EXHIBIT 99.4
(MULTICURRENCY - CROSS BORDER)
(ISDA(R) LOGO)
INTERNATIONAL SWAP DEALERS ASSOCIATION, INC.
MASTER AGREEMENT
dated as of June 20, 2007
SWIFT MASTER AUTO RECEIVABLES TRUST and XXXXXX BROTHERS
SPECIAL FINANCING INC.
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 purpose 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.
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(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,
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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 organised and validly existing under the laws of the
jurisdiction of its organisation 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 in
equity 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.
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(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:-
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(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 (1)
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 (1) 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
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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
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Tax (except in respect of interest under Section 2(e), 6(d)(ii) 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 any 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).
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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.
8
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an Event
of Default:-
(1) First Method and Market Quotation. If the First Method and Market
Quotation apply, the Defaulting Party will pay to the Non-defaulting
Party the excess, if a positive number, of (A) the sum of the
Settlement Amount (determined by the Non-defaulting Party) in respect
of the Terminated Transactions and the Termination Currency Equivalent
of the Unpaid Amounts owing to the Non-defaulting Party over (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the sum
of the Settlement Amount (determined by the Non-defaulting Party) in
respect of the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the Non-defaulting Party
less (B) the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party. If that amount is a positive number,
the Defaulting Party will pay it to the Non-defaulting Party; if it is
a negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute value
of that amount to the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:-
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4). if Loss applies,
except that, in either case, references to the Defaulting Party and to
the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the Transactions
are being terminated, Loss shall be calculated in respect of all
Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:-
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions, and
an amount will be payable equal to (I) the sum of (a) one-half of
the difference between the Settlement Amount of the party with
the higher Settlement Amount ("X") and the Settlement Amount of
the party with the lower Settlement Amount ("Y") and (b) the
Termination Currency Equivalent of the Unpaid Amounts owing to X
less (II) the Termination Currency Equivalent of the Unpaid
Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the Transactions
are being terminated, in respect of all Terminated Transactions)
and an amount will be payable equal to one-half of the difference
between the Loss of the party with the higher Loss ("X") and the
Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it
is a negative number, X will pay the absolute value of that amount to
Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) PRE-ESTIMATE. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of
9
bargain and the loss of protection against future risks and except as
otherwise provided in this Agreement neither party will be entitled to
recover any additional damages as a consequence of such losses.
7. TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. CONTRACTUAL CURRENCY
(a) PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement will
be 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 be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. MISCELLANEOUS
10
(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 be 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 organisation 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.
11
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 answerback 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
12
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 in Section 5(b).
"AFFECTED TRANSACTIONS" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"AFFILIATE" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"APPLICABLE RATE" means:-
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"CHANGE IN TAX LAW" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"CONSENT" includes a consent, approval, action, authorisation, 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 organised, present or engaged in a trade or business in
such jurisdiction, or having or having bad a permanent establishment or fixed
place of business in such jurisdiction, but excluding a
13
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 centre, 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 so 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 be 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.
14
"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, organised, 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:-
(a) 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
(b) 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, basis 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).
15
"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 a.m. (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.
16
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.
SWIFT MASTER AUTO RECEIVABLES TRUST XXXXXX BROTHERS SPECIAL FINANCING INC.
By: HSBC BANK USA, National
Association, not in its
individual capacity but solely as
Owner Trustee
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President Title: Authorized Signatory
Date: June 20, 2007 Date: June 20, 2007
SCHEDULE
TO THE
ISDA MASTER AGREEMENT (Multicurrency-Cross Border)
(this "AGREEMENT")
dated as of June 20, 2007
between
SWIFT MASTER AUTO RECEIVABLES TRUST
(the "TRUST")
and
XXXXXX BROTHERS SPECIAL FINANCING INC.
(the "COUNTERPARTY")
PART 1. TERMINATION PROVISIONS
(a) "Specified Entity" means in relation to the Counterparty for the
purpose of:
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b)(iv), none
and in relation to the Trust for the purpose of:
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b)(iv), none
(b) All references to "Potential Events of Default" in this Agreement
shall be deleted.
(c) Events of Default.
(i) The statement below that an Event of Default will apply to a
specific party means that upon the occurrence of such an Event of Default with
respect to such party, the other party shall have the rights of a Non-defaulting
Party under Section 6 of this Agreement; conversely, the statement below that
such event will not apply to a specific party means that the other party shall
not have such rights.
(A) The "FAILURE TO PAY OR DELIVER" provisions of Section 5(a)(i)
will apply to the Counterparty and will apply to the Trust.
(B) The "BREACH OF AGREEMENT" provisions of Section 5(a)(ii) will
apply to the Counterparty and will not apply to the Trust.
(C) The "CREDIT SUPPORT DEFAULT" provisions of Section 5(a)(iii)
will apply to the Counterparty and will not apply to the Trust except that
Section 5(a)(iii)(1) will apply to the Trust solely in respect of the
Trust's obligations under Paragraph 3(b) of the Credit Support Annex;
provided, however, that notwithstanding anything to the contrary in Section
5(a)(iii)(1), any failure by the Counterparty to comply with or perform any
obligation to be complied with or performed by the Counterparty under the
Credit Support Annex shall not constitute an Event of Default under Section
5(a)(iii) unless a "Credit Downgrade" (as described in the Confirmations)
has occurred and been continuing for 30 or more days.
(D) The "MISREPRESENTATION" provisions of Section 5(a)(iv) will
apply to the Counterparty and will not apply to the Trust.
(E) The "DEFAULT UNDER SPECIFIED TRANSACTION" provisions of
Section 5(a)(v) will not apply to the Counterparty and will not apply to
the Trust.
(F) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply
to the Counterparty and will not apply to the Trust. For purposes of
Section 5(a)(vi), solely with respect to the Counterparty:
Section 5(a)(vi) is hereby amended by adding the following words
at the end thereof:
"provided, however, that, notwithstanding the foregoing, an Event
of Default shall not occur under either (1) or (2) above if (A)
(I) the default, or other similar event or condition referred to
in (1) or the failure to pay referred to in (2) is a failure to
pay or deliver caused by an error or omission of an
administrative or operational nature, and (II) funds or the asset
to be delivered were available to such party to enable it to make
the relevant payment or delivery when due and (III) such payment
or delivery is made within three (3) Local Business Days
following receipt of written notice from an interested party of
such failure to pay, or (B) such party was precluded from paying,
or was unable to pay, using reasonable means, through the office
of the party through which it was acting for purposes of the
relevant Specified Indebtedness, by reason of force majeure, act
of State, illegality or impossibility."
"Specified Indebtedness" will have the meaning specified in
Section 14, except that such term shall not include obligations
in respect of deposits received in the ordinary course of the
Counterparty's banking business.
"Threshold Amount" means with respect to the Counterparty an
amount equal to three percent (3%) of the Shareholders' Equity of
the Counterparty or, if applicable, Xxxxxx Brothers Holdings Inc.
("LBHI") or, if applicable, another Eligible Guarantor.
2
"Shareholders' Equity" means with respect to an entity, at any
time, the sum (as shown in the most recent annual audited
financial statements of such entity) of (i) its capital stock
(including preferred stock) outstanding, taken at par value, (ii)
its capital surplus and (iii) its retained earnings, minus (iv)
treasury stock, each to be determined in accordance with
generally accepted accounting principles in the country in which
the Counterparty is organized.
(G) The "BANKRUPTCY" provisions of Section 5(a)(vii) will apply
to the Counterparty and will apply to the Trust except that the provisions
of Section 5(a)(vii)(2), (4), (6) (to the extent that such provisions refer
to any appointment contemplated or effected by the Basic Documents or any
appointment to which the Trust has not become subject), (7) and (9) will
not apply to the Trust; provided that, with respect to the Trust only,
Section 5(a)(vii)(8) is hereby amended by deleting the words "to (7)
(inclusive)" and inserting in lieu thereof ", (3), (5) and (6) as amended".
(H) The "MERGER WITHOUT ASSUMPTION" provisions of Section
5(a)(viii) will apply to the Counterparty and will apply to the Trust.
(ii) It shall be an additional Event of Default under Section 5(a),
and the Trust shall be deemed to be the Defaulting Party with respect thereto,
if (x) (i) there occurs an Indenture "Event of Default" under Section 6.02(a),
(b), (c), or (d) of the Series 0000-0 Xxxxxxxxx Supplement and (ii) after such
Indenture "Event of Default," remedies are commenced with respect to the
Collateral under Section 5.4(a)(iv) of the Indenture or any other sale or
liquidation of the Collateral occurs under Article V of the Indenture or (y)
there occurs an Indenture "Event of Default" under Section 6.02(e) or (f) of the
Series 0000-0 Xxxxxxxxx Supplement.
(iii) It shall be an additional Event of Default under Section 5(a),
and the Trust shall be deemed to be the Defaulting Party with respect thereto,
if any Trust Document is amended, modified or supplemented, with the consent of
the holders of not less than a majority of the Outstanding Amount of the Notes
and, if any Person other than the Seller or an Affiliate of the Seller holds any
Certificates, the holders of not less than a majority of the Voting Interests,
in a manner that materially and adversely affects any interest of the
Counterparty without the prior written consent of the Counterparty. The
procedures for amending the Trust Documents are set forth in Section 10.1 of the
Trust Sale and Servicing Agreement, Article IX of the Indenture, Section 7.01 of
the Pooling and Servicing Agreement, Section 13 of the Administration Agreement,
Article VIII of the Trust Agreement and Section 7 of the Custodian Agreement.
(d) Termination Events. The statement below that a Termination Event will
apply to a specific party means that upon the occurrence of such a Termination
Event, if such specific party is the Affected Party with respect to a Tax Event,
the Burdened Party with respect to a Tax Event Upon Merger (except as noted
below) or the non-Affected Party with respect to a Credit Event Upon Merger, as
the case may be, such specific party shall have the right to designate an Early
Termination Date in accordance with Section 6 of this Agreement; conversely, the
statement below that such an event will not apply to a specific party means that
such party shall not have such right; provided, however, with respect to
"Illegality" the statement that such event will apply to a specific party means
that upon the occurrence of such a Termination Event with
3
respect to such party, either party shall have the right to designate an Early
Termination Date in accordance with Section 6 of this Agreement.
(i) The "ILLEGALITY" provisions of Section 5(b)(i) will apply to the
Counterparty and will apply to the Trust.
(ii) The "TAX EVENT" provisions of Section 5(b)(ii) will apply to the
Counterparty except that, for purposes of the application of Section 5(b)(ii) to
the Counterparty, Section 5(b)(ii) is hereby amended by deleting the words "(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)", and the "Tax Event" provisions of Section 5(b)(ii)
will apply to the Trust.
(iii) The "TAX EVENT UPON MERGER" provisions of Section 5(b)(iii) will
apply to the Counterparty and will apply to the Trust, provided that the
Counterparty shall not be entitled to designate an Early Termination Date by
reason of a Tax Event Upon Merger in respect of which it is the Affected Party.
(iv) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv)
will not apply to the Counterparty and will not apply to the Trust.
(e) The "Automatic Early Termination" provision of Section 6(a) will not
apply to the Counterparty and will not apply to the Trust.
(f) Early Termination.
(i) In the event that the Counterparty fails to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e) required
to be made by the Counterparty, the Trust shall immediately notify GMAC LLC
("GMAC") of such failure to pay or deliver.
(ii) Notwithstanding any other provision to the contrary in this
Agreement, upon (A) the occurrence of a Designated Event (as defined in the
Triparty Contingent Assignment Agreement among the Trust, the Counterparty and
GMAC dated as of the date hereof (the "TRIPARTY AGREEMENT"), GMAC shall accede
to rights and obligations equivalent to those set out herein in accordance with
the terms of the Fallback Swap Agreement (as defined in the Triparty Agreement).
If such a Designated Event has occurred, then upon (A) the effectiveness of the
Fallback Swap Agreement (as defined in the Triparty Agreement) and (B) the
payment by GMAC in a timely fashion of all Delinquent Payments (as defined in
the Triparty Agreement), if any, (x) the Event of Default or Termination Event,
if any, constituting such Designated Event shall be deemed to be cured on and as
of the date of assignment and (y) no Early Termination Date may be designated as
a result of such Designated Event. As of the Assignment Date (as defined in the
Triparty Agreement) the Counterparty shall have no further liability hereunder
(including in respect of rights, liabilities and duties accrued prior to the
Assignment Date). Furthermore, any and all collateral posted by the Counterparty
shall be returned to it within three Business Days of the Assignment Date and
the Credit Support
4
Documents of the Counterparty and any other form of collateral arrangement
(including letters of credit, surety bond or other guarantee) provided by or on
behalf of the Counterparty shall terminate as of the Assignment Date.
(iii) Section 6(b) is hereby amended by deleting the heading to such
section and replacing it with the following words: "Early Termination Following
Termination Event."
(iv) Section 6(b)(ii) is hereby deleted and the following shall be
inserted in its place:
"(1) If an Illegality, a Tax Event or a Tax Event Upon Merger
occurs, if the Counterparty is the Affected Party it will, and if
the Trust is the Affected Party it may request the Counterparty
to (and the Counterparty upon notice thereof will), use its best
efforts (provided that using its best efforts will not require
the Counterparty to incur any loss, excluding immaterial,
incidental expenses) to transfer prior to the 20th day following
the occurrence of such event (the "TRANSFER CUT-OFF DATE"), all
of its rights and obligations under this Agreement in respect of
Affected Transactions to another of its offices or Affiliates or
third party so that such Termination Event ceases to exist.
If the Counterparty is not able to make such a transfer it will
give notice to the Trust to that effect prior to the Transfer
Cut-Off Date.
Any such transfer under this Section 6(b)(ii) will be subject to
and conditional upon the prior written consent of the Trust,
which consent will not be withheld if the Trust's policies in
effect at such time would permit it to enter into transactions
with the transferee on the terms proposed and may not be refused
if it is pursuant to the Triparty Agreement.
(2) No transfer or substitution pursuant to this Section 6(b)(ii)
shall occur unless (x) with respect to a Tax Event Upon Merger,
the Rating Agency Condition has been satisfied and (y) with
respect to an Illegality and a Tax Event, the position of the
Trust would otherwise not materially be prejudiced under this
Agreement or any Confirmation (it being understood that it shall
be the responsibility of the Trust to verify such matters prior
to the occurrence of such transfer or substitution)."
(v) Section 6(b)(iii) shall hereby be amended by replacing the words
"within 30 days" with the words "by the Transfer Cut-Off Date (as defined
above)."
5
(vi) Section 6(b)(iv) is hereby deleted and the following shall be
inserted in its place:
"Early Termination.
If a Termination Event has occurred and a transfer under Section
6(b)(ii) (other than a transfer with respect to a Tax Event Upon
Merger) or an agreement under Section 6(b)(iii), as the case may
be, has not been effected with respect to all Affected
Transactions by the Transfer Cut-Off Date, an Early Termination
Date in respect of all outstanding Swap Transactions will occur
immediately."
(g) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply, provided, however, that, in the event
that the Counterparty is (x) the Affected Party in respect of an Additional
Termination Event or a Tax Event Upon Merger or (y) the Defaulting Party in
respect of any Event of Default, and GMAC is unable to accede to the rights and
obligations of the Counterparty pursuant to the terms of the Triparty Agreement,
then the following provisions will apply:
(A) The definition of Market Quotation in Section 14 shall be
deleted in its entirety and replaced with the following:
"MARKET QUOTATION" means, with respect to one or more
Terminated Transactions, a Firm Offer which is (1) made by a
Reference Market-maker that is a Substitute Swap Provider,
(2) for an amount that would be paid to the Trust (expressed
as a negative number) or by the Trust (expressed as a
positive number) in consideration of an agreement between
the Trust and such Reference Market-maker to enter into a
Replacement Transaction, and (3) made on the basis that
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.
(B) The definition of Settlement Amount shall be deleted in its
entirety and replaced with the following:
"SETTLEMENT AMOUNT" means, with respect to any Early
Termination Date, an amount (as determined by the Trust)
equal to:
(a) If a Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions is
6
accepted by the Trust so as to become legally binding
on or before the day falling ten Local Business Days
after the day on which the Early Termination Date is
designated, or such later day as the Trust may specify
in writing to the Counterparty, but in either case no
later than one Local Business Day prior to the Early
Termination Date (such day, the "Latest Settlement
Amount Determination Day"), the Termination Currency
Equivalent of the amount (whether positive or negative)
of such Market Quotation;
(b) If, on the Latest Settlement Amount Determination Day,
no Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions has
been accepted by the Trust so as to become legally
binding and one or more Market Quotations from Approved
Replacements have been made and remain capable of
becoming legally binding upon acceptance, the
Settlement Amount shall equal the Termination Currency
Equivalent of the amount (whether positive or negative)
of the lowest of such Market Quotations (for the
avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of such
Market Quotations expressed as a positive number or, if
any of such Market Quotations is expressed as a
negative number, the Market Quotation expressed as a
negative number with the largest absolute value); or
(c) If, on the Latest Settlement Amount Determination Day,
no Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions is
accepted by the Trust so as to become legally binding
and no Market Quotation from an Approved Replacement
remains capable of becoming legally binding upon
acceptance, the Settlement Amount shall equal the
Trust's Loss (whether positive or negative and without
reference to any Unpaid Amounts) for the relevant
Terminated Transaction or group of Terminated
Transactions.
(C) If the Trust requests the Counterparty in writing to obtain
Market Quotations, the Counterparty shall use its reasonable efforts to do
so before the Latest Settlement Amount Determination Day.
(D) If the Settlement Amount is a negative number, Section
6(e)(i)(3) shall be deleted in its entirety and replaced with the
following:
"(3) Second Method and Market Quotation. If the Second
Method and Market Quotation apply, (I) the Trust shall pay
to the Counterparty an amount equal to the absolute value of
the
7
Settlement Amount in respect of the Terminated Transactions,
(II) the Trust shall pay to the Counterparty the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Counterparty and (III) the Counterparty shall pay to the
Trust the Termination Currency Equivalent of the Unpaid
Amounts owing to the Trust; provided, however, that (x) the
amounts payable under the immediately preceding clauses (II)
and (III) shall be subject to netting in accordance with
Section 2(c) of this Agreement and (y) notwithstanding any
other provision of this Agreement, any amount payable by the
Counterparty under the immediately preceding clause (III)
shall not be netted-off against any amount payable by the
Trust under the immediately preceding clause (I)."
(E) At any time on or before the Latest Settlement Amount
Determination Day at which two or more Market Quotations from Approved
Replacements remain capable of becoming legally binding upon acceptance,
the Trust shall be entitled to accept only the lowest of such Market
Quotations (for the avoidance of doubt, the lowest of such Market Quotation
shall be the lowest Market Quotation of such Market Quotations expressed as
a positive number or, if any of such Market Quotation is expressed as a
negative number, the Market Quotation expressed as a negative number with
the largest absolute value).
(F) If an amount calculated as being due in respect of an Early
Termination Date under Section 6(e) of this Agreement is an amount to be
paid by the Trust to the Counterparty then, notwithstanding the provisions
of Section 6(d)(ii) of this Agreement, such amount will be payable on the
first Distribution Date following the date on which the payment would have
been payable as determined in accordance with Section 6(d)(ii); provided
that if the date on which the payment would have been payable as determined
in accordance with Section 6(d)(ii) is a Distribution Date, then the
payment will be payable on the date determined in accordance with Section
6(d)(ii).
(ii) The Second Method will apply.
(h) "TERMINATION CURRENCY" means United States Dollars.
(i) Timing of Payments by the Trust upon Early Termination. Notwithstanding
anything to the contrary in Section 6(d)(ii), to the extent that all or a
portion (in either case, the "UNFUNDED AMOUNT") of any amount that is calculated
as being due in respect of any Early Termination Date under Section 6(e) from
the Trust to the Counterparty will be paid by the Trust from amounts other than
any upfront payment paid to the Trust by a Substitute Swap Provider that has
entered a Replacement Transaction with the Trust, then such Unfunded Amount
shall be due on the next subsequent Distribution Date following the date on
which the payment would have been payable as determined in accordance with
Section 6(d)(ii), and on any subsequent Distribution Dates until paid in full
(or if such Early Termination Date is the final Distribution Date, on such final
Distribution Date); provided, however, that if the date on which the payment
would have been payable as determined in accordance with Section 6(d)(ii) is a
Distribution Date, such payment will be payable on such Distribution Date.
8
PART 2. TAX REPRESENTATIONS
(a) Tax Representations.
(i) Payer Tax Representations. For the purpose of Section 3(e), each
of the Counterparty and the Trust makes the following representation:
It is not required by any applicable law, as modified by the
practice 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)) 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
representation made by the other party pursuant to Section 3(f);
(ii) the satisfaction of the agreement of the other party
contained in Section 4(a)(i) or 4(a)(iii) and the accuracy and
effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) and (iii) the
satisfaction of the agreement of the other party contained in
Section 4(d), 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.
(ii) Payee Tax Representations.
(A) TRUST REPRESENTATION. For the purpose of Section 3(f) of this
Agreement, the Trust makes the following representations:
It is a statutory trust organized or formed under the laws
of the State of Delaware.
It is (A) a "United States person" as defined in Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended
(the "CODE"), or (B) wholly-owned by a "United States
person" and disregarded as an entity separate from its owner
for U.S. federal tax purposes.
(B) COUNTERPARTY REPRESENTATION. For the purpose of Section 3(f),
the Counterparty makes the following representations:
It is a corporation duly organized and validly existing
under the laws of the State of Delaware.
9
(b) Tax Provisions.
(i) GROSS UP. Section 2(d)(i)(4) shall not apply to the Trust as X,
and Section 2(d)(ii) shall not apply to the Trust as Y, in each case such that
the Trust shall not be required to pay any additional amounts referred to
therein.
(ii) INDEMNIFIABLE TAX. The definition of "Indemnifiable Tax" in
Section 14 is deleted in its entirety and replaced with the following:
"INDEMNIFIABLE TAX" means, in relation to payments by the
Counterparty, any Tax and, in relation to payments by the Trust,
no Tax.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii), each party agrees to deliver the
following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
PARTY REQUIRED TO DELIVER DATE BY WHICH TO BE
DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED
------------------------- ------------------------- -------------------
Counterparty and Trust IRS Form W-9 (or any Promptly upon execution
successor form). of this Agreement, and
promptly upon learning
that any form previously
provided by the party
has become obsolete or
incorrect.
(b) Other documents to be delivered are:
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY SECTION
DOCUMENT CERTIFICATE DELIVERED 3(D) REPRESENTATION
------------------------- -------------- ------------------- -------------------
Counterparty and Trust Certificate or other At or promptly following Yes
documents evidencing the the execution of this
authority of the party to Agreement, and, if a
enter into this Agreement Confirmation so requires
and the persons acting on it, on or before the
behalf of such party. date set forth therein.
10
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY SECTION
DOCUMENT CERTIFICATE DELIVERED 3(D) REPRESENTATION
------------------------- -------------- ------------------- -------------------
Counterparty and Trust A legal opinion, in the At or promptly following No
form reasonably the execution of this
acceptable to the other Agreement, but in no
party. event shall be later
than 10 days after the
date hereof.
Trust The Trust Sale and At or promptly following Yes
Servicing Agreement and the execution of this
all other documents to be Agreement.
executed by the Trust as
contemplated thereby.
PART 4. MISCELLANEOUS
(a) Addresses for Notices. For purpose of Section 12(a):
(i) Address for notices or communications to the Trust:
Address: c/o HSBC Bank USA, National Association
as Owner Trustee
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Address: GMAC LLC
000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Director - Securitization and Cash Management
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
For all purposes.
11
(ii) Address for notices or communications to the Counterparty:
Address: Xxxxxx Brothers Special Financing Inc.
c/x Xxxxxx Brothers Inc.
Corporate Advisory Division
Transaction Management Group
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Documentation Manager
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
For all purposes.
(b) Notices. Section 12(a)(iv) of this Agreement shall be deleted in its
entirety and replaced with the following:
"(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, provided, however, it is
understood that, if feasible, a party shall first attempt to send
notice by overnight couriers before attempting to send notice by
certified or registered mail; or,"
(c) Process Agent. For the purpose of Section 13(c) of this Agreement:
The Counterparty appoints as its Process Agent: Not applicable.
The Trust appoints as its Process Agent: Not applicable.
(d) Offices. The provisions of Section 10(a) will apply to this Agreement.
(e) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
The Counterparty is not a Multibranch Party.
The Trust is not a Multibranch Party.
(f) "CALCULATION AGENT" means, unless otherwise designated by a
Confirmation for a particular Swap Transaction, GMAC. All calculations by the
Calculation Agent shall be made in good faith and through the exercise of the
Calculation Agent's commercially reasonable judgment. All such calculations
shall be final and binding upon the Counterparty and the Trust absent manifest
error. Upon the request of the Counterparty, the Trust shall provide the
Counterparty with such information as is reasonably necessary to enable the
Counterparty to confirm the accuracy of such calculations.
12
(g) Credit Support Provider. Details of any Credit Support Provider:
The Counterparty: LBHI so long as any subsidiary of LBHI is the
Counterparty or any other guarantor, if applicable, under an Eligible
Guarantee.
The Trust: Not applicable.
(h) Credit Support Document. Details of any Credit Support Document:
The Counterparty: (i) The guaranty of LBHI or any Eligible Guarantee
and (ii) the Credit Support Annex entered into between the
Counterparty and the Trust (the "CREDIT SUPPORT ANNEX"), which
supplements, forms part of, and is subject to this Agreement.
The Trust: Not applicable.
(i) GOVERNING LAW; JURISDICTION. THIS AGREEMENT AND EACH CONFIRMATION SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OR OF
ANY OTHER JURISDICTION OTHER THAN SECTION 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(j) Waiver of Jury Trial. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect
of any Proceedings relating to this Agreement or any Transaction.
(k) Netting of Payments. Section 2(c)(ii) will apply to any amounts payable
with respect to Transactions hereunder from the date of this Agreement.
(l) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement, provided, however, that the Trust shall be deemed to have no
Affiliates for purposes of this Agreement, and provided, further that with
respect to the Counterparty, such definition shall be understood to exclude
Xxxxxx Brothers Derivatives Products, Inc. and Xxxxxx Brothers Financial
Products Inc.
PART 5. OTHER PROVISIONS
(a) ISDA Definitions. Except as otherwise defined in this Schedule or a
Confirmation, this Agreement and each Swap Transaction are subject to the 2000
ISDA Definitions (as published by the International Swaps and Derivatives
Association, Inc., the "DEFINITIONS"), and will be governed in all relevant
respects by the provisions set forth in the Definitions, without regard to any
amendments to the Definitions subsequent to the date hereof. The provisions of
the Definitions are incorporated by reference in, and shall be deemed a part of,
this Agreement, except that (i) references in the Definitions to a "Swap
Transaction" shall be
13
deemed references to a "Transaction" for purposes of this Agreement, and (ii)
references to a "Transaction" in this Agreement shall be deemed references to a
"Swap Transaction" for purposes of the Definitions. In the event of any
inconsistency between the provisions of this Agreement and the Definitions, this
Agreement will prevail. In the event of any inconsistency between the provisions
of any Confirmation and this Agreement, such Confirmation will prevail for the
purpose of the relevant Transaction.
(b) Other Swaps. The Trust agrees that it has not and will not enter into
any other swap transactions after the date hereof which provide for payments
upon termination that are senior to or pari passu with any payment due under any
Confirmation.
(c) Single Agreement. Section 1(c) is hereby amended by the adding the
words "including, for the avoidance of doubt, the Credit Support Annex" after
the words "Master Agreement".
(d) Local Business Day. The definition of Local Business Day in Section 14
is hereby amended by the addition of the words "or any Credit Support Document"
after "Section 2(a)(i)" and the addition of the words "or Credit Support
Document" after "Confirmation".
(e) Transfer.
(i) Section 7 is hereby amended by adding the following provision:
"provided however, that, the Counterparty may assign its rights and obligations
under this Agreement, in whole but not in part, (1) to any Affiliate of LBHI
effective upon delivery to the Trust of the guarantee by LBHI, in favor of the
Trust, of the obligations of such Affiliate, such guarantee to be identical to
the guarantee then in effect of the obligations of the transferor (except for
the name, address and the jurisdiction of the guarantor) or that otherwise
satisfies the Rating Agency Condition, or (2) to any entity with the same or
higher long-term senior unsecured debt rating (as determined by S&P or Xxxxx'x)
as LBHI at the time of such transfer, in each case provided that the transferee
satisfies the definition of Substitute Swap Provider. In the event of such a
transfer, this Agreement shall be replaced with an agreement having identical
terms except that the Counterparty shall be replaced as a counterparty or with
an agreement that otherwise satisfies the Rating Agency Condition.
Notwithstanding the foregoing, any assignment hereunder shall not be permitted
if, as a result thereof, a payment becomes subject to any deduction or
withholding for or on account of any Tax which would not have arisen had such
assignment not been effected or such transfer would cause an Event of Default or
Termination Event to occur. The Counterparty will provide prior written notice
to the Trust and each Rating Agency of any such assignment. If an entity has
made a Firm Offer (which remains capable of becoming legally binding upon
acceptance) to be the transferee of a transfer, the Trust shall, at the
Counterparty's written request and at the Counterparty's expense, take any
reasonable steps required to be taken by it to effect such transfer."
(ii) All collateral posted by the Counterparty pursuant to the Credit
Support Annex shall be returned to the Counterparty within three (3) Business
Days upon the assumption by a Substitute Swap Provider of all of the
Counterparty's obligations hereunder.
14
(f) Additional Representations. Section 3 is hereby amended by adding at
the end thereof the following Subparagraph:
(g) ELIGIBLE CONTRACT PARTICIPANT. It is an "eligible contract
participant" as that term is defined in Section 1a(12) of the
Commodity Exchange Act, as amended by the Commodity Futures
Modernization Act of 2000, and it has entered into this Agreement and
it is entering into the Transaction in connection with its line of
business (including financial intermediation services) or the
financing of its business; and the material terms of this Agreement
and the Transaction have been individually tailored and negotiated.
(g) Amendments. Section 9(b) of this Agreement is hereby amended by adding
the following:
; provided, however, that no such amendments, modifications or waivers
shall be effective until such time as the Trust has obtained the
written affirmation of each of Xxxxx'x and S&P, who are then rating
any securities issued by the Trust that such amendments, modifications
or waivers shall not adversely affect the then current ratings of the
Notes.
(h) Confirmations. Each Confirmation supplements, forms part of, and will
be read and construed as one with this Agreement.
(i) Capitalized Terms. Each capitalized term used in this Agreement and not
defined in this Agreement, the Confirmation or the Definitions shall have the
meaning given such term in Appendix A to the Trust Sale and Servicing Agreement,
dated as of June 20, 2007, among GMAC, as Servicer, Custodian and Seller,
Wholesale Auto Receivables LLC, as Depositor, and SWIFT Master Auto Receivables
Trust, as Issuing Entity (as amended, modified or supplemented from time to time
in accordance with its terms). To the extent that a capitalized term in this
Agreement is defined by reference to a related definition contained in the Trust
Sale and Servicing Agreement, the Indenture, the Pooling and Servicing
Agreement, the Swap Counterparty Rights Agreement, the Administration Agreement,
the Trust Agreement and the Custodian Agreement (collectively, the "TRUST
DOCUMENTS" and each, a "TRUST DOCUMENT"), for purposes of this Agreement only,
such capitalized term shall be deemed to be amended only if the amendment of the
term in a Trust Document relating to such capitalized term occurs with the prior
written consent of the Counterparty.
(j) No Set-Off. Without affecting the provisions of this Agreement
requiring the calculation of certain net payment amounts, all payments under
this Agreement will be made without set-off or counterclaims against amounts
payable outside of this Agreement.
(k) Liability to Trustee. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by HSBC Bank
USA, National Association, not individually or personally but solely as trustee
of the Trust, in the exercise of the powers and authority conferred and vested
in it under the Trust Agreement, (b) each of the representations, undertakings
and agreements herein made on the part of the Trust is made and intended not as
personal representations, undertakings and agreements by HSBC Bank USA, National
15
Association but is made and intended for the purpose of binding only the Trust
and (c) under no circumstances shall HSBC Bank USA, National Association be
personally liable for the payment of any indebtedness or expenses of 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 or the
other Basic Documents. For all purposes of this Agreement, in the performance of
any duties or obligations of the Trust or the Owner Trustee hereunder, the Owner
Trustee shall be entitled to the benefits of the terms and provisions of the
Trust Agreement.
(l) Severability. In the event that any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions in the Agreement shall not in any way be affected or impaired. In the
event that any one or more of the provisions contained in this Agreement should
be held invalid, illegal or unenforceable, the parties will negotiate in good
faith to replace the invalid, illegal or unenforceable provisions with valid
provisions which will, as nearly as possible, give the originally intended legal
and economic effect of the invalid, illegal or unenforceable provisions.
(m) No-Petition. The Counterparty hereby agrees that it will not, prior to
the date which is one year and one day after all Notes issued by the Trust
pursuant to the Indenture have been paid in full, acquiesce, petition or
otherwise invoke, or cause or encourage any Person, including the Trust, to
invoke, the process of any court or governmental authority for the purpose of
commencing or sustaining a case against the Trust under any federal or state
bankruptcy, insolvency or similar law or for the purpose of appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official for the Trust or any substantial part of the property of the
Trust, or for the purpose of ordering the winding up or liquidation of the
affairs of the Trust. Nothing herein shall prevent the Counterparty from
participating in any such proceeding once commenced.
(n) Sole Transactions. This Agreement relates solely to, and can be used
solely for, the Transactions between the Trust and the Counterparty with
Confirmations (the "CONFIRMATIONS") dated the date hereof and having reference
numbers Xxxxxx XX 0000000, Xxxxxx XX 0000000 and Xxxxxx XX 0000000.
(o) Additional Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below, unless the context clearly requires
otherwise:
"APPROVED REPLACEMENT" means, with respect to a Market Quotation, an
entity making such Market Quotation, which entity would satisfy conditions (a),
(b), (c) and (e) of the definition of Permitted Transfer (as determined by the
Trust in its sole discretion, acting in a commercially reasonable manner) if
such entity were a Transferee, as defined in the definition of Permitted
Transfer.
"ELIGIBLE GUARANTEE" means an unconditional and irrevocable guarantee
of all present and future obligations of the Counterparty or a Substitute Swap
Provider to the Counterparty under this Agreement that (a) is in a form
identical to the guarantee of LBHI, or (b) is provided by an Eligible Guarantor
as principal debtor rather than surety and that is directly enforceable by the
Trust, and either (A) a law firm has given a legal opinion confirming that
16
none of the guarantor's payments to the Trust under such guarantee will be
subject to Tax collected by withholding or (B) such guarantee provides that, in
the event that any of such guarantor's payments to the Trust are subject to Tax
collected by withholding, such guarantor is required to pay such additional
amount as is necessary to ensure that the net amount actually received by the
Trust (free and clear of any Tax collected by withholding) will equal the full
amount the Trust would have received had no such withholding been required.
"ELIGIBLE GUARANTOR" means an entity that has credit ratings from
Xxxxx'x and S&P that would result in a Xxxxx'x Joint Probability (as defined in
the Confirmations) of at least "Aa3" and an S&P Joint Probability (as defined in
the Confirmations) of at least "AA-".
"FIRM OFFER" means (A) with respect to a Substitute Swap Provider, a
quotation from such Substitute Swap Provider (i) in an amount equal to the
actual amount payable by or to the Trust in consideration of an agreement
between the Trust and such Substitute Swap Provider to replace the Counterparty
as the counterparty to this Agreement by way of assignment or, if such
assignment is not possible, an agreement between the Trust and such Substitute
Swap Provider to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Substitute Swap Provider to replace the
Counterparty as the counterparty to this Agreement or enter a Replacement
Transaction that will become legally binding upon such Substitute Swap Provider
upon acceptance by the Trust, and (B) with respect to an Eligible Guarantor, an
offer by such Eligible Guarantor to provide an Eligible Guarantee that will
become legally binding upon such Eligible Guarantor upon acceptance by the
offeree.
"PERMITTED TRANSFER" means a transfer by the Counterparty to a
transferee (the "TRANSFEREE") of all, but not less than all, of the
Counterparty's rights, liabilities, duties and obligations under this Agreement,
with respect to which transfer each of the following conditions is satisfied:
(a) the Transferee is a Substitute Swap Provider, (b) the Counterparty and the
Transferee are both "dealers in notional principal contracts" within the meaning
of Treasury regulations section 1.1001-4 and as of the date of such transfer the
Transferee would not be required to withhold or deduct on account of Tax from
any payments under this Agreement or would be required to gross up for such Tax
under Section 2(d)(i)(4); (c) an Event of Default or Termination Event would not
occur as a result of such transfer, (d) pursuant to a written instrument (the
"TRANSFER AGREEMENT"), the Transferee acquires and assumes all rights and
obligations of the Counterparty under this Agreement and the relevant
Transaction, (e) the Trust shall have determined, in its sole discretion, acting
in a commercially reasonable manner, that such Transfer Agreement is effective
to transfer to the Transferee all, but not less than all, of the Counterparty's
rights and obligations under this Agreement and all relevant Transactions; (f)
the Counterparty will be responsible for any costs or expenses incurred in
connection with such transfer (including any replacement cost of entering into a
replacement transaction) and (g) Xxxxx'x has been given prior written notice of
such transfer.
"REPLACEMENT TRANSACTION" means, with respect to any Terminated
Transaction or group of Terminated Transactions, a transaction or group of
transactions that (i) would have the effect of preserving for the Trust 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
17
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, and (ii) has terms which are substantially the same as this
Agreement, including, without limitation, rating triggers, Regulation AB
compliance, and credit support documentation, save for the exclusion of
provisions relating to Transactions that are not Terminated Transactions, as
determined by the Trust in its sole discretion, acting in a commercially
reasonable manner.
"SUBSTITUTE SWAP PROVIDER" means an entity (A) (i) that has credit
ratings from Xxxxx'x and S&P that would result in a Xxxxx'x Joint Probability
(as defined in the Confirmations) of at least "Aa3" and an S&P Joint Probability
(as defined in the Confirmations) of at least "AA-" or (ii) the present and
future obligations of which entity to the Trust under this Agreement are
guaranteed pursuant to an Eligible Guarantee and (B) that has executed an
Indemnification and Disclosure Agreement with the Depositor with respect to Item
1115(b) of Regulation AB.
(p) Guarantee Demand. If the Counterparty fails to pay punctually any
amounts under this Agreement, the Trust shall make the written demand for
payment pursuant to the LBHI Guarantee or the Eligible Guarantee, as the case
may be.
* * * * * *
18
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof.
SWIFT MASTER AUTO RECEIVABLES TRUST
By: HSBC BANK USA, NATIONAL
ASSOCIATION, not in its
individual capacity but solely as
Owner Trustee on behalf of the Trust
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
XXXXXX BROTHERS SPECIAL FINANCING INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
(UNILATERAL FORM) (ISDA AGREEMENTS SUBJECT TO NEW YORK LAW ONLY)
(ISDA(R)LOGO)
INTERNATIONAL SWAPS AND DERIVATIVES ASSOCIATION, INC.
CREDIT SUPPORT ANNEX
to the Schedule to the
MASTER AGREEMENT
dated as of June 20, 2007
between
XXXXXX BROTHERS and SWIFT MASTER AUTO
SPECIAL FINANCING INC. RECEIVABLES TRUST
("Party A") ("Party B")
This Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
Accordingly, the parties agree as follows:
PARAGRAPH 1. INTERPRETATION
(a) DEFINITIONS AND INCONSISTENCY. Capitalized terms not otherwise defined
herein or elsewhere in this Agreement have the meanings specified pursuant
to Paragraph 12, and all references in this Annex to Paragraphs are to
Paragraphs of this Annex. In the event of any inconsistency between this
Annex and the other provisions of this Schedule, this Annex will prevail,
and in the event of any inconsistency between Paragraph 13 and the other
provisions of this Annex, Paragraph 13 will prevail.
(b) SECURED PARTY AND PLEDGOR. All references in this Annex to the "Secured
Party" will be to either party when acting in that capacity and all
corresponding references to the "Pledgor" will be to the other party when
acting in that capacity; provided, however, that if Other Posted Support is
held by a party to this Annex, all references herein to that party as the
Secured Party with respect to that Other Posted Support will be to that
party as the beneficiary thereof and will not subject that support or that
party as the beneficiary thereof to provisions of law generally relating to
security interests and secured parties.
PARAGRAPH 2. SECURITY INTEREST
Each party, as the Pledgor, hereby pledges to the other party, as the Secured
Party, as security for its Obligations, and grants to the Secured Party a first
priority continuing security interest in, lien on and right of Set-off against
all Posted Collateral Transferred to or received by the Secured Party hereunder.
Upon the Transfer by the Secured Party to the Pledgor of Posted Collateral, the
security interest and lien granted hereunder on that Posted Collateral will be
released immediately and, to the extent possible, without any further action by
either party.
1
PARAGRAPH 3. CREDIT SUPPORT OBLIGATIONS
(a) DELIVERY AMOUNT. Subject to Paragraphs 4 and 5, upon a demand made by the
Secured Party on or promptly following a Valuation Date, if the Delivery
Amount for that Valuation Date equals or exceeds the Pledgor's Minimum
Transfer Amount, then the Pledgor will Transfer to the Secured Party
Eligible Credit Support having a Value as of the date of Transfer at least
equal to the applicable Delivery Amount (rounded pursuant to Paragraph 13).
Unless otherwise specified in Paragraph 13, the "DELIVERY AMOUNT"
applicable to the Pledgor for any Valuation Date will equal the amount by
which:
(i) the Credit Support Amount
exceeds
(ii) the Value as of that Valuation Date of all Posted Credit Support held
by the Secured Party.
(b) RETURN AMOUNT. Subject to Paragraphs 4 and 5, upon a demand made by the
Pledgor on or promptly following a Valuation Date, if the Return Amount for
that Valuation Date equals or exceeds the Secured Party's Minimum Transfer
Amount, then the Secured Party will Transfer to the Pledgor Posted Credit
Support specified by the Pledgor in that demand having a Value as of the
date of Transfer as close as practicable to the applicable Return Amount
(rounded pursuant to Paragraph 13). Unless otherwise specified in Paragraph
13, the "RETURN AMOUNT" applicable to the Secured Party for any Valuation
Date will equal the amount by which:
(i) the Value as of that Valuation Date of all Posted Credit Support held
by the Secured Party
exceeds
(ii) the Credit Support Amount.
"CREDIT SUPPORT AMOUNT" means, unless otherwise specified in Paragraph 13, for
any Valuation Date (i) the Secured Party's Exposure for that Valuation Date plus
(ii) the aggregate of all Independent Amounts applicable to the Pledgor, if any,
minus (iii) all Independent Amounts applicable to the Secured Party, if any,
minus (iv) the Pledgor's Threshold; provided, however, that the Credit Support
Amount will be deemed to be zero whenever the calculation of Credit Support
Amount yields a number less than zero.
PARAGRAPH 4. CONDITIONS PRECEDENT, TRANSFER TIMING, CALCULATIONS AND
SUBSTITUTIONS
(a) CONDITIONS PRECEDENT. Each Transfer obligation of the Pledgor under
Paragraphs 3 and 5 and of the Secured Party under Paragraphs 3, 4(d)(ii), 5
and 6(d) is subject to the conditions precedent that:
(i) no Event of Default, Potential Event of Default or Specified Condition
has occurred and is continuing with respect to the other party; and
(ii) no Early Termination Date for which any unsatisfied payment
obligations exist has occurred or been designated as the result of an
Event of Default or Specified Condition with respect to the other
party.
(b) TRANSFER TIMING. Subject to Paragraphs 4(a) and 5 and unless otherwise
specified, if a demand for the Transfer of Eligible Credit Support or
Posted Credit Support is made by the Notification Time, then the relevant
Transfer will be made not later than the close of business on the next
Local Business Day; if a demand is made after the Notification Time, then
the relevant Transfer will be made not later than the close of business on
the second Local Business Day thereafter.
2
(c) CALCULATIONS. All calculations of Value and Exposure for purposes of
Paragraphs 3 and 6(d) will be made by the Valuation Agent as of the
Valuation Time. The Valuation Agent will notify each party (or the other
party, if the Valuation Agent is a party) of its calculations not later
than the Notification Time on the Local Business Day following the
applicable Valuation Date (or in the case of Paragraph 6(d), following the
date of calculation).
(d) SUBSTITUTIONS.
(i) Unless otherwise specified in Paragraph 13, upon notice to the Secured
Party specifying the items of Posted Credit Support to be exchanged,
the Pledgor may, on any Local Business Day, Transfer to the Secured
Party substitute Eligible Credit Support (the "Substitute Credit
Support"); and
(ii) subject to Paragraph 4(a), the Secured Party will Transfer to the
Pledgor the items of Posted Credit Support specified by the Pledgor in
its notice not later than the Local Business Day following the date on
which the Secured Party receives the Substitute Credit Support, unless
otherwise specified in Paragraph 13 (the "Substitution Date");
provided that the Secured Party only will be obligated to Transfer
Posted Credit Support with a Value as of the date of Transfer of that
Posted Credit Support equal to the Value as of that date of the
Substitute Credit Support.
PARAGRAPH 5. DISPUTE RESOLUTION
If a party (a "Disputing Party") disputes (I) the Valuation Agent's calculation
of a Delivery Amount or a Return Amount or (II) the Value of any Transfer of
Eligible Credit Support or Posted Credit Support, then (1) the Disputing Party
will notify the other party and the Valuation Agent and the other party (if the
Valuation Agent is not the other party) not later than the close of business on
the Local Business Day following (X) the date that the demand is made under
Paragraph 3 in the case of (I) above or (Y) the date of Transfer in the case of
(II) above, (2) subject to Paragraph 4(a), the appropriate party will Transfer
the undisputed amount to the other party not later than the close of business on
the Local Business Day following (X) the date that the demand is made under
Paragraph 3 in the case of (I) above or (Y) the date of Transfer in the case of
(II) above, (3) the parties will consult with each other in an attempt to
resolve the dispute and (4) if they fail to resolve the dispute by the
Resolution Time, then:
(i) In the case of a dispute involving a Delivery Amount or Return Amount,
unless otherwise specified in Paragraph 13, the Valuation Agent will
recalculate the Exposure and the Value as of the Recalculation Date
by:
(A) utilizing any calculations of Exposure for the Transactions (or
Swap Transactions) that the parties have agreed are not in
dispute;
(B) calculating the Exposure for the Transactions (or Swap
Transactions) in dispute by seeking four actual quotations at
mid-market from Reference Market-makers for purposes of
calculating Market Quotation, and taking the arithmetic average
of those obtained; provided that if four quotations are not
available for a particular Transaction (or Swap Transaction),
then fewer than four quotations may be used for that Transaction
(or Swap Transaction); and if no quotations are available for a
particular Transaction (or Swap Transaction), then the Valuation
Agent's original calculations will be used for that Transaction
(or Swap Transaction); and
(C) utilizing the procedures specified in Paragraph 13 for
calculating the Value, if disputed, of Posted Credit Support.
3
(ii) In the case of a dispute involving the Value of any Transfer of
Eligible Credit Support or Posted Credit Support, the Valuation Agent
will recalculate the Value as of the date of Transfer pursuant to
Paragraph 13.
Following a recalculation pursuant to this Paragraph, the Valuation Agent will
notify each party (or the other party, if the Valuation Agent is a party) not
later than the Notification Time on the Local Business Day following the
Resolution Time. The appropriate party will, upon demand following that notice
by the Valuation Agent or a resolution pursuant to (3) above and subject to
Paragraphs 4(a) and 4(b), make the appropriate Transfer.
PARAGRAPH 6. HOLDING AND USING POSTED COLLATERAL
(a) CARE OF POSTED COLLATERAL. Without limiting the Secured Party's rights
under Paragraph 6(c), the Secured Party will exercise reasonable care to
assure the safe custody of all Posted Collateral to the extent required by
applicable law, and in any event the Secured Party will be deemed to have
exercised reasonable care if it exercises at least the same degree of care
as it would exercise with respect to its own property. Except as specified
in the preceding sentence, the Secured Party will have no duty with respect
to Posted Collateral, including, without limitation, any duty to collect
any Distributions, or enforce or preserve any rights pertaining thereto.
(b) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS.
(i) GENERAL. Subject to the satisfaction of any conditions specified in
Paragraph 13 for holding Posted Collateral, the Secured Party will be
entitled to hold Posted Collateral or to appoint an agent (a
"Custodian") to hold Posted Collateral for the Secured Party. Upon
notice by the Secured Party to the Pledgor of the appointment of a
Custodian, the Pledgor's obligations to make any Transfer will be
discharged by making the Transfer to that Custodian. The holding of
Posted Collateral by a Custodian will be deemed to be the holding of
that Posted Collateral by the Secured Party for which the Custodian is
acting.
(ii) FAILURE TO SATISFY CONDITIONS. If the Secured Party or its Custodian
fails to satisfy any conditions for holding Posted Collateral, then
upon a demand made by the Pledgor, the Secured Party will, not later
than five Local Business Days after the demand, Transfer or cause its
Custodian to Transfer all Posted Collateral held by it to a Custodian
that satisfies those conditions or to the Secured Party if it
satisfies those conditions.
(iii) LIABILITY. The Secured Party will be liable for the acts or omissions
of its Custodian to the same extent that the Secured Party would be
liable hereunder for its own acts or omissions.
(c) USE OF POSTED COLLATERAL. Unless otherwise specified in Paragraph 13 and
without limiting the rights and obligations of the parties under Paragraphs
3, 4(d)(ii), 5, 6(d) and 8, if the Secured Party is not a Defaulting Party
or an Affected Party with respect to a Specified Condition and no Early
Termination Date has occurred or been designated as the result of an Event
of Default or Specified Condition with respect to the Secured Party, then
the Secured Party will, notwithstanding Section 9-207 of the New York
Uniform Commercial Code, have the right to:
(i) sell, pledge, rehypothecate, assign, invest, use, commingle or
otherwise dispose of, or otherwise use in its business any Posted
Collateral it holds, free from any claim or right of any nature
whatsoever of the Pledgor, including any equity or right of redemption
by the Pledgor; and
(ii) register any Posted Collateral in the name of the Secured Party, its
Custodian or a nominee for either.
4
For purposes of the obligation to Transfer Eligible Credit Support or Posted
Credit Support pursuant to Paragraphs 3 and 5 and any rights or remedies
authorized under this Agreement, the Secured Party will be deemed to continue to
hold all Posted Collateral and to receive Distributions made thereon, regardless
of whether the Secured Party has exercised any rights with respect to any Posted
Collateral pursuant to (i) or (ii) above.
(d) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) DISTRIBUTIONS. Subject to Paragraph 4(a), if the Secured Party
receives or is deemed to receive Distributions on a Local Business
Day, it will Transfer to the Pledgor not later than the following
Local Business Day any Distributions it receives or is deemed to
receive to the extent that a Delivery Amount would not be created or
increased by that Transfer, as calculated by the Valuation Agent (and
the date of calculation will be deemed to be a Valuation Date for this
purpose).
(ii) INTEREST AMOUNT. Unless otherwise specified in Paragraph 13 and
subject to Paragraph 4(a), in lieu of any interest, dividends or other
amounts paid or deemed to have been paid with respect to Posted
Collateral in the form of Cash (all of which may be retained by the
Secured Party), the Secured Party will Transfer to the Pledgor at the
times specified in Paragraph 13 the Interest Amount to the extent that
a Delivery Amount would not be created or increased by that Transfer,
as calculated by the Valuation Agent (and the date of calculation will
be deemed to be a Valuation Date for this purpose). The Interest
Amount or portion thereof not Transferred pursuant to this Paragraph
will constitute Posted Collateral in the form of Cash and will be
subject to the security interest granted under Paragraph 2.
PARAGRAPH 7. EVENTS OF DEFAULT
For purposes of Section 5(a)(iii)(1) of this Agreement, an Event of Default will
exist with respect to a party if:
(i) that party fails (or fails to cause its Custodian) to make, when due,
any Transfer of Eligible Collateral, Posted Collateral or the Interest
Amount, as applicable, required to be made by it and that failure
continues for two Local Business Days after notice of that failure is
given to that party;
(ii) that party fails to comply with any restriction or prohibition
specified in this Annex with respect to any of the rights specified in
Paragraph 6(c) and that failure continues for five Local Business Days
after notice of that failure is given to that party; or
(iii) that party fails to comply with or perform any agreement or
obligation other than those specified in Paragraphs 7(i) and 7(ii) and
that failure continues for 30 days after notice of that failure is
given to that party.
PARAGRAPH 8. CERTAIN RIGHTS AND REMEDIES
(a) SECURED PARTY'S RIGHTS AND REMEDIES. If at any time (1) an Event of Default
or Specified Condition with respect to the Pledgor has occurred and is
continuing or (2) an Early Termination Date has occurred or been designated
as the result of an Event of Default or Specified Condition with respect to
the Pledgor, then, unless the Pledgor has paid in full all of its
Obligations that are then due, the Secured Party may exercise one or more
of the following rights and remedies:
(i) all rights and remedies available to a secured party under applicable
law with respect to Posted Collateral held by the Secured Party;
5
(ii) any other rights and remedies available to the Secured Party under the
terms of Other Posted Support, if any;
(iii) the right to Set-off any amounts payable by the Pledgor with respect
to any Obligations against any Posted Collateral or the Cash
equivalent of any Posted Collateral held by the Secured Party (or any
obligation of the Secured Party to Transfer that Posted Collateral);
and
(iv) the right to liquidate any Posted Collateral held by the Secured Party
through one or more public or private sales or other dispositions with
such notice, if any, as may be required under applicable law, free
from any claim or right of any nature whatsoever of the Pledgor,
including any equity or right of redemption by the Pledgor (with the
Secured Party having the right to purchase any or all of the Posted
Collateral to be sold) and to apply the proceeds (or the Cash
equivalent thereof) from the liquidation of the Posted Collateral to
any amounts payable by the Pledgor with respect to any Obligations in
that order as the Secured Party may elect.
Each party acknowledges and agrees that Posted Collateral in the form of
securities may decline speedily in value and is of a type customarily sold on a
recognized market, and, accordingly, the Pledgor is not entitled to prior notice
of any sale of that Posted Collateral by the Secured Party, except any notice
that is required under applicable law and cannot be waived.
(b) PLEDGOR'S RIGHTS AND REMEDIES. If at any time an Early Termination Date has
occurred or been designated as the result of an Event of Default or
Specified Condition with respect to the Secured Party, then (except in the
case of an Early Termination Date relating to less than all Transactions
(or Swap Transactions) where the Secured Party has paid in full all of its
obligations that are then due under Section 6(e) of this Agreement):
(i) the Pledgor may exercise all rights and remedies available to a
pledgor under applicable law with respect to Posted Collateral held by
the Secured Party;
(ii) the Pledgor may exercise any other rights and remedies available to
the Pledgor under the terms of Other Posted Support, if any;
(iii) the Secured Party will be obligated immediately to Transfer all
Posted Collateral and the Interest Amount to the Pledgor; and
(iv) to the extent that Posted Collateral or the Interest Amount is not so
Transferred pursuant to (iii) above, the Pledgor may:
(A) Set-off any amounts payable by the Pledgor with respect to any
Obligations against any Posted Collateral or the Cash equivalent
of any Posted Collateral held by the Secured Party (or any
obligation of the Secured Party to Transfer that Posted
Collateral); and
(B) to the extent that the Pledgor does not Set-off under (iv)(A)
above, withhold payment of any remaining amounts payable by the
Pledgor with respect to any Obligations, up to the Value of any
remaining Posted Collateral held by the Secured Party, until that
Posted Collateral is Transferred to the Pledgor.
(c) DEFICIENCIES AND EXCESS PROCEEDS. The Secured Party will Transfer to the
Pledgor any proceeds and Posted Credit Support remaining after liquidation,
Set-off and/or application under Paragraphs 8(a) and 8(b) after
satisfaction in full of all amounts payable by the Pledgor with respect to
any Obligations; the Pledgor in all events will remain liable for any
amounts remaining unpaid after any liquidation, Set-off and/or application
under Paragraphs 8(a) and 8(b).
6
(d) FINAL RETURNS. When no amounts are or thereafter may become payable by the
Pledgor with respect to any Obligations (except for any potential liability
under Section 2(d) of this Agreement), the Secured Party will Transfer to
the Pledgor all Posted Credit Support and the Interest Amount, if any.
PARAGRAPH 9. REPRESENTATIONS
Each party represents to the other party (which representations will be deemed
to be repeated as of each date on which it, as the Pledgor, Transfers Eligible
Collateral) that:
(i) it has the power to grant a security interest in and lien on any
Eligible Collateral it Transfers as the Pledgor and has taken all
necessary actions to authorize the granting of that security interest
and lien;
(ii) it is the sole owner of or otherwise has the right to Transfer all
Eligible Collateral it transfers to the Secured Party hereunder, free
and clear of any security interest, lien, encumbrance or other
restrictions other than the security interest and lien granted under
Paragraph 2;
(iii) upon the Transfer of any Eligible Collateral to the Secured Party
under the terms of this Annex, the Secured Party will have a valid and
perfected first priority security interest therein (assuming that any
central clearing corporation or any third-party financial intermediary
or other entity not within the control of the Pledgor involved in the
Transfer of that Eligible Collateral gives the notices and takes the
action required of it under applicable law for perfection of that
interest); and
(iv) the performance by it of its obligations under this Annex will not
result in the creation of any security interest, lien or other
encumbrance on any Posted Collateral other than the security interest
and lien granted under Paragraph 2.
PARAGRAPH 10. EXPENSES
(a) GENERAL. Except as otherwise provided in Paragraphs 10(b) and 10(c), each
party will pay its own costs and expenses in connection with performing its
obligations under this Annex and neither party will be liable for any costs
and expenses incurred by the other party in connection herewith.
(b) POSTED CREDIT SUPPORT. The Pledgor will promptly pay when due all taxes,
assessments or charges of any nature that are imposed with respect to
Posted Credit Support held by the Secured Party upon becoming aware of the
same, regardless of whether any portion of that Posted Credit Support is
subsequently disposed of under Paragraph 6(c), except for those taxes,
assessments and charges that result from the exercise of the Secured
Party's rights under Paragraph 6(c).
(c) LIQUIDATION/APPLICATION OF POSTED CREDIT SUPPORT. All reasonable costs and
expenses incurred by or on behalf of the Secured Party or the Pledgor in
connection with the liquidation and/or application of any Posted Credit
Support under Paragraph 8 will be payable, on demand and pursuant to the
Expenses Section of this Agreement, by the Defaulting Party or, if there is
no Defaulting Party, equally by the parties.
7
PARAGRAPH 11. MISCELLANEOUS
(a) DEFAULT INTEREST. A Secured Party that fails to make, when due, any
Transfer of Posted Collateral or the Interest Amount will be obligated to
pay the Pledgor (to the extent permitted under applicable law) an amount
equal to interest at the Default Rate multiplied by the Value of the items
of property that were required to be Transferred, from (and including) the
date that Posted Collateral or Interest Amount was required to be
Transferred to (but excluding) the date of Transfer of that Posted
Collateral or Interest Amount. This interest will be calculated on the
basis of daily compounding and the actual number of days elapsed.
(b) FURTHER ASSURANCES. Promptly following a demand made by a party, the other
party will execute, deliver, file and record any financing statement,
specific assignment or other document and take any other action that may be
necessary or desirable and reasonably requested by that party to create,
preserve, perfect or validate any security interest or lien granted under
Paragraph 2, to enable that party to exercise or enforce its rights under
this Annex with respect to Posted Credit Support or an Interest Amount or
to effect or document a release of a security interest on Posted Collateral
or an Interest Amount.
(c) FURTHER PROTECTION. The Pledgor will promptly give notice to the Secured
Party of, and defend against, any suit, action, proceeding or lien that
involves Posted Credit Support Transferred by the Pledgor or that could
adversely affect the security interest and lien granted by it under
Paragraph 2, unless that suit, action, proceeding or lien results from the
exercise of the Secured Party's rights under Paragraph 6(c).
(d) GOOD FAITH AND COMMERCIALLY REASONABLE MANNER. Performance of all
obligations under this Annex including, but not limited to, all
calculations, valuations and determinations made by either party, will be
made in good faith and in a commercially reasonable manner.
(e) DEMANDS AND NOTICES. All demands and notices made by a party under this
Annex will be made as specified in the Notices Section of this Agreement,
except as otherwise provided in Paragraph 13.
(f) SPECIFICATIONS OF CERTAIN MATTERS. Anything referred to in this Annex as
being specified in Paragraph 13 also may be specified in one or more
Confirmations or other documents and this Annex will be construed
accordingly.
PARAGRAPH 12. DEFINITIONS
As used in this Annex:--
"CASH" means the lawful currency of the United States of America.
"CREDIT SUPPORT AMOUNT" has the meaning specified in Paragraph 3.
"CUSTODIAN" has the meaning specified in Paragraphs 6(b)(i) and 13.
"DELIVERY AMOUNT" has the meaning specified in Paragraph 3(a).
"DISPUTING PARTY" has the meaning specified in Paragraph 5.
"DISTRIBUTIONS" means with respect to Posted Collateral other than Cash, all
principal, interest and other payments and distributions of cash or other
property with respect thereto, regardless of whether the Secured Party has
disposed of that Posted Collateral under Paragraph 6(c). Distributions will not
include any item of property acquired by the Secured Party upon any disposition
or liquidation of Posted Collateral or, with respect to any Posted Collateral in
the form of Cash, any distributions on that collateral, unless otherwise
specified herein.
8
"ELIGIBLE COLLATERAL" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
"ELIGIBLE CREDIT SUPPORT" means Eligible Collateral and Other Eligible Support.
"EXPOSURE" means for any Valuation Date or other date for which Exposure is
calculated and subject to Paragraph 5 in the case of a dispute, the amount, if
any, that would be payable to a party that is the Secured Party by the other
party (expressed as a positive number) or by a party that is the Secured Party
to the other party (expressed as a negative number) pursuant to Section
6(e)(ii)(2)(A) of this Agreement as if all Transactions (or Swap Transactions)
were being terminated as of the relevant Valuation Time; provided that Market
Quotation will be determined by the Valuation Agent using its estimates at
mid-market of the amounts that would be paid for Replacement Transactions (as
that term is defined in the definition of "Market Quotation").
"INDEPENDENT AMOUNT" means, with respect to a party, the amount specified as
such for that party in Paragraph 13; if no amount is specified, zero.
"INTEREST AMOUNT" means, with respect to an Interest Period, the aggregate sum
of the amounts of interest calculated for each day in that Interest Period on
the principal amount of Posted Collateral in the form of Cash held by the
Secured Party on that day, determined by the Secured Party for each such day as
follows:
(x) the amount of that Cash on that day; multiplied by
(y) the Interest Rate in effect for that day; divided by
(z) 360.
"Interest Period" means the period from (and including) the last Local Business
Day on which an Interest Amount was Transferred (or, if no Interest Amount has
yet been Transferred, the Local Business Day on which Posted Collateral in the
form of Cash was Transferred to or received by the Secured Party) to (but
excluding) the Local Business Day on which the current Interest Amount is to be
Transferred.
"INTEREST RATE" means the rate specified in Paragraph 13.
"LOCAL BUSINESS DAY", unless otherwise specified in Paragraph 13, has the
meaning specified in the Definitions Section of this Agreement, except that
references to a payment in clause (b) thereof will be deemed to include a
Transfer under this Annex.
"MINIMUM TRANSFER AMOUNT" means, with respect to a party, the amount specified
as such for that party in Paragraph 13; if no amount is specified, zero.
"NOTIFICATION TIME" has the meaning specified in Paragraph 13.
"OBLIGATIONS" means, with respect to a party, all present and future obligations
of that party under this Agreement and any additional obligations specified for
that party in Paragraph 13.
"OTHER ELIGIBLE SUPPORT" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
"OTHER POSTED SUPPORT" means all Other Eligible Support Transferred to the
Secured Party that remains in effect for the benefit of that Secured Party.
"PLEDGOR" means either party, when that party (i) receives a demand for or is
required to Transfer Eligible Credit Support under Paragraph 3(a) or (ii) has
Transferred Eligible Credit Support under Paragraph 3(a).
"POSTED COLLATERAL" means all Eligible Collateral, other property,
Distributions, and all proceeds thereof that have been Transferred to or
received by the Secured Party under this Annex and not Transferred to the
Pledgor pursuant to Paragraph 3(b), 4(d)(ii) or 6(d)(i) or released by the
Secured Party under Paragraph 8. Any Interest
9
Amount or portion thereof not Transferred pursuant to Paragraph 6(d)(ii) will
constitute Posted Collateral in the form of Cash.
"POSTED CREDIT SUPPORT" means Posted Collateral and Other Posted Support.
"RECALCULATION DATE" means the Valuation Date that gives rise to the dispute
under Paragraph 5; provided, however, that if a subsequent Valuation Date occurs
under Paragraph 3 prior to the resolution of the dispute, then the
"Recalculation Date" means the most recent Valuation Date under Paragraph 3.
"RESOLUTION TIME" has the meaning specified in Paragraph 13.
"RETURN AMOUNT" has the meaning specified in Paragraph 3(b).
"SECURED PARTY" means either party, when that party (i) makes a demand for or is
entitled to receive Eligible Credit Support under Paragraph 3(a) or (ii) holds
or is deemed to hold Posted Credit Support.
"SPECIFIED CONDITION" means, with respect to a party, any event specified as
such for that party in Paragraph 13.
"SUBSTITUTE CREDIT SUPPORT" has the meaning specified in Paragraph 4(d)(i).
"SUBSTITUTION DATE" has the meaning specified in Paragraph 4(d)(ii).
"THRESHOLD" means, with respect to a party, the amount specified as such for
that party in Paragraph 13; if no amount is specified, zero.
"TRANSFER" means, with respect to any Eligible Credit Support, Posted Credit
Support or Interest Amount, and in accordance with the instructions of the
Secured Party, Pledgor or Custodian, as applicable:
(i) in the case of Cash, payment or delivery by wire transfer into one or
more bank accounts specified by the recipient;
(ii) in the case of certificated securities that cannot be paid or
delivered by book-entry, payment or delivery in appropriate physical
form to the recipient or its account accompanied by any duly executed
instruments of transfer, assignments in blank, transfer tax stamps and
any other documents necessary to constitute a legally valid transfer
to the recipient;
(iii) in the case of securities that can be paid or delivered by
book-entry, the giving of written instructions to the relevant
depository institution or other entity specified by the recipient,
together with a written copy thereof to the recipient, sufficient if
complied with to result in a legally effective transfer of the
relevant interest to the recipient; and
(iv) in the case of Other Eligible Support or Other Posted Support, as
specified in Paragraph 13.
"VALUATION AGENT" has the meaning specified in Paragraph 13.
"VALUATION DATE" means each date specified in or otherwise determined pursuant
to Paragraph 13.
"VALUATION PERCENTAGE" means, for any item of Eligible Collateral, the
percentage specified in Paragraph 13.
"VALUATION TIME" has the meaning specified in Paragraph 13.
10
"VALUE" means for any Valuation Date or other date for which Value is calculated
and subject to Paragraph 5 in the case of a dispute, with respect to:
(i) Eligible Collateral or Posted Collateral that is:
(A) Cash, the amount thereof; and
(B) a security, the bid price obtained by the Valuation Agent
multiplied by the applicable Valuation Percentage, if any;
(ii) Posted Collateral that consists of items that are not specified as
Eligible Collateral, zero; and
(iii) Other Eligible Support and Other Posted Support, as specified in
Paragraph 13.
PARAGRAPH 13. ELECTIONS AND VARIABLES
(a) SECURITY INTEREST FOR "OBLIGATIONS." The term "Obligations" as used in this
Annex includes no additional obligations with respect to Party A or Party
B.
(b) CREDIT SUPPORT OBLIGATIONS.
(i) "DELIVERY AMOUNT" has the meaning specified in Paragraph 3(a), except
that the words "upon a demand made by the Secured Party on or promptly
following a Valuation Date" shall be deleted and replaced by the words
"on each Valuation Date." For the purposes only of calculating the
Delivery Amount, the Credit Support Amount shall be equal to the
greater of amounts determined pursuant to (1) clause (x) in the
definition of the term Credit Support Amount and (2) clause (y) in the
definition of the term Credit Support Amount; provided that if only
one Rating Agency is rating the Notes at such time, then for the
purposes only of calculating the Delivery Amount in such instance, the
term Credit Support Amount shall not include any provisions that
pertain to the Rating Agency not then rating the Notes.
(ii) "RETURN AMOUNT" has the meaning specified in Paragraph 3(b). For the
purposes only of calculating the Return Amount, the Credit Support
Amount shall be equal to the lesser of amounts determined pursuant to
(1) clause (x) in the definition of the term Credit Support Amount and
(2) clause (y) in the definition of the term Credit Support Amount;
provided that if only one Rating Agency is rating the Notes at such
time, then for the purposes only of calculating the Return Amount in
such instance, the term Credit Support Amount shall not include any
provisions that pertain to the Rating Agency not then rating the
Notes.
(iii) "CREDIT SUPPORT AMOUNT" means, so long as each Rating Agency is
rating the Notes, (x) the amount required under Paragraph 13(o) (as
long as an S&P First Trigger Event (as such term is defined in
Paragraph 13(n)(viii) below) has occurred and is continuing for 30
days or an S&P Second Trigger Event (as such term is defined in
Paragraph 13(n)(viii) below) has occurred and is continuing for ten
Local Business Days; or (y) the amount required under Paragraph 13(p)
(as long as a Moody's First Trigger Event or a Moody's Second Trigger
Event, as such terms are defined in Paragraph 13(n)(iii) below has
occurred and is continuing for 30 days), in each case as calculated on
a daily basis by the Valuation Agent. The Credit Support Amount shall
be calculated by reference to the provisions set forth in this Annex
which would result in Party A transferring the greatest amount of
Eligible Credit Support to Party B.
(iv) ELIGIBLE COLLATERAL. The following items of collateral will qualify as
"Eligible Collateral":
11
[MOODY'S PERCENTAGES ARE FROM TABLE 5C OF MOODY'S HEDGE FRAMEWORK]
VALUATION PERCENTAGE VALUATION PERCENTAGE VALUATION PERCENTAGE VALUATION PERCENTAGE
FOR XXXXX'X FIRST FOR XXXXX'X SECOND FOR S&P FIRST FOR S&P SECOND
TRIGGER CREDIT TRIGGER CREDIT TRIGGER CREDIT TRIGGER CREDIT
SUPPORT AMOUNT SUPPORT AMOUNT SUPPORT AMOUNT SUPPORT AMOUNT
-------------------- -------------------- -------------------- --------------------
(A) U.S. Dollar Cash. 100% 100% 100% 80%
(B) EURO Cash. 98% 94% 95.1% 76.1
(C) Sterling Cash. 98% 95% 96.1% 76.9
(D) U.S. Treasury Securities: 100% 100% 98.9% 79.1
negotiable debt obligations
issued by the U.S. Treasury
Department ("Treasuries")
having a fixed rate and a
remaining maturity of 1 year
or less.
(E) Treasuries having a fixed 100% 99% (1-2 yr) 98.% (1-2yr) 78.4% (1-2yr)
and a remaining maturity of 98% (2-3 yr) 98% (2-3 yr) 78.4% (2-3 yr)
greater than 1 year but not 97% (3-5 yr) 98% (3-5 yr) 78.4% (3-5 yr)
more than 10 years. 96% (5-7 yr) 93.7% (5-7 yr) 75.0% (5-7 yr)
94% (7-10 yr) 92.6% (7-10 yr) 74.1% (7-10 yr)
(F) Treasuries having a fixed 100% 90% (10-20 yr) 91.1% (10-20 yr) 72.9% (10-20 yr)
rate and a remaining maturity 88%( >20 yr) 88.6% ( > 20 yr) 70.9% ( > 20 yr)
of greater than 10 years.
(G) Treasuries having a 100% 99% 98.9% 79.1%
floating rate.
(H) Agency Securities: 100% 99% 98.5% 78.8
negotiable debt obligations of
the Federal National Mortgage
Association (FNMA), Federal
Home Loan Mortgage Corporation
(FHLMC), Federal Home Loan
Banks (FHLB), Federal Farm
Credit Banks (FFCB), Student
Loan Marketing Association
(SLMA), Tennessee Valley
Authority (TVA) (collectively,
"Agency Securities") having a
fixed rate and a remaining
maturity of 1 year or less.
(I) Agency Securities having 100% 99% (1-2 yr) 98% (1-2 yr) 78.4% (1-2 yr)
a fixed rate and a remaining 98% (2-3 yr) 98% (2-3 yr) 78.4% (2-3 yr)
maturity of greater than 1 96% (3-5 yr) 98% (3-5 yr) 78.4% (3-5 yr)
year but not more than 5 years.
(J) Agency Securities having 100% 93% (5-7 yr) 92.6% (5-7 yr) 74.1% (5-7 yr)
a fixed rate and a remaining 93% (7-10 yr) 92.6% (7-10 yr) 74.1% (7-10 yr)
maturity of greater than 5
years but not more than 10
years.
(K) Agency Securities having 100% 89% (10-20 yr) 87.7% (10-20 yr) 70.2% (10-20 yr)
fixed rate and a remaining 87%( > 20 yr) 84.4% ( > 20 yr) 67.5% ( > 20 yr)
maturity of
12
VALUATION PERCENTAGE VALUATION PERCENTAGE VALUATION PERCENTAGE VALUATION PERCENTAGE
FOR XXXXX'X FIRST FOR XXXXX'X SECOND FOR S&P FIRST FOR S&P SECOND
TRIGGER CREDIT TRIGGER CREDIT TRIGGER CREDIT TRIGGER CREDIT
SUPPORT AMOUNT SUPPORT AMOUNT SUPPORT AMOUNT SUPPORT AMOUNT
-------------------- -------------------- -------------------- --------------------
greater than 10 years but not
more than 30 years.
(L) Agency Securities having 100% 98% 98.5% 78.8%
a floating rate.
(M) Euro-Zone Government 98% 94% 98.8% 79%
Bonds (Rated Aa3 or Above by
Moody's and AAA or Above by
S&P) ("Euro-Zone Bonds")
having a fixed rate and a
remaining maturity of 1 year
or less.
(N) Euro-Zone Bonds having a 98% 93% (1-2 yr) 97.9% (1-2 yr) 78.3% (1-2 yr)
fixed rate and a remaining 92% (2-3 yr) 96.9% (2-3 yr) 77.5% (2-3 yr)
maturity of greater than 1 90% (3-5 yr) 95.2% (3-5 yr) 76.2% (3-5 yr)
year but not more than 5 years.
(O) Euro-Zone Bonds having a 98% 89% (5-7 yr) 88.7% (5-7 yr) 71.0% (5-7 yr)
fixed rate and a remaining 88% (7-10 yr) 87.0% (7-10 yr) 69.6% (7-10 yr)
maturity of greater than 5
years but no more than 10
years.
(P) Euro-Zone Bonds having a 98% 84% (10-20 yr) 75.5% (10-20 yr) 60.4% (10-20yr)
fixed rate and a remaining 82% (>20 yr)
maturity of greater than 10
years.
(Q) Euro-Zone Bonds having a 98% 93% 98.8% 79%
floating rate.
(R) Other. Other items of % to be determined % to be determined % to be determined % to be determined
Credit Support approved by
each applicable Rating Agency
in writing with such Valuation
Percentages as determined by
each applicable Rating Agency.
(v) There shall be no "Other Eligible Support" for Party A for purposes of
this Annex.
(vi) Thresholds.
(A) "Independent Amount" means with respect to Party A: Not
Applicable.
"Independent Amount" means with respect to Party B:
Not Applicable.
(B) "Threshold" means with respect to Party A and any Valuation Date,
zero, if (1) a Moody's First Trigger Event or a Moody's Second
Trigger Event has occurred and has been continuing for at least
30 days or (2)(x) an S&P First Trigger Event has occurred and has
been continuing for at least 30 days or (y) an S&P Second Trigger
Event has occurred and has been continuing for at least ten Local
Business Days; otherwise, infinity.
"Threshold" means with respect to Party B: Infinity.
13
(C) "Minimum Transfer Amount" means with respect to Party A:
$100,000.
"Minimum Transfer Amount" means with respect to Party B:
$100,000.
Provided however, that the Minimum Transfer Amount with respect
to both Party A and Party B shall be reduced to $50,000, if the
aggregate outstanding principal amount of the Notes is less than
$50,000,000.
(D) Rounding. The Delivery Amount will be rounded up and the Return
Amount will be rounded down to the nearest integral multiple of
$10,000.00, respectively.
(c) VALUATION AND TIMING.
(i) "Valuation Agent" means Party A.
"VALUATION DATE" MEANS, for purposes of each time that Party A is required
to post collateral pursuant to Section 4 of the Confirmations, any Local
Business Day.
(iii) "Valuation Time" means:
[ ] the close of business in the city of the Valuation Agent on the
Valuation Date or date of calculation, as applicable;
[X] the close of business in the city of the Valuation Agent on the
Local Business Day before the Valuation Date or date of
calculation, as applicable;
provided that the calculations of Value and Exposure will be made as of
approximately the same time on the same date.
(iv) "Notification Time" means 12:00 p.m. (noon), New York time, on a Local
Business Day.
(d) CONDITIONS PRECEDENT. No event shall constitute a "Specified Condition".
(e) SUBSTITUTION.
(i) "Substitution Date" means the Local Business Day in New York on which
the Secured Party is able to confirm irrevocable receipt of the
Substitute Credit Support, provided that (x) such receipt is confirmed
before 3:00 p.m. (New York time) on such Local Business Day in New
York and (y) the Secured Party has received, before 1:00 p.m. (New
York time) on the immediately preceding Local Business Day in New
York, the notice of substitution described in Paragraph 4(d)(i).
(ii) Consent. The Pledgor must obtain the Secured Party's consent for any
substitution pursuant to Paragraph 4(d) and shall give to the Secured
Party not less than two (2) Local Business Days' notice thereof
specifying the items of Posted Credit Support intended for
substitution.
(f) DISPUTE RESOLUTION.
(i) "Resolution Time" means 12:00 p.m. (noon), New York time, on the Local
Business Day following the date on which a notice is given that gives
rise to a dispute under Paragraph 5.
14
(ii) Value. For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of
Posted Credit Support will be calculated as follows: (i) for Cash, the
product of (1) the amount of such Cash and (2) the applicable
Valuation Percentage, and (ii) for each item of Eligible Collateral
(except for Cash), an amount in U.S. dollars equal to the sum of (a)
(i) the bid price for such security quoted on such day by a principal
market-maker for such security selected in good faith by the Secured
Party, multiplied by the applicable Valuation Percentage, or (ii) the
most recent publicly available bid price for such security as reported
by a quotation service or in a medium selected in good faith and in a
commercially reasonable manner by the Secured Party, multiplied by the
applicable Valuation Percentage; plus (b) the accrued interest on such
Eligible Collateral (except to the extent paid to Party A pursuant to
Paragraph 6(d)(ii) or included in the applicable price referred to in
clause (a) above) as of such date.
(iii) Alternative. The provisions of Paragraph 5 will apply provided the
obligation of the appropriate party to deliver the undisputed amount
to the other party will not arise prior to the time that would
otherwise have applied to the Transfer pursuant to, or deemed made,
under Paragraph 3 if no dispute had arisen.
(g) HOLDING AND USING POSTED COLLATERAL.
(i) Eligibility to Hold Posted Collateral; Custodians. Party B and its
Custodian will be entitled to hold Posted Collateral, as applicable,
pursuant to Paragraph 6(b); provided that the following conditions
applicable to each party are satisfied:
(A) Party B, as the Secured Party, is not a Defaulting Party.
(B) Party B hereby covenants and agrees that it will, subject to
Paragraph 13(n)(xi), cause all Posted Collateral received from
the other party to be entered in an Eligible Deposit Account with
an Eligible Institution (as such terms are defined in Part I of
Appendix A to the Trust Sale and Servicing Agreement) having
assets of at least $10 billion, which account shall bear a title
indicating the Secured Party's interest in said account and the
Posted Collateral in such account. If otherwise qualified, the
Secured Party or its Custodian may act as an Eligible Institution
and may move such Eligible Deposit Account from one Eligible
Institution to another upon reasonable notice to the Pledgor. The
Secured Party or its Custodian shall cause notices or statements
concerning the Posted Collateral transferred or delivered by the
Pledgor to be sent to the Pledgor on request, which may not be
made more frequently than once in each calendar month.
In the event any Posted Collateral is held in an Eligible Deposit
Account with an entity that not longer satisfies the requirements
of an Eligible Institution or ceases to meet otherwise the
requirements set forth in the first sentence of this Paragraph
13(g)(i)(B) (the "Custodian Ineligibility Event"), Party B hereby
covenants and agrees that it will cause all such Posted
Collateral to be entered in an Eligible Deposit Account with
another entity that meets the requirements of an Eligible
Institution and the requirements set forth in the first sentence
of this Paragraph 13(g)(i)(B) within 60 days of the occurrence of
the Custodian Ineligibility Event.
Initially, the Custodian for Party B is: The Bank of New York Trust
Company, N.A., as Indenture Trustee.
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c) will not
apply to Party B.
15
(h) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) The "Interest Rate", with respect to Posted Collateral in the form of
Cash, for any day, will be the rate opposite the caption "Federal
funds (effective)" for such day as published by the Federal Reserve
Publication H.15 (519) or any successor publication as published by
the Board of Governors of the Federal Reserve System.
(ii) The "Transfer of Interest Amount" will be made on each Distribution
Date (as defined in the Series 0000-0 Xxxxxxxxx Supplement); provided
that Party B shall not be obligated to so transfer any Interest Amount
unless and until it has earned and received such interest.
(iii) Alternative Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) ADDITIONAL REPRESENTATIONS. None.
(j) OTHER ELIGIBLE SUPPORT AND OTHER POSTED SUPPORT. Not Applicable.
(k) DEMANDS AND NOTICES. All demands, specifications and notices made by a
party to this Annex will be made to the following:
If to Party A: As set forth in the Schedule.
If to Party B: As set forth in the Schedule.
(l) ADDRESSES FOR TRANSFERS.
Party A: To be provided by Party B in writing in the notice to transfer.
Party B: To be provided by Party B in writing in the notice to transfer.
(m) RETURN OF FUNGIBLE SECURITIES.
In lieu of returning to the Pledgor pursuant to Paragraphs 3(b), 4(d), 5
and 8(d) any Posted Collateral comprising securities the Secured Party may
return Equivalent Collateral. "Equivalent Collateral" means, with respect
to any security constituting Posted Collateral, a security of the same
issuer and, as applicable, representing or having the same class, series,
maturity, interest rate, principal amount or liquidation value and such
other provisions as are necessary for that security and the security
constituting Posted Collateral to be treated as equivalent in the market
for such securities.
(n) OTHER PROVISIONS.
(i) This Credit Support Annex is a Security Agreement under the New York
UCC.
(ii) Paragraph 1(b) of this Annex is amended by deleting it and restating
it in full as follows:
"(b) Secured Party and Pledgor. All references in this Annex to the
"Secured Party" mean Party B, and all references in this Annex to the
"Pledgor" mean Party A; provided, however, that if Other Posted
Support is held by Party B, all references herein to the Secured Party
with respect to that Other Posted Support will be to Party B as the
beneficiary thereof and will not subject that support or Party B as
the beneficiary thereof to provisions of law generally relating to
security interests and secured parties."
16
(iii) Paragraph 2 of this Annex is amended by deleting the first sentence
thereof and restating that sentence in full as follows:
"Party A, as the Pledgor, hereby pledges to Party B, as the Secured
Party, as security for the Pledgor's Obligations, and grants to the
Secured Party a first priority continuing security interest in, lien
on and right of Set-off against all Posted Collateral Transferred to
or received by the Secured Party hereunder."
(iv) EVENTS OF DEFAULT.
Paragraph 7 shall be deleted and replaced in its entirety by the
following paragraph:
"For the purposes of Section 5(a)(iii)(1) of this Agreement, an Event
of Default will exist with respect to a party if that party fails (or
fails to cause its Custodian) to make, when due, any Transfer of
Posted Credit Support or the Interest Amount, as applicable, required
to be made by it and that failure continues for two Local Business
Days after the notice of that failure is given to that party, except
that (A) if such failure would constitute an Additional Termination
Event under another provision of this Agreement and (B) no more than
30 days have elapsed since the last time that neither a Moody's First
Trigger Event nor a Moody's Second Trigger Event has occurred and was
continuing, then such failure shall be an Additional Termination Event
and not an Event of Default".
(v) Only Party A makes the representations contained in Paragraph 9 of
this Annex.
(vi) COSTS OF TRANSFER. Notwithstanding Paragraph 10, Party A will be
responsible for, and will reimburse Party B for, all transfer and
other taxes and other costs involved in the transfer of Eligible
Credit Support either from Party A to Party B or from Party B to Party
A and in maintaining Eligible Credit Support.
(vii) Paragraph 12 of this Annex is amended by deleting the definitions of
"Pledgor" and "Secured Party" and replacing them with the following:"
" 'Secured Party' means Party B.
'Pledgor' means Party A."
(viii) Paragraph 12 is hereby amended by adding, in alphabetical order, the
following:
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor to
the rating business of such entity."
"Moody's First Trigger Event" means that the Moody's Joint Probability
(as defined in the Confirmations) is reduced below "Aa3" and no
Substitute Swap Provider or Eligible Guarantee has been obtained or
other credit arrangements have been entered into to assure performance
by Party A of its obligations under the Agreement.
"Moody's Second Trigger Event" means that the Moody's Joint
Probability (as defined in the Confirmations) is reduced below "A3"
and no Substitute Swap Provider or Eligible Guarantee has been
obtained or other credit arrangements have been entered into to assure
performance by Party A of its obligations under the Agreement.
"S&P" means Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor to the rating business
of such entity.
17
"S&P First Trigger Event" means that the S&P Joint Probability (as
defined in the Confirmations) is reduced below "AA-" and no Substitute
Swap Provider or Eligible Guarantee has been obtained or other credit
arrangements have been entered into to assure performance by Party A
of its obligations under the Agreement.
"S&P Second Trigger Event" means that the S&P Joint Probability (as
defined in the Confirmations) is reduced below "A-" and no Substitute
Swap Provider or Eligible Guarantee has been obtained or other credit
arrangements have been entered into to assure performance by Party A
of its obligations under the Agreement.
(ix) The obligations of Party A, as Pledgor hereunder, to post Eligible
Collateral for the benefit of Party B will only become effective if
(1) an S&P First Trigger Event or an S&P Second Trigger Event has
occurred and is continuing with respect to Party A and Party A has not
satisfied the requirements of Section 4 of the relevant Confirmation
within 30 days of the occurrence of such S&P First Trigger Event or
within ten Local Business Days of the occurrence of such S&P Second
Trigger Event, as applicable, or (2) a Moody's First Trigger Event or
Moody's Second Trigger Event has occurred and is continuing with
respect to Party A and Party A has not satisfied the requirements of
Section 4 of the relevant Confirmation within 30 days of the
occurrence of such Moody's First Trigger Event or Moody's Second
Trigger Event.
(x) Security and Performance
Eligible Collateral Transferred to the Secured Party constitutes
security and performance assurance without which the Secured Party
would not otherwise enter into and continue any and all Transactions.
(xi) Holding Collateral
The Secured Party shall cause any Custodian appointed hereunder to
open and maintain a segregated account and to hold, record and
identify all the Posted Collateral in such segregated account and,
subject to Paragraph 8(a), such Posted Collateral shall at all times
be and remain the property of the Pledgor and shall at no time
constitute the property of, or be commingled with the property of, the
Secured Party or the Custodian.
(xii) Calculation of Value.
(A) For purposes of the calculation of "Value", the term "applicable
Valuation Percentage" shall mean (i) as long as a Moody's First
Trigger Event has occurred and is continuing for 30 days the valuation
percentage set forth for the applicable collateral item in Paragraph
13(b)(iv) under the heading "Valuation Percentage for Moody's First
Trigger Credit Support Amount" ("Moody's First Trigger Valuation
Percentage"); (ii) as long as a Moody's Second Trigger Event has
occurred and is continuing for 30 days the valuation percentage set
forth for the applicable collateral item in Paragraph 13(b)(iv) under
the heading "Valuation Percentage for Moody's Second Trigger Credit
Support Amount" ("Moody's Second Trigger Valuation Percentage"); (iii)
as long as an S&P First Trigger Event has occurred and is continuing
for 30 days the valuation percentage set forth for the applicable
collateral item in Paragraph 13(b)(iv) under the heading "Valuation
Percentage for S&P First Trigger Credit Support Amount" ("S&P First
Trigger Valuation Percentage") and (iv) as long as an S&P Second
Trigger Event has occurred and is continuing for ten Local Business
Days the valuation percentage set forth for the applicable collateral
item in Paragraph 13(b)(iv) under the heading "Valuation Percentage
for S&P Second Trigger Credit Support Amount" ("S&P Second Trigger
Valuation Percentage"). For the avoidance of doubt, the applicable
Valuation Percentage shall
18
be the lowest of (i) Moody's First Trigger Valuation Percentage, (ii)
Moody's Second Trigger Valuation Percentage, (iii) S&P First Trigger
Valuation Percentage and (iv) S&P Second Trigger Valuation Percentage;
provided that if only one Rating Agency is rating the Notes at such
time, the calculation of Value shall not include any Valuation
Percentage that pertains to the Rating Agency not then rating the
Notes.
(B) Clause (i)(A) of the definition of "Value" is hereby amended by
adding the words "multiplied by the applicable Valuation Percentage"
after the words "the amount thereof" and before the semicolon.
(o) S&P CREDIT SUPPORT AMOUNT. The "Credit Support Amount" shall mean with
respect to Party A, so long as S&P rates the Notes, on a Valuation
Date, the greater of the S&P First Trigger Credit Support Amount and
the S&P Second Trigger Credit Support Amount.
"S&P FIRST TRIGGER CREDIT SUPPORT AMOUNT" MEANS, FOR any Valuation
Date, the excess, if any, of:
(I) (A) for any Valuation Date on which an S&P First Trigger Event has
occurred and has been continuing for at least 30 days, an amount equal
to the Secured Party's Exposure, or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"S&P SECOND TRIGGER CREDIT SUPPORT AMOUNT" MEANS, for any Valuation
Date, the excess, if any, of:
(I) (A) for any Valuation Date on which an S&P Second Trigger Event
has occurred and has been continuing for at least ten Local
Business Days, an amount equal to 125% of the Secured Party's
Exposure; or
(B) for any other Valuation Date, zero; over
(II) The Threshold for Party A for such Valuation Date.
(p) XXXXX'X CREDIT SUPPORT AMOUNT. The "Credit Support Amount" shall mean with
respect to Party A, so long as Xxxxx'x rates the Notes, on a Valuation Date, the
greater of the Xxxxx'x First Trigger Credit Support Amount and the Xxxxx'x
Second Trigger Credit Support Amount.
"XXXXX'X FIRST TRIGGER CREDIT SUPPORT AMOUNT" means, for any Valuation
Date, the excess, if any, of
(I) (A) for any Valuation Date on which a Xxxxx'x First Trigger Event
has occurred and has been continuing for at least 30 days, an
amount equal to the greater of (a) zero and (b) the sum of Party
B's aggregate Exposure for all Transactions and the aggregate of
Moody's Additional Collateralized Amounts for each Transaction.
For the purposes of this definition, the "MOODY'S ADDITIONAL
COLLATERALIZED AMOUNT" with respect to any Transaction shall mean
the product of the applicable Moody's First Trigger Factor set
forth in Table A and the Notional Amount for such Transaction for
the Calculation Period which includes such Valuation Date; or
19
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"XXXXX'X SECOND TRIGGER CREDIT SUPPORT AMOUNT" means, for any
Valuation Date, the excess, if any, of
(III) (A) for any Valuation Date on which a Xxxxx'x Second Trigger
Event has occurred and has been continuing for at least 30 days,
an amount equal to the greatest of (a) zero, (b) the aggregate
amount of the Next Payments for all Next Payment Dates and (c)
the sum of Party B's aggregate Exposure and the aggregate of
Moody's Additional Collateralized Amounts for each Transaction.
For the purposes of this definition, the "MOODY'S ADDITIONAL
COLLATERALIZED AMOUNT" with respect to any Transaction shall
mean:
if such Transaction is not a Transaction-Specific Hedge,
the product of the applicable Moody's Second Trigger Factor set
forth in Table B and the Notional Amount for such Transaction for
the Calculation Period which includes such Valuation Date; or
if such Transaction is a Transaction-Specific Hedge,
the product of the applicable Xxxxx'x Second Trigger Factor set
forth in Table C and the Notional Amount for such Transaction for
the Calculation Period which includes such Valuation Date; or
(B) for any other Valuation Date, zero, over
(IV) the Threshold for Party A for such Valuation Date.
"NEXT PAYMENT" means, in respect of each Next Payment Date, the
greater of (i) the amount of any payments due to be made by Party A
under Section 2(a) on such Next Payment Date less any payments due to
be made by Party B under Section 2(a) on such Next Payment Date (in
each case, after giving effect to any applicable netting under Section
2(c)) and (ii) zero.
"NEXT PAYMENT DATE" means each date on which the next scheduled
payment under any Transaction is due to be paid.
"TRANSACTION-SPECIFIC HEDGE" means any Transaction that is a cap,
floor, swaption, or interest rate swap, or a Transaction in respect of
which (x) the notional amount of the swap is balance guaranteed or (y)
the notional amount of the Transaction for any Calculation Period
otherwise is not a specific dollar amount that is fixed at the
inception of the Transaction.
20
TABLE A [SOURCE: TABLE 4A-2 OF MOODY'S HEDGE FRAMEWORK]
MOODY'S FIRST TRIGGER
REMAINING WEIGHTED AVERAGE FACTORS FOR SINGLE CURRENCY
LIFE OF HEDGE IN YEARS XXXXXX
-------------------------- ----------------------------
1 year or less 0.15%
Greater than 1 year but not more than 2 years 0.30%
Greater than 2 years but not more than 3 years 0.40%
Greater than 3 years but not more than 4 years 0.60%
Greater than 4 years but not more than 5 years 0.70%
Greater than 5 years but not more than 6 years 0.80%
Greater than 6 years but not more than 7 years 1.00%
Greater than 7 years but not more than 8 years 1.10%
Greater than 8 years but not more than 9 years 1.20%
Greater than 9 years but not more than 10 years 1.30%
Greater than 10 years but not more than 11 years 1.40%
Greater than 11 years but not more than 12 years 1.50%
Greater than 12 years but not more than 13 years 1.60%
Greater than 13 years but not more than 14 years 1.70%
Greater than 14 years but not more than 15 years 1.80%
Greater than 15 years but not more than 16 years 1.90%
Greater than 16 years but not more than 17 years 2.00%
Greater than 17 years but not more than 18 years 2.00%
Greater than 18 years but not more than 19 years 2.00%
Greater than 19 years but not more than 20 years 2.00%
Greater than 20 years but not more than 21 years 2.00%
Greater than 21 years but not more than 22 years 2.00%
Greater than 22 years but not more than 23 years 2.00%
Greater than 23 years but not more than 24 years 2.00%
Greater than 24 years but not more than 25 years 2.00%
Greater than 25 years but not more than 26 years 2.00%
Greater than 26 years but not more than 27 years 2.00%
Greater than 27 years but not more than 28 years 2.00%
Greater than 28 years but not more than 29 years 2.00%
30 years or more 2.00%
TABLE B [Source: Table 4B-2 of Moody's Hedge Framework]
MOODY'S SECOND TRIGGER
FACTORS FOR SINGLE CURRENCY
REMAINING WEIGHTED AVERAGE LIFE OF XXXXXX THAT ARE NOT
HEDGE IN YEARS TRANSACTION-SPECIFIC XXXXXX
---------------------------------- ----------------------------
1 year or less 0.50%
Greater than 1 year but not more than 2 years 1.00%
Greater than 2 years but not more than 3 years 1.50%
Greater than 3 years but not more than 4 years 1.90%
Greater than 4 years but not more than 5 years 2.40%
Greater than 5 years but not more than 6 years 2.80%
Greater than 6 years but not more than 7 years 3.20%
Greater than 7 years but not more than 8 years 3.60%
Greater than 8 years but not more than 9 years 4.00%
Greater than 9 years but not more than 10 years 4.40%
Greater than 10 years but not more than 11 years 4.70%
Greater than 11 years but not more than 12 years 5.00%
21
MOODY'S SECOND TRIGGER
FACTORS FOR SINGLE CURRENCY
REMAINING WEIGHTED AVERAGE LIFE OF XXXXXX THAT ARE NOT
HEDGE IN YEARS TRANSACTION-SPECIFIC XXXXXX
---------------------------------- ----------------------------
Greater than 12 years but not more than 13 years 5.40%
Greater than 13 years but not more than 14 years 5.70%
Greater than 14 years but not more than 15 years 6.00%
Greater than 15 years but not more than 16 years 6.30%
Greater than 16 years but not more than 17 years 6.60%
Greater than 17 years but not more than 18 years 6.90%
Greater than 18 years but not more than 19 years 7.20%
Greater than 19 years but not more than 20 years 7.50%
Greater than 20 years but not more than 21 years 7.80%
Greater than 21 years but not more than 22 years 8.00%
Greater than 22 years but not more than 23 years 8.00%
Greater than 23 years but not more than 24 years 8.00%
Greater than 24 years but not more than 25 years 8.00%
Greater than 25 years but not more than 26 years 8.00%
Greater than 26 years but not more than 27 years 8.00%
Greater than 27 years but not more than 28 years 8.00%
Greater than 28 years but not more than 29 years 8.00%
30 years or more 8.00%
TABLE C [Source: Table 4B-3 of Moody's Hedge Framework]
MOODY'S SECOND TRIGGER
FACTORS FOR SINGLE CURRENCY
REMAINING WEIGHTED AVERAGE LIFE OF XXXXXX THAT ARE
HEDGE IN YEARS TRANSACTION-SPECIFIC XXXXXX
---------------------------------- ----------------------------
1 year or less 0.65%
Greater than 1 year but not more than 2 years 1.30%
Greater than 2 years but not more than 3 years 1.90%
Greater than 3 years but not more than 4 years 2.50%
Greater than 4 years but not more than 5 years 3.10%
Greater than 5 years but not more than 6 years 3.60%
Greater than 6 years but not more than 7 years 4.20%
Greater than 7 years but not more than 8 years 4.70%
Greater than 8 years but not more than 9 years 5.20%
Greater than 9 years but not more than 10 years 5.70%
Greater than 10 years but not more than 11 years 6.10%
Greater than 11 years but not more than 12 years 6.50%
Greater than 12 years but not more than 13 years 7.00%
Greater than 13 years but not more than 14 years 7.40%
Greater than 14 years but not more than 15 years 7.80%
Greater than 15 years but not more than 16 years 8.20%
Greater than 16 years but not more than 17 years 8.60%
Greater than 17 years but not more than 18 years 9.00%
Greater than 18 years but not more than 19 years 9.40%
Greater than 19 years but not more than 20 years 9.70%
Greater than 20 years but not more than 21 years 10.00%
Greater than 21 years but not more than 22 years 10.00%
Greater than 22 years but not more than 23 years 10.00%
Greater than 23 years but not more than 24 years 10.00%
22
MOODY'S SECOND TRIGGER
FACTORS FOR SINGLE CURRENCY
REMAINING WEIGHTED AVERAGE LIFE OF XXXXXX THAT ARE
HEDGE IN YEARS TRANSACTION-SPECIFIC XXXXXX
---------------------------------- ----------------------------
Greater than 24 years but not more than 25 years 10.00%
Greater than 25 years but not more than 26 years 10.00%
Greater than 26 years but not more than 27 years 10.00%
Greater than 27 years but not more than 28 years 10.00%
Greater than 28 years but not more than 29 years 10.00%
30 years or more 10.00%
23
XXXXXXXX XXX AGREED:
XXXXXX BROTHERS SPECIAL FINANCING SWIFT MASTER AUTO RECEIVABLES TRUST
INC.
By: HSBC BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Owner Trustee
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxx Xxxxx
Title: Authorized Signatory Title: Assistant Vice President
Date: June 20, 2007 Date: June 20, 2007
By: /s/ Chi S. Le
------------------------------------
Name: Chi S. Le
Title: Vice President
Date: June 20, 2007
