Exhibit 10.13
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Confirmation of Rate Cap Transaction
__________, 2002
PHH Corporation
000 Xxxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
Fax No: (000) 000-0000
cc: Xxxx X. Xxxxxxx
Cendant Corporation
0 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
The purpose of this letter agreement is to set forth the terms
and conditions of the rate cap transaction entered into between JPMorgan Chase
Bank ("JPMorgan Chase") and PHH Corporation (the "Counterparty") on
____________, 2002 (the "Rate Cap Transaction"). It is understood by the parties
that the Counterparty will contribute its rights, but not its obligation to pay
the Premiums, under this Rate Cap Transaction to PHH Vehicle Management Services
LLC ("VMS"). VMS will in turn contribute its rights under this Rate Cap
Transaction to Raven Funding LLC ("SPV"), and SPV will in turn contribute its
rights under this Rate Cap Transaction to Chesapeake Funding LLC (the "Issuer").
The Issuer will pledge its rights under this Rate Cap Transaction to JPMorgan
Chase, as indenture trustee (the "Indenture Trustee") under the Base Indenture
dated as of June 30, 1999, between the Issuer and the Indenture Trustee, as
amended by that Series 2002-2 Indenture Supplement thereto (the "Indenture
Supplement"), dated as of ___________, 2002, between the Issuer and the
Indenture Trustee (the "Indenture").
In consideration of the promise by the Counterparty to make the
payment of the Premiums and in consideration of the promise by JPMorgan Chase to
make payments to the Counterparty in accordance with Section 3 hereof, the
parties hereto agree as follows:
1. Definitions. The following terms shall have the following
meanings:
"Business Day" means any day that is a New York Business Day and
a London Business Day and on which banks are not required or
authorized by law to close in Maryland or Delaware.
"Calculation Period" means each period from and including one
Payment Date (or, in the case of the initial Calculation Period, the
Effective Date) to but excluding the next succeeding Payment Date (or,
in the case of the final Calculation Period, the Termination Date).
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"Cap Payment" has the meaning defined in Section 3 hereof.
"Cap Rate" means, with respect to each Calculation Period, the
weighted average fixed rate of interest on the New Fixed Rate Leases
as of the last day of the Monthly Period immediately preceding the
first day of such Calculation Period minus 0.65% per annum.
"Closed-End Lease" has the meaning defined in the Indenture.
"Counterparty's Account" means, as long as the Counterparty's
rights under this letter agreement shall remain assigned to the
Indenture Trustee, the Collection Account as defined in the Indenture,
and thereafter such account as is designated by the Counterparty from
time to time.
"Designated Maturity" means one month.
"Effective Date" means _____________, 2002.
"Excess Cap Payment" has the meaning defined in Section 3 hereof.
"Floating Rate" means, with respect to a Calculation Period, the
rate determined by JPMorgan Chase to be (i) the per annum rate for
deposits in U.S. dollars for a period of the Designated Maturity which
appears on the Telerate Page 3750 Screen as of 11:00 a.m., London
time, on the day that is two London Business Days prior to the Reset
Date in respect of such Calculation Period (rounded upwards, if
necessary, to the nearest 1/100,000 of 1%); (ii) if such rate does not
appear on the Telerate Page 3750 Screen, the Floating Rate with
respect to such Calculation Period shall be the arithmetic mean
(rounded as aforesaid) of the offered quotations obtained by JPMorgan
Chase from the Reference Banks for deposits in U.S. dollars to leading
banks in the London interbank market as of approximately 11:00 a.m.,
London time, on the day that is two London Business Days prior to such
Reset Date; or (iii) if fewer than two Reference Banks provide
JPMorgan Chase with such quotations, the Floating Rate shall be the
rate per annum which JPMorgan Chase determines to be the arithmetic
mean (rounded as aforesaid) of the offered quotations which leading
banks in New York City selected by JPMorgan Chase are quoting in the
New York interbank market on such Reset Date for deposits in U.S.
dollars to the Reference Banks or, if fewer than two such quotations
are available, to leading European and Canadian Banks.
"JPMorgan Chase's Account" means the account of JPMorgan Chase at
XX Xxxxxx Xxxxx Bank (ABA: _____________), Account No. ___________.
"Lease Balance" has the meaning defined in the Indenture.
"Leased Vehicle" has the meaning defined in the Indenture.
"London Business Day" means any day on which banks are open for
business in London, England and on which dealings in deposits in U.S.
dollars are transacted in the London interbank market.
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"Monthly Period" has the meaning defined in the Indenture.
"Moody's" has the meaning defined in the Indenture.
"New Fixed Rate Lease" means on any day each Unit Lease then
bearing interest or finance charges at a fixed rate per annum (a) that
did not bear interest or finance charges at a fixed rate per annum
when it initially became a unit Lease or on the Effective Date and (b)
with respect to which the Issuer shall not have obtained on or prior
to such day an interest rate cap satisfying the requirements therefor
set forth in Section 5A.11(c) of the Indenture Supplement.
"New York Business Day" means any day on which banks are not
required or authorized by law to close in New York City.
"Notional Lease Rate Cap" means, with respect to each New Fixed
Rate Lease, as of the last day of the Monthly Period immediately
preceding the first Calculation Period during which such New Fixed
Rate Lease is to be included in the calculation of the Notional
Principal Amount, a lease rate cap having a notional amount on the
first day of such Calculation Period equal to the Lease Balance of
such New Fixed Rate Lease as of the last day of such Monthly Period,
plus, in the case of a Closed-End Lease, the Stated Residual Value of
the related Leased Vehicle and on the first day of each Calculation
Period thereafter at least equal to the scheduled Lease Balance of
such New Fixed Rate Lease as of the last day of the Monthly Period
immediately preceding such first day of such Calculation Period, plus,
in the case of a Closed-End Lease, the Stated Residual Value of the
related Leased Vehicle and an effective strike rate based on the
eurodollar rate set forth therein in effect on the dates set forth
therein at the most equal to the fixed rate of interest on such New
Fixed Rate Lease minus 0.65% per annum.
"Notional Principal Amount" means, with respect to a Calculation
Period, an amount equal to the lesser of (a) the aggregate Unit
Balance of all New Fixed Rate Leases as of the last day of the Monthly
Period immediately preceding the first day of such Calculation Period
and (b) the Series 2002-2 Invested Amount on the first day of such
Calculation Period.
"Payment Date" means the 7th day of each month, or, if such date
is not a Business Day, the next succeeding Business Day, commencing
________, 2002 and ending on the Termination Date.
"Premiums" means the amounts payable by the Counterparty to
JPMorgan Chase pursuant to Section 2 hereof.
"Rating Agency Condition" has the meaning defined in the
Indenture Supplement.
"Reference Banks" means four major banks in the London interbank
market selected by JPMorgan Chase.
"Reset Date" means the first day of each Calculation Period.
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"Series 2002-2 Invested Amount" has the meaning defined in the
Indenture Supplement.
"Series 2002-2 Percentage" means, on any Payment Date, the
average Series 2002-2 Invested Percentage during the Monthly Period
immediately preceding such Payment Date.
"Series 2002-2 Required Lease Rate Cap" has the meaning defined
in the Indenture Supplement.
"Standard & Poor's" has the meaning defined in the Indenture.
"Stated Residual Value" has the meaning defined in the Indenture.
"Telerate Page 3750 Screen" means the display designated as "Page
3750" on the Telerate Service (or such other page as may replace Page
3750 on that service or such other service as may be nominated by the
British Bankers' Association as the information vendor for the purpose
of displaying British Bankers' Association Interest Settlement Rates
for U.S. Dollar deposits).
"Termination Date" means the earlier of __________, ____ and the
date on which the Series 2002-2 Invested Amount has been reduced to
zero.
"Unit Balance" means, with respect to any New Fixed Rate Lease,
as of any date of determination, the Lease Balance of such New Fixed
Rate Lease as of such date, plus, in the case of a Closed-End Lease,
the Stated Residual Value of the related Leased Vehicle.
"Unit Lease" has the meaning defined in the Indenture.
2. Premiums. On the first day of the first Calculation Period on
which there are any New Fixed Rate Leases, the Counterparty agrees to pay to
JPMorgan Chase an amount, to be determined by JPMorgan Chase on a reasonably
commercial basis, equal to the premium that would have been payable by the
Counterparty to obtain a Notional Lease Rate Cap with respect to each such New
Fixed Rate Lease on the date that is two Business Days prior to such first day.
On the first day of any Calculation Period during which, after giving effect to
the addition of any additional New Fixed Rate Leases, either (x) the aggregate
scheduled notional amounts during such Calculation Period or any Calculation
Period thereafter of the Notional Lease Rate Caps with respect to all New Fixed
Rate Leases will be less than the Notional Principal Amount with respect to such
Calculation Period or any Calculation Period thereafter (the sum of any such
deficiencies, the "Notional Amount Deficiencies") or (y) the weighted average
cap rate during such Calculation Period or any Calculation Period thereafter
under the Notional Lease Rate Caps with respect to all New Fixed Rate Leases
will be higher than the Cap Rate with respect to such Calculation Period or any
Calculation Period thereafter (the "Cap Rate Deficiencies"), the Counterparty
agrees to pay to JPMorgan Chase an amount, to be determined by JPMorgan Chase on
a reasonably commercial basis, equal to the premium that would have been payable
by the Counterparty to obtain a lease rate cap covering the Notional Amount
Deficiencies and/or the Cap Rate Deficiencies. All payments of Premiums to
JPMorgan Chase
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shall be made by deposit to JPMorgan Chase's Account. JPMorgan
Chase shall determine the amount of any Premium payable by the Counterparty
hereunder, based on the information contained in the Monthly Settlement
Statement delivered to JPMorgan Chase pursuant to Article 7 of the Indenture
Supplement, and notify the Counterparty thereof on the Business Day prior to the
due date thereof.
3. Payments. JPMorgan Chase agrees to pay to or at the direction
of the Counterparty on each Payment Date, an amount equal to the product of (i)
the amount by which the Floating Rate exceeds the Cap Rate with respect to the
Calculation Period ending on such Payment Date, in each case as determined by
JPMorgan Chase, (ii) the Notional Principal Amount with respect to such
Calculation Period and (iii) the actual number of days in such Calculation
Period divided by 360 (the "Cap Payment"). JPMorgan Chase shall determine the
amount of any Cap Payment for any Payment Date based on the information
contained in the Monthly Settlement Statement delivered to JPMorgan Chase
pursuant to Article 7 of the Indenture Supplement in respect of the immediately
preceding Payment Date. On any Payment Date following a Calculation Period
during which the Notional Principal Amount was calculated based on the amount
set forth in clause (a) of the definition thereof, JPMorgan Chase shall pay a
portion of the Cap Payment, in an amount equal to the Series 2002-2 Percentage
thereof on such Payment Date, to the Counterparty's Account and, subject to
Section 7 hereof, the remaining portion thereof (the "Excess Cap Payment") to or
at the direction of the Issuer. On any Payment Date following a Calculation
Period during which the Notional Principal Amount was calculated based on the
amount set forth in clause (b) of the definition thereof, JPMorgan Chase shall
pay the full amount of the Cap Payment to the Counterparty's Account.
4. Notices. Any notices hereunder (i) shall be in writing and
hand-delivered or sent by first-class mail, postage prepaid, return receipt
requested, or facsimile transmission and shall be addressed to the intended
recipient at its address set forth on the signature page hereof or at such other
address as such party shall have last specified by notice to the other party and
(ii) shall be effective (a) if delivered by hand or sent by overnight courier,
on the day it is delivered, unless delivery is made after the close of business
or on a day that is not a Business Day, in which case such notice will be
effective on the next Business Day, (b) if sent by certified or registered mail
or the equivalent (return receipt requested), three Business Days after
dispatch, or (c) 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).
5. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of New York.
6. Assignments. Neither party shall have the right to assign its
rights or delegate its obligations under this letter agreement without the prior
written consent of the other party; provided, however, that, the Counterparty's
rights hereunder may be assigned as described herein and pledged by the Issuer
to the Indenture Trustee.
7. Set-off; Counterclaim. Notwithstanding any other provision of
any other agreement to the contrary, all payments under this letter agreement
will be made without set-off
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or counterclaim, except that, if the Counterparty fails to pay any Premium
pursuant to Section 2 hereof in respect of any New Fixed Rate Lease when due,
JPMorgan Chase will not be obligated to pay to or at the direction of the Issuer
pursuant to Section 3 hereof on any Payment Date following a Calculation Period
during which the Notional Principal Amount was calculated based on the amount
set forth in clause (a) of the definition thereof, an amount equal to the lesser
of the Excess Cap Payment and the portion of the Cap Payment on such Payment
Date attributable to the Unit Balance of such New Fixed Rate Lease.
8. Each Party's Reliance on its own Judgment. Each party has
entered into this Rate Cap Transaction solely in reliance on its own judgment.
Neither party has any fiduciary obligation to the other party relating to this
Rate Cap Transaction. In addition, neither party has held itself out as
advising, or has held out any of its employees or agents as having the authority
to advise, the other party as to whether or not the other party should enter
into this Rate Cap Transaction, any subsequent actions relating to this Rate Cap
Transaction or any other matters relating to this Rate Cap Transaction. Neither
party shall have any responsibility or liability whatsoever in respect of any
advice of this nature given, or views expressed, by it or any of such persons to
the other party relating to this Rate Cap Transaction, whether or not such
advice is given or such views are expressed at the request of the other party.
9. Early Termination. If the short-term credit rating of JPMorgan
Chase falls below A-1 by Standard & Poor's or P-1 by Xxxxx'x or the long-term
unsecured credit rating of JPMorgan Chase falls below A+ by Standard & Poor's or
Aa3 by Xxxxx'x and within 30 days of such decline in credit rating, JPMorgan
Chase shall not have provided some form of collateral for its obligations
hereunder and satisfied the Rating Agency Condition with respect to such
arrangement, the Counterparty shall have the right, upon five (5) Business Days
written notice to JPMorgan Chase, to terminate this Rate Cap Transaction. The
Counterparty's right to terminate this Rate Cap Transaction pursuant to the
preceding sentence is conditioned upon the Counterparty having obtained, and
there being maintained as of the time of such termination, the Series 2002-2
Required Lease Rate Cap (determined without giving effect to this Rate Cap
Transaction).
10. WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY KNOWINGLY AND
INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS LETTER AGREEMENT OR FOR ANY COUNTERCLAIM
THEREIN.
Please confirm that the foregoing correctly sets forth the terms
and conditions of our agreement by responding within three (3) Business Days by
returning via facsimile an executed copy of this letter agreement to the
attention of Xxxxxxxx Xxxxxxxx, fax no. (000) 000-0000.
Duplicate hard copies of this letter agreement will be sent to
you shortly. Upon receipt, please execute both copies and return one to JPMorgan
Chase to the address indicated below.
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JPMorgan Chase is pleased to have concluded this transaction with
you.
Very truly yours,
JPMORGAN CHASE BANK
By:
-----------------------------------
Name:
Title:
Address for Notices:
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Xxxxxxxxx No.: (000) 000-0000
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ACCEPTED AND AGREED:
PHH CORPORATION
By:
-----------------------------------
Name:
Title:
Address for Notices:
000 Xxxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
Fax No: (000) 000-0000
