Exhibit 10.3
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of June 14, 2001
XXXXXX XXXXXXX CAPITAL SERVICES INC. and MMCA AUTO OWNER TRUST 2001-2
have entered and/or anticipate entering into one or more transactions (each
a "Transaction") that are or will be governed by this Master Agreement,
which includes the schedule (the "Schedule"), and the documents and other
confirming evidence (each a "Confirmation") exchanged between the parties
confirming those Transactions.
Accordingly, the parties agree as follows:
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master
Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purposes of the relevant
Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any
Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in
each Confirmation to be made by it, subject to the other
provisions of this Agreement.
(ii) Payments under this Agreement will be made on the due date
for value on that date in the place of the account specified in
the relevant Confirmation or otherwise pursuant to this Agreement,
in freely transferable funds and in the manner customary for
payments in the required currency. Where settlement is by delivery
(that is, other than by payment), such delivery will be made for
receipt on the due date in the manner customary for the relevant
obligation unless otherwise specified in the relevant Confirmation
or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is
subject to (1) the condition precedent that no Event of Default or
Potential Event of Default with respect to the other party has
occurred and is continuing, (2) the condition precedent that no
Early Termination Date in respect of the relevant Transaction has
occurred or been effectively designated and (3) each other
applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to
which such change applies unless such other party gives timely notice of a
reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party
by whom the larger aggregate amount would have been payable to pay to the
other party the excess of the larger aggregate amount over the smaller
aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions, regardless of
whether such amounts are payable in respect of the same Transaction. The
election may be made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date (in which
case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for
different groups of Transactions and will apply separately to each pairing
of Offices through which the parties make and receive payments or
deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made
without any deduction or withholding for or on account of any Tax
unless such deduction or withholding is required by any applicable
law, as modified by the practice of any relevant governmental
revenue authority, then in effect. If a party is so required to
deduct or withhold, then that party ("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount
required to be deducted or withheld (including the full
amount required to be deducted or withheld from any
additional amount paid by X to Y under this Section 2(d))
promptly upon the earlier of determining that such
deduction or withholding is required or receiving notice
that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a
certified copy), or other documentation reasonably
acceptable to Y, evidencing such payment to such
authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in
addition to the payment to which Y is otherwise entitled
under this Agreement, such additional amount as is
necessary to ensure that the net amount actually received
by Y (free and clear of Indemnifiable Taxes, whether
assessed against X or Y) will equal the full amount Y
would have received had no such deduction or withholding
been required. However, X will not be required to pay any
additional amount to Y to the extent that it would not be
required to be paid but for:--
(A) the failure by Y to comply with or perform
any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y
pursuant to Section 3(f) to be accurate and true
unless such failure would not have occurred but
for (I) any action taken by a taxing authority,
or brought in a court of competent jurisdiction,
on or after the date on which a Transaction is
entered into (regardless of whether such action
is taken or brought with respect to a party to
this Agreement) or (II) a Change in Tax Law.
(ii) Liability. If:--
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to
make any deduction or withholding in respect of which X
would not be required to pay an additional amount to Y under
Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the
amount of such liability (including any related liability for
interest, but including any related liability for penalties only
if Y has failed to comply with or perform any agreement contained
in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by law and subject to Section
6(c), be required to pay interest (before as well as after judgment) on the
overdue amount to the other party on demand in the same currency as such
overdue amount, for the period from (and including) the original due date
for payment to (but excluding) the date of actual payment, at the Default
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed. If, prior to the occurrence or
effective designation of an Early Termination Date in respect of the
relevant Transaction, a party defaults in the performance of any obligation
required to be settled by delivery, it will compensate the other party on
demand if and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction is
entered into and, in the case of the representations in Section 3(f), at
all times until the termination of this Agreement) that:--
(f) Basic Representations.
(i) Status. It is duly organized and validly existing under the
laws of the jurisdiction of its organization or incorporation and,
if relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any
other documentation relating to this Agreement to which it is a
party, to deliver this Agreement and any other documentation
relating to this Agreement that it is required by this Agreement
to deliver and to perform its obligations under this Agreement and
any obligations it has under any Credit Support Document to which
it is a party and has taken all necessary action to authorise such
execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable to
it, any provision of'its constitutional documents, any order or
judgment of any court or other agency of government applicable to
it or any of its assets or any contractual restriction binding on
or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are
required to have been obtained by it with respect to this
Agreement or any Credit Support Document to which it is a party
have been obtained and are in full force and effect and all
conditions of any such consents have been complied with; and
(v) Obligations Binding. Its obligations under this Agreement and
any Credit Support Document to which it is a party constitute its
legal, valid and binding obligations, enforceable in accordance
with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to
equitable principles of general application (regardless of whether
enforcement is sought in a proceeding in equity or at law)).
(g) 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.
(h) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or
proceeding at law or inequity or before any court, tribunal, governmental
body, agency or official or any arbitrator that is likely to affect the
legality, validity or enforceability against it of this Agreement or any
Credit Support Document to which it is a party or its ability to perform
its obligations under this Agreement or such Credit Support Document.
(i) 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.
(j) 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.
(k) 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:--
(l) 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.
(m) 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.
(n) 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.
(o) 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.
(p) 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
(q) Events of Default. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any of the following events constitutes
an event of default (an "Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when
due, any payment under this Agreement or delivery under Section
2(a)(i) or 2(e) required to be made by it if such failure is not
remedied on or before the third Local Business Day after notice of
such failure is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to
make any payment under this Agreement or delivery under Section
2(a)(i) or 2(e) or to give notice of a Termination Event or any
agreement or obligation under Section 4(a)(i), 4(a)(iii) or 4(d))
to be complied with or performed by the party in accordance with
this Agreement if such failure is not remedied on or before the
thirtieth day after notice of such failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of
such party to comply with or perform any agreement or
obligation to be complied with or performed by it in
accordance with any Credit Support Document if such failure
is continuing after any applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of
this Agreement (in either case other than in accordance with
its terms) prior to the satisfaction of all obligations of
such party under each Transaction to which such Credit
Support Document relates without the written consent of the
other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a
representation under Section 3(e) or (f)) made or repeated or
deemed to have been made or repeated by the party or any Credit
Support Provider of such party in this Agreement or any Credit
Support Document proves to have been incorrect or misleading in
any material respect when made or repeated or deemed to have been
made or repeated;
(v) Default under Specified Transaction. The party, any Credit
Support Provider of such party or any applicable Specified Entity
of such party (l) defaults under a Specified Transaction and,
after giving effect to any applicable notice requirement or grace
period, there occurs a liquidation of, an acceleration of
obligations under, or an early termination of, that Specified
Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or
delivery due on the last payment, delivery or exchange date of, or
any payment on early termination of, a Specified Transaction (or
such default continues for at least three Local Business Days if
there is no applicable notice requirement or grace period) or (3)
disaffirms, disclaims, repudiates or rejects, in whole or in part,
a Specified Transaction (or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the
Schedule as applying to the party, the occurrence or existence of
(l) a default, event of default or other similar condition or
event (however described) in respect of such party, any Credit
Support Provider of such party or any applicable Specified Entity
of such party under one or more agreements or instruments relating
to Specified Indebtedness of any of them (individually or
collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which
has resulted in such Specified Indebtedness becoming, or becoming
capable at such time of being declared, due and payable under such
agreements or instruments, before it would otherwise have been due
and payable or (2) a default by such party, such Credit Support
Provider or such Specified Entity (individually or collectively)
in making one or more payments on the due date thereof in an
aggregate amount of not less than the applicable Threshold Amount
under such agreements or instruments (after giving effect to any
applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable
to pay its debts or fails or admits in writing its inability
generally to pay its debts as they become due; (3) makes a
general assignment, arrangement or composition with or for
the benefit of its creditors; (4) institutes or has
instituted against it a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such
proceeding or petition instituted or presented against it,
such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for relief
or the making of an order for its winding-up or liquidation
or (B) is not dismissed, discharged, stayed or restrained in
each case within 30 days of the institution or presentation
thereof; (5) has a resolution passed for its winding-up,
official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or
other similar official for it or for all or substantially
all its assets; (7) has a secured party take possession of
all or substantially all its assets or has a distress,
execution, attachment, sequestration or other legal process
levied, enforced or sued on or against all or substantially
all its assets and such secured party maintains possession,
or any such process is not dismissed, discharged, stayed or
restrained, in each case within 30 days thereafter; (8)
causes or is subject to any event with respect to it which,
under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses
(1) to (7) (inclusive); or (9) takes any action in
furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges
with or into, or transfers all or substantially all its assets to,
another entity and, at the time of such consolidation,
amalgamation, merger or transfer:--
(1) the resulting, surviving or transferee entity fails to
assume all the obligations of such party or such Credit
Support Provider under this Agreement or any Credit Support
Document to which it or its predecessor was a party by
operation of law or pursuant to an agreement reasonably
satisfactory to the other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to
extend (without the consent of the other party) to the
performance by such resulting, surviving or transferee
entity of its obligations under this Agreement.
(r) Termination Events. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any event specified below constitutes an
Illegality if the event is specified in (i) below, a Tax Event if the event
is specified in (ii) below, or a Tax Event Upon Merger if the event is
specified in (iii) below, and, if specified to be applicable, a Credit
Event Upon Merger if the event is specified pursuant to (iv) below, or an
Additional Termination Event if the event is specified pursuant to (v)
below:--
(i) Illegality. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is entered
into, or due to the promulgation of, or any change in, the
interpretation by any court, tribunal or regulatory authority with
competent jurisdiction of any applicable law after such date, it
becomes unlawful (other than as a result of a breach by the party
of Section 4(b)) for such party (which will be the Affected
Party):--
(1) to perform any absolute or contingent obligation to
make a payment or delivery or to receive a payment or
delivery in respect of such Transaction or to comply with
any other material provision of this Agreement relating
to such Transaction; or
(2) to perform, or for any Credit Support Provider of
such party to perform, any contingent or other obligation
which the party (or such Credit Support Provider) has
under any Credit Support Document relating to such
Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority,
or brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of whether
such action is taken or brought with respect to a party to this
Agreement) or (y) a Change in Tax Law, the party (which will be
the Affected Party) will, or there is a substantial likelihood
that it will, on the next succeeding Scheduled Payment Date (1) be
required to pay to the other party an additional amount in respect
of an Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2)
receive a payment from which an amount is required to be deducted
or withheld for or on account of a Tax (except in respect of
Interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional
amount is required to be paid in respect of such Tax under Section
2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on
the next succeeding Scheduled Payment Date will either (1) be
required to pay an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount has been deducted or withheld for or
on account of an Indemnifiable Tax in respect of which the other
party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a
result of a party consolidating or amalgamating with, or merging
with or into, or transferring all or substantially all its assets
to, another entity (which will be the Affected Party) where such
action does not constitute an event described in Section
5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party
("X"), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or merges
with or into, or transfers all or substantially all its assets to,
another entity and such action does not constitute an event
described in Section 5(a)(viii) but the creditworthiness of the
resulting, surviving or transferee entity is materially weaker
than that of X, such Credit Support Provider or such Specified
Entity, as the case may be, immediately prior to such action (and,
in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination
Event" is specified in the Schedule or any Confirmation as
applying, the occurrence of such event (and, in such event, the
Affected Party or Affected Parties shall be as specified for such
Additional Termination Event in the Schedule or such
Confirmation).
(s) 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
(t) 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).
(u) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party,
specifying the nature of that Termination Event and each Affected
Transaction and will also give such other information about that
Termination Event as the other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality
under Section 5(b)(i)(1) or a Tax Event occurs and there is only
one Affected Party, or if a Tax Event Upon Merger occurs and the
Burdened Party is the Affected Party, the Affected Party will, as
a condition to its right to designate an Early Termination Date
under Section 6(b)(iv), use all reasonable efforts (which will not
require such party to incur a loss, excluding immaterial,
incidental expenses) to transfer within 20 days after it gives
notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another
of its Offices or Affiliates so that such Termination Event ceases
to exist.
If the Affected Party is not able to make such a transfer it will
give notice to the other party to that effect within such 20 day
period, whereupon the other party may effect such a transfer
within 30 days after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the
other party, which consent will not be withheld if such other
party's policies in effect at such time would permit it to enter
into transactions with the transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section
5(b)(i)(1) or a Tax Event occurs and there are two Affected
Parties, each party will use all reasonable efforts to reach
agreement within 30 days after notice thereof is given under
Section 6(b)(i) on action to avoid that Termination Event.
(iv) Right to Terminate. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been effected
with respect to all Affected Transactions within 30 days
after an Affected Party gives notice under Section 6(b)(i);
or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event
Upon Merger or an Additional Termination Event occurs, or a
Tax Event Upon Merger occurs and the Burdened Party is not
the Affected Party,
either party in the case of an Illegality, the Burdened Party in
the case of a Tax Event Upon Merger, any Affected Party in the
case of a Tax Event or an Additional Termination Event if there is
more than one Affected Party, or the party which is not the
Affected Party in the case of a Credit Event Upon Merger or an
Additional Termination Event if there is only one Affected Party
may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then continuing,
designate a day not earlier than the day such notice is effective
as an Early Termination Date in respect of all Affected
Transactions.
(v) 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).
(w) 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.
(x) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that "Market Quotation"or the "Second Method",
as the case may be, shall apply. The amount, if any, payable in respect of
an Early Termination Date and determined pursuant to this Section will be
subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from
an Event of Default:--
(1) First Method and Market Quotation. If the First Method
and Martet Quotation apply, the Defaulting Party will pay to
the Non-defaulting Party the excess, if a positive number,
of (A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party over (B)
the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss
apply, the Defaulting Party will pay to the Non-defaulting
Party, if a positive number, the Non-defaulting Party's Loss
in respect of this Agreement.
(3) Second Method and Market Quotation. If the Second Method
and Market Quotation apply, an amount will be payable equal
to (A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party less (B)
the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party. If that amount is a positive
number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absointe value of that
amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss
apply, an amount will be payable equal to the Non-defaulting
Party's Loss in respect of this Agreement. If that amount is
a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that
amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from
a Termination Event:--
(1) One Affected Party. If there is one Affected Party, the
amount payable will be determined in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section
6(e)(i)(4), if Loss applies, except that, in either case,
references to the Defaulting Party and to the Non-defaulting
Party will be deemed to be references to the Affected Party
and the party which is not the Affected Party, respectively,
and, if Loss applies and fewer than all the Transactions are
being terminated, Loss shall be calculated in respect of all
Terminated Transactions.
(2) Two Affected Parties. If there are two Affected
Parties:--
(A) if Market Quotation applies, each party will
determine a Settlement Amount in respect of the
Terminated Transactions, and an amount will be
payable equal to (I) the sum of (a) one-half of
the difference between the Settlement Amount of
the party with the higher Settlement Amount
("X") and the Settlement Amount of the party
with the lower Settlement Amount ("Y") and (b)
the Termination Currency Equivalent of the
Unpaid Amounts owing to X less (II) the
Termination Currency Equivalent of the Unpaid
Amounts owing to Y; and
(B) if Loss applies, each party will determine
its Loss in respect of this Agreement (or, if
fewer than all the Transactions are being
terminated, in respect of all Terminated
Transactions) and an amount will be payable
equal to one-half of the difference between the
Loss of the party with the higher Loss ("X") and
the Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it
to X; if it is a negative number, X will pay the absolute
value of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination"
applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are
appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement
(and retained by such other party) during the period from the
relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation
applies an amount recoverable under this Section 6(e) is a
reasonable pre-estimate of loss and not a penalty. Such amount is
payable for the loss of bargain and the loss of protection against
future risks and except as otherwise provided in this Agreement
neither party will be entitled to recover any additional damages
as a consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that:--
(y) 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
(z) 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
(aa) Payment in the Contractual Currency. Each payment under this Agreement
will he made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the
Contractual Currency will not be discharged or satisfied by any tender in
any currency other than the Contractual Currency, except to the extent such
tender results in the actual receipt by the party to which payment is owed,
acting in a reasonable manner and in good faith in converting the currency
so tendered into the Contractual Currency, of the full amount in the
Contractual Currency of all amounts payable in respect of this Agreement.
If for any reason the amount in the Contractual Currency so received falls
short of the amount in the Contractual Currency payable in respect of this
Agreement, the party required to make the payment will, to the extent
permitted by applicable law, immediately pay such additional amount in the
Contractual Currency as may be necessary to compensate for the shortfall.
If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount
of such excess.
(bb) 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.
(cc) 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.
(dd) Evidence of Loss. For the purpose of this Section 8, it will he
sufficient for a party to demonstrate that it would have suffered a loss
had an actual exchange or purchase been made.
9. Miscellaneous
(ee) 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.
(ff) 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.
(gg) 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.
(hh) 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.
(ii) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will he
deemed an original.
(ii) The parties intend that they are legally bound by the terms
of each Transaction from the moment they agree to those terms
(whether orally or otherwise). A Confirmation shall be entered
into as soon as practicable and may be executed and delivered in
counterparts (including by facsimile transmission) or be created
by an exchange of telexes or by an exchange of electronic messages
on an electronic messaging system, which in each case will be
sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through
another effective means that any such counterpart, telex or
electronic message constitutes a Confirmation.
(jj) 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.
(kk) 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
(ll) If Section 10(a) is specified in the Schedule as applying, each party
that enters into a Transaction through an Office other than its head or
home office represents to the other party that, notwithstanding the place
of booking office or jurisdiction of incorporation or organization of such
party, the obligations of such party are the same as if it had entered into
the Transaction through its head or home office. This representation will
be deemed to be repeated by such party on each date on which a Transaction
is entered into.
(mm) 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.
(nn) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other
party for and against all reasonable out-of-pocket expenses, including
legal fees and Stamp Tax, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any Credit
Support Document to which the Defaulting Party is a party or by reason of
the early termination of any Transaction, including, but not limited to,
costs of collection.
12. Notices
(oo) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice
or other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the
date it is delivered;
(ii) if sent by telex, on the date the recipient's answer back is
received;
(iii) if sent by facsimile transmission, on the date that
transmission is received by a responsible employee of the
recipient in legible form (it being agreed that the burden of
proving receipt will be on the sender and will not be met by a
transmission report generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if
overseas) or the equivalent (return receipt requested), on the
date that mail is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received,
unless the date of that delivery (or attempted delivery) or that
receipt, as applicable, is not a Local Business Day or that
communication is delivered (or attempted) or received, as
applicable, after the close of business on a Local Business Day,
in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(pp) 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
(qq) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(rr) 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.
(ss) 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.
(tt) Waiver of Immunities. Each party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its revenues
and assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds from (i) suit, (ii)
jurisdiction of any court, (iii) relief by way of injunction, order for
specific performance or for recovery of property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution or enforcement
of any judgment to which it or its revenues or assets might otherwise be
entitled in any Proceedings in the courts of any jurisdiction and
irrevocably agrees, to the extent permitted by applicable law, that it will
not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified the Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b)
with respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose,
"control" of any entity or person means ownership of a majority of the
voting power of the entity or person.
"Applicable Rate" means:--
(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 Rate (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, authorization, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is
specified as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if
it were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with
Section 6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be
imposed in respect of a payment under this Agreement but for a present or
former connection between the jurisdiction of the government or taxation
authority imposing such Tax and the recipient of such payment or a person
related to such recipient (including, without limitation, a connection
arising from such recipient or related person being or having been a
citizen or resident of such jurisdiction, or being or having been
organized, present or engaged in a trade or business in such jurisdiction,
or having or having had a permanent establishment or fixed place of
business in such jurisdiction, but excluding a connection arising solely
from such recipient, or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the
case of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) (a) in relation to any obligation
under Section 2(a)(i), in the place(s) specified in the relevant
Confirmation or, if not so specified, as otherwise agreed by the parties in
writing or determined pursuant to provisions contained, or incorporated by
reference, in this Agreement, (b) in relation to any other payment, in the
place where the relevant account is located and, if different, in the
principal financial center, if any, of the currency of such payment, (c) in
relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address
for notice provided by the recipient and, in the case of a notice
contemplated by Section 2(b), in the place where the relevant new account
is to be located and (d) in relation to Section 5(a)(v)(2), in the relevant
locations for performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to
be its total losses and costs (or gain, in which case expressed as a
negative number) in connection with this Agreement or that Terminated
Transaction or group of Terminated Transactions, as the case may be,
including any loss of bargain, cost of funding, or at the election of such
party but without duplication, loss or cost incurred as a result of its
terminating, liquidating, obtaining or reestablishing any hedge or related
trading position (or any gain resulting from any of them). Loss includes
losses and costs (or gains) in respect of any payment or delivery required
to have been made (assuming satisfaction of each applicable condition
precedent) on or before the relevant Early Termination Date and not made,
except, so as to avoid duplication, if Section 6(e)(i)(1) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and out-
of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not
reasonably practicable, as of the earliest date thereafter as is reasonably
practicable. A party may (but need not) determine its Loss by reference to
quotations of relevant rates or prices from one or more leading dealers in
the relevant markets.
"Market Quotation" means, with respect to one or more Terminated
Transactions and a party making the determination, an amount determined on
the basis of quotations from Reference Market-makers. Each quotation will
be for an amount, if any, that would be paid to such party (expressed as a
negative number) or by such party (expressed as a positive number) in
consideration of an agreement between such party (taking into account any
existing Credit Support Document with respect to the obligations of such
party) and the quoting Reference Market-maker to enter into a transaction
(the "Replacement Transaction") that would have the effect of preserving
for such party the economic equivalent of any payment or delivery (whether
the underlying obligation was absolute or contingent and assuming the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of
Terminated Transactions that would, but for the occurrence of the relevant
Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group
of Terminated Transactions are to be excluded but, without limitation, any
payment or delivery that would, but for the relevant Early Termination
Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included.
The Replacement Transaction would be subject to such documentation as such
party and the Reference Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable
as of the same day and time (without regard to different time zones) on or
as soon as reasonably practicable after the relevant Early Termination
Date. The day and time as of which those quotations are to be obtained will
be selected in good faith by the party obliged to make a determination
under Section 6(e), and, if each party is obliged, after consultation with
the other. If more than three quotations are provided, the Market Quotation
will be the arithmetic mean of the quotations, without regard to the
quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation
remaining after disregarding the highest and lowest quotations. For this
purpose, if more than one quotation has the same highest value or lowest
value, then one of such quotations shall he disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation
in respect of such Terminated Transaction or group of Terminated
Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof
or evidence of any actual cost) to the Non-defaulting Party (as certified
by it) if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's
head or home office.
"Potential Event of Default" means any event which, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer
or to make an extension of credit and (b) to the extent practicable, from
among such dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions
(a) in which the party is incorporated, organized, managed and controlled
or considered to have its seat, (b) where an Office through which the party
is acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through
which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to
be made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of
retention or withholding or similar right or requirement to which the payer
of an amount under Section 6 is entitled or subject (whether arising under
this Agreement, another contract, applicable law or otherwise) that is
exercised by, or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early
Termination Date, the sum of:--
(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, basic swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect
to any of these transactions), (b) any combination of these transactions
and (c) any other transaction identified as a Specified Transaction in this
Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and
additions thereto) that is imposed by any government or other taxing
authority in respect of any payment under this Agreement other than a
stamp, registration, documentation or similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date
(a) if resulting from a Termination Event, all Affected Transactions and
(b) if resulting from an Event of Default, all Transactions (in either
case) in effect immediately before the effectiveness of the notice
designating that Early Termination Date (or, if "Automatic Early
Termination" applies, immediately before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount
denominated in the Termination Currency, such Termination Currency amount
and, in respect of any amount denominated in a currency other than the
Termination Currency (the "Other Currency"), the amount in the Termination
Currency determined by' the party making the relevant determination as
being required to purchase such amount of such Other Currency as at the
relevant Early Termination Date, or, if the relevant Market Quotation or
Loss (as the case may be), is determined as of a later date, that later
date, with the Termination Currency at the rate equal to the spot exchange
rate of the foreign exchange agent (selected as provided below) for the
purchase of such Other Currency with the Termination Currency at or about
11:00 am. (in the city in which such foreign exchange agent is located) on
such date as would be customary for the determination of such a rate for
the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if
only one party is obliged to make a determination under Section 6(e), be
selected in good faith by that party and otherwise will be agreed by the
parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of
the cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on
or prior to such Early Termination Date and which remain unpaid as at such
Early Termination Date and (b) in respect of each Terminated Transaction,
for each obligation under Section 2(a)(i) which was (or would have been but
for Section 2(a)(iii) required to be settled by delivery to such party on
or prior to such Early Termination Date and which has not been so settled
as at such Early Termination Date, an amount equal to the fair market value
of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or
would have been required to have been paid or performed to (but excluding)
such Early Termination Date, at the Applicable Rate. Such amounts of
interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation
referred to in clause (b) above shall be reasonably determined by the party
obliged to make the determination under Section 6(e) or, if each party is
so obliged, it shall be the average of the Termination Currency.
Equivalents of the fair market values reasonably determined by both
parties.
IN WITNESS WHEREOF the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
XXXXXX XXXXXXX CAPITAL SERVICES INC. MMCA AUTO OWNER TRUST 2001-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor
as a principal to this Master
Agreement, but solely as Owner
Trustee
By: /s/ Xxxxxxxx Xxxx By:/s/ Xxxxx X. Xxxxxx
------------------------------ ----------------------------------
Name: Xxxxxxxx Xxxx Name:Xxxxx X. Xxxxxx
Title:Vice President Title: Vice President
SCHEDULE to the ISDA Master Agreement
Dated as of June 14, 2001
between
XXXXXX XXXXXXX CAPITAL SERVICES INC. ("MSCS")
and
MMCA AUTO OWNER TRUST 2001-2 (the "Trust")
Part 1 Termination Provisions.
(a) "Specified Entity" means:
(i) in relation to MSCS: Not Applicable.
(ii) in relation to the Trust: Not Applicable.
(b) "Specified Transaction" shall have the meaning specified in
Section 14 of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) will not
apply to MSCS or to the Trust.
(d) The "Credit Support Default" provisions of Section 5(a)(iii), if
applicable, will apply to MSCS and will not apply to the Trust.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) will not
apply to MSCS or to the Trust.
(f) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to MSCS or to the Trust.
(g) The "Cross Default" provisions of Section 5(a)(vi) will not apply
to MSCS or to the Trust.
(h) The "Merger Without Assumption" provisions of Section 5(a)(viii)
will apply to MSCS and will apply to the Trust.
(i) The "Tax Event" provision of Section 5(b)(ii) will apply to MSCS
and will not apply to the Trust, so that only the Trust may
designate an Early Termination Date in respect of such event.
(j) The "Tax Event Upon Merger" provision of Section 5(b)(iii) will
apply to MSCS and will not apply to the Trust, so that only the
Trust may designate an Early Termination Date in respect of such
event.
(k) The "Credit Event Upon Merger" provision in Section 5(b)(iv), will
not apply to MSCS or to the Trust.
(l) The "Automatic Early Termination" provision of Section 6(a) will
not apply to MSCS or to the Trust.
(m) Payments on Early Termination. For the purpose of Section 6(e) of
this Agreement:
(i) Market Quotation will apply unless the Trust is the
Non-defaulting Party or the party which is not the Affected
Party, as the case may be, and the Trust enters into a
replacement Transaction on or prior to the Early Termination
Date, in which event Loss will apply.
(ii) The Second Method will apply, provided, however, that any
payments payable by the Trust to MSCS hereunder will be pari
passu and pro rata with payments of interest made on the
Class A Notes from Total Available Funds pursuant to Section
2.8 of the Indenture.
(n) "Termination Currency" means United States Dollars.
(o) "Additional Termination Event". The following shall constitute an
Additional Termination Event:
(i) Acceleration or Liquidation of the Notes. It shall be an
Additional Termination Event with the Trust the sole
Affected Party if MSCS or the Trust elects to terminate the
Transactions (1) following an Event of Default as defined in
Section 5.1(i) or Section 5.1(ii) of the Indenture which has
resulted in an acceleration of the Notes, provided such
acceleration has not been rescinded and annulled pursuant to
Section 5.2(b) of the Indenture, or (2) upon a liquidation
of the Trust Estate pursuant to Section 5.4(a)(iv) or
Section 5.4(b) of the Indenture. In such event, either MSCS
or the Trust may, by not more than 20 days notice to the
other party and provided such Additional Termination Event
is continuing, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect
of all Affected Transactions. If an event or circumstance
which would constitute an Event of Default by MSCS under
this Agreement gives rise to an Event of Default under the
Indenture, it will be treated as an Event of Default by MSCS
and not an Additional Termination Event.
(ii) Amendments Made Without Consent of MSCS. It shall be an
Additional Termination Event if any amendment or supplement
to the Indenture or to any of the Receivables Transfer and
Servicing Agreements which would adversely affect any of
MSCS' rights or obligations under this Agreement or modify
the obligations of, or impair the ability of the Trust to
fully perform any of the Trust's obligations under, this
Agreement is made without the consent of MSCS, which consent
shall not be unreasonably withheld (in which case the Trust
will be the Affected Party).
(iii) Downgrade of Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co ("MSDW"). It
shall be an Additional Termination Event with MSCS the
Affected Party if:
(1) the long-term or the short-term Credit Rating of
MSDW is suspended or withdrawn or downgraded below
"A" or "F-1", respectively, by Fitch and, within 30
days of such suspension, withdrawal or downgrade
MSCS shall fail to (a) deliver or post collateral
reasonably acceptable to the Trust and acceptable to
Fitch in amounts sufficient or in accordance with
the standards of Fitch (as such standards may be
modified while any Transaction is still
outstanding), to secure its obligations under this
Agreement, (b) assign its rights and obligations
under this Agreement to a replacement counterparty
reasonably acceptable to the Trust and to Fitch or
(c) establish other arrangements necessary
(including, without limitation, causing an entity
with ratings such that if MSCS or its Credit Support
Provider had such ratings, this Additional
Termination Event would not have occurred, to
guarantee or provide an indemnity in respect of
MSCS' or its Credit Support Provider's obligations
under this Agreement in form and substance
reasonably satisfactory to Fitch), if any, in each
case so that Fitch confirms the ratings of the Notes
that were in effect immediately prior to such
suspension, withdrawal or downgrade; or
(2) the long-term Credit Rating of MSDW is suspended or
withdrawn or downgraded below "A2" by Xxxxx'x and,
within 30 days of such suspension, withdrawal or
downgrade MSCS shall fail to (a) deliver or post
collateral reasonably acceptable to the Trust and
acceptable to Xxxxx'x in amounts sufficient or in
accordance with the standards of Xxxxx'x (as such
standards may be modified while any Transaction is
still outstanding), to secure its obligations under
this Agreement, (b) assign its rights and
obligations under this Agreement to a replacement
counterparty reasonably acceptable to the Trust and
to Xxxxx'x or (c) establish other arrangements
necessary (including, without limitation, causing an
entity with ratings such that if MSCS or its Credit
Support Provider had such ratings, this Additional
Termination Event would not have occurred, to
guarantee or provide an indemnity in respect of
MSCS' or its Credit Support Provider's obligations
under this Agreement in form and substance
reasonably satisfactory to Xxxxx'x), if any, in each
case so that Xxxxx'x confirms the ratings of the
Notes that were in effect immediately prior to such
suspension, withdrawal or downgrade.
(iv) Failure to Maintain Security Interest. It shall be an
Additional Termination Event with the Trust the Affected
Party if the Trust fails to maintain the first priority
perfected security interest of MSCS in the Collateral under
the Indenture.
Part 2 Tax Representations.
(a) Payer Tax Representations. For the purposes of Section 3(e) of this
Agreement, MSCS and the Trust will each make the following
representations to the other:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for or
on account of any Tax from any payment (other than interest under
Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by it
to the other party under this Agreement. In making this
representation, each party may rely on:
(i) the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement of the other party
contained in Section 4(a)(i) or 4(a)(iii) of this Agreement
and the accuracy and effectiveness of any document provided
by the other party pursuant to Section 4(a)(i) or 4(a)(iii)
of this Agreement, and
(iii) the satisfaction of the agreement of the other party
contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation
where reliance is placed on clause (ii) and the other party does
not deliver a form or document under Section 4(a)(iii) by reason
of material prejudice to its legal or commercial position.
(b) Payee Tax Representations.
(i) For the purpose of Section 3(f) of this Agreement, MSCS
represents to the Trust that it is a corporation organized
under the laws of the State of Delaware.
(ii) For the purpose of Section 3(f) of this Agreement, the Trust
represents to MSCS that it is a business trust organized and
existing under the laws of the State of Delaware.
(iii) MSCS represents that it is an exempt recipient under
Treasury Regulation Section 1.6049-4(c)(1)(ii), and the
Trust represents that it is wholly-owned by a "United States
person" and disregarded as an entity separate from its owner
for U.S. federal tax purposes.
Part 3 Documents to be delivered.
(a) For the purpose of Section 4(a)(i), the documents to be delivered are:
Party required to Form/Document/ Date by which to be delivered Section 3(d)
deliver document Certificate Representation
MSCS and the Trust An executed United States (i) Upon execution of this Applicable
Internal Revenue Service Form Agreement, (ii) promptly upon
W-9 (or any successor reasonable demand by the
thereto). other party and (iii)
promptly upon learning
that any such form
previously provided by such
party has become obsolete
or incorrect.
(b) For the purposes of Section 4(a)(ii), the other documents to be
delivered are as follows:
Party required to Form/Document/ Date by which to be delivered Section 3(d)
deliver document Certificate representation:
MSCS and the Trust Evidence of the Upon or prior to the execution Applicable
authority, incumbency and and delivery of this Agreement
specimen signature of and, with respect to any
each person executing Confirmation upon request by
this Agreement or any the other party.
Confirmation, Credit
Support Document or other
document entered into in
connection with this
Agreement on its behalf
or on behalf of a Credit
Support Provider or
otherwise, as the case
may be.
The Trust Certified copies of As soon as practicable after Applicable
documents evidencing each the execution of this Agreement
Party's capacity to
execute and deliver this
Agreement, each
Confirmation and any
Credit Support Document
(if applicable), and to
perform its obligations
hereunder or thereunder
as may be reasonably
requested by the other
party.
MSCS A copy of the annual Promptly after request by the Applicable
report of its Credit Trust.
Support Provider,
including annual audited
financial statements of
its Credit Support
Provider prepared in
accordance with generally
accepted accounting
principles in the country
in which its Credit
Support Provider is
organized.
The Trust Monthly reports to On or prior to each Monthly Applicable
noteholders and to Payment Date.
holders of the
certificate (and all
other such notices
required to be given to
noteholders and to
holders of the
certificate, as specified
in the Indenture).
MSCS and the Trust A legal opinion in form On or prior to the Closing Not Applicable
and substance satisfactory Date.
to the other party.
The Trust A copy of the executed As soon as practical after the Not Applicable
Indenture and of each of Closing Date.
the Receivables Transfer
and Servicing Agreements.
MSCS and the Trust Such other documents as Promptly upon request of the Not Applicable
the other party may other party.
reasonably request.
Part 4 Miscellaneous.
(a) Address for Notices. For the purpose of Section 12(a) of this
Agreement, the addresses for notices and communications to MSCS
and the Trust shall be as follows:
TO MSCS:
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Fixed Income Derivatives -
Transaction Management Manager
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co.
1221 Avenue of the Americas, 00xx Xxxxx
Xxxxx Xxxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx (Fixed Income Derivatives)
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Fixed Income Derivatives - Corporate
Derivatives Group Manager
Tel: (000) 000-0000
Fax: (000) 000-0000
TO THE TRUST:
MMCA Auto Owner Trust 2001-2
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) Process Agent. For the purposes of Section 13(c) of this Agreement:
MSCS appoints as its Process Agent:Not Applicable
The Trust appoints as its Process Agent: Not Applicable
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For purposes of Section 10(c) of this Agreement:
(i) MSCS is not a Multibranch Party.
(ii) The Trust is not a Multibranch Party.
(e) The Calculation Agent shall be MSCS.
(f) Credit Support Documents.
"Credit Support Document" means a credit support annex, if any,
and any other document which by its terms secures, guarantees or otherwise
supports either or both parties' obligations under this Agreement,
including, but not limited to, the guarantee of MSDW.
(g) Credit Support Provider.
Credit Support Provider means, in relation to MSCS, MSDW. Credit
Support Provider means, in relation to the Trust, Not Applicable.
(h) Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York
(without reference to its choice of law doctrine) except that the
capacity, power or authority of the Trust to enter into this
Agreement and any issue relating to the interpretation of the
Trust's Trust Agreement will be governed and construed in
accordance with the laws of the State of Delaware.
(i) "Affiliate" will have the meaning specified in Section 14 of this
Agreement, but as to the Trust, "Affiliate" will not include the
Owner Trustee, the Indenture Trustee or Mitsubishi Motors Credit
of America, Inc. and as to MSCS, "Affiliate" shall not include
Xxxxxx Xxxxxxx Derivative Products Inc.
Part 5 Other Provisions.
(a) Representations.
(i) Non-Reliance, Etc. Each party will be deemed to represent to
the other party on the date that it enters into a
Transaction that (absent a written agreement between the
parties that expressly imposes affirmative obligations to
the contrary for that Transaction):
(1) Non-Reliance. It is acting for its own account, and
it has made its own independent decisions to enter
into that Transaction and as to whether that
Transaction is appropriate or proper for it based
upon its own judgment and upon advice from such
advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of
the other party as investment advice or as a
recommendation to enter into that Transaction; it
being understood that information and explanations
related to the terms and conditions of a Transaction
shall not be considered to be investment advice or a
recommendation to enter into that Transaction. No
communication (written or oral) received from the
other party shall be deemed to be an assurance or
guarantee as to the expected results of that
Transaction.
(2) Assessment and Understanding. It is capable of
assessing the merits of and understanding (on its
own behalf or through independent professional
advice), and understands and accepts the terms and
conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the risks of that
Transaction.
(3) Status of Parties. The other party is not acting as
a fiduciary for or adviser to it in respect of that
Transaction.
(ii) Commodity Exchange Act. Each party represents to the other
party on and as of the date hereof and on each date on which
a Transaction is entered into between them that:
(1) each Transaction is intended to be exempt from, or
otherwise not subject to regulation under, the
Commodity Exchange Act; and
(2) such party is an "eligible contract participant"
within the meaning of the United States Commodity
Exchange Act.
(b) Consent to Recording.
Each party consents to the recording of the telephone
conversations of trading and marketing and/or other personnel of
the parties and their Affiliates in connection with this
Agreement.
(c) Section 3(a)(iii) is hereby amended by inserting the words "or
investment policies, guidelines, procedures or restrictions"
immediately following the word "documents."
(d) Tax Provisions.
(i) The definition of Tax Event, Section 5(b)(ii), is hereby
modified by adding the following provision at the end
thereof:
"provided, however, that for purposes of clarification, the
parties acknowledge that the introduction or proposal of
legislation shall not, in and of itself, give rise to a
presumption that a Tax Event has occurred."
(ii) The Trust will not be required to pay additional amounts in
respect of an Indemnifiable Tax or be under any obligation
to pay to MSCS any amount in respect of any liability of
MSCS for or on account of any Tax.
(e) No Set Off.
Notwithstanding any setoff right contained in any other
agreement between the Trust or any Affiliate or Credit Support
Provider of the Trust, on the one hand, and MSCS or any Affiliate
or Credit Support Provider of the Trust, on the other, whether now
in existence or hereafter entered into unless such agreement shall
specifically refer to this paragraph (e), each party agrees that
all payments required to be made by it under this Agreement shall
be made without setoff or counterclaim for, and that it shall not
withhold payment or delivery under this Agreement in respect of,
any default by the other party or any Affiliate or Credit Support
Provider of the other party under any such other agreement or any
amount relating to any such other agreement. For purposes of this
paragraph (e), "Affiliate" shall have the meaning specified in
Section 14 of this Agreement.
(f) Additional Acknowledgments and Agreements of the Parties.
(i) Financial Statements. Notwithstanding Section 5(a)(ii), the
failure of either party to deliver any financial statement
or monthly report referenced in Part 3 of this Schedule
shall not constitute an Event of Default under Section
5(a)(ii).
(ii) Bankruptcy Code. Without limiting the applicability, if any,
of any other provision of the U.S. Bankruptcy Code as
amended (the "Bankruptcy Code") (including without
limitation Sections 362, 546, 556, and 560 thereof and the
applicable definitions in Section 101 thereof), the parties
acknowledge and agree that all Transactions entered into
hereunder will constitute "forward contracts" or "swap
agreements" as defined in Section 101 of the Bankruptcy Code
or "commodity contracts" as defined in Section 761 of the
Bankruptcy Code, that the rights of the parties under
Section 6 of this Agreement will constitute contractual
rights to liquidate Transactions, that any margin or
collateral provided under any margin, collateral, security,
pledge, or similar agreement related hereto will constitute
a "margin payment" as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled
to the rights under, and protections afforded by, Sections
362, 546, 556, and 560 of the Bankruptcy Code.
(iii) Regarding MSCS. MSCS represents that the description of MSCS
as set forth on page 41 of the Prospectus dated June 7, 2001
has been furnished and approved by MSCS and is true and
correct as of the date hereof.
(iv) Non-Petition. MSCS covenants and agrees that it will not,
prior to the date which is one year and one day following
the payment in full of all of the Notes and the Certificate
and the expiration of all applicable preference periods
under the United States Bankruptcy Code or other applicable
law relating to any such payment, acquiesce, petition or
otherwise invoke the process of any governmental or judicial
authority for the purpose of commencing a case (whether
voluntary or involuntary), cause any other person to
commence a case or join any other person in commencing a
case against the Trust under any bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official
of the Trust or any substantial part of its property or
ordering the winding up or liquidation of the affairs of the
Trust. MSCS agrees that it has recourse against the Trust
only to the extent of the assets of the Trust and the
proceeds thereof, and any claims against the Trust shall be
extinguished when the assets of the Trust are exhausted.
(v) Transfer. Notwithstanding the provisions of Section 7, MSCS
may assign its rights and delegate its obligations under any
Transaction, in whole or in part, to any Affiliate of MSCS
(an "Assignee"), effective (the "Effective Transfer Date")
upon delivery to Counterparty of both (a) an executed
acceptance and assumption by the Assignee of the transferred
obligations of MSCS under the Transaction(s) (the
"Transferred Obligations"); and (b) an executed guarantee of
MSCS, of the Transferred Obligations, substantially
identical to the Credit Support Document with respect to
MSCS; provided that (x) no such transfer to an Assignee
shall occur if (i) Counterparty shall, as a result of such
transfer, be required to pay to MSCS or the Assignee an
amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section
2(e), 6(d)(ii) or 6(e)) greater than the amount in respect
of which Counterparty would have been required to pay to
MSCS in the absence of such transfer; (ii) MSCS or the
Assignee shall, as a result of such transfer, be required to
withhold or deduct on account of a Tax under Section 2(d)(i)
(except in respect of interest under Section 2(e), 6(d)(ii)
or 6(e)) an amount in excess of that which MSCS would have
been required to withhold or deduct in the absence of such
transfer, unless the Assignee would be required to make
additional payments pursuant to Section 2(d)(i)(4)
corresponding to such excess; or (iii) an Event of Default,
Potential Event of Default or Termination Event would occur
hereunder as a result of such transfer; (y) MSCS shall pay
any fees and expenses incurred by or on the part of either
party as a result of such transfer; and (z) no such transfer
to an Assignee shall occur unless the Rating Agencies
confirm that such transfer will not cause the reduction,
suspension or withdrawal of their then current rating on any
of the Notes, unless such amendment clarifies any term or
provision, corrects any inconsistency, cures any ambiguity,
or corrects any typographical error in the Agreement.
On the Effective Transfer Date, (a) MSCS shall be
released from all obligations and liabilities arising
under the Transferred Obligations; and (b) the
Transferred Obligations shall cease to be Transaction(s)
under this Agreement and shall be deemed to be
Transaction(s) under the ISDA Master Agreement between
Assignee and Counterparty, provided that, if, on the
Effective Transfer Date, Assignee and Counterparty have
not entered into an ISDA Master Agreement, Assignee and
Counterparty shall be deemed to have entered into an ISDA
Master Agreement that is substantially identical to this
Agreement, including this Schedule. At least ten Business
Days prior to any such transfer MSCS shall notify
Counterparty in writing of its intent to transfer its
rights and delegate its obligations hereunder in
accordance with the terms hereof, and shall state in
writing that such transfer shall conform to the
requirements of this Part 5(e)(iv), whereupon
Counterparty shall promptly notify each Rating Agency of
such transfer.
(vi) The Trust Pledge. Notwithstanding Section 7 of this
Agreement to the contrary, MSCS acknowledges that the Trust
will pledge its rights under this Agreement to the Indenture
Trustee (as defined in the Indenture) for the benefit of the
Noteholders (as defined in the Indenture) pursuant to the
Indenture and agrees to such pledge. The Indenture Trustee
shall not be deemed to be a party to this Agreement,
provided, however, that the Indenture Trustee, acting on
behalf of the holders of the Notes, shall have the right to
enforce this Agreement against MSCS. MSCS shall be entitled
to rely on any notice or communication from the Indenture
Trustee to that effect. MSCS acknowledges that the Trust
will pledge substantially all its assets to the Indenture
Trustee for the benefit of the Noteholders and MSCS and that
all payments hereunder, including payments on early
termination, will be made in accordance with the priority of
payment provisions of the Indenture and the Sale and
Servicing Agreement and on the Payment Dates specified
therein.
(vii) Limited Recourse. The liability of the Trust in relation to
this Agreement and any Transaction hereunder is limited in
recourse to the assets of the Trust and proceeds thereof
applied in accordance with the Indenture and the Sale and
Servicing Agreement. With respect to any amounts payable to
MSCS by the Trust under this Agreement, such amounts shall
be limited to the Total Available Funds as provided in and
subject to Section 2.8(a) of the Indenture. Upon exhaustion
of the assets of the Trust and proceeds thereof in
accordance with the Indenture and the Sale and Servicing
Agreement, MSCS shall not be entitled to take any further
steps against the Trust to recover any sums due but still
unpaid hereunder or thereunder, all claims in respect of
which shall be extinguished. No recourse may be taken for
the payment of any amount owing in respect of any obligation
of, or claim against, the Trust arising out of or based upon
this Agreement or any Transaction hereunder against any
holder of a beneficial interest, employee, officer or
Affiliate thereof and no recourse shall be taken for the
payment of any amount owing in respect of any obligation of,
or claim against, the Trust based upon or arising out of
this Agreement against the Administrator, the Seller, the
Servicer, the Indenture Trustee, the Owner Trustee or any
stockholder, holder of a beneficial interest, employee,
officer, director, incorporator or Affiliate thereof;
provided, however, that the foregoing shall not relieve any
such person or entity from any liability they might
otherwise have as a result of willful misconduct, bad faith
or negligence.
In furtherance of and not in derogation of the foregoing,
MSCS acknowledges and agrees that it shall have no right,
title or interest hereunder in or to the Other Assets of
the Seller. To the extent that, notwithstanding the
agreements and provisions contained in the preceding
paragraph, MSCS either (i) asserts hereunder an interest
or claim to, or benefit from, Other Assets, or (ii) is
deemed hereunder to have any such interest, claim to, or
benefit in or from Other Assets, whether by operation of
law, legal process, pursuant to applicable provisions of
insolvency laws or otherwise (including by virtue of
Section 1111(b) of the Bankruptcy Code or any successor
provision having similar effect under the Bankruptcy
Code), then MSCS further acknowledges and agrees that any
such interest, claim or benefit in or from Other Assets
is and shall be expressly subordinated to the
indefeasible payment in full, which, under the terms of
the relevant documents relating to the securitization or
conveyance of such Other Assets, are entitled to be paid
from, entitled to the benefits of, or otherwise secured
by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise
entitled to a priority of distributions or application
under applicable law, including insolvency laws, and
whether or not asserted against the Seller), including
the payment of post-petition interest on such other
obligations and liabilities. This subordination agreement
shall be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. The
Trust further acknowledges and agrees that no adequate
remedy at law exists for a breach of this Part 5(e)(vii)
and the terms of this Part 5(e)(vii) may be enforced by
an action for specific performance. The provisions of
this Part 5(e)(vii) shall be for the third party benefit
of those entitled to rely thereon and shall survive the
termination of this Agreement.
(viii) No Amendment without Prior Confirmation by Rating Agencies.
Section 9(b) of this Agreement is hereby amended by adding
the following at the end of such Section: ", and unless the
Rating Agencies confirm that such amendment will not cause
the reduction, suspension or withdrawal of their then
current rating on any of the Notes, unless such amendment
clarifies any term or provision, corrects any inconsistency,
cures any ambiguity, or corrects any typographical error in
the Agreement."
(ix) Consent by MSCS to Amendments to Certain Documents. Before
any amendment or supplement is made to the Receivables
Transfer and Servicing Agreements or to the Indenture which
would adversely affect any of MSCS' rights or obligations
under this Agreement or modify the obligations of, or impair
the ability of the Trust to fully perform any of the Trust's
obligations under, this Agreement, the Trust shall provide
MSCS with a copy of the proposed amendment or supplement and
shall obtain the consent of MSCS to such amendment or
supplement prior to its adoption, which consent shall not be
unreasonably withheld; provided that so long as a copy of
the proposed amendment or supplement has been delivered in
accordance with Section 12 of the Agreement to each of the
parties listed in Part 4(a) (Address for Notices) with
respect to MSCS and makes clear that MSCS has no longer than
ten Business Days to object to such amendment or supplement,
MSCS' consent will be deemed to have been given if MSCS does
not object in writing within ten Business Days of receipt of
a written request for such consent.
(x) Severability. If any term, provision, covenant, or condition
of this Agreement, or the application thereof to any party
or circumstance, shall be held to be invalid or
unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions
hereof shall continue in full force and effect as if this
Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement
as so modified continues to express, without material
change, the original intentions of the parties as to the
subject matter of this Agreement and the deletion of such
portion of this Agreement will not substantially impair the
respective benefits or expectations of the parties to this
Agreement; provided, however, that this severability
provision shall not be applicable if any provision of
Section 1, 2, 5, 6 or 13 (or any definition or provision in
Section 14 to the extent it relates to, or is used in
connection with, any such Section) shall be so held to be
invalid or unenforceable.
(g) Waiver of Right to Trial by Jury. Each of the parties hereby
irrevocably waives any and all right to a trial by jury with
respect to any legal proceeding arising out of or relating to this
Agreement or any Transaction.
(h) Limited Transactions. MSCS and the Trust each agrees and acknowledges
that the only Transactions that are or will be governed by this
Agreement are the Transactions evidenced by the two Confirmations
dated the date hereof.
(i) Notices to Noteholders. The Trust shall provide MSCS with copies
of all notices required to be given to the holders of the Notes,
and upon request, shall provide MSCS with any other notices which
could be requested by the holders of the Notes.
(j) Further Representations of the Trust:
(i) Each of the Class A-2 Notes, Class A-3 Notes and Class A-4
Notes are rated "Aaa" by Xxxxx'x Investor Services, Inc. and
"AAA" by Fitch as to the timely payment of interest and
principal and without regard to third party credit
enhancement.
(ii) All conditions precedent to the issuance of the Notes under
the Indenture have been satisfied.
(iii) Each of the documents to which it is a party has been duly
authorized, executed and delivered by it.
(iv) Assuming the due authorization, execution and delivery
thereof by the other parties thereto, each of the Indenture
and the other documents to which the Trust is a party
constitutes the legal, valid and binding obligations of the
Trust, enforceable against the Trust in accordance with the
terms thereof, subject to applicable bankruptcy, insolvency
and similar laws or legal principles affecting creditors'
rights generally, and subject, as to enforceability, to
general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law.
(v) The Indenture and the other documents to which the Trust is
a party are in full force and effect on the date hereof and
there have been no amendments or waivers or modifications of
any of the terms thereof since the original execution and
delivery of the Indenture and the other documents to which
the Trust is a party, except such as may have been delivered
to the Trust.
(vi) To the best of its knowledge no event of default or event
which would with the passage of time or the giving of notice
constitute an event of default has occurred and is
continuing under any of the documents to which the Trust is
a party.
(k) Immunity of Persons Related to the Trust. No representation or
agreement contained in this Agreement shall be deemed to be the
covenant or agreement of any trustee, officer, attorney, agent or
employee of the Trust, Mitsubishi Motors Credit of America, Inc.,
any Affiliate thereof or any Credit Support Provider thereof in an
individual capacity.
(l) Limitation of Trustee's Liability. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed
and delivered by Wilmington Trust Company, not individually nor as
a party to this Agreement, but solely as Owner Trustee of the
Trust, in the exercise of the powers and authority conferred and
vested in it, (b) the representations, undertakings and agreements
herein made on the part of the Trust are made and intended not as
personal representations, undertakings and agreements by
Wilmington Trust Company, but are made and intended for the
purpose of binding only the Trust, (c) nothing herein contained
shall be construed as creating any liability of Wilmington Trust
Company, individually, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being
expressly waived by the parties who are signatories to this
Agreement and by any person claiming by, through or under such
parties and (d) under no circumstances shall Wilmington Trust
Company be personally liable for the payment of any indebtedness
of the Trust or expenses of MSCS or the Trust or be liable for the
breach or failure of any obligation, representation, warranty or
covenant, made or undertaken by the Trust under this Agreement.
(m) Netting of Payments. Clause (ii) of Section 2(c) will not apply to
any amounts payable with respect to Transactions from the date of
this Agreement.
(n) Additional Swap Agreements. The Trust agrees that it will not
enter into additional swap agreements (other than any swap
agreement in replacement of any Transaction hereunder) without (i)
the express prior written consent of MSCS, which consent shall not
be unreasonably withheld and (ii) Rating Agency Confirmation.
(o) Notices. Section 12(a) is amended by adding in the third line
thereof after the phrase "messaging system" and before the ")" the
words, "; provided, however, any such notice or other
communication may be given by facsimile transmission if telex is
unavailable, no telex number is supplied to the party providing
notice, or if answer back confirmation is not received from the
party to whom the telex is sent."
(p) Additional Definitions.
"Administration Agreement" shall mean the administration
agreement dated as of June 1, 2001, as amended, supplemented or
otherwise modified and in effect, by and among the Trust,
Mitsubishi Motors Credit of America, Inc., and Bank of
Tokyo-Mitsubishi Trust Company.
"Administrator" shall have the meaning assigned thereto
in the Administration Agreement.
"Business Day" shall mean any day other than a Saturday,
a Sunday or a day on which banking institutions or trust companies
in New York, New York, Wilmington, Delaware or Los Angeles,
California are authorized or obligated by law, regulation or
executive order to remain closed.
"Certificate" means the Certificate issued by the Trust
pursuant to the Trust Agreement.
"Class A-2 Notes" means the Class A-2 Notes issued by the
Trust pursuant to the Indenture.
"Class A-3 Notes" means the Class A-3 Notes issued by the
Trust pursuant to the Indenture.
"Class A-4 Notes" means the Class A-4 Notes issued by the
Trust pursuant to the Indenture.
"Closing Date" shall mean June 14, 2001.
"Credit Rating" means, with respect to MSCS, the issuer
rating of the head office of Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co.
without regard to whether or not such rating is under review with
positive or negative implications.
"Fitch" shall mean Fitch, Inc.
"Indenture" shall mean the indenture dated as of June 1,
2001, as amended, supplemented or otherwise modified and in
effect, between the Trust and Bank of Tokyo-Mitsubishi Trust
Company, as Indenture Trustee.
"Indenture Trustee" shall mean Bank of Tokyo-Mitsubishi
Trust Company, or any successor or replacement thereto pursuant to
the Indenture.
"MMCA" shall mean Mitsubishi Motors Credit of America, Inc.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Notes" shall mean the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B
Notes issued by the Trust pursuant to the Indenture.
"Other Assets" shall mean any assets (or interests
therein) (other than the receivables and related property conveyed
to the Trust pursuant to the Sale and Servicing Agreement)
conveyed or purported to be conveyed by the Seller to another
Person or Persons other than MSCS, whether by way of a sale,
capital contribution or by virtue of the granting of a lien.
"Owner Trustee" means Wilmington Trust Company, a
Delaware Banking Corporation, not in its individual capacity nor
as a principal to this Agreement, but solely as Owner Trustee
under the Trust Agreement, its successors in interest and any
successor trustee under the Trust Agreement.
"Person" shall mean any individual, corporation, estate,
partnership, joint venture, association, joint stock company,
trust, unincorporated organization, or government or any agency or
political subdivision thereof.
"Payment Date" shall mean the fifteenth (15th) day of
each month or, if such day is not a Business Day, the immediately
following Business Day, commencing July 15, 2001.
"Purchase Agreement" shall mean the purchase agreement
dated as of June 1, 2001, as from time to time amended,
supplemented or otherwise modified and in effect, between
Mitsubishi Motors Credit of America, Inc. and MMCA Auto
Receivables Trust.
"Rating Agencies" shall mean Fitch or Moody's, or any
substitute rating agency that the Seller (as defined in the
Indenture) requests to rate the Notes.
"Rating Agency Confirmation" means, with respect to any
action, that each Rating Agency shall have been given prior
written notice thereof and that each of the Rating Agencies shall
have notified the Seller, the Servicer, the Indenture Trustee and
the Owner Trustee that such action shall not result in a reduction
or withdrawal of the then current rating assigned to any Class of
Notes.
"Receivables Transfer and Servicing Agreements" shall
mean collectively the Purchase Agreement, the Sale and Servicing
Agreement, the Trust Agreement and the Administration Agreement.
"Sale and Servicing Agreement" shall mean the sale and
servicing agreement dated as of June 1, 2001, as amended,
supplemented or otherwise modified and in effect, by and among the
Trust, MMCA Auto Receivables Trust, as seller, and Mitsubishi
Motors Credit of America, Inc., as servicer.
"Seller" shall mean MMCA Auto Receivables Trust.
"Servicer" means MMCA, in its capacity as Servicer under
the Sale and Servicing Agreement and each successor thereto
appointed and acting pursuant to the Sale and Servicing Agreement.
"Total Available Funds" has the meaning as set forth in
the Sale and Servicing Agreement.
"Trust Agreement" shall mean the Amended and Restated
Trust Agreement dated as of June 1, 2001, as amended, supplemented
or otherwise modified and in effect, by and among MMCA Auto
Receivables Trust, as depositor, and Wilmington Trust Company, as
owner trustee.
"Trust Estate" shall mean all money, instruments, rights
and other property that are subject or intended to be subject to
the lien and security interest of the Indenture for the benefit of
the Noteholders and the Swap Counterparties (including, without
limitation, all property and interests granted to the Indenture
Trustee), including all proceeds thereof.
IN WITNESS WHEREOF, the parties have executed this
Schedule to the Master Agreement on the respective dates specified below with
effect from the date specified on the first page of this document.
XXXXXX XXXXXXX CAPITAL SERVICES INC. MMCA AUTO OWNER TRUST 2001-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
nor as a principal to this
Agreement, but solely as Owner
Trustee
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxx X. Xxxxxx
_________________________________ ________________________________
Name: Xxxxxxxx Xxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title: Vice President
EXHIBIT A
[Form of SWAP GUARANTEE]
June 14, 2001
MMCA Auto Owner Trust 2001-2
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
In consideration of that certain ISDA Master Agreement dated as of
June 14, 2001 between Xxxxxx Xxxxxxx Capital Services Inc., a Delaware
corporation (hereinafter "MSCS") and MMCA Auto Owner Trust 2001-2
(hereinafter "Counterparty") (such ISDA Master Agreement, together with
each Confirmation exchanged between the parties pursuant thereto,
hereinafter the "Agreement"), Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co., a Delaware
corporation (hereinafter "MSDW"), hereby irrevocably and unconditionally
guarantees to Counterparty, with effect from the date of the Agreement, the
due and punctual payment of all amounts payable by MSCS under the Agreement
when the same shall become due and payable, whether on Scheduled Payment
Dates, upon demand, upon declaration of termination or otherwise, in
accordance with the terms of the Agreement and giving effect to any
applicable grace period. Upon failure of MSCS punctually to pay any such
amounts, and upon written demand by Counterparty to MSDW at its address set
forth in the signature block of this Guarantee (or to such other address as
MSDW may specify in writing), MSDW agrees to pay or cause to be paid such
amounts; provided that delay by Counterparty in giving such demand shall in
no event affect MSDW's obligations under this Guarantee.
MSDW hereby agrees that its obligations hereunder shall
be unconditional and will not be discharged except by complete payment of
the amounts payable under the Agreement, irrespective of any claim as to
the Agreement's validity, regularity or enforceability or the lack of
authority of MSCS to execute or deliver the Agreement; or any change in or
amendment to the Agreement; or any waiver or consent by Counterparty with
respect to any provisions thereof; or the absence of any action to enforce
the Agreement or the recovery of any judgment against MSCS or of any action
to enforce a judgment against MSCS under the Agreement; or any similar
circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor generally. MSDW hereby waives
diligence, presentment, demand on MSCS for payment or otherwise (except as
provided hereinabove), filing of claims, requirement of a prior proceeding
against MSCS and protest or notice, except as provided for in the Agreement
with respect to amounts payable by MSCS. If at any time payment under the
Agreement is rescinded or must be otherwise restored or returned by
Counterparty upon the insolvency, bankruptcy or reorganization of MSCS or
MSDW or otherwise, MSDW's obligations hereunder with respect to such
payment shall be reinstated upon such restoration or return being made by
Counterparty.
MSDW represents to Counterparty as of the date hereof, which
representations will be deemed to be repeated by MSDW on each date on which
a Transaction is entered into, that:
(1) it is duly organized and validly existing under the laws of
the jurisdiction of its incorporation and has full power and legal right to
execute and deliver this Guarantee and to perform the provisions of this
Guarantee on its part to be performed;
(2) its execution, delivery and performance of this Guarantee have
been and remain duly authorized by all necessary corporate action and do
not contravene any provision of its certificate of incorporation or by-laws
or any law, regulation or contractual restriction binding on it or its
assets;
(3) all consents, authorizations, approvals and clearances
(including, without limitation, any necessary exchange control approval)
and notifications, reports and registrations requisite for its due
execution, delivery and performance of this Guarantee have been obtained
from or, as the case may be, filed with the relevant governmental
authorities having jurisdiction and remain in full force and effect and all
conditions thereof have been duly complied with and no other action by, and
no notice to or filing with, any governmental authority having jurisdiction
is required for such execution, delivery or performance; and
(4) this Guarantee is its legal, valid and binding obligation
enforceable against it in accordance with its terms except as enforcement
hereof may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights or by
general equity principles.
By accepting this Guarantee and entering into the Agreement,
Counterparty agrees that MSDW shall be subrogated to all rights of
Counterparty against MSCS in respect of any amounts paid by MSDW pursuant
to this Guarantee, provided that MSDW shall be entitled to enforce or to
receive any payment arising out of or based upon such right of subrogation
only to the extent that it has paid all amounts payable by MSCS under the
Agreement.
This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York. All capitalized terms not otherwise
defined herein shall have the respective meanings assigned to them in the
Agreement.
XXXXXX XXXXXXX XXXX XXXXXX & CO.
By:_________________________________
Name:
Title:
Address: 0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Derivative Products Group
Fax No.: (000) 000-0000
EXHIBIT B
[Form of SWAP Confirmation]
[Date]
To: [ ]
From: MMCA Auto Owner Trust 2001-2
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
Re: Confirmation Relating to [ ] Interest Rate Swap
----------------------------------------------------------
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between [ ] ("[
]") and MMCA Auto Owner Trust 2001-2 (the "Trust") on the Trade Date listed
below (the "Transaction"). This letter constitutes a "Confirmation" as
referred to in the ISDA Master Agreement specified below.
The definitions and provisions contained in the 2000
ISDA Definitions, together with the Annex to the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. For these purposes,
all references in those Definitions to a "Transaction" shall be deemed to
apply to the Transaction referred to herein. In the event of any
inconsistency between the Definitions and this Confirmation, the terms of
this Confirmation shall govern.
This Confirmation supplements, forms part of and is
subject to the ISDA Master Agreement dated as of [ ], 2001, as amended and
supplemented from time to time (the "Agreement") between you and us. All
provisions contained in or incorporated by reference in the Agreement upon
its execution will govern this Confirmation except as expressly modified
below. In the event of any inconsistency between the provisions of that
agreement and this Confirmation, this Confirmation will prevail for the
purpose of this Transaction.
The terms of the particular Transaction to which this
Confirmation relates are as follows:
Trade Date: [ ].
Effective Date: [ ].
Notional Amount: [The Notional Amount initially shall equal
$[ ] and for any subsequent Calculation
Period shall be equal to the aggregate
principal balance of the Class [A- ] Notes
on the first day of such Calculation
Period. The Trust shall determine the
Notional Amount for each Calculation
Period and shall inform [ ] of such
determination by the 15th day of the
calendar month in which such Calculation
Period begins; provided, however, unless
otherwise agreed, if such notification is
not received by the 12th day of the
calendar month in which such Calculation
Period ends, the Notional Amount for any
Calculation Period shall be the amount set
forth on the attached Schedule 1.]
Termination Date: The date on which the aggregate
outstanding principal balance of the Class
[A- ] Notes has been reduced to zero, or [ ]
15, [ ], whichever is the earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on [ ], subject to adjustment
in accordance with the Following Business
Day Convention.
Period End Date: The 15th day of each calendar month, with
Adjustment.
Fixed Rate: [ ]%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: [ ].
Floating Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on [ ], subject to adjustment
in accordance with the Following Business
Day Convention.
Period End Date: The 15th day of each calendar month, with
Adjustment.
Floating Rate Option: [USD-LIBOR-BBA. Notwithstanding Section
7.1 of the Definitions, the Floating Rate
shall be determined on the day that is two
(2) New York and London Business Days
prior to the Reset Date. The rate
determined in accordance with the Floating
Rate Option shall be rounded, if
necessary, to the nearest 1/100,000 of 1%
(.0000001).]
Designated Maturity: [One month.]
Spread: [ ]%.
Floating Rate
Day Count Fraction: Actual/360.
Reset Dates: The first day of each Floating Rate Payer
Calculation Period.
Business Days: New York, New York, Wilmington, Delaware
and Los Angeles, California.
Account Details
Payments to [ ]: [ ]
Payments to the Trust: [ ]
Misc.
Calculation Agent: [ ].
Please confirm that the foregoing correctly sets forth
the terms of our agreement by executing this Confirmation and returning it
to us.
Best Regards,
MMCA AUTO OWNER TRUST 2001-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor
as a principal to this Agreement,
but solely as Owner Trustee
By: ______________________________
Name:
Title:
[ ]
By: ______________________________
Name:
Title:
Class A-2 Swap Confirmation
June 14, 2001
To: Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
From: MMCA Auto Owner Trust 2001-2
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
Re: Confirmation Relating to MMCA 2001-2 Class A-2 Notes Interest Rate Swap
-----------------------------------------------------------------------
MSCS Reference: AROB8
MMCA Reference: 203
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between Xxxxxx
Xxxxxxx Capital Services Inc. ("MSCS") and MMCA Auto Owner Trust 2001-2
(the "Trust") on the Trade Date listed below (the "Transaction"). This
letter constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified below.
The definitions and provisions contained in the 2000
ISDA Definitions, together with the Annex to the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. For these purposes,
all references in those Definitions to a "Transaction" shall be deemed to
apply to the Transaction referred to herein. In the event of any
inconsistency between the Definitions and this Confirmation, the terms of
this Confirmation shall govern.
This Confirmation supplements, forms part of and is
subject to the ISDA Master Agreement dated as of June 14, 2001, as amended
and supplemented from time to time (the "Agreement") between you and us.
All provisions contained in or incorporated by reference in the Agreement
upon its execution will govern this Confirmation except as expressly
modified below. In the event of any inconsistency between the provisions of
that agreement and this Confirmation, this Confirmation will prevail for
the purpose of this Transaction.
The terms of the particular Transaction to which this
Confirmation relates are as follows:
Trade Date: June 7, 2001.
Effective Date: June 14, 2001.
Notional Amount: The Notional Amount initially shall
equal $94,000,000 and for any subsequent
Calculation Period shall be equal to the
aggregate principal balance of the Class
A-2 Notes on the first day of such
Calculation Period. The Trust shall
determine the Notional Amount for each
Calculation Period and shall notify MSCS
of such determination by the 15th day of
the calendar month in which such
Calculation Period begins; provided,
however, unless otherwise agreed, if
such notification is not received by the
12th day of the calendar month in which
such Calculation Period ends, the
Notional Amount for any Calculation
Period shall be the amount set forth on
the attached Schedule 1.
Notional Amount determinations shall be
provided to MSCS via telephone to the
Fixed Income Derivatives Corporate Desk
(as specified below) and confirmed in
writing to each of the following:
Fixed Income Derivatives
(Corporate Desk)
Attention: Xxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Fixed Income Derivatives (Swaps
Trading Desk)
Attention: Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
MSCS Operations Contact (see below)
Termination Date: The date on which the
aggregate outstanding
principal balance of the
Class A-2 Notes has been
reduced to zero, or the
Fixed Rate Payer Payment
Date occurring in November,
2003, whichever is the
earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on July 15, 2001, subject to
adjustment in accordance with the
Following Business Day Convention.
Period End Date: The 15th day of each calendar month,
subject to adjustment in accordance with
the Following Business Day Convention.
Fixed Rate: 4.265%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: MSCS.
Floating Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on July 15, 2001, subject to
adjustment in accordance with the
Following Business Day Convention.
Period End Date: The 15th day of each calendar month,
subject to adjustment in accordance with
the Following Business Day Convention.
Floating Rate Option: USD-LIBOR-BBA. Notwithstanding Section
7.1 of the Definitions, the Floating
Rate shall be determined on the day that
is two (2) New York and London Business
Days prior to the Reset Date. The rate
determined in accordance with the
Floating Rate Option shall be rounded,
if necessary, to the nearest 1/100,000
of 1% (.0000001).
Designated Maturity: One month.
Spread: 0.10%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: 3.99000% (excluding spread).
Reset Dates: The first day of each Floating Rate Payer
Calculation Period.
Business Days: New York, New York, Wilmington, Delaware
and Los Angeles, California.
Account Details
Payments to MSCS: Citibank, New York
ABA #: 000000000
For: Xxxxxx Xxxxxxx Capital Services Inc.
Account #: 00000000
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA: 26009687
Account #: 00000000
Misc.
MSCS Operations Contact: Xxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Calculation Agent: MSCS.
Please confirm that the foregoing correctly sets forth
the terms of our agreement by executing this Confirmation and returning it
to us.
Best Regards,
MMCA AUTO OWNER TRUST 2001-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor
as a principal to this Agreement,
but solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By: /s/ Xxxxxxxx Xxxx
Name: Xxxxxxxx Xxxx
Title: Vice President
SCHEDULE 1
--------------------------------------------------------
Start: End: A-2 Notional Balance
--------------------------------------------------------
6/14/01 7/15/01 $94,000,000
--------------------------------------------------------
7/15/01 8/15/01 94,000,000
--------------------------------------------------------
8/15/01 9/15/01 94,000,000
--------------------------------------------------------
9/15/01 10/15/01 94,000,000
--------------------------------------------------------
10/15/01 11/15/01 94,000,000
--------------------------------------------------------
11/15/01 12/15/01 94,000,000
--------------------------------------------------------
12/15/01 1/15/02 94,000,000
--------------------------------------------------------
1/15/02 2/15/02 94,000,000
--------------------------------------------------------
2/15/02 3/15/02 94,000,000
--------------------------------------------------------
3/15/02 4/15/02 84,506,109
--------------------------------------------------------
4/15/02 5/15/02 69,375,138
--------------------------------------------------------
5/15/02 6/15/02 54,412,715
--------------------------------------------------------
6/15/02 7/15/02 39,621,047
--------------------------------------------------------
7/15/02 8/15/02 25,002,369
--------------------------------------------------------
8/15/02 9/15/02 10,558,939
--------------------------------------------------------
9/15/02 10/15/02 -
--------------------------------------------------------
Class A-3 Swap Confirmation
June 14, 2001
To: Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
From: MMCA Auto Owner Trust 2001-2
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
Re: Confirmation Relating to MMCA 2001-2 Class A-3 Notes Interest Rate Swap
-----------------------------------------------------------------------
MSCS Reference: AROB4
MMCA Reference: 206
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between Xxxxxx
Xxxxxxx Capital Services Inc. ("MSCS") and MMCA Auto Owner Trust 2001-2
(the "Trust") on the Trade Date listed below (the "Transaction"). This
letter constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified below.
The definitions and provisions contained in the 2000
ISDA Definitions, together with the Annex to the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. For these purposes,
all references in those Definitions to a "Transaction" shall be deemed to
apply to the Transaction referred to herein. In the event of any
inconsistency between the Definitions and this Confirmation, the terms of
this Confirmation shall govern.
This Confirmation supplements, forms part of and is
subject to the ISDA Master Agreement dated as of June 14, 2001, as amended
and supplemented from time to time (the "Agreement") between you and us.
All provisions contained in or incorporated by reference in the Agreement
upon its execution will govern this Confirmation except as expressly
modified below. In the event of any inconsistency between the provisions of
that agreement and this Confirmation, this Confirmation will prevail for
the purpose of this Transaction.
The terms of the particular Transaction to which this
Confirmation relates are as follows:
Trade Date: June 7, 2001.
Effective Date: June 14, 2001.
Notional Amount: The Notional Amount initially shall
equal $229,000,000 and for any
subsequent Calculation Period shall be
equal to the aggregate principal balance
of the Class A-3 Notes on the first day
of such Calculation Period. The Trust
shall determine the Notional Amount for
each Calculation Period and shall notify
MSCS of such determination by the 15th
day of the calendar month in which such
Calculation Period begins; provided,
however, unless otherwise agreed, if
such notification is not received by the
12th day of the calendar month in which
such Calculation Period ends, the
Notional Amount for any Calculation
Period shall be the amount set forth on
the attached Schedule 1.
Notional Amount determinations shall be
provided to MSCS via telephone to the
Fixed Income Derivatives Corporate Desk
(as specified below) and confirmed in
writing to each of the following:
Fixed Income Derivatives (Corporate
Desk)
Attention: Xxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Fixed Income Derivatives (Swaps Trading
Desk)
Attention: Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
MSCS Operations Contact (see below)
Termination Date: The date on which the aggregate
outstanding principal balance of the
Class A-3 Notes has been reduced to
zero, or the Fixed Rate Payer Payment
Date occurring in September, 2005,
whichever is the earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on July 15, 2001, subject to
adjustment in accordance with the
Following Business Day Convention.
Period End Date: The 15th day of each calendar month,
subject to adjustment in accordance with
the Following Business Day Convention.
Fixed Rate: 4.941%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: MSCS.
Floating Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on July 15, 2001, subject to
adjustment in accordance with the
Following Business Day Convention.
Period End Date: The 15th day of each calendar month,
subject to adjustment in accordance with
the Following Business Day Convention.
Floating Rate Option: USD-LIBOR-BBA. Notwithstanding Section
7.1 of the Definitions, the Floating
Rate shall be determined on the day that
is two (2) New York and London Business
Days prior to the Reset Date. The rate
determined in accordance with the
Floating Rate Option shall be rounded,
if necessary, to the nearest 1/100,000
of 1% (.0000001).
Designated Maturity: One month.
Spread: 0.18%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: 3.99000% (excluding spread).
Reset Dates: The first day of each Floating Rate
Payer Calculation Period.
Business Days: New York, New York, Wilmington, Delaware
and Los Angeles, California.
Account Details
Payments to MSCS: Citibank, New York
ABA #: 000000000
For: Xxxxxx Xxxxxxx Capital Services Inc.
Account #: 00000000
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA #: 26009687
Account #: 00000000
Misc.
MSCS Operations Contact: Xxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Calculation Agent: MSCS.
Please confirm that the foregoing correctly sets forth
the terms of our agreement by executing this Confirmation and returning it
to us.
Best Regards,
MMCA AUTO OWNER TRUST 2001-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor as a
principal to this Agreement,
but solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
_______________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By: /s/ Xxxxxxxx Xxxx
_______________________________________
Name: Xxxxxxxx Xxxx
Title: Vice President
SCHEDULE 1
---------------------------------------------------------------------
A-3 Notional
Start: End: Balance
---------------------------------------------------------------------
6/14/01 7/15/01 $229,000,000
---------------------------------------------------------------------
7/15/01 9/15/02 229,000,000
---------------------------------------------------------------------
9/15/02 10/15/02 225,293,044
--------------------------------------------------------------------
10/15/02 11/15/02 211,206,993
---------------------------------------------------------------------
11/15/02 12/15/02 197,303,126
---------------------------------------------------------------------
12/15/02 1/15/03 183,583,806
---------------------------------------------------------------------
1/15/03 2/15/03 170,051,427
---------------------------------------------------------------------
2/15/03 3/15/03 156,708,406
---------------------------------------------------------------------
3/15/03 4/15/03 143,582,612
---------------------------------------------------------------------
4/15/03 5/15/03 130,650,422
---------------------------------------------------------------------
5/15/03 6/15/03 117,918,878
---------------------------------------------------------------------
6/15/03 7/15/03 105,385,808
---------------------------------------------------------------------
7/15/03 8/15/03 93,053,759
---------------------------------------------------------------------
8/15/03 9/15/03 80,925,308
---------------------------------------------------------------------
9/15/03 10/15/03 69,003,059
---------------------------------------------------------------------
10/15/03 11/15/03 57,289,649
---------------------------------------------------------------------
11/15/03 12/15/03 45,787,741
---------------------------------------------------------------------
12/15/03 1/15/04 34,500,033
---------------------------------------------------------------------
1/15/04 2/15/04 23,429,249
---------------------------------------------------------------------
2/15/04 3/15/04 12,578,149
---------------------------------------------------------------------
3/15/04 4/15/04 1,949,519
---------------------------------------------------------------------
4/15/04 5/15/04 -
---------------------------------------------------------------------
Class A-4 Swap Confirmation
June 14, 2001
To: Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
From: MMCA Auto Owner Trust 2001-2
c/o Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
Re: Confirmation Relating to MMCA 2001-2 Class A-4 Notes Interest Rate Swap
MSCS Reference: AROBE
MMCA Reference: 209
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between Xxxxxx
Xxxxxxx Capital Services Inc. ("MSCS") and MMCA Auto Owner Trust 2001-2
(the "Trust") on the Trade Date listed below (the "Transaction"). This
letter constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified below.
The definitions and provisions contained in the 2000
ISDA Definitions, together with the Annex to the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. For these purposes,
all references in those Definitions to a "Transaction" shall be deemed to
apply to the Transaction referred to herein. In the event of any
inconsistency between the Definitions and this Confirmation, the terms of
this Confirmation shall govern.
This Confirmation supplements, forms part of and is
subject to the ISDA Master Agreement dated as of June 14, 2001, as amended
and supplemented from time to time (the "Agreement") between you and us.
All provisions contained in or incorporated by reference in the Agreement
upon its execution will govern this Confirmation except as expressly
modified below. In the event of any inconsistency between the provisions of
that agreement and this Confirmation, this Confirmation will prevail for
the purpose of this Transaction.
The terms of the particular Transaction to which this
Confirmation relates are as follows:
Trade Date: June 7, 2001.
Effective Date: June 14, 2001.
Notional Amount: The Notional Amount initially shall
equal $150,000,000 and for any
subsequent Calculation Period shall be
equal to the aggregate principal balance
of the Class A-4 Notes on the first day
of such Calculation Period. The Trust
shall determine the Notional Amount for
each Calculation Period and shall notify
MSCS of such determination by the 15th
day of the calendar month in which such
Calculation Period begins; provided,
however, unless otherwise agreed, if
such notification is not received by the
12th day of the calendar month in which
such Calculation Period ends, the
Notional Amount for any Calculation
Period shall be the amount set forth on
the attached Schedule 1.
Notional Amount determinations shall be
provided to MSCS via telephone to the
Fixed Income Derivatives Corporate Desk
(as specified below) and confirmed in
writing to each of the following:
Fixed Income Derivatives (Corporate
Desk)
Attention: Xxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Fixed Income Derivatives (Swaps Trading
Desk)
Attention: Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
MSCS Operations Contact (see below)
Termination Date: The date on which the aggregate
outstanding principal balance of the
Class A-4 Notes has been reduced to
zero, or the Fixed Rate Payer Payment
Date occurring in July, 2006, whichever
is the earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on July 15, 2001, subject to
adjustment in accordance with the
Following Business Day Convention.
Period End Date: The 15th day of each calendar month,
subject to adjustment in accordance with
the Following Business Day Convention.
Fixed Rate: 5.564%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: MSCS.
Floating Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on July 15, 2001, subject to
adjustment in accordance with the
Following Business Day Convention.
Period End Date: The 15th day of each calendar month,
subject to adjustment in accordance with
the Following Business Day Convention.
Floating Rate Option: USD-LIBOR-BBA. Notwithstanding Section
7.1 of the Definitions, the Floating
Rate shall be determined on the day that
is two (2) New York and London Business
Days prior to the Reset Date. The rate
determined in accordance with the
Floating Rate Option shall be rounded,
if necessary, to the nearest 1/100,000
of 1% (.0000001).
Designated Maturity: One month.
Spread: 0.25%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: 3.99000% (excluding spread).
Reset Dates: The first day of each Floating Rate
Payer Calculation Period.
Business Days: New York, New York, Wilmington, Delaware
and Los Angeles, California.
Account Details
Payments to MSCS: Citibank, New York
ABA #: 000000000
For: Xxxxxx Xxxxxxx Capital Services Inc.
Account #: 00000000
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA #: 26009687
Account #: 00000000
Misc.
MSCS Operations Contact: Xxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Calculation Agent: MSCS.
Please confirm that the foregoing correctly sets forth
the terms of our agreement by executing this Confirmation and returning it
to us.
Best Regards,
MMCA AUTO OWNER TRUST 2001-2
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor as a principal
to this Agreement, but solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
________________________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By: /s/ Xxxxxxxx Xxxx
________________________________________________
Name: Xxxxxxxx Xxxx
Title: Vice President
SCHEDULE 1
-----------------------------------------------------------
Start: End: A-4 Notional Balance
-----------------------------------------------------------
6/14/01 7/15/01 $150,000,000
-----------------------------------------------------------
7/15/01 4/15/04 150,000,000
-----------------------------------------------------------
4/15/04 5/15/04 141,665,216
-----------------------------------------------------------
5/15/04 6/15/04 131,604,297
-----------------------------------------------------------
6/15/04 7/15/04 121,769,580
-----------------------------------------------------------
7/15/04 8/15/04 112,163,910
-----------------------------------------------------------
8/15/04 9/15/04 102,790,169
-----------------------------------------------------------
9/15/04 10/15/04 93,651,269
-----------------------------------------------------------
10/15/04 11/15/04 84,750,156
-----------------------------------------------------------
11/15/04 12/15/04 76,089,808
-----------------------------------------------------------
12/15/04 1/15/05 67,673,239
-----------------------------------------------------------
1/15/05 2/15/05 57,911,941
-----------------------------------------------------------
2/15/05 3/15/05 50,041,913
-----------------------------------------------------------
3/15/05 4/15/05 42,468,019
-----------------------------------------------------------
4/15/05 5/15/05 35,147,804
-----------------------------------------------------------
5/15/05 6/15/05 28,270,218
-----------------------------------------------------------
6/15/05 7/15/05 21,641,590
-----------------------------------------------------------
7/15/05 8/15/05 -
-----------------------------------------------------------
