One will make the following
representation:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on (i)
the accuracy of any representations made by the other party pursuant to
Section 3(f) of this Agreement, (ii) the satisfaction of the agreement
contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii)
the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, provided that it shall not be a breach
of this representation where reliance is placed on clause (ii) and the
other party does not deliver a form or document under Section 4(a)(iii)
by reason of material prejudice to its legal or commercial position.
(b) Counterparty Payee Tax Representations. For the purpose of Section 3
(f) of this Agreement, Counterparty makes the representation(s)
specified below:
(i) Each payment received or to be received by Counterparty in
connection with this Agreement that is not eligible for the
benefits of the Specified Treaty will be effectively connected
with its conduct of a trade or business in the Specified
Jurisdiction.
Specified Treaty means the Convention Between the United
States of America and the Government of the United Kingdom of
Great Britain and Northern Ireland for the Avoidance of Double
Taxation and the Prevention of Fiscal Evasion with Respect to
Taxes on Income and Capital Gain.
"Specified Jurisdiction" means the United States of America.
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(ii) It is either (a) a `U.S. person' or (b) a `non-U.S. branch of
a foreign person' as those terms are used in section
1.1441-4(a)(3)(ii) of the United States Treasury Regulations
(as contained in Treasury Decision 8734 (October 6, 1997)).
(iii) It is a `foreign person' as that term is used in section
1.6041-4(a)(4) of the United States Treasury Regulations (as
contained in Treasury Decision 8734 (October 6, 1997)).
(c) Capital One Payee Tax Representations. For the purpose of Section
3(f) of this Agreement, Capital One makes the representation(s)
specified below:
(i) It is a common law trust organized and existing under the laws
of the State of Delaware.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:-
(a) Tax forms, documents or certificates to be delivered are:-
Counterparty agrees to complete, accurately and in a manner reasonably
satisfactory to Capital One, execute and deliver to Capital One a
completed United States Internal Revenue Service Form W-8ECI, or any
successor form, (i) upon execution of this Agreement; (ii) promptly
upon reasonable demand by Capital One; (iii) within sixty days prior to
the expiration of any previously submitted Form W-8ECI; and (iv)
promptly upon learning that any Form W-8ECI (or any successor thereto)
previously provided by Counterparty has become incorrect.
(b) Other documents to be delivered are:-
Covered by
Party required to Form/Document/ Date by which to Section 3(d)
deliver document Certificate be delivered Representation
------------------------- -------------------------- -----------------------------------------
Counterparty Annual report of such Upon request. Yes
party thereof containing
audited, consolidated
financial statements
certified by independent
certified public
accountants and prepared
in accordance with
generally accepted
accounting principles in
the country in which such
party is organized.
Capital One Monthly Servicer's Report Each month. Yes
Capital One Monthly Securityholders' Each month. Yes
Report
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Counterparty and Certified copies of all Upon execution and Yes
Capital One corporate authorizations delivery of this
and any other documents Agreement.
with respect to the
execution, delivery and
performance of this
Agreement and any Credit
Support Document.
Counterparty and Certificate of authority Upon execution and Yes
Capital One and specimen of signatures delivery of this Agreement
of individuals executing and thereafter upon
the Agreement and any request of the other
Credit Support Document counterparty.
and Confirmations.
Counterparty An opinion of counsel in Upon execution and No
form and substance delivery of this Agreement
satisfactory to the other and thereafter upon
party with regard to this request of the other
Agreement. counterparty.
Capital One An opinion of counsel in Upon execution and No
form and substance delivery of this Agreement
satisfactory to the other and thereafter upon
party with regard to this request of the other
Agreement and the Swap counterparty.
Policy.
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a) of this
Agreement-
Address for notices or communications to Counterparty (other than by
facsimile):-
Office: London
Address: One Xxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Attention: (1) Co-Heads of Global Trading;
(2) Managing Director - Operations Department;
(3) Managing Director - Legal Department
Telex: 264521
(For all purposes.)
Answerback: CSFBIG
For the purpose of facsimile notices or communications under this
Agreement (other than a notice or communication under Section 5 or 6):-
Facsimile No.: 0207 888 2686
Attention: Managing Director - Legal Department
Telephone number for oral confirmation of receipt of facsimile in
legible form: 0207 888 2028. Designated responsible employee for the
purposes of Section 12(a)(iii): Senior Legal Secretary.
Address for notices or communications to Capital One:-
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Wilmington Trust Company, as Owner Trustee of Capital One Auto Finance
Trust 0000-X
Xxxxxx Xxxxxx North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxx
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:-
Counterparty appoints as its Process Agent: Credit Suisse First Boston
Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(Attention: General
Counsel, Legal and
Compliance
Department)
Capital One appoints as its Process Agent: Not Applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:-
Counterparty is not a Multibranch Party.
Capital One is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Counterparty, unless
otherwise specified in a Confirmation in relation to the relevant
Transaction; provided that, if an Event of Default with respect to
Counterparty is continuing, the Calculation Agent shall be Capital One.
(f) Credit Support Document. Details of any Credit Support Document:-
With respect to Counterparty, the Collateral Agreement (as defined
herein), if any; and with respect to Capital One, the Indenture dated
as of December 20, 2001 between Wilmington Trust Company, not on an
individual basis but solely as Owner Trustee of Capital One Auto
Finance Trust 2001-B, and XX Xxxxxx Chase Bank, as Indenture Trustee
(the "Indenture").
(g) Credit Support Provider. Credit Support Provider means, in relation to
Counterparty, none and, in relation to Capital One, none.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
choice of law doctrine) and each party hereby submits to the
jurisdiction of the courts of the State of New York.
(i) Netting of Payments. No netting. Notwithstanding Section 2(c) of this
Agreement, in no event shall either Party A or Party B be entitled to
net its payment obligations in respect of the Insured Transactions
against the payment obligations of the other party in respect of other
Transactions under this Agreement if such Transactions are not Insured
Transactions, nor may either Party A or Party B net the payment
obligations of the other party under Transactions that are not Insured
Transactions against the payment obligations of such party under
Insured Transactions, it being the intention of the parties that their
payment obligations under Insured Transactions be treated separate and
apart from all other Transactions. Section 6(e) of this Agreement
shall apply to all Insured Transactions with the same effect as if the
Insured Transactions constituted a single master agreement.
Notwithstanding Section 6(e) of this Agreement, the amount payable
under Section 6(e) of this Agreement upon the termination of any
Insured Transaction shall be
7
determined without regard to any Transactions other than the Insured
Transactions, it being the intention of the parties that their payment
obligations under the Insured Transactions be treated separate and apart
from all other Transactions unless otherwise specified in such other
Transaction and agreed to in writing by MBIA.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. MBIA shall not be considered an Affiliate of Capital One.
Part 5. Other Provisions.
(a) ISDA Definitions. The definitions and provisions contained in the 2000 ISDA
Definitions (the "Swap Definitions"), as published by the International
Swaps and Derivatives Association, Inc. ("ISDA"), are incorporated into
this Agreement by reference. For these purposes, all references in the Swap
Definitions to a "Swap Transaction" without regard to any further amendment
to the Swap Definitions subsequent to the date hereof shall be deemed to
apply to each Insured Transaction of such type under this Agreement. In the
event of any inconsistency between the provisions of this Agreement and the
Definitions, this Agreement will prevail.
(b) No Set-off or Counterclaim. In no event shall either Counterparty or
Capital One be entitled to:
(A) set-off its payment obligations in respect of an Insured
Transaction against the payment obligations of the other party
(whether by counterclaim or otherwise) if such obligations are
not Insured Transactions, or
(B) net the payment obligations of the other party that are not with
respect to Insured Transactions against the payment obligations
of such party under Insured Transactions,
it being the intention of the parties that their payment obligations
under Insured Transactions be treated separate and apart from all
other obligations. Notwithstanding Section 6(e) of this Agreement, the
amount payable under Section 6(e) of this Agreement upon the
termination of any Insured Transaction shall be determined without
regard to any obligation other than those under the Insured
Transactions, it being the intention of the parties that their payment
obligations under the Insured Transactions be treated separate and
apart from all other obligations unless otherwise specified in such
other obligation and agreed to in writing by MBIA.
(c) Relationship Between Parties. Each party will be deemed to represent to the
other party on the date on which it enters into a Transaction that (absent
a written agreement between the parties that expressly imposes affirmative
obligations to the contrary for that Transaction):
(i) Non-Reliance. It is acting for its own account, and it has made its
own independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon
its own judgment and upon advice from such 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 investment advice or a recommendation to enter
into that Transaction. No communications (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) Evaluation and Understanding. It is capable of assessing the merits of
and understanding (on its own behalf or through independent
professional advice), and understands and accepts the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
8
(iii) Status of Parties. The other party is not acting as a fiduciary for
or an adviser to it in respect of that Transaction.
(d) Additional Acknowledgments, Agreements and Representations.
(i) Each party acknowledges and agrees that:
(A) this Agreement and each Transaction constitutes a "swap
agreement" within the meaning of Commodity Futures Trading Commission
("CFTC") Regulations Section 35.1(b)(1) and the CFTC's Policy
Statement Concerning Swap Transactions, 54 Fed. Reg. 30694 (July 21,
1989);
(B) neither this Agreement nor any Transaction is one of a fungible
class of agreements that are standardized as to their material
economic terms, within the meaning of CFTC Regulations Section
35.2(b), and the material economic terms of each Transaction are
subject to individual negotiation; and
(C) the creditworthiness of the other party was or will be a
material consideration in entering into or determining the terms of
this Agreement and each Transaction, including pricing, cost or
credit enhancement terms of the Agreement or Transaction, within the
meaning of CFTC Regulations Section 35.2(c).
(ii) Each party represents and warrants to the other party (which
representations will be deemed repeated on each date on which a
Transaction is entered into) that:
(A) it is an "eligible swap participant" within the meaning of CFTC
Regulations Section 35.1(b)(2); and
(B) it has entered into this Agreement and has or will enter into
each Transaction in conjunction with its line of business (including
financial intermediation services) or the financing of its business;
and
(e) Forms. For purposes of Section 4(a)(iii) of this Agreement, the following
shall be added immediately prior to the existing text:
"upon learning that such form or document is required or"
(f) Tax Event Upon Merger. The word "Indemnifiable" is hereby deleted from
Section 5(b)(iii) the second time it appears therein.
(g) Waiver of Jury Trial. Each party hereby irrevocably waives any and all
right to a trial by jury with respect to any legal proceeding arising out
of or relating to this Agreement or any Transaction.
(h) Consent to Recording. Each party consents to the monitoring or recording,
at any time and from time to time, by the other party of any and all
communications between officers or employees of the parties, waives any
further notice of such monitoring or recording, agrees to notify (and, if
required by law, to obtain the consent of) its officers and employees of
such monitoring or recording, and agrees promptly to provide the other
party a copy of such recordings upon request.
(i) Confirmations. Each Confirmation shall be substantially in the form of one
of the Exhibits to the Definitions or in such other form as the parties and
MBIA may agree upon.
(j) Change of Account. Section 2(b) of this Agreement is hereby amended by the
addition of the following after the word "delivery" in the first line
thereof:-
"to another account in the same legal and tax jurisdiction as the original
account"
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(k) Incorporation of Protocol Terms. The parties agree that the definitions and
provisions contained in Annexes 1 to 5 and Section 6 of the EMU Protocol
published by the International Swaps and Derivatives Association, Inc., on
May 6, 1998 are incorporated into and apply to this Agreement. References
in those definitions and provisions to any "ISDA Master Agreement" will be
deemed to be references to this Agreement.
(l) No suspension of payments. Notwithstanding Section 2(a)(iii) of this
Agreement, Counterparty shall not suspend any payments due under an Insured
Transaction under Section 2(a)(iii) unless:
(A) MBIA is in default in respect of any payment obligations under
the Swap Policy; or
(B) MBIA has not provided to Counterparty, in accordance with the
terms of this Agreement, any ministerial notices (including, and
limited to, wire instructions for payments) required by this
Agreement to be provided by Capital One to Counterparty, which
notices Capital One has failed to provide, and Counterparty has
given three (3) Business Days' notice to MBIA of such failure.
(m) Collateral. If the long term senior unsecured debt rating of Counterparty
from:
(a) S&P is withdrawn or suspended, or falls to or below "A+"; or
(b) Xxxxx'x is withdrawn, or suspended, or falls to or below "A1";
Then Counterparty will, within 30 days, execute a Collateral Agreement with
Capital One, MBIA, and a third-party collateral agent, on terms agreed upon
by the parties.
(n) Representations and agreements. Each party agrees that each of its
representations and agreements in this Agreement is expressly made to and
for the benefit of MBIA.
(o) Third-party beneficiary. Counterparty and Capital One hereby each
acknowledge and agree that MBIA shall be an express third-party beneficiary
(and not merely an incidental third-party beneficiary) of this Agreement
and the obligations of such party under any Insured Transaction, and as
such, entitled to enforce the Agreement and the terms of any such Insured
Transaction against such party on its own behalf and otherwise shall be
afforded all remedies available hereunder or otherwise afforded by law
against the parties hereto to redress any damage or loss incurred by MBIA
including, but not limited to, fees (including professional fees), costs
and expenses incurred by MBIA which are related to, or resulting from any
breach by such party of its obligations hereunder.
(p) Policy coverage. Counterparty and Capital One hereby each acknowledge and
agree that MBIA's obligation with respect to Insured Transactions shall be
limited to the terms of the Swap Policy. Notwithstanding Section 2(e) or
any other provision of this Agreement, MBIA shall not have any obligation
to pay interest on any amount payable by Capital One under this Agreement.
(q) Subrogation. Counterparty and Capital One hereby acknowledge that to the
extent of payments made by MBIA to Counterparty under the Swap Policy, MBIA
shall be fully subrogated to the rights of Counterparty against Capital One
under the Insured Transaction to which such payments relate, including, but
not limited to, the right to receive payment from Capital One and the
enforcement of any remedies. Counterparty hereby agrees to assign to MBIA
its right to receive payment from Capital One under any Insured Transaction
to the extent of any payment thereunder by MBIA to Counterparty. Capital
One hereby acknowledges and consents to the assignment by Counterparty to
MBIA of any rights and remedies that Counterparty has under any Insured
Transaction or any other document executed in connection herewith.
(r) Expenses. Capital One agrees to reimburse MBIA immediately and
unconditionally upon demand for all reasonable expenses incurred by MBIA in
connection with the issuance of the Swap Policy and the enforcement by MBIA
of Capital One's obligations under this Agreement and any other documents
10
executed in connection with the execution and delivery of this Agreement,
including, but not limited to, fees (including professional fees), costs
and expenses incurred by MBIA which are related to, or resulting from any
breach by Capital One of its obligations hereunder.
(s) Transfers/Assignments. Notwithstanding Section 7 of the Agreement, no
Insured Transaction may be assigned by either Counterparty or Capital One
without the prior written consent of MBIA. However Counterparty may make
such an assignment to an affiliate of Counterparty without MBIA's prior
written consent, if Counterparty (or the entity currently guaranteeing the
obligations of Counterparty, if any) provides a guaranty of the Swap, as
assigned, reasonably acceptable to MBIA. Any transfer, assignment,
amendment, or waiver is subject to written confirmation from S&P that the
rating on the Notes then outstanding will not be withdrawn, reduced, or
suspended as a result of such transfer, assignment, amendment, or waiver.
(t) Amendments/Waivers. Section 9(b) of the Agreement is hereby amended by (A)
adding the words "or any Credit Support Document" after the word
"Agreement" in the second line thereof and (B) adding the phrase "and MBIA"
following the words "parties" in the third line thereof.
(u) Notices. A copy of each notice or other communication between the parties
with respect to this Agreement must be forwarded to MBIA.
(v) "Reference Market Makers." The definition of "Reference Market-makers" set
forth in Section 14 of the Agreement shall be amended in its entirety to
read as follows:
"Reference Market-makers" means four (4) leading dealers in the
relevant swap 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
dealers having an office in the same city. The rating classification
assigned to any outstanding long-term senior debt securities issued by
such dealers shall be at least (1) "Aa" or higher as determined by
Xxxxx'x Investors Service Inc., (2) "AA" or higher as determined by
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. or (3) an equivalent investment grade rating
determined by a nationally-recognized rating service acceptable to
both parties, provided, however, that, in any case, if Market
Quotations cannot be determined by four (4) such dealers, the party
making the determination of the Market Quotation may designate, with
the consent of the other party and MBIA, one (1) or more leading
dealers whose long-term senior debt bears a lower investment grade
rating.
(w) Non-Petition. Counterparty agrees that, prior to the date that is one year
and one day after the payment in full of all amounts payable with respect
to the Notes, it will not institute against the Owner Trustee or Capital
One, or join any other Person in instituting against the Owner Trustee or
Capital One, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under the laws of the United
States or any state of the United States. This Section 5(w) shall survive
the termination of the Indenture.
(x) Limitation on Liability. Notwithstanding anything to the contrary contained
in the Indenture, the obligations of the Owner Trustee on behalf of the
Trust and the Seller (as defined in the Indenture) under the Indenture are
solely the corporate obligations of the Owner Trustee on behalf of the
Trust or the Seller, as applicable, and shall be payable by the Owner
Trustee on behalf of the Trust or the Seller, as applicable, solely (a)
from funds available pursuant to, and in accordance with the payment
priorities set forth in Section 5.05 of the Indenture or (b) to the extent
that it receives additional funds designated for such purposes or to the
extent that it has additional funds available (other than funds described
in the preceding clause (a)) that would be in excess of amounts that would
be necessary to pay the debt and other obligations of the Owner Trustee on
behalf of the Trust or the Seller, as applicable, incurred in accordance
with its limited liability company agreement or other organizational
documents and all
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financing documents to which it is a party as they come due. In addition,
no amount owing by the Owner Trustee on behalf of the Trust or the Seller,
as applicable, under the Indenture in excess of the liabilities that it is
required to pay in accordance with the preceding sentence shall constitute
a "claim" (as defined in Section 101(5) of the Bankruptcy Code) against it.
No recourse shall be had for the payment of any amount owing hereunder or
any other obligation of, or claim against, the Owner Trustee on behalf of
the Trust or the Seller, as applicable, arising out of or based upon the
Indenture against any member, partner, employee, officer, agent, director
or authorized person of the Owner Trustee on behalf of the Trust or the
Seller; provided, however, that the foregoing shall not relieve any such
person, or entity of any liability they might otherwise have as a result of
fraudulent actions of omissions taken by them nor shall the foregoing
relieve any person of any liability expressly undertaken by such person
under the Transaction Documents (as defined in the Indenture).
(y) Limitation of Liability. It is expressly understood and agreed by and
between the parties hereto (i) that the Indenture is executed and delivered
by Wilmington Trust Company, not in its individual capacity but solely as
Owner Trustee under the Trust Agreement (as defined in the Indenture) in
the exercise of the power and authority conferred and vested in it as such
Owner Trustee (ii) each of the representations, undertakings and agreements
made herein by the Owner Trustee are not personal representations,
undertakings and agreements of Wilmington Trust Company, but are binding
only on the trust estate created pursuant to the Trust Agreement, (iii)
nothing contained herein shall be construed as creating any liability on
Wilmington Trust Company, individually or personally, to perform any
covenant of the Owner Trustee either expressed or implied contained herein,
all such liability, if any, being expressly waived by the parties hereto
and by any person claiming by, through or under any such party, and (iv)
under no circumstances shall Wilmington Trust Company be personally liable
for the payment of any indebtedness or expense of the Owner Trustee or be
liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Owner Trustee under this
Indenture.
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Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely in its
CREDIT SUISSE FIRST BOSTON capacity as Owner Trustee for CAPITAL
INTERNATIONAL ONE AUTO FINANCE TRUST 2001-B
By: /s/ Xxxxx Xxx By: ___________________________________
---------------------------- Name:
Name: Xxxxx Xxx Title:
Title: Authorized Signatory
By: /s/ Xxxxx XxXxxxx
----------------------------
Name: Xxxxx XxXxxxx
Title: Authorized Signatory
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