EXHIBIT 10.19
CONFIDENTIAL AND PROPRIETARY
SCHEDULE
to the
MASTER AGREEMENT
dated as of ____________
between
Credit Lyonnais New York Branch ("CLNY"),
a New York licensed branch of Credit Lyonnais, S.A.
("Credit Lyonnais"),
a banking corporation organized and existing
under the laws of the Republic of France
and
World Omni 1999-A Automobile Lease Securitization Trust
("Counterparty"), a business trust organized and existing under the laws of
the State of Delaware under the Securitization Trust
Agreement dated as of ___________
This Master Agreement is part of the Credit Lyonnais Derivatives
Program, and Transactions entered into pursuant hereto will benefit
from a guarantee issued by CLFG, as defined in Part 6 below.
Part 1. Termination Provisions.
(a) "Specified Entity" will not apply to CLNY and will not apply to
Counterparty.
(b) "Specified Transaction" will have the meaning specified in Section 14.
(c) All of the Events of Default specified in Section 5(a), including, but
not limited to, the "Cross Default" provision of Section 5(a)(vi) will
apply to CLNY. No Events of Default will apply to Counterparty.
"Specified Indebtedness" will have the meaning specified in Section 14.
"Threshold Amount" means, with respect to CLNY, USD 35,000,000 or the
equivalent in any other currency, currency unit or combination thereof.
(d) All of the Termination Events specified in Section 5(b), including but
not limited to, the "Credit Event Upon Merger" provision of Section
5(b)(iv) and the "Additional Termination Event" provision of Section
5(b)(v), will apply to CLNY. No Termination Events will apply to
Counterparty.
(e) The "Automatic Early Termination" provision of Section 6(a) will not
apply to CLNY and will not apply to Counterparty.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement, the Second Method and Market Quotation will apply.
(g) "Termination Currency" means United States Dollars.
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(h) Additional Termination Events will apply.
The occurrence of a Program Event shall constitute an Additional
Termination Event with CLNY as the Affected Party, and the provisions of
Part 6 of this Schedule shall apply.
(i) After the occurrence of an Event of Default (other than one under clause
(i), (vii) or (viii) of Section 5(a)) or a Termination Event (other than
one under Section 5(b)(i)) with respect to CLNY, no Early Termination
Date shall be designated by Counterparty without the prior approval of
all of the Class A Noteholders.
(j) Section 5(a)(i) of this Agreement is amended by deleting the words
"third local Business Day" and inserting the words "fifth calendar day".
(k) Section 6(b)(ii) of this Agreement is hereby amended by adding at the
end of the first paragraph the following:
"; provided that the party seeking to make the transfer to avoid a
Termination Event shall deliver to Counterparty (in the case of
transfers by CLNY) written confirmation from each Rating Agency that
such transfer will not result in the then current rating of the Class A
Notes being withdrawn or lowered."
Part 2. Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e), each of CLNY and
Counterparty represents that 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) or Part 6 of this
Schedule) to be made by it to the other party under this Agreement. In
making this representation, it may rely on (i) the accuracy of any
representation made by the other party pursuant to Section 3(f), (ii)
the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) and the accuracy and effectiveness of any document provided by
the other party pursuant to Section 4(a)(i) or 4(a)(iii) and (iii) the
satisfaction of the agreement of the other party contained in Section
4(d), 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 Representations.
(i) CLNY Representation. For the purpose of Section 3(f), CLNY
represents that each payment received or to be received by it in
connection with this Agreement will be effectively connected with its
conduct of a trade or business in the United States of America.
(ii) Counterparty Representation. For the purpose of Section 3(f),
Counterparty represents that it is a business trust organized and
existing under the laws of the State of Delaware.
Part 3. Agreement to Deliver Documents.
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For the purpose of Sections 4(a)(i) and (ii):
(a) Tax forms, documents or certificates to be delivered are:
CLNY agrees to execute and deliver to Counterparty a United States
Internal Revenue Service Form 4224, or any successor form, (1) upon
execution of this Agreement, (2) promptly upon reasonable demand by
Counterparty, and (3) promptly upon learning that any such form
previously provided by CLNY has become obsolete or incorrect.
(b) Other documents to be delivered are:
Covered by
Party Required to Form\Document\ Date by Which Section 3(d)
Deliver Document Certificate to Be Delivered Representation
---------------- ----------- --------------- --------------
.
CLNY A copy of a legal opinion issued by Credit Upon execution of this Not Applicable
Lyonnais, S.A. evidencing necessary corporate Agreement.
and other authorizations and approvals with
respect to the execution, delivery, and
performance by CLNY of this Agreement.
CLNY and A certificate of an authorized officer of the Upon execution of this Yes
Counterparty party certifying the names, true signatures and Agreement.
authority of the officers of the party signing
this Agreement and any applicable Credit
Support Document.
CLNY Annual audited financial statements in As soon as reasonably Yes
accordance with generally accepted practicable upon
accounting principles in the country in which request.
the party is organized.
CLNY and An opinion of legal counsel reasonably Upon execution of this Not Applicable
Counterparty acceptable to the other party. Agreement.
Counterparty All statements sent to the Depository Trust Promptly following the Yes
Company or the Class A Noteholders by the delivery thereof by the
Indenture Trustee. Indenture Trustee.
CLNY CLFG Guarantee in the form Upon execution of this Not Applicable
of Exhibit A. Agreement.
CLNY An opinion of legal counsel as to the Upon execution of Not Applicable
this enforceability of the CLFG Guarantee. Agreement.
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to CLNY:
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasury Documentation
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 62410
Answerback: CREDW
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
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Counterparty shall also send a copy of any notices or communications to
CLNY under Sections 5 or 6 or Part 6(c)(i) of this Schedule to each of:
Attention: Program Manager Att: Manager of TTD Derivative Products
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 423494 Telex No.: 423494
Answerback: CLUSA UI Answerback: CLUSA UI
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Manager of Treasury Operations Collateral Group
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 423494
Answerback: CLUSA UI
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Address for notices or communications to Counterparty under this
Agreement:
Address: World Omni 1999-A Automobile Lease Securitization Trust,
c/o Chase Manhattan Bank Delaware
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
With copies to the following:
Address: World Omni Financial Corp., ▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇.,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Address: ▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Fax No.: ▇▇▇- ▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Address for notices to the Collateral Trustee under Part 6 below:
Address: The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Structured Finance Group
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 420120
Answerback: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ CMBUW
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Process Agent. For the purpose of Section 13(c), Counterparty appoints
as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
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(d) Multibranch Party. For the purpose of Section 10(c), CLNY is not a
Multibranch Party, and Counterparty is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent shall be Counterparty. CLNY
agrees that Counterparty shall delegate all obligations in respect
thereof as Calculation Agent to World Omni Financial Corp. All
determinations and calculations by the Calculation Agent shall (a) be
made in good faith and in the exercise of its commercially reasonable
judgment and (b) be determined, where applicable, on the basis of then
prevailing market rates or prices; provided however, that all
determinations shall be subject to agreement by CLNY and Counterparty.
If CLNY and Counterparty are unable to agree on any calculations made
hereunder, another mutually acceptable Calculation Agent will be
appointed. Subject to the foregoing, all determinations shall be binding
and conclusive in the absence of manifest error.
(f) Credit Support Document and Credit Support Provider. The Credit Support
Document with respect to CLNY is the CLFG Guarantee issued by CLFG as
Credit Support Provider in favor of Counterparty and dated as of the
date of this Agreement.
(g) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(h) Netting of Payments. Subparagraph (ii) of Section 2(c) will not apply.
(i) "Affiliate" will have the meaning specified in Section 14.
(j) Scope of Obligations of Trustee. The parties hereto agree that:
(i) This Agreement is executed and delivered by Chase Manhattan Bank
Delaware, not individually or personally but solely in its capacity as
Owner Trustee, for the exclusive benefit of the Class A Noteholders of
the World Omni 1999-A Automobile Lease Securitization Trust (the
"Trust") and in the exercise of the powers and authority conferred and
vested in the Trustee under the Securitization Trust Agreement;
(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.
(k) No Bankruptcy Petition. Prior to the date that is one year and one day
after the date upon which the Trust created under the Securitization
Trust Agreement is terminated in accordance with the terms thereof, CLNY
shall not institute against, or join any other person in instituting
against, the trust created thereby, Auto Lease Finance L.P, Auto Lease
Finance LLC, World Omni Lease Securitization L.P. or World Omni Lease
Securitization LLC, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any
federal or state bankruptcy or similar law.
Part 5. Other Provisions.
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(a) Waiver of Setoff. Notwithstanding Section 6(e) or any other existing or
future agreement, each of Counterparty and CLNY irrevocably waives any
and all rights it may have to set off, net, recoup or otherwise withhold
or suspend or condition payment or performance of any obligation between
CLNY and Counterparty hereunder against any obligations between CLNY and
Counterparty or any branch or Affiliate of Credit Lyonnais or of
Counterparty, under any other agreements or otherwise.
(b) Additional Representation. The following representation shall be added
to Section 3:
"Relationship Between the Parties. Absent a written agreement between
the parties that expressly imposes affirmative obligations to the
contrary for a particular Transaction:
(i) Non-Reliance. With respect to each Transaction hereunder, 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 advisors as it has deemed necessary. It is not
relying on any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into that Transaction:
it being understood that information and explanations related to the
terms and conditions of a Transaction shall not be considered 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.
(ii) 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, conditions
and risks of that Transaction. It is also capable of assuming, and
assumes, the financial and other risks of that Transaction.
(iii) Status of Parties. The other party is not acting as a fiduciary or
an advisor for it in respect of that Transaction."
(c) Procedures for Confirming Transactions. In addition to the provisions of
Section 9(e)(ii), CLNY will, on or promptly after the Trade Date of each
Transaction, send Counterparty a Confirmation for that Transaction.
Counterparty will promptly thereafter execute and return to CLNY, or
request the correction of, such Confirmation. Each confirmation of a
transaction between the parties hereto shall state in bold face type
whether it is a "Guaranteed Transaction" and thereby constitutes a
Transaction hereunder that benefits from the CLFG Guarantee or whether
it is "not guaranteed by CLFG Corp." and thereby does not constitute a
Transaction hereunder.
(d) Waiver of Jury Trial. Each party hereby waives its respective right to
jury trial with respect to any litigation arising under, or in
connection with, this Agreement or any Transaction.
(e) Amendments. Section 9(b) of this Agreement is hereby amended by adding
the following after the word "system" in the last line thereof:
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"; provided however, that all such amendments, modifications or waivers
shall require the written affirmation of each Rating Agency that such
amendment modification or waiver shall not adversely affect the then
current rating of the Class A Notes."
(f) Local Business Days. For all purposes of this Agreement, "Local Business
Day" shall mean any day other than Saturday, Sunday or a day on which
banking institutions in (i) New York, New York, (ii) Chicago, Illinois,
(iii) Wilmington, Delaware, (iv) Deerfield Beach, Florida, or (v)
Mobile, Alabama, are authorized or obligated by law, executive order or
government decree to be closed.
(g) Transfer. Section 7 of this Agreement is hereby amended by:
(i) adding the phrase "(which consent may not be unreasonably withheld)"
after the word "party" and before the comma in the third line thereof;
and
(ii) adding at the end thereof: "Any party making any such transfer
shall deliver to the other party written confirmation from each Rating
Agency that such transfer will not result in the then current rating of
the Class A Notes being withdrawn or lowered."
(h) Additional Definitions. Unless otherwise defined below or in the
Confirmation, capitalized terms used in this Schedule or in the
Confirmation shall have the meanings set forth in the Securitization
Trust Agreement.
"Class A Notes" shall mean the World Omni 1999-A Automobile Lease Asset
Backed Floating Rate Automobile Lease Asset Backed Notes, Class A-1; the
Floating Rate Automobile Lease Asset Backed Notes, Class A-2; the
Floating Rate Automobile Lease Asset Backed Notes, Class A-3; and the
Floating Rate Automobile Lease Asset Backed Notes, Class A-4.
"Class A Noteholders" shall mean holders of the Class A Notes.
"Class B Notes" shall mean the World Omni 1999-A Automobile Lease
Securitization Trust Class B Floating Rate Automobile Lease Asset Backed
Notes.
"Class B Noteholders" means holders of the Class B Notes.
"Deposit Date" shall have the meaning assigned to such term in the
Securitization Trust Agreement.
"Distribution Account" shall have the meaning assigned to such term in
the Securitization Trust Agreement.
"Distribution Date" shall have the meaning assigned to such term in the
Securitization Trust Agreement.
"Indenture" shall mean that certain indenture dated as of August 1,
1999, as amended, between the World Omni 1999-A Automobile Lease
Securitization Trust and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture
Trustee.
"Indenture Event of Default" shall have the meaning assigned to the term
"Event of Default" in the Indenture.
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"Securitization Trust Agreement" shall mean that certain Securitization
Trust Agreement dated as of August 1, 1999, as amended, among World Omni
Lease Securitization L.P., as Transferor, Chase Manhattan Bank Delaware
and ▇▇▇▇▇▇ Trust and Savings Bank, as Owner Trustee and as Indenture
Trustee.
"SUBI" shall have the meaning assigned to such term in the
Securitization Trust Agreement.
"Transferor" shall have the meaning assigned to such term in the
Securitization Trust Agreement.
Part 6. Program Provisions.
(a) Definitions. For purposes of this Schedule, the following terms shall
have the following meanings:
"Acceptance Date" means the New York Business Day on which
Counterparty's notice to CLNY of its acceptance of CLNY's offer to close
out all outstanding Transactions upon the occurrence of a Program
Downgrade is effective. The Acceptance Date shall be the Early
Termination Date with respect to all Accepted Transactions.
"Accepted Transactions" means all Transactions closed out on the
Acceptance Date.
"Anomalous Market Condition" means the existence of any of the following
occurrences:
(i) the suspension of trading on any one or more of the New York
Stock Exchange, Paris Stock Exchange, London Stock Exchange, Frankfurt
Stock Exchange or Tokyo Stock Exchange;
(ii) the suspension of normal banking operations by any U.S.
Federal authority, the Banque de France, the Bank of England, the
Deutsche Bundesbank or the Japanese Ministry of Finance; or
(iii) any other crisis event;
as the result of which the Collateral Trustee determines that the
orderly valuation of all transactions under the Program on the fifth
Global Business Day following a Trigger Date is impracticable or
inadvisable, after polling seven Eligible Reference Market-makers, if
the majority of such Eligible Reference Market-makers agrees with the
Collateral Trustee's determination.
"Assignment and Valuation Document" means the document to be completed
pursuant to Part 6(b)(i) below after a Trigger Date, a form of which is
attached hereto as Exhibit B. The Assignment and Valuation Document
shall constitute the statement required of Counterparty pursuant to
Section 6(d)(i) and will be "properly completed" if completed in
accordance with the instructions contained therein. For purposes of this
Part 6 the last sentence of Section 6(d)(i) shall have no effect, except
with respect to a Previously Valued Transaction.
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"Assignment Reference Market-maker" means the Eligible Reference
Market-maker providing, as of the Valuation Date, the quotation
remaining after disregarding the highest and lowest of three quotations.
"CLFG" means CLFG Corp. and any successors and permitted assigns. CLFG
is a special purpose corporation, initially wholly-owned by Financial
Security Assurance Holdings Ltd.
"CLFG Guarantee" means the guarantee issued by CLFG to Counterparty,
substantially in the form of Exhibit A.
"Collateral" means cash, securities and other property, together with
the income thereon, delivered to the Collateral Trustee under the
Security Agreement.
"Collateral Trustee" means The Chase Manhattan Bank, a New York
chartered bank, or such other financial institution appointed as such in
accordance with the Program.
"Eligible Reference Market-maker" means, subject to the review of the
Rating Agencies, any Reference Market-maker on a list of a minimum of
ten dealers designated by CLNY, attached hereto as Exhibit C, which list
may be changed from time to time by CLNY upon notice to Counterparty, so
long as such notice is effective prior to a Trigger Date.
"Extended Valuation Date" means a Global Business Day occurring after an
Anomalous Market Condition, which shall be no earlier than the fifth
Global Business Day after the Trigger Date and no later than the tenth
Global Business Day after the Trigger Date.
"Financial Insurer" means Financial Security Assurance Inc. and any
other financial insurer appointed as such in accordance with the Program
that is rated AAA by S&P and Aaa by ▇▇▇▇▇'▇. The Security Agreement
requires CLNY to deliver to the Collateral Trustee additional Collateral
equal to the amount of the Policy within three New York Business Days
after (i) the Financial Insurer's claims-paying ability rating is placed
on CreditWatch, is downgraded below AAA or is suspended or withdrawn by
S&P or its financial strength rating is placed on Watchlist, is
downgraded below Aaa or is suspended or withdrawn by ▇▇▇▇▇'▇ or (ii) the
occurrence of certain other events (including insolvency) with respect
to the Financial Insurer.
"Global Business Day" means a day other than a Saturday or Sunday on
which banks in New York City, Paris, London, Frankfurt and Tokyo are
open for the conduct of regular banking activities.
"Independent Verifier" means Ernst & Young LLP or such other independent
verifier appointed as such in accordance with the Program.
"Investment Grade" means, with respect to Counterparty, a Long Term
Rating at or above BBB- and Baa3 from S&P and ▇▇▇▇▇'▇, respectively, and
the equivalent rating of any other Rating Agency. If Counterparty does
not have a published Long Term Rating from one or more Rating Agencies,
it shall nonetheless be considered to be Investment Grade if CLNY shall
have sent it notice that, subject to the prior review of the Rating
Agencies, it shall be considered Investment Grade for purposes
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of the Program and CLNY has not sent it notice to the contrary prior to
the Trigger Date.
"Long Term Rating" means (i) with respect to S&P, the "counterparty
rating" of Counterparty, or, if such rating is not available, the
senior, unsecured, unguaranteed long term rating assigned to
Counterparty or, if Counterparty is an insurance company, Counterparty's
claims-paying rating lowered by one rating subcategory, (ii) with
respect to ▇▇▇▇▇'▇, the "counterparty rating" of Counterparty or, if
such rating is not available, Counterparty's bank deposit rating or
senior, unsecured, unguaranteed long term rating, as applicable, or, if
Counterparty is an insurance company, Counterparty's financial strength
rating lowered by one rating subcategory and (iii) with respect to any
other Rating Agency, the equivalent rating.
"New York Business Day" means a day other than a Saturday or Sunday on
which banks in New York City are open for the conduct of regular banking
activities.
"Optional Trigger Date" means the date on which a Program Downgrade
occurs. If the date on which an Optional Trigger Date occurs is not a
Global Business Day, then the next following Global Business Day shall
be the Optional Trigger Date.
"Policy" means each unconditional and irrevocable insurance policy
issued by a Financial Insurer to CLFG.
"Previously Valued Transaction" means any Terminated Transaction for
which notice setting forth the amount payable, as described in Section
6(d)(i), was effective, but which amount was not paid, prior to a
Trigger Date.
"Program" means the Credit Lyonnais Derivatives Program under which this
Agreement and other CLFG-guaranteed master agreements and contracts with
other counterparties to CLNY and Credit Lyonnais are entered into, as
such Program may be amended, subject to the review of the Rating
Agencies and the Financial Insurer.
"Program Default Interest Rate" means the Program Interest Rate plus 3%
per annum.
"Program Downgrade" means the downgrade of the Program below a rating of
AAAt or Aaa, any subsequent downgrade (including by rating subcategory),
or the suspension or withdrawal of such rating by S&P or ▇▇▇▇▇'▇,
respectively, or the equivalent occurrence with respect to any other
Rating Agency.
"Program Event" means the occurrence of any of the following:
(i) Bankruptcy. (1) the commencement by CLNY or Credit Lyonnais of
voluntary proceedings under any bankruptcy, insolvency or similar law
seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it bankrupt or insolvent or seeking
reorganization, winding up, liquidation, dissolution, composition or
other relief with respect to it or its debts; (2) CLNY or Credit
Lyonnais admits in writing its inability to pay its debts as they become
due; (3) the commencement against CLNY or Credit Lyonnais of any
proceedings of a nature described in (1), and an order for relief is
granted or any such proceeding remains undismissed or undischarged for
thirty days; (4) the Superintendent of Banks of the State of New York
takes possession of the business and property of CLNY or is otherwise
appointed as a liquidator of CLNY; (5) Credit Lyonnais has its banking
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license withdrawn or seeks or becomes subject to the appointment of a
provisional administrator or a liquidator under French banking law; or
(6) the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official for
CLNY, any branch of Credit Lyonnais that has entered into a transaction
then outstanding under the Program or the home office of Credit
Lyonnais; and
(ii) Failure to Deliver Collateral. The failure by CLNY to deliver
Collateral in such amount, at such time and in such manner as is
required by the Security Agreement.
"Program Interest Rate" means, for any day, the overnight LIBOR rate in
effect as of 11:00 a.m. New York time on such day, as set forth opposite
the caption "O/N" under the headings "Euro-Dollar" and "Ask" on Telerate
Page 314, or if not so quoted, the overnight LIBOR rate in effect for
such day, as set forth opposite the caption "O/N" on Reuters page MWMC
or, if neither of the foregoing sources is available, an equivalent
source as determined by the Collateral Trustee.
"Program Notice" means notice by tested telex message, facsimile message
with receipt confirmed by phone to the office of the recipient or
confirmed delivery by courier.
"Rating Agency" means any rating agency (which, in the case of a United
States rating agency, is a nationally recognized statistical rating
organization) which, upon CLNY's or Credit Lyonnais' request, has
provided a rating with respect to the Program. CLNY shall ensure that
there are always at least two Rating Agencies. Initially, the Rating
Agencies are Standard and Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") and ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's"). The removal by CLNY of S&P or Moody's as a Rating Agency
requires the consent of the Financial Insurer. Upon any such removal,
references in Part 6 of this Schedule to S&P or Moody's, as applicable,
shall be deemed to be deleted. CLNY shall promptly notify Counterparty
of any change in the identity of the Rating Agencies.
"Security Agreement" means the intercreditor and security agreement
among CLNY, CLFG, the Financial Insurer, the Collateral Trustee and such
other entities as may from time to time become party thereto.
"Trigger Date" means the date on which a Program Event occurs. If the
date on which a Program Event occurs is not a Global Business Day, then
the next following Global Business Day shall be the Trigger Date.
"Valuation Date" means the fifth Global Business Day after a Trigger
Date or, in the event of an Anomalous Market Condition, the Extended
Valuation Date. The Valuation Date shall be the Early Termination Date
with respect to all Transactions outstanding on such date.
(b) The Effect of a Program Event. Notwithstanding anything to the contrary
in this Agreement, if a Program Event occurs the following provisions
shall apply:
(i) Notice of Program Event and Valuation Date. The Collateral
Trustee shall, by Program Notice to Counterparty no later than two
Global Business Days after the Trigger Date, notify Counterparty of the
occurrence of a Program Event and the Valuation Date, and the notice
shall attach an Assignment and Valuation
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Document if Counterparty is Investment Grade on the Trigger Date and is
entitled to value any Transactions.
(ii) Counterparty Election to Assign or Terminate; Payment.
(1) Counterparty Election. Counterparty shall be entitled to
value Transactions if it is Investment Grade on the Trigger
Date, unless this Schedule or any Confirmation otherwise
designates. If Counterparty is entitled to value all
Transactions, it may elect in the Assignment and Valuation
Document, delivered pursuant to Part 6(b)(i) above, either to
assign all Transactions (including any Previously Valued
Transactions) to an Assignment Reference Market-maker or to
terminate all outstanding Transactions. If Counterparty is not
entitled, pursuant to this Schedule or any Confirmation, to
value one or more Transactions, it must elect to terminate all
outstanding Transactions.
(2) Payment. If Counterparty elects assignment in a properly
completed and timely delivered Assignment and Valuation
Document, all amounts payable shall be payable by or to the
Assignment Reference Market-maker, on behalf of Counterparty,
specified in such Assignment and Valuation Document to or from
the Collateral Trustee. If Counterparty (A) elects
termination, (B) is not entitled to elect assignment or (C) is
entitled to elect assignment but fails timely to deliver a
properly completed Assignment and Valuation Document electing
assignment with respect to all Transactions, all amounts
payable shall be payable by or to Counterparty to or from the
Collateral Trustee.
(iii) Calculation of Amounts Payable. Subject to Part 6(b)(iv)(2)
below (with respect to Previously Valued Transactions), the amount
payable pursuant to Section 6(e) after a Trigger Date shall be
determined in accordance with Section 6(e)(ii)(1) with CLNY as the
Affected Party, modified as follows:
(1) Counterparty Valuation. Subject to Part 6(b)(iii)(2)
below, if Counterparty properly completes and delivers an
Assignment and Valuation Document to the Collateral Trustee by
3:00 p.m. New York time on the Global Business Day following
the Valuation Date, the amount payable with respect to the
Transactions valued by Counterparty therein shall be the
amount calculated in accordance with the Assignment and
Valuation Document for such Transactions;
(2) Collateral Trustee Valuation. If Counterparty (A) is not
Investment Grade on the Trigger Date, (B) fails timely to
deliver a properly completed Assignment and Valuation
Document, (C) fails to value one or more Transactions in a
timely delivered and properly completed Assignment and
Valuation Document or (D) is not entitled, pursuant to this
Schedule or any Confirmation, to value one or more
Transactions, the Collateral Trustee shall value the amount
payable with respect to all Transactions in the case of (A) or
(B), or all Transactions which Counterparty has failed or is
not entitled to value as described in (C) or (D), by deriving
Market Quotations for all such Transactions and adding or
subtracting as appropriate any Unpaid Amounts, in accordance
with Section 6(e)(ii)(1). The valuation shall be made, with
CLNY as the Affected Party, in good faith and in accordance
with industry standards and practice using the arithmetic mean
of market prices, rates and volatilities as of 11:00 a.m. New
York time on
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the Valuation Date (or, in the case of Accepted Transactions,
the Acceptance Date) from at least five Eligible Reference
Market-makers, without regard to the highest and lowest
prices, rates and volatilities. The market data and procedures
used by the Collateral Trustee in such valuation shall be
verified by the Independent Verifier; and
(3) Notice of Amounts Payable. The Collateral Trustee shall
by Program Notice notify Counterparty and, if applicable, the
Assignment Reference Market-maker by 3:00 p.m. New York time
on the second Global Business Day following the Valuation Date
of the amount payable, which shall be the sum of the amount
determined in accordance with Part 6(b)(iii)(1) above, if any,
and the amount determined in accordance with Part 6(b)(iii)(2)
above, if any.
(iv) Payment Date.
(1) Transactions Valued After Trigger Date and Accepted
Transactions.
(A) If the amount calculated pursuant to
Part 6(b)(iii) above is owed by Counterparty or an
Assignment Reference Market-maker to CLNY, it shall
be due and payable by 6:00 p.m. New York time on the
third Global Business Day after the Valuation Date,
together with interest thereon calculated from (and
including) the Valuation Date (or, in the case of
Accepted Transactions, the Acceptance Date) to (but
excluding) such due date at the Program Interest Rate
and shall be paid to the Collateral Trustee.
(B) If the amount calculated pursuant to
Part 6(b)(iii) above is owed by CLNY to Counterparty
or an Assignment Reference Market-maker, it shall be
due and payable by 3:00 p.m. New York time on the
seventh Global Business Day after the Valuation Date,
together with interest thereon calculated from (and
including) the Valuation Date (or, in the case of
Accepted Transactions, the Acceptance Date) to (but
excluding) such due date at the Program Interest Rate
and shall be paid by the Collateral Trustee on behalf
of CLNY.
(C) If either party fails to pay any such
amount when due, such failure shall be a breach of
this Agreement and interest shall be payable on such
amount, from (and including) the date due to (but
excluding) the date such amount is paid, at the
Program Default Interest Rate.
(2) Previously Valued Transactions. If the amount payable
(including Unpaid Amounts and Settlement Amounts) with respect
to any Previously Valued Transaction, together with interest
thereon calculated in accordance with Section 6(d)(ii) for
days prior to (but excluding) the Trigger Date (to the extent
not reflected in the statement delivered pursuant to Section
6(d)(i)):
(A) is owed by Counterparty or an Assignment
Reference Market-maker to CLNY, it shall be due and
payable by 6:00 p.m.
-31-
New York time on the third Global Business Day after
the Valuation Date to the Collateral Trustee, or
(B) is owed by CLNY to Counterparty or an
Assignment Reference Market-maker, it shall be due
and payable by 3:00 p.m. New York time on the seventh
Global Business Day after the Valuation Date,
together, in each case, with interest thereon calculated from
(and including) the Trigger Date to (but excluding) the due
date therefor at the Program Interest Rate.
(3) Set-off. Any amount payable pursuant to Part 6(b)(iv)(1)
above shall be subject to Set-off, pursuant to Section 6(e),
against any amount payable pursuant to Part 6(b)(iv)(2) above.
(v) Anomalous Market Condition. If an Anomalous Market Condition
exists on or occurs on or after the Trigger Date and prior to the fifth
Global Business Day following the Trigger Date:
(1) The Collateral Trustee shall promptly on the Global
Business Day it determines that an Anomalous Market Condition
has occurred notify Counterparty of such occurrence by Program
Notice; and
(2) The Valuation Date will be the Extended Valuation Date,
which shall be the tenth Global Business Day after the Trigger
Date, or such earlier Global Business Day that the Collateral
Trustee shall designate in a Program Notice delivered to
Counterparty no later than two Global Business Days prior to
such date.
(vi) Payments upon Assignment. Notwithstanding Counterparty's
right to elect to assign all Transactions, CLNY will not, due to any
Tax, be required to pay to the Assignment Reference Market-maker an
amount greater than the amount which CLNY would have been required to
pay to the Counterparty in the absence of such assignment, and the
Assignment Reference Market-maker, notwithstanding any Tax, will be
required to pay to CLNY an amount that is no less than the amount which
CLNY would have received from Counterparty in the absence of such
assignment.
(vii) Effectiveness of Notices. Any requirement in this Part 6 to
deliver a notice or communication (including a Program Notice or an
Assignment and Valuation Document) by a specified time shall be deemed
satisfied if such notice or communication is given in a manner so that
it is effective by such time in accordance with Section 12(a).
(viii) Interest. All interest due under this Part 6 shall be paid
in the Termination Currency and shall be calculated on the basis of
daily compounding and the actual number of days elapsed divided by 360.
(c) Effect of a Program Downgrade. (i) If a Program Downgrade occurs, CLNY
shall notify Counterparty of such occurrence by Program Notice no later
than two Global Business Days after the Optional Trigger Date. Within
nine Global Business Days, but in no event earlier than the third Global
Business Day, after the Optional Trigger Date, Counterparty may by
notice to CLNY require CLNY to offer to Counterparty a mid-market price,
determined in good faith and in accordance with industry
-32-
standards by CLNY on the basis of CLNY's valuation of all Transactions,
to close out all Transactions on the Global Business Day such notice is
effective. If Counterparty accepts such offer, it must confirm its
acceptance of the offer price by giving notice thereof to CLNY and the
Collateral Trustee on the Acceptance Date, indicating whether such
amount is owed by Counterparty or CLNY. The Accepted Transactions shall
be closed out on the Acceptance Date at such price and payment will be
made by the Collateral Trustee to Counterparty or by Counterparty to the
Collateral Trustee by the close of business on the second New York
Business Day following the Acceptance Date. Subject to Part 6(c)(ii)
below, failure to make such payment shall be an Event of Default and any
Early Termination Date that is designated as a result of such Event of
Default shall be deemed to have occurred as of the Acceptance Date.
(ii) In the event that a Program Event occurs after any Optional
Trigger Date, no payments shall be made pursuant to Part 6(c)(i) above
after such occurrence, and the provisions of Part 6(b) above shall
apply.
(d) Event of Default or Other Termination Event after a Program Event. If a
Program Event occurs and an event or circumstance which would otherwise
constitute or give rise to an Event of Default, a Termination Event or
Program Downgrade occurs after such Program Event, such Program Event
shall prevail and such event or circumstance shall not constitute an
Event of Default, Termination Event or Program Downgrade, as the case
may be.
(e) Consent to Grant of Security Interest. Counterparty is hereby notified
of, and, notwithstanding Section 7, irrevocably gives its consent to,
the grant by CLNY to the Collateral Trustee, for the benefit of CLFG,
the Financial Insurer, the Collateral Trustee, the Independent Verifier
and such other entities as may become a party to or a beneficiary of the
Security Agreement, of prior perfected security interests in (i) the
amount payable by Counterparty or, if Counterparty elects assignment,
the Assignment Reference Market-maker on Counterparty's behalf, upon
termination or assignment of the Transactions following a Program Event
and (ii) all other rights of CLNY hereunder and under any Credit Support
Document against Counterparty and, as the case may be, an Assignment
Reference Market-maker on Counterparty's behalf. Such grant first
supports the obligations of CLFG under the CLFG Guarantee and similar
obligations to other counterparties under the Program. The Collateral
Trustee may exercise any right or remedy of CLNY under this Agreement
after a Program Event, and Counterparty shall, upon receipt of notice
from CLNY or the Collateral Trustee, pay all amounts payable under this
Agreement to the Collateral Trustee directly.
(f) CLFG Guarantee. The CLFG Guarantee, the issuance of which is a condition
to Counterparty's entering into this Agreement, benefits from the Policy
and CLNY has entered into the Security Agreement to support its
reimbursement obligations to CLFG and the Financial Insurer.
(g) Other Agreement. In the event that CLNY or Counterparty are parties to
any other agreement that might be construed to govern Transactions
hereunder, any Transaction that benefits from a CLFG Guarantee shall be
governed exclusively by this Agreement and any Credit Support Document
hereunder.
Please confirm your agreement to the terms of the foregoing Schedule by
signing below.
-33-
CREDIT LYONNAIS WORLD OMNI 1999-A AUTOMOBILE
NEW YORK BRANCH LEASE SECURITIZATION TRUST
By: Chase Manhattan Bank Delaware
not in its individual capacity but
Solely as Owner Trustee
By: __________________________ By: __________________________
Name: Name:
Title: Title:
-34-
CONFIRMATION
TO: World Omni 1999-A Automobile Lease Securitization Trust
("Counterparty")
Att:
Tel.:_______________ Fax: _______________
FR: Credit Lyonnais New York Branch ("CLNY")
1301 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Att: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
RE: Transaction dated as of __________1999
(CLNY Ref: )
--------------------------------------------------------------------------------
GUARANTEED TRANSACTION CONFIRMATION
-----------------------------------
The purpose of this letter agreement is to confirm the terms and conditions of
the Cap Transaction entered into between us on the Trade Date specified below
which constitutes a "Transaction" under the Master Agreement specified below.
This letter agreement constitutes a "Confirmation" under, and it
supplements, forms part of, and is subject to, the Master Agreement dated as of
August ____ 1999, as amended and supplemented from time to time (the
"Guaranteed Agreement"), between you and us. THE GUARANTEED AGREEMENT AND ALL
TRANSACTIONS ENTERED INTO THEREUNDER SHALL BENEFIT FROM A CLFG GUARANTEE ISSUED
BY CLFG (AS SUCH TERMS ARE DEFINED IN THE SCHEDULE TO THE GUARANTEED AGREEMENT)
IN FAVOR OF COUNTERPARTY.
CLNY'S AND COUNTERPARTY'S RIGHTS AND OBLIGATIONS IN RESPECT OF PAYMENTS
DUE HEREUNDER ARE SUBJECT ENTIRELY TO THE "WAIVER OF SETOFF" PROVISION IN PART 5
OF THE SCHEDULE TO THE GUARANTEED AGREEMENT.
1. The definitions and provisions contained in the 1991 ISDA Definitions and the
1998 Supplement to the 1991 ISDA Definitions (as published by the International
Swaps and Derivatives Association, Inc.) are incorporated into this
Confirmation. In the event of any inconsistency between those definitions and
provisions and this Confirmation, this Confirmation will govern. To the extent
not defined in the
Ref. # __________ Marketer: _________ Trader: _________ TD: _________
Agreement, the capitalized terms used herein (including but not limited to
"Class A Notional Amount". "Initial Class A Notional Amount", "Distribution
Date", "Class A-4 Stated Maturity Date" and Deposit Date") have the meaning
ascribed to such terms in the Securitization Trust Agreement or, if not defined
therein, in that certain Indenture dated as of ____________1999, between the
World Omni 1999-A Automobile Lease Securitization Trust and ▇▇▇▇▇▇ Trust and
Savings Bank, as Indenture Trustee.
________________________________________________________________________________
2. The terms of the particular guaranteed Transaction to which this Confirmation
relates are as follows:
Transaction Type: Interest Rate Cap
Notional Amount: For the first Calculation Period, the
Initial Class A Notional Amount, and
for each subsequent Calculation Period,
the Class A Notional Amount as of the
Distribution Date within each
Calculation Period (after giving effect
to reduction in such Class A Notional
Amount as of such Distribution Date).
Trade Date: ______________
Effective Date: ______________
Termination Date: The later of (x) the Distribution Date
on which the Class A Notional Amount is
reduced to zero and (y) the Class A-4
Stated Maturity Date
Fixed Amounts:
Fixed Rate Payer: Counterparty
Fixed Amount: USD ________________
Fixed Payment Date: _____________________
Floating Amounts:
Floating Rate Payer: CLNY
Floating Rate Payer Payment
Dates: Each Deposit Date
Cap Rate: _______%
Floating Rate Option: USD-LIBOR-BBA (Telerate 3750)
Ref. # __________ Marketer: _________ Trader: _________ TD: _________
Designated Maturity: One (1) month
Floating Rate Day Count
Fraction: Actual/360
Spread: None
Compounding: Not applicable
Reset Date: The Distribution Date immediately
preceding each Floating Rate Payer
Payment Date
Floating Rate Payer Period End
Dates: Each Distribution Date (except that the
initial Calculation Period shall
commence on and include, the Effective
Date, and the final Calculation Period
shall end on, but exclude, the
Termination Date).
Business Days: Any day other than Saturday, Sunday or
a day on which banking institutions in
(i) New York, New York, (ii) Chicago,
Illinois, (iii) Wilmington, Delaware,
(iv) Deerfield Beach, Florida, or (v)
Mobil, Alabama, are authorized or
obligated by law, executive order or
government decree to be closed.
Calculation Agent: CLNY
3. Account Details:
USD Payment to CLNY: Credit Lyonnais, New York Branch
ABA#: ▇▇▇▇▇▇▇▇▇
A/C#: 01-88180-3211-00-001-180
Ref: Triple A Derivative Products
USD Payment to Counterparty: Please Provide
4. Offices:
a) The office of Credit Lyonnais for this Transaction is New York, New York;
and
b) The office of Counterparty for this Transaction is Delaware.
Please provide confirmation that this letter correctly sets forth our Agreement
by responding within two (2) Business Days by returning an executed copy of this
Confirmation by telecopier (Att: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ - Documentation).
Ref. # __________ Marketer: _________ Trader: _________ TD: _________
IN WITNESS WHEREOF the parties hereto accept and confirm the terms of this
Confirmation.
WORLD OMNI 1999-A AUTOMOBILE LEASE
SECURITIZATION TRUST
By: Chase Manhattan Bank Delaware
Not in its individual capacity but
Solely as Owner Trustee
Authorized Signature:
By:____________________________
Name:__________________________
Title:_________________________
CREDIT LYONNAIS
NEW YORK BRANCH
Marketing Signature:
_________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
---------------------------
CREDIT LYONNAIS
NEW YORK BRANCH
Authorized Signature"
By: _____________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Title: Managing Director
---------------------------
Ref. # __________ Marketer: _________ Trader: _________ TD: _________
EXHIBIT A
CLFG GUARANTEE
--------------
This CLFG Guarantee is part of the
Credit Lyonnais Derivatives Program
-----------------------------------
THIS GUARANTEE dated as of __________, 199_ (the "Guarantee")
made by CLFG Corp. ("CLFG"), a corporation organized under the laws of the State
of Delaware, in favor of ___________ ("Counterparty"), a [ ] organized under the
laws of [ ].
WHEREAS, Counterparty and Credit Lyonnais New York Branch
("CLNY") have entered into a Master Agreement dated as of even date herewith (as
amended, modified or supplemented by any Confirmation or otherwise, the
"Agreement") and it is a requirement of the Agreement that CLFG deliver this
Guarantee of CLNY's net payment obligation to Counterparty;
WHEREAS, CLFG has agreed pursuant to the terms of this
Guarantee to guarantee the net payment due to Counterparty, or, in the case of
assignment, an Assignment Reference Market-maker on behalf of Counterparty, from
CLNY under the Agreement, including any payment relating to the Fair Market
Value of collateral and expenses under any Credit Support Document thereunder,
as a result of the occurrence or effective designation of an Early Termination
Date on account of an Event of Default or a Termination Event (including a
Program Event) determined strictly in accordance with the terms of the
Agreement, without regard to whether any term of the Agreement is given effect
by a court in bankruptcy or otherwise (the "Guaranteed Amount");
NOW, THEREFORE, CLFG agrees as follows:
1. Certain Defined Terms. Each capitalized term used but not
otherwise defined herein shall have the meaning assigned to that term in the
Agreement.
2. Guarantee. (a) CLFG unconditionally and irrevocably
guarantees (as primary obligor and not merely as surety) to Counterparty the due
and punctual payment of the Guaranteed Amount, in accordance with the terms of
the Agreement (including interest as set forth in Section 7(a) of this
Guarantee). CLFG agrees that this is a continuing guarantee of payment in
accordance with its terms and not of collection, and it shall remain in full
force and effect until all amounts payable by CLNY under the Agreement have been
irrevocably paid in full.
(b) The liability of CLFG under this Guarantee shall be
absolute and unconditional and will not be discharged except by complete payment
of the Guaranteed Amount, irrespective of any claims as to the Agreement's
genuineness, validity, regularity or enforceability or the lack of competence or
authority of CLNY to execute or deliver the Agreement in accordance with the
terms thereof; any change in or amendment to the Agreement in accordance with
the terms thereof; any variation, modification, extension, waiver, compromise or
release of any or all of the obligations of CLNY under the Agreement; any waiver
or consent by Counterparty with respect to any provisions of the Agreement; the
absence of any action to enforce the Agreement (except as set forth herein) or
the recovery of any judgment against CLNY or Credit Lyonnais under the Agreement
or otherwise; the insolvency or bankruptcy of CLNY or Credit Lyonnais; any
exchange, release or nonperfection of any collateral securing payment of any
obligation under the Agreement; any other security or guarantee given for CLNY's
obligations under the Agreement; any law, regulation or order of any
jurisdiction affecting any term of any obligation under the Agreement or
Counterparty's rights with respect thereto; CLNY's or Credit Lyonnais' merger or
consolidation with or into another entity, loss of
separate legal identity or ceasing to exist; or any other circumstance which
might vary the risk of or otherwise constitute a legal or equitable discharge or
defense available to a guarantor or surety generally. CLFG waives promptness,
diligence, presentment, demand on CLNY or Credit Lyonnais for payment or
otherwise, filing of claims, requirement of a prior proceeding against CLNY or
Credit Lyonnais, any collateral security or any other guarantor and protest or
notice, except as provided for in the Agreement or herein as a condition
precedent to the occurrence of an Event of Default, Termination Event and
effective designation of an Early Termination Date and the making of a claim
hereunder.
3. Claims Procedure After the Occurrence or Effective
Designation of an Early Termination Date. Unless a Program Event shall have
occurred, Counterparty may make a claim on this Guarantee upon the failure by
CLNY to pay any Guaranteed Amount by delivering a Guarantee Call Notice in the
form of Exhibit I hereto to CLFG and the other parties specified therein
claiming a payment under this Guarantee. Such Guarantee Call Notice may be
delivered on or after the New York Business Day on which CLNY fails to pay any
Guaranteed Amount when due.
4. Payment After Receipt of Guarantee Call Notice. (a) CLFG
shall pay the Guaranteed Amount to Counterparty by 10:00 a.m. New York time on
the third Global Business Day following the effective date of the Guarantee Call
Notice.
(b) In the event that a Program Event occurs subsequent to the
effective date of the Guarantee Call Notice and prior to a payment by CLFG
hereunder, CLFG, if it has been notified in writing or otherwise has actual
knowledge of the occurrence of such Program Event, shall make no payment to
Counterparty pursuant to this Section 4, and Section 5 below shall apply.
5. Payment After the Occurrence of a Program Event. Upon the
occurrence of a Program Event, the Collateral Trustee shall make, on behalf of
Counterparty, a claim on this Guarantee (and Counterparty shall not be entitled
to pursue or make a claim hereunder unless the Collateral Trustee fails to do
so) for the Guaranteed Amount, if any, on the seventh Global Business Day after
the Valuation Date. The Collateral Trustee shall make payments of such
Guaranteed Amount by 3:00 p.m. New York time on such Global Business Day to
Counterparty, or an Assignment Reference Market-maker on behalf of Counterparty,
to the extent the Collateral Trustee has received funds from CLFG or otherwise.
6. Payment to the Assignment Reference Market-Maker. In the
event that CLFG makes any payment to the Collateral Trustee for any amount due
to an Assignment Reference Market-maker on behalf of Counterparty, CLFG will
not, due to any Tax, be required to pay an amount greater than the amount which
CLNY would have been required to pay to Counterparty in the absence of an
assignment.
7. Interest; Termination Currency. (a) CLFG agrees to pay
interest to the extent that such interest is not paid by CLNY from (and
including) the date on which a payment is due from CLNY following the occurrence
or effective designation of an Early Termination Date to (but excluding) the
date of payment of such amount hereunder in full, such interest to be payable at
a rate equal to the rate of interest that is payable under the Agreement. All
interest due hereunder shall be paid in U.S. dollars and shall be calculated on
the basis of daily compounding and the actual number of days elapsed divided by
360.
(b) All payments under this Guarantee shall be paid in U.S.
dollars to such account of Counterparty or an Assignment Reference Market-maker
as is set forth in the Assignment and Valuation Document or as the payee shall
otherwise notify CLFG.
-2-
8. Representations. (a) CLFG hereby makes the representations
set forth in subsections (a), (b), (c) and (e) of Section 3 of the Agreement to
Counterparty as if the references therein to the Agreement were references to
this Guarantee (which representations will be deemed to be repeated by CLFG on
each date on which a Transaction is entered into).
(b) For purposes of the representation deemed made by CLFG
contained in Section 3(e) of the Agreement as modified hereby, CLFG is relying
on (i) the representation of Counterparty contained in Section 3(f) of the
Agreement as if such representation were made to CLFG in respect of payments
received or to be received in connection with this Guarantee, (ii) the
satisfaction of the agreement of Counterparty contained in Section 4(a)(i) or
4(a)(iii) of the Agreement and the accuracy and effectiveness of any document
provided by Counterparty pursuant to Section 4(a)(i) or 4(a)(iii) of the
Agreement and (iii) the satisfaction of the agreement of Counterparty contained
in Section 4(d) of the Agreement.
9. Payments Free and Clear. The provisions of Section 2(d) of
the Agreement shall apply to this Guarantee as if set out in full herein, except
that (i) references therein to the Agreement shall be deemed to be references to
this Guarantee, (ii) references therein to X shall be deemed to be references to
CLFG, (iii) references therein to Y shall be deemed to be references to
Counterparty, (iv) references therein to representations made by Counterparty
pursuant to Section 3(f) of the Agreement shall include representations deemed
to be made pursuant to Section 8(b) of this Guarantee and (v) the phrase "had no
such deduction or withholding been required" in Section 2(d)(i)(4) shall be
deleted and replaced with "if payment had been made directly by CLNY."
10. Subrogation Rights. By accepting this Guarantee,
Counterparty acknowledges that CLFG shall be subrogated to all rights of
Counterparty against CLNY in respect of any amounts paid by CLFG hereunder,
provided that CLFG may enforce or receive any payment arising out of or based
upon such right of subrogation only to the extent of any payment made by CLFG
pursuant hereto and only after Counterparty, or an Assignment Reference
Market-maker on its behalf, has been paid in full all amounts payable by CLNY
under the Agreement.
11. Notices. (a) Except as otherwise provided herein, any
notice or communication in respect of this Guarantee will be sufficiently given
if in writing and delivered in person, sent by certified or registered mail
(airmail if overseas) or the equivalent (with return receipt requested) or by
overnight courier, sent by facsimile transmission or by electronic messaging
system, or given by telex (with answerback received) addressed to CLFG as set
forth below or the address of Counterparty set forth in the Agreement or to such
other address as either CLFG or Counterparty may notify to the other in writing.
Address for notices or communications to CLFG:
Address: c/o Financial Security Assurance Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
Addresses for notices sent pursuant to Section 3 above:
Address: Credit Lyonnais
Credit ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ of the America
-▇-
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer of CLUSA
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
Telex No: 62490 or 423494
Answerback: CREDIT UI or CLUSA UI
Address: Credit Lyonnais New York Branch
Credit Lyonnais Building
1301 Avenue of the America
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Program Manager
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
Telex No: 43394
Answerback: CLUSA UI
Address: Credit Lyonnais New York Branch
Credit Lyonnais Building
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Attention: Treasurer of CLNY
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Telex No: 62410 or 423494
Answerback: CREDIT UI or CLUSA UI
Address: Ernst & Young LLP
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Attention: Credit Lyonnais Engagement Partner
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
Address: The Chase Manhattan Bank
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Attention: Structured Finance Group
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇▇
(b) A notice or communication with respect to this Guarantee
will be deemed effective at the same time such notice or communication would
have been effective if given with respect to the Agreement as provided in
Section 12 thereof.
12. Assignment. Each reference herein to CLFG includes any
successors and permitted assigns, each of which shall be bound by the provisions
of this Guarantee, provided, however, that the obligations of CLFG under this
Guarantee may not be assigned or delegated without the prior written consent of
Counterparty, except for an assignment to an Affiliate of the Financial Insurer
or CLNY that would not result in a Program Downgrade. Any assignment made in
violation of this Guarantee shall be null and void. Each reference herein to
Counterparty includes any successors and permitted assigns. Counterparty may not
assign its rights under this
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Guarantee to Credit Lyonnais or any Affiliate of Credit Lyonnais (other than the
Republic of France or any person over which the Republic of France, alone or in
concert with any other person, exercises control, except for such persons
controlled by CLNY or Credit Lyonnais).
13. Termination. This Guarantee shall terminate (a) upon the
payment in full by CLNY or CLFG to Counterparty or an Assignment Reference
Market-maker of all Guaranteed Amounts or (b) if the senior, unsecured,
unguaranteed long-term rating of Credit Lyonnais is AAA by S&P, Aaa by ▇▇▇▇▇'▇
(in each case, if such entity is then a Rating Agency) and the equivalent
thereto by any other Rating Agency.
14. Governing Law and Jurisdiction. THIS GUARANTEE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK. CLFG IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS SPECIFIED
IN SECTION 13 OF THE AGREEMENT FOR PURPOSES OF ANY ACTION OR PROCEEDING RELATING
TO THIS GUARANTEE AND APPOINTS FINANCIAL SECURITY ASSURANCE HOLDINGS LTD., WITH
AN ADDRESS AS OF THE DATE HEREOF AT ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇; ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇; ATTENTION: GENERAL COUNSEL; TELEPHONE NO.: (▇▇▇) ▇▇▇-▇▇▇▇; FACSIMILE
NO.: (▇▇▇) ▇▇▇-▇▇▇▇, AS ITS AGENT TO RECEIVE SERVICE OF SUMMONS OR ANY OTHER
LEGAL PROCESS IN CONNECTION WITH ANY ACTION OR PROCEEDING RELATING TO THIS
GUARANTEE BROUGHT IN ANY SUCH COURT. CLFG IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY DEFENSE OR OBJECTION IT MAY HAVE THAT ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
15. Contractual Currency. The provisions of Sections 8(a) and
(b) of the Agreement shall apply to amounts payable under this Guarantee as
fully as if they were set forth in and referred to this Guarantee.
16. Amendments. This Guarantee may only be amended by written
agreement between CLFG, Counterparty and CLNY.
17. Applicability and Scope of Guarantee. (a) The Financial
Insurer and its Affiliates, other than CLFG, shall not be liable under this
Guarantee except pursuant to an assignment of CLFG's obligations under Section
12 above.
(b) Each confirmation of a transaction between the parties to
the Agreement shall state in bold face type whether it is a "Guaranteed
Transaction" and thereby constitutes a Transaction under the Agreement that
benefits from this Guarantee or whether it is "not guaranteed by CLFG Corp." and
is not a Transaction under the Agreement and does not benefit from this
Guarantee. In the event that a transaction between the parties to the Agreement
is confirmed by means of, or consists of a printout of terms from, SWIFT or
another electronic messaging system, (1) if it contains the phrase "Guaranteed
Transaction" such Confirmation will constitute a "Confirmation" under the
Agreement, and the transaction shall constitute a Transaction under the
Agreement and shall benefit from this Guarantee and (2) if it contains the
phrase "not guaranteed by CLFG Corp." such transaction shall not constitute a
Transaction under the Agreement and shall not benefit from this Guarantee.
IN WITNESS WHEREOF CLFG has executed this Guarantee as of the
date first above written.
CLFG CORP.
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By: _________________________
Name:
Title:
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EXHIBIT I
FORM OF GUARANTEE CALL NOTICE
[Letterhead of Counterparty]
CLFG Corp.
c/o Financial Security Assurance Inc.
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Attention: General Counsel
Ladies and Gentlemen:
Pursuant to Section 3 of the Guarantee dated as of [ ],
relating to the Master Agreement between Credit Lyonnais New York Branch
("CLNY") and the undersigned dated as of [ ] (the "Agreement"), we hereby notify
you that CLNY has failed to pay the amount due upon [specify Event of Default or
failure to pay after Termination Event] to the [undersigned]. The amount unpaid
under the Agreement [including any payment relating to the Fair Market Value of
collateral and expenses under any Credit Support Document thereunder,] [minus
the net proceeds of any collateral pledged by CLNY to us and foreclosed on by
us, at our option,] not including interest due thereon, is [ ]. We hereby
represent that there is no dispute under the Agreement with respect to such
amount due.
We are therefore making this call on the Guarantee. Please
remit payment of such amount, together with interest thereon from (and
including) the date on which a payment was due from CLNY following the
occurrence or effective designation of an Early Termination Date to (but
excluding) the date payment is actually made at a rate equal to the rate of
interest that would be payable under the Agreement, which rate is [ ], to
[specify account].
Very truly yours,
[Counterparty]
cc: [Collateral Trustee]
[Chief Executive Officer of CLUSA]
[Treasurer of CLNY]
[Program Manager]
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EXHIBIT B
[Name of Counterparty]
[Date]
Assignment and Valuation Document
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This Assignment and Valuation Document
is part of the Credit Lyonnais Derivatives Program
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This Assignment and Valuation Document, together with the annexes
attached hereto (the "Document") relates to the Master Agreement dated as of [ ]
(the "Agreement") between Credit Lyonnais New York Branch ("CLNY") and [ ]
("Counterparty"). Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Agreement.
1. Choice of Assignment or Termination. Please check the appropriate
selection. Pursuant to the Agreement, Counterparty hereby elects to:
A. __ Assign all rights and obligations of CLNY under all
Transactions, including any Previously Valued Transactions, to
the Assignment Reference Market-maker identified below and,
upon payment of the amount due to or from the Assignment
Reference Market-maker, terminate all of CLNY's rights and
obligations under all assigned Transactions and CLFG's
obligations under the CLFG Guarantee.
IMPORTANT: Assignment will be allowed only if Counterparty is entitled
to value all Transactions and Counterparty properly completes this
Document and returns it to the Collateral Trustee by 3:00 p.m. New York
time on the Global Business Day following the Valuation Date with
respect to all Transactions.
B. __ Terminate all Transactions outstanding on the Valuation Date
(or, in the case of Accepted Transactions, the Acceptance
Date).
IMPORTANT: Counterparty's valuation of a Transaction will be used only
if it properly completes this Document and returns it to the Collateral
Trustee by 3:00 p.m. New York time on the Global Business Day following
the Valuation Date.
2. Compulsory Terms of Termination and Assignment Agreement. If
Counterparty selected paragraph 1.A above, it must attach a termination
and assignment agreement, executed by Counterparty and the Assignment
Reference Market-maker, containing at least the following terms:
a. The Assignment Reference Market-maker shall agree to enter
into new transactions with Counterparty that preserve for
Counterparty the economic effect of the assigned Transactions
(including Unpaid Amounts in respect thereof and Previously
Valued Transactions).
b. The Assignment Reference Market-maker shall agree to pay to or
be paid from the Collateral Trustee, on Counterparty's behalf,
the Settlement Amount (including with respect to any
Previously Valued Transactions) plus or minus any Unpaid
Amounts, plus interest thereon at the Program Interest Rate
from and including the Valuation Date to but excluding: (i)
the third Global Business Day following the Valuation Date, if
owed by the Assignment Reference Market-maker, or (ii) the
seventh Global Business Day following the Valuation Date, if
owed to the Assignment Reference Market-maker.
c. The Assignment Reference Market-maker shall agree to make any
payment due to the Collateral Trustee by the third Global
Business Day after the Valuation Date. Each of Counterparty
and the Assignment Reference Market-maker shall
acknowledge that failure to do so will constitute a breach
under the Agreement and will result in interest being imposed
at the Program Default Interest Rate.
d. Upon payment of such amount to or from the Assignment
Reference Market-maker, CLNY shall have no further rights
against or obligations to Counterparty, and Counterparty shall
have no further rights against or obligations to, and the
Assignment Reference Market-Maker shall have no rights
against, CLNY or CLFG under the Program.
e. Counterparty shall remain liable for any amount owed to CLNY
that the Assignment Reference Market-maker fails to pay.
f. The Assignment Reference Market-maker shall waive all rights
to set off amounts owed to CLNY under the termination and
assignment agreement against amounts owed by CLNY, Credit
Lyonnais or any Affiliate thereof, to the Assignment Reference
Market-maker or any Affiliate thereof under any other
agreement.
g. CLNY and the Collateral Trustee shall be expressly named as
third party beneficiaries of the termination and assignment
agreement.
3. Assignment Reference Market-maker. If Counterparty selected paragraph
1.A above, Counterparty must identify the Assignment Reference
Market-maker:__________________
4. Calculation of Settlement Amount. Using a separate work sheet,
substantially in the form of the Form of Calculation Sheet attached as
Annex II hereto, please provide the Settlement Amount (calculated in
accordance with Annex II on the basis of quotations from three Eligible
Reference Market-makers) with respect to the Transactions summarized on
Annex I:__________________________
Any Transaction that Counterparty fails to value will be valued by the
Collateral Trustee in accordance with Part 6 of the Schedule to the
Agreement.
5. Unpaid Amounts. Please provide with respect to the Transactions
summarized on Annex I:
A. The U.S. dollar equivalent of Unpaid Amounts due to
Counterparty:_____________________
B. The U.S. dollar equivalent of Unpaid Amounts due to CLNY:
___________________
6. Amounts Payable. Using the figures in paragraphs 4 and 5 above, please
provide the amount payable with respect to the Transactions summarized
on Annex I and calculated pursuant to Section 6(e)(ii)(1) of the
Agreement with CLNY as the Affected Party: ____________. The foregoing
amount is owed to (please select one of the following, as appropriate):
__ Collateral Trustee
__ Counterparty
__ Assignment Reference Market-maker
The amount payable will be as set forth above if Counterparty has
valued all Transactions in accordance with this Document. If
Counterparty has valued, in accordance with this Document, fewer than
all Transactions, the amount payable to the Collateral Trustee or to
Counterparty shall be as set forth above plus or minus, as appropriate,
the amount calculated by the Collateral Trustee in accordance with the
Agreement for Transactions that the Collateral Trustee values.
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7. Credit Support.
A. If Counterparty has pledged collateral under a Credit Support
Document:
1. The Fair Market Value of such collateral, calculated as of the
date that Counterparty received notice of the Program Event,
is ___________.
2. Such Fair Market Value shall be subtracted from any amounts
owing to the Collateral Trustee, or added to any amounts owing
to Counterparty or the Assignment Reference Market-maker. The
total amount payable after such computation is ________ and
shall be paid to (please select from among the following, as
appropriate):
__ Collateral Trustee
__ Counterparty
__ Assignment Reference Market-maker
Note: Counterparty may elect that the Collateral Trustee pay
any amount owed by CLNY under paragraph 6 above to the
Assignment Reference Market-maker and pay the Fair Market
Value of any collateral owed by CLNY to Counterparty.
B. If CLNY has pledged collateral under a Credit Support Document:
1. The net proceeds of any collateral against which Counterparty,
on or prior to the date hereof, has, at its option, foreclosed
is __________.
2. Such value shall be subtracted from any amounts owing to
Counterparty or the Assignment Reference Market-maker. The
total amount payable after such computation is __________ and
shall be paid to (please select one of the following, as
appropriate):
__ CLNY
__ Counterparty
__ Assignment Reference Market-maker
Any collateral against which Counterparty has, at its option,
not foreclosed shall be returned to CLNY.
8. No Third Party Beneficiary. Neither the Assignment Reference
Market-maker nor any other person is a third party beneficiary of this
Document.
The Collateral Trustee will notify Counterparty, by Program Notice no
later than 3:00 p.m. New York time on the second Global Business Day
following the Valuation Date, of the amount payable by or to
Counterparty or an Assignment Reference Market-maker.
The undersigned hereby confirms the accuracy of the above information.
[Name of Counterparty]
By:________________________
Name:
Title:
Date:
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ANNEX I
[SUMMARY OF TERMS OF TRANSACTIONS (INCLUDING ACCEPTED TRANSACTIONS AND
PREVIOUSLY VALUED TRANSACTIONS) VALUED BY COUNTERPARTY]
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ANNEX II
FORM OF CALCULATION SHEET
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1. Identify Transaction(s):
2. Identify any Previously Valued Transactions, the Settlement Amount
calculated therefor, the Applicable Rate (which will be used to
calculate interest for days prior to but excluding the Trigger Date)
and the basis of the calculation thereof:
3. Provide three (and only three) Market Quotations (as defined below)
obtained from Eligible Reference Market-makers listed on Exhibit C to
the Agreement as of the Valuation Date (or, in the case of Accepted
Transactions, the Acceptance Date) and, to the extent reasonably
practicable, during the same time period on such date (a) if you have
elected to terminate your Transactions, for those Transactions you are
entitled to value, with respect to one or more Transactions (or all
Transactions as a whole) outstanding on the Valuation Date (or, in the
case of Accepted Transactions, the Acceptance Date) or (b) if you are
entitled to elect and have elected assignment of all Transactions, for
all Transactions as a whole outstanding on the Valuation Date:
"Market Quotation" means, with respect to one or more Transactions (or
all Transactions as a whole) outstanding on the Valuation Date (or, in
the case of Accepted Transactions, outstanding on the Acceptance Date),
in the case of termination, or with respect to all such Transactions as
a whole, in the case of assignment, a quotation from an Eligible
Reference Market-maker for an amount, if any, that would be paid to
Counterparty (expressed as a negative number) or by Counterparty
(expressed as a positive number) in consideration of an agreement
between Counterparty (taking into account any existing Credit Support
Document with respect to the obligations of Counterparty) and the
quoting Eligible Reference Market-maker to enter into a transaction
(the "Replacement Transaction") that would have the effect of
preserving for Counterparty 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) of the Agreement in respect of
such Transaction or group of Transactions that would, but for the
occurrence of the Program Event, have been required after the Valuation
Date (or, in the case of Accepted Transactions, the Acceptance Date).
For this purpose, Unpaid Amounts in respect of the Transaction or group
of Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the Program Event, have been required
(assuming satisfaction of each applicable condition precedent) after
the Valuation Date (or, in the case of Accepted Transactions, the
Acceptance Date) is to be included. Subject to paragraph 2 of the
Assignment and Valuation Document, the Replacement Transaction would be
subject to such documentation as Counterparty and the Eligible
Reference Market-maker may, in good faith, agree.
4. Provide the Settlement Amount with respect to the Transaction(s)
(which, for purposes of this paragraph, shall be the sum of the amount,
if any, specified in 2 above and the sum of the Termination Currency
Equivalents of the middle Market Quotations specified in 3 above):
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EXHIBIT C
Eligible Reference Market-makers
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AIG Financial Products
Bank of America
Barclays
Citibank
Credit Suisse/ Credit Suisse Financial Products
Deutsche Bank
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Nomura
Sumitomo
UBS