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EXHIBIT 10.2
ISDA (R)
INTERNATIONAL SWAP DEALERS ASSOCIATION, INC.
INTEREST RATE
AND
CURRENCY EXCHANGE AGREEMENT
Dated as of_________________
Ford Credit Auto Loan Master Trust,
Chemical Bank
Ford Motor Credit Corporation and as Trustee
have entered and/or anticipate entering into one or more transactions (each a
"Swap Transaction"). The parties agree that each Swap Transaction will be
governed by the terms and conditions set forth in this document (which includes
the schedule (the "Schedule")) and in the documents (each a "Confirmation")
exchanged between the parties confirming such Swap Transactions. Each
Confirmation constitutes a supplement to and forms part of this document and
will be read and construed as one with this document, so that this document and
all the Confirmations constitute a single agreement between the parties
(collectively referred to as this "Agreement"). The parties acknowledge that
all Swap Transactions are entered into in reliance on the fact that this
document and all Confirmations will form a single agreement between the
parties, it being understood that the parties would not otherwise enter into
any Swap 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 Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions of
any Confirmation and this document, such Confirmation will prevail for the
purpose of the relevant Swap Transaction.
2. PAYMENTS
(a) OBLIGATIONS AND CONDITIONS.
(i) Each party will make each payment specified in each Confirmation as
being payable by it.
(ii) Payments under this Agreement will be made not later than 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.
(iii) Each obligation of each party to pay any amount due 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 and (2) each other applicable condition
precedent specified in this Agreement.
(b) CHANGE OF ACCOUNT. Either party may change its account by giving notice to
the other party at least five days prior to the due date for payment for which
such change applies.
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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 Swap 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.
If the parties specify "Net Payments - Corresponding Payment Dates" in a
Confirmation or otherwise in this Agreement, sub-paragraph (ii) above will
cease to apply to all Swap Transactions with effect from the date so specified
(so that a net amount will be determined in respect of all amounts due on the
same date in the same currency, regardless of whether such amounts are payable
in respect of the same Swap Transaction); provided that, in such case, this
Section 2(c) will apply separately to each Office through which a party makes
and receives payments as set forth in Section 10.
(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) prompty 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 Idemnifiable Tax, pay to Y, in
addition to the payment to which is Y 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) 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 a Change in Tax Law.
(ii) LIABILITY. If:--
(1) X is required by any applicable law, as
modified by the practice of any relevant governmental revenue
authority, to make any deduction or withholding in respect of
which X would not be required to pay an additional amount to Y
under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed
directly against X.
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount
of such liability (including any related liability for interest but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i) or
(d)).
(e) DEFAULT INTEREST. A party that defaults in the payment of any amount
due will, to the extent be permitted by law, be required to pay interest
(before as well as after judgment) on such amount to the other party on demand
in the same currency as the overdue amount, for the period from (and including
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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.
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 Swap 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 and 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 applicaton
(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 purports to draw into question, or is likely to
affect, the legality, validity or enforceability against it of this Agreement
or any Credit Support Document to which it is a party or its ability to perform
its obligations under this Agreement or such Credit Support Document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in paragraph 2 of Part 3 of 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 Part 2 of
the Schedule as being made by it for the purpose of this Section 3(c) is
accurate and true.
(f) PAYEE TAX REPRESENTATIONS. Each representation specified in Part 2 of
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 it has or may have any
obligation under this Agreement or under any Credit Support Document to which
it is a party:--
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(a) FURNISH SPECIFIED INFORMATION. It will deliver to the other party:--
(i) any forms, documents or certificates relating to taxation
specified in Part 3 of the Schedule or any Confirmation; and
(ii) any other documents specified in Part 3 of the Schedule or any
Confirmation,
by the date specified in Part 3 of the Schedule or such Confirmation or, if
none is specified, as soon as 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. 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 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 Specified Entity of such party, of any of the following
events constitutes an event of default (an "Event of Default") with respect to
such party:-
(i) FAILURE TO PAY. Failure by the party to pay, when due, any amount
required to be paid by it under this Agreement if such failure is not
remedied on or before the third Business Day after notice of such failure
to pay is given to the party;
(ii) BREACH OF AGREEMENT. Failure by the party to comply with or perform
any agreement obligation (other than an obligation to pay any amount
required to be paid by it under this Agreement or to give notice of a
Termination Event or any agreement or obligation under Section
4(a)(i) 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 applicable Specified Entity to
comply with or perform any agreement or obligation to be complied with
or performed by the party or such Specified Entity in accordance with
any Credit Support Document if such failure is continuing after any
applicable grace period has elasped;
(2) the expiration or termination of such Credit Support Document,
or the ceasing of such Credit Support Document to be in full force and
effect, prior to the final Scheduled Payment Date of each Swap
Transaction to which such Credit Support Document relates without the
written consent of the other party; or
(3) the party or such Specified Entity repudiates, 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 applicable Specified Entity in this Agreeement
or any Credit Support Document relating to this Agreement 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 SWAPS. The occurrence of an event of
default in respect of the party or any applicable Specified Entity under a
Specified Swap which, following the giving of any
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applicable notice or the lapse of any applicable grace period, has resulted
in the designation or occurrence of any early termination date in respect
of such Specified Swap;
(vi) CROSS DEFAULT. If "Cross Default" is specified in Part 1 of the
Schedule as applying to the party, (1) the occurrence or existence of an
event or condition in respect of such party or any applicable Specified
Entity under one or more agreements or instruments relating to Specified
Indebtedness of such party or any such Specified Entity in an aggregate
amount of not less than the Threshold Amount (as specified in Part 1 of
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) the failure by such party or any such Specified Entity
to make one or more payments at maturity in an aggregate amount of not
less than the Threshold Amount under such agreements or instruments
(after giving effect to any applicable grace period);
(vii) BANKRUPTCY. The party or any applicable Specified Entity:--
(1) is dissolved; (2) becomes insolvent or fails or is unable
or admits in writing its inability generally to pay its debts as
they become due; (3) makes a general assignment, arrangement or
composition with or for the benefit of its creditors; (4) institutes
or has instituted against it a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any bankruptcy or
insolvency law or other similar law affecting creditors' rights, or
a petition is presented for the winding-up or liquidiation of the
party or any such Specified Entity, and, in the case of any such
proceeding or petition instituted or presented against it, such
proceeding or petition (A) results in a judgment or insolvency or
bankruptcy or the entry of an order for relief or the making of an
order for the winding-up or liquidation of the party or such
Specified Entity or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation therof; (5) has a resolution passed for its winding-up
or liquidation; (6) seeks or becomes subject to the appointment of
an administrator, receiver, trustee, custodian or other similar
official for it or for all or substantially all its assets
(regardless of how brief such appointment may be, or whether any
obligations are promptly assumed by another entity or whether any
other event described in this clause (6) has occurred and is
continuing); (7) any event occurs with respect to the party or any
such Specified Entity which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified
in clauses (1) to (6) (inclusive); or (8) takes any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts;
other than in the case of clause (1) or (5) or, to the extent it relates
to those clauses, clause (8), for the purpose of a consolidation,
amalgamation or merger which would not constitute an event described in
(viii) below; or
(viii) MERGER WITHOUT ASSUMPTION. The party consolidates or amalgamates
with, or merges 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 under this Agreement 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 relating to
this Agreement 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 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, a Tax Event Upon
Merger if the event is specified in (iii) below or a Credit Event Upon Merger
if the event is specified in (iv) below:--
(i) ILLEGALITY. Due to the adoption of, or any change in, any
applicable law after the date on which such Swap 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):-
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(1) to perform any absolute or contingent obligation to make a
payment or to receive a payment in respect of such Swap Transaction
or to comply with any other material provision of this Agreement
relating to such Swap Transaction: or
(2) to perform, or for any applicable Specified Entity to
perform, any contingent or other obligation which the party (or
such Specified Entity) has under any Credit Support Document
relating to such Swap Transaction:
(ii) TAX EVENT.
(1) The party (which will be the Affected Party) will be required
on the next succeeding Scheduled Payment Date to pay to the other
party an additional amount in respect of any Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under Section
2(e)) as a result of a Change in Tax Law; or
(2) there is a substantial likelihood that the party (which will
be the Affected Party) will be required on the next succeeding
Scheduled Payment Date 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)) and such
substantial likelihood results from an action taken by a taxing
authority, or brought in a court of competent jurisdiction, on or
after the date on which such Swap Transaction was entered into
(regardless of whether such action was taken or brought with
respect to a party to this Agreement);
(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)) 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, in either case as a result of
a party consolidating or amalgamating with, or merging 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); or
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is
specified in Part 1 of this Schedule as applying to the party, such party
("X") consolidates or amalgamates with or merges 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 (which
will be the Affected Party) is materially weaker than that of X
immediately prior to such action.
(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 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 Swap Transactions. However, an Early Termination
Date will be deemed to have occurred in respect of all Swap Transactions
immediately upon the occurrence of any Event of Default specified in Section
5(a)(vii)(1), (2), (3), (5), (6), (7) or (8) and as of the time immediately
preceding the institution of the relevant proceeding or the presentation of the
relevant petition upon the occurrence of any Event of Default specified in
Section 5(a)(vii)(4).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. Upon the occurrence of a Termination Event, an Affected Party
will, promptly upon becoming aware of the same, notify the other party
thereof, specifying the nature of such Termination Event and the Affected
Transactions relating thereto. The Affected Party will also give such
other information to the other party with regard to such 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
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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, branches or
Affiliates or that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the other
party, which consent will not be withheld if such other party's policies
in effect at such time would permit it to enter into swap 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 that would cause such
Termination Event to cease to exist.
(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) or a Credit Event
Upon Merger 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 the party which is not the Affected Party in the case of a
Credit Event Upon Merger, 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 continuing on the relevant Early Termination Date.
(ii) Upon the effectiveness of notice designating an Early Termination
Date (or the deemed occurrence of an Early Termination Date), the
obligations of the parties to make any further payments under Section
2(a)(i) in respect of the Terminated Transactions will terminate, but
without prejudice to the other provisions of this Agreement.
(d) CALCULATIONS.
(i) STATEMENT. Following the occurrence of an Early Termination Date,
each party will make the calculations (including calculation of applicable
interest rates) on its part 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 (2) giving details of
the relevant account to which any payment due to it under Section 6(e) is
to be made. In the absence of written confirmation of a quotation obtained
in determining a Market Quotation from the source providing such quotation,
the records of the party obtaining such quotation will be conclusive
evidence of the existence and accuracy of such quotation.
(ii) DUE DATE. The amount calculated as being payable under Section
6(e) will be due on the day that notice of the amount payable is effective
(in the case of an Early Termination Date which is designated or deemed to
occur as a result of an Event of Default) and not later than the day which
is two 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 in the
Termination Currency from (and including) the relevant Early Termination
Date to (but excluding) the relevant due date, calculated as follows:--
(1) if notice is given designating an Early Termination Date or
if an Early Termination Date is deemed to occur, in either case as a
result of an Event of Default, at the Default Rate; or
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(2) if notice is given designating an Early Termination Date
as a result of a Termination Event, at the Default Rate minus 1% per
annum.
Such interest will be calculated on the basis of daily compounding and
the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION.
(i) DEFAULTING PARTY OR ONE AFFECTED PARTY. If notice is given
designating an Early Termination Date or if an Early Termination Date is
deemed to occur and there is a Defaulting Party or only one Affected Party,
the other party will determine the Settlement Amount in respect of the
Terminated Transactions and:--
(1) if there is a Defaulting Party, the Defaulting Party will
pay to the other party, the excess, if a positive number, of (A) the
sum of such Settlement Amount and the Termination Currency Equivalent
of the Unpaid Amounts owing to the other party over (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party; and
(2) if there is an Affected Party, the payment to be made will
be equal to (A) the sum of such Settlement Amount and the Termination
Currency Equivalent of the Unpaid Amounts owing to the party
determining the Settlement Amount ("X") less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the party not
determining the Settlement Amount ("Y").
(ii) TWO AFFECTED PARTIES. If notice is given of an Early Termination
Date and there are two Affected Parties, each party will determine a
Settlement Amount in respect of the Terminated Transactions and the payment
to be made will be equal to (1) 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 (2) the Termination Currency Equivalent of
the Unpaid Amounts owing to Y.
(iii) PARTY OWING. If the amount calculated under Section 6(e)(i)(2) or
(ii) is a positive number Y will pay such amount to X; if such amount is a
negative number, X will pay the absolute value of such amount to Y.
(iv) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early
Termination Date is deemed to occur, the amount determined under Section
6(e)(i) will be subject to such adjustments as are appropriate and
permitted by law to reflect any payments 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).
(v) PRE-ESTIMATE OF LOSS. The parties agree that the amounts
recoverable under this Section 6(e) are a reasonable pre-estimate of loss
and not a penalty. Such amounts are payable for the loss of bargain and the
loss of protection against future risks and except as otherwise provided in
this Agreement neither party will be entitled to recover any additional
damages as a consequence of such losses.
7. TRANSFER
Subject to Section 6(b) and to any exception provided in the Schedule, neither
this Agreement nor any interest or obligation in or under this Agreement may be
transferred by either party without the prior written consent of the other
party (other than pursuant to a consolidation or amalgamation with or merger
into, or transfer of all or substantially all its assets to, another entity)
and any purported transfer without such consent 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 due in respect of this Agreement. If for any reason the amount in
the Contractual Currency so received
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falls short of the amount in the Contractual Currency due 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 due 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 of proof being made for any other sums due 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
(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 and executed by each of the
parties or confirmed by an exchange of telexes.
(c) SURVIVAL OF OBLIGATIONS. Except as provided in Section 6(c)(ii), the
obligations of the parties under this Agreement will survive the termination of
any Swap 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 may be executed in counterparts, each of which will
be deemed an original.
(ii) A Confirmation may be executed in counterparts or be created by
an exchange of telexes, which in either case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. Any such
counterpart or telex will specify that it 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.
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10. MULTIBRANCH PARTIES
If a party is specified as a Multibranch Party in Part 4 of the Schedule, such
Multibranch Party may make and receive payments under any Swap Transaction
through any of its branches or offices listed in the Schedule (each an
"Office"). The Office through which it so makes and receives payments for the
purpose of any Swap Transaction will be specified in the relevant Confirmation
and any change of Office for such purpose requires the prior written consent of
the other party. Each Multibranch Party represents to the other party that,
notwithstanding the place of payment, the obligations of each Office are for
all purposes under this Agreement the obligations of such Multibranch Party.
This representation will be deemed to be repeated by such Multibranch Party on
each date on which a Swap Transaction is entered into.
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 by reason of the early
termination of any Swap Transaction, including, but not limited to, costs of
collection.
12. NOTICES
(a) EFFECTIVENESS. Any notice or communication in respect of this Agreement
will be sufficiently given to a party if in writing and delivered in person,
sent by certified or registered mail (airmail if overseas) or the equivalent
(with return receipt requested) or by overnight courier or given by telex (with
answerback received) at the address or telex number specified in Part 4 of the
Schedule. A notice or communication will be effective:-
(i) if delivered by hand or sent by overnight courier, on the day it is
delivered (or if that day is not a day on which commercial banks are
open for business in the city specified in the address for notice provided
by the recipient (a "Local Banking Day"), or if delivered after the close
of business on a Local Banking Day, on the first following day that is a
Local Banking Day).
(ii) if sent by telex, on the day the recipient's answerback is received
(or if that day is not a Local Banking Day, or if after the close of
business on a Local Banking Day, on the first following day that is a
Local Banking Day): or
(iii) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), three Local Banking Days
after despatch if the recipient's address for notice is in the same
country as the place of despatch and otherwise seven Local Banking Days
after despatch.
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change the
address or telex number at which notices or 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 Part 4 of 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 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 Part 4 of 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
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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 similiar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. DEFINITIONS
As used in this Agreement:--
"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 Swap
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Swap Transactions.
"AFFILIATE" means, subject to Part 4 of 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 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.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"BUSINESS DAY" means (a) in relation to any payment due under Section 2(a)(i),
a day on which commercial banks and foreign exchange markets are open for
business in the place(s) specified in the relevant Confirmation and (b) in
relation to any other payment, a day on which commercial banks and foreign
exchange markets are open for business in the place where the relevant account
is located and, if different, in the principal financial centre of the currency
of such payment.
"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 Swap 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 which is specified
as such in this Agreement.
"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) 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 specified as such in a notice given
under Section 6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a).
"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 had a
permanent establishment or fixed place of business in such jurisdiction, but
excluding a connection arising solely from such recipient or related person
having executed, delivered, performed its obligations or received a payment
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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.
"LOSS" means, with respect to a Terminated Transaction and a party, an amount
equal to the total amount (expressed as a positive amount) required, as
determined as of the relevant Early Termination Date (or, if an Early
Termination Date is deemed to occur, as of a time as soon thereafter as
practicable) by the party in good faith, to compensate it for any losses and
costs (including loss of bargain and costs of funding but excluding legal fees
and other out-of-pocket expenses) that it may incur as a result of the early
termination of the obligations of the parties in respect of such Terminated
Transaction. If a party determines that it would gain or benefit from such
early termination, such party's Loss will be an amount (expressed as a negative
amount) equal to the amount of the gain or benefit as determined by such party.
"MARKET QUOTATION" MEANS, with respect to a Terminated Transaction and a party
to such Terminated Transaction making the determination, an amount (which may
be negative) determined on the basis of quotations from Reference Market-makers
for the amount that would be or would have been payable on the relevant Early
Termination Date, either by the party to the Terminated Transaction making the
determination (to be expressed as a positive amount) or to such party (to be
expressed as a negative amount), in consideration of an agreement between such
party and the quoting Reference Market-maker and subject to such documentation
as they may in good faith agree, with the relevant Early Termination Date as the
date of commencement of such agreement (or, if later, the date specified as the
effective date of such Terminated Transaction in the relevant Confirmation),
that would have the effect of preserving for such party the economic equivalent
of the payment obligations of the parties under Section 2(a)(i) in respect of
such Terminated Transaction that would, but for the occurrence of the relevant
Early Termination Date, fall due after such Early Termination Date (excluding
any Unpaid Amounts in respect of such Terminated Transaction but including,
without limitation, any amounts that would, but for the occurrence of the
relevant Early Termination Date, have been payable (assuming each applicable
condition precedent had been satisfied) after such Early Termination Date by
reference to any period in which such Early Termination Date occurs). The party
making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent practicable as of the same
time (without regard to different time zones) on the relevant Early Termination
Date (or, if an Early Termination Date is deemed to occur, as of a time as soon
thereafter as practicable). The time as of which such quotations are to be
obtained 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. If more than three such quotations are provided, the
Market Quotation will be the arithmetic mean of the Termination Currency
Equivalent 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
quotations having the highest and lowest values. If fewer than three quotations
are provided, it will be deemed that the Market Quotation in respect of such
Terminated Transaction cannot be determined.
"OFFICE" has the meaning specified in Section 10.
"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 swap
market selected by the party determining a Market Quotation in good faith (a)
from among dealers of the highest credit standing which satisfy all the
criteria that such party applies generally at the time in deciding whether to
offer or to make an extension of credit and (b) to the extent practicable, from
among 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 a branch or 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 is due under Section
2(a)(i) with respect to a Swap Transaction.
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"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 for which a Market
Quotation is determined; and
(b) for each Terminated Transaction for which a Market Quotation is not, or
cannot be, determined, the Termination Currency Equivalent of such party's Loss
(whether positive or negative);
provided that if the parties agree that an amount may be payable under
Section 6(e) to a Defaulting Party by the other party, no account shall be
taken of a Settlement Amount expressed as a negative number.
"SPECIFIED ENTITY" has the meaning specified in Part 1 of the Schedule.
"SPECIFIED INDEBTEDNESS" means, subject to Part 1 of the Schedule, any
obligation (whether present or future, contingent or otherwise, as principal or
surety or otherwise) in respect of borrowed money.
"SPECIFIED SWAP" means, subject to Part 1 of the Schedule, any rate swap
or currency exchange transaction now existing or hereafter entered into between
one party to this Agreement (or any applicable Specified Entity) and the other
party to this Agreement (or any applicable Specified Entity).
"STAMP TAX" means any stamp, registration, documentation or similar tax.
"TAX" means any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and additions
thereto) that is imposed by any government or other taxing authority in respect
of any payment under this Agreement other than a stamp, registration,
documentation or similar tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means (a) with respect to any Early Termination
Date occurring as a result of a Termination Event, all Affected Transactions and
(b) with respect to any Early Termination Date occurring as a result of an
Event of Default, all Swap Transactions, which in either case are in effect as
of the time immediately preceding the effectiveness of the notice designating
such Early Termination Date (or, in the case of an Event of Default specified in
Section 5(a)(vii), in effect as of the time immediately preceding such Early
Termination Date).
"TERMINATION CURRENCY" has the meaning specified in Part 1 of 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 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 the relevant Early Termination 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, a Tax Event Upon
Merger or a Credit Event Upon Merger.
"UNPAID AMOUNTS" owing to any party means, with respect to any Early
Termination Date, the aggregate of the amounts that became due and payable (or
that would have become due and payable but for Section 2(a)(iii) or the
designation or occurrence of such Early Termination Date) to such party under
Section 2(a)(i) in respect of all Terminated Transactions by reference to all
periods ended on or prior to such Early Termination Date and which remain
unpaid as at such Early Termination Date, together with (to the extent
permitted under applicable law and in lieu of any interest calculated under
Section 2(e)) interest thereon, in the currency of such amounts, from (and
including) the date such amounts became due and payable or would have become
due and payable to (but excluding) such Early Termination Date, calculated as
follows:--
(a) in the case of notice of an Early Termination Date given as a result of
an Event of Default:--
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(i) interest on such amounts due and payable by a Defaulting Party
will be calculated at the Default Rate; and
(ii) interest on such amounts due and payable by the other
party will be calculated at a rate per annum equal to the cost to such
other party (as certified by it) if it were to fund such amounts
(without proof or evidence of any actual cost): and
(b) in the case of notice of an Early Termination Date given as a result of a
Termination Event, interest on such amounts due and payable by either party
will be calculated at 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 and regardless of whether due and payable by such party) if it were
to fund or of funding such amounts.
Such amounts of interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
IN WITNESS WHEREOF the parties have executed this document as of the date
specified on the first page of this document.
Ford Credit Auto Loan Master Trust,
Ford Motor Credit Company Chemical Bank as Trustee
-------------------------------- -----------------------------------
(Name of party) (Name of party)
By: By:
----------------------------- --------------------------------
Name: Name:
Title: Title:
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SCHEDULE
to the
Interest Rate and Currency Exchange Agreement
dated as of February 15, 1996, between
Ford Motor Credit Company ("Party A"),
a corporation organized and existing
under the laws of the State of Delaware
and
Ford Credit Auto Loan Master Trust ("Party B"),
a trust organized and existing
under the laws of the State of New York, by
Chemical Bank,
as trustee (the "Trustee").
Part 1
Termination Provisions
In this Agreement:
(1) "Specified Entity" means (i) in relation to Party A, none
and (ii) in relation to Party B, none.
(2) The "Cross Default" provisions of Section 5(a)(vi) of this
Agreement will not apply to Party A or Party B.
(3) "Termination Currency" means Dollars.
(4) The "Credit Event upon Merger" provisions of Section
5(b)(iv) of this Agreement will not apply to Party A or Party B.
(5) This Agreement and all Swap Transactions hereunder shall
terminate upon the occurrence of an Early Amortization Event (other than the
Early Amortization Event in Section 9.01(a)) under the Pooling and Servicing
Agreement dated as of December 31, 1991, among Ford Credit Auto Receivables
Corporation, as seller, Ford Motor Credit Company, as servicer, and the Trustee
(as amended and supplemented, the "Pooling and Servicing Agreement"), as
supplemented by the Supplement (as defined in the Pooling and Servicing
Agreement) referred to in the attached confirmation letter (a "Special
Termination Event").
Upon the occurrence of a Special Termination Event, all payment
obligations pursuant to this Agreement and the Swap
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Transactions hereunder shall terminate and neither party shall have any further
payment obligations pursuant to this Agreement or any Swap Transaction
hereunder.
Part 2
Tax Representations
Not Applicable
Part 3
Documents To Be Delivered
For the purpose of Section 4(a) of this Agreement:
(1) The documents to be delivered are:
Party required to Date by which
deliver document Form/Document/Certificate to be delivered
---------------- ------------------------- ---------------
(a) Party A An opinion of counsel reasonably Closing Date*/
satisfactory in form and substance to Party
B.
(b) Party A A certificate of incumbency of Party A with Closing Date
respect to the authority of the person
executing this Agreement and related
documentation on its behalf.
(c) Party B An opinion of counsel reasonably Closing Date
satisfactory in form and substance to Party
A.
(d) Party B A certificate of incumbency of Party B Closing Date
with respect to the authority of the person
or persons executing this Agreement and
related documentation on its behalf.
(2) The information that is required to be delivered by a
party under paragraph 1 of Part 3 of this Schedule
__________________________________
*/ "Closing Date" shall have the meaning assigned to such term in the
Pooling and Servicing Agreement.
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will be covered by the representation in Section 3(d) of this
Agreement.
Part 4
Miscellaneous
(1) Governing Law. This Agreement shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
(2) Process Agent. Not applicable.
(3) Meaning of "Affiliate". "Affiliate", in relation to Party A, will mean any
person or entity controlled by Party A and, in relation to Party B, will have
the meaning specified in Section 14 of this Agreement.
(4) Multibranch Party. Not applicable.
(5) Addresses for Notices. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: The Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Funding Strategy
Telex No.: 9102404820 Answerback: FC TREAS II UD
Facsimile No.: 000-000-0000
Address for notices or communications to Party B:
Address: Chemical Bank, as Trustee for
the Ford Credit Auto Loan Master Trust
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Telex No.: 960910
Facsimile No.: 000-000-0000 or 000-000-0000
(6) Credit Support Document. Not applicable.
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(7) Netting of Payments. "Net Payments-Corresponding Payment Dates" will apply
for the purpose of Section 2(c) of this Agreement with effect from the date of
this Agreement.
Notwithstanding any other provision contained herein to the contrary:
(a) if the Business Day preceding a Floating Rate Payer B Payment
Date is not a Floating Rate Payer A Payment Date, the amount payable by the
Floating Rate Payer B on such Floating Rate Payer B Payment Date and the
accrued obligation of Floating Rate Payer A hereunder since the 15th day of the
preceding calendar month shall be netted; and
(b) if the Business Day preceding a Floating Rate Payer B Payment
Date is a Floating Rate Payer A Payment Date, the amount payable by Floating
Rate Payer B on such Floating Rate Payer B Payment Date and the sum of (i) the
accrued obligation of Floating Rate Payer A hereunder since the 15th day of the
preceding calendar month and (ii) any positive net accrued obligations for
Floating Rate Payer A calculated pursuant to clause (a) for the two preceding
periods (or, in the event of a Trigger Event, the number of periods since the
most recent Floating Rate Payer A Payment Date) shall be netted.
(8) Calculation Agent. Party B (acting through the Trustee, who
shall be acting onbehalf of the Trust) shall calculate, as promptly as
practicable, the applicable Floating Rate or Floating Rates for each Payment
Date, Calculation Period and Reset Date, as applicable, for all Swap
Transactions hereunder and shall give notice of such Floating Rate or Floating
Rates, as promptly as practicable, to Party A. For all other purposes, the
Calculation Agent will be Party A.
Part 5
Other Provisions
(1) Without affecting the provisions of this Agreement requiring the
calculation of certain net payment amounts, all payments under this Agreement
will be made without setoff or counterclaim.
(2) It is understood that the Trustee is executing this Agreement solely in its
capacity as Trustee to Party B as set forth in the Pooling and Servicing
Agreement and that under this Agreement there shall be no claims against or
liability of the Trustee in any other capacity or claims against the assets of
the Trustee and the Trustee shall have no liabilities, duties or standards of
care hereunder greater than those set forth in the Pooling and Servicing
Agreement. All duties, obligations and liabilities of Party B, including but
not limited to all representations,
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warranties and covenants of Party B shall apply to Party B and not to the
Trustee in its individual capacity.
(3) Party A by entering into this Agreement, hereby covenants and agrees
that it will not at any time institute against Party B any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law.
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Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
February 15, 1996
Ford Credit Auto Loan Master Trust,
by Chemical Bank, as Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Ford Credit Auto Loan
Master Trust, Series 1996-2
Swap Transaction
Dear Sirs:
The purpose of this letter agreement is to set forth the terms
and conditions of the Swap Transaction entered into between Ford Motor Credit
Company ("Party A") and Ford Credit Auto Loan Master Trust ("Party B"), by
Chemical Bank, as Trustee (the "Trustee"), on the Trade Date specified below
(the "Swap Transaction"). This letter agreement constitutes a "Confirmation"
as referred to in the Interest Rate and Currency Exchange Agreement specified
below.
1. The definitions and provisions contained in the 1991
ISDA Definitions (as published by the International Swap Dealers Association,
Inc.) (the "1991 ISDA Definitions"), are incorporated into this Confirmation.
In the event of any inconsistency between those definitions and provisions and
this Confirmation, this Confirmation will govern.
The capitalized terms which are not 1991 ISDA Definitions and
are used herein and not otherwise defined have the meanings assigned to them in
the Pooling and Servicing Agreement dated as of December 31, 1991, among Ford
Credit Auto Company Receivables Corporation, as seller, Ford Motor Credit
Company, as servicer, and the Trustee and as supplemented by the Series 1996-2
Supplement dated as of December 31, 1995 (as amended and supplemented, the
"Pooling and Servicing Agreement").
This Confirmation supplements, forms part of, and is subject
to, the Interest Rate and Currency Exchange Agreement dated as of February 15,
1996, as amended and supplemented from time to time (the "Swap Agreement")
between you and us. All provisions contained in the Swap Agreement govern this
Confirmation except as expressly modified below.
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2. The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Notional Amount: $[96-2 AMOUNT] on the Effective Date and for any Payment Date thereafter, $[96-2 AMOUNT] less
the sum of (i) all payments of principal to the Certificateholders from the Effective Date
through the immediately preceding Distribution Date and (ii) all unreimbursed Investor Chargeoffs
from the Effective Date through the immediately preceding Distribution Date
Trade Date: February 15, 1996
Effective Date: February 15, 1996
Termination Date: [ ]
Floating Amounts A:
Floating Rate Payer A: Party A
Floating Rate Payer A
Payment Dates: The 14th day of each January, April, July and October commencing on April 14, 1996, until the
Termination Date, subject to the Following Business Day Convention, or if a Trigger Event occurs,
the 14th day of each month, commencing on the 14th day of any month after a Trigger Event occurs,
until the Termination Date, subject to the Following Business Day Convention.
Floating Amount for the The product of the Notional Amount and Three-Month LIBOR (on February [2], 1996) plus 17 basis
First Floating Rate points, effective February 15, 1996, through but excluding the first Floating Rate Payer
Payer A Payment Date: A Payment Date and the applicable Floating Rate A Day Count Fraction.
Reset Date: The 15th day of each January, April, July and October.
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Reset Determination Two London Business Days prior to the Reset Date.
Date:
Calculation Period: From the Floating Rate Payer A Payment Date through and including the day immediately
preceding the following Floating Rate Payer A Payment Date.
Floating Rate A: Three-Month LIBOR plus 17 basis points (0.17%)
Floating Rate A Day
Count Fraction: Actual/360
Trigger Event: (a) the occurrence of an Early Amortization Event pursuant to Section 9.01(a); or (b)
Party A's long-term debt is rated below A by Standard and Poor's and Party A's
short-term debt is rated below A-1 by Standard & Poor's; or (c) either Party A's
long-term debt or Party A's short-term debt is rated below A2 and P-1, respectively, by
Xxxxx'x.
Floating Amounts B:
Floating Rate
Payer B: Party B
Initial Exchange
Amount: $[ ]
Initial Exchange
Date: February 15, 1996
Notwithstanding anything to the contrary in the 1991 ISDA
Definitions or the Swap Agreement, on any Floating Rate Payer B Payment Date
the Floating Rate Payer B shall pay the lesser of the amounts due on such
Floating Rate Payer B Payment Date under the "First Floating Rate Swap" and the
"Second Floating Rate Swap" as set forth below.
The First Floating Rate Swap shall have the following terms:
Floating Rate Payer B
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Period End Dates: [ ], and the last day of each month thereafter until [ ]
Floating Rate Payer B
Payment Dates: [March 15, 1996], and thereafter Delayed Payment shall apply and such Payment Dates
shall be the 15th day of the second month following each Floating Rate Payer B Period
End Date commencing with the [March 15, 1996] Floating Rate Payer B Payment Date ** /,
until the Termination Date, subject to the Following Business Day Convention
Floating Amount For The product of the Notional Amount and the Weighted Average of the Prime Rate (as
the First Floating defined below) on on the Reset Dates in June 1994, (as if the Calculation Period were
Rate Payer B Payment the month of June), and 11/360
Date:
Floating Rate B Option: The Prime Rate (as defined below)
Designated Maturity: One month
Floating Rate B Day
Count Fraction: Actual/360
Reset Dates: Each Friday of each calendar month, subject to the Following Business Day Convention
Method of Averaging: Weighted Average
The Second Floating Rate Swap shall have the following terms:
Floating Rate Payer B The 15th day of each month commencing on [March 15, 1996], until the Termination Date,
Payment Dates: subject to the Modified Following Business Day Convention (New York)
__________________________________
**/ The Floating Amount B payable on the [March 15, 1996] Floating Rate
Payer B Payment Date shall be calculated as if the Effective Date were [January
1, 1996].
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Floating Amount for the The product of the Notional Amount and USD-LIBOR-LIBO on [February 13, 1996],
First Floating Rate effective February 15, 1996, through but excluding [ ] and [11/360].
Payer B Payment Date:
Floating Rate Option: USD-LIBOR-LIBO
Designated Maturity: One month
Floating Rate B Day Actual/360
Count Fraction:
Reset Date: The first day of each Calculation Period
Reset Determination Two London Business Days prior
Date: to the Reset Date
Calculation Period: From the Floating Rate Payer B Payment Date through and including the day immediately
preceding the following Floating Rate Payer B Payment Date
3. Account Details
Payments to Party A: Xxxxxx Guaranty Trust Company of New York, New York branch, in favor of Ford Motor
Credit Company's Treasurer's Account
Account for payments: 02161658
Payments to Party B:
Account for payments: To be specified by Party B
4. "Prime Rate" shall mean for a Reset Date the median of the
rates of interest publicly announced effective on the second Thursday next
preceding such Reset Date by each of Chase Manhattan Bank, N.A., Chemical Bank,
Citibank, N.A., Xxxxxx Guaranty Trust Company of New York and Bank of America,
San Francisco, as its U.S. Dollar "prime rate" or "base rate" for that Reset
Date, less 1.50 percent. In the event any of the foregoing banks ceases to
exist, then the parties shall make such adjustments to the definition of Prime
Rate as they agree are appropriate.
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Please confirm that the foregoing correctly sets forth
the terms of our agreement by executing the copy of this Confirmation enclosed
for that purpose and returning it to us.
Very truly yours,
FORD MOTOR CREDIT COMPANY
By:
-------------------------
Name:
Title:
Accepted and confirmed
as of the date first
above written:
FORD CREDIT AUTO LOAN MASTER TRUST,
by Chemical Bank, as Trustee,
By:
--------------------------------
Name:
Title:
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