EXHIBIT 10.10
(Multicurrency - Cross Border)
ISDA(R)
INTERNATIONAL SWAP DEALERS ASSOCIATION, INC.
MASTER AGREEMENT
dated as of January 18, 2007
WACHOVIA BANK, NATIONAL ASSOCIATION and AMERICREDIT AUTOMOBILE RECEIVABLES TRUST
2007-A-X
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 purpose 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.
Copyright (C) 1992 by International Swap Dealers Association, Inc.
(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.
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(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 organised and validly existing under the laws of the
jurisdiction of its organisation or incorporation and, if relevant under
such laws, in good standing;
(ii) Powers. It has the power to execute 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)).
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(b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event of Default
or, to its knowledge, Termination Event with respect to it has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c) ABSENCE OF LITIGATION. There is not pending or, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that 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,
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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 (1)
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 (1) a default, event
of default or other similar condition or event (however
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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
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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 any 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); of
(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.
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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
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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 Market
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
9
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 absolute 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.
10
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
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts 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 be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
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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 be 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 organisation 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
12
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 answerback 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 all
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 Act 1982 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
13
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 in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
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 date (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, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument 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.
14
"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 organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment 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 centre, 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(c)(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
15
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 so 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 be 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, organised, 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.
16
"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, basis 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 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value 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
17
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.
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST
WACHOVIA BANK, NATIONAL ASSOCIATION 2007-A-X
(Name of Party) (Name of Party)
BY: AMERICREDIT FINANCIAL SERVICES,
INC., AS ATTORNEY-IN-FACT
By /s/ Kim V. Farr By /s/ Susan B. Sheffield
--------------------------------- -------------------------------------
Name: Kim V. Farr Name: Susan B. Sheffield
Title: Director Title: Senior Vice-President,
Date: January 18, 2007 Structured Finance
Date: January 18, 2007
18
SCHEDULE
to the
MASTER AGREEMENT
dated as of January 18, 2007 between
WACHOVIA BANK, NATIONAL ASSOCIATION ("Party A")
and AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2007-A-X ("Party B")
PART 1. Termination Provisions
(a) "SPECIFIED ENTITY" means, with respect to Party A for all purposes of
this Agreement, none specified, and with respect to Party B for all
purposes of this Agreement, none specified.
(b) "SPECIFIED TRANSACTION" has its meaning as defined in Section 14 of
this Agreement.
(c) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) of this
Agreement does not apply to Party A or Party B.
(d) The "TRANSFER TO AVOID EARLY TERMINATION" provision of Section 6(b)(ii)
shall be amended by deleting the words "or if a Tax Event upon Merger
occurs and the Burdened Party is the Affected Party."
(e) PAYMENTS ON EARLY TERMINATION. Except as otherwise provided in this
Schedule, "Market Quotation" and the "Second Method" apply. In the case
of any Terminated Transaction that is, or is subject to, any
unexercised option, the words "economic equivalent of any payment or
delivery" appearing in the definition of "Market Quotation" shall be
construed to take into account the economic equivalent of the option.
(f) "TERMINATION CURRENCY" means United States Dollars.
(g) TIMING OF PARTY B TERMINATION PAYMENT. If an amount calculated as being
due in respect of an Early Termination Date under Section 6(e) of this
Agreement is an amount to be paid by Party B to Party A then,
notwithstanding the provisions of Section 6(d)(ii) of this Agreement,
such amount will be payable on the first Distribution Date following
the date on which the payment would have been payable as determined in
accordance with Section 6(d)(ii); provided that if the date on which
the payment would have been payable as determined in accordance with
Section 6(d)(ii) is a Distribution Date, then the payment will be
payable on the date determined in accordance with Section 6(d)(ii).
(h) LIMITATION ON DEFAULTS BY PARTY A AND PARTY B. The Events of Default
specified in Section 5 of this Agreement shall not apply to Party A or
Party B except for the following:
(i) Section 5(a)(i) of this Agreement (Failure to Pay or Deliver)
subject to the provisions of the last paragraph hereof;
(ii) With respect to Party A only, Section 5(a)(ii) of this
Agreement (Breach of Agreement); provided that Section
5(a)(ii) will not apply to Party A with respect to Party A's
failure to comply with its obligations under Part 5(b)(ii) or
5(b)(iii) herein or under the Credit Support Annex;
(iii) With respect to Party A only, Section 5(a)(iii) of this
Agreement (Credit Support Default) subject to the provisions
of the last paragraph hereof; provided that Section
5(a)(iii)(1) shall apply to Party B with respect to Party B's
obligations under Paragraph 3(b) of any Credit Support Annex;
(iv) With respect to Party A only, Section 5(a)(iv) of this
Agreement (Misrepresentation);
(v) With respect to Party A only, Section 5(a)(vi) of this
Agreement (Cross Default). For the purposes of this Part 1
h(v), "Threshold Amount" shall mean, with respect to Party A,
(x) 3% of Wachovia Bank, National Association's "Total Equity
Capital" as described in its most recently published Call
Report, or (y) if Party A is not Wachovia Bank, National
Association, 3% of the
shareholder's equity (excluding deposits) of such Person;
"Specified Indebtedness," with respect to Party A, shall have
the meaning specified in Section 14, provided that Specified
Indebtedness shall not include deposits received in the course
of Party A's ordinary banking business; and "Call Report"
shall mean, a "Consolidated Reports of Condition and Income
for a Bank with Domestic and Foreign Officers" of Wachovia
Bank, National Association, filed with Federal Deposit
Insurance Corporation on a quarterly basis or, if such form is
not required to be filed, such other comparable form
applicable to Wachovia Bank, National Association from time to
time.
(vi) Section 5(a)(vii) of this Agreement (Bankruptcy); provided
that clauses (2), (7) and (9) thereof shall not apply with
respect to Party B, provided further that clause (4) shall not
apply to Party B to the extent that it refers to proceedings
or petitions instituted or presented by Party A or any of its
Affiliates, provided further that clause (6) shall not apply
to Party B to the extent that it refers to (i) any appointment
that is effected by or pursuant to the Basic Documents or (ii)
any appointment to which Party B has not become subject, and
provided further that clause (8) shall not apply to Party B to
the extent that clause (i) relates to clauses (2), (4), (6)
and (7) (except to the extent that such provisions are not
disapplied to Party B); and
(vii) Section 5(a)(viii) of this Agreement (Merger Without
Assumption).
Notwithstanding Sections 5(a)(i) and 5(a)(iii) of this Agreement, any
failure by Party A to comply with or perform any obligation to be
complied with or performed by Party A under the Credit Support Annex
shall not be an Event of Default unless (A) (i) the Second Rating
Trigger Requirements apply and at least 30 Local Business Days have
elapsed since the last time the Second Rating Trigger Requirements did
not apply and (ii) such failure is not remedied on or before the third
Local Business Day after notice of such failure is given to Party A, or
(B) (i) a Ratings Event has occurred and is continuing and at least 10
Local Business Days (or 30 calendar days, in the case of Fitch) have
elapsed the since the date a Ratings Event occurred and (ii) such
failure is not remedied on or before the third Local Business Day after
notice of such failure is given to Party A.
(i) LIMITATION ON TERMINATION EVENTS BY PARTY A AND PARTY B. The
Termination Events specified in Section 5 of this Agreement shall not
apply to Party A or Party B except for the following:
(i) Section 5(b)(i) of this Agreement (Illegality);
(ii) Section 5(b)(ii) of this Agreement (Tax Event); provided that
Section 5(b)(ii) shall be amended by deleting the words "(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)"; and
(iii) Section 5(b)(iii) of this Agreement (Tax Event Upon Merger);
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.
(j) ADDITIONAL TERMINATION EVENTS. The occurrence of any of the following
events shall be an Additional Termination Event.
(i) FIRST RATING TRIGGER COLLATERAL. Party A has failed to comply
with or perform any obligation to be complied with or
performed by Party A in accordance with the Credit Support
Annex and either (1) the Second Rating Trigger Requirements do
not apply or (2) less than 30 Local Business Days have elapsed
since the last time the Second Rating Trigger Requirements did
not apply. With respect to the foregoing Additional
Termination Event, Party A shall be the sole Affected Party
and all Transactions shall be Affected Transactions.
(ii) SECOND RATING TRIGGER REPLACEMENT. (1) The Second Rating
Trigger Requirements apply and 30 or more Local Business Days
have elapsed since the last time the Second Rating Trigger
Requirements did not apply and (2) (x) at least one Eligible
Replacement has made a Firm Offer (which remains capable of
becoming legally binding upon acceptance) to be the transferee
of a transfer to be made in accordance with Part 6(a) below
and/or (y) at least one entity with the First Trigger Required
Ratings and/or the Second Trigger Required Ratings has made a
Firm Offer
2
(which remains capable of becoming legally binding upon
acceptance by the offeree) to provide an Eligible Guarantee in
respect of all of Party A's present and future obligations
under this Agreement. With respect to the foregoing Additional
Termination Event, Party A shall be the sole Affected Party
and all Transactions shall be Affected Transactions.
The "SECOND RATING TRIGGER REQUIREMENTS" applies when no
Relevant Entity has credit ratings at least equal to the
Second Trigger Required Ratings.
"FIRM OFFER" means an offer which, when made, was capable of
becoming legally binding upon acceptance.
(iii) RATINGS EVENT. Party A fails to comply with the downgrade
provisions as set forth in Part 5(b)(iii), after giving effect
to the relevant time frame specified therein and (i) at least
one Eligible Replacement has made a Firm Offer (which remains
capable of becoming legally binding upon acceptance) to be the
transferee of a transfer to be made in accordance with Part
6(a) below and/or (ii) at least one entity with the Hedge
Counterparty Ratings Requirement has made a Firm Offer (which
remains capable of becoming legally binding upon acceptance by
the offeree) to provide an Eligible Guarantee in respect of
all of Party A's present and future obligations under this
Agreement. With respect to the foregoing Additional
Termination Event, Party A shall be the sole Affected Party
and all Transactions shall be Affected Transactions.
(iv) Party A fails to comply with Part 6(n)(ii) of this Agreement.
With respect to the foregoing Additional Termination Event,
Party A shall be the sole Affected Party and all Transactions
shall be Affected Transactions.
(v) TERMINATION. Party B or the Trust is terminated. With respect
to the foregoing Additional Termination Event, Party B shall
be the sole Affected Party and all Transactions shall be
Affected Transactions.
(ivi) ACCELERATION. The Trustee declares the Notes due and payable
for any reason and such declaration is (or becomes)
unrescindable or irrevocable. With respect to the foregoing
Additional Termination Event, Party B shall be the sole
Affected Party and all Transactions shall be Affected
Transactions.
(vi) REDEMPTION. Any mandatory redemption, auction call redemption,
optional redemption, tax redemption, clean-up call or other
prepayment in full or repayment in full of all Notes
outstanding occurs under the Indenture (or any notice is given
to that effect and such mandatory redemption, auction call
redemption, optional redemption, tax redemption, clean-up call
or other prepayment or repayment is not capable of being
rescinded). With respect to the foregoing Additional
Termination Event, Party B shall be the sole Affected Party
and all Transactions shall be Affected Transactions.
(vi) DEFAULT. Any Event of Default (as defined in the Indenture)
occurs under the Indenture (or any notice is given by the
Trustee or any other authorized party to that effect), the
Notes have been declared due and payable under the Indenture
(and such declaration has not been rescinded and annulled in
accordance with the Indenture), and the Trustee, the
Noteholders or any other party authorized under the terms of
the Basic Documents or by law: (1) sells, liquidates or
disposes of any of the Collateral under the Indenture; (2)
institutes Proceedings for the collection of all amounts
payable under the Indenture; (3) institutes Proceedings for
the complete or partial foreclosure of the Indenture with
respect to the Collateral; or (4) exercises any remedies of a
secured party under the UCC with respect to the Collateral,
and any such action is not to judgment or final decree. With
respect to the foregoing Additional Termination Event, Party B
shall be the sole Affected Party and all Transactions shall be
Affected Transactions; provided, however, in
3
connection with the foregoing Additional Termination Event,
for purposes of designating any Early Termination Date,
notwithstanding anything contained in Section 6(a) of the
Agreement to the contrary, either Party A or Party B shall be
permitted to designate an Early Termination Date.
(ix) AMENDMENT. Any Basic Document is amended or modified without
the prior written consent of Party A if the consent of Party A
is required pursuant to the terms of the related Basic
Document; provided, however, that it shall not be an
Additional Termination Event where such amendment or
modification involves the appointment of any successor
trustee, securities administrator, master servicer or servicer
pursuant to the terms of the Indenture. With respect to the
foregoing Additional Termination Event, Party B shall be the
sole Affected Party and all Transactions shall be Affected
Transactions.
(x) The Insurer fails, at any time during the term of this
Agreement, to have (a) a claims paying ability rating of at
least "A-" or higher from S&P, (b) a financial strength rating
of at least "A3" or higher from Moody's or (c) a financial
strength rating of at least "A-" or higher from Fitch and
either (x) an Event of Default under this Agreement has
occurred and is continuing with respect to which Party B is
the Defaulting Party or (y) a Termination Event has occurred
and is continuing with respect to which Party B is the
Affected Party. With respect to the foregoing Additional
Termination Event, Party B shall be the sole Affected Party
and all Transactions shall be Affected Transactions.
(xi) The Insurer fails to meet its payment obligations under the
Swap Policy and such failure is continuing under the Swap
Policy. With respect to the foregoing Additional Termination
Event, Party B shall be the sole Affected Party and all
Transactions shall be Affected Transactions.
(A) Notwithstanding anything in Section 6 of this
Agreement to the contrary, any amounts due as a
result of the occurrence of an Additional Termination
Event described in Parts 1(j)(v) through (xi) of this
Schedule may be calculated prior to the Early
Termination Date and shall be payable on the Early
Termination Date. With respect to the foregoing
Additional Termination Event, Party B shall be the
sole Affected Party and all Transactions shall be
Affected Transactions.
4
(B) Notwithstanding anything to the contrary in Section 6
of this Agreement, if either an Event of Default or
Termination Event has occurred and is continuing,
(other than with respect to Section 5(b)(i) or an
Additional Termination Event described in Part
1(j)(x) or (xi) or in Part 1(j)(iv) as a result of
the failure of Party A to comply with Part 6(n)(ii)
of this Agreement), neither Party A nor Party B shall
have the right to designate an Early Termination Date
unless either (a) the Insurer has failed to pay any
payment due to Party A under the terms and conditions
of the Swap Policy or (b) the Insurer has consented
in advance to such designation in writing and any
purported designation in violation of this provision
will, at the election of the Insurer, be void and of
no effect.
(C) At any time after the occurrence of an Event of
Default for which Party B is the Defaulting Party,
the Insurer (so long as it has not failed to pay any
payment due to Party A under the terms and conditions
of the Swap Policy) shall have the right (but not the
obligation) to direct Party A to designate an Early
Termination Date. For purposes of the foregoing
sentence, an Event of Default for which Party B is
the Defaulting Party shall be considered to be
continuing notwithstanding any payments made by the
Insurer pursuant to the Swap Policy. Each of Party A
and Party B acknowledges that, except as the Swap
Policy may be otherwise endorsed, unless the Insurer
(so long as it has not failed to pay any payment due
to Party A under the terms and conditions of the Swap
Policy) directs Party A to designate an Early
Termination Date or consents to such designation by
one of the parties, payments due from Party B because
an Early Termination Date has been designated will
not be insured.
(k) CALCULATIONS. Notwithstanding Section 6 of this Agreement, for so long
as Party A is (A) the sole Affected Party in respect of an Additional
Termination Event or a Tax Event Upon Merger or (B) the Defaulting
Party in respect of any Event of Default, the following shall apply:
(i) The definition of "MARKET QUOTATION" shall be deleted in its
entirety and replaced with the following:
"MARKET QUOTATION" means, with respect to one or more
Terminated Transactions, a Firm Offer which is (1) made by a
Reference Market-maker that is an Eligible Replacement, (2)
for an amount that would be paid to Party B (expressed as a
negative number) or by Party B (expressed as a positive
number) in consideration of an agreement between Party B and
such 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 Transactions or group of
Terminated Transactions that would, but for the occurrence of
the relevant Early Termination Date, have been required after
that date, (3) made on the basis that Unpaid Amounts in
respect of the Terminated Transaction or group of 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 and (4) made in respect of a
Replacement Transaction with terms substantially the same as
those of this Agreement (save for the exclusion of provisions
relating to Transactions that are not Terminated
Transactions).
(ii) The definition of "SETTLEMENT AMOUNT" shall be deleted in its
entirety and replaced with the following:
"SETTLEMENT AMOUNT" means, with respect to any Early
Termination Date, an amount (as determined by Party B) equal
to the Termination Currency Equivalent of the amount (whether
positive or negative) of any Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions
that is accepted by Party B so as to become legally binding;
provided that:
5
(A) If, on the day falling ten Local Business Days after
the day on which the Early Termination Date is
designated or such later day as Party B may specify
in writing to Party A (but in either case no later
than the Early Termination Date) (such day the
"Latest Settlement Amount Determination Day"), no
Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions has
been accepted by Party B so as to become legally
binding and one or more Market Quotations have been
made and remain capable of becoming legally binding
upon acceptance, the Settlement Amount shall equal
the Termination Currency Equivalent of the amount
(whether positive or negative) of the lowest of such
Market Quotations (for the avoidance of doubt, the
lowest negative number shall equal the largest
absolute value such that, for example, negative 3
shall be lower than negative 2); or
(B) If, on the Latest Settlement Amount Determination
Day, no Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions is
accepted by Party B so as to become legally binding
and no Market Quotations have been made and remain
capable of becoming legally binding upon acceptance,
the Settlement Amount shall equal Party B's Loss
(whether positive or negative and without reference
to any Unpaid amounts) for the relevant Terminated
Transaction or group of Terminated Transactions.
(iii) For the purpose of clause (4) of the definition of Market
Quotation, Party B shall determine in its sole discretion,
acting in a commercially reasonable manner, whether a Firm
Offer is made in respect of a Replacement Transaction with
commercial terms substantially the same as those of this
Agreement (save for the exclusion of provisions relating to
Transactions that are not Terminated Transactions); provided,
however, that notwithstanding the provisions of this Part
1(k), nothing in this Agreement shall preclude Party A from
obtaining Market Quotations.
(iv) At any time on or before the Latest Settlement Amount
Determination Day at which two or more Market Quotations
remain capable of becoming legally binding upon acceptance,
Party B shall be entitled to accept only the lowest of such
Market Quotations.
(v) If Party B requests Party A in writing to obtain Market
Quotations, Party A shall use its reasonable efforts to do so
before the Latest Settlement Amount Determination Day.
(vi) If the Settlement Amount is a negative number, Section
6(e)(i)(3) of this Agreement shall be deleted in its entirety
and replaced with the following:
SECOND METHOD AND MARKET QUOTATION. If Second Method and
Market Quotation apply, (1) Party B shall pay to Party A an
amount equal to the absolute value of the Settlement Amount in
respect of the Terminated Transactions, (2) Party B shall pay
to Party A the Termination Currency Equivalent of the Unpaid
Amounts owing to Party A and (3) Party A shall pay to Party B
the Termination Currency Equivalent of the Unpaid Amounts
owing to Party B; provided that, (i) the amounts payable under
(2) and (3) shall be subject to netting in accordance with
Section 2(c) of this Agreement and (ii) notwithstanding any
other provision of this Agreement, any amount payable by Party
A under (3) shall not be netted-off against any amount payable
by Party B under (1).
(l) DESIGNATION OF EARLY TERMINATION DATE; AMENDMENTS. Notwithstanding any
other provision of this Agreement, Party B shall not designate an Early
Termination Date, and no transfer of any rights or obligations under
this Agreement shall be made, unless each Rating Agency has been given
prior written notice of such amendment, designation or transfer.
Furthermore, this Agreement will not be amended unless the Rating
Agency Condition is satisfied.
PART 2. Tax Provisions
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, each party makes the following representation: None.
6
(b) GROSS UP. Section 2(d)(i)(4) shall not apply to Party B as X, and
Section 2(d)(ii) shall not apply to Party B as Y, in each case such
that Party B shall not be required to pay any additional amounts
referred to therein.
(c) INDEMNIFIABLE TAX. The definition of "Indemnifiable Tax" in Section 14
is deleted in its entirety and replaced with the following:
"INDEMNIFIABLE TAX" means, in relation to payments by Party A, any Tax
and, in relation to payments by Party B, no Tax.
(d) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement:
(i) Party A makes the following representation(s): None
(ii) Party B makes the following representation(s): None.
(e) TAX FORMS.
(i) DELIVERY OF TAX FORMS. For the purpose of Section 4(a)(i), and
without limiting Section 4(a)(iii), each party agrees to duly
complete, execute and deliver to the other party the tax forms
specified below with respect to it (A) before the first
Payment Date under this Agreement, (B) promptly upon
reasonable demand by the other party and (C) promptly upon
learning that any such form previously provided by Party has
become obsolete or incorrect.
In addition, in the case of any tax form that is a Periodic
Tax Form required to be delivered by Party B under this
Agreement, Party B agrees to renew such tax form prior to its
expiration by completing, executing and delivering to Party A
that tax form ("Renewal Tax Form") in each succeeding third
year following the year of execution of any such tax form or
Renewal Tax Form delivered by Party B to Party A under this
Agreement so that Party A receives each Renewal Tax Form not
later than December 31 of the relevant year. "Periodic Tax
Form" means any IRS Form W-8BEN, W-8IMY or W-8EXP that is
delivered by Party B to Party A without a U.S. Taxpayer
Identification Number.
(ii) TAX FORMS TO BE DELIVERED BY PARTY A:
None specified.
(iii) TAX FORMS TO BE DELIVERED BY PARTY B:
Party B will deliver a correct, complete and duly executed
U.S. Internal Revenue Service Form W-9 (or successor thereto)
that eliminates U.S. federal back-up withholding tax on
payments to Party B under this Agreement.
PART 3. Documents
(a) DELIVERY OF DOCUMENTS. When it delivers this Agreement, each party
shall also deliver its Closing Documents to the other party in form and
substance reasonably satisfactory to the other party. For each
Transaction, a party shall deliver, promptly upon request, a duly
executed incumbency certificate for the person(s) executing the
Confirmation for that Transaction on behalf of that party.
(b) CLOSING DOCUMENTS.
(i) For Party A, "Closing Documents" mean:
(A) an opinion of Party A's counsel addressed to Party B,
the Insurer and the Rating Agencies in form and
substance acceptable to Party B and the Rating
Agencies;
7
(B) a duly executed incumbency certificate for each
person executing this Agreement for Party A, or in
lieu thereof, a copy of the relevant pages of its
official signature book; and
(C) each Credit Support Document (if any) specified for
Party A in this Schedule, together with a duly
executed incumbency certificate for the person(s)
executing that Credit Support Document, or in lieu
thereof, a copy of the relevant pages of its official
signature book.
(ii) For Party B, "Closing Documents" mean:
(A) an opinion of Party B's counsel addressed to Party A,
the Insurer and the Rating Agencies in form and
substance acceptable to Party A and the Rating
Agencies;
(B) a duly executed copy of the Indenture and the other
operative documents relating thereto and referred to
therein, executed and delivered by the parties
thereto;
(C) a copy, certified by the secretary or assistant
secretary of Party B, of the resolutions of the board
of directors of Party B authorizing the execution,
delivery and performance by Party B of this Agreement
and authorizing Party B to enter into Transactions
hereunder;
(D) a duly executed certificate of the secretary or
assistant secretary of Party B certifying the name
and true signature of each person authorized to
execute this Agreement and enter into Transactions
for Party B; and
(E) the duly executed Swap Policy.
PART 4. Miscellaneous
(a) ADDRESSES FOR NOTICES. For purposes of Section 12(a) of this Agreement,
all notices to a party shall, with respect to any particular
Transaction, be sent to its address, telex number or facsimile number
specified in the relevant Confirmation, provided that any notice under
Section 5 or 6 of this Agreement, and any notice under this Agreement
not related to a particular Transaction, shall be sent to a party at
its address, telex number or facsimile number specified below;
provided, further, that any notice under the Credit Support Annex shall
be sent to a party at its address, telex number or facsimile number
specified in the Credit Support Annex.
TO PARTY A:
301 South College, DC-8
Charlotte, NC 28202-0600
Attention: Derivatives Documentation Group
Fax: (704) 383-0575
Phone: (704) 383-8778
TO PARTY B:
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2007-A-X
c/o Wilmington Trust Company, as Owner Trustee
1100 North Market Street
Wilmington, Delaware 19890
with a copy to:
8
AMERICREDIT FINANCIAL SERVICES, INC.
801 Cherry Street, Suite 3900
Forth Worth, Texas 76102
Attention: Derivatives Operations
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not applicable
Party B appoints as its Process Agent: Not applicable.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement,
neither party is a Multibranch Party.
(e) "CALCULATION AGENT" means Party A; provided that if Party A is the
Defaulting Party, the Calculation Agent shall be any designated party mutually
agreed to by the parties and the Insurer (so long as no Swap Insurer Default has
occurred and is continuing) until such time as Party A is no longer the
Defaulting Party.
"SWAP INSURER DEFAULT" shall have the meaning given to "Insurer
Default" (as defined in the Sale and Servicing Agreement); provided that any
reference therein to "Note Policy" is hereby deleted and replaced with "Swap
Policy".
(f) CREDIT SUPPORT DOCUMENT.
(i) For Party A, the following is a Credit Support Document: the
Credit Support Annex dated the date hereof (the "CREDIT
SUPPORT ANNEX") and duly executed and delivered by Party A and
Party B and any Eligible Guarantee, if applicable.
(ii) For Party B, the following is a Credit Support Document: the
Credit Support Annex.
(g) CREDIT SUPPORT PROVIDER.
(i) For Party A, Credit Support Provider means (1) Party A in its
capacity as a party to the Credit Support Annex and (2) the
guarantor under any Eligible Guarantee.
(ii) For Party B, the Credit Support Provider means Party B in its
capacity as a party to the Credit Support Annex.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law (and not the law of conflicts except with
respect to Sections 5-1401 and 5-1402 of the New York General
Obligations Law) of the State of New York.
(i) WAIVER OF JURY TRIAL. To the extent permitted by applicable law, each
party irrevocably waives any and all right to trial by jury in any
legal proceeding in connection with this Agreement, any Credit Support
Document to which it is a party, or any Transaction.
(j) NETTING OF PAYMENTS. Section 2(c)(ii) of this Agreement will apply to
all Transactions.
(k) "AFFILIATE" has its meaning as defined in Section 14 of this Agreement,
provided that Party B shall be deemed to have no Affiliates.
(l) 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 illegal, 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
9
effect as if this Agreement had been executed with the illegal, 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 Sections 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 or in connection with any such Section)
shall be held to be invalid or unenforceable.
(m) SINGLE AGREEMENT. Section 1(c) shall be amended by adding the words ",
the credit support annex entered into between Party A and Party B in
relation to this Agreement" after the words "Master Agreement."
(n) LOCAL BUSINESS DAY. The definition of Local Business Day in Section 14
of this Agreement shall be amended by the addition of the words "or any
Credit Support Document" after "Section 2(a)(i)" and the addition of
the words "or Credit Support Document" after "Confirmation".
PART 5. Other Provisions
(a) 2000 ISDA DEFINITIONS. This Agreement and each Transaction are subject
to the 2000 ISDA Definitions (including its Annex) published by the
International Swaps and Derivatives Association, Inc. (together, the
"2000 ISDA Definitions") and will be governed by the provisions of the
2000 ISDA Definitions. The provisions of the 2000 ISDA Definitions are
incorporated by reference in, and shall form part of, this Agreement
and each Confirmation. Any reference to a "Swap Transaction" in the
2000 ISDA Definitions is deemed to be a reference to a "Transaction"
for purposes of this Agreement or any Confirmation, and any reference
to a "Transaction" in this Agreement or any Confirmation is deemed to
be a reference to a "Swap Transaction" for purposes of the 2000 ISDA
Definitions. The provisions of this Agreement (exclusive of the 2000
ISDA Definitions) shall prevail in the event of any conflict between
such provisions and the 2000 ISDA Definitions.
(b) DOWNGRADE PROVISIONS.
(i) SECOND TRIGGER FAILURE CONDITION. So long as the Second Rating
Trigger Requirements apply, Party A shall, at its own expense
use commercially reasonable efforts, as soon as reasonably
practicable, to either (i) furnish an Eligible Guarantee of
Party A's obligations under this Agreement from a guarantor
that maintains the First Trigger Required Ratings and/or the
Second Trigger Required Ratings or (ii) obtain an Eligible
Replacement pursuant to Part 6(a) that assumes the obligations
of Party A under this Agreement (through a novation or other
assignment and assumption 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.
(ii) COLLATERALIZATION EVENT. It shall be a collateralization event
("COLLATERALIZATION EVENT") if (A) either (i) the unsecured,
short-term debt obligations of the Relevant Entity are rated
below "A-1" by S&P or (ii) if the Relevant Entity does not
have a short-term rating from S&P, the unsecured, long-term
senior debt obligations of a Relevant Entity are rated below
"A+" by S&P, or (B) the unsecured, long-term senior debt
obligations or financial strength ratings of the Relevant
Entity are rated below "A" by Fitch). For the avoidance of
doubt, the parties hereby acknowledge and agree that
notwithstanding the occurrence of a Collateralization Event,
this Agreement and each Transaction hereunder shall continue
to be a Swap Agreement for purposes of the Basic Documents.
Within 30 calendar days from the date a Collateralization
Event has occurred and so long as such Collateralization Event
is continuing, Party A shall, at its sole expense, either (i)
post collateral in an amount required to be posted pursuant to
terms of the Credit Support Annex (such amount which is the
greater of amounts required to be posted by Moody's, S&P and
Fitch), or (ii) obtain an Eligible Replacement that (x) upon
satisfaction of the Rating Agency Condition (as defined
below), assumes the obligations of Party A under this
Agreement (through an assignment and assumption agreement in
form and substance reasonably satisfactory to Party B) or (y)
having
10
provided prior written notice to S&P and Fitch, replaces the
outstanding Transactions hereunder with transactions on
identical terms, except that Party A shall be replaced as
counterparty; provided that such Eligible Replacement, as of
the date of such assumption or replacement, will not, as a
result thereof, be required to withhold or deduct on account
of tax under the Agreement or the new Transactions, as
applicable, and such assumption or replacement will not lead
to a Termination Event or Event of Default occurring under the
Agreement or new Transactions, as applicable.
"RATING AGENCY CONDITION" shall mean first receiving prior
written confirmation from S&P and Fitch that their
then-current ratings of the rated Notes will not be downgraded
or withdrawn by such Rating Agency.
(iii) RATINGS EVENT. It shall be a ratings event ("RATINGS EVENT")
if at any time after the date hereof, the Relevant Entity
shall fail to satisfy the Hedge Counterparty Ratings Threshold
or the Relevant Entity is no longer rated by S&P. Within 30
calendar days (or, in the case of a failure to meet the
requirements of subparagraph (a) of the definition of "Hedge
Counterparty Ratings Threshold", within 10 Local Business
Days) from the date a Ratings Event has occurred and so long
as such Ratings Event is continuing, Party A shall, at its
sole expense, (i) obtain an Eligible Replacement that (x) upon
satisfaction of the Rating Agency Condition, assumes the
obligations of Party A under this Agreement (through an
assignment and assumption agreement in form and substance
reasonably satisfactory to Party B) or (y) having provided
prior written notice to S&P and Fitch, replaces the
outstanding Transactions hereunder with transactions on
identical terms, except that Party A shall be replaced as
counterparty; provided that such Eligible Replacement, as of
the date of such assumption or replacement, will not, as a
result thereof, be required to withhold or deduct on account
of tax under the Agreement or the new Transactions, as
applicable, and such assumption or replacement will not lead
to a Termination Event or Event of Default occurring under the
Agreement or new Transactions, as applicable, and (ii) upon
the occurrence of a Ratings Event, Party A shall immediately
be required to post collateral in an amount required to be
posted pursuant to terms of the Credit Support Annex (such
amount which is the greater of amounts required to be posted
by Moody's, S&P and Fitch).
(iv) DOWNGRADE DEFINITIONS.
(A) "ELIGIBLE GUARANTEE" means an unconditional and
irrevocable guarantee that is provided by a guarantor
as principal debtor rather than surety and is
directly enforceable by Party B, where either (A) a
law firm has given a legal opinion confirming that
none of the guarantor's payments to Party B under
such guarantee will be subject to withholding for Tax
or (B) such guarantee provides that, in the event
that any of such guarantor's payments to Party B are
subject to withholding for Tax, such guarantor is
required to pay such additional amount as is
necessary to ensure that the net amount actually
received by Party B (free and clear of any
withholding tax) will equal the full amount Party B
would have received had no such withholding been
required.
(B) "ELIGIBLE REPLACEMENT" means a Transferee (i) (A)
with the First Trigger Required Ratings and/or the
Second Trigger Required Ratings or (B) whose present
and future obligations owing to Party B are
guaranteed pursuant to an Eligible Guarantee provided
by a guarantor with the First Trigger Required
Ratings and/or the Second Trigger Required Ratings
and (ii) with the ratings specified in the definition
of Hedge Counterparty Ratings Requirement below.
(C) "FIRST TRIGGER REQUIRED RATINGS" means with respect
to an entity, either (i) where the entity is the
subject of a Moody's Short-term Rating, such entity's
Moody's Short-term Rating is "Prime-1" and the
entity's long-term, unsecured and unsubordinated debt
or counterparty obligations are rated "A2" or above
by Moody's or (ii) where the entity is not the
subject of a Moody's Short-term Rating, its
long-term, unsecured and unsubordinated debt or
counterparty obligations are rated "A1" or above by
Moody's.
11
(D) "FITCH" means Fitch, Inc.
(E) "HEDGE COUNTERPARTY RATINGS THRESHOLD" means (a) the
unsecured, long-term senior debt obligations of Party
A (or its Credit Support Provider) are rated at least
"BBB" by S&P, and (b) either (i) the unsecured,
senior debt obligations or financial strength ratings
of Party A (or its Credit Support Provider), are
rated at least "BBB+" by Fitch or (ii) the unsecured,
short-term debt obligations (if any) of Party A, are
rated at least "F2" by Fitch. For the avoidance of
all doubts, the parties hereby acknowledge and agree
that notwithstanding the occurrence of a Ratings
Event, this Agreement and each Transaction hereunder
shall continue to be a Swap Agreement for purposes of
the Basic Documents.
(F) "HEDGE COUNTERPARTY RATINGS REQUIREMENT" means (a)
either (i) the unsecured, short-term debt obligations
of the substitute counterparty (or its Credit Support
Provider) are rated at least "A-1" by S&P or (ii) if
the substitute counterparty does not have a
short-term rating from S&P, the unsecured, long-term
senior debt obligations of the substitute
counterparty (or its Credit Support Provider) are
rated at least "A+" by S&P, and (b) either (i) the
unsecured, long-term senior debt obligations of such
substitute counterparty (or its Credit Support
Provider) are rated at least "A" by Fitch or (ii) the
unsecured, short-term debt obligations of such
substitute counterparty (or its Credit Support
Provider) are rated at least "F1" by Fitch. For the
purpose of this definition, no direct or indirect
recourse against one or more shareholders of the
substitute counterparty (or against any Person in
control of, or controlled by, or under common control
with, any such shareholder) shall be deemed to
constitute a guarantee, security or support of the
obligations of the substitute counterparty.
(G) "MOODY'S" means Moody's Investors Service, Inc.
(H) "MOODY'S SHORT-TERM RATING" means a rating assigned
by Moody's under its short-term rating scale in
respect of an entity's short-term, unsecured and
unsubordinated debt obligations.
(I) "RELEVANT ENTITY" means Party A and any guarantor
under an Eligible Guarantee in respect of all of
Party A's present and future obligations under this
Agreement.
(J) "S&P" means Standard & Poor's Rating Services, a
division of The McGraw-Hill Companies, Inc.
(K) A "SECOND TRIGGER FAILURE CONDITION" shall occur at
any time that no Relevant Entity maintains the Second
Trigger Required Ratings.
(L) "SECOND TRIGGER REQUIRED RATINGS" means with respect
to an entity (A) either where the entity is the
subject of a Moody's Short-term Rating, such entity's
Moody's Short-term Rating is "Prime-2" or above and
its long-term, unsecured and unsubordinated debt or
counterparty obligations are rated "A3" or above by
Moody's, and (B) where such entity is not the subject
of a Moody's Short-term Rating, if the entity's
long-term, unsecured and unsubordinated debt or
counterparty obligations are rated "A3" or above by
Moody's.
(c) ADDITIONAL REPRESENTATIONS. Section 3 of this Agreement is hereby
amended by adding the following Sections 3(g), (h), (i) and (j):
"(g) NON-RELIANCE. For any Relevant Agreement: (i) it acts as principal
and not as agent, (ii) it acknowledges that the other party acts only
arm's length and is not its agent, broker, advisor or fiduciary in any
respect, and any agency, brokerage, advisory or fiduciary services that
the other party (or any of its affiliates) may otherwise provide to the
party (or to any of its affiliates) excludes the Relevant Agreement,
12
(iii) it is relying solely upon its own evaluation of the Relevant
Agreement (including the present and future results, consequences,
risks, and benefits thereof, whether financial, accounting, tax, legal,
or otherwise) and upon advice from its own professional advisors, (iv)
it understands the Relevant Agreement and those risks, has determined
they are appropriate for it, and willingly assumes those risks, (v) it
has not relied and will not be relying upon any evaluation or advice
(including any recommendation, opinion, or representation) from the
other party, its affiliates or the representatives or advisors of the
other party or its affiliates (except representations expressly made in
the Relevant Agreement or an opinion of counsel required thereunder);
and (vi) if a party is acting as a Calculation Agent or Valuation
Agent, it does so not as the other party's agent or fiduciary, but on
an arm's length basis for the purpose of performing an administrative
function in good faith.
"RELEVANT AGREEMENT" means this Agreement, each Transaction, each
Confirmation, any Credit Support Document, and any agreement (including
any amendment, modification, transfer or early termination) between the
parties relating thereto or to any Transaction.
(h) ELIGIBILITY. It is an "eligible contract participant" within the
meaning of the Commodity Exchange Act (as amended by the Commodity
Futures Modernization Act of 2000).
(i) FDIC REQUIREMENTS. If it is a bank subject to the requirements of
12 U.S.C. Section 1823(e), its execution, delivery and performance of
this Agreement (including the Credit Support Annex and each
Confirmation) have been approved by its board of directors or its loan
committee, such approval is reflected in the minutes of said board of
directors or loan committee, and this Agreement (including the Credit
Support Annex and each Confirmation) will be maintained as one of its
official records continuously from the time of its execution (or in the
case of any Confirmation, continuously until such time as the relevant
Transaction matures and the obligations therefor are satisfied in
full).
(j) ERISA. It is not (i) an employee benefit plan as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan as defined in Section 4975(e) of the Internal
Revenue Code of 1986, as amended (the "Code"), subject to Title I of
ERISA or Section 4975 of the Code, or a plan as so defined but which is
not subject to Title I of ERISA or Section 4975 of the Code (each, an
"ERISA Plan"), (ii) a person or entity acting on behalf of an ERISA
Plan, or (iii) a person or entity the assets of which constitute assets
of an ERISA Plan."
(d) RECORDED CONVERSATIONS. Each party and any of its Affiliates may
electronically record any of its telephone conversations with the other
party or with any of the other party's Affiliates in connection with
this Agreement or any Transaction, and any such recordings may be
submitted in evidence in any proceeding to establish any matters
pertinent to this Agreement or any Transaction.
PART 6. Additional Terms
(a) TRANSFERS BY PARTY A.
(i) Section 7 of this Agreement shall not apply to Party A and,
subject to Section 6(b)(ii) (provided that to the extent Party
A makes a transfer pursuant to Section 6(b)(ii) it will
provide a prior written notice to the Rating Agencies of such
transfer) and Part 6(a)(ii), Party A may not transfer (whether
by way of security or otherwise) any interest or obligation in
or under this Agreement without first satisfying the Rating
Agency Condition and without the prior written consent of
Party B.
(ii) Subject to Part 1(l), Party A may (at its own cost) transfer
all or substantially all of its rights and obligations with
respect to this Agreement to any other entity (a "TRANSFEREE")
that is an Eligible Replacement through a novation or other
assignment and assumption agreement or similar agreement in
form and substance reasonably satisfactory to Party B;
provided that (A) Party B shall determine in its sole
discretion, acting in a commercially reasonable manner,
whether or not a transfer relates to all or substantially all
of Party A's rights and obligations under this
13
Agreement, (B) as of the date of such transfer the Transferee
will not be required to withhold or deduct on account of a Tax
from any payments under this Agreement unless the Transferee
will be required to make payments of additional amounts
pursuant to Section 2(d)(i)(4) of this Agreement in respect of
such Tax, (C) a Termination Event or Event of Default does not
occur under this Agreement as a result of such transfer, (D)
Party A receives confirmation from each Rating Agency (other
than Moody's) that transfer to the Transferee does not violate
the Rating Agency Condition and (E) so long as no Swap Insurer
Default has occurred and is continuing, Party B shall consent
to such transfer. Following such transfer, all references to
Party A shall be deemed to be references to the Transferee.
(iii) If an entity has made a Firm Offer (which remains capable of
becoming legally binding upon acceptance) to be the transferee
of a transfer to be made in accordance with Part 6(a)(ii),
Party B shall (at Party A's cost) at Party A's written
request, take any reasonable steps required to be taken by it
to effect such transfer.
(iv) Except as specified otherwise in the documentation evidencing
a transfer, a transfer of all the obligations of Party A made
in compliance with this Part 6(a) will constitute an
acceptance and assumption of such obligations (and any related
interests so transferred) by the Transferee, a novation of the
transferee in place of Party A with respect to such
obligations (and any related interests so transferred), and a
release and discharge by Party B of Party A from, and an
agreement by Party B not to make any claim for payment,
liability, or otherwise against Party A with respect to, such
obligations from and after the effective date of the transfer.
(b) Permitted Security Interest. For purposes of Section 7 of this
Agreement, Party A hereby consents to the Permitted Security Interest,
subject to the provisions of paragraph (c) below.
"Permitted Security Interest" means the collateral assignment by Party
B of the Swap Collateral to the Trustee pursuant to the Indenture, and
the granting to the Trustee of a security interest in the Swap
Collateral pursuant to the Indenture.
"Swap Collateral" means all right, title and interest of Party B in
this Agreement, each Transaction hereunder, and all present and future
amounts payable by Party A to Party B under or in connection with this
Agreement or any Transaction governed by this Agreement, whether or not
evidenced by a Confirmation, including, without limitation, any
transfer or termination of any such Transaction.
"Trustee" means Wells Fargo Bank, National Association or any successor
acting as indenture trustee pursuant to the Indenture.
(c) Effect of Permitted Security Interest.
(i) Notwithstanding the Permitted Security Interest, Party B shall
not be released from any of its obligations under this
Agreement or any Transaction, and Party A may exercise its
rights and remedies under this Agreement without notice to, or
the consent of the Trustee or any Noteholder except as
otherwise expressly provided in this Agreement.
(ii) Party A's consent to the Permitted Security Interest is
expressly limited to the Trustee for the benefit of the
secured parties under the Indenture, and Party A does not
consent to the sale or transfer by the Trustee of the Swap
Collateral to any other person or entity (other than a
successor to the Trustee under the Indenture acting in that
capacity).
(iii) Party B hereby acknowledges that, as a result of the Permitted
Security Interest, all of its rights under this Agreement,
including any Transaction, have been assigned to the Trustee
pursuant to the Indenture and notwithstanding any other
provision in this Agreement, Party B may not take any action
hereunder to exercise any of such rights without the prior
written consent of the Trustee, including, without limitation,
providing any notice under this Agreement the effect of which
would be to cause an Early Termination Date to occur or be
deemed to occur. If Party B
14
gives any notice to Party A for the purposes of exercising any
of Party B's rights under this Agreement, Party A shall have
the option of treating that notice as void unless that notice
is signed by the Trustee acknowledging its consent to the
provisions of that notice. Nothing herein shall be construed
as requiring the consent of the Owner Trustee, the Trustee or
any Noteholder for the performance by Party B of any of its
obligations hereunder.
(iv) Except as expressly provided in this Agreement for any
Permitted Transfer, Event of Default, Termination Event,
Additional Termination Event, Party A and Party B may not
enter into any agreement to dispose of any Transaction,
whether in the form of a termination, unwind, transfer or
otherwise without the prior written consent of the Trustee.
(v) Except as expressly provided in this Agreement, no amendment,
modification, or waiver in respect of this Agreement will be
effective unless (A) evidenced by a writing executed by each
party hereto, and (B) the Trustee has acknowledged its consent
thereto in writing and each Rating Agency (other than Moody's)
confirms that the amendment, modification or waiver will not
cause the reduction or withdrawal of its then current rating
on any Notes under the Indenture.
(d) PAYMENTS. All payments to Party B under this Agreement or any
Transaction shall be made to the appropriate account under the Basic
Documents.
(e) SET-OFF. Except as otherwise provided in this Schedule, Party A and
Party B hereby waive any and all right of set-off with respect to any
amounts due under this Agreement or any Transaction, provided that
nothing herein shall be construed to waive or otherwise limit the
netting provisions contained in Sections 2(c) and 6 of this Agreement
or the setoff rights contained in the Credit Support Annex. Section
6(e) shall be amended by the deletion of the following sentence: "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".
(f) INDENTURE.
(i) Party B hereby acknowledges that Party A is a secured party
under the Indenture with respect to this Agreement and a
third-party beneficiary under the Indenture, and Party B
agrees for the benefit of Party A that neither it nor any
other Person will take any action (whether in the form of an
amendment, a modification, supplement, waiver, approval,
consent or otherwise) which may have a material adverse effect
with respect to the rights, interest or benefits granted to
Party A under the Indenture with respect to this Agreement,
whether or not this Agreement is specifically referred to or
identified therein without the prior written consent of Party
A (to the extent such consent is required under the
Indenture).
"INDENTURE" means that certain Indenture, by and among Party B
as Issuer, and the Trustee, dated as of January 9, 2007, as
the same may be amended, modified, supplemented or restated
from time to time.
(ii) On the date Party B executes and delivers this Agreement and
on each date on which a Transaction is entered into, Party B
hereby represents and warrants to Party A: that the Indenture
is in full force and effect; that Party B is not party to any
separate agreement with any of the parties to the Indenture
that would have the effect of diminishing or impairing the
rights, interests or benefits that have been granted to Party
A under, and which are expressly set forth in, the Indenture;
that Party B's obligations under this Agreement are secured
under the Indenture; that this Agreement constitutes a "Swap
Agreement" under the Basic Documents applicable to it; that
each Transaction entered into under this Agreement is a Swap
Agreement under the Basic Documents applicable to it; that
Party A constitutes a Swap Provider under the Basic Documents
applicable to it; that no Event of Default has occurred and is
continuing as defined in the Basic Documents applicable to it;
that nothing herein violates or conflicts with any of the
provisions of the Basic Documents applicable to it or any
other documents executed in connection therewith. In addition,
on each date on which a Transaction is entered into, Party B
hereby represents and warrants to Party A: that the
Transaction meets all of the requirements under the Basic
Documents
15
applicable to it and does not violate or conflict with any of
the provisions of the Basic Documents applicable to it or any
other documents executed in connection therewith; and that
under the terms of the Basic Documents applicable to it,
neither the consent of the Owner Trustee, the Trustee nor of
any of the Noteholders under the Basic Documents is required
for Party B to enter into that Transaction or for Party A to
be entitled for that Transaction to the rights, interests and
benefits granted to Party A under the Basic Documents.
(iii) Party B will provide at least five Business Days' prior
written notice, or lesser time period as agreed to by Party A
and Party B, to Party A of any proposed amendment or
modification to the Basic Documents.
(g) CONSENT TO NOTICE & COMMUNICATIONS. Party B hereby consents to the
giving to the Trustee of notice by Party A of Party A's address and
telecopy and telephone numbers for all purposes of the Basic Documents,
and in addition, Party A shall also be entitled at any time to provide
the Trustee with copies of this Agreement, including all Confirmations.
In addition, Party A shall not be precluded from communicating with the
Trustee or any party to, or any third party beneficiary under, the
Basic Documents for the purpose of exercising, enforcing or protecting
any of Party A's rights or remedies under this Agreement or any rights,
interests or benefits granted to Party A under the Basic Documents.
(h) NO BANKRUPTCY PETITION. Without impairing any right afforded to it
under the Basic Documents as a third party beneficiary, Party A shall
not institute against or cause any other person to institute against,
or join any other person in instituting against Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any federal or state bankruptcy, dissolution or
similar law, for a period of one year and one day following
indefeasible payment in full of the Notes. Nothing shall preclude, or
be deemed to stop, Party A (i) from taking any action prior to the
expiration of the aforementioned one year and one day period, or if
longer the applicable preference period then in effect, in (A) any case
or proceeding voluntarily filed or commenced by Party B or (B) any
involuntary insolvency proceeding filed or commenced by a Person other
than Party A, or (ii) from commencing against Party B or any of the
Collateral any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar proceeding.
This Part 6(h) shall survive termination of this Agreement.
(i) LIMITATION OF LIABILITY. It is expressly understood and agreed by the
parties hereto that (i) this Agreement is executed and delivered by the
Trustee not individually or personally but solely as trustee of the
Trust, in the exercise of the powers and authority conferred and vested
in it, (ii) each of the representations, undertakings and agreements
herein made on the part of the Trust is made and intended not as a
personal representation, undertaking or agreement by the Trustee but is
made and intended for the purpose of binding only the Trust, (iii)
nothing herein contained shall be construed as creating any liability
on the part of the Trustee, individually or personally, to perform any
covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by
any Person claiming by, through or under the parties hereto and (iv)
under no circumstances shall the Trustee be personally liable for the
payment 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.
(j) PARTY A RIGHTS SOLELY AGAINST COLLATERAL. The liability of Party B to
Party A hereunder is limited in recourse to the assets of the Trust,
and to distributions of interest proceeds and principal proceeds
thereon applied in accordance with the terms of the Indenture. Upon
application of and exhaustion of all of the assets of the Trust (and
proceeds thereof) in accordance with the Indenture, Party A shall not
be entitled to take any further steps against Party B to recover any
sums due but still unpaid hereunder or thereunder, all claims in
respect of which shall be extinguished. Notwithstanding the foregoing
or anything herein to the contrary, Party A shall not be precluded from
declaring an Event of Default or from exercising any other right or
remedy as set forth in this Agreement or the Indenture. This Part 6(j)
shall survive termination of this Agreement.
16
(k) CHANGE OF ACCOUNT. Section 2(b) of this Agreement is hereby amended by
the addition of the words "to another account in the same legal and tax
jurisdiction as the original account" following the word "delivery" in
the first line thereof.
(l) NOTICE OF CERTAIN EVENTS OR CIRCUMSTANCES. Each party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or
both would constitute) an Event of Default or Termination Event with
respect to such party, promptly to give the other party notice of such
event or condition (or, in lieu of giving notice of such event or
condition in the case of an event or condition that with the giving of
notice or passage of time or both would constitute an Event of Default
or Termination Event with respect to the party, to cause such event or
condition to cease to exist before becoming an Event of Default or
Termination Event); provided that failure to provide notice of such
event or condition pursuant to this Part 6(l) shall not constitute an
Event of Default or a Termination Event. Each party agrees to provide
to the other party any other notice reasonably expected to be provided
to facilitate compliance with the terms of this Agreement and the
Credit Support Document.
(m) REGARDING PARTY A. Party B acknowledges and agrees that Party A has had
and will have no involvement in and, accordingly Party A accepts no
responsibility for: (i) the establishment, structure, or choice of
assets of Party B; (ii) the selection of any person performing services
for or acting on behalf of Party B; (iii) the selection of Party A as
the Counterparty; (iv) the terms of the Notes, (v) other than with
respect to the Prospectus Information (as defined herein), the
preparation of or passing on the disclosure and other information
contained in any offering circular or offering document for the Notes,
the Basic Documents, or any other agreements or documents used by Party
B or any other party in connection with the marketing and sale of the
Notes; (vi) the ongoing operations and administration of Party B,
including the furnishing of any information to Party B which is not
specifically required under this Agreement or (vii) any other aspect of
Party B's existence.
(n) COMPLIANCE WITH REGULATION AB.
(i) Party A has been advised by Party B that AmeriCredit Financial
Services, Inc. (the "Sponsor") and Party B are required under
Regulation AB under the Securities Act of 1933 and the
Securities Exchange Act of 1934, as amended ("Regulation AB"),
to disclose certain information regarding Party A. Such
information may include financial information to the extent
required under Item 1115 of Regulation AB.
(ii) If required, upon written request, Party A shall provide to
Party B or the Sponsor the applicable financial information
described under Item 1115(b) of Regulation AB (the "Reg AB
Financial Information") within ten (10) Business Days of
receipt of a written request for such Reg AB Financial
Information by the Sponsor or Party B (the "Response Period"),
so long as the Sponsor or Party B has reasonably determined,
in good faith, that such information is required under
Regulation AB. In the event that Party A does not provide any
such Reg AB Financial Information by the end of the related
Response Period, Party A shall promptly, but in no event later
than ten (10) Local Business Days following the end of such
Response Period shall either, at Party A's own expense (1)
find a replacement counterparty that (A) has the ability to
provide its applicable Reg AB Financial Information, (B)
satisfies the Rating Agency Condition, (C) is acceptable to
Party B and the Insurer and (D) enters into an agreement with
Party B substantially in the form of this Agreement (such
replacement counterparty, a "Reg AB Approved Entity" and
Approved Entity; (2) obtain a guaranty of Party A's
obligations under this Agreement from an affiliate of Party A
that complies with the financial information disclosure
requirements of Item 1115 of Regulation AB, and cause such
affiliate to provide Swap Financial Disclosure and any future
Swap Financial Disclosure and other information pursuant to
clause (1), such that disclosure provided in respect of such
affiliate will satisfy any disclosure requirements applicable
to the Swap Provider, or (3) transfer Eligible Collateral to
Party B's Custodian in an amount (taking into account any
amount posted pursuant to Part 5(b) herein, if any) which is
sufficient, as reasonably determined in good faith by the
Sponsor, to reduce the aggregate significance percentage below
10% (or, so long as Party A is able to provide the Swap
Financial Disclosure
17
required pursuant to Item 1115(b)(1) of Regulation AB, below
20%, in the event Party A is requested to provide the Swap
Financial Disclosure required pursuant to Item 1115(b)(2) of
Regulation AB).
(iii) If Party B or the Sponsor request (in writing) the Reg AB
Financial Information from Party A, then the Sponsor or Party
B will promptly (and in any event within one (1) Business Day
of the date of the request for the Reg AB Financial
Information) provide Party A with a written explanation of how
the significance percentage was calculated.
(iv) Party A represents and warrants that the statements appearing
in the Preliminary Prospectus Supplement, dated January 8,
2007, or in the Prospectus Supplement, dated January 10, 2007,
each relating to AmeriCredit Automobile Receivables Trust
2007-A-X under the headings "The Swap Counterparty" (the
"Prospectus Information") are true and correct in all material
respects and do not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
(v) (A) Party A shall indemnify and hold harmless Party B, the
Sponsor, their respective directors or officers and any person
controlling Party B or the Sponsor, from and against any and
all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material
fact contained in the Prospectus Information or in any Reg AB
Financial Information that Party A provides to Party B or the
Sponsor pursuant to this Part 6(y) (the "Party A Information")
or caused by any omission or alleged omission to state in the
Party A Information a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
(B) The Sponsor shall indemnify and hold harmless Party A, its
respective directors or officers and any person controlling
Party A, from and against any and all losses, claims, damages
and liabilities caused by any untrue statement or alleged
untrue statement of a material fact contained in the
Preliminary Prospectus Supplement referred to in clause (iv)
above (together with the accompanying base Prospectus), the
Prospectus Supplement referred to in clause (iv) above
(together with the accompanying base Prospectus)
(collectively, the "Prospectus Disclosure") or caused by any
omission or alleged omission to state in the Prospectus
Disclosure a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that the Sponsor shall not be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue
statement or alleged untrue statement in or omission or
alleged omission made in any such Prospectus Disclosure in the
Party A Information.
(vi) Promptly after the indemnified party under Part 6(n)(v)
receives notice of the commencement of any such action, the
indemnified party will, if a claim in respect thereof is to be
made pursuant to Part 6(n)(v), promptly notify the
indemnifying party in writing of the commencement thereof. In
case any such action is brought against the indemnified party,
and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the
indemnified party except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to
the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) such
indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which
are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ
separate counsel, (ii) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party) between
the indemnified party and the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably
satisfactory to the
18
indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the
indemnifying party. The indemnifying party will not, without
the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such claim or action)
unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or
proceeding. No indemnified party will settle or compromise or
consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder without the consent of the indemnifying party, which
consent shall not be unreasonably withheld.
(o) SUBROGATION. Each of Party A and Party B hereby acknowledges that, to
the extent of payments made by the Insurer to Party A under the Swap
Policy, the Insurer shall be fully subrogated to the rights of Party A
against Party B under the Transaction to which such payments relate,
including, but not limited to, the right to receive payment from Party
B and the enforcement of any remedies against Party B. Party A hereby
agrees to assign to the Insurer its right to receive payment from Party
B under any Transaction to the extent of any payment thereunder by the
Insurer to Party A. Party B hereby acknowledges and consents to the
assignment by Party A to the Insurer of any rights and remedies that
Party A has under any Transaction or any other document executed in
connection herewith.
(p) EXPENSES. Party B agrees to reimburse the Insurer immediately and
unconditionally upon demand for all reasonable expenses incurred by the
Insurer in connection with the issuance of the Swap Policy and the
enforcement by the Insurer of Party B's obligations under this
Agreement and any other documents executed in connection with the
execution and delivery of this Agreement, including, but not limited
to, fees (including professional fees), costs and expenses incurred by
the Insurer which are related to or resulting from any breach by Party
B of its obligations hereunder.
(q) NOTICES. A copy of each notice or other communication between the
parties with respect to this Agreement must be sent at the same time to
the Insurer.
PART 7. DEFINITIONS.
All capitalized terms used herein and not defined herein shall have the
definitions ascribed to them in the Indenture.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
IN WITNESS WHEREOF, the parties have executed this Schedule by their
duly authorized signatories as of the date hereof.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Kim V. Farr
--------------------------------------------------
Name: Kim V. Farr
Title: Director
AMERICREDIT AUTOMOBILE RECEIVABLES TRUST 2007-A-X
BY: AMERICREDIT FINANCIAL SERVICES, INC.,
as Attorney-In-Fact
By: /s/ Susan B. Sheffield
--------------------------------------------------
Name: Susan B. Sheffield
Title: Senior Vice-President, Structured Finance
20
ISDA(R)
INTERNATIONAL SWAP DEALERS ASSOCIATION, INC.
CREDIT SUPPORT ANNEX
TO THE SCHEDULE TO THE
ISDA MASTER AGREEMENT
DATED AS OF JANUARY 18, 2007
BETWEEN
AmeriCredit Automobile Receivables
Wachovia Bank, National Association and Trust 2007-A-X
("Party A") ("Party B")
This Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
Accordingly, the parties agree as follows:
PARAGRAPH 1 INTERPRETATION
(a) DEFINITIONS AND INCONSISTENCY. Capitalized terms not otherwise defined
herein or elsewhere in this Agreement have the meanings specified pursuant
to Paragraph 12, and all references in this Annex to Paragraphs are to
Paragraphs of this Annex. In the event of any inconsistency between this
Annex and the other provisions of this Schedule, this Annex will prevail,
and in the event of any inconsistency between Paragraph 13 and the other
provisions of this Annex, Paragraph 13 will prevail.
(b) SECURED PARTY AND PLEDGOR. All references in this Annex to the "Secured
Party" will be to either party when acting in that capacity and all
corresponding references to the Pledgor will be to the other party when
acting in that capacity; provided, however, that if Other Posted Support is
held by a party to this Annex, all references herein to that party as the
Secured Party with respect to that Other Posted Support will be to that
party as the beneficiary thereof and will not subject that support or that
party as the beneficiary thereof to provisions of law generally relating to
security interests and secured parties.
PARAGRAPH 2 SECURITY INTEREST
Each party, as the Pledgor, hereby pledges to the other party, as the Secured
Party, as security for its Obligations and grants to the Secured Party a first
priority continuing security interest in, lien on and right of Set-off against
all Posted Collateral Transferred to or received by the Secured Party hereunder.
Upon the Transfer by the Secured Party to the Pledgor or Posted Collateral, the
1
security interest and lien granted hereunder on that Posted Collateral will be
released immediately and, to the extent possible, without any further action by
either party.
PARAGRAPH 3 CREDIT SUPPORT OBLIGATIONS
(a) DELIVERY AMOUNT. Subject to Paragraphs 4 and 5, upon demand made by the
Secured Party on or promptly following a Valuation Date, if the Delivery
Amount for that Valuation Date equals or exceeds the Pledgor's Minimum
Transfer Amount, then the Pledgor will Transfer to the Secured Party
Eligible Credit Support having a Value as of the date of Transfer at least
equal to the applicable Delivery Amount (rounded pursuant to Paragraph 13).
Unless otherwise specified in Paragraph 13, the "Delivery Amount"
applicable to the Pledgor for any Valuation Date will equal the amount by
which:
(i) the Credit Support Amount
exceeds
(ii) the Value as of that Valuation Date of all Posted Credit Support held
by the Secured Party.
(b) RETURN AMOUNT. Subject to Paragraphs 4 and 5, upon a demand made by the
Pledgor on or promptly following a Valuation Date, if the Return Amount for
that Valuation Date equals or exceeds Secured Party's Minimum Transfer
Amount, then the Secured Party will Transfer to the Pledgor Posted Credit
Support specified by the Pledgor in that demand having a Value as of the
date of Transfer as close as practicable to the applicable Return Amount
(rounded pursuant to Paragraph 13). Unless otherwise specified in Paragraph
13, the "Return Amount" applicable to the Secured Party for any Valuation
Date will equal the amount by which:
(i) the Value as of that Valuation Date of all Posted Credit Support held
by the Secured Party
exceeds
(ii) the Credit Support Amount.
"CREDIT SUPPORT AMOUNT" means, unless otherwise specified in Paragraph 13, for
any Valuation Date (i) the Secured Party's Exposure for that Valuation Date plus
(ii) the aggregate of all Independent Amounts applicable to the Pledgor, if any,
minus (iii) all Independent Amounts applicable to the Secured Party, if any,
minus (iv) the Pledgor's Threshold; provided, however, that the Credit Support
Amount will be deemed to be zero whenever the calculation of Credit Support
Amount yields a number less than zero.
2
PARAGRAPH 4 CONDITIONS PRECEDENT, TRANSFER TIMING, CALCULATIONS AND
SUBSTITUTIONS
(a) CONDITIONS PRECEDENT. Each Transfer obligation of the Pledgor under
Paragraphs 3 and 5 and of the Secured Party under Paragraphs 3, 4(d)(ii), 5
and 6(d) is subject to the conditions precedent that:
(i) no Event of Default, Potential Event of Default or Specified Condition
has occurred and is continuing with respect to the other party; and
(ii) no Early Termination Date for which any unsatisfied payment
obligations exist has occurred or been designated as the result of an
Event of Default or Specified Condition with respect to the other
party.
(b) TRANSFER TIMING. Subject to Paragraphs 4(a) and 5 and unless otherwise
specified, if a demand for the Transfer of Eligible Credit Support or
Posted Credit Support is made by the Notification Time, then the relevant
Transfer will be made not later than the close of business on the next
Local Business Day; if a demand is made after the Notification Time, then
the relevant Transfer will be made not later than the close of business on
the second Local Business Day thereafter.
(c) CALCULATIONS. All calculations of Value and Exposure for purposes of
Paragraphs 3 and 6(d) will be made by the Valuation Agent as of the
Valuation Time. The Valuation Agent will notify each party (or the other
party, if the Valuation Agent is a party) of its calculations not later
than the Notification Time on the Local Business Day following the
applicable Valuation Date (or in the case of Paragraph 6(d), following the
date of calculation).
(d) SUBSTITUTIONS.
(i) Unless otherwise specified in Paragraph 13, upon notice to the Second
Party specifying the items of Posted Credit Support to be exchanged,
the Pledgor may, on any Local Business Day, Transfer to the Secured
Party substitute Eligible Credit Support (the "Substitute Credit
Support"); and
(ii) subject to Paragraph 4(a), the Secured Party will Transfer to the
Pledgor the items of Posted Credit Support specified by the Pledgor in
its notice not later than the Local Business Day following the date on
which the Secured Party receives the Substitute Credit Support, unless
otherwise specified in Paragraph 13 (the "Substitution Date");
provided that the Secured Party will only be obligated to Transfer
Posted Credit Support with a Value as of the date of Transfer of that
Posted Credit Support equal to the Value as of that date of the
Substitute Credit Support.
3
PARAGRAPH 5 DISPUTE RESOLUTION
If a party (a "Disputing Party") disputes (I) the Valuation Agent's calculation
of a Delivery Amount or a Return Amount or (II) the Value of any Transfer of
Eligible Credit Support or Posted Credit Support, then (1) the Disputing Party
will notify the other party and the Valuation Agent (if the Valuation Agent is
not the other party) not later than the close of business on the Local Business
Day following (X) the date that the demand is made under Paragraph 3 in case of
(I) above or (Y) the date that the demand is made under Paragraph 3 in the case
of (I) above or (Y) the date of Transfer in the case of (II) above, (2) subject
to Paragraph 4(a), the appropriate party will Transfer the undisputed amount to
the other party not later than the close of business on the Local Business Day
following (X) the date that the demand is made under Paragraph 3 in the case of
(I) above or (Y) the date of Transfer in the case of (II) above, (3) the parties
will consult with each other in an attempt to resolve the dispute and (4) if
they fail to resolve the dispute by the Resolution Time, then:
(i) In the case of a dispute involving a Delivery Amount or Return Amount,
unless otherwise specified in Paragraph 13, the Valuation Agent will
recalculate the Exposure and the Value as of the Recalculation Date
by:
(A) utilizing any calculations of Exposure for the Transactions (or
Swap Transactions) that the parties have agreed are not in
dispute;
(B) calculating the Exposure for the Transactions (or Swap
Transactions) in dispute by seeking four actual quotations at
mid-market from Reference Market-makers for purposes of
calculating Market Quotation, and taking the arithmetic average
of those obtained; provided that if four quotations are not
available for a particular Transaction (or Swap Transaction),
then fewer than four quotations may be used for that Transaction
(or Swap Transaction); and if no quotations are available for a
particular Transaction (or Swap Transaction), then the Valuation
Agent's original calculations will be used for that Transaction
(or Swap Transaction);
(C) utilizing the procedures specified in Paragraph 13 for
calculating the Value, if disputed, of Posted Credit Support.
(ii) In the case of a dispute involving the Value of any Transfer of
Eligible Credit Support or Posted Credit Support the Valuation Agent
will recalculate the Value as of the date of Transfer pursuant to
Paragraph 13.
Following a recalculation pursuant to this Paragraph, the Valuation Agent will
notify each party (or the other party, if the Valuation Agent is a party) not
later than the Notification Time on the Local Business Day following the
Resolution Time. The appropriate party will, upon demand following that notice
by the Valuation Agent or a resolution pursuant to (3) above and subject to
Paragraphs 4(a) and 4(b), make the appropriate Transfer.
4
PARAGRAPH 6 HOLDING AND USING POSTED COLLATERAL
(a) CARE OF POSTED COLLATERAL. Without limiting the Secured Party's rights
under Paragraph 6(c), the Secured Party will exercise reasonable care to
assure the safe custody of all Posted Collateral to the extent required by
applicable law, and in any event the Secured Party will be deemed to have
exercised reasonable care if it exercises at least the same degree of care
as it would exercise with respect to its own property. Except as specified
in the preceding sentence, the Secured Party will have no duty with respect
to Posted Collateral, including, without limitation, any duty to collect
any Distributions, or enforce or preserve any rights pertaining thereto.
(b) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS.
(i) GENERAL. Subject to the satisfaction of any conditions specified in
Paragraph 13 for holding Posted Collateral, the Secured Party will be
entitled to hold Posted Collateral or to appoint an agent (a
"Custodian") to hold Posted Collateral for the Secured Party. Upon
notice by the Secured Party to the Pledgor of the appointment of a
Custodian, the Pledgor's obligations to make any Transfer will be
discharged by making the Transfer to that Custodian. The holding of
Posted Collateral by a Custodian will be deemed to be the holding of
that Posted Collateral by the Secured Party for which the Custodian is
acting.
(ii) FAILURE TO SATISFY CONDITIONS. If the Secured Party or its Custodian
fails to satisfy conditions for holding Posted Collateral, then upon a
demand made by the Pledgor, the Secured Party will, not later than
five Local Business Days after the demand, Transfer or cause its
Custodian to Transfer all Posted Collateral held by it to a Custodian
that satisfies those conditions or to the Secured Party if it
satisfies those conditions.
(iii) LIABILITY. The Secured Party will be liable for the acts or omissions
of its Custodian to the same extent that the Secured Party would be
liable hereunder for its own acts or omissions.
(c) USE OF POSTED COLLATERAL. Unless otherwise specified in Paragraph 13 and
without limiting the rights and obligations of the parties under Paragraphs
3, 4(d)(ii), 5, 6(d) and 8, if the Secured Party is not a Defaulting Party
or an Affected Party with respect to a Specified Condition and no Early
Termination Date has occurred or been designated as the result of an Event
of Default or Specified Condition with respect to the Secured Party, then
the Secured Party will, notwithstanding Section 9-207 of the New York
Uniform Commercial Code, have the right to:
(i) sell, pledge, rehypothecate, assign, invest, use, commingle or
otherwise dispose of, or otherwise use in its business any Posted
Collateral it holds, free from any claim or right of any nature
whatsoever of the Pledgor, including any equity or right of redemption
by the Pledgor; and
5
(ii) register any Posted Collateral in the name of the Secured Party, its
Custodian or a nominee for either.
For purposes of the obligation to Transfer Eligible Credit Support or Posted
Credit Support pursuant to Paragraphs 3 and 5 and any rights or remedies
authorized under this Agreement, the Secured Party will be deemed to continue to
hold all Posted Collateral and to receive Distributions made thereon, regardless
of whether the Secured Party has exercised any rights with respect to any Posted
Collateral pursuant to (i) or (ii) above.
(d) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) DISTRIBUTIONS. Subject to Paragraph 4(a), if the Secured Party
receives or is deemed to receive Distributions on a Local Business
Day, it will Transfer to the Pledgor not later than the following
Business Day any Distributions it receives or is deemed to receive to
the extent that a Delivery Amount would not be created or increased by
that Transfer, as calculated by the Valuation Agent (and the date of
calculation will be deemed to be a Valuation Date for this purpose).
(ii) INTEREST AMOUNT. Unless otherwise specified in Paragraph 13 and
subject to Paragraph 4(a), in lieu of any interest, dividends or other
amounts paid or deemed to have been paid with respect to Posted
Collateral in the form of Cash (all of which may be retained by the
Secured Party), the Secured Party will Transfer to the Pledgor at the
times specified in Paragraph 13 the Interest Amount to the extent that
a Delivery Amount would not be created or increased by that Transfer,
as calculated by the Valuation Agent (and the date of calculation will
be deemed to be a Valuation Date for this purpose). The Interest
Amount or portion thereof not Transferred pursuant to this Paragraph
will constitute Posted Collateral in the form of Cash and will be
subject to the security interest granted under Paragraph 2.
PARAGRAPH 7 EVENTS OF DEFAULT
For purposes of Section 5(a)(iii)(1) of this Agreement, an Event of Default will
exist with respect to a party if:
(i) that party fails (or fails to cause its Custodian) to make, when due,
any Transfer of Eligible Collateral, Posted Collateral or the Interest
Amount, as applicable, required to be made by it and that failure
continues for two Local Business Days after notice of that failure is
given to that party;
(ii) that party fails to comply with any restriction or prohibition
specified in this Annex with respect to any of the rights specified in
Paragraph 6(c) and that failure continues for five Local Business Days
after notice of that failure is given to that party; or
6
(iii) that party fails to comply with or perform any agreement or
obligation other than those specified in Paragraphs 7(i) and 7(ii) and
that failure continues for 30 days after notice of that failure is
given to that party.
PARAGRAPH 8 CERTAIN RIGHTS AND REMEDIES
(a) SECURED PARTY'S RIGHTS AND REMEDIES. If at any time (1) an Event of Default
or Specified Condition with respect to the Pledgor has occurred and is
continuing or (2) an Early Termination Date has occurred or been designated
as the result of an Event of Default or Specified Condition with respect to
the Pledgor, then, unless the Pledgor has paid in full all of its
Obligations that are then due, the Secured Party may exercise one or more
of the following rights and remedies:
(i) all rights and remedies available to a secured party under applicable
law with respect to Posted Collateral held by the Secured Party;
(ii) any other rights and remedies available to the Secured Party under the
terms of Other Posted Support, if any;
(iii) the right to Set-off any amounts payable by the Pledgor with respect
to any Obligations against any Posted Collateral or the Cash
equivalent of any Posted Collateral held by the Secured Party (or any
obligation of the Secured Party to Transfer that Posted Collateral);
and
(iv) the right to liquidate any Posted Collateral held by the Secured Party
through one or more public or private sales or other dispositions with
such notice, if any, as may be required under applicable law, free
from any claim or right of any nature whatsoever of the Pledgor,
including any equity or right of redemption by the Pledgor (with the
Secured Party having the right to purchase any or all of the Posted
Collateral to be sold) and to apply the proceeds (or the Cash
equivalent thereof) from the liquidation of the Posted Collateral to
any amounts payable by the Pledgor with respect to any Obligations in
that order as the Secured Party may elect.
Each party acknowledges and agrees that Posted Collateral in the form of
securities may decline speedily in value and is of a type customarily sold on a
recognized market, and, accordingly, the Pledgor is not entitled to prior notice
of any sale of that Posted Collateral by the Secured Party, except any notice
that is required under applicable law and cannot be waived.
(b) PLEDGOR'S RIGHTS AND REMEDIES. If at any time an Early Termination Date has
occurred or been designated as the result of an Event of Default or
Specified Condition with respect to the Secured Party, then (except in the
case of an Early Termination Date relating to less than all Transactions
(or Swap Transactions) where the Secured Party has paid in full all of its
obligations that are then due under Section 6(e) of this Agreement):
(i) the Pledgor may exercise all rights and remedies available to a
Pledgor under applicable law with respect to Posted Collateral held by
the Secured Party;
7
(ii) the Pledgor may exercise any other rights and remedies available to
the Pledgor under the terms of Other Posted Support, if any;
(iii) the Secured Party will be obligated immediately to Transfer all
Posted Collateral and the Interest Amount to the Pledgor; and
(iv) to the extent that Posted Collateral or the Interest Amount is not so
Transferred pursuant to (iii) above, the Pledgor may:
(A) Set-off any amounts payable by the Pledgor with respect to any
Obligations against any Posted Collateral or the Cash equivalent
of any Posted Collateral held by the Secured Party (or any
obligation of the Secured Party to Transfer that Posted
Collateral); and
(B) to the extent that the Pledgor does not Set-off under (iv)(A)
above, withhold payment of any remaining amounts payable by the
Pledgor with respect to any Obligations, up to the Value of any
remaining Posted Collateral held by the Secured Party, until that
Posted Collateral is Transferred to the Pledgor.
(c) DEFICIENCIES AND EXCESS PROCEEDS. The Secured Party will Transfer to the
Pledgor any proceeds and Posted Credit Support remaining after liquidation,
Set-off and/or application under Paragraphs 8(a) and 8(b) after
satisfaction in full of all amounts payable by the Pledgor with respect to
any Obligations; the Pledgor in all events will remain liable for any
amounts remaining unpaid after any liquidation, Set-off and/or application
under Paragraphs 8(a) and 8(b).
(d) FINAL RETURNS. When no amounts are or thereafter may become payable by the
Pledgor with respect to any Obligations (except for any potential liability
under Section 2(d) of this Agreement), the Secured Party will Transfer to
the Pledgor all Posted Credit Support and the Interest Amount, if any.
PARAGRAPH 9 REPRESENTATIONS
Each party represents to the other party (which representation will be deemed to
be repeated as of each date on which it, as the Pledgor, Transfers Eligible
Collateral) that:
(i) it has the power to grant a security interest in and lien on any
Eligible Collateral it Transfers as the Pledgor and has taken all
necessary actions to authorize the granting of that security interest
and lien;
(ii) it is the sole owner of or otherwise has the right to Transfer all
Eligible Collateral it Transfers to the Secured Party hereunder, free
and clear of any security interest, lien, encumbrance or other
restrictions other than the security interest and lien granted under
Paragraph 2;
8
(iii) upon the Transfer of any Eligible Collateral to the Secured Party
under the terms of this Annex, the Secured Party will have a valid and
perfected first priority security interest therein (assuming that any
central clearing corporation or any third-party financial intermediary
or other entity not within the control of the Pledgor involved in the
Transfer of that Eligible Collateral gives the notices and takes the
action required of it under applicable law for perfection of that
interest); and
(iv) the performance by it of its obligations under this Annex will not
result in the creation of any security interest, lien or other
encumbrance on any Posted Collateral other than the security interest
and lien granted under Paragraph 2.
PARAGRAPH 10 EXPENSES
(a) GENERAL. Except as otherwise provided in Paragraphs 10(b) and 10(c), each
party will pay its own costs and expenses in connection with performing its
obligations under this Annex and neither party will be liable for any costs
and expenses incurred by the other party in connection herewith.
(b) POSTED CREDIT SUPPORT. The Pledgor will promptly pay when due all taxes,
assessments or charges of any nature that are imposed with respect to
Posted Credit support held by the Secured Party upon becoming aware of the
same, regardless of whether any portion of that Posted Credit Support is
subsequently disposed of under Paragraph 6(c), except for those taxes,
assessments and charges that result from the exercise of the Secured
Party's rights under Paragraph 6(c).
(c) LIQUIDATION/APPLICATION OF POSTED CREDIT SUPPORT. All reasonable costs and
expenses incurred by or on behalf of the Secured Party or the Pledgor in
connection with the liquidation and/or application of any Posted Credit
Support under Paragraph 8 will be payable, on demand and pursuant to the
Expenses Section of this Agreement, by the Defaulting Party or, if there is
no Defaulting Party, equally by the parties.
PARAGRAPH 11 MISCELLANEOUS
(a) DEFAULT INTEREST. A Secured Party that fails to make, when due, any
Transfer of Posted Collateral or the Interest Amount will be obliged to pay
the Pledgor (to the extent permitted under applicable law) an amount equal
to interest at the Default Rate multiplied by the Value of the items of
property that were required to be Transferred, from (and including) the
date that the Posted Collateral or Interest Amount was required to be
Transferred to (but excluding) the date of Transfer of that Posted
Collateral or Interest Amount. This interest will be calculated on the
basis of daily compounding and the actual number of days elapsed.
(b) FURTHER ASSURANCES. Promptly following a demand made by a party, the other
party will execute, deliver, file and record any financing statement,
specific assignment or other document and take any other action that may be
necessary or desirable and reasonably requested by that party to create,
preserve, perfect or validate any security interest or lien
9
granted under Paragraph 2, to enable that party to exercise or enforce its
rights under this Annex with respect to Posted Credit Support or an
Interest Amount or to effect or document a release of a security interest
on Posted Collateral or an Interest Amount.
(c) FURTHER PROTECTION. The Pledgor will promptly give notice to the Secured
Party of, and defend against, any suit, action, proceeding or lien that
involves Posted Credit Support Transferred by the Pledgor or that could
adversely affect the security interest and lien granted by it under
Paragraph 2, unless that suit, action, proceeding or lien results from the
exercise of the Secured Party's rights under Paragraph 6(c).
(d) GOOD FAITH AND COMMERCIALLY REASONABLE MANNER. Performance of all
obligations under this Annex, including, but not limited to, all
calculations, valuations and determinations made by either party, will be
made in good faith and in a commercially reasonable manner.
(e) DEMANDS AND NOTICES. All demands and notices given by a party under this
Annex will be made as specified in the Notices Section of this Agreement,
except as otherwise provided in Paragraph 13.
(f) SPECIFICATIONS OF CERTAIN MATTERS. Anything referred to in this Annex as
being specified in Paragraph 13 also may be specified in one or more
Confirmations or other documents and this Annex will be construed
accordingly.
PARAGRAPH 12 DEFINITIONS
As used in this Annex:--
"CASH" means the lawful currency of the United States of America.
"CREDIT SUPPORT AMOUNT" has the meaning specified in Paragraph 3.
"CUSTODIAN" has the meaning specified in Paragraphs 6(b)(i) and 13.
"DELIVERY AMOUNT" has the meaning specified in Paragraph 3(a).
"DISPUTING PARTY" has the meaning specified in Paragraph 5.
"DISTRIBUTIONS" means, with respect to Posted Collateral other than Cash, all
principal, interest and other payments and distributions of cash or other
property with respect thereto, regardless of whether the Secured Party has
disposed of that Posted Collateral under Paragraph 6(c). Distributions will not
include any item of property acquired by the Secured Party upon any disposition
or liquidation of Posted Collateral or, with respect to any Posted Collateral in
the form of Cash, any distributions on that collateral, unless otherwise
specified herein.
"ELIGIBLE COLLATERAL" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
10
"ELIGIBLE CREDIT SUPPORT" means Eligible Collateral and Other Eligible Support.
"EXPOSURE" means for any Valuation Date or other date for which Exposure is
calculated and subject to Paragraph 5 in the case of a dispute, the amount, if
any, that would be payable to a party that is the Secured Party by the other
party (expressed as a positive number) or by a party that is the Secured Party
to the other party (expressed as a negative number) pursuant to Section
6(e)(ii)(2)(A) of this Agreement as if all Transactions (or Swap Transactions)
were being terminated as of the relevant Valuation Time; provided that Market
Quotation will be determined by the Valuation Agent using its estimates at
mid-market of the amounts that would be paid for Replacement Transactions (as
that term is defined in the definition of "Market Quotation").
"INDEPENDENT AMOUNT" means, with respect to party, the amount specified as such
for that party in Paragraph 13; if no amount is specified, zero.
"INTEREST AMOUNT" means, with respect to an Interest Period, the aggregate sum
of the amounts of interest calculated for each day in that Interest Period on
the principal amount of Posted Collateral in the form of Cash held by the
Secured Party on that day, determined by the Secured Party for each such day as
follows:
(x) the amount of Cash on that day; multiplied by
(y) the Interest Rate in effect for that day; divided by
(z) 360.
"INTEREST PERIOD" means the period from (and including) the last Local Business
Day on which an Interest Amount was Transferred (or, if no Interest Amount has
yet been Transferred, the Local Business Day on which Posted Collateral in the
form of Cash was Transferred to or received by the Secured Party) to (but
excluding) the Local Business Day on which the current Interest Amount is to be
Transferred.
"INTEREST RATE" means the rate specified in Paragraph 13.
"LOCAL BUSINESS DAY," unless otherwise specified in Paragraph 13, has the
meaning specified in the Definitions Section of this Agreement, except that
references to a payment in clause (b) thereof will be deemed to include a
Transfer under this Annex.
"MINIMUM TRANSFER AMOUNT" means, with respect to a party, the amount specified
as such for that party in Paragraph 13; if no amount is specified, zero.
"NOTIFICATION TIME" has the meaning specified in Paragraph 13.
"OBLIGATIONS" means, with respect to a party, all present and future obligations
of that party under this Agreement and any additional obligations specified for
that party in Paragraph 13.
11
"OTHER ELIGIBLE SUPPORT" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
"OTHER POSTED SUPPORT" means all Other Eligible Support Transferred to the
Secured Party that remains in effect for the benefit of that Secured Party.
"PLEDGOR" means either party, when that party (i) receives a demand for or is
required to Transfer Eligible Credit Support under Paragraph 3(a) or (ii) has
Transferred Eligible Credit Support under Paragraph 3(a).
"POSTED COLLATERAL" means all Eligible Collateral, other property,
Distributions, and all proceeds thereof that have been Transferred to or
received by the Secured Party under this Annex and not Transferred to the
Pledgor pursuant to Paragraph 3(b), 4(d)(ii) or 6(d)(i) or released by the
Secured Party under Paragraph 8. Any Interest Amount or portion thereof not
Transferred pursuant to Paragraph 6(d)(ii) will constitute Posted Collateral in
the form of Cash.
"POSTED CREDIT SUPPORT" means Posted Collateral and Other Posted Support.
"RECALCULATION DATE" means the Valuation Date that gives rise to the dispute
under Paragraph 5; provided, however, that if a subsequent Valuation Date occurs
under Paragraph 3 prior to the resolution of the dispute, then the
"Recalculation Date" means the most recent Valuation Date under Paragraph 3.
"RESOLUTION TIME" has the meaning specified in Paragraph 13.
"RETURN AMOUNT" has the meaning specified in Paragraph 3(b).
"SECURED PARTY" means either party, when that party (i) makes a demand for or is
entitled to receive Eligible Credit Support under Paragraph 3(a) or (ii) holds
or is deemed to hold Posted Credit Support.
"SPECIFIED CONDITION" means, with respect to a party, any event specified as
such for that party in Paragraph 13.
"SUBSTITUTE CREDIT SUPPORT" has the meaning specified in Paragraph 4(d)(i).
"SUBSTITUTION DATE" has the meaning specified in Paragraph 4(d)(ii).
"THRESHOLD" means, with respect to a party, the amount specified as such for
that party in Paragraph 13; if no amount is specified, zero.
"TRANSFER" means, with respect to any Eligible Credit Support, Posted Credit
Support or Interest Amount, and in accordance with the instructions of the
Secured Party, Pledgor or Custodian, as applicable:
12
(i) in the case of Cash, payment or delivery by wire transfer into one or
more bank accounts specified by the recipient;
(ii) in the case of certificated securities that cannot be paid or
delivered by book-entry, payment or delivery in appropriate physical
form to the recipient or its account accompanied by any duly executed
instruments of transfer, assignments in blank, transfer tax stamps and
any other documents necessary to constitute a legally valid transfer
to the recipient;
(iii) in the case of securities that can be paid or delivered in
book-entry, the giving of written instruments to the relevant
depository institution or other entity specified by the recipient,
together with a written copy thereof to the recipient, sufficient if
complied with to result in a legally effective transfer of the
relevant interest to the recipient; and
(iv) in the case of Other Eligible Support or Other Posted Support, as
specified in Paragraph 13.
"VALUATION AGENT" has the meaning specified in Paragraph 13.
"VALUATION DATE" means each date specified in or otherwise determined pursuant
to Paragraph 13.
"VALUATION PERCENTAGE" means, for any item of Eligible Collateral, the
percentage specified in Paragraph 13.
"VALUATION TIME" has the meaning specified in Paragraph 13.
"VALUE" means for any Valuation Date or other date for which Value is
calculated, and subject to Paragraph 5 in the case of a dispute, with respect
to:
(i) Eligible Collateral or Posted Collateral that is:
(A) Cash, the amount thereof; and
(B) a security, the bid price obtained by the Valuation Agent
multiplied by the applicable Valuation Percentage, if any;
(ii) Posted Collateral that consists of items that are not specified as
Eligible Collateral, zero; and
(iii) Other Eligible Support and Other Posted Support, as specified in
Paragraph 13.
13
ELECTIONS AND VARIABLES
TO THE 1994 ISDA CREDIT SUPPORT ANNEX
DATED AS OF
January 18, 2007
BETWEEN
AMERICREDIT AUTOMOBILE RECEIVABLES
WACHOVIA BANK, NATIONAL ASSOCIATION and TRUST 2007-A-X
- ----------------------------------- ----------------------------------
("Party A") ("Party B")
PARAGRAPH 13.
(a) SECURITY INTEREST FOR "OBLIGATIONS".
The term "OBLIGATIONS" as used in this Annex includes the following
additional obligations: None.
(b) CREDIT SUPPORT OBLIGATIONS.
(I) Delivery Amount, Return Amount and Credit Support Amount.
(A) "DELIVERY AMOUNT" has the meaning specified in Paragraph 3(a),
except that the words "upon a demand made by the Secured Party on
or promptly following a Valuation Date" shall be deleted and
replaced by the words "on each Valuation Date;" provided, that
the Delivery Amount shall be calculated, with respect to
collateral posting required by each Rating Agency, by using (i)
such Rating Agency's Valuation Percentages as provided below to
determine Value and (ii) the Credit Support Amount related to
such Rating Agency. The Delivery Amount shall be the greatest of
such calculated amounts.
(B) "RETURN AMOUNT" has the meaning specified in Paragraph 3(b);
provided, that the Return Amount shall be calculated, with
respect to collateral posting required by each Rating Agency, by
using (i) such Rating Agency's Valuation Percentages as provided
below to determine Value and (ii) the Credit Support Amount
related to such Rating Agency. The Return Amount shall be the
least of such calculated amounts.
(C) "CREDIT SUPPORT AMOUNT" has the meaning specified in Paragraph
13(j)(iv).
(II) ELIGIBLE COLLATERAL. The Valuation Percentages(1) listed below shall
apply to the following Eligible Collateral:
- ----------
(1) With respect to collateral types not listed below, such assets will be
subject to review by each of S&P, Fitch and Moody's.
1
Valuation Percentages Valuation Percentages Valuation Percentages applicable
applicable with respect applicable with respect with respect to calculating S&P
to calculating Moody's to calculating Moody's Credit Support Amount and Fitch
First Trigger Credit Second Trigger Credit Credit Support Amount
Support Amount Support Amount --------------------------------
Instrument Moody's Moody's S&P Fitch
---------- ----------------------- ----------------------- --------------- --------------
U.S. Dollar Cash 100% 100% 100%
Euro Cash 97% 93% 89.8%
Sterling Cash 97% 94% 91.9%
Fixed Rate Negotiable Treasury Debt issued by U.S. Treasury Department with Remaining Maturity:
<1 Year 100% 100% 98.6%
1 to 2 years 100% 99% 97.3%
2 to 3 years 100% 98% 95.8%
3 to 5 years 100% 97% 93.8%
5 to 7 years 100% 95% 91.4%
7 to 10 years 100% 94% 90.3%
10 to 20 years 100% 89% 87.9%
> 20 years 100% 87% 84.6%
Floating-Rate Negotiable U.S. Dollar Denominated Treasury Debt Issued by The U.S. Treasury Department
All Maturities 100% 99% 0%
Fixed-Rate U.S. Dollar Denominated U.S. Agency Debentures with Remaining Maturity:
< 1 Year 100% 99% 98%
1 to 2 years 100% 98% 96.8%
2 to 3 years 100% 97% 96.3%
3 to 5 years 100% 96% 94.5%
5 to 7 years 100% 94% 90.3%
7 to 10 years 100% 93% 86.9%
10 to 20 years 100% 88% 82.6%
> 20 years 100% 86% 77.9%
Floating-Rate U.S. Dollar Denominated U.S. Agency Debentures
All maturities 100% 98% 0%
Fixed-Rate Euro Denominated Euro-Zone Government Bonds Rated AA3 or Above by Moody's or AAA by S&P with Remaining
Maturity:
< 1 Year 97% 93% 98%
1 to 2 years 97% 92% 96.3%
2 to 3 years 97% 91% 95.8%
3 to 5 years 97% 89% 89.3%
5 to 7 years 97% 87% 85.7%
7 to 10 years 97% 86% 80.7%
10 to 20 years 97% 82% 72.5%
> 20 years 97% 80% 0%
Floating-Rate Euro Denominated Euro-Zone Government Bonds Rated AA3 or Above by Moody's or AAA by S&P
All maturities: 97% 92% 0%
Qualified Commercial Paper
0%* 0%* 99%
For the purposes of the above table, "QUALIFIED COMMERCIAL PAPER" means
commercial paper with a rating of at least P-1 by Moody's and A-1+ by S&P
and having a remaining maturity of not more than one month.
2
* or such other percentage in respect of which Moody's has provided a rating
affirmation.
(iii) THRESHOLDS.
(A) "INDEPENDENT AMOUNT" means with respect to Party A: Zero
"INDEPENDENT AMOUNT" means with respect to Party B: Zero
(B) "THRESHOLD" means with respect to Party A: infinity; provided
that the Threshold with respect to Party A shall be zero for so
long as no Relevant Entity has the First Trigger Required Ratings
or a Collateralization Event is occurring and (i) no Relevant
Entity has had the First Trigger Required Ratings since this
Annex was executed, or (ii) at least 30 Local Business Days have
elapsed since the last time a Relevant Entity had the First
Trigger Required Ratings, or (iii) no Relevant Entity has met the
Hedge Counterparty Ratings Requirement since this Annex was
executed, or (iv) at least 30 calendar days have elapsed since
the last time a Collateralization Event occurred or (v) a Ratings
Event is occurring.
"THRESHOLD" means with respect to Party B: infinity.
(C) "MINIMUM TRANSFER AMOUNT" means with respect to Party A: USD
$100,000; provided, however, that if S&P is rating the
Certificates and the aggregate Certificate Principal Balances of
the rated Certificates falls below $50,000,000, then the Minimum
Transfer Amount shall mean USD $50,000.
(D) "MINIMUM TRANSFER AMOUNT" means with respect to Party B: USD
$100,000 (or if the Posted Collateral is less than $100,000, the
aggregate Value of Posted Collateral), provided, however, that if
S&P is rating the Certificates and the aggregate Certificate
Principal Balances of the rated Certificates falls below
$50,000,000, then the Minimum Transfer Amount shall mean USD
$50,000 (or if the Posted Collateral is less than $50,000, the
aggregate Value of Posted Collateral).
(E) ROUNDING. The Delivery Amount will be rounded up to the nearest
integral multiple of USD $10,000. The Return Amount will be
rounded down to the nearest integral multiple of USD $10,000.
(iv) "EXPOSURE" has the meaning specified in Paragraph 12, except that (1)
after the word "Agreement" the words "(assuming, for this purpose
only, that Part 1(k) of the Schedule is deleted)" shall be inserted
and (2) at the end of such definition, the words "with terms
substantially the same as those of this Agreement."
(c) VALUATION AND TIMING.
(i) "VALUATION AGENT" means Party A in all circumstances.
(ii) "VALUATION DATE" means the first Local Business Day in each week.
(iii) "VALUATION TIME" means the close of business in the city of the
Valuation Agent on the Local Business Day immediately preceding the
Valuation Date or date of calculation, as applicable, provided that
the calculations of Value and Credit Support Amount will, as far as
practicable, be made as of approximately the same time on the same
date.
3
(iv) "NOTIFICATION TIME" means 11:00 a.m., New York time, on a Local
Business Day.
(d) CONDITIONS PRECEDENT AND SECURED PARTY'S RIGHTS AND REMEDIES. None.
(e) SUBSTITUTION.
(i) "SUBSTITUTION DATE" has the meaning specified in Paragraph 4(d)(ii).
(ii) CONSENT. If specified here as applicable, then the Pledgor must obtain
the Secured Party's consent for any substitution pursuant to Paragraph
4(d): Inapplicable.
(f) DISPUTE RESOLUTION.
(i) "RESOLUTION TIME" means 1:00 p.m., New York time on the Local Business
Day following the date on which the notice is given that gives rise to
a dispute under Paragraph 5.
(ii) VALUE. For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of
Eligible Credit Support or Posted Credit Support as of the relevant
Valuation Date or date of Transfer will be calculated as follows:
(A) with respect to any Eligible Credit Support or Posted Credit
Support comprising securities ("SECURITIES") the sum of (a)(x)
the last bid price on such date for such Securities on the
principal national securities exchange on which such Securities
are listed, multiplied by the applicable Valuation Percentage; or
(y) where any Securities are not listed on a national securities
exchange, the bid price for such Securities quoted as at the
close of business on such date by any principal market maker
(which shall not be and shall be independent from the Valuation
Agent) for such Securities chosen by the Valuation Agent,
multiplied by the applicable Valuation Percentage; or (z) if no
such bid price is listed or quoted for such date, the last bid
price listed or quoted (as the case may be), as of the day next
preceding such date on which such prices were available,
multiplied by the applicable Valuation Percentage; plus (b) the
accrued interest where applicable on such Securities (except to
the extent that such interest shall have been paid to the Pledgor
pursuant to Paragraph 5(c)(ii) or included in the applicable
price) as of such date; and
(B) with respect to any Cash, the face amount thereof.
(iii) ALTERNATIVE. The provisions of Paragraph 5 will apply.
(g) HOLDING AND USING POSTED COLLATERAL.
(i) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS:
A Custodian will be entitled to hold Posted Collateral on behalf of
Party B pursuant to Paragraph 6(b); provided that:
(1) Posted Collateral may be held only in the following
jurisdiction: United States.
4
(2) The Custodian for Party B (A) is a commercial bank or trust
company which is unaffiliated with Party B and organized under the
laws of the United States or state thereof, having assets of at least
$500 million and a long term debt or a deposit rating of at least (i)
Baa2 from Moody's and (ii) A-1 from S&P, or is the Trustee, and a
short term rating from Fitch of at least "F1" and (B) shall hold all
Eligible Credit Support in the appropriate account under the Basic
Documents.
(3) Initially, the Custodian for Cash and Securities for Party B
is: The Trustee under the Indenture, or any successor trustee thereto.
(ii) USE OF POSTED COLLATERAL. The provisions of Paragraph 6(c) will not
apply to Party B. The Trustee shall invest Cash Posted Credit Support
in such overnight (or redeemable within two Local Business Days of
demand) investments rated at least A-1+ by S&P and Prime-1 by Moody's
or AAAm or AAAm-G by S&P and Aaa by Moody's (or such other investments
as may be affirmed in writing by S&P and Moody's) as directed by Party
A (unless (x) an Event of Default or an Additional Termination Event
has occurred with respect to which Party A is the defaulting or sole
Affected Party and (y) an Early Termination Date has been designated
by Party B, in which case such investment shall be at the direction of
Party B) with gains and losses incurred in respect of such investments
to be for the account of Party A.
(iii) NOTICE. If a party or its Custodian fails to meet the criteria for
eligibility to hold (or, in the case of a party, to use) Posted
Collateral set forth in this Paragraph 13(g), such party shall
promptly notify the other party of such ineligibility.
(h) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) INTEREST RATE. The "INTEREST RATE" will be the actual rate of interest
earned by Party B or the Custodian if the Cash is invested at the
direction of Party A in accordance with Paragraph 13(g)(ii) above,
otherwise the "INTEREST RATE" will be the federal funds overnight rate
as published by the Board of Governors of the Federal Reserve System
in H.15 (519) or its successor publication, or such other rate as the
parties may agree from time to time.
(ii) TRANSFER OF INTEREST AMOUNT. The transfer of the Interest Amount will
be made on the second Local Business Day following the end of each
calendar month and on any other Local Business Day on which Posted
Collateral in the form of Cash is transferred to the Pledgor pursuant
to Paragraph 3(b), in each case to the extent that a Delivery Amount
would not be created or increased by that transfer, provided that
Party B shall not be obliged to so transfer any Interest Amount unless
and until it has earned and received such interest.
(iii) ALTERNATIVE TO INTEREST AMOUNT. The provisions of Paragraph 6(d)(ii)
will apply.
(i) ADDRESS FOR TRANSFERS.
Party A: To be notified to Party B by Party A at the time of the request
for the transfer.
Party B: To be notified to Party A by Party B upon request by Party A.
(j) OTHER PROVISIONS.
(i) COSTS OF TRANSFER ON EXCHANGE.
5
Notwithstanding Paragraph 10, the Pledgor will be responsible for, and
will reimburse the Secured Party for, all transfer and other taxes and
other costs involved in the transfer of Eligible Credit Support either
from the Pledgor to the Secured Party or from the Secured Party to the
Pledgor.
(ii) CUMULATIVE RIGHTS.
The rights, powers and remedies of the Secured Party under this Annex
shall be in addition to all rights, powers and remedies given to the
Secured Party by the Agreement or by virtue of any statute or rule of
law, all of which rights, powers and remedies shall be cumulative and
may be exercised successively or concurrently without impairing the
rights of the Secured Party in the Posted Credit Support created
pursuant to this Annex.
(iii) RATINGS CRITERIA.
"CREDIT SUPPORT AMOUNT" shall be (a) in respect of S&P, the S&P Credit
Support Amount, (b) in respect of Fitch, the Fitch Credit Support
Amount, and (c) in respect of Moody's, the Moody's First Trigger
Credit Support Amount, or the Moody's Second Trigger Credit Support
Amount, as applicable.
With respect to Fitch:
"FITCH CREDIT SUPPORT AMOUNT" means, for any Valuation Date, the
excess, if any, of:
(I) (A) for any Valuation Date (x) on which a Collateralization
Event with respect to Fitch has occurred and been continuing
for at least 30 calendar days or (y) on which a Ratings
Event with respect to Fitch has occurred and is continuing,
an amount equal to the sum of (1) the aggregate Secured
Party's Exposure for such Valuation Date with respect to all
Transactions and (2) the aggregate of the products of the
Volatility Buffer for each Transaction and the Notional
Amount of each Transaction for the Calculation Period of
each such Transaction which includes such Valuation Date, or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"VOLATILITY BUFFER" shall mean the percentage set forth in the
following table with respect to any Transaction (other than a
Transaction identified in the related Confirmation as a Timing Hedge):
WEIGHTED AVERAGE LIFE (YEARS)
----------------------------------------------------------------------------------------
NOTES' RATING 1 2 3 4 5 6 7 8 9 10 11 12 13 14 >=15
- ------------- --- --- --- --- --- --- --- --- --- --- --- --- --- --- ----
USD INTEREST RATE SWAPS
AA- or Better 0.8 1.7 2.5 3.3 4.0 4.7 5.3 5.9 6.5 7.0 7.5 8.0 8.5 9.0 9.5
A+/A 0.6 1.2 1.8 2.3 2.8 3.3 3.8 4.2 4.6 5.0 5.3 5.7 6.0 6.4 6.7
A-/BBB+ 0.5 1.0 1.6 2.0 2.5 2.9 3.3 3.6 4.0 4.3 4.7 5.0 5.3 5.6 5.9
With respect to Moody's:
"MOODY'S FIRST TRIGGER CREDIT SUPPORT AMOUNT" means, for any
Valuation Date, the excess, if any, of
6
(I) (A) for any Valuation Date on which (I) a First Trigger Failure
Condition has occurred and has been continuing (x) for at least
30 Local Business Days or (y) since this Annex was executed and
(II) it is not the case that a Moody's Second Trigger Event has
occurred and been continuing for at least 30 Local Business Days,
an amount equal to the greater of (a) zero and (b) the sum of the
Secured Party's aggregate Exposure for all Transactions and the
aggregate of Moody's Additional Collateralized Amounts for all
Transactions.
For the purposes of this definition, the "MOODY'S ADDITIONAL
COLLATERALIZED AMOUNT" with respect to any Transaction shall
mean:
[the lesser of (x) the product of the Moody's First Trigger DV01
Multiplier and DV01 for such Transaction and such Valuation Date
and (y) the product of Moody's First Trigger Notional Amount
Multiplier and the Notional Amount for such Transaction for the
Calculation Period which includes such Valuation Date;](2)
[the product of the applicable Moody's First Trigger Factor set
forth in Table 1 and the Notional Amount for such Transaction for
the Calculation Period which includes such Valuation Date;](3) or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A such Valuation Date.
"FIRST TRIGGER FAILURE CONDITION" means that no Relevant Entity has
credit ratings from Moody's at least equal to the Moody's First
Trigger Required Ratings.
"DV01" means, with respect to a Transaction and any date of
determination, the sum of the estimated change in the Secured Party's
Exposure with respect to such Transaction that would result from a one
basis point change in the relevant swap curve on such date, as
determined by the Valuation Agent in good faith and in a commercially
reasonable manner. The Valuation Agent shall, upon request of Party B,
provide to Party B a statement showing in reasonable detail such
calculation.
"MOODY'S FIRST TRIGGER DV01 MULTIPLIER" means [(A) if each Local
Business Day is a Valuation Date, 15, or (B) otherwise, 25].
"MOODY'S FIRST TRIGGER NOTIONAL AMOUNT MULTIPLIER" means [(A) if each
Local Business Day is a Valuation Date, 2%, or (B) otherwise, 4%].
"MOODY'S SECOND TRIGGER CREDIT SUPPORT AMOUNT" means, for any
Valuation Date, the excess, if any, of
(III) (A) for any Valuation Date on which it is the case that a Second
Trigger Failure Condition has occurred and been continuing for at
least 30 Local Business Days, an amount equal to the greatest of
(a) zero, (b) the aggregate amount of the Next Payments for all
Next Payment Dates and (c) the sum of the
- ----------
(2) If Moody's First Trigger Credit Support Amount is calculated without using
DV01.
(3) If Moody's Second Trigger Credit Support Amount for a fixed schedule swap
is calculated using DV01.
7
Secured Party's aggregate Exposure and the aggregate of Moody's
Additional Collateralized Amounts for all Transactions.
For the purposes of this definition:
"NEXT PAYMENT" means, in respect of each Next Payment Date, the
greater of (i) the amount of any payments due to be made by Party
A under Section 2(a) on such Next Payment Date less any payments
due to be made by Party B under Section 2(a) on such Next Payment
Date (in each case, after giving effect to any applicable netting
under Section 2(c)) and (ii) zero.
"NEXT PAYMENT DATE" means each date on which the next scheduled
payment under any Transaction is due to be paid.
"MOODY'S ADDITIONAL COLLATERALIZED AMOUNT" with respect to any
Transaction shall mean:
if such Transaction is not a Transaction-Specific Hedge,
[the lesser of (i) the product of the Moody's Second Trigger DV01
Multiplier and DV01 for such Transaction and such Valuation Date
and (ii) the product of the Moody's Second Trigger Notional
Amount Multiplier and the Notional Amount for such Transaction
for the Calculation Period which includes such Valuation
Date;](4)
[the product of the applicable Moody's Second Trigger Factor set
forth in Table 2 and the Notional Amount for such Transaction for
the Calculation Period which includes such Valuation Date;](5) or
if such Transaction is a Transaction-Specific Hedge,
[the lesser of (i) the product of the Moody's Second Trigger
Transaction-Specific Hedge DV01 Multiplier and DV01 for such
Transaction and such Valuation Date and (ii) the product of the
Moody's Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier and the Notional Amount for such Transaction for the
Calculation Period which includes such Valuation Date;](6)
[the product of the applicable Moody's Second Trigger Factor set
forth in Table 3 and the Notional Amount for such Transaction for
the Calculation Period which includes such Valuation Date;](7) or
(B) for any other Valuation Date, zero, over
(IV) the Threshold for Party A for such Valuation Date.
- ----------
(4) If Moody's Second Trigger Credit Support Amount for a fixed schedule swap
is calculated using DV01.
(5) If Moody's Second Trigger Credit Support Amount for a fixed schedule swap
is calculated without using DV01.
(6) If Moody's Second Trigger Credit Support Amount for a Transaction-Specific
Hedge is calculated using DV01.
(7) If Moody's Second Trigger Credit Support Amount for a Transaction-Specific
Hedge is calculated without using DV01.
8
"TRANSACTION-SPECIFIC HEDGE" means any Transaction that is an interest
rate cap, interest rate floor or interest rate swaption, or an
interest rate swap if (x) the notional amount of the interest rate
swap is "balance guaranteed" or (y) the notional amount of the
interest rate swap for any Calculation Period otherwise is not a
specific dollar amount that is fixed at the inception of the
Transaction.
"SECOND TRIGGER FAILURE CONDITION" means that no Relevant Entity has
credit ratings from Moody's at least equal to the Moody's Second
Trigger Ratings Threshold.
"MOODY'S SECOND TRIGGER DV01 MULTIPLIER" means [(A) if each Local
Business Day is a Valuation Date, 50, or (B) otherwise, 60].
"MOODY'S SECOND TRIGGER TRANSACTION-SPECIFIC HEDGE DV01 MULTIPLIER"
means [(A) if each Local Business Day is a Valuation Date, 65, or (B)
otherwise, 75].
"MOODY'S SECOND TRIGGER TRANSACTION-SPECIFIC HEDGE NOTIONAL AMOUNT
MULTIPLIER" means [(A) if each Local Business Day is a Valuation Date,
10%, or (B) otherwise, 11%].
"MOODY'S SECOND TRIGGER NOTIONAL AMOUNT MULTIPLIER" means [(A) if each
Local Business Day is a Valuation Date, 8% or (B) otherwise, 9%].
With respect to S&P:
"S&P CREDIT SUPPORT AMOUNT" means, for any Valuation Date, the excess,
if any, of:
(I) (A) for any Valuation Date (x) on which a Collateralization
Event with respect to S&P has occurred and been continuing
for at least 30 calendar days or (y) on which a Ratings
Event with respect to S&P has occurred and is continuing, an
amount equal to the sum of (1) the aggregate Secured Party's
Exposure for such Valuation Date with respect to all
Transactions and (2) the aggregate of the products of the
Volatility Buffer for each Transaction and the Notional
Amount of each Transaction for the Calculation Period of
each such Transaction which includes such Valuation Date, or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"VOLATILITY BUFFER" shall mean the percentage set forth in the
following table with respect to any Transaction (other than a
Transaction identified in the related Confirmation as a Timing Hedge):
Short-term credit rating of Remaining Weighted Remaining Weighted Remaining Weighted Average Remaining Weighted
Party A's Credit Support Average Life Maturity Average Life Maturity Life Maturity up to 10 Average Life Maturity up
Provider up to 3 years up to 5 years years to 30 years
- --------------------------- --------------------- --------------------- -------------------------- ------------------------
At least "A-2" 2.75 3.25 4.00 4.75
"A-3" 3.25 4.00 5.00 6.25
"BB+" or lower 3.50 4.50 6.75 7.50
9
(iv) DEMANDS AND NOTICES.
All demands, specifications and notices under this Annex will be made
pursuant to the Notices Section of this Agreement, save that any
demand, specification or notice:
(A) shall be given to or made at the following addresses:
If to Party A:
As set forth in Part 4(a) of the Schedule.
If to Party B:
As set forth in Part 4(a) of the Schedule.
or at such other address as the relevant party may from time to
time designate by giving notice (in accordance with the terms of
this subparagraph) to the other party;
(B) shall be deemed to be effective at the time such notice is
actually received unless such notice is received on a day which
is not a Local Business Day or after the Notification Time on any
Local Business Day in which event such notice shall be deemed to
be effective on the next succeeding Local Business Day.
Pursuant to the related Basic Document, the monthly report to
Noteholders shall be made available to Party A in the manner and form
specified therein.
(v) AGREEMENT AS TO SINGLE SECURED PARTY AND PLEDGOR
Party A and Party B agree that, notwithstanding anything to the
contrary in the first sentence of this Annex, Paragraph 1(b) or
Paragraph 2 or the definitions in Paragraph 12, except with respect to
Party B's obligations under Paragraph 3(b), (a) the term "Secured
Party" as used in this Annex means only Party B, (b) the term
"Pledgor" as used in this Annex means only Party A, (c) only Party A
makes the pledge and grant in Paragraph 2, the acknowledgement in the
final sentence of Paragraph 8(a) and the representations in Paragraph
9 and (d) only Party A will be required to make Transfers of Eligible
Credit Support hereunder. Party A and Party B further agree that,
notwithstanding anything to the contrary in the recital to this Annex
or Paragraph 7, this Annex will constitute a Credit Support Document
only with respect to Party A.
(vi) TRUSTEE CAPACITY.
It is expressly understood and agreed by the parties hereto that (i)
this Annex is executed and delivered by the Trustee not individually
or personally but solely as trustee of the Trust, in the exercise of
the powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part
of the Trust is made and intended not as personal representations,
undertakings and agreements by the Trustee but is made and intended
for the purpose of binding only the Trust, (iii) nothing herein
contained shall be construed as creating any liability on the part of
the Trustee, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto and (iv) under no
circumstances shall the Trustee be personally liable for the payment
of any indebtedness or expenses of
10
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 Annex.
(vii) EXTERNAL MARKS.
At such time as the long-term senior debt rating of Party A's Credit
Support Provider is BBB or lower from S&P, Party A in its capacity as
Valuation Agent shall get external verification of its calculation of
Exposure on a monthly basis. This verification shall be at Party A's
expense and may not be verified by the same entity more than four (4)
times in any twelve (12)-month period. The external mark should
reflect the higher of two (2) bids from counterparties that would be
willing and eligible to provide the swap in the absence of the current
provider. Such bids and any external marks received by the Valuation
Agent shall be provided to S&P. The calculation of Exposure should be
based on the greater of the internal and external marks.
(viii) EVENT OF DEFAULT.
Subclause (iii) of Paragraph 7 shall not apply to Party B.
[SIGNATURE PAGE FOLLOWS]
11
IN WITNESS WHEREOF, the parties have executed this document by their duly
authorized officers with effect from the date specified on the first page
hereof.
WACHOVIA BANK, NATIONAL ASSOCIATION AMERICREDIT AUTOMOBILE RECEIVABLES
TRUST 2007-A-X
BY: AMERICREDIT FINANCIAL SERVICES,
INC.,
as Attorney-In-Fact
By: /s/ Kim V. Farr By: /s/ Susan B. Sheffield
--------------------------------- ------------------------------------
Name: Kim V. Farr Name: Susan B. Sheffield
Title: Director Title: Senior Vice-President,
Structured Finance
12
Table 1
MOODY'S FIRST TRIGGER FACTOR
[If "Valuation Date" means each Local Business Day, the "Daily Collateral
Posting" column will apply and the Weekly Collateral Posting Column will be
deleted.]
[If "Valuation Date" means the first Local Business Day in each week, the
"Weekly Collateral Posting" column will apply and the Daily Collateral Posting
Column will be deleted.]
REMAINING [DAILY [WEEKLY
WEIGHTED AVERAGE LIFE COLLATERAL COLLATERAL
OF HEDGE IN YEARS POSTING POSTING
- --------------------- ---------- ----------
1 or less 0.15% 0.25%
More than 1 but not more than 2 0.30% 0.50%
More than 2 but not more than 3 0.40% 0.70%
More than 3 but not more than 4 0.60% 1.00%
More than 4 but not more than 5 0.70% 1.20%
More than 5 but not more than 6 0.80% 1.40%
More than 6 but not more than 7 1.00% 1.60%
More than 7 but not more than 8 1.10% 1.80%
More than 8 but not more than 9 1.20% 2.00%
More than 9 but not more than 10 1.30% 2.20%
More than 10 but not more than 11 1.40% 2.30%
More than 11 but not more than 12 1.50% 2.50%
More than 12 but not more than 13 1.60% 2.70%
More than 13 but not more than 14 1.70% 2.80%
More than 14 but not more than 15 1.80% 3.00%
More than 15 but not more than 16 1.90% 3.20%
More than 16 but not more than 17 2.00% 3.30%
More than 17 but not more than 18 2.00% 3.50%
More than 18 but not more than 19 2.00% 3.60%
More than 19 but not more than 20 2.00% 3.70%
More than 20 but not more than 21 2.00% 3.90%
More than 21 but not more than 22 2.00% 4.00%
More than 22 but not more than 23 2.00% 4.00%
More than 23 but not more than 24 2.00% 4.00%
More than 24 but not more than 25 2.00% 4.00%
More than 25 but not more than 26 2.00% 4.00%
More than 26 but not more than 27 2.00% 4.00%
More than 27 but not more than 28 2.00% 4.00%
More than 28 but not more than 29 2.00% 4.00%
More than 29 2.00%] 4.00%]
13
Table 2
MOODY'S SECOND TRIGGER FACTOR FOR INTEREST RATE SWAPS WITH FIXED NOTIONAL
AMOUNTS
[If "Valuation Date" means each Local Business Day, the "Daily Collateral
Posting" column will apply and the Weekly Collateral Posting Column will be
deleted.]
[If "Valuation Date" means the first Local Business Day in each week, the
"Weekly Collateral Posting" column will apply and the Daily Collateral Posting
Column will be deleted.]
REMAINING [DAILY [WEEKLY
WEIGHTED AVERAGE LIFE COLLATERAL COLLATERAL
OF HEDGE IN YEARS POSTING POSTING
- --------------------- ---------- ----------
1 or less 0.50% 0.60%
More than 1 but not more than 2 1.00% 1.20%
More than 2 but not more than 3 1.50% 1.70%
More than 3 but not more than 4 1.90% 2.30%
More than 4 but not more than 5 2.40% 2.80%
More than 5 but not more than 6 2.80% 3.30%
More than 6 but not more than 7 3.20% 3.80%
More than 7 but not more than 8 3.60% 4.30%
More than 8 but not more than 9 4.00% 4.80%
More than 9 but not more than 10 4.40% 5.30%
More than 10 but not more than 11 4.70% 5.60%
More than 11 but not more than 12 5.00% 6.00%
More than 12 but not more than 13 5.40% 6.40%
More than 13 but not more than 14 5.70% 6.80%
More than 14 but not more than 15 6.00% 7.20%
More than 15 but not more than 16 6.30% 7.60%
More than 16 but not more than 17 6.60% 7.90%
More than 17 but not more than 18 6.90% 8.30%
More than 18 but not more than 19 7.20% 8.60%
More than 19 but not more than 20 7.50% 9.00%
More than 20 but not more than 21 7.80% 9.00%
More than 21 but not more than 22 8.00% 9.00%
More than 22 but not more than 23 8.00% 9.00%
More than 23 but not more than 24 8.00% 9.00%
More than 24 but not more than 25 8.00% 9.00%
More than 25 but not more than 26 8.00% 9.00%
More than 26 but not more than 27 8.00% 9.00%
More than 27 but not more than 28 8.00% 9.00%
More than 28 but not more than 29 8.00% 9.00%
More than 29 8.00%] 9.00%]
14
Table 3
MOODY'S SECOND TRIGGER FACTOR FOR TRANSACTION-SPECIFIC HEDGES
[If "Valuation Date" means each Local Business Day, the "Daily Collateral
Posting" column will apply and the Weekly Collateral Posting Column will be
deleted.]
[If "Valuation Date" means the first Local Business Day in each week, the
"Weekly Collateral Posting" column will apply and the Daily Collateral Posting
Column will be deleted.]
REMAINING [DAILY [WEEKLY
WEIGHTED AVERAGE LIFE COLLATERAL COLLATERAL
OF HEDGE IN YEARS POSTING POSTING
- --------------------- ---------- ----------
1 or less 0.65% 0.75%
More than 1 but not more than 2 1.30% 1.50%
More than 2 but not more than 3 1.90% 2.20%
More than 3 but not more than 4 2.50% 2.90%
More than 4 but not more than 5 3.10% 3.60%
More than 5 but not more than 6 3.60% 4.20%
More than 6 but not more than 7 4.20% 4.80%
More than 7 but not more than 8 4.70% 5.40%
More than 8 but not more than 9 5.20% 6.00%
More than 9 but not more than 10 5.70% 6.60%
More than 10 but not more than 11 6.10% 7.00%
More than 11 but not more than 12 6.50% 7.50%
More than 12 but not more than 13 7.00% 8.00%
More than 13 but not more than 14 7.40% 8.50%
More than 14 but not more than 15 7.80% 9.00%
More than 15 but not more than 16 8.20% 9.50%
More than 16 but not more than 17 8.60% 9.90%
More than 17 but not more than 18 9.00% 10.40%
More than 18 but not more than 19 9.40% 10.80%
More than 19 but not more than 20 9.70% 11.00%
More than 20 but not more than 21 10.00% 11.00%
More than 21 but not more than 22 10.00% 11.00%
More than 22 but not more than 23 10.00% 11.00%
More than 23 but not more than 24 10.00% 11.00%
More than 24 but not more than 25 10.00% 11.00%
More than 25 but not more than 26 10.00% 11.00%
More than 26 but not more than 27 10.00% 11.00%
More than 27 but not more than 28 10.00% 11.00%
More than 28 but not more than 29 10.00% 11.00%
More than 29 10.00%] 11.00%]
15
WACHOVIA
SWAP TRANSACTION CONFIRMATION
DATE: January 18, 2007
TO: AmeriCredit Automobile Receivables Trust 2007-A-X (the "Trust" or
"Counterparty")
AmeriCredit Financial Services, Inc.
Attn: Derivatives Operations
801 Cherry Street, Suite 3900
Fort Worth, TX
817-302-7951
FROM: Wachovia Bank, National Association ("Wachovia")
REF. NO. 1692987
Dear Sir or Madam:
The purpose of this letter (this "Confirmation") is to confirm the terms and
conditions of the Transaction entered into between us on the Trade Date
specified below (the "Transaction"). This Confirmation constitutes a
"Confirmation" as referred to in the ISDA Master Agreement specified below.
1. The definitions and provisions contained in (i) the 2000 ISDA Definitions
(the "ISDA Definitions"), as published by the International Swaps and
Derivatives Association, Inc., and (ii) the Indenture dated as of January 9,
2007 (the "Indenture") between Counterparty and Wells Fargo Bank, National
Association, as Indenture Trustee relating to the issuance by Counterparty of
certain debt obligations, are incorporated into this Confirmation. In the event
of any inconsistency between the definitions in the ISDA Definitions and this
Confirmation, this Confirmation will govern. In the event of any inconsistency
between the definitions in the ISDA Definitions and the Indenture, the Indenture
will govern. References herein to a "Transaction" shall be deemed to be
references to a "Swap Transaction" for purposes of the ISDA Definitions.
Capitalized terms used but not defined herein have the meanings ascribed to them
in the Indenture.
This Confirmation supplements, forms a part of, and is subject to, the 1992 ISDA
Master Agreement dated as of January 18, 2007 (including the Schedule thereto)
as amended and supplemented from time to time (the "Agreement") between you and
us. All provisions contained in the Agreement govern this Confirmation except as
expressly modified herein.
2. The terms of the particular Transaction to which the Confirmation relates are
as follows:
Transaction Type: Interest Rate Swap
Currency for Payments: U.S. Dollars
Notional Amount: For the purpose of the Initial Calculation
Period, the Notional Amount will be equal to
the outstanding principal balance of the Class
A-4 Notes of the Trust as of the Closing Date.
The Notional Amount shall reset on each
Distribution Date and will at all times be
equal to the outstanding principal balance of
the Class A-4 Notes of the Trust; provided,
however, that if (a) an Event of Default occurs
under Section 5.1 of the Indenture, (b) the
Insurer exercises its rights to declare the
Notes shall become immediately due and payable
pursuant to Section 5.2 of the Indenture and
(c) as a result the principal balance of the
Class A-4 Notes is reduced to zero,
(collectively, "XL Acceleration Event" ), then
notwithstanding the foregoing, the Notional
Amount for such Distribution Date and for each
Distribution Date thereafter, through and
including the Distribution Date occurring in
October 2010, shall mean the Notional Amount
set forth on the attached Schedule A ( the
"Scheduled Notional Amount" for such
Distribution Date, assuming that Schedule A has
been adjusted in accordance with the next two
sentences.
On the Distribution Date immediately following
an XL Acceleration Event, if the Notional
Amount (calculated as equal to the outstanding
principal balance of the Class A-4 Notes
without giving effect to any principal
reduction as stated in (a), (b) or (c) above
(the "Note Balance Notional Amount")) is
smaller than the Scheduled Notional Amount for
such Distribution Date the (1) the Scheduled
Notional Amount for such Distribution Date
shall be reduced to equal the Note Balance
Notional Amount calculated above and (2) the
Scheduled Notional Amount for each subsequent
Distribution Date shall be multiplied by a
percentage equivalent of a fraction equal to:
(a) the Note Balance Notional Amount
immediately following an XL Acceleration Event,
over (b) the Scheduled Notional Amount
immediately following an XL Acceleration Event.
On the Distribution Date following an XL
Acceleration Event, if the Note Balance
Notional Amount is greater than or equal to the
Scheduled Notional Amount no adjustment shall
be made.
With respect to any Distribution Date, the
outstanding balance of the Notes will be
determined using the Servicer's Certificate
issued with respect to such Distribution Date
(before giving effect to all distributions to
be made on such Distribution Date).
Term:
Trade Date: January 18, 2007
Effective Date: January 18, 2007
Termination Date: The earlier of (i) the October 7, 2013
Distribution Date Date and (ii) the date on
which the Note Balance of the Class A-4 Notes
is reduced to zero (unless such outstanding
principal balance is reduced to zero due to the
occurrence of an XL Acceleration Event).
Fixed Amounts:
Fixed Rate Payer: Counterparty
Period End Dates: Monthly on the 6th of each month, commencing
February 6, 2007, through and including the
Termination Date, subject to adjustment in
accordance with the Following Business Day
Convention.
Payment Dates: Monthly on the 6th of each month, commencing
February 6, 2007, through and including the
Termination Date, subject to adjustment in
accordance with the Following Business Day
Convention.
Business Day Convention: Following
Business Day: New York
Fixed Rate: 5.025%
Fixed Rate Day Count
Fraction: Actual/360
Floating Amounts:
Floating Rate Payer: Wachovia
Period End Dates: Monthly on the 6th of each month, commencing
February 06, 2007, through and including the
Termination Date, subject to adjustment in
accordance with the Following Business Day
Convention.
Payment Dates: Monthly on the 6th of each month, commencing
February 06, 2007, through and including the
Termination Date, subject to adjustment in
accordance with the Following Business Day
Convention.
Business Day Convention: Following
Business Day: New York
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 Month
Spread: Plus 4 basis points (0.04%).
Floating Rate Day Count
Fraction: Actual/360
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable
3. The additional provisions of this Confirmation are as follows:
Calculation Agent: As defined in the Agreement
Payments to Wachovia: Name: Wachovia Bank, N.A./Charlotte
ABA 053-000-219
Account #: 04659360006116
FAO: Capital Markets Group
Ref: Derivative Desk (Trade No.: 1692987)
Payments to Counterparty: Wells Fargo Corporate Trust
ABA: 12-1000248
Account: 0001038377
FFC: Acct 20871801 AMCAR 07 AX
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing a copy of this Confirmation and returning it to us.
Very truly yours,
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Kim V. Farr
------------------------------------
Name: Kim V. Farr
Title: Director
Accepted and confirmed as of the date
first above written:
AMERICREDIT AUTOMOBILE RECEIVABLES
TRUST 2007-A-X
BY: AmeriCredit Financial Services,
Inc. as Attorney-In-Fact
By: /s/ Susan B. Sheffield
---------------------------------
Name: Susan B. Sheffield
Title: Senior Vice-President,
Structured Finance
Schedule A
CALCULATION PERIOD USD NOTIONAL AMOUNT USD NOTIONAL REDUCTION
- ---------------------- ------------------- ----------------------
(from and including, (at end of period)
to but excluding)
18 Jan 07 to 06 Feb 07 387,000,000.00 0.00
06 Feb 07 to 06 Mar 07 387,000,000.00 0.00
06 Mar 07 to 06 Apr 07 387,000,000.00 0.00
06 Apr 07 to 07 May 07 387,000,000.00 0.00
07 May 07 to 06 Jun 07 387,000,000.00 0.00
06 Jun 07 to 06 Jul 07 387,000,000.00 0.00
06 Jul 07 to 06 Aug 07 387,000,000.00 0.00
06 Aug 07 to 06 Sep 07 387,000,000.00 0.00
06 Sep 07 to 09 Oct 07 387,000,000.00 0.00
09 Oct 07 to 06 Nov 07 387,000,000.00 0.00
06 Nov 07 to 06 Dec 07 387,000,000.00 0.00
06 Dec 07 to 07 Jan 08 387,000,000.00 0.00
07 Jan 08 to 06 Feb 08 387,000,000.00 0.00
06 Feb 08 to 06 Mar 08 387,000,000.00 0.00
06 Mar 08 to 07 Apr 08 387,000,000.00 0.00
07 Apr 08 to 06 May 08 387,000,000.00 0.00
06 May 08 to 06 Jun 08 387,000,000.00 0.00
06 Jun 08 to 07 Jul 08 387,000,000.00 0.00
07 Jul 08 to 06 Aug 08 387,000,000.00 0.00
06 Aug 08 to 08 Sep 08 387,000,000.00 0.00
08 Sep 08 to 06 Oct 08 387,000,000.00 0.00
06 Oct 08 to 06 Nov 08 387,000,000.00 0.00
06 Nov 08 to 08 Dec 08 387,000,000.00 0.00
08 Dec 08 to 06 Jan 09 387,000,000.00 0.00
06 Jan 09 to 06 Feb 09 387,000,000.00 0.00
06 Feb 09 to 06 Mar 09 387,000,000.00 0.00
06 Mar 09 to 06 Apr 09 387,000,000.00 0.00
06 Apr 09 to 06 May 09 387,000,000.00 0.00
06 May 09 to 08 Jun 09 387,000,000.00 0.00
08 Jun 09 to 06 Jul 09 387,000,000.00 6,121,983.00
06 Jul 09 to 06 Aug 09 380,878,017.00 21,141,009.00
06 Aug 09 to 08 Sep 09 359,737,008.00 20,688,912.00
08 Sep 09 to 06 Oct 09 339,048,096.00 20,226,270.00
06 Oct 09 to 06 Nov 09 318,821,826.00 19,752,870.00
06 Nov 09 to 07 Dec 09 299,068,956.00 19,268,498.00
07 Dec 09 to 06 Jan 10 279,800,458.00 18,772,937.00
06 Jan 10 to 08 Feb 10 261,027,521.00 18,265,966.00
08 Feb 10 to 08 Mar 10 242,761,555.00 17,747,356.00
08 Mar 10 to 06 Apr 10 225,014,199.00 17,216,879.00
06 Apr 10 to 06 May 10 207,797,320.00 16,674,299.00
06 May 10 to 07 Jun 10 191,123,021.00 16,119,380.00
07 Jun 10 to 06 Jul 10 175,003,641.00 15,551,874.00
06 Jul 10 to 06 Aug 10 159,451,767.00 14,971,539.00
06 Aug 10 to 07 Sep 10 144,480,228.00 14,378,118.00
07 Sep 10 to 06 Oct 10 130,102,110.00 130,102,110.00
06 Oct 10 To 07 Oct 13 0.00 0.00