SCHEDULE to the Master Agreement dated as of July 22, 2008 between
Exhibit
99.5
(Multicurrency)
ISDA 1992
Master Agreement
SCHEDULE
to
the
dated as
of July 22, 2008
between
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XXXXXXX
XXXXX CAPITAL SERVICES,
INC.,
a
corporation organized and existing
under the laws of the
State of Delaware
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And
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MERRILL
AUTO TRUST SECURITIZATION 2008-1, a statutory trust organized under the
laws of the State of Delaware
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(“Party
A”)
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(“Party
B”)
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Part
1. Termination Provisions.
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(a)
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"Specified Entity"
means in relation to Party A for the purpose
of:
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Section
5(a)(v):
Not Applicable
Section
5(a)(vi):
Not Applicable
Section
5(a)(vii): Not
Applicable
Section
5(b)(iv): Not
Applicable
and in
relation to Party B for the purpose of:—
Section
5(a)(v):
Not Applicable
Section
5(a)(vi):
Not Applicable
Section
5(a)(vii): Not
Applicable
Section
5(b)(iv): Not
Applicable
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(b)
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"Specified
Transaction" will have the meaning specified in Section 14 of this
Agreement.
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(c)
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Events of Default.
The Events of Default specified in Section 5(a) of the Agreement will
apply to Party A and Party B only as specified
below:
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(i)
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Section
5(a)(i) (Failure to Pay or Deliver) will apply to Party A and will apply
to Party B.
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(ii)
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Section
5(a)(ii) (Breach of Agreement) will apply to Party A and will not apply to
Party B.
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(iii)
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Section
5(a)(iii) (Credit Support Default) will apply to Party A and will not
apply to Party B.
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(iv)
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Section
(a)(iv) (Misrepresentation) will apply to Party A and will not apply to
Party B.
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(v)
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Section
5(a)(v) (Default under Specified Transaction) will not apply to Party A
and will not apply to Party B.
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(vi)
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Section
5(a)(vi) (Cross Default) will not apply to Party A and will not apply to
Party B.
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(vii)
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Section
5(a)(vii) (Bankruptcy) will apply to Party A and will apply to Party B,
except that the provisions of Section 5(a)(vii)(2) shall not apply to
Party B.
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(viii)
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Section
5(a)(viii) (Merger Without Assumption) will apply to Party A and will
apply to Party B.
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(d)
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Termination Events.
The Termination Events specified in Section 5(b) of the Agreement will
apply to Party A and Party B only as specified
below:
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(i)
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Section
5(b)(i) (Illegality) will apply to Party A and will apply to Party
B.
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(ii)
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Section
5(b)(ii) (Tax Event) will apply to Party A and will apply to Party
B.
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(iii)
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Section
5(b)(iii) (Tax Event Upon Merger) will apply to Party A (provided that
Party A shall not be entitled to designate an Early Termination Date by
reason of a Tax Event upon Merger in respect of which it is the Affected
Party), and will not apply to Party
B.
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(iv)
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Section
5(b)(iv) (Credit Event Upon Merger) will not apply to Party A and will not
apply to Party B.
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(v)
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Section
5(b)(v) (Additional Termination Event) will apply as set forth in Part
1(h).
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(e)
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The
"Automatic Early
Termination" provision of Section 6(a) will not apply to Party A
and will not apply to Party B.
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(f)
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Payments on Early
Termination. For the purpose of Section 6(e) of this
Agreement and subject to the provisions of Part 5 of this
Schedule:
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(i)
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Market
Quotation will apply.
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(ii)
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The
Second Method will apply.
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(g)
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"Termination
Currency" means United States
Dollars.
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(h)
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"Additional Termination
Event" The following shall be Additional Termination
Events:
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(1)
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Failure to Satisfy Downgrade
Provisions. The failure by Party A to comply with the Downgrade
Provisions as set forth in Part 5(o). Party A shall be the sole
Affected Party with respect to the Additional Termination Event described
in this Part 1(h)(1); provided that failure of Party A to comply with its
requirement to post collateral pursuant to Part 5(o)(2)(b)(i)(B) shall not
be an Additional Termination Event but an Event of Default under this
Agreement with Party A being the Defaulting
Party.
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(2)
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Indenture Event of
Default. The occurrence of an Event of Default
under the Indenture (as defined in Part 5 (a) below). Party B shall be the
sole Affected Party with respect to the Termination Event described in
this Part 1(h)(2).
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(3)
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Amendment of
Indenture. The Indenture shall be amended or otherwise
modified or a supplemental indenture adopted in any manner that would
adversely and materially affect: (i) the rights of Party A under the
Indenture or this Agreement, (ii) the obligations of Party A under this
Agreement or (iii) any term used herein and defined in the Indenture or
any component thereof, in each case without the prior written consent of
Party A where such consent is required by Party
A.
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Part
2. Tax
Representations.
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(a)
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Payer
Representations. For the purpose of Section 3(e) of this
Agreement, Party A will make the following representation and Party B will
make the following representation:
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It is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made
by it to the other party under this Agreement. In making this
representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, (ii) the satisfaction of the agreement contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement and (iii) the satisfaction of
the agreement of the other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where reliance is
placed on clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
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(b)
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Payee
Representations.
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(i)
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For
the purpose of Section 3(f) of this Agreement, Party A represents that it
is a corporation organized under the laws of the State of
Delaware.
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(ii)
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For
the purpose of Section 3(f) of this Agreement, Party B represents that it
is a statutory trust organized under the laws of
Delaware.
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Part
3. Agreement
to Deliver Documents.
For the
purpose of Sections 4(a)(i) and (ii) of this Agreement, each party agrees to
deliver the following documents, as applicable:—
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(a)
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Tax
forms, documents or certificates to be delivered are:
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Party
Required to
Deliver
Document
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Form/Document/
Certificate
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Date
by Which
to
be Delivered
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Covered
by Section
3(d)
Representation
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Party
A
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A
duly completed Internal Revenue Service Form W-9.
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Upon
the execution of this Agreement.
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Yes
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Party
B
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A
duly completed Internal Revenue Service Form W-9.
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Upon
the execution of this Agreement.
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Yes
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(b)
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For
the purpose of Section 4(a)(ii) of this Agreement, each party agrees to
deliver the following other forms, documents and certificates, as
applicable:
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Party
Required to
Deliver
Document
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Form/Document/
Certificate
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Date
by Which
to
be Delivered
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Covered
by Section
3(d)
Representation
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Party
A and Party B
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A
certified copy of the resolution of the Board of Directors of such party
or of its relevant committee, authorizing such party to enter into this
Agreement and each Transaction entered into under this Agreement, and an
incumbency certificate in respect of the person entering into this
Agreement and each Transaction on behalf of such party.
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As
soon as practicable after the execution of this Agreement.
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Yes
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Party
A
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The
Guaranty of the Credit Support Provider of Party A (the
“Guaranty”)
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Upon
the execution of this Agreement.
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No
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Party
A
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A
legal opinion, in form and substance satisfactory to Party
B
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Upon
the execution of this Agreement.
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No
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Party
B
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A
legal opinion, in form and substance satisfactory to Party
A
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Upon
the execution of this Agreement.
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No
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Part
4. Miscellaneous.
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(a)
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Address for
Notices. For the purpose of Section 12(a) of this
Agreement:
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Address
for notices or communications to Party A:
| Address: |
Xxxxxxx
Xxxxx World Headquarters
World
Financial Center, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
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| Attention: |
Swap
Group
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| Telephone No.: |
(000)
000-0000
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| Facsimile No.: |
(000)
000-0000
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Additionally,
a copy of all notices pursuant to Sections 5, 6 and 7 as well as any
changes to Party B’s address, telephone number or facsimile number should
be sent to:
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GMI
Counsel
Xxxxxxx
Xxxxx World Headquarters
4
World Financial Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
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| Attention: |
Swaps
Legal
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| Facsimile No.: |
(000)
000-0000
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| Address for notices or communications to Party B: | ||
| Address: |
c/o
U.S. Bank Trust National Association
EP-MN-WS3D
00
Xxxxxxxxxx Xxxxxx
Xx.
Xxxx, XX 00000
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| Attention: | Attention: Corporate
Trust Services
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| Telephone No.: |
000-000-0000
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| Facsimile No.: | 000-000-0000 | |
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(b)
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Process
Agent.
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With
respect to Party A: Not
Applicable
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With
respect to Party B: Not
Applicable
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(c)
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Offices. The
provisions of Section 10(a) will apply to this
Agreement.
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(d)
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Multibranch
Party. For purposes of Section 10(c) of this
Agreement:
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Party
A is not a Multibranch Party.
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Party
B is not a Multibranch Party.
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(e)
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Calculation
Agent. The Calculation Agent is Party
A.
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(f)
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Credit
Support Document.
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| With respect to Party A: | (i) The Credit Support Annex dated as of the date of this Agreement between Party A and Party B (the “Credit Support Annex”), the terms and conditions of which are hereby incorporated herein, with any reference herein to the Agreement being deemed to include such terms and provisions and (ii) and the Guaranty of Party A’s Credit Support Provider. | |
| With respect to Party B: | Not Applicable. |
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(g)
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Credit
Support Provider.
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Credit
Support Provider means in relation to Party A: Xxxxxxx Xxxxx & Co.,
Inc.
Credit
Support Provider means in relation to Party B: Not
Applicable
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(h)
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Governing
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
choice of law doctrine).
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(i)
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Netting of
Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will apply to all Transactions or groups of Transactions in each
case starting from the date of this Agreement unless otherwise specified
as applicable to a Transaction or group of Transactions in the relevant
Confirmation(s).
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(j)
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"Affiliate" will have
the meaning specified in Section 14 of this
Agreement.
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(k)
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Consent to Telephone
Recording. The parties agree that each may
electronically record all telephonic conversations between marketing and
trading personnel in connection with this Agreement. Any such
recordings will be used only in connection with any misunderstanding or
question arising with respect to any Transaction or potential Transaction
or in any Proceeding to the extent otherwise admissible
therein.
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Part
5. Other
Provisions.
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(a)
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Definitions. Unless
otherwise specified in a Confirmation, this Agreement and each Transaction
are subject to the 2006 ISDA Definitions as published by the International
Swaps and Derivatives Association, Inc. (the "2006 Definitions"), and will
be governed in all relevant respects by the provisions set forth in the
2006 Definitions. The provisions of the 2006 Definitions are incorporated
by reference in and shall be deemed a part of this Agreement, except that
references in the 2006 Definitions to a “Swap Transaction” shall be deemed
references to a “Transaction” for purposes of this
Agreement. Terms used and not otherwise defined herein or in
the Definitions shall have the respective meanings ascribed to such term
in the Indenture, dated as of July 25, 2008 among Party B, as Issuer, HSBC
Bank USA, National Association, as Trustee and U.S. Bank National
Association, as Securities Administrator (as amended, modified or
supplemented from time to time, the “Indenture”). In the event of
any inconsistency between the provisions of the
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Indenture
and this Agreement, this Agreement will prevail. In the event
of any inconsistency between the provisions of any Confirmation and this
Agreement or the 2000 Definitions or the Indenture, the following will
prevail for purposes of the Transaction set forth in such Confirmation in
the order of precedence indicated: (l) such Confirmation (without
reference to any definitions or provisions incorporated therein); (2) this
Agreement; (3) the Indenture; and (4) the 2000
Definitions.
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(b)
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Set-off.
Notwithstanding any provision of this Agreement or any other existing or
future agreements, each of Party A and Party B irrevocably waives as to
itself any and all contractual rights it may have to set off, net, recoup
or otherwise withhold or suspend or condition its payment or performance
of any obligation to the other party hereunder against any obligation of
one party hereto to the other party hereto under any other agreement or
otherwise, in each case other than this Agreement, any Confirmation, the
Indenture and any other Credit Support
Document.
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(c)
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Transfer. Section 7
of the Agreement is hereby amended by the inclusion of the following as a
new clause (c):
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“(c) Party
A may transfer this Agreement to any party, including, without limitation,
another of Party A's offices or Affiliates (the “Transferee”); provided that (i)
as of the date of such transfer neither the Transferee nor Party B will be
required to withhold or deduct on account of Tax from any payments under this
Agreement; (ii) a Termination Event or Event of Default does not occur under
this Agreement as a result of such transfer; (iii) the transfer will not give
rise to a taxable event or any other adverse Tax consequences to Party B or its
interest holders; (iv) the Transferee or its Credit Support Provider satisfies
the Replacement Counterparty Ratings Threshold with respect to each Rating
Agency, (v) such notice is accompanied by a written instrument pursuant to which
the Transferee acquires and assumes the rights and obligations of Party A so
transferred; and (vi) such transfer satisfies the Rating
Condition.”
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(d)
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Indenture; Third-party
Beneficiary. Party B hereby acknowledges and agrees that Party A
has been made a third party beneficiary under the Indenture and as such
shall be entitled to the rights and benefits afforded under the Indenture
to the extent set forth therein as if Party A were a party thereto. Party
A acknowledges that it has received the Indenture and read the provisions
of the Indenture relating to Swap
Agreements.
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(e)
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Waiver of Jury Trial.
EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY CREDIT SUPPORT DOCUMENT. Each
party (i) certifies that no representative, agent or attorney of the other
party has represented, expressly or otherwise, that such other party would
not, in the event of such a suit, action or proceeding, seek to enforce
the foregoing waiver and (ii) acknowledges that it and the other party
have been induced to enter into this Agreement and provide for any Credit
Support Document, as applicable by, among other things, the mutual waivers
and certifications in this Section.
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(f)
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Non-Petition; No Recourse,
Limited Recourse. Without impairing any right afforded to it under
the Indenture as a third-party beneficiary, Party A (i) agrees that it
shall not institute against, or join any other person in instituting
against, Party B any bankruptcy, reorganization, arrangement, insolvency,
moratorium or liquidation proceedings or other proceedings under U.S.
Federal or state bankruptcy or similar laws (of any other jurisdiction)
until at least one year and one day (or, if applicable, such longer
preference period as may be in effect) after the payment in full of all
Notes issued under the Indenture; provided that Party A shall not be
restricted or prohibited from joining any other person or entity
(excluding any of Party A's Affiliates including Party A's Credit Support
Provider, but including without limitation the Trustee), in any such
existing proceedings instituted by such person or entity; (ii) further
acknowledges that Party B's obligations hereunder
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shall
be solely the corporate obligations of Party B and Party A shall have no
recourse, in the absence of willful misconduct or fraud, to any of the
directors, officers, employees, shareholders or affiliates of Party B with
respect to any claims, losses, damages, liabilities, indemnities or other
obligations in connection with any transactions contemplated hereby and
(iii) agrees that recourse in respect of any obligations of Party B
hereunder will be limited to the Indenture Trust Estate (as such term is
defined in the Indenture) as applied in accordance with the terms of the
Indenture and, on exhaustion thereof, all obligations of, and claims
against, Party B arising from this Agreement or contemplated hereby shall
be extinguished.
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(g)
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Amendment of this
Agreement. Notwithstanding Section 9(b) of the
Agreement, Party A and Party B may amend this Agreement only if written
confirmation has been received from the Rating Agencies (as defined in the
Indenture) that such amendment would not cause a reduction, withdrawal or
adverse action with respect to the then current rating (if any) on each
Class of Notes.
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(h)
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Amendment of the
Indenture. Party B will not, without the prior written consent of
Party A, amend or otherwise modify the Indenture or adopt a supplemental
indenture in any manner that would adversely and materially affect: (i)
the rights of Party A under the Indenture or this Agreement, (ii) the
obligations of Party A under this Agreement or (iii) any term used herein
and defined in the Indenture or any component thereof. Party B
will provide at least 15 Business Days' prior written notice to Party A of
any proposed amendment or modification to the
Indenture.
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(i)
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Priority of
Payments. Party A acknowledges that any amount
payable to it pursuant to this Agreement (and any termination payment due
to it) shall be subject to the applicable provisions of Section 8.2 of the
Indenture and shall be payable only on a Payment Date, provided, however,
that Party A shall be entitled to any interest earned at the Applicable
Rate pursuant to Section 6(d)(ii) of this
Agreement.
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(j)
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Jurisdiction. Section
l3(b)(i) of the Agreement is amended to read in its entirety as
follows:
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"(i)
submits to the 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, which submission shall be exclusive unless none of such courts has lawful
jurisdiction over such Proceedings;".
The final
paragraph of Section 13 (b) of the Agreement is hereby deleted.
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(k)
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Non-Confidential.
Notwithstanding anything to the contrary contained in this Agreement, all
persons may disclose to any and all persons, without limitations of any
kind, the U.S. federal income tax treatment of any Transaction, any fact
that may be relevant to understanding the U.S. federal income tax
treatment of any Transaction, and all materials of any kind (including
opinions or other tax analyses) relating to such U.S. federal income tax
treatment.
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(l)
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Limitation of
Liability. It is expressly understood and agreed by the
parties hereto that (i) this Agreement and each Transaction entered into
pursuant to this Agreement is entered into by U.S. Bank Trust National
Association (the “Trustee”), not individually or personally but
solely as Owner Trustee of Merrill Auto Trust Securitization 2008-1 (the
“Trust”) in the exercise of the powers and authority conferred and vested
in it, (ii) 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 the Trustee, but are made
and intended for the purpose of binding only the Trust, (iii) nothing
herein contained shall be construed as creating any liability on the
Trustee, individually or personally, to perform any covenant either
expressed or implied herein on the part of the Trust, all such liability,
if any, being expressly waived by the parties who are signatories to this
Agreement and by any Persons claiming by, through or under such parties,
and (iv) under no circumstances shall the Trustee be personally liable for
the payment
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of
any indebtedness or expenses of the Trust or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this
Agreement.
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(m)
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Scope of
Agreement. This Agreement will apply only to the
Transactions entered into between Party A and Party B dated as of the date
hereof. The parties hereto acknowledge that this
Agreement will terminate on the date on which the last such Transaction is
terminated.
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(n)
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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, then 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, as 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(c), 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.
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(o)
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Downgrade
Provisions.
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(1)
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(a
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A
“Collateralization
Event” shall occur if at any time Party A shall fail to satisfy the
First Level Counterparty Ratings
Threshold.
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(b)
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If
a Collateralization Event has occurred, within 30 Local Business Days (if
Party A does not satisfy the First Level Counterparty Ratings Threshold
with respect to Moody’s), within 10 Local Business Days (if Party A does
not satisfy the First Level Counterparty Ratings Threshold with respect to
S&P), and within 30 calendar days (if Party A does not satisfy the
First Level Counterparty Ratings Threshold with respect to Fitch), Party A
shall, at Party A’s expense, (i) post collateral pursuant to and in
accordance with the Credit Support Annex; provided that Party A may post
collateral within longer time periods than those set forth above if the
Rating Condition is satisfied, (ii) obtain Alternative Credit Support that
satisfies the Rating Condition, or (iii) obtain a substitute counterparty
that (w) satisfies the Rating Condition (x) is reasonably acceptable to
Party B, (y) satisfies the Replacement Counterparty Ratings Threshold with
respect to each Rating Agency and (z) assumes the obligations of Party A
under this Agreement (through a novation agreement in form and substance
reasonably satisfactory to Party B) or replaces the outstanding
Transactions hereunder with transactions on identical terms, except that
Party A shall be replaced as counterparty, provided that such substitute
counterparty, as of the date of such assumption or replacement, will not,
as a result thereof, be required to withhold or deduct on account of any
Tax under the Agreement or the new transactions, as applicable, and such
assumption or replacement will not result in a Termination Event or Event
of Default occurring under the Agreement or new transactions, as
applicable; and provided further that if Party A does not satisfy the
First Level Counterparty Ratings Threshold with respect to S&P on the
day it enters into this Agreement, Party A has to post collateral pursuant
to clause (i) above as of the date in enters into this
Agreement. For the avoidance of doubt, if Party A posts
collateral pursuant to clause (i) above within the time periods as
specified above, Party A may still proceed pursuant to clauses (ii) or
(iii) above any time after it posted
collateral.
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(2)
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(a)
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A
“Ratings Event”
shall occur if at any time Party A shall fail to satisfy the Second Level
Counterparty Ratings Threshold.
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(b)
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Following
a Ratings Event with respect to Moody’s, Party A shall take the following
actions:
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(i)
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Party
A shall, at its sole expense, following the occurrence of such Ratings
Event with respect to Moody’s, (A) use commercially reasonable efforts, as
soon as reasonably practicable, to (I) obtain Alternative Credit Support
that satisfies the Rating Condition or (II) obtain a substitute
counterparty that (i) satisfies the Rating Condition, (ii) is reasonably
acceptable to Party B, (iii) satisfies the Replacement Counterparty
Ratings Threshold with respect to each Rating Agency and (iv) assumes the
obligations of Party A under this Agreement (through a novation agreement
in form and substance reasonably satisfactory to Party B) or replaces the
outstanding Transactions hereunder with transactions on identical terms,
except that Party A shall be replaced as counterparty, provided that such
substitute counterparty, as of the date of such assumption or replacement,
will not, as a result thereof, be required to withhold or deduct on
account of any Tax under the Agreement or the new transactions, as
applicable, and such assumption or replacement will not result in a
Termination Event or Event of Default occurring under the Agreement or new
transactions, as applicable, and (B) within 30 Business Days following the
occurrence of such Ratings Event post collateral as required under the
Credit Support Annex.
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(c)
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Following
a Ratings Event with respect to S&P, Party A shall take the following
actions:
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(i)
|
Party
A shall, at its sole expense, (A) within 10 Local Business Days following
the occurrence of a Ratings Event with respect to S&P, post collateral
pursuant to and in accordance with the Credit Support Annex; provided that
Party A may post collateral within a longer time period if the Rating
Condition is satisfied and (B) within 60 days following the occurrence of
such Ratings Event (I) obtain Alternative Credit Support that satisfies
the Rating Condition or (II) obtain a substitute counterparty that (i)
satisfies the Rating Condition, (ii) is reasonably acceptable to Party B,
(iii) satisfies the Replacement Counterparty Ratings Threshold with
respect to each Rating Agency and (iv) assumes the obligations of Party A
under this Agreement (through a novation agreement in form and substance
reasonably satisfactory to Party B) or replaces the outstanding
Transactions hereunder with transactions on identical terms, except that
Party A shall be replaced as counterparty, provided that such substitute
counterparty, as of the date of such assumption or replacement, will not,
as a result thereof, be required to withhold or deduct on account of any
Tax under the Agreement or the new transactions, as applicable, and such
assumption or replacement will not result in a Termination Event or Event
of Default occurring under the Agreement or new transactions, as
applicable.
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(d)
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Following
a Ratings Event with respect to Fitch, Party A shall take the following
actions:
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(i)
|
Party
A, at its sole expense, within 30 days following the occurrence of such
Ratings Event with respect to Fitch, shall, at Party A’s expense, (I)
obtain Alternative Credit Support that satisfies the Rating
Condition; (II) obtain a substitute counterparty (i) that is
reasonably acceptable to Party B, (ii) satisfies the Replacement
Counterparty Ratings Threshold with respect to each Rating Agency and
(iii) assumes the obligations of Party A under this Agreement (through a
novation agreement in form and substance reasonably satisfactory to Party
B) or replaces the outstanding Transactions hereunder with transactions on
identical terms, except that Party A shall be replaced as counterparty,
provided that such substitute counterparty, as of the date of such
assumption or replacement, will not, as a result thereof, be required to
withhold or deduct on account of any Tax under the Agreement or the new
transactions, as applicable, and such assumption or replacement will not
result in a Termination Event or Event of Default occurring under the
Agreement or new transactions, as applicable; or (III) post collateral
pursuant to the Credit Support Annex provided that (i) xxxx-to-market
calculations and the correct and timely posting of collateral are verified
by an independent third-party and (ii) Party B’s long-term rating from
Fitch remains at least equal to “BBB-” and its short-term rating from
Fitch remains at least equal to
“F3”.
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(3)
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For
purposes of this Part 5:
|
“Alternative
Credit Support” means an absolute and unconditional guarantee, credit
intermediation arrangement, letter of credit or other additional credit support
or collateral, in a form that meets any applicable Rating Agency’s then current
criteria with respect to such types of credit support and for which such Rating
Agency confirms in writing that such support will not cause the reduction or
withdrawal of its then current rating of any outstanding class of Notes under
the Indenture with respect to which it has previously issued a
rating.
“Financial
Institution” means Xxxxxxx Xxxxx & Co., Inc., a bank, broker/dealer,
insurance company, structured investment vehicle (SIV) or derivative product
company (DPC) .
“First Level
Counterparty Ratings Threshold” means, with respect to a
party:
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(A)
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if
such party or its Credit Support Provider has both a Long-Term Rating and
a Short-Term Rating from Moody’s, (i) such party’s or its Credit Support
Provider’s Long-Term Rating by Xxxxx’x is at least equal to “A2”
and (ii) such party’s or its Credit Support Provider’s
Short-Term Rating by Xxxxx'x is at least “P
1”;
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(B)
|
if
such party or its Credit Support Provider has no Short-Term Rating by
Moody’s, such party’s or its Credit Support Provider’s Long-Term Rating by
Xxxxx’x is at least equal to “A1”;
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(C)
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if
such party or its Credit Support Provider is a Financial Institution and
has a Short-Term Rating from S&P, such party’s or its Credit Support
Provider’s Short-Term Rating by S&P is at least equal to “A
1”;
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(D)
|
if
such party or its Credit Support Provider is a Financial Institution and
has no Short-Term Rating by S&P, such party’s or its Credit Support
Provider’s Long-Term Rating by S&P is at least equal to
“A+”;
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(E)
|
such
party’s or its Credit Support Provider’s Long-Term Rating from Fitch is at
least equal to “A” and its Short-Term Rating from Fitch is at least equal
to “F1”.
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“Fitch”
means Fitch, Inc. or any successor to its rating business.
“Long-Term
Rating” means, with respect to a party or its Credit Support Provider and
a Rating Agency, the rating of the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of such party or its Credit
Support Provider by such Rating Agency.
“Moody's”
means Xxxxx’x Investors Service, Inc. or any successor to its rating
business.
“Rating
Agency” means, with respect to any date of determination, each of Fitch,
Moody’s or S&P, to the extent that each such rating agency is then providing
a rating for any of the Notes.
“Rating
Condition” means a condition that is satisfied when each Rating Agency
(except in the case of Fitch, where notice is sufficient) has confirmed in
writing to Party A, Party B and the Trustee that such action will not result in
the withdrawal, suspension, reduction or other adverse action with respect to
any then-current rating of the Notes.
“Replacement
Counterparty Ratings Threshold” means, with respect to a
party:
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(A)
|
if
such party or its Credit Support Provider has both a Long-Term Rating and
a Short-Term Rating from Moody’s, (i) such party’s or its Credit Support
Provider’s Long-Term Rating by Xxxxx’x is at least equal to “A3”
and (ii) such party’s or its Credit Support Provider’s
Short-Term Rating by Xxxxx'x is at least equal to “P
2”;
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(B)
|
if
such party or its Credit Support Provider has no Short-Term Rating by
Moody’s, (i) such party’s or its Credit Support Provider’s Long-Term
Rating by Xxxxx’x is at least equal to
“A3”;
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(C)
|
if
such party or its Credit Support Provider (i) is a Financial Institution
and has a Short-Term Rating from S&P, such party’s or its Credit
Support Provider’s Short-Term Rating by S&P is at least equal to “A-2”
or (ii) is not a Financial Institution, such party’s or its Credit Support
Provider’s Short-Term Rating by S&P is at least equal to
“A-1”;
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(D)
|
if
such party or its Credit Support Provider has no Short-Term Rating from
S&P, and (i) such party or its Credit Support Provider is a Financial
Institution and has a Long-Term Rating by S&P at least equal to
“BBB+”, or (ii) or such party or its Credit Support Provider is a not
Financial Institution and has a Long-Term Rating by S&P at least equal
to “A+”.
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|
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(E)
|
such
party’s or its Credit Support Provider’s Long-Term Rating from Fitch is at
least equal to “A” and its Short-Term Rating from Fitch is at least equal
to “F1”.
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“S&P”
means Standard & Poor’s Rating Services, a division of the McGraw Hill
Companies, Inc. or any successor to its rating business.
“Second Level
Counterparty Ratings Threshold” means, with respect to a
party:
|
|
(A)
|
if
such party or its Credit Support Provider has both a Long-Term Rating and
a Short-Term Rating from Moody’s, (i) such party’s or its Credit Support
Provider’s Long-Term Rating by Xxxxx’x is at least equal to “A3”
and (ii) such party’s or its Credit Support Provider’s
Short-Term Rating by Xxxxx'x is at least equal to “P
2”;
|
|
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(B)
|
if
such party or its Credit Support Provider has no Short-Term Rating by
Moody’s, (i) such party’s or its Credit Support Provider’s Long-Term
Rating by Xxxxx’x is at least equal to
“A3”;
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|
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(C)
|
if
such party or its Credit Support Provider (i) is a Financial Institution
and has a Short-Term Rating from S&P, such party’s or its Credit
Support Provider’s Short-Term Rating by S&P is at least equal to “A-2”
or (ii) is not a Financial Institution, such party’s or its Credit Support
Provider’s Short-Term Rating by S&P is at least equal to
“A-1”;
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(D)
|
if
such party or its Credit Support Provider has no Short-Term Rating from
S&P, and (i) such party or its Credit Support Provider is a Financial
Institution and has a Long-Term Rating by S&P at least equal to
“BBB+”, (ii) or such party or its Credit Support Provider is a not
Financial Institution and has a Long-Term Rating by S&P at least equal
to “A+”;
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|
|
(E)
|
such
party’s or its Credit Support Provider’s Long-Term Rating from Fitch is at
least equal to “BBB+” and its Short-Term Rating from Fitch is at least
equal to “F2”.
|
“Short-Term
Rating” means, with respect to a party or its Credit Support Provider and
a Rating Agency, the rating of the unsecured, unguaranteed and otherwise
unsupported short-term debt obligations of such party by such Rating
Agency.
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(p)
|
Additional
Representations.
|
|
|
(i)
|
Section
3(d) is hereby amended by adding in the third line thereof after the word
“respect” and before the period:
|
“or, in
the case of financial statements, a fair presentation of the financial condition
of the relevant party”.
|
|
(ii)
|
Section
3(a) is amended by adding the following paragraphs (vi), (vii), (viii) and
(ix):
|
“(vi) No Agency. It is
entering into this Agreement and each Transaction as principal (and not as agent
or in any other capacity, fiduciary or otherwise).
“(vii) Eligible Contract
Participant. It is an “eligible contract participant” as that
term is defined in Section 1a(12) of the Commodity Exchange Act, as
amended.
“(viii) Negotiated. The
material terms of this Agreement and each Transaction have been and will be
individually tailored and negotiated.
“(ix) No Reliance. It
is acting for its own account, and has made its own independent decisions to
enter into this Agreement and any Transaction hereunder and as to whether this
Agreement and any Transaction hereunder 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 Agreement or any Transaction hereunder, it being understood that
information and explanations related to the terms and conditions of this
Agreement and any Transaction hereunder shall not be considered investment
advice or a recommendation to enter into this Agreement or any Transaction
hereunder. 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 any Transaction hereunder.”
[Remainder of this page intentionally left
blank.]
Confirmed as of the date first written above.
XXXXXXX
XXXXX CAPITAL SERVICES, INC.
By:
Xxxxx
Xxx
Title:
Authorized
Signatory
Date:
7/25/08
XXXXXXX
AUTO TRUST SECURITIZATION 2008-1
By: U.S.
BANK TRUST NATIONAL ASSOCIATION,
not in
its individual capacity but solely as Owner Trustee
By:
/s/ Xxxxx X.
Xxxxxxxx
Title: Vice
President
Date: 7/25/08
