Exhibit 10.3
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of April 18, 2001
XXXXXXX XXXXX CAPITAL SERVICES, INC. and MMCA AUTO OWNER TRUST 2001-1
have entered and/or anticipate entering into one or more transactions (each
a "Transaction") that are or will be governed by this Master Agreement,
which includes the schedule (the "Schedule"), and the documents and other
confirming evidence (each a "Confirmation") exchanged between the parties
confirming those Transactions.
Accordingly, the parties agree as follows:
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master
Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purposes of the relevant
Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any
Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of
this Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for payments
in the required currency. Where settlement is by delivery (that
is, other than by payment), such delivery will be made for receipt
on the due date in the manner customary for the relevant
obligation unless otherwise specified in the relevant Confirmation
or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential
Event of Default with respect to the other party has occurred and
is continuing, (2) the condition precedent that no Early
Termination Date in respect of the relevant Transaction has
occurred or been effectively designated and (3) each other
applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to
which such change applies unless such other party gives timely notice of a
reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party
by whom the larger aggregate amount would have been payable to pay to the
other party the excess of the larger aggregate amount over the smaller
aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions, regardless of
whether such amounts are payable in respect of the same Transaction. The
election may be made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date (in which
case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for
different groups of Transactions and will apply separately to each pairing
of Offices through which the parties make and receive payments or
deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made
without any deduction or withholding for or on account of any Tax
unless such deduction or withholding is required by any applicable
law, as modified by the practice of any relevant governmental
revenue authority, then in effect. If a party is so required to
deduct or withhold, then that party ("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount
required to be deducted or withheld (including the full
amount required to be deducted or withheld from any
additional amount paid by X to Y under this Section 2(d))
promptly upon the earlier of determining that such
deduction or withholding is required or receiving notice
that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a
certified copy), or other documentation reasonably
acceptable to Y, evidencing such payment to such
authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in
addition to the payment to which Y is otherwise entitled
under this Agreement, such additional amount as is
necessary to ensure that the net amount actually received
by Y (free and clear of Indemnifiable Taxes, whether
assessed against X or Y) will equal the full amount Y
would have received had no such deduction or withholding
been required. However, X will not be required to pay any
additional amount to Y to the extent that it would not be
required to be paid but for:--
(A) the failure by Y to comply with or perform
any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y
pursuant to Section 3(f) to be accurate and true
unless such failure would not have occurred but
for (I) any action taken by a taxing authority,
or brought in a court of competent jurisdiction,
on or after the date on which a Transaction is
entered into (regardless of whether such action
is taken or brought with respect to a party to
this Agreement) or (II) a Change in Tax Law.
(ii) Liability. If:--
(1) X is required by any applicable law, as modified by
the practice of any relevant governmental revenue
authority, to make any deduction or withholding in
respect of which X would not be required to pay an
additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed
directly against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the
amount of such liability (including any related liability for
interest, but including any related liability for penalties only
if Y has failed to comply with or perform any agreement contained
in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by law and subject to Section
6(c), be required to pay interest (before as well as after judgment) on the
overdue amount to the other party on demand in the same currency as such
overdue amount, for the period from (and including) the original due date
for payment to (but excluding) the date of actual payment, at the Default
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed. If, prior to the occurrence or
effective designation of an Early Termination Date in respect of the
relevant Transaction, a party defaults in the performance of any obligation
required to be settled by delivery, it will compensate the other party on
demand if and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction is
entered into and, in the case of the representations in Section 3(f), at
all times until the termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organized and validly existing under the
laws of the jurisdiction of its organization or incorporation and,
if relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any
other documentation relating to this Agreement to which it is a
party, to deliver this Agreement and any other documentation
relating to this Agreement that it is required by this Agreement
to deliver and to perform its obligations under this Agreement and
any obligations it has under any Credit Support Document to which
it is a party and has taken all necessary action to authorise such
execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable to
it, any provision of'its constitutional documents, any order or
judgment of any court or other agency of government applicable to
it or any of its assets or any contractual restriction binding on
or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are
required to have been obtained by it with respect to this
Agreement or any Credit Support Document to which it is a party
have been obtained and are in full force and effect and all
conditions of any such consents have been complied with; and
(v) Obligations Binding. Its obligations under this Agreement and
any Credit Support Document to which it is a party constitute its
legal, valid and binding obligations, enforceable in accordance
with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to
equitable principles of general application (regardless of whether
enforcement is sought in a proceeding in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would occur as
a result of its entering into or performing its obligations under this
Agreement or any Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or
proceeding at law or inequity or before any court, tribunal, governmental
body, agency or official or any arbitrator that is likely to affect the
legality, validity or enforceability against it of this Agreement or any
Credit Support Document to which it is a party or its ability to perform
its obligations under this Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as of
the date of the information, true, accurate and complete in every material
respect.
(e) Payer Tax Representation. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(f) is
accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may
have any obligation under this Agreement or under any Credit Support
Document to which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or,
in certain cases under subparagraph (iii) below, to such government or
taxing authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation
specified in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any
Confirmation; and
(iii) upon reasonable demand by such other party, any form or
document that may be required or reasonably requested in writing
in order to allow such other party or its Credit Support Provider
to make a payment under this Agreement or any applicable Credit
Support Document without any deduction or withholding for or on
account of any Tax or with such deduction or withholding at a
reduced rate (so long as the completion, execution or submission
of such form or document would not materially prejudice the legal
or commercial position of the party in receipt of such demand),
with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be
executed and to be delivered with any reasonably required
certification,
in each case by the date specified in the Schedule or such Confirmation or,
if none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain
in full force and effect all consents of any governmental or other
authority that are required to be obtained by it with respect to this
Agreement or any Credit Support Document to which it is a party and will
use all reasonable efforts to obtain any that may become necessary in the
future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to
comply would materially impair its ability to perform its obligations under
this Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation
made by it under Section 3(f) to be accurate and true promptly upon
learning of such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon' it or in respect of its execution or performance of
this Agreement by a jurisdiction in which it is incorporated, organised,
managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this
Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the
other party against any Stamp Tax levied or imposed upon the other party or
in respect of the other party's execution or performance of this Agreement
by any such Stamp Tax Jurisdiction which is not also a Stamp Tax
Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any of the following events constitutes
an event of default (an "Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when
due, any payment under this Agreement or delivery under Section
2(a)(i) or 2(e) required to be made by it if such failure is not
remedied on or before the third Local Business Day after notice of
such failure is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to
make any payment under this Agreement or delivery under Section
2(a)(i) or 2(e) or to give notice of a Termination Event or any
agreement or obligation under Section 4(a)(i), 4(a)(iii) or 4(d))
to be complied with or performed by the party in accordance with
this Agreement if such failure is not remedied on or before the
thirtieth day after notice of such failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider
of such party to comply with or perform any agreement or
obligation to be complied with or performed by it in
accordance with any Credit Support Document if such
failure is continuing after any applicable grace period
has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose
of this Agreement (in either case other than in
accordance with its terms) prior to the satisfaction of
all obligations of such party under each Transaction to
which such Credit Support Document relates without the
written consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a
representation under Section 3(e) or (f)) made or repeated or
deemed to have been made or repeated by the party or any Credit
Support Provider of such party in this Agreement or any Credit
Support Document proves to have been incorrect or misleading in
any material respect when made or repeated or deemed to have been
made or repeated;
(v) Default under Specified Transaction. The party, any Credit
Support Provider of such party or any applicable Specified Entity
of such party (l) defaults under a Specified Transaction and,
after giving effect to any applicable notice requirement or grace
period, there occurs a liquidation of, an acceleration of
obligations under, or an early termination of, that Specified
Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or
delivery due on the last payment, delivery or exchange date of, or
any payment on early termination of, a Specified Transaction (or
such default continues for at least three Local Business Days if
there is no applicable notice requirement or grace period) or (3)
disaffirms, disclaims, repudiates or rejects, in whole or in part,
a Specified Transaction (or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the
Schedule as applying to the party, the occurrence or existence of
(l) a default, event of default or other similar condition or
event (however described) in respect of such party, any Credit
Support Provider of such party or any applicable Specified Entity
of such party under one or more agreements or instruments relating
to Specified Indebtedness of any of them (individually or
collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which
has resulted in such Specified Indebtedness becoming, or becoming
capable at such time of being declared, due and payable under such
agreements or instruments, before it would otherwise have been due
and payable or (2) a default by such party, such Credit Support
Provider or such Specified Entity (individually or collectively)
in making one or more payments on the due date thereof in an
aggregate amount of not less than the applicable Threshold Amount
under such agreements or instruments (after giving effect to any
applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is
unable to pay its debts or fails or admits in writing its
inability generally to pay its debts as they become due;
(3) makes a general assignment, arrangement or
composition with or for the benefit of its creditors; (4)
institutes or has instituted against it a proceeding
seeking a judgment of insolvency or bankruptcy or any
other relief under any bankruptcy or insolvency law or
other similar law affecting creditors' rights, or a
petition is presented for its winding-up or liquidation,
and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or
petition (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the
making of an order for its winding-up or liquidation or
(B) is not dismissed, discharged, stayed or restrained in
each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other
than pursuant to a consolidation, amalgamation or
merger); (6) seeks or becomes subject to the appointment
of an administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar official
for it or for all or substantially all its assets; (7)
has a secured party take possession of all or
substantially all its assets or has a distress,
execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or
substantially all its assets and such secured party
maintains possession, or any such process is not
dismissed, discharged, stayed or restrained, in each case
within 30 days thereafter; (8) causes or is subject to
any event with respect to it which, under the applicable
laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of,
or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges
with or into, or transfers all or substantially all its assets to,
another entity and, at the time of such consolidation,
amalgamation, merger or transfer:--
(1) the resulting, surviving or transferee entity fails
to assume all the obligations of such party or such
Credit Support Provider under this Agreement or any
Credit Support Document to which it or its predecessor
was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to
this Agreement; or
(2) the benefits of any Credit Support Document fail to
extend (without the consent of the other party) to the
performance by such resulting, surviving or transferee
entity of its obligations under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any event specified below constitutes an
Illegality if the event is specified in (i) below, a Tax Event if the event
is specified in (ii) below, or a Tax Event Upon Merger if the event is
specified in (iii) below, and, if specified to be applicable, a Credit
Event Upon Merger if the event is specified pursuant to (iv) below, or an
Additional Termination Event if the event is specified pursuant to (v)
below:--
(i) Illegality. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is entered
into, or due to the promulgation of, or any change in, the
interpretation by any court, tribunal or regulatory authority with
competent jurisdiction of any applicable law after such date, it
becomes unlawful (other than as a result of a breach by the party
of Section 4(b)) for such party (which will be the Affected
Party):--
(1) to perform any absolute or contingent obligation to
make a payment or delivery or to receive a payment or
delivery in respect of such Transaction or to comply with
any other material provision of this Agreement relating
to such Transaction; or
(2) to perform, or for any Credit Support Provider of
such party to perform, any contingent or other obligation
which the party (or such Credit Support Provider) has
under any Credit Support Document relating to such
Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority,
or brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of whether
such action is taken or brought with respect to a party to this
Agreement) or (y) a Change in Tax Law, the party (which will be
the Affected Party) will, or there is a substantial likelihood
that it will, on the next succeeding Scheduled Payment Date (1) be
required to pay to the other party an additional amount in respect
of an Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2)
receive a payment from which an amount is required to be deducted
or withheld for or on account of a Tax (except in respect of
Interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional
amount is required to be paid in respect of such Tax under Section
2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on
the next succeeding Scheduled Payment Date will either (1) be
required to pay an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount has been deducted or withheld for or
on account of an Indemnifiable Tax in respect of which the other
party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a
result of a party consolidating or amalgamating with, or merging
with or into, or transferring all or substantially all its assets
to, another entity (which will be the Affected Party) where such
action does not constitute an event described in Section
5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party
("X"), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or merges
with or into, or transfers all or substantially all its assets to,
another entity and such action does not constitute an event
described in Section 5(a)(viii) but the creditworthiness of the
resulting, surviving or transferee entity is materially weaker
than that of X, such Credit Support Provider or such Specified
Entity, as the case may be, immediately prior to such action (and,
in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination
Event" is specified in the Schedule or any Confirmation as
applying, the occurrence of such event (and, in such event, the
Affected Party or Affected Parties shall be as specified for such
Additional Termination Event in the Schedule or such
Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which
would otherwise constitute or give rise to an Event of Default also
constitutes an Illegality, it will be treated as an Illegality and will not
constitute an Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event
of Default with respect to a party (the "Defaulting Party") has occurred
and is then continuing, the other party (the "Non-defaulting Party") may,
by not more than 20 days notice to the Defaulting Party specifying the
relevant Event of Default, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of all
outstanding Transactions. If, however, "Automatic Early Termination" is
specified in the Schedule as applying to a party, then an Early Termination
Date in respect of all outstanding Transactions will occur immediately upon
the occurrence with respect to such party of an Event of Default specified
in Section 5(a)(vii)(1), (3), (5), (6) or, to the extent analogous thereto,
(8), and as of the time immediately preceding the institution of the
relevant proceeding or the presentation of the relevant petition upon the
occurrence with respect to such party of an Event of Default specified in
Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party,
specifying the nature of that Termination Event and each Affected
Transaction and will also give such other information about that
Termination Event as the other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality
under Section 5(b)(i)(1) or a Tax Event occurs and there is only
one Affected Party, or if a Tax Event Upon Merger occurs and the
Burdened Party is the Affected Party, the Affected Party will, as
a condition to its right to designate an Early Termination Date
under Section 6(b)(iv), use all reasonable efforts (which will not
require such party to incur a loss, excluding immaterial,
incidental expenses) to transfer within 20 days after it gives
notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another
of its Offices or Affiliates so that such Termination Event ceases
to exist.
If the Affected Party is not able to make such a transfer it will
give notice to the other party to that effect within such 20 day
period, whereupon the other party may effect such a transfer
within 30 days after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the
other party, which consent will not be withheld if such other
party's policies in effect at such time would permit it to enter
into transactions with the transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section
5(b)(i)(1) or a Tax Event occurs and there are two Affected
Parties, each party will use all reasonable efforts to reach
agreement within 30 days after notice thereof is given under
Section 6(b)(i) on action to avoid that Termination Event.
(iv) Right to Terminate. If:--
(1) a transfer under Section 6(b)(ii) or an agreement
under Section 6(b)(iii), as the case may be, has not been
effected with respect to all Affected Transactions within
30 days after an Affected Party gives notice under
Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit
Event Upon Merger or an Additional Termination Event
occurs, or a Tax Event Upon Merger occurs and the
Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in
the case of a Tax Event Upon Merger, any Affected Party in the
case of a Tax Event or an Additional Termination Event if there is
more than one Affected Party, or the party which is not the
Affected Party in the case of a Credit Event Upon Merger or an
Additional Termination Event if there is only one Affected Party
may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then continuing,
designate a day not earlier than the day such notice is effective
as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the
date so designated, whether or not the relevant Event of Default,
or Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions
of this Agreement. The amount, if any, payable in respect of an
Early Termination Date shall be determined pursuant to Section
6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following
the occurrence of an Early Termination Date, each party will make
the calculations on its part, if any, contemplated by Section 6(e)
and will provide to the other party a statement (1) showing, in
reasonable detail, such calculations (including all relevant
quotations and specifying any amount payable under Section 6(e))
and (2) giving details of the relevant account to which any amount
payable to it is to be paid. In the absence of written
confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining
such quotation will be conclusive evidence of the existence and
accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of
any Early Termination Date under Section 6(e) will be payable on
the day that notice of the amount payable is effective (in the
case of an Early Termination Date which is designated or occurs as
a result of an Event of Default) and on the day which is two Local
Business Days after the day on which notice of the amount payable
is effective (in the case of an Early Termination Date which is
designated as a result of a Termination Event). Such amount will
be paid together with (to the extent permitted under applicable
law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount, is paid,
at the Applicable Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that "Market Quotation"or the "Second Method",
as the case may be, shall apply. The amount, if any, payable in respect of
an Early Termination Date and determined pursuant to this Section will be
subject to any Set-off.
(i) Events of Default. If the Early Termination Date results
from an Event of Default:--
(1) First Method and Market Quotation. If the First
Method and Martet Quotation apply, the Defaulting Party
will pay to the Non-defaulting Party the excess, if a
positive number, of (A) the sum of the Settlement Amount
(determined by the Non-defaulting Party) in respect of
the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting
Party.
(2) First Method and Loss. If the First Method and Loss
apply, the Defaulting Party will pay to the
Non-defaulting Party, if a positive number, the
Non-defaulting Party's Loss in respect of this Agreement.
(3) Second Method and Market Quotation. If the Second
Method and Market Quotation apply, an amount will be
payable equal to (A) the sum of the Settlement Amount
(determined by the Non-defaulting Party) in respect of
the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party less (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party;
if it is a negative number, the Non-defaulting Party will
pay the absointe value of that amount to the Defaulting
Party.
(4) Second Method and Loss. If the Second Method and Loss
apply, an amount will be payable equal to the
Non-defaulting Party's Loss in respect of this Agreement.
If that amount is a positive number, the Defaulting Party
will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results
from a Termination Event:--
(1) One Affected Party. If there is one Affected Party,
the amount payable will be determined in accordance with
Section 6(e)(i)(3), if Market Quotation applies, or
Section 6(e)(i)(4), if Loss applies, except that, in
either case, references to the Defaulting Party and to
the Non-defaulting Party will be deemed to be references
to the Affected Party and the party which is not the
Affected Party, respectively, and, if Loss applies and
fewer than all the Transactions are being terminated,
Loss shall be calculated in respect of all Terminated
Transactions.
(2) Two Affected Parties. If there are two Affected
Parties:--
(A) if Market Quotation applies, each party will
determine a Settlement Amount in respect of the
Terminated Transactions, and an amount will be
payable equal to (I) the sum of (a) one-half of
the difference between the Settlement Amount of
the party with the higher Settlement Amount
("X") and the Settlement Amount of the party
with the lower Settlement Amount ("Y") and (b)
the Termination Currency Equivalent of the
Unpaid Amounts owing to X less (II) the
Termination Currency Equivalent of the Unpaid
Amounts owing to Y; and
(B) if Loss applies, each party will determine
its Loss in respect of this Agreement (or, if
fewer than all the Transactions are being
terminated, in respect of all Terminated
Transactions) and an amount will be payable
equal to one-half of the difference between the
Loss of the party with the higher Loss ("X") and
the Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it
to X; if it is a negative number, X will pay the absolute
value of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination"
applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are
appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement
(and retained by such other party) during the period from the
relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation
applies an amount recoverable under this Section 6(e) is a
reasonable pre-estimate of loss and not a penalty. Such amount is
payable for the loss of bargain and the loss of protection against
future risks and except as otherwise provided in this Agreement
neither party will be entitled to recover any additional damages
as a consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that:--
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will he made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the
Contractual Currency will not be discharged or satisfied by any tender in
any currency other than the Contractual Currency, except to the extent such
tender results in the actual receipt by the party to which payment is owed,
acting in a reasonable manner and in good faith in converting the currency
so tendered into the Contractual Currency, of the full amount in the
Contractual Currency of all amounts payable in respect of this Agreement.
If for any reason the amount in the Contractual Currency so received falls
short of the amount in the Contractual Currency payable in respect of this
Agreement, the party required to make the payment will, to the extent
permitted by applicable law, immediately pay such additional amount in the
Contractual Currency as may be necessary to compensate for the shortfall.
If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount
of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment
or order expressed in a currency other than the Contractual Currency is
rendered (i) for the payment of any amount owing in respect of this
Agreement, (ii) for the payment of any amount relating to any early
termination in respect of this Agreement or (iii) in respect of a judgment
or order of another court for the payment of any amount described in (i) or
(ii) above, the party seeking recovery, after recovery in full of the
aggregate amount to which such party is entitled pursuant to the judgment
or order, will be entitled to receive immediately from the other party the
amount of any shortfall of the Contractual Currency received by such party
as a consequence of sums paid in such other currency and will refund
promptly to the other party any excess of the Contractual Currency received
by such party as a consequence of sums paid in such other currency if such
shortfall or such excess arises or results from any variation between the
rate of exchange at which the Contractual Currency is converted into the
currency of the judgment or order for the purposes of such judgment or
order and the rate of exchange at which such party is able, acting in a
reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with
the amount of the currency of the judgment or order actually received by
such party. The term "rate of exchange" includes, without limitation, any
premiums and costs of exchange payable in connection with the purchase of
or conversion into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and
independent causes of action, will apply notwithstanding any indulgence
granted by the party to which any payment is owed and will not be affected
by judgment being obtained or claim or proof being made for any other sums
payable in respect of this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will he
sufficient for a party to demonstrate that it would have suffered a loss
had an actual exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and
supersedes all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing
evidenced by a facsimile transmission) and executed by each of the parties
or confirmed by an exchange of telexes or electronic messages on an
electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive
the termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative
and not exclusive of any rights, powers, remedies and privileges provided
by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will he
deemed an original.
(ii) The parties intend that they are legally bound by the terms
of each Transaction from the moment they agree to those terms
(whether orally or otherwise). A Confirmation shall be entered
into as soon as practicable and may be executed and delivered in
counterparts (including by facsimile transmission) or be created
by an exchange of telexes or by an exchange of electronic messages
on an electronic messaging system, which in each case will be
sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through
another effective means that any such counterpart, telex or
electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power
or privilege in respect of this Agreement will not be presumed to operate
as a waiver, and a single or partial exercise of any right, power or
privilege will not be presumed to preclude any subsequent or further
exercise, of that right, power or privilege or the exercise of any other
right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken
into consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party
that enters into a Transaction through an Office other than its head or
home office represents to the other party that, notwithstanding the place
of booking office or jurisdiction of incorporation or organization of such
party, the obligations of such party are the same as if it had entered into
the Transaction through its head or home office. This representation will
be deemed to be repeated by such party on each date on which a Transaction
is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other
party for and against all reasonable out-of-pocket expenses, including
legal fees and Stamp Tax, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any Credit
Support Document to which the Defaulting Party is a party or by reason of
the early termination of any Transaction, including, but not limited to,
costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice
or other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the
date it is delivered;
(ii) if sent by telex, on the date the recipient's answer back is
received;
(iii) if sent by facsimile transmission, on the date that
transmission is received by a responsible employee of the
recipient in legible form (it being agreed that the burden of
proving receipt will be on the sender and will not be met by a
transmission report generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if
overseas) or the equivalent (return receipt requested), on the
date that mail is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received,
unless the date of that delivery (or attempted delivery) or that
receipt, as applicable, is not a Local Business Day or that
communication is delivered (or attempted) or received, as
applicable, after the close of business on a Local Business Day,
in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details
at which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating
to this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to the
non-exclusive jurisdiction of the courts of the State of New York
and the United States District Court located in the Borough of
Manhattan in New York City, if this Agreement is expressed to be
governed by the laws of the State of New York; and
(ii) waives any objection which it may have at any time to the
laying of venue of any Proceedings brought in any such court,
waives any claim that such Proceedings have been brought in an
inconvenient forum and further waives the right to object, with
respect to such Proceedings, that such court does not have any
jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings
in any other jurisdiction (outside, if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1(3)
of the Civil Jurisdiction and Judgments Xxx 0000 or any modification,
extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the
bringing of Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent
(if any) specified opposite its name in the Schedule to receive, for it and
on its behalf, service of process in any Proceedings. If for any reason any
party's Process Agent is unable to act as such, such party will promptly
notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to
service of process given in the manner provided for notices in Section 12.
Nothing in this Agreement will affect the right of either party to serve
process in any other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its revenues
and assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds from (i) suit, (ii)
jurisdiction of any court, (iii) relief by way of injunction, order for
specific performance or for recovery of property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution or enforcement
of any judgment to which it or its revenues or assets might otherwise be
entitled in any Proceedings in the courts of any jurisdiction and
irrevocably agrees, to the extent permitted by applicable law, that it will
not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified the Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b)
with respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose,
"control" of any entity or person means ownership of a majority of the
voting power of the entity or person.
"Applicable Rate" means:--
(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.
XXXXXXX XXXXX CAPITAL SERVICES, INC. MMCA AUTO OWNER TRUST 2001-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
nor as a principal to this
Master Agreement, but solely as
Owner Trustee
By: /s/ Xxxxx X. Xxxx By: /s/ W. Xxxxx Xxxxxxxxxx
------------------------------ ------------------------------
Name: Xxxxx X. Xxxx Name: W. Xxxxx Xxxxxxxxxx
Title: Designated Signatory Title: Assistant Vice President
Date: April 16, 2001 Date: April 16, 2001
SCHEDULE to the ISDA Master Agreement
Dated as of April 18, 2001
between
XXXXXXX XXXXX CAPITAL SERVICES, INC. ("MLCS")
and
MMCA AUTO OWNER TRUST 2001-1 (the "Trust")
Part 1 Termination Provisions.
(a) "Specified Entity" means:
(i) in relation to MLCS: 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 MLCS or to the Trust.
(d) The "Credit Support Default" provisions of Section 5(a)(iii), if
applicable, will apply to MLCS and will not apply to the Trust.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) will not
apply to MLCS or to the Trust.
(f) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to MLCS or to the Trust.
(g) The "Cross Default" provisions of Section 5(a)(vi) will not apply
to MLCS or to the Trust.
(h) The "Merger Without Assumptions" provisions of Section 5(a)(viii)
will not apply to MLCS or to the Trust.
(i) The "Tax Event" provision of Section 5(b)(ii) will apply to the
Trust and will not apply to MLCS, 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 the Trust and will not apply to MLCS, 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 MLCS or to the Trust.
(l) The "Automatic Early Termination" provision of Section 6(a) will
not apply to MLCS 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 MLCS 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 MLCS 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) of the Indenture. In such event,
either MLCS 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 MLCS under this Agreement gives rise
to an Event of Default under the Indenture, it will be
treated as an Event of Default by MLCS and not an
Additional Termination Event.
(ii) Amendments Made Without Consent of MLCS. 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 MLCS' 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 MLCS, which consent shall not be unreasonably
withheld (in which case the Trust will be the Affected
Party).
(iii) Downgrade of MLCS. It shall be an Additional Termination
Event with MLCS the Affected Party if (1) the long-term
Credit Rating of MLCS is downgraded below "A2" by Xxxxx'x
or below "A" by Fitch, or is suspended or withdrawn by
either Rating Agency or (2) the short-term Credit Rating
of MLCS is downgraded below a rating of "A-1" by S&P or
below "F-1" by Fitch, or is suspended or withdrawn by
either Rating Agency, and within 30 days of such
downgrade, suspension, withdrawal or notification, MLCS
shall fail to (x) in the case of a downgrade by Xxxxx'x
or Fitch deliver or post collateral acceptable to the
Trust and acceptable to the Rating Agencies, in amounts
sufficient or in accordance with the standards of the
Rating Agencies (as such standards may be modified while
any Transaction is still outstanding), to secure its
obligations under this Agreement, (y) in the case of a
downgrade by Xxxxx'x, Fitch or S&P assign its rights and
obligations under this Agreement to a replacement
counterparty acceptable to the Trust or (z) in the case
of a downgrade by Xxxxx'x, Fitch or S&P, establish other
arrangements necessary, if any, in each case so that the
Rating Agencies confirm the ratings of the Notes that
were in effect immediately prior to such downgrade,
suspension, withdrawal or notification.
(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 MLCS' first priority
perfected security interest in the Collateral under the
Indenture.
Part 2 Tax Representations.
(a) Payer Tax Representations. For the purposes of Section 3(e) of
this Agreement, MLCS 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, MLCS
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 MLCS that it is a business trust
organized and existing under the laws of the State of
Delaware.
(iii) MLCS represents that it is a "United States person" as
defined in Section 7701(a)(30) of the Internal Revenue
Code of 1986, as amended, 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
MLCS 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:
MLCS 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.
MLCS and the Trust Certified copies of Upon request by the other Applicable
documents evidencing each party.
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.
MLCS Annual audited financial Promptly after request by the
statements of its Credit Trust. Applicable
Support Provider prepared
in accordance with
generally accepted
accounting principles in
the country in which its
Credit Support Provider
is organized.
Monthly reports to On or prior to each Monthly Applicable
The Trust 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).
MLCS and the Trust A legal opinion in form Not
Applicable and substance On or prior to
the Closing satisfactory to the other
Date.
party.
The Trust A copy of the executed As soon as practical after the
Indenture and of each of Closing Date. The Trust
the Receivables Transfer
and Servicing Agreements.
MLCS An officer's certificate On or prior to the Applicable
affirming the information Closing Date
describing MLCS under
"Description of Swap
Counterparty" provided to
the Trust by MLCS for use
in the Trust's prospectus.
MLCS 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 MLCS
and the Trust shall be as follows:
TO PARTY A:
Xxxxxxx Xxxxx World Headquarters
4 World Financial Center
New York, New York 10080
Attention: Swap Group
Tel: (000) 000-0000
Fax: (000) 000-0000
Additionally, a copy of all notices pursuant to Sections
5, 6, and 7 as well as any changes to counterparty's address, telephone
number or facsimile number should be sent to:
CICG Counsel
Xxxxxxx Xxxxx World Headquarters
4 World Financial Center
New York, New York 10080
Attention: Swaps Legal
Fax: (000) 000-0000
TO PARTY B:
MMCA Auto Owner Trust 2001-1
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:
MLCS 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) MLCS is not a Multibranch Party.
(ii) The Trust is not a Multibranch Party.
(e) The Calculation Agent shall be MLCS.
(f) Credit Support Documents.
MLCS: Guarantee of Xxxxxxx Xxxxx & Co., Inc. ("ML&Co.") in the form
attached hereto as Exhibit A. The Trust: Not applicable
(g) Credit Support Provider.
Credit Support Provider means, in relation to MLCS, ML&Co. Credit
Support Provider means, in relation to the Trust, Not Applicable.
(h) Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York
(without reference to its choice of law doctrine) except that the
capacity, power or authority of the Trust to enter into this
Agreement and any issue relating to the interpretation of the
Trust's Trust Agreement will be governed and construed in
accordance with the laws of the State of Delaware.
(i) "Affiliate" will have the meaning specified in Section 14 of this
Agreement, but as to the Trust, "Affiliate" will not include the
Owner Trustee, the Indenture Trustee or Mitsubishi Motors Credit
of America, Inc.
Part 5 Other Provisions.
(a) Representations.
(i) Non-Reliance, Etc. Each party will be deemed to represent
to the other party on the date that it enters into a
Transaction that (absent a written agreement between the
parties that expressly imposes affirmative obligations to
the contrary for that Transaction):
(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 MLCS any amount in respect of any
liability of MLCS 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 MLCS 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 (d), 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 (d), "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 MLCS. MLCS represents that the description of
MLCS as set forth in the Preliminary Prospectus dated
April 3, 2001 has been furnished and approved by MLCS and
is true and correct as of the date hereof.
(iv) Non-Petition. MLCS 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. MLCS 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,
MLCS may assign its rights and delegate its obligations
under any Transaction, in whole or in part, to any
Affiliate of ML&Co. (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 MLCS under the
Transaction(s) (the "Transferred Obligations"); and (b)
an executed guarantee of ML&Co., of the Transferred
Obligations, substantially identical to the Credit
Support Document with respect to MLCS; 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 MLCS 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
MLCS in the absence of such transfer; (ii) MLCS 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
MLCS 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) MLCS 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) MLCS 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 15 days
prior to any such transfer MLCS 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, MLCS 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
MLCS. MLCS shall be entitled to rely on any notice or
communication from the Indenture Trustee to that effect.
MLCS acknowledges that the Trust will pledge
substantially all its assets to the Indenture Trustee for
the benefit of the Noteholders and MLCS 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 MLCS 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, MLCS
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,
MLCS acknowledges and agrees that it shall have no right,
title or interest in or to the Other Assets of the
Seller. To the extent that, notwithstanding the
agreements and provisions contained in the preceding
paragraph, MLCS either (i) asserts an interest or claim
to, or benefit from, Other Assets, or (ii) is deemed 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 MLCS 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)(vi) and the terms
of this Part 5(e)(vi) may be enforced by an action for
specific performance. The provisions of this Part
5(e)(vi) 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 MLCS 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 MLCS'
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 MLCS with a copy of
the proposed amendment or supplement and shall obtain the
consent of MLCS to such amendment or supplement prior to
its adoption, which consent shall not be unreasonably
withheld; provided that MLCS' consent will be deemed to
have been given if MLCS 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. MLCS 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 MLCS with copies
of all notices required to be given to the holders of the Notes,
and upon request, shall provide MLCS 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 and the Class A-3 Notes are
rated "Aaa" by Xxxxx'x Investor Services, Inc., "AAA" by
Standard and Poor's, 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 MLCS 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) Additional Definitions.
"Administration Agreement" shall mean the administration
agreement dated as of April 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.
"Closing Date" shall mean April 18, 2001.
"Credit Rating" means, with respect to MLCS, the issuer
rating of the head office of Xxxxxxx Xxxxx & Co. Inc. 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 April 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.
"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 MLCS, whether by way of a sale,
capital contribution or by virtue of the granting of a lien.
"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 May 15, 2001.
"Purchase Agreement" shall mean the purchase agreement
dated as of April 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, Moody's or S&P, or
any substitute rating agency that the Seller (as defined in the
Indenture) requests to rate the 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 April 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.
"S&P" shall mean Standard & Poor's Rating Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"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 April 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.
XXXXXXX XXXXX CAPITAL SERVICES, INC. MMCA AUTO OWNER TRUST 2001-1
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. Xxxx By: /s/ W. Xxxxx Xxxxxxxxxx
----------------------- ----------------------------
Name: Xxxxx X. Xxxx Name: W. Xxxxx Xxxxxxxxxx
Title: Designated Signatory Title: Assistant Vice President
Date: April 16, 2001 Date: April 16, 2001
EXHIBIT A
[FORM OF GUARANTEE OF XXXXXXX XXXXX & CO., INC.]
FOR VALUE RECEIVED, receipt of which is hereby
acknowledged, XXXXXXX XXXXX & CO., INC., a corporation duly organized and
existing under the laws of the State of Delaware ("ML & Co."), hereby
unconditionally guarantees to MMCA AUTO OWNER TRUST 2001-1 ("Company"), the
due and punctual payment of any and all amounts payable by Xxxxxxx Xxxxx
Capital Services, Inc., a corporation organized under the laws of the State
of Delaware ("MLCS"), under the terms of the Master Agreement between the
Company and MLCS, dated as of April 18, 2001 ("Agreement"), including, in
case of default, interest on any amount due, when and as the same shall
become due and payable, whether on the scheduled payment dates, at
maturity, upon declaration of termination or otherwise, according to the
terms thereof. In case of the failure of MLCS punctually to make any such
payment, ML & Co. hereby agrees to make such payment, or cause such payment
to be made, promptly upon demand made by the Company to ML & Co.; provided,
however that delay by the Company in giving such demand shall in no event
affect ML & Co.'s obligations under this Guarantee. This Guarantee shall
remain in full force and effect or shall be reinstated (as the case may be)
if at any time any payment guaranteed hereunder, in whole or in part, is
rescinded or must otherwise be returned by the Company upon the insolvency,
bankruptcy or reorganization of MLCS or otherwise, all as though such
payment had not been made.
ML & Co. hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Agreement; the absence of any action to enforce the
same; any waiver or consent by the Company concerning any provisions
thereof; the rendering of any judgment against MLCS or any action to
enforce the same; or any other circumstances that might otherwise
constitute a legal or equitable discharge of a guarantor or a defense of a
guarantor. ML & Co. covenants that this guarantee will not be discharged
except by complete payment of the amounts payable under the Agreement. This
Guarantee shall continue to be effective if MLCS merges or consolidates
with or into another entity, loses its separate legal identity or ceases to
exist.
ML & Co. hereby waives diligence; presentment; protest;
notice of protest, acceleration, and dishonor; filing of claims with a
court in the event of insolvency or bankruptcy of MLCS; all demands
whatsoever, except as noted in the first paragraph hereof; and any right to
require a proceeding first against MLCS.
ML & Co. hereby certifies and warrants that this
Guarantee constitutes the valid obligation of ML & Co. and complies with
all applicable laws.
This Guarantee shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Guarantee may be terminated at any time by notice by
ML & Co. to the Company given in accordance with the notice provisions of
the Agreement, effective upon receipt of such notice by the Company or such
later date as may be specified in such notice; provided, however, that this
Guarantee shall continue in full force and effect with respect to any
obligation of MLCS under the Agreement entered into prior to the
effectiveness of such notice of termination.
This Guarantee becomes effective concurrent with the
effectiveness of the Agreement, according to its terms.
IN WITNESS WHEREOF, ML & Co. has caused this Guarantee to
be executed in its corporate name by its duly authorized representative.
XXXXXXX XXXXX & CO., INC.
By: __________________________
Name:
Title:
Date:
EXHIBIT B
[Form of SWAP Confirmation]
[Date]
To: XXXXXXX XXXXX CAPITAL SERVICES, INC.
Xxxxxxx Xxxxx World Headquarters
4 World Financial Center
New York, New York 10080
Attention: Swap Group
Tel: (000) 000-0000
Fax: (000) 000-0000
From: MMCA Auto Owner Trust 2001-1
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 Xxxxxxx
Xxxxx Capital Services, Inc. ("MLCS") and MMCA Auto Owner Trust 2001-1 (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 April 18, 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 MLCS of such determination by
the twelfth day of the calendar month
in which such Calculation Period
begins.]
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: MLCS.
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 for initial
Calculation Period: [One month.]
Floating Rate Option: [USD-LIBOR-BBA.]
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;
provided, for purposes of LIBOR Reset
Dates, New York, New York and London.
Account Details
Payments to MLCS: [ ]
Payments to the Trust: [ ]
Misc.
Calculation Agent: MLCS.
Non-Reliance: Each party represents to the other
party that it is acting for its own
account, and has made its own
independent decisions to enter into
this Transaction and as to whether
this Transaction is appropriate or
proper for it based on its own
judgment and upon advice from such
advisors 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 this
Transaction, it being understood that
information and explanations related
to the terms and conditions of this
Transaction shall not be considered
investment advice or a recommendation
to enter into this 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 this
Transaction.
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 2001-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor as a principal
to this Agreement, but solely as Owner Trustee
By: ______________________________
Name:
Title:
XXXXXXX XXXXX CAPITAL SERVICES, INC.
By: ______________________________
Name:
Title: Designated Signatory
Class A-2 Swap Confirmation
April 18, 2001
To: XXXXXXX XXXXX CAPITAL SERVICES, INC.
Xxxxxxx Xxxxx World Headquarters
4 World Financial Center
New York, New York 10080
Attention: Swap Group
Tel: (000) 000-0000
Fax: (000) 000-0000
From: MMCA Auto Owner Trust 2001-1
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 2001-1 Class A-2 Notes Interest
Rate Swap
MLCS Reference: 666708A
MLCS Admin. #: 01DL02995
MMCA Reference: 199ABS
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between Xxxxxxx
Xxxxx Capital Services, Inc. ("MLCS") and MMCA Auto Owner Trust 2001-1 (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 April 18, 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: April 4, 2001.
Effective Date: April 18, 2001.
Notional Amount: The Notional Amount initially shall
equal $165,000,000 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 inform MLCS of such
determination by the twelfth day of
the calendar month in which such
Calculation Period begins.
Termination Date: The date on which the aggregate
outstanding principal balance of the
Class A-2 Notes has been reduced to
zero, or August 15, 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 May 15, 2001, 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: 4.580%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: MLCS.
Floating Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on May 15, 2001, 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 for initial
Calculation Period: One month.
Floating Rate Option: USD-LIBOR-BBA.
Designated Maturity: One month.
Spread: 0.11%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: 5.03875% (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;
provided, for purposes of LIBOR Reset
Dates, New York, New York and London.
Account Details
Payments to MLCS: Bankers Trust Company
New York, NY
ABA: 000000000
Account #: 00-000-000
Ref: Xxxxxxx Xxxxx Capital Services, Inc.
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA: 26009687
Account #: 00000000
Misc.
Calculation Agent: MLCS.
Non-Reliance: Each party represents to the other
party that it is acting for its own
account, and has made its own
independent decisions to enter into
this Transaction and as to whether
this Transaction is appropriate or
proper for it based on its own
judgment and upon advice from such
advisors 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 this
Transaction, it being understood that
information and explanations related
to the terms and conditions of this
Transaction shall not be considered
investment advice or a recommendation
to enter into this 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 this
Transaction.
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 2001-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor as a principal
to this Agreement, but solely as Owner Trustee
By: /s/ W. Xxxxx Xxxxxxxxxx
----------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Assistant Vice President
XXXXXXX XXXXX CAPITAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Designated Signatory
Class A-3 Swap Confirmation
April 18, 2001
To: XXXXXXX XXXXX CAPITAL SERVICES, INC.
Xxxxxxx Xxxxx World Headquarters
4 World Financial Center
New York, New York 10080
Attention: Swap Group
Tel: (000) 000-0000
Fax: (000) 000-0000
From: MMCA Auto Owner Trust 2001-1
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 2001-1 Class A-3 Notes Interest
Rate Swap
MLCS Reference: 666710A
MLCS Admin. #: 01DL02997
MMCA Reference: 197ABS
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between Xxxxxxx
Xxxxx Capital Services, Inc. ("MLCS") and MMCA Auto Owner Trust 2001-1 (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 April 18, 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: April 4, 2001.
Effective Date: April 18, 2001.
Notional Amount: The Notional Amount initially shall
equal $350,000,000 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 inform MLCS of such
determination by the twelfth day of
the calendar month in which such
Calculation Period begins.
Termination Date: The date on which the aggregate
outstanding principal balance of the
Class A-3 Notes has been reduced to
zero, or May 16, 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 May 15, 2001, 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: 4.912%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: MLCS.
Floating Rate Payer
Payment Dates: The 15th day of each calendar month
commencing on May 15, 2001, 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 for initial
Calculation Period: One month.
Floating Rate Option: USD-LIBOR-BBA.
Designated Maturity: One month.
Spread: 0.18%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: 5.03875% (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;
provided, for purposes of LIBOR Reset
Dates, New York, New York and London.
Account Details
Payments to MLCS: Bankers Trust Company
New York, NY
ABA: 000000000
Account #: 00-000-000
Ref: Xxxxxxx Xxxxx Capital Services, Inc.
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA: 26009687
Account #: 00000000
Misc.
Calculation Agent: MLCS.
Non-Reliance: Each party represents to the other
party that it is acting for its own
account, and has made its own
independent decisions to enter into
this Transaction and as to whether
this Transaction is appropriate or
proper for it based on its own
judgment and upon advice from such
advisors 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 this
Transaction, it being understood that
information and explanations related
to the terms and conditions of this
Transaction shall not be considered
investment advice or a recommendation
to enter into this 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 this
Transaction.
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 2001-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor as a principal to
this Agreement, but solely as Owner Trustee
By: /s/ W. Xxxxx Xxxxxxxxxx
-----------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Assistant Vice President
XXXXXXX XXXXX CAPITAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Designated Signatory
