Exhibit 10.3
SCHEDULE to the ISDA Master Agreement
Dated as of March 13, 2002
between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERVICES INC. ("MSCS")
and
MMCA AUTO OWNER TRUST 2002-1 (the "Trust")
Part 1 Termination Provisions.
(a) "Specified Entity" means:
(i) in relation to MSCS: Not Applicable.
(ii) in relation to the Trust: Not Applicable.
(b) "Specified Transaction" shall have the meaning specified in
Section 14 of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) will not
apply to MSCS or to the Trust.
(d) The "Credit Support Default" provisions of Section 5(a)(iii), if
applicable, will apply to MSCS and will not apply to the Trust.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) will not
apply to MSCS or to the Trust.
(f) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to MSCS or to the Trust.
(g) The "Cross Default" provisions of Section 5(a)(vi) will not apply
to MSCS or to the Trust.
(h) The "Merger Without Assumption" provisions of Section 5(a)(viii)
will apply to MSCS and will apply to the Trust.
(i) The "Tax Event" provision of Section 5(b)(ii) will apply to MSCS
and will not apply to the Trust, so that only the Trust may
designate an Early Termination Date in respect of such event.
(j) The "Tax Event Upon Merger" provision of Section 5(b)(iii) will
apply to MSCS and will not apply to the Trust, so that only the
Trust may designate an Early Termination Date in respect of such
event.
(k) The "Credit Event Upon Merger" provision in Section 5(b)(iv), will
not apply to MSCS or to the Trust.
(l) The "Automatic Early Termination" provision of Section 6(a) will
not apply to MSCS or to the Trust.
(m) Payments on Early Termination. For the purpose of Section 6(e) of
this Agreement:
(i) Market Quotation will apply unless the Trust is the
Non-defaulting Party or the party which is not the
Affected Party, as the case may be, and the Trust enters
into a replacement Transaction on or prior to the Early
Termination Date, in which event Loss will apply.
(ii) The Second Method will apply, provided, however, that any
payments payable by the Trust to MSCS hereunder will be
pari passu and pro rata with payments of interest made on
the Class A-4 Notes from Total Available Funds pursuant
to Section 2.8 of the Indenture.
(n) "Termination Currency" means United States Dollars.
(o) "Additional Termination Event". The following shall constitute an
Additional Termination Event:
(i) Acceleration or Liquidation of the Notes. It shall be an
Additional Termination Event with the Trust the sole
Affected Party if MSCS or the Trust elects to terminate
the Transactions (1) following an Event of Default as
defined in Section 5.1(i) or Section 5.1(ii) of the
Indenture which has resulted in an acceleration of the
Notes, provided such acceleration has not been rescinded
and annulled pursuant to Section 5.2(b) of the Indenture,
or (2) upon a liquidation of the Trust Estate pursuant to
Section 5.4(a)(iv) or Section 5.4(b) of the Indenture. In
such event, either MSCS or the Trust may, by not more
than 20 days notice to the other party and provided such
Additional Termination Event is continuing, designate a
day not earlier than the day such notice is effective as
an Early Termination Date in respect of all Affected
Transactions. If an event or circumstance which would
constitute an Event of Default by MSCS under this
Agreement gives rise to an Event of Default under the
Indenture, it will be treated as an Event of Default by
MSCS and not an Additional Termination Event.
(ii) Amendments Made Without Consent of MSCS. It shall be an
Additional Termination Event if any amendment or
supplement to the Indenture or to any of the Receivables
Transfer and Servicing Agreements which would materially
adversely affect any of MSCS' rights or obligations under
this Agreement or modify the obligations of, or impair
the ability of the Trust to fully perform any of the
Trust's obligations under, this Agreement is made without
the consent of MSCS, which consent shall not be
unreasonably withheld (in which case the Trust will be
the Affected Party).
(iii) Downgrade of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co ("MSDW"). It
shall be an Additional Termination Event with MSCS the
Affected Party if:
(1) the long-term or the short-term Credit Rating of
MSDW is suspended or withdrawn or downgraded below
"A" or "F1," respectively, by Fitch Ratings and,
within 30 days of such suspension, withdrawal or
downgrade MSCS shall fail to (a) deliver or post
collateral reasonably acceptable to the Trust and
acceptable to Fitch Ratings in amounts sufficient
or in accordance with the standards of Fitch
Ratings (as such standards may be modified while
any Transaction is still outstanding), to secure
its obligations under this Agreement, (b) assign
its rights and obligations under this Agreement to
a replacement counterparty reasonably acceptable to
the Trust and to Fitch Ratings or (c) establish
other arrangements necessary (including, without
limitation, causing an entity with ratings such
that if MSCS or its Credit Support Provider had
such ratings, this Additional Termination Event
would not have occurred, to guarantee or provide an
indemnity in respect of MSCS' or its Credit Support
Provider's obligations under this Agreement in form
and substance reasonably satisfactory to Fitch
Ratings), if any, in each case so that Fitch
Ratings confirms the ratings of the Notes that were
in effect immediately prior to such suspension,
withdrawal or downgrade;
(2) the short-term Credit Rating of MSDW is downgraded
below "A-1" by S&P, and MSDW shall fail to (a) use
reasonable efforts to assign (at its own cost or
benefit) its rights and obligations under this
Agreement to a replacement counterparty acceptable
to the Trust and to S&P and (b) if such an
assignment has not occurred within 30 days of such
downgrade, fail to deliver or post collateral
reasonably acceptable to the Trust and sufficient
to satisfy the Rating Agency Condition with respect
to S&P (as designated in an approved Credit Support
Annex) to secure its obligations under this
Agreement; provided, that notwithstanding the
posting of the collateral and the addition of the
Credit Support Annex, MSDW shall continue to use
reasonable efforts to assign its rights and
obligations under this Agreement to a replacement
counterparty; or
(3) the long-term Credit Rating of MSDW is suspended or
withdrawn or downgraded below "A2" by ▇▇▇▇▇'▇ and,
within 30 days of such suspension, withdrawal or
downgrade MSCS shall fail to (a) deliver or post
collateral reasonably acceptable to the Trust and
acceptable to ▇▇▇▇▇'▇ in amounts sufficient or in
accordance with the standards of ▇▇▇▇▇'▇ (as such
standards may be modified while any Transaction is
still outstanding), to secure its obligations under
this Agreement, (b) assign its rights and
obligations under this Agreement to a replacement
counterparty reasonably acceptable to the Trust and
to ▇▇▇▇▇'▇ or (c) establish other arrangements
necessary (including, without limitation, causing
an entity with ratings such that if MSCS or its
Credit Support Provider had such ratings, this
Additional Termination Event would not have
occurred, to guarantee or provide an indemnity in
respect of MSCS' or its Credit Support Provider's
obligations under this Agreement in form and
substance reasonably satisfactory to ▇▇▇▇▇'▇), if
any, in each case so that ▇▇▇▇▇'▇ confirms the
ratings of the Notes that were in effect
immediately prior to such suspension, withdrawal or
downgrade.
Part 2 Tax Representations.
(a) Payer Tax Representations. For the purposes of Section 3(e) of
this Agreement, MSCS and the Trust will each make the following
representations to the other:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for or
on account of any Tax from any payment (other than interest under
Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by it
to the other party under this Agreement. In making this
representation, each party may rely on:
(i) the accuracy of any representations made by the other
party pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement of the other party
contained in Section 4(a)(i) or 4(a)(iii) of this
Agreement and the accuracy and effectiveness of any
document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement, and
(iii) the satisfaction of the agreement of the other party
contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation
where reliance is placed on clause (ii) and the other party does
not deliver a form or document under Section 4(a)(iii) by reason
of material prejudice to its legal or commercial position.
(b) Payee Tax Representations.
(i) For the purpose of Section 3(f) of this Agreement, MSCS
represents to the Trust that it is a corporation
organized under the laws of the State of Delaware.
(ii) For the purpose of Section 3(f) of this Agreement, the
Trust represents to MSCS that it is a business trust
organized and existing under the laws of the State of
Delaware.
(iii) MSCS represents that it is an exempt recipient under
Treasury Regulation Section 1.6049-4(c)(1)(ii), and the
Trust represents that it is wholly-owned by a "United
States person" and disregarded as an entity separate from
its owner for U.S. federal tax purposes.
Part 3 Documents to be delivered.
(a) For the purpose of Section 4(a)(i), the documents to be delivered are:
Party required to Form/Document/ Date by which to be delivered Section 3(d)
deliver document Certificate Representation
MSCS and the Trust An executed United States (i) Upon execution of this Applicable
Internal Revenue Service Form Agreement, (ii) promptly upon
W-9 (or any successor reasonable demand by the
thereto). other party and (iii) promptly
upon learning that any such
form previously provided by
such party has become obsolete
or incorrect.
(b) For the purposes of Section 4(a)(ii), the other documents to be delivered are as follows:
Party required to Form/Document/ Date by which to be delivered Section 3(d)
deliver document Certificate representation:
MSCS and the Trust Evidence of the Upon or prior to the execution Applicable
authority, incumbency and and delivery of this Agreement
specimen signature of and, with respect to any
each person executing Confirmation upon request by
this Agreement or any the other party.
Confirmation, Credit
Support Document or other
document entered into in
connection with this
Agreement on its behalf
or on behalf of a Credit
Support Provider or
otherwise, as the case
may be.
The Trust Certified copies of As soon as practicable after Applicable
documents evidencing each the execution of this Agreement
Party's capacity to
execute and deliver this
Agreement, the
Confirmation and any
Credit Support Document
(if applicable), and to
perform its obligations
hereunder or thereunder
as may be reasonably
requested by the other
party.
MSCS A copy of the annual Promptly after request by the Applicable
report of its Credit Trust.
Support Provider,
including annual audited
financial statements of
its Credit Support
Provider prepared in
accordance with generally
accepted accounting
principles in the country
in which its Credit
Support Provider is
organized.
The Trust Monthly reports to On or prior to each Monthly Applicable
noteholders and to Payment Date.
holders of the
certificate (and all
other such notices
required to be given to
noteholders and to
holders of the
certificate, as specified
in the Indenture).
MSCS and the Trust A legal opinion in form On or prior to the Closing Not Applicable
and substance Date.
satisfactory to the other
party.
The Trust A copy of the executed As soon as practical after the Not Applicable
Indenture and of each of Closing Date.
the Receivables Transfer
and Servicing Agreements.
MSCS and the Trust Such other documents as Promptly upon request of the Not Applicable
the other party may other party.
reasonably request.
Part 4 Miscellaneous.
(a) Address for Notices. For the purpose of Section 12(a) of this
Agreement, the addresses for notices and communications to MSCS and
the Trust shall be as follows:
TO MSCS:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Fixed Income Derivatives -
Transaction Management Manager
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co.
1221 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ (Fixed Income Derivatives)
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Fixed Income Derivatives - Corporate Derivatives
Group Manager
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TO THE TRUST:
MMCA Auto Owner Trust 2002-1
c/o Wilmington Trust Company,
as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Process Agent. For the purposes of Section 13(c) of this Agreement:
MSCS appoints as its Process Agent: Not Applicable
The Trust appoints as its Process Agent: Not Applicable
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For purposes of Section 10(c) of this Agreement:
(i) MSCS is not a Multibranch Party.
(ii) The Trust is not a Multibranch Party.
(e) The Calculation Agent shall be MSCS.
(f) Credit Support Documents.
"Credit Support Document" means a credit support annex, if any,
and any other document which by its terms secures, guarantees or otherwise
supports either or both parties' obligations under this Agreement,
including, but not limited to, the guarantee of MSDW.
(g) Credit Support Provider.
Credit Support Provider means, in relation to MSCS, MSDW. Credit
Support Provider means, in relation to the Trust, Not Applicable.
(h) Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York
(without reference to its choice of law doctrine) except that the
capacity, power or authority of the Trust to enter into this
Agreement and any issue relating to the interpretation of the
Trust's Trust Agreement will be governed and construed in
accordance with the laws of the State of Delaware.
(i) "Affiliate" will have the meaning specified in Section 14 of this
Agreement, but as to the Trust, "Affiliate" will not include the
Owner Trustee, the Indenture Trustee or Mitsubishi Motors Credit
of America, Inc. and as to MSCS, "Affiliate" shall not include
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Derivative Products Inc.
Part 5 Other Provisions.
(a) Representations.
(i) Non-Reliance, Etc. Each party will be deemed to represent
to the other party on the date that it enters into a
Transaction that (absent a written agreement between the
parties that expressly imposes affirmative obligations to
the contrary for that Transaction):
(1) Non-Reliance. It is acting for its own account, and
it has made its own independent decisions to enter
into that Transaction and as to whether that
Transaction is appropriate or proper for it based
upon its own judgment and upon advice from such
advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of
the other party as investment advice or as a
recommendation to enter into that Transaction; it
being understood that information and explanations
related to the terms and conditions of a
Transaction shall not be considered to be
investment advice or a recommendation to enter into
that Transaction. No communication (written or
oral) received from the other party shall be deemed
to be an assurance or guarantee as to the expected
results of that Transaction.
(2) Assessment and Understanding. It is capable of
assessing the merits of and understanding (on its
own behalf or through independent professional
advice), and understands and accepts the terms and
conditions and risks of that Transaction. It is
also capable of assuming, and assumes, the risks of
that Transaction.
(3) Status of Parties. The other party is not acting as
a fiduciary for or adviser to it in respect of that
Transaction.
(ii) Commodity Exchange Act. Each party represents to the
other party on and as of the date hereof and on each date
on which a Transaction is entered into between them that:
(1) each Transaction is intended to be exempt from, or
otherwise not subject to regulation under, the
Commodity Exchange Act; and
(2) such party is an "eligible contract participant"
within the meaning of the United States Commodity
Exchange Act.
(b) Consent to Recording.
Each party consents to the recording of the telephone
conversations of trading and marketing and/or other personnel of
the parties and their Affiliates in connection with this
Agreement.
(c) Section 3(a)(iii) is hereby amended by inserting the words "or
investment policies, guidelines, procedures or restrictions"
immediately following the word "documents."
(d) Tax Provisions.
(i) The definition of Tax Event, Section 5(b)(ii), is hereby
modified by adding the following provision at the end
thereof:
"provided, however, that for purposes of clarification,
the parties acknowledge that the introduction or proposal
of legislation shall not, in and of itself, give rise to
a presumption that a Tax Event has occurred."
(ii) The Trust will not be required to pay additional amounts
in respect of an Indemnifiable Tax or be under any
obligation to pay to MSCS any amount in respect of any
liability of MSCS for or on account of any Tax.
(e) No Set Off.
Notwithstanding any setoff right contained in any other
agreement between the Trust or any Affiliate or Credit Support
Provider of the Trust, on the one hand, and MSCS or any Affiliate
or Credit Support Provider of the Trust, on the other, whether now
in existence or hereafter entered into unless such agreement shall
specifically refer to this paragraph (e), each party agrees that
all payments required to be made by it under this Agreement shall
be made without setoff or counterclaim for, and that it shall not
withhold payment or delivery under this Agreement in respect of,
any default by the other party or any Affiliate or Credit Support
Provider of the other party under any such other agreement or any
amount relating to any such other agreement. For purposes of this
paragraph (e), "Affiliate" shall have the meaning specified in
Section 14 of this Agreement.
(f) Additional Acknowledgments and Agreements of the Parties.
(i) Financial Statements. Notwithstanding Section 5(a)(ii),
the failure of either party to deliver any financial
statement or monthly report referenced in Part 3 of this
Schedule shall not constitute an Event of Default under
Section 5(a)(ii).
(ii) Bankruptcy Code. Without limiting the applicability, if
any, of any other provision of the U.S. Bankruptcy Code
as amended (the "Bankruptcy Code") (including without
limitation Sections 362, 546, 556, and 560 thereof and
the applicable definitions in Section 101 thereof), the
parties acknowledge and agree that all Transactions
entered into hereunder will constitute "forward
contracts" or "swap agreements" as defined in Section 101
of the Bankruptcy Code or "commodity contracts" as
defined in Section 761 of the Bankruptcy Code, that the
rights of the parties under Section 6 of this Agreement
will constitute contractual rights to liquidate
Transactions, that any margin or collateral provided
under any margin, collateral, security, pledge, or
similar agreement related hereto will constitute a
"margin payment" as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities
entitled to the rights under, and protections afforded
by, Sections 362, 546, 556, and 560 of the Bankruptcy
Code.
(iii) Regarding MSCS. MSCS represents that the description of
MSCS as set forth on page 53 of the Prospectus dated
March 8, 2002 has been furnished and approved by MSCS and
is true and correct as of the date hereof.
(iv) Non-Petition. MSCS covenants and agrees that it will not,
prior to the date which is one year and one day following
the payment in full of all of the Notes and the
Certificate and the expiration of all applicable
preference periods under the United States Bankruptcy
Code or other applicable law relating to any such
payment, acquiesce, petition or otherwise invoke the
process of any governmental or judicial authority for the
purpose of commencing a case (whether voluntary or
involuntary), cause any other person to commence a case
or join any other person in commencing a case against the
Trust under any bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the
Trust or any substantial part of its property or ordering
the winding up or liquidation of the affairs of the
Trust. MSCS agrees that it has recourse against the Trust
only to the extent of the assets of the Trust and the
proceeds thereof, and any claims against the Trust shall
be extinguished when the assets of the Trust are
exhausted.
(v) Transfer. Notwithstanding the provisions of Section 7,
MSCS may assign its rights and delegate its obligations
under any Transaction, in whole or in part, to any
Affiliate of MSCS (an "Assignee"), effective (the
"Effective Transfer Date") upon delivery to Counterparty
of both (a) an executed acceptance and assumption by the
Assignee of the transferred obligations of MSCS under the
Transaction(s) (the "Transferred Obligations"); and (b)
an executed guarantee of MSDW, of the Transferred
Obligations, substantially identical to the Credit
Support Document with respect to MSCS; provided that (x)
no such transfer to an Assignee shall occur if (i)
Counterparty shall, as a result of such transfer, be
required to pay to MSCS or the Assignee an amount in
respect of an Indemnifiable Tax under Section 2(d)(i)(4)
(except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) greater than the amount in respect of
which Counterparty would have been required to pay to
MSCS in the absence of such transfer; (ii) MSCS or the
Assignee shall, as a result of such transfer, be required
to withhold or deduct on account of a Tax under Section
2(d)(i) (except in respect of interest under Section
2(e), 6(d)(ii) or 6(e)) an amount in excess of that which
MSCS would have been required to withhold or deduct in
the absence of such transfer, unless the Assignee would
be required to make additional payments pursuant to
Section 2(d)(i)(4) corresponding to such excess; or (iii)
an Event of Default, Potential Event of Default or
Termination Event would occur hereunder as a result of
such transfer; (y) MSCS shall pay any fees and expenses
incurred by or on the part of either party as a result of
such transfer; and (z) no such transfer to an Assignee
shall occur unless the Rating Agencies confirm that such
transfer will not cause the reduction, suspension or
withdrawal of their then current rating on any of the
Notes.
On the Effective Transfer Date, (a) MSCS shall be
released from all obligations and liabilities arising
under the Transferred Obligations; and (b) the
Transferred Obligations shall cease to be Transaction(s)
under this Agreement and shall be deemed to be
Transaction(s) under the ISDA Master Agreement between
Assignee and Counterparty, provided that, if, on the
Effective Transfer Date, Assignee and Counterparty have
not entered into an ISDA Master Agreement, Assignee and
Counterparty shall be deemed to have entered into an ISDA
Master Agreement that is substantially identical to this
Agreement, including this Schedule. At least ten Business
Days prior to any such transfer MSCS shall notify
Counterparty in writing of its intent to transfer its
rights and delegate its obligations hereunder in
accordance with the terms hereof, and shall state in
writing that such transfer shall conform to the
requirements of this Part 5(e)(iv), whereupon
Counterparty shall promptly notify each Rating Agency of
such transfer.
(vi) The Trust Pledge. Notwithstanding Section 7 of this
Agreement to the contrary, MSCS acknowledges that the
Trust will pledge its rights under this Agreement to the
Indenture Trustee (as defined in the Indenture) for the
benefit of the Noteholders (as defined in the Indenture)
pursuant to the Indenture and agrees to such pledge. The
Indenture Trustee shall not be deemed to be a party to
this Agreement, provided, however, that the Indenture
Trustee, acting on behalf of the holders of the Notes,
shall have the right to enforce this Agreement against
MSCS. MSCS shall be entitled to rely on any notice or
communication from the Indenture Trustee to that effect.
MSCS acknowledges that the Trust will pledge
substantially all its assets to the Indenture Trustee for
the benefit of the Noteholders and MSCS and that all
payments hereunder, including payments on early
termination, will be made in accordance with the priority
of payment provisions of the Indenture and the Sale and
Servicing Agreement and on the Payment Dates specified
therein.
(vii) Limited Recourse. The liability of the Trust in relation
to this Agreement and any Transaction hereunder is
limited in recourse to the assets of the Trust and
proceeds thereof applied in accordance with the Indenture
and the Sale and Servicing Agreement. With respect to any
amounts payable to MSCS by the Trust under this
Agreement, such amounts shall be limited to the Total
Available Funds as provided in and subject to Section
2.8(a) of the Indenture. Upon exhaustion of the assets of
the Trust and proceeds thereof in accordance with the
Indenture and the Sale and Servicing Agreement, MSCS
shall not be entitled to take any further steps against
the Trust to recover any sums due but still unpaid
hereunder or thereunder, all claims in respect of which
shall be extinguished. No recourse may be taken for the
payment of any amount owing in respect of any obligation
of, or claim against, the Trust arising out of or based
upon this Agreement or any Transaction hereunder against
any holder of a beneficial interest, employee, officer or
Affiliate thereof and no recourse shall be taken for the
payment of any amount owing in respect of any obligation
of, or claim against, the Trust based upon or arising out
of this Agreement against the Administrator, the Seller,
the Servicer, the Indenture Trustee, the Owner Trustee or
any stockholder, holder of a beneficial interest,
employee, officer, director, incorporator or Affiliate
thereof; provided, however, that the foregoing shall not
relieve any such person or entity from any liability they
might otherwise have as a result of willful misconduct,
bad faith or negligence.
In furtherance of and not in derogation of the foregoing,
MSCS acknowledges and agrees that it shall have no right,
title or interest hereunder in or to the Other Assets of
the Seller. To the extent that, notwithstanding the
agreements and provisions contained in the preceding
paragraph, MSCS either (i) asserts hereunder an interest
or claim to, or benefit from, Other Assets, or (ii) is
deemed hereunder to have any such interest, claim to, or
benefit in or from Other Assets, whether by operation of
law, legal process, pursuant to applicable provisions of
insolvency laws or otherwise (including by virtue of
Section 1111(b) of the Bankruptcy Code or any successor
provision having similar effect under the Bankruptcy
Code), then MSCS further acknowledges and agrees that any
such interest, claim or benefit in or from Other Assets
is and shall be expressly subordinated to the
indefeasible payment in full, which, under the terms of
the relevant documents relating to the securitization or
conveyance of such Other Assets, are entitled to be paid
from, entitled to the benefits of, or otherwise secured
by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise
entitled to a priority of distributions or application
under applicable law, including insolvency laws, and
whether or not asserted against the Seller), including
the payment of post-petition interest on such other
obligations and liabilities. This subordination agreement
shall be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. The
Trust further acknowledges and agrees that no adequate
remedy at law exists for a breach of this Part 5(e)(vii)
and the terms of this Part 5(e)(vii) may be enforced by
an action for specific performance. The provisions of
this Part 5(e)(vii) shall be for the third party benefit
of those entitled to rely thereon and shall survive the
termination of this Agreement.
(viii) No Amendment without Prior Confirmation by Rating
Agencies. Section 9(b) of this Agreement is hereby
amended by adding the following at the end of such
Section: ", and unless the Rating Agencies confirm that
such amendment will not cause the reduction, suspension
or withdrawal of their then current rating on any of the
Notes, unless such amendment clarifies any term or
provision, corrects any inconsistency, cures any
ambiguity, or corrects any typographical error in the
Agreement."
(ix) Consent by MSCS to Amendments to Certain Documents.
Before any amendment or supplement is made to the
Receivables Transfer and Servicing Agreements or to the
Indenture which would adversely affect any of MSCS'
rights or obligations under this Agreement or modify the
obligations of, or impair the ability of the Trust to
fully perform any of the Trust's obligations under, this
Agreement, the Trust shall provide MSCS with a copy of
the proposed amendment or supplement and shall obtain the
consent of MSCS to such amendment or supplement prior to
its adoption, which consent shall not be unreasonably
withheld; provided that so long as a copy of the proposed
amendment or supplement has been delivered in accordance
with Section 12 of the Agreement to each of the parties
listed in Part 4(a) (Address for Notices) with respect to
MSCS and makes clear that MSCS has no longer than ten
Business Days to object to such amendment or supplement,
MSCS' consent will be deemed to have been given if MSCS
does not object in writing within ten Business Days of
receipt of a written request for such consent.
(x) Severability. If any term, provision, covenant, or
condition of this Agreement, or the application thereof
to any party or circumstance, shall be held to be invalid
or unenforceable (in whole or in part) for any reason,
the remaining terms, provisions, covenants, and
conditions hereof shall continue in full force and effect
as if this Agreement had been executed with the invalid
or unenforceable portion eliminated, so long as this
Agreement as so modified continues to express, without
material change, the original intentions of the parties
as to the subject matter of this Agreement and the
deletion of such portion of this Agreement will not
substantially impair the respective benefits or
expectations of the parties to this Agreement; provided,
however, that this severability provision shall not be
applicable if any provision of Section 1, 2, 5, 6 or 13
(or any definition or provision in Section 14 to the
extent it relates to, or is used in connection with, any
such Section) shall be so held to be invalid or
unenforceable.
(g) Waiver of Right to Trial by Jury. Each of the parties hereby
irrevocably waives any and all right to a trial by jury with
respect to any legal proceeding arising out of or relating to this
Agreement or any Transaction.
(h) Limited Transactions. MSCS and the Trust each agrees and
acknowledges that the only Transactions that are or will be
governed by this Agreement are the Transactions evidenced by the
Confirmation dated the date hereof.
(i) Notices to Noteholders. The Trust shall provide MSCS with copies
of all notices required to be given to the holders of the Notes,
and upon request, shall provide MSCS with any other notices which
could be requested by the holders of the Notes.
(j) Further Representations of the Trust:
(i) The Class A-4 Notes are rated "Aaa" by ▇▇▇▇▇'▇ Investor
Services, Inc., "AAA" by S&P and "AAA" by Fitch Ratings
as to the timely payment of interest and principal and
without regard to third party credit enhancement.
(ii) All conditions precedent to the issuance of the Notes
under the Indenture have been satisfied.
(iii) Each of the documents to which it is a party has been
duly authorized, executed and delivered by it.
(iv) Assuming the due authorization, execution and delivery
thereof by the other parties thereto, each of the
Indenture and the other documents to which the Trust is a
party constitutes the legal, valid and binding
obligations of the Trust, enforceable against the Trust
in accordance with the terms thereof, subject to
applicable bankruptcy, insolvency and similar laws or
legal principles affecting creditors' rights generally,
and subject, as to enforceability, to general principles
of equity regardless of whether enforcement is sought in
a proceeding in equity or at law.
(v) The Indenture and the other documents to which the Trust
is a party are in full force and effect on the date
hereof and there have been no amendments or waivers or
modifications of any of the terms thereof since the
original execution and delivery of the Indenture and the
other documents to which the Trust is a party, except
such as may have been delivered to the Trust.
(vi) To the best of its knowledge no event of default or event
which would with the passage of time or the giving of
notice constitute an event of default has occurred and is
continuing under any of the documents to which the Trust
is a party.
(k) Immunity of Persons Related to the Trust. No representation or
agreement contained in this Agreement shall be deemed to be the
covenant or agreement of any trustee, officer, attorney, agent or
employee of the Trust, Mitsubishi Motors Credit of America, Inc.,
any Affiliate thereof or any Credit Support Provider thereof in an
individual capacity.
(l) Limitation of Trustee's Liability. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed
and delivered by Wilmington Trust Company, not individually nor as
a party to this Agreement, but solely as Owner Trustee of the
Trust, in the exercise of the powers and authority conferred and
vested in it, (b) the representations, undertakings and agreements
herein made on the part of the Trust are made and intended not as
personal representations, undertakings and agreements by
Wilmington Trust Company, but are made and intended for the
purpose of binding only the Trust, (c) nothing herein contained
shall be construed as creating any liability of Wilmington Trust
Company, individually, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being
expressly waived by the parties who are signatories to this
Agreement and by any person claiming by, through or under such
parties and (d) under no circumstances shall Wilmington Trust
Company be personally liable for the payment of any indebtedness
of the Trust or expenses of MSCS or the Trust or be liable for the
breach or failure of any obligation, representation, warranty or
covenant, made or undertaken by the Trust under this Agreement.
(m) Netting of Payments. Clause (ii) of Section 2(c) will not apply to
any amounts payable with respect to Transactions from the date of
this Agreement.
(n) Additional Swap Agreements. The Trust agrees that it will not
enter into additional swap agreements (other than any swap
agreement in replacement of any Transaction hereunder) without (i)
the express prior written consent of MSCS, which consent shall not
be unreasonably withheld and (ii) Rating Agency Confirmation.
(o) Notices. Section 12(a) is amended by adding in the third line
thereof after the phrase "messaging system" and before the ")" the
words, "; provided, however, any such notice or other
communication may be given by facsimile transmission if telex is
unavailable, no telex number is supplied to the party providing
notice, or if answer back confirmation is not received from the
party to whom the telex is sent."
(p) Additional Definitions.
"Administration Agreement" shall mean the administration
agreement dated as of March 1, 2002, as amended, supplemented or
otherwise modified and in effect, by and among the Trust,
Mitsubishi Motors Credit of America, Inc., and Bank of
Tokyo-Mitsubishi Trust Company.
"Administrator" shall have the meaning assigned thereto
in the Administration Agreement.
"Business Day" shall mean any day other than a Saturday,
a Sunday or a day on which banking institutions or trust companies
in New York, New York, Wilmington, Delaware or Los Angeles,
California are authorized or obligated by law, regulation or
executive order to remain closed.
"Certificate" means the Certificate issued by the Trust
pursuant to the Trust Agreement.
"Class A-4 Notes" means the Class A-4 Notes issued by the
Trust pursuant to the Indenture.
"Closing Date" shall mean March 13, 2002.
"Credit Rating" means, with respect to MSCS, the issuer
rating of the head office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co.
without regard to whether or not such rating is under review with
positive or negative implications.
"Fitch" shall mean Fitch, Inc., doing business as Fitch
Ratings.
"Indenture" shall mean the indenture dated as of March 1,
2002, as amended, supplemented or otherwise modified and in
effect, between the Trust and Bank of Tokyo-Mitsubishi Trust
Company, as Indenture Trustee.
"Indenture Trustee" shall mean Bank of Tokyo-Mitsubishi
Trust Company, or any successor or replacement thereto pursuant to
the Indenture.
"MMCA" shall mean Mitsubishi Motors Credit of America, Inc.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Notes" shall mean the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes
and the Class C Notes issued by the Trust pursuant to the
Indenture.
"Other Assets" shall mean any assets (or interests
therein) (other than the receivables and related property conveyed
to the Trust pursuant to the Sale and Servicing Agreement)
conveyed or purported to be conveyed by the Seller to another
Person or Persons other than MSCS, whether by way of a sale,
capital contribution or by virtue of the granting of a lien.
"Owner Trustee" means Wilmington Trust Company, a
Delaware Banking Corporation, not in its individual capacity nor
as a principal to this Agreement, but solely as Owner Trustee
under the Trust Agreement, its successors in interest and any
successor trustee under the Trust Agreement.
"Person" shall mean any individual, corporation, estate,
partnership, joint venture, association, joint stock company,
trust, unincorporated organization, or government or any agency or
political subdivision thereof.
"Payment Date" shall mean the 15th day of each month or,
if such day is not a Business Day, the immediately following
Business Day, commencing April 15, 2002.
"Purchase Agreement" shall mean the purchase agreement
dated as of March 1, 2002, as from time to time amended,
supplemented or otherwise modified and in effect, between
Mitsubishi Motors Credit of America, Inc. and MMCA Auto
Receivables Trust.
"Rating Agencies" shall mean Moody's, S&P or Fitch
Ratings, or any substitute rating agency that the Seller (as
defined in the Indenture) requests to rate the Notes.
"Rating Agency Confirmation" means, with respect to any
action, that each Rating Agency shall have been given prior
written notice thereof and that each of the Rating Agencies shall
have notified the Seller, the Servicer, the Indenture Trustee and
the Owner Trustee that such action shall not result in a reduction
or withdrawal of the then current rating assigned to any Class of
Notes.
"Receivables Transfer and Servicing Agreements" shall
mean collectively the Purchase Agreement, the Sale and Servicing
Agreement, the Trust Agreement and the Administration Agreement.
"S&P" shall mean Standard & Poor's Ratings Group, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Sale and Servicing Agreement" shall mean the sale and
servicing agreement dated as of March 1, 2002, as amended,
supplemented or otherwise modified and in effect, by and among the
Trust, MMCA Auto Receivables Trust, as seller, and Mitsubishi
Motors Credit of America, Inc., as servicer.
"Seller" shall mean MMCA Auto Receivables Trust.
"Servicer" means MMCA, in its capacity as Servicer under
the Sale and Servicing Agreement and each successor thereto
appointed and acting pursuant to the Sale and Servicing Agreement.
"Total Available Funds" has the meaning as set forth in
the Sale and Servicing Agreement.
"Trust Agreement" shall mean the Amended and Restated
Trust Agreement dated as of March 1, 2002, as amended,
supplemented or otherwise modified and in effect, by and among
MMCA Auto Receivables Trust, as depositor, and Wilmington Trust
Company, as owner trustee.
"Trust Estate" shall mean all money, instruments, rights
and other property that are subject or intended to be subject to
the lien and security interest of the Indenture for the benefit of
the Noteholders and the Swap Counterparties (including, without
limitation, all property and interests granted to the Indenture
Trustee), including all proceeds thereof.
IN WITNESS WHEREOF, the parties have executed this
Schedule to the Master Agreement on the respective dates specified below with
effect from the date specified on the first page of this document.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERVICES INC. MMCA AUTO OWNER TRUST 2002-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
nor as a principal to this
Agreement, but solely as Owner
Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------- --------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President Title: Vice President
EXHIBIT A
[Form of SWAP GUARANTEE]
March 13, 2002
MMCA Auto Owner Trust 2002-1
c/o Wilmington Trust Company,
as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
In consideration of that certain ISDA Master Agreement dated as of
March 13, 2002 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc., a Delaware
corporation (hereinafter "MSCS") and MMCA Auto Owner Trust 2002-1
(hereinafter "Counterparty") (such ISDA Master Agreement, together with
each Confirmation exchanged between the parties pursuant thereto,
hereinafter the "Agreement"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co., a Delaware
corporation (hereinafter "MSDW"), hereby irrevocably and unconditionally
guarantees to Counterparty, with effect from the date of the Agreement, the
due and punctual payment of all amounts payable by MSCS under the Agreement
when the same shall become due and payable, whether on Scheduled Payment
Dates, upon demand, upon declaration of termination or otherwise, in
accordance with the terms of the Agreement and giving effect to any
applicable grace period. Upon failure of MSCS punctually to pay any such
amounts, and upon written demand by Counterparty to MSDW at its address set
forth in the signature block of this Guarantee (or to such other address as
MSDW may specify in writing), MSDW agrees to pay or cause to be paid such
amounts; provided that delay by Counterparty in giving such demand shall in
no event affect MSDW's obligations under this Guarantee.
MSDW hereby agrees that its obligations hereunder shall be
unconditional and will not be discharged except by complete payment of the
amounts payable under the Agreement, irrespective of any claim as to the
Agreement's validity, regularity or enforceability or the lack of authority
of MSCS to execute or deliver the Agreement; or any change in or amendment
to the Agreement; or any waiver or consent by Counterparty with respect to
any provisions thereof; or the absence of any action to enforce the
Agreement or the recovery of any judgment against MSCS or of any action to
enforce a judgment against MSCS under the Agreement; or any similar
circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor generally. MSDW hereby waives
diligence, presentment, demand on MSCS for payment or otherwise (except as
provided hereinabove), filing of claims, requirement of a prior proceeding
against MSCS and protest or notice, except as provided for in the Agreement
with respect to amounts payable by MSCS. If at any time payment under the
Agreement is rescinded or must be otherwise restored or returned by
Counterparty upon the insolvency, bankruptcy or reorganization of MSCS or
MSDW or otherwise, MSDW's obligations hereunder with respect to such
payment shall be reinstated upon such restoration or return being made by
Counterparty.
MSDW represents to Counterparty as of the date hereof, which
representations will be deemed to be repeated by MSDW on each date on which
a Transaction is entered into, that:
(1) it is duly organized and validly existing under the laws of
the jurisdiction of its incorporation and has full power and legal right to
execute and deliver this Guarantee and to perform the provisions of this
Guarantee on its part to be performed;
(2) its execution, delivery and performance of this Guarantee have
been and remain duly authorized by all necessary corporate action and do
not contravene any provision of its certificate of incorporation or by-laws
or any law, regulation or contractual restriction binding on it or its
assets;
(3) all consents, authorizations, approvals and clearances
(including, without limitation, any necessary exchange control approval)
and notifications, reports and registrations requisite for its due
execution, delivery and performance of this Guarantee have been obtained
from or, as the case may be, filed with the relevant governmental
authorities having jurisdiction and remain in full force and effect and all
conditions thereof have been duly complied with and no other action by, and
no notice to or filing with, any governmental authority having jurisdiction
is required for such execution, delivery or performance; and
(4) this Guarantee is its legal, valid and binding obligation
enforceable against it in accordance with its terms except as enforcement
hereof may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights or by
general equity principles.
By accepting this Guarantee and entering into the Agreement,
Counterparty agrees that MSDW shall be subrogated to all rights of
Counterparty against MSCS in respect of any amounts paid by MSDW pursuant
to this Guarantee, provided that MSDW shall be entitled to enforce or to
receive any payment arising out of or based upon such right of subrogation
only to the extent that it has paid all amounts payable by MSCS under the
Agreement.
This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York. All capitalized terms not otherwise
defined herein shall have the respective meanings assigned to them in the
Agreement.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
By:_____________________________________
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Derivative Products Group
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT B
[Form of SWAP Confirmation]
[Date]
To: [ ]
From: MMCA Auto Owner Trust 2002-1
c/o Wilmington Trust Company,
as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Re: Confirmation Relating to [ ] Interest Rate Swap
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between [ ] ("[
]") and MMCA Auto Owner Trust 2002-1 (the "Trust") on the Trade Date listed
below (the "Transaction"). This letter constitutes a "Confirmation" as
referred to in the ISDA Master Agreement specified below.
The definitions and provisions contained in the 2000
ISDA Definitions, together with the Annex to the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. For these purposes,
all references in those Definitions to a "Transaction" shall be deemed to
apply to the Transaction referred to herein. In the event of any
inconsistency between the Definitions and this Confirmation, the terms of
this Confirmation shall govern.
This Confirmation supplements, forms part of and is
subject to the ISDA Master Agreement dated as of [ ], 2002, as amended and
supplemented from time to time (the "Agreement") between you and us. All
provisions contained in or incorporated by reference in the Agreement upon
its execution will govern this Confirmation except as expressly modified
below. In the event of any inconsistency between the provisions of that
agreement and this Confirmation, this Confirmation will prevail for the
purpose of this Transaction.
The terms of the particular Transaction to which this
Confirmation relates are as follows:
Trade Date: [ ].
Effective Date: [ ].
Notional Amount: [The Notional Amount initially shall
equal $[ ] and for any subsequent
Calculation Period shall be equal to
the aggregate principal balance of the
Class [ ] Notes on the first day of
such Calculation Period. The Trust
shall determine the Notional Amount for
each Calculation Period and shall
inform [ ] of such determination by the
15th day of the calendar month in which
such Calculation Period begins;
provided, however, unless otherwise
agreed, if such notification is not
received by the 12th day of the
calendar month in which such
Calculation Period ends, the Notional
Amount for any Calculation Period shall
be the amount set forth on the attached
Schedule 1.]
Termination Date: The date on which the aggregate
outstanding principal balance of the
Class [ ] Notes has been reduced to
zero, or [ ] 15, [ ], whichever is the
earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar month
commencing (with a long first payment)
on [ ], up to and including the
Termination Date, subject to adjustment
in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month,
subject to adjustment in accordance
with the Modified Following Business
Day Convention.
Fixed Rate: [ ]%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: [ ].
Floating Rate Payer
Payment Dates: The 15th day of each calendar month
commencing (with a long first payment)
on [ ], up to and including the
Termination Date, subject to adjustment
in accordance with the Following
Business Day Convention.
Period End Date: The 15th day of each calendar month,
subject to adjustment in accordance
with the Modified Following Business
Day Convention.
Floating Rate Option: USD-LIBOR-BBA. Notwithstanding Section
7.1 of the Definitions, the Floating
Rate shall be determined on the day
that is two New York and London Banking
Days prior to the Reset Date. The rate
determined in accordance with the
Floating Rate Option shall be rounded,
if necessary, to the nearest 1/100,000
of 1% (.0000001).]
Designated Maturity: [One month.]
Spread: [ ]%.
Floating Rate
Day Count Fraction: Actual/360.
Reset Dates: The first day of each Floating Rate Payer
Calculation Period.
Business Days: New York, New York, Wilmington, Delaware
and Los Angeles, California.
Account Details
Payments to [ ]: [ ]
Payments to the Trust: [ ]
Misc.
Calculation Agent: [ ].
Please confirm that the foregoing correctly sets forth
the terms of our agreement by executing this Confirmation and returning it
to us.
Best Regards,
MMCA AUTO OWNER TRUST 2002-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor as a principal
to this Agreement, but solely as Owner Trustee
By: ______________________________
Name:
Title:
[ ]
By: ______________________________
Name:
Title:
Class A-4 Swap Confirmation
March 13, 2002
To: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
From: MMCA Auto Owner Trust 2002-1
c/o Wilmington Trust Company,
as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Re: Confirmation Relating to MMCA 2002-1 Class A-4 Notes
Interest Rate Swap
MSCS Reference: AR9FB
MMCA Reference:
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the
terms and conditions of the Swap Transaction entered into between ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital Services Inc. ("MSCS") and MMCA Auto Owner Trust 2002-1
(the "Trust") on the Trade Date listed below (the "Transaction"). This
letter constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified below.
The definitions and provisions contained in the 2000
ISDA Definitions, together with the Annex to the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. For these purposes,
all references in those Definitions to a "Transaction" shall be deemed to
apply to the Transaction referred to herein. In the event of any
inconsistency between the Definitions and this Confirmation, the terms of
this Confirmation shall govern.
This Confirmation supplements, forms part of and is
subject to the ISDA Master Agreement dated as of March 13, 2002, as amended
and supplemented from time to time (the "Agreement") between you and us.
All provisions contained in or incorporated by reference in the Agreement
upon its execution will govern this Confirmation except as expressly
modified below. In the event of any inconsistency between the provisions of
that agreement and this Confirmation, this Confirmation will prevail for
the purpose of this Transaction.
The terms of the particular Transaction to which this
Confirmation relates are as follows:
Trade Date: March 8, 2002.
Effective Date: March 13, 2002.
Notional Amount: The Notional Amount initially shall equal
$522,800,000 and for any subsequent
Calculation Period shall be equal to the
aggregate principal balance of the Class
A-4 Notes on the first day of such
Calculation Period. The Trust shall
determine the Notional Amount for each
Calculation Period and shall notify MSCS
of such determination by the 15th day of
the calendar month in which such
Calculation Period begins; provided,
however, unless otherwise agreed, if such
notification is not received by the 12th
day of the calendar month in which such
Calculation Period ends, the Notional
Amount for any Calculation Period shall
be the amount set forth on the attached
Schedule 1.
Notional Amount determinations shall be
provided to MSCS via telephone to the
Fixed Income Derivatives Corporate Desk
(as specified below) and confirmed in
writing to each of the following:
Fixed Income Derivatives (Corporate Desk)
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Fixed Income Derivatives (Swaps Trading Desk)
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MSCS Operations Contact (see below)
Termination Date: The date on which the aggregate
outstanding principal balance of the
Class A-4 Notes has been reduced to zero,
or the Fixed Rate Payer Payment Date
occurring in January 2010, whichever is
the earlier.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate Payer
Payment Dates: The 15th day of each calendar
month commencing (with a long first
payment) on April 15, 2002, up to and
including the Termination Date, subject
to adjustment in accordance with the
Following Business Day Convention.
Period End Date: The 15th day of each calendar month,
subject to adjustment in accordance with
the Modified Following Business Day
Convention.
Fixed Rate: 5.11%.
Fixed Rate
Day Count Fraction: 30/360.
Floating Amounts:
Floating Rate Payer: MSCS.
Floating Rate Payer
Payment Dates: The 15th day of each calendar
month commencing (with a long first
payment) on April 15, 2002, up to and
including the Termination Date, subject
to adjustment in accordance with the
Following Business Day Convention.
Period End Date: The 15th day of each calendar month,
subject to adjustment in accordance with
the Modified Following Business Day
Convention.
Floating Rate Option: USD-LIBOR-BBA. Notwithstanding Section
7.1 of the Definitions, the Floating Rate
shall be determined on the day that is
two New York and London Banking Days
prior to the Reset Date. The rate
determined in accordance with the
Floating Rate Option shall be rounded, if
necessary, to the nearest 1/100,000 of 1%
(.0000001).
Designated Maturity: One month.
Spread: 0.28%.
Floating Rate
Day Count Fraction: Actual/360.
Floating Rate for Initial
Calculation Period: 1.90% (excluding spread).
Reset Dates: The first day of each Floating Rate Payer
Calculation Period.
Business Days: New York, New York, Wilmington, Delaware
and Los Angeles, California.
Account Details
Payments to MSCS: Citibank, New York
ABA #: ▇▇▇▇▇▇▇▇▇
For: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.
Account #: ▇▇▇▇▇▇▇▇
Payments to the Trust: Bank of Tokyo-Mitsubishi Trust Company
New York, NY
ABA #: 26009687
Account #: ▇▇▇▇▇▇▇▇
Misc.
MSCS Operations Contact: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Calculation Agent: MSCS.
Please confirm that the foregoing correctly sets forth
the terms of our agreement by executing this Confirmation and returning it
to us.
Best Regards,
MMCA AUTO OWNER TRUST 2002-1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity nor as
a principal to this Agreement,
but solely as Owner Trustee
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERVICES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
SCHEDULE 1
-----------------------------------------------------------
Start: End: A-4 Notional Balance
-----------------------------------------------------------
3/13/2002 4/15/2002 $522,800,000.00
-----------------------------------------------------------
4/15/2002 5/15/2002 522,800,000.00
-----------------------------------------------------------
5/15/2002 6/15/2002 522,800,000.00
-----------------------------------------------------------
6/15/2002 7/15/2002 522,800,000.00
-----------------------------------------------------------
7/15/2002 8/15/2002 522,800,000.00
-----------------------------------------------------------
8/15/2002 9/15/2002 522,800,000.00
-----------------------------------------------------------
9/15/2002 10/15/2002 522,800,000.00
-----------------------------------------------------------
10/15/2002 11/15/2002 522,800,000.00
-----------------------------------------------------------
11/15/2002 12/15/2002 522,800,000.00
-----------------------------------------------------------
12/15/2002 1/15/2002 522,800,000.00
-----------------------------------------------------------
1/15/2003 2/15/2003 522,800,000.00
-----------------------------------------------------------
2/15/2003 3/15/2003 522,800,000.00
-----------------------------------------------------------
3/15/2003 4/15/2003 522,800,000.00
-----------------------------------------------------------
4/15/2003 5/15/2003 522,800,000.00
-----------------------------------------------------------
5/15/2003 6/15/2003 522,800,000.00
-----------------------------------------------------------
6/15/2003 7/15/2003 522,800,000.00
-----------------------------------------------------------
7/15/2003 8/15/2003 522,800,000.00
-----------------------------------------------------------
8/15/2003 9/15/2003 522,800,000.00
-----------------------------------------------------------
9/15/2003 10/15/2003 522,800,000.00
-----------------------------------------------------------
10/15/2003 11/15/2003 522,800,000.00
-----------------------------------------------------------
11/15/2003 12/15/2003 522,800,000.00
-----------------------------------------------------------
12/15/2003 1/15/2004 522,800,000.00
-----------------------------------------------------------
1/15/2004 2/15/2004 522,800,000.00
-----------------------------------------------------------
2/15/2004 3/15/2004 522,800,000.00
-----------------------------------------------------------
3/15/2004 4/15/2004 522,800,000.00
-----------------------------------------------------------
4/15/2004 5/15/2004 522,800,000.00
-----------------------------------------------------------
5/15/2004 6/15/2004 522,800,000.00
-----------------------------------------------------------
6/15/2004 7/15/2004 522,800,000.00
-----------------------------------------------------------
7/15/2004 8/15/2004 522,800,000.00
-----------------------------------------------------------
8/15/2004 9/15/2004 522,800,000.00
-----------------------------------------------------------
9/15/2004 10/15/2004 519,595,742.48
-----------------------------------------------------------
10/15/2004 11/15/2004 493,136,881.34
-----------------------------------------------------------
11/15/2004 12/15/2004 467,151,316.57
-----------------------------------------------------------
12/15/2004 1/15/2005 441,645,326.32
-----------------------------------------------------------
1/15/2005 2/15/2005 416,625,263.70
-----------------------------------------------------------
2/15/2005 3/15/2005 392,580,672.43
-----------------------------------------------------------
3/15/2005 4/15/2005 369,013,525.02
-----------------------------------------------------------
4/15/2005 5/15/2005 345,930,207.25
-----------------------------------------------------------
5/15/2005 6/15/2005 323,337,181.76
-----------------------------------------------------------
6/15/2005 7/15/2005 301,240,988.91
-----------------------------------------------------------
7/15/2005 8/15/2005 279,648,247.70
-----------------------------------------------------------
8/15/2005 9/15/2005 258,565,656.67
-----------------------------------------------------------
9/15/2005 10/15/2005 237,999,994.79
-----------------------------------------------------------
10/15/2005 11/15/2005 216,806,014.01
-----------------------------------------------------------
11/15/2005 12/15/2005 197,343,372.45
-----------------------------------------------------------
12/15/2005 1/15/2006 178,439,642.68
-----------------------------------------------------------
1/15/2006 2/15/2006 160,078,769.47
-----------------------------------------------------------
2/15/2006 3/15/2006 142,339,771.13
-----------------------------------------------------------
3/15/2006 4/15/2006 125,217,296.34
-----------------------------------------------------------
4/15/2006 5/15/2006 108,650,829.49
-----------------------------------------------------------
5/15/2006 6/15/2006 92,647,689.34
-----------------------------------------------------------
6/15/2006 7/15/2006 77,215,282.06
-----------------------------------------------------------
7/15/2006 8/15/2006 62,361,102.25
-----------------------------------------------------------