Exhibit
10.33


 


AUTOMOBILE
RESIDUAL VALUE


INSURANCE
POLICY


(the “Policy”)


 


BETWEEN


 


ACE BERMUDA
INSURANCE, LTD.


Hamilton, Bermuda


(hereinafter “Company”)


 


AND


 


ACE CAPITAL
RE LIMITED


Hamilton, Bermuda


(hereinafter “Insurer”)


 


PREAMBLE


 


WHEREAS,
Gramercy Place Insurance, Limited (a single purpose licensed Cayman insurance
company “Gramercy”) issued three
insurance policies (the “Gramercy Policies”) to Toyota Motor Credit Corporation
(“TMCC”) to insure TMCC against
potential losses in respect of the residual value risk associated with a
related identified pool of retail closed-end lease contracts for automobile and
light duty trucks originated by authorized Toyota and Lexus vehicle dealers and
assigned to and serviced by TMCC; and


 


WHEREAS, each Gramercy Policy will cover, subject to
certain limitations and conditions, residual value losses equal to the amount,
if any, by which (i) the adjusted residual values of leased vehicles under full
term contracts that are included in the lease pool for such Gramercy Policy and
are returned to TMCC during the related return period exceed (ii) the market
values of such leased vehicles; and


 


WHEREAS, Gramercy will be obligated to make claim payments, if any due
TMCC, under the first Gramercy Policy on October, 1999, under the second
Gramercy Policy in October 2000, and under the third Gramercy Policy on October
2001 with a final settlement date of October 2002; and


 


WHEREAS, if aggregate net losses under the Gramercy Policies exceed a
deductible (which is equal to approximately 9.0% of the aggregate residual
values of the leased vehicles included in the related lease pools) then
Gramercy will be liable for 90% of such excess losses up to the Gramercy Policy
limits;


 


WHEREAS, Gramercy issued three classes of floating
rate notes to investors to provide financing to enable Gramercy to satisfy its
potential obligations to TMCC under the Policies; and


 


WHEREAS, GSI (“GSI”)
and the Company (as counterparty) have entered into Swap Agreements involving
US $25 million and US $8,000,000 of the US $122,470,000 Gramercy Class C-1
Floating Rate Notes, Series 1998-A; and


 


Gramercy Insurance from Ace Ins to ACE Cap Re


 


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WHEREAS, the Company and the
Insurer desire to transfer 100% of the rights and obligations of the Company
under the Swap Agreements to the Insurer pursuant to this Policy;


 


NOW
THEREFORE in consideration of the mutual covenants hereinafter contained and
upon the terms and conditions hereinafter set forth, the Company and the Insurer agree as follows:


 


ARTICLE 1.
DEFINITIONS


 


“Swap Agreements” shall mean the swap transactions entered into between GSI and the
Company (as the Counterparty) set forth in:


 


(i)    Confirmation (Reference No. NUUS807830 (080000A00) (hereinafter the “First Confirmation”) and


(ii)   Confirmation Reference No. NUUS9052A0 (080000A00) (the “Second Confirmation”)


 


attached hereto respectively as Schedules 1 and 2
and made a part of this Policy.


 


ARTICLE 2.
TERM OF POLICY


 


The “Term”
of this Policy shall be the period incepting July 24, 1998 and ending on the
date that the Company has no further liability under the Swap Agreements.


 


ARTICLE 3.
BUSINESS COVERED


 


1.     Subject to all of the terms, conditions and limits of this Policy, the
Insurer shall insure the Company during the Term in respect of one hundred
percent (100%) of the Company’s liability under the Swap Agreements.


 


2.     This Policy shall be subject in all respects to the same rates, terms,
conditions, interpretations, waivers, and the exact proportion of consideration
paid to the Company as the respective Swap Agreements of the Company to which
this Policy relates, the true intent of this Policy being that the Insurer
shall, in every case to which this Policy applies, follow the fortunes of the
Company under the Swap Agreements. This Policy shall be construed as an
honorable undertaking between the parties hereto and shall not be defeated by
technical legal constructions. However, nothing in this Policy shall be
construed to expand the liability of the Insurer beyond what is specifically
assumed under this Policy by creating rights of any third party, including
without limitation GSI, TMCC, or Gramercy, in or under this Policy.


 


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3.     Arbitration.  If any irreconcilable dispute shall arise
between the Company and the Insurer with reference to the interpretation of
this Policy (including, but not limited to, disputes concerning the formation
or validity of the Policy), whether such dispute arises before or after termination
of this Policy, such dispute, upon the written request of either party, shall
be submitted to three arbitrators, one to be chosen by each party, and the
third by the two arbitrators so chosen. Where a party fails to appoint an
arbitrator within 14 days of being called upon to do so or where the two
party-appointed arbitrators fail to appoint a third within 28 days of their
appointment, then upon application ARIAS (UK) will appoint an arbitrator to
fill the vacancy. At any time prior to the appointment by ARIAS (UK) the party
or arbitrators in default may make such appointment. All arbitrators shall be
active or retired disinterested officers of insurance or reinsurance companies
or underwriters at Lloyd’s of London having relevant knowledge to the matters
in dispute and not under the control of or otherwise affiliated with either
party to this Policy.


 


Except as may be otherwise provided herein, the
arbitrators shall promulgate rules to interpret this Policy under ARIAS
Arbitration Rules. The arbitrators shall interpret this Policy as an honorable
engagement rather than as a legal obligation and will make their award with the
view to effecting the general purpose and intent of this Policy, rather than in
accordance with the literal interpretation of this Policy.


 


The party requesting the arbitration shall submit
its case to the arbitrators within forty five (45) days of the appointment of
the third arbitrator. The party responding to the request for arbitration shall
submit its case to the arbitrators within forty five (45) days of the receipt
of the petitioner’s case. A hearing shall be held within thirty (30) days after
receipt of the parties’ cases in writing. The arbiters shall render their
decision within thirty (30) days after completion of the hearing. The decision
in writing of any two arbiters, when filed with the parties hereto, shall be
final and binding on both parties. Judgment may be entered upon the final
decision of the arbitrators in any court having jurisdiction. Each party shall
bear the expense of its own arbitrator and shall jointly and equally bear with
the other party the expense of the third arbitrator and arbitration. Said
arbitration shall take place in Hamilton, Bermuda, unless some other place is
mutually agreed upon by the parties.


 


The procedures specified in this Article shall be
the sole and exclusive procedures for the resolution of irreconcilable disputes
between the parties arising out of or relating to this Policy.


 


4.     Currency.  All payments under this
Policy shall be made in the currency of the United States of America.


 


5.     Errors and Omissions.  Any inadvertent delay,
omission or error shall not be held to relieve either party hereto from any
liability that would attach to it under this Policy if such delay, omission or
error had not been made if such delay, omission or error is rectified as soon
as possible after discovery thereof.


 


6.     Assignment.  This Policy shall be binding upon and inure to the benefit of the Company and
Insurer and their respective successors and assigns; provided that this Policy
may not be assigned by either party without the prior written consent of the
other party.


 


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7.     Amendment. 
This Policy may not be modified or amended except by mutual written
consent of the parties. The Company shall not agree to any modifications of the
Swap Agreements insured hereunder without the prior written consent of the
Insurer.


 


8.     Insolvency.  The Insurer’s liability
hereunder shall not increase or decrease as a result of the receivership,
insolvency or inability to pay of the Company.


 


9.     Headings.  The headings preceding the text of the Articles of this Policy are
intended and inserted solely for convenience of reference and shall not effect
the meaning, interpretation, construction or effect of this Policy.


 


10.   Notices. As used in this Policy, Notice shall mean any and all notices,
requests, demands or other communications required or permitted to be given
hereunder, and all Notices shall be hand delivered, sent by confirmed facsimile
transmission, mailed by first class certified mail, return receipt requested,
or sent by an overnight delivery service, addressed to the party at its address
set forth below or to such other address as such party may designate in
writing:


 


If to the Company:


 


ACE Bermuda Insurance Ltd.


The ACE Building


30 Woodbourne Avenue


Hamilton HM 08


Bermuda


Attn: Andrew M. Gibbs, CFO & SVP


Fax: 441-292-8677


 


If to the Insurer:


 


ACE CAPITAL RE LIMITED


The ACE Building


30 Woodbourne Avenue


Hamilton HM 08


Bermuda


Attn: Carla Ranum, Vice President


Fax: 441-292-8677


 


11.   Intermediary. 
There is no intermediary or broker to this Policy.


 


12.   Counterparts.  This Policy may be executed
by the parties in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts together shall
constitute one and the same instrument.  
Each counterpart may consist of a number of copies hereof signed by less
than both, but together signed by both, of the parties hereto.


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Policy to be executed in
duplicate by their duly authorized representatives.


 


	
  By and
  on behalf of:

  	
  By and
  on behalf of:

  
	
   

  	
   

  
	
  ACE
  BERMUDA INSURANCE LTD.

  	
  ACE
  CAPITAL RE LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Andrew M. Gibbs

  	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:  Andrew M. Gibbs

  	
   

  	
  Name:  [ILLEGIBLE]

  
	
   

  	
  Title:  CFO.

  	
   

  	
  Title:

  
						



 


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