(Multicurrency--Cross Border)
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International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of January 18, 0000
XXXX XX XXXXXXX, N.A. BA CREDIT CARD TRUST
("Party A") and ("Party B")
_____________________________________________________ __________________________________________________________
have entered and/or anticipate entering into one or more transactions (each a "Transaction") that are or will be
governed by this Master Agreement, which includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those Transactions.
Accordingly, the parties agree as follows:--
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have the meanings therein specified for
the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and the other
provisions of this Master Agreement, the Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the Schedule), such Confirmation will prevail for
the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the fact that this Master Agreement and all
Confirmations form a single agreement between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each Confirmation to be made by it, subject to
the other provisions of this Agreement.
(ii) Payments under this Agreement will be made on the due date for value on that date in the place of the
account specified in the relevant Confirmation or otherwise pursuant to this Agreement, in freely transferable
funds and in the manner customary for payments in the required currency. Where settlement is by delivery (that
is, other than by payment), such delivery will be made for receipt on the due date in the manner customary for
the relevant obligation unless otherwise specified in the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1) the condition precedent that no
Event of Default or Potential Event of Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of the relevant Transaction has occurred
or been effectively designated and (3) each other applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a payment or delivery by giving notice to
the other party at least five Local Business Days prior to the scheduled date for the payment or delivery to which such
change applies unless such other party gives timely notice of a reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make payment of any such amount will be
automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other party, replaced by an obligation upon
the party by whom the larger aggregate amount would have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount will be determined in respect of all
amounts payable on the same date in the same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made in the Schedule or a Confirmation by
specifying that subparagraph (ii) above will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any deduction or withholding for or on
account of any Tax unless such deduction or withholding is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be deducted or withheld (including the
full amount required to be deducted or withheld from any additional amount paid by X to Y under this
Section 2(d)) promptly upon the earlier of determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy), or other documentation reasonably
acceptable to Y, evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to which Y is otherwise
entitled under this Agreement, such additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes, whether assessed against X or Y) will
equal the full amount Y would have received had no such deduction or withholding been required. However,
X will not be required to pay any additional amount to Y to the extent that it would not be required to
be paid but for:--
(A) the failure by Y to comply with or perform any agreement contained in Section 4(a)(i), 4(a)(iii)
or 4(d); or
(B) the failure of a representation made by Y pursuant to Section 3(f) to be accurate and true unless
such failure would not have occurred but for (I) any action taken by a taxing authority, or brought in
a court of competent jurisdiction, on or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with respect to a party to this Agreement) or
(II) a Change in Tax Law.
(ii) Liability. If:—
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(1) X is required by any applicable law, as modified by the practice of any relevant governmental revenue
authority, to make any deduction or withholding in respect of which X would not be required to pay an
additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against X,
then, except to the extent Y has satisfied or then satisfies the liability resulting from such Tax, Y will
promptly pay to X the amount of such liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective designation of an Early Termination Date
in respect of the relevant Transaction, a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest (before as well as after judgment) on
the overdue amount to the other party on demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of actual payment, at the Default Rate. Such
interest will be calculated on the basis of daily compounding and the actual number of days elapsed. If, prior to the
occurrence or effective designation of an Early Termination Date in respect of the relevant Transaction, a party
defaults in the performance of any obligation required to be settled by delivery, it will compensate the other party on
demand if and to the extent provided for in the relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed to be repeated by each party on each date
on which a Transaction is entered into and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organized and validly existing under the laws of the jurisdiction of its organization
or incorporation and, if relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other documentation relating to this
Agreement to which it is a party, to deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform its obligations under this Agreement
and any obligations it has under any Credit Support Document to which it is a party and has taken all necessary
action to authorize such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance do not violate or conflict with any
law applicable to it, any provision of its constitutional documents, any order or judgment of any court or
other agency of government applicable to it or any of its assets or any contractual restriction binding on or
affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to have been obtained by it with respect
to this Agreement or any Credit Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any Credit Support Document to which it is
a party constitute its legal, valid and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its knowledge, Termination
Event with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement or any Credit Support Document to which it is a party.
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(c) Absence of Litigation. There is not pending or, to its knowledge, threatened against it or any of its
Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency
or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this
Agreement or any Credit Support Document to which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is furnished in writing by or on behalf of
it to the other party and is identified for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material aspect.
(e) Payer Tax Representation. Each representation specified in the Schedule as being made by it for the purpose of
this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as being made by it for the purpose
of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have any obligation under this Agreement or
under any Credit Support Document to which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or, in certain cases under subparagraph
(iii) below, to such government or taxing authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation; and
(iii) upon reasonable demand by such other party, any form or document that may be required or reasonably
requested in writing in order to allow such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any deduction or withholding for or on account
of any Tax or with such deduction or withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the legal or commercial position of the
party in receipt of such demand), with any such form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and to be delivered with any reasonably required
certification,
in each case by the date specified in the Schedule or such Confirmation or, if none is specified, as soon as reasonably
practicable.
(b) Maintain Authorizations. It will use all reasonable efforts to maintain in full force and effect all consents
of any governmental or other authority that are required to be obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party and will use all reasonable efforts to obtain any that may become
necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all applicable laws and orders to which it may
be subject if failure so to comply would materially impair its ability to perform its obligations under this Agreement
or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made by it under Section 3(f) to be
accurate and true promptly upon learning of such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax levied or imposed upon it or in respect
of its execution or performance of this Agreement by a jurisdiction in which it is incorporated, organized, managed and
controlled, or considered to have its seat, or in which a branch or office through which it is acting for the purpose of
this Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the other party against any Stamp Tax levied or
imposed upon the other party or in respect of the other party's execution or performance of this Agreement by any such
Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the other party.
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5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or, if applicable, any Credit Support
Provider of such party or any Specified Entity of such party of any of the following events constitutes an event of
default (an "Event of Default") with respect to such party:—
(i) Failure to Pay or Deliver. Failure by the party to make, when due, any payment under this Agreement or
delivery under Section 2(a)(i) or 2(e) required to be made by it if such failure is not remedied on or before
the third Local Business Day after notice of such failure is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or perform any agreement or obligation (other
than an obligation to make any payment under this Agreement or delivery under Section 2(a)(i) or 2(e) or to
give notice of a Termination Event or any agreement or obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to
be complied with or performed by the party in accordance with this Agreement if such failure is not remedied on
or before the thirtieth day after notice of such failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such party to comply with or perform any
agreement or obligation to be complied with or performed by it in accordance with any Credit Support
Document if such failure is continuing after any applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or the failing or ceasing of such
Credit Support Document to be in full force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction of all obligations of such party
under each Transaction to which such Credit Support Document relates without the written consent of the
other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or rejects, in whole or
in part, or challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation under Section 3(e) or (f)) made or
repeated or deemed to have been made or repeated by the party or any Credit Support Provider of such party in
this Agreement or any Credit Support Document proves to have been incorrect or misleading in any material
respect when made or repeated or deemed to have been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support Provider of such party or any
applicable Specified Entity of such party (1) defaults under a Specified Transaction and, after giving effect
to any applicable notice requirement or grace period, there occurs a liquidation of, an acceleration of
obligations under, or an early termination of, that Specified Transaction, (2) defaults, after giving effect to
any applicable notice requirement or grace period, in making any payment or delivery due on the last payment,
delivery or exchange date of, or any payment on early termination of, a Specified Transaction (or such default
continues for at least three Local Business Days if there is no applicable notice requirement or grace period)
or (3) disaffirms, disclaims, repudiates or rejects, in whole or in part, a Specified Transaction (or such
action is taken by any person or entity appointed or empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as applying to the party, the occurrence
or existence of (1) a default, event of default or other similar condition or event (however
described) in respect of such party, any Credit Support Provider of such party or any applicable Specified
Entity of such party under one or more agreements or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of not less than the applicable Threshold Amount (as
specified in the Schedule) which has resulted in such Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such agreements or instruments, before it would otherwise
have been due and payable or (2) a default by such party, such Credit Support Provider or such Specified Entity
(individually or collectively) in making one or more payments on the due date thereof in an aggregate amount of
not less than the applicable Threshold Amount under such agreements or instruments (after giving effect to any
applicable notice requirement or grace period);
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(vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable Specified Entity of
such party:--
(1) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (2) becomes insolvent
or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as
they become due; (3) makes a general assignment, arrangement or composition with or for the benefit of
its creditors; (4) institutes or has instituted against it a proceeding seeking a judgment of insolvency
or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any
such proceeding or petition instituted or presented against it, such proceeding or petition (A) results
in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order
for its winding-up or liquidation or (B) is not dismissed, discharged, stayed or restrained in each case
within 30 days of the institution or presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or
merger); (6) seeks or becomes subject to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official for it or for all or substantially
all its assets; (7) has a secured party take possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or
against all or substantially all its assets and such secured party maintains possession, or any such
process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; (8)
causes or is subject to any event with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified in clauses (1) to (7) (inclusive);
or (9) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider of such party consolidates or
amalgamates with, or merges with or into, or transfers all or substantially all its assets to, another entity
and, at the time of such consolidation, amalgamation, merger or transfer:--
(1) the resulting, surviving or transferee entity fails to assume all the obligations of such party
or such Credit Support Provider under this Agreement or any Credit Support Document to which it or its
predecessor was a party by operation of law or pursuant to an agreement reasonably satisfactory to the
other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend (without the consent of the other
party) to the performance by such resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or, if applicable, any Credit Support
Provider of such party or any Specified Entity of such party of any event specified below constitutes an Illegality if
the event is specified in (i) below, a Tax Event if the event is specified in (ii) below or a Tax Event Upon Merger if
the event is specified in (iii) below, and, if specified to be applicable, a Credit Event Upon Merger if the event is
specified pursuant to (iv) below or an Additional Termination Event if the event is specified pursuant to (v) below:--
(i) Illegality. Due to the adoption of, or any change in, any applicable law after the date on which a
Transaction is entered into, or due to the promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any applicable law after such date, it becomes
unlawful (other than as a result of a breach by the party of Section 4(b)) for such party (which will be the
Affected Party):--
(1) to perform any absolute or contingent obligation to make a payment or delivery or to receive a
payment or delivery in respect of such Transaction or to comply with any other material provision of
this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to perform, any contingent or other
obligation which the party (or such Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
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(ii) Tax Event. Due to (x) any action taken by a taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a Change in Tax Law, the party (which will
be the Affected Party) will, or there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or 6(e))
or (2) receive a payment from which an amount is required to be deducted or withheld for or on account of a Tax
(except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is required to be
paid in respect of such Tax under Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next succeeding Scheduled Payment Date
will either (1) be required to pay an additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from
which an amount has been deducted or withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than by reason of Section 2(d)(i)(4)(A) or
(B)), in either case as a result of a party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which will be the Affected Party) where
such action does not constitute an event described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified in the Schedule as applying to the
party, such party ("X"), any Credit Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, another
entity and such action does not constitute an event described in Section 5(a)(viii) but the creditworthiness of
the resulting, surviving or transferee entity is materially weaker than that of X, such Credit Support Provider
or such Specified Entity, as the case may be, immediately prior to such action (and, in such event, X or its
successor or transferee, as appropriate, will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event" is specified in the Schedule or any
Confirmation as applying, the occurrence of such event (and, in such event, the Affected Party or Affected
Parties shall be as specified for such Additional Termination Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would otherwise constitute or give rise
to an Event of Default also constitutes an Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of Default with respect to a party (the
"Defaulting Party") has occurred and is then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of Default, designate a day not earlier than
the day such notice is effective as an Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a party, then an Early Termination Date in
respect of all outstanding Transactions will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the extent analogous thereto, (8), and as of
the time immediately preceding the institution of the relevant proceeding or the presentation of the relevant petition
upon the occurrence with respect to such party of an Event of Default specified in Section 5(a)(vii)(4) or, to the
extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will, promptly upon becoming aware of it,
notify the other party, specifying the nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other party may reasonably require.
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(ii) Transfer to Avoid Termination Event. If either an Illegality under Section 5(b)(i)(1) or a Tax Event
occurs and there is only one Affected Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to designate an Early Termination Date
under Section 6(b)(iv), use all reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days after it gives notice under Section
6(b)(i) all its rights and obligations under this Agreement in respect of the Affected Transactions to another
of its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give notice to the other party to that effect
within such 20 day period, whereupon the other party may effect such a transfer within 30 days after the notice
is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to and conditional upon the prior
written consent of the other party, which consent will not be withheld if such other party's policies in effect
at such time would permit it to enter into transactions with the transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there are two
Affected Parties, each party will use all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination Event.
(iv) Right to Terminate. If:—
(1) a transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii), as the case may be, has
not been effected with respect to all Affected Transactions within 30 days after an Affected Party gives
notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or an Additional Termination
Event occurs, or a Tax Event Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case of a Tax Event Upon Merger, any
Affected Party in the case of a Tax Event or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a Credit Event Upon Merger or an Additional
Termination Event if there is only one Affected Party may, by not more than 20 days notice to the other party
and provided that the relevant Termination Event is then continuing, designate a day not earlier than the day
such notice is effective as an Early Termination Date in respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section 6(a) or (b), the Early Termination
Date will occur on the date so designated, whether or not the relevant Event of Default or Termination Event is
then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination Date, no further payments or
deliveries under Section 2(a)(i) or 2(e) in respect of the Terminated Transactions will be required to be made,
but without prejudice to the other provisions of this Agreement. The amount, if any, payable in respect of an
Early Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the occurrence of an Early Termination
Date, each party will make the calculations on its part, if any, contemplated by Section 6(e) and will provide
to the other party a statement (1) showing, in reasonable detail, such calculations (including all relevant
quotations and specifying any amount payable under Section 6(e)) and (2) giving details of the relevant account
to which any amount payable to it is to be paid. In the absence of written confirmation from the source of a
quotation obtained in determining a Market Quotation, the records of the party obtaining such quotation will be
conclusive evidence of the existence and accuracy of such quotation.
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(ii) Payment Date. An amount calculated as being due in respect of any Early Termination Date under Section
6(e) will be payable on the day that notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of Default) and on the day which is two
Local Business Days after the day on which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event). Such amount will be paid together
with (to the extent permitted under applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination Date to (but excluding) the date such
amount is paid, at the Applicable Rate. Such interest will be calculated on the basis of daily compounding and
the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the following provisions shall apply based
on the parties' election in the Schedule of a payment measure, either "Market Quotation" or "Loss", and a payment
method, either the "First Method" or the "Second Method". If the parties fail to designate a payment measure or
payment method in the Schedule, it will be deemed that "Market Quotation" or the "Second Method", as the case may be,
shall apply. The amount, if any, payable in respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event of Default:--
(1) First Method and Market Quotation. If the First Method and Market Quotation apply, the Defaulting
Party will pay to the Non-defaulting Party the excess, if a positive number, of (A) the sum of the
Settlement Amount (determined by the Non-defaulting Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts owing to the Non-defaulting Party over (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the Defaulting Party will pay to the
Non-defaulting Party, if a positive number, the Non-defaulting Party's Loss in respect of this Agreement.
(3) Second Method and Market Quotation. If the Second Method and Market Quotation apply, an amount will
be payable equal to (A) the sum of the Settlement Amount (determined by the Non-defaulting Party) in
respect of the Terminated Transactions and the Termination Currency Equivalent of the Unpaid Amounts
owing to the Non-defaulting Party less (B) the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party. If that amount is a positive number, the Defaulting Party will pay it to
the Non-defaulting Party; if it is a negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an amount will be payable equal to the
Non-defaulting Party's Loss in respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a Termination Event:--
(1) One Affected Party. If there is one Affected Party, the amount payable will be determined in
accordance with Section 6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and to the Non-defaulting Party will be
deemed to be references to the Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the Transactions are being terminated, Loss shall
be calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:--
(A) if Market Quotation applies, each party will determine a Settlement Amount in respect of the
Terminated Transactions, and an amount will be payable equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party with the higher Settlement Amount ("X") and
the Settlement Amount of the party with the lower Settlement Amount ("Y") and (b)
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the Termination
Currency Equivalent of the Unpaid Amounts owing to X less (II) the Termination Currency Equivalent
of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in respect of this Agreement (or, if
fewer than all the Transactions are being terminated, in respect of all Terminated Transactions)
and an amount will be payable equal to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it is a negative number, X will pay the
absolute value of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs because "Automatic
Early Termination" applies in respect of a party, the amount determined under this Section 6(e) will be subject
to such adjustments as are appropriate and permitted by law to reflect any payments or deliveries made by one
party to the other under this Agreement (and retained by such other party) during the period from the relevant
Early Termination Date to the date for payment determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an amount recoverable under this
Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such amount is payable for the loss of
bargain and the loss of protection against future risks and except as otherwise provided in this Agreement
neither party will be entitled to recover any additional damages as a consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or obligation in or under this Agreement may be
transferred (whether by way of security or otherwise) by either party without the prior written consent of the other
party, except that:--
(a) a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation with, or merger
with or into, or transfer of all or substantially all its assets to, another entity (but without prejudice to any other
right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any amount payable to it from a
Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement will be made in the relevant currency
specified in this Agreement for that payment (the "Contractual Currency"). To the extent permitted by applicable law,
any obligation to make payments under this Agreement in the Contractual Currency will not be discharged or satisfied by
any tender in any currency other than the Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and in good faith in converting the
currency so tendered into the Contractual Currency, of the full amount in the Contractual Currency of all amounts
payable in respect of this Agreement. If for any reason the amount in the Contractual Currency so received falls short
of the amount in the Contractual Currency payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional amount in the Contractual Currency as
may be necessary to compensate for the shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this Agreement, the party receiving the payment
will refund promptly the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or order expressed in a currency other
than the Contractual Currency is rendered (i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this Agreement or (iii) in respect of a
judgment or order of another court for the payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is entitled pursuant to the judgment or
order, will be entitled to receive immediately from the other party the amount of any shortfall of the Contractual
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Currency received by such party as a consequence of sums paid in such other currency and will refund promptly to the
other party any excess of the Contractual Currency received by such party as a consequence of sums paid in such other
currency if such shortfall or such excess arises or results from any variation between the rate of exchange at which the
Contractual Currency is converted into the currency of the judgment or order for the purposes of such judgment or order
and the rate of exchange at which such party is able, acting in a reasonable manner and in good faith in converting the
currency received into the Contractual Currency, to purchase the Contractual Currency with the amount of the currency of
the judgment or order actually received by such party. The term "rate of exchange" includes, without limitation, any
premiums and costs of exchange payable in connection with the purchase of or conversion into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these indemnities constitute separate and
independent obligations from the other obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party to which any payment is owed and will
not be affected by judgment being obtained or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient for a party to demonstrate that it
would have suffered a loss had an actual exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with
respect to its subject matter and supersedes all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this Agreement will be effective unless in
writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties or confirmed by
an exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the parties
under this Agreement will survive the termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights, powers, remedies and privileges
provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies and privileges provided by
law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered
in counterparts (including by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each Transaction from the moment they agree
to those terms (whether orally or otherwise). A Confirmation shall be entered into as soon as practicable and
may be executed and delivered in counterparts (including by facsimile transmission) or be created by an
exchange of telexes or by an exchange of electronic messages on an electronic messaging system, which in each
case will be sufficient for all purposes to evidence a binding supplement to this Agreement. The parties will
specify therein or through another effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect of this
Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege
will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise
of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of reference only and are not to affect the
construction of or to be taken into consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
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(a) If Section 10(a) is specified in the Schedule as applying, each party that enters into a Transaction through an
Office other than its head or home office represents to the other party that, notwithstanding the place of booking
office or jurisdiction of incorporation or organization of such party, the obligations of such party are the same as if
it had entered into the Transaction through its head or home office. This representation will be deemed to be repeated
by such party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives payments or deliveries for the purpose
of a Transaction without the prior written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such Multibranch Party may make and receive
payments or deliveries under any Transaction through any Office listed in the Schedule, and the Office through which it
makes and receives payments or deliveries with respect to a Transaction will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party for and against all reasonable
out-of-pocket expenses, including legal fees and Stamp Tax, incurred by such other party by reason of the enforcement
and protection of its rights under this Agreement or any Credit Support Document to which the Defaulting Party is a
party or by reason of the early termination of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in any manner set
forth below (except that a notice or other communication under Section 5 or 6 may not be given by facsimile transmission
or electronic messaging system) to the address or number or in accordance with the electronic messaging system details
provided (see the Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is received by a responsible employee
of the recipient in legible form (it being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt
requested), on the date that mail is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic message is received,
unless the date of delivery (or attempted delivery) or that receipt, as applicable, is not a Local Business Day or that
communication is delivered (or attempted) or received, as applicable, after the close of business on a Local Business
Day, in which case that communication shall be deemed given and effective on the first following day that is a Local
Business Day.
(b) Change of Addresses. Either party may by notice to the other change the address, telex or facsimile number or
electronic messaging system details at which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in accordance with the law specified in the
Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement ("Proceedings"), each
party irrevocably:—
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(i) submits to the jurisdiction of the English courts, if this Agreement is expressed to be governed by
English law, or to the non-exclusive jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if this Agreement is expressed to be
governed by the laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in
any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction
over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction (outside, if this
Agreement is expressed to be governed by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or re-enactment thereof for the time being in force)
nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in any other
jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if any) specified opposite its name in
the Schedule to receive, for it and on its behalf, service of process in any Proceedings. If for any reason any
party's Process Agent is unable to act as such, such party will promptly notify the other party and within 30 days
appoint a substitute process agent acceptable to the other party. The parties irrevocably consent to service of
process given in the manner provided for notices in Section 12. Nothing in this Agreement will affect the right of
either party to serve process in any other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent permitted by applicable law, with
respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds
of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of
injunction, order for specific performance or for recovery of property, (iv) attachment of its assets (whether before
or after judgment) and (v) execution or enforcement of any judgment to which it or its revenues or assets might
otherwise be entitled in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent
permitted by applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event consisting of an Illegality, Tax Event or Tax
Event Upon Merger, all Transactions affected by the occurrence of such Termination Event and (b) with respect to any
other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any entity controlled, directly or indirectly,
by the person, any entity that controls, directly or indirectly, the person or any entity directly or indirectly under
common control with the person. For this purpose, "control" of any entity or person means ownership of a majority of
the voting power of the entity or person.
"Applicable Rate" means:—
(a) in respect of obligations payable or deliverable (or which would have been but for Section 2(a)(iii)) by a
Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either party from and after the date
(determined in accordance with Section 6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would have been but for Section 2(a)(iii))
by a Non-defaulting Party, the Non-default Rate; and
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(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification of, or any change in or amendment to,
any law (or in the application or official interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorization, exemption, notice, filing, registration or exchange
control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or evidence of any actual cost) to the relevant
payee (as certified by it) if it were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section 6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in respect of a payment under this
Agreement but for a present or former connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to such recipient (including, without
limitation, a connection arising from such recipient or related person being or having been a citizen or resident of
such jurisdiction, or being or having been organised, present or engaged in a trade or business in such jurisdiction,
or having or having had a permanent establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having executed, delivered, performed its obligations
or received a payment under, or enforced, this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of tax matters, by the practice of any
relevant governmental revenue authority) and "lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as otherwise agreed by the parties in
writing or determined pursuant to provisions contained, or incorporated by reference, in this Agreement, (b) in
relation to any other payment, in the place where the relevant account is located and, if different, in the principal
financial centre, if any, of the currency of such payment, (c) in relation to any notice or other communication,
including notice contemplated under Section 5(a)(i), in the city specified in the address for notice provided by the
recipient and, in the case of a notice contemplated by Section 2(b), in the place where the relevant new account is to
be located and (d) in relation to Section 5(a)(v)(2), in the relevant locations for performance with respect to such
Specified Transaction.
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"Loss" means, with respect to this Agreement or one or more Terminated Transactions, as the case may be, and a party,
the Termination Currency Equivalent of an amount that party reasonably determines in good faith to be its total losses
and costs (or gain, in which case expressed as a negative number) in connection with this Agreement or that Terminated
Transaction or group of Terminated Transactions, as the case may be, including any loss of bargain, cost of funding or,
at the election of such party but without duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading position (or any gain resulting from any of
them). Loss includes losses and costs (or gains) in respect of any payment or delivery required to have been made
(assuming satisfaction of each applicable condition precedent) on or before the relevant Early Termination Date and not
made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does not
include a party's legal fees and out-of-pocket expenses referred to under Section 11. A party will determine its Loss
as of the relevant Early Termination Date, or, if that is not reasonably practicable, as of the earliest date
thereafter as is reasonably practicable. A party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated Transactions and a party making the determination, an
amount determined on the basis of quotations from Reference Market-makers. Each quotation will be for an amount, if
any, that would be paid to such party (expressed as a negative number) or by such party (expressed as a positive
number) in consideration of an agreement between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference Market-maker to enter into a transaction (the
"Replacement Transaction") that would have the effect of preserving for such party the economic equivalent of any
payment or delivery (whether the underlying obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in respect of such Terminated Transaction or group
of Terminated Transactions that would, but for the occurrence of the relevant Early Termination Date, have been
required after that date. For this purpose, Unpaid Amounts in respect of the Terminated Transaction or group of
Terminated Transactions are to be excluded but, without limitation, any payment or delivery that would, but for the
relevant Early Termination Date, have been required (assuming satisfaction of each applicable condition precedent)
after that Early Termination Date is to be included. The Replacement Transaction would be subject to such
documentation as such party and the Reference Market-maker may, in good faith, agree. The party making the
determination (or its agent) will request each Reference Market-maker to provide its quotation to the extent reasonably
practicable as of the same day and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obligated to make a determination under Section 6(e), and, if each
party is so obliged, after consultation with the other. If more than three quotations are provided, the Market
Quotation will be the arithmetic mean of the quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will be the quotation remaining after
disregarding the highest and lowest quotations. For this purpose, if more than one quotation has the same highest
value or lowest value, then one of such quotations shall be disregarded. If fewer than three quotations are provided,
it will be deemed that the Market Quotation in respect of such Terminated Transaction or group of Terminated
Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or evidence of any actual cost) to the
Non-defaulting party (as certified by it) if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or home office.
"Potential Event of Default" means any event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market selected by the party determining a Market
Quotation in good faith (a) from among dealers of the highest credit standing which satisfy all the criteria that such
party applies generally at the time in deciding whether to offer or to make an extension of credit and (b) to the extent
practicable, from among such dealers having an office in the same city.
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"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in which the party is incorporated,
organized, managed and controlled or considered to have its seat, (b) where an Office through which the party is acting
for purposes of this Agreement is located, (c) in which the party executes this Agreement and (d) in relation to any
payment, from or through which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be made under Section 2(a)(i) with respect to
a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or withholding or similar right or
requirement to which the payer of an amount under Section 6 is entitled or subject (whether arising under this
Agreement, another contract, applicable law or otherwise) that is exercised by, or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether positive or negative) for each Terminated
Transaction or group of Terminated Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to any Unpaid Amounts) for each Terminated
Transaction or group of Terminated Transactions for which a Market Quotation cannot be determined or would not (in the
reasonable belief of the party making the determination) produce a commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether present or future, contingent or
otherwise, as principal or surety or otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction (including an agreement with respect
thereto) now existing or hereafter entered into between one party to this Agreement (or any Credit Support Provider of
such party or any applicable Specified Entity of such party) and the other party to this Agreement (or any Credit
Support Provider of such other party or any applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity
or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect to any of these transactions), (b) any combination of these
transactions and (c) any other transaction identified as a Specified Transaction in this Agreement or the relevant
confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or fee of any nature (including interest,
penalties and additions thereto) that is imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a) if resulting from a Termination Event,
all Affected Transactions and (b) if resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early Termination Date (or, if "Automatic Early
Termination" applies, immediately before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
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"Termination Currency Equivalent" means, in respect of any amount denominated in the Termination Currency, such
Termination Currency amount and, in respect of any amount denominated in a currency other than the Termination Currency
(the "Other Currency"), the amount in the Termination Currency determined by the party making the relevant determination
as being required to purchase such amount of such Other Currency as at the relevant Early Termination Date, or, if the
relevant Market Quotation or Loss (as the case may be), is determined as of a later date, that later date, with the
Termination Currency at the rate equal to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at or about 11:00 a.m. (in the city in
which such foreign exchange agent is located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early Termination Date or that later date. The
foreign exchange agent will, if only one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger or, if specified to be applicable, a
Credit Event Upon Merger or an Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the cost (without proof or evidence of any
actual cost) to each party (as certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination Date, the aggregate of (a) in respect of
all Terminated Transactions, the amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early Termination Date and which remain unpaid as at
such Early Termination Date and (b) in respect of each Terminated Transaction, for each obligation under Section 2(a)(i)
which was (or would have been but for Section 2(a)(iii)) required to be settled by delivery to such party on or prior to
such Early Termination Date and which has not been so settled as at such Early Termination Date, an amount equal to the
fair market value of that which was (or would have been) required to be delivered as of the originally scheduled date
for delivery, in each case together with (to the extent permitted under applicable law) interest, in the currency of
such amounts, from (and including) the date such amounts or obligations were or would have been required to have been
paid or performed to (but excluding) such Early Termination Date, at the Applicable Rate. Such amounts of interest will
be calculated on the basis of daily compounding and the actual number of days elapsed. The fair market value of any
obligation referred to in clause (b) above shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of the Termination Currency Equivalents of
the fair market values reasonably determined by both parties.
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IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below with effect from the
date specified on the first page of this document.
BANK OF AMERICA, N.A. BA CREDIT CARD TRUST
By: BA CREDIT CARD FUNDING, LLC, as beneficiary
and not in its individual capacity
____________________________________________________ _______________________________________________________
(Name of Party) (Name of Party)
/s/ Xxxxx Xxxxxxxxxxx /s/ Xxxxx XxXxxxxx
By______________________________________ By______________________________________
Name: Xxxxx Xxxxxxxxxxx Name: Xxxxx XxXxxxxx
Title: Senior Vice President Title: Senior Vice President
Date: January 18, 2007 Date: January 18, 2007
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EXECUTION COPY
SCHEDULE
to the
Master Agreement
dated as of January 18, 2007
between
BANK OF AMERICA, N.A. ("Party A"),
and
The BA CREDIT CARD TRUST ("Party B"), a statutory trust created pursuant to a trust agreement dated as of May 4,
2001, as amended and restated as of May 24, 2001, and as amended as of July 12, 2001, as of August 1, 2002, as of
June 27, 2003 and as of January 27, 2006, and as amended and restated as of June 10, 2006 and as of October 20,
2006 (as amended, restated or otherwise modified from time to time, the "Trust Agreement").
Party B intends to issue BAseries Class A(2007-1) Notes (the "Class A Notes") pursuant to the Second Amended and
Restated Indenture dated as of October 20, 2006 (as amended from time to time, the "Base Indenture") as
supplemented by the Amended and Restated BAseries Indenture Supplement dated as of June 10, 2006 (as amended from
time to time, the "Indenture Supplement") and as further supplemented by the Class A(2007-1) Terms Document dated
as of January 18, 2007 (the "Terms Document" and, collectively with the Base Indenture and the Indenture
Supplement, the "Indenture").
Part 1. Termination Provisions.
In this Agreement:
(a) "Specified Entity" shall not apply for purposes of this Agreement.
(b) "Specified Transaction" will have no meaning for the purpose of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii), the "Misrepresentation" provisions of Section
5(a)(iv), the "Default under Specified Transaction" provisions of Section 5(a)(v), the "Cross Default"
provisions of Section 5(a)(vi), the "Merger Without Assumption" provisions of Section 5(a)(viii), "Tax
Event Upon Merger" provisions of Section 5(b)(iii), and the "Credit Event Upon Merger" provisions of
Section 5(b)(iv) will not apply to Party A and will not apply to Party B. Solely with respect to payments
required to be made by Party A after the occurrence of an Early Redemption Event with respect to the Class
A Notes, the word "the third" in the final line of Section 5(a)(i) shall be replaced with "12:00 noon New
York City time of the first (or such other time as may be mutually agreed to by Party A, Party B and the
Note Rating Agencies)".
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(d) The "Automatic Early Termination" provisions of Section 6(a) will not apply to Party A and will not apply
to Party B.
(e) Payments on Early Termination. For the purpose of Section 6(e) of this Agreement, Market Quotation and
the Second Method will apply; provided, however, that in the case of an Event of Default with respect to
Party A as the Defaulting Party or a Termination Event with respect to Party A as the sole Affected Party,
the related Settlement Amount, if negative, will be deemed to be zero if the Market Quotation (as such
term is modified pursuant to Part 1(f) below) cannot be determined.
(f) Market Quotation. Notwithstanding anything to the contrary in the definition of Market Quotation in
Section 14, in the case of an Event of Default with respect to Party A as the Defaulting Party or a
Termination Event with respect to Party A as the sole Affected Party, if each Market Quotation is
negative, the Market Quotation will be deemed to be the negative quotation with the highest absolute value
received from the Reference Market-makers. To the extent that Party B, using its best efforts, is able to
obtain only one Market Quotation from the Reference Market-makers, Party A and Party B agree that Party B
shall enter into a Replacement Transaction with the Reference Market-maker providing such Market
Quotation. To the extent reasonably practicable, any agreement entered into with a Reference Market-maker
in connection with, and for the purpose of, creating a Replacement Transaction shall be on substantially
similar terms as the terms of this Agreement.
(g) Settlement Amount. Notwithstanding anything to the contrary in the definition of Settlement Amount in
Section 14, in the case of an Event of Default with respect to Party A as the Defaulting Party or a
Termination Event with respect to Party A as the sole Affected Party, the amount calculated pursuant to
paragraph (b) of the definition of Settlement Amount in respect of Party A shall be deemed to be zero.
(h) "Reference Market-maker" will not have the meaning specified in Section 14, but will instead mean the
following:
"Reference Market-maker" means five leading dealers in the relevant market selected by the party
determining the Market Quotation in good faith (a) from among dealers which are rated not lower
than investment grade by Standard & Poor's Ratings Services ("S&P") and Xxxxx'x Investors
Service, Inc. ("Xxxxx'x") which satisfy the criteria that such party applies generally at that
time in deciding whether to offer or make an extension of credit and (b) to the extent
practicable, from among dealers having an office in the same city.
(i) "Termination Currency" means United States Dollars ("USD").
(j) Additional Termination Events. The following events shall each constitute an Additional Termination Event
hereunder:
(i) A failure by Party A to provide the information or take the actions provided in Part 5(n) below.
For purposes of Section 6 of this Agreement, Party A shall be the sole Affected Party.
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(ii) An amendment and/or supplement to (A) the Second Amended and Restated Pooling and
Servicing Agreement, dated as of October 20, 2006 (as amended, supplemented or otherwise modified
from time to time, the "Pooling and Servicing Agreement"), between BA Credit Card Funding, LLC,
as Transferor (the "Transferor"), FIA Card Services, National Association, as Servicer ("FIA"),
and The Bank of New York, as Trustee (the "Trustee") (other than the execution of a series
supplement or an amendment, supplement or modification of a series supplement that is not the
Series 2001-D Supplement (as defined below)), (B) the Second Amended and Restated Series 2001-D
Supplement, dated as of October 20, 2006 (as amended, supplemented or otherwise modified from
time to time, the "Series 2001-D Supplement" and, collectively with the Pooling and Servicing
Agreement and the Trust Agreement, the "Base Transaction Documents"), between the Transferor, FIA
and the Trustee, (C) the Trust Agreement, or (D) the Indenture (other than the execution of a
terms document or an amendment, supplement or modification of a terms document that is not the
Terms Document), is made without the prior written consent of Party A (such consent not to be
unreasonably withheld), if such amendment and/or supplement: (a) adversely affects any of
Party A's rights or obligations under this Agreement; or (b) adversely modifies, or materially
impairs the ability of Party B to fully perform, any of Party B's obligations under this
Agreement. For purposes of Section 6 of this Agreement, Party B shall be the sole Affected Party.
Part 2. Tax Representations.
(a) Payer Tax Representations. For the purpose of Section 3(e) of this Agreement, Party A and Party B will
each make the following representation:
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 Sections 2(e), 6(d)(ii) and 6(e) of this Agreement) 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) of this Agreement, (ii)
the satisfaction of the agreement 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) and
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 Representations. For the purpose of Section 3(f) of this Agreement, Party A and Party B make the
following representations:
(i) The following representation will apply to Party B:
It is a US person for US federal income tax purposes.
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(ii) The following representation will apply to Party A:
It is a national banking association for US federal income tax purposes.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 3(d), 4(a)(i) and (ii) of this Agreement, each party agrees to deliver the
following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
========================== ====================================== ======================== =========================
Party required to Date by which Covered by Section 3(d)
deliver document Form/Document/Certificate to be delivered Representation
-------------------------- -------------------------------------- ------------------------ -------------------------
Party B Any form or document that may be Promptly upon No
reasonably requested, and that Party reasonable demand by
B is eligible to provide, in order the other party.
to allow the requesting party to
make a payment without (or with
reduced) withholding Tax.
-------------------------- -------------------------------------- ------------------------ -------------------------
Party A Any form or document that may be Promptly upon No
reasonably requested, and that Party reasonable demand by
A is eligible to provide, in order the other party.
to allow the requesting party to
make a payment without (or with
reduced) withholding Tax.
========================== ====================================== ======================== =========================
Party B (i) Internal Revenue Service Form (i) Upon execution of No
W-9 (or any successor form) of the this Agreement, (ii)
Beneficiary and (ii) any other form thereafter promptly
or document that may be reasonably upon reasonable demand
requested, and that Party B is by Party A and (iii)
eligible to provide, in order to promptly upon learning
allow the requesting party to make a that such form
payment without (or with reduced) previously provided by
withholding Tax. Party B has become
obsolete or incorrect.
========================== ====================================== ======================== =========================
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(b) Other documents to be delivered are:
-------------------------- -------------------------------------- ------------------------ -------------------------
Party required to Date by which
deliver document Form/Document/Certificate to be delivered Covered by Section 3(d)
-------------------------- -------------------------------------- ------------------------ -------------------------
Party A An opinion of counsel (which may be Upon execution of this Yes
in-house counsel) for Party A in the Agreement
form reasonably acceptable to Party B
-------------------------- -------------------------------------- ------------------------ -------------------------
Party A An incumbency certificate with Upon execution of this Yes
respect to the signatory of this Agreement
Agreement
-------------------------- -------------------------------------- ------------------------ -------------------------
Party B An opinion of counsel for Party B in Upon execution of this Yes
the form reasonably acceptable to Agreement
Party A
-------------------------- -------------------------------------- ------------------------ -------------------------
Party B An incumbency certificate with Upon execution of this Yes
respect to the signatory of this Agreement
Agreement
-------------------------- -------------------------------------- ------------------------ -------------------------
Party B Monthly Noteholders' Statement (as Upon each Transfer No
defined in the Indenture) Date (as defined in
the Indenture)
-------------------------- -------------------------------------- ------------------------ -------------------------
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to Party A:
Address: Bank of America, N.A.
Sears Tower
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Swap Operations
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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with a copy to:
Bank of America, N.A.
000 X. Xxxxx Xx., XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Capital Markets Documentation
Facsimile No.: (000) 000-0000
For all purposes.
Address for notices or communications to Party B:
Address: BA Credit Card Trust
c/o BA Credit Card Funding, LLC, as Beneficiary
000 Xxxxx Xxxxx Xxxxxx
Xxxxx #00-00
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx-Xxxx
with a copy to:
Bank of America, National Association
000 X. Xxxxx Xxxxxx
Mail Code: NC1-002-29-01
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxx
For all purposes.
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party and may act through its Charlotte, North Carolina, Chicago, Illinois, San
Francisco, California, New York, New York or Boston, Massachusetts Office, or such other Office as may be
agreed to by the parties in connection with a Transaction.
Party B is not a Multibranch Party.
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(e) Calculation Agent. The Calculation Agent is the Indenture Trustee, unless otherwise specified in a
Confirmation in relation to the relevant Transaction.
(f) Credit Support Document. Details of any Credit Support Document:
In the case of Party A: Not applicable.
In the case of Party B: Not applicable.
(g) Credit Support Provider.
In relation to Party A: Not applicable.
In relation to Party B: Not applicable.
(h) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State
of New York (without reference to choice of law doctrine but without prejudice to the provisions of
Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York).
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement will apply to any of the
Transactions, except that it will not apply to payments by each Party to the other if Party B so notifies
Party A at least ten (10) days in advance of the date such payments are due.
(j) "Affiliate" will have the meaning specified in Section 14 of this Agreement, except that with respect to
Party B there shall be deemed to be no Affiliates.
(k) "Regulation AB" means Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. §§
229.1100-229.1123, as such regulation may be amended from time to time and subject to such clarification
and interpretation as have been provided by the Securities and Exchange Commission ("SEC") in the adopting
release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7,
2005)) or by the staff of the SEC, or as may be provided in writing by the SEC or its staff.
Part 5. Other Provisions.
(a) Confirmation. The Confirmation, dated the date hereof, between Party A and Party B supplements, forms
part of, and will be read and construed as one with, this Agreement. A form of Confirmation is set forth
as Exhibit A hereto. This document shall be construed to form a single agreement with one Confirmation.
Reference to this "Agreement" means, with respect to a Transaction, this document together with the
Confirmation.
(b) Waiver of Trial By Jury. Each party waives, to the fullest extent permitted by applicable law, any right
it may have to a trial by jury in respect of any suit, action or proceeding relating to this Agreement or
any Transaction contemplated hereby. Each party (i) certifies that no representative, agent or attorney
of the other party has
7
represented, expressly or otherwise, that such other party would not, in the event
of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it
and the other party have been induced to enter this Agreement by, among other things, the mutual waivers
and certifications in this Section.
(c) Non-Petition. To the fullest extent permitted by applicable law, Party A hereby agrees that it will not
commence or join in commencing any bankruptcy or other insolvency action against Party B prior to the date
which is one year and one day after all Notes (as such term is defined in the Base Indenture) of Party B
have been paid in full. Nothing herein shall prevent Party A from participating in any such proceeding
once commenced.
(d) Assignment. In the event the long-term, senior unsecured debt rating of Party A is lowered to below the
category of BBB- by S&P or Baa3 by Xxxxx'x or such rating agencies' then equivalent ratings, or such
ratings are withdrawn by either S&P or Xxxxx'x, Party B shall direct Party A to assign and delegate, and
Party A shall assign and delegate, its rights and obligations under any Transaction to a replacement
counterparty.
(e) Provision for Payments from Party B. Notwithstanding anything contained in this Agreement to the
contrary, any amount required to be paid by Party B pursuant to this Agreement will be payable only to the
extent provided in, and from amounts on deposit in the Interest Funding sub-Account for the Class
A(2007-1) Notes which are specifically available to be applied therefor pursuant to, Section 3.13(d) of
the Indenture Supplement, as determined pursuant to Section 2.03(b) of the Terms Document and any amounts
specifically available to be applied therefor pursuant to Section 2.12 of the Terms Document (as such
terms are defined in the Confirmation). Party A will be entitled to the benefit of the Collateral and the
obligations of Party B under this Agreement will be secured obligations, in each case in accordance with
the terms of the Indenture. Party A will be a third-party beneficiary of the Indenture.
(f) Relationship Between Parties. Each party will be deemed to represent to the other party on the date on
which it enters into this Agreement that (absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary):
(i) Non-Reliance. It is acting for its own account, and it has made its own independent decisions to
enter into this Agreement and as to whether this Agreement 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 this Agreement; it being understood that information and explanations related to the terms and
conditions of this Agreement shall not be considered investment advice or a recommendation to enter into
this Agreement. 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 this Agreement.
(ii) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its
own behalf or through independent professional advice), and
8
understands and accepts, the terms, conditions
and risks of this Agreement. It is also capable of assuming, and assumes, the risks of this Agreement.
(iii) Status of Parties. The other party is not acting as a fiduciary for or as adviser to it in
respect of this Agreement.
(iv) It is entering into this Agreement, each Transaction and any other documentation relating to this
Agreement or any Transaction as principal (and not as agent or in any other capacity, fiduciary or
otherwise).
(g) Additional Representations.
(i) Each of Party A and Party B represents that (i) it is an "eligible contract participant" as
defined in § 1a(12) of the Commodity Exchange Act, as amended by the Commodity Futures Modernization Act
of 2000 (7 U.S.C. § 1a(12)) and (ii) the material terms of this Agreement and the Swap Transaction have
been individually tailored and negotiated.
(ii) Party B represents that: (i) it has the power to perform its obligations under the Indenture and
has taken all necessary action to authorize such performance; (ii) all governmental and other consents
that are required to have been obtained by it with respect to the Indenture have been obtained and are in
full force and effect and all conditions of any such consents have been complied with; (iii) its
obligations under the Indenture constitute its legal, valid and binding obligations, enforceable in
accordance with their terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors' rights generally and subject, as to enforceability, to equitable
principles of general application (regardless of whether enforcement is sought in a proceeding in equity
or at law)); (iv) no Event of Default (as defined in the Indenture) or Early Redemption Event (as defined
in the Indenture) with respect to any series, class or tranche of notes issued by it has occurred and is
continuing and no such event or circumstance would occur as a result of Party B entering into or
performing its obligations under the Indenture; and (v) there is not pending or, to its knowledge,
threatened against it any action, suit or proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of the Indenture or its ability to perform its obligations under the Indenture.
(h) Negative Interest Rates. Party A and Party B agree that:
if, with respect to a Calculation Period for a Transaction, a party ("X") is obligated to pay a Floating
Amount that is a negative number (either by reason of a negative Floating Rate or the subtraction of a
Spread from the Floating Rate), the Floating Amount with respect to X for that Calculation Period will be
deemed to be zero, and the other party ("Y") will pay to X the absolute value of the negative Floating
Amount, in addition to any amounts otherwise owed by Y to X, on the Payment Date such Floating Amount
would have been payable if it had been a positive number. Any amounts paid by Y to X pursuant to this
provision will be paid to such account as X may designate (unless Y gives timely notice
9
of a reasonable
objection to such designation) in the currency in which that Floating Amount would have been paid if it
had been a positive number (and without regard to the currency in which Y is otherwise obligated to make
payments).
(i) Limited Recourse. It is expressly understood and agreed by the parties hereto that (i) this Agreement and
each Transaction entered into pursuant to this Agreement is entered into by BA Credit Card Trust (the
"Trust") in the exercise of the powers and authority conferred and vested in it and not by the Transferor
individually or as Beneficiary, (ii) 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
the Beneficiary but are made and intended for the purpose of binding only the Trust, (iii) nothing herein
contained shall be construed as creating any liability on the part of the Beneficiary, individually or
personally, 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 Persons
claiming by, through or under such parties; provided, however, that the Beneficiary shall be liable in its
individual capacity for its own willful misconduct or gross negligence and (iv) notwithstanding the
proviso to clause (iii) above, under no circumstances shall the Beneficiary be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Trust under this Agreement.
(j) Condition Precedent. It shall be a condition precedent to the effectiveness of this Agreement that the
Trust shall credit the Required Derivative Reserve Amount to the Derivative Reserve Account on the
Issuance Date.
(k) Notice to Note Rating Agencies. Provided that Party B has actual knowledge of such event, Party B shall
provide prompt written notice to the Note Rating Agencies of any amendment to, or any transfer or
assignment of, this Agreement.
(l) USA PATRIOT Act Notice. Party A hereby notifies Party B that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Patriot Act"), Party A
is required to obtain, verify and record information that identifies Party B, which information includes
the name and address of Party B and other information that will allow Party A to identify Party B in
accordance with the Patriot Act.
(m) Additional Acknowledgments and Agreements of the Parties.
(i) Consent by Party A to Amendments to Certain Documents. Before any amendment or supplement is
made to any Base Transaction Document (other than the execution of a series supplement or an
amendment, supplement or modification of a series supplement that is not the Series 2001-D
Supplement) or the Indenture (other than the execution of a terms document or an amendment,
supplement or modification of a terms document that is not the Terms Document) which would
materially and adversely affect any of Party A's rights or obligations under this Agreement, or
materially and adversely modify, or materially impair
10
the ability of Party B to fully perform,
any of Party B's obligations under this Agreement, Party B shall provide Party A with a copy of
the proposed amendment or supplement and shall obtain the written consent of Party A (which
consent shall not be unreasonably withheld) to such amendment or supplement prior to its
adoption. For the avoidance of doubt, any Base Transaction Document and the Indenture may be
amended, supplemented or otherwise modified in accordance with the terms thereof without the
consent of Party A to cure any typographical error or ambiguity, provided that such actions shall
not materially and adversely affect in any respects the interests of Party A.
(n) Disclosure and Related Matters.
(i) Derivative Counterparty Information: Name, Organizational Form, General Character of Business,
Issued Ratings. The parties hereto acknowledge and agree that the statements set forth in
Exhibit B hereto (the "Derivative Counterparty Information"), which shall be set forth under the
heading "Transaction Parties—Derivative Counterparty" in the prospectus supplement, subject to
completion, related to the Class A Notes, dated January 9, 2007 (the "Preliminary Prospectus
Supplement"), and the prospectus supplement, related to the Class A Notes, dated January 10, 2007
(the "Final Prospectus Supplement" and, collectively with the Preliminary Prospectus Supplement,
the "Prospectus Supplement") constitute the only information furnished to Party B, the
Beneficiary or FIA by or on behalf of Party A for inclusion in the Prospectus Supplement as of
the date thereof. Party A hereby represents and warrants that, as of the date of the Preliminary
Prospectus Supplement, the Final Prospectus Supplement and this Agreement, the Derivative
Counterparty Information is true and correct in all material respects and does not omit to state
any material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. Notwithstanding anything
to the contrary herein, Party A gives no assurance that any of the ratings described in the
Derivative Counterparty Information will remain in effect for any given period of time or that
such ratings will not be lowered or withdrawn.
(ii) Additional Derivative Counterparty Information: Financial Information.
(A) Aggregate Significance Percentage of 10%. If at any time, in the sole
discretion of the Beneficiary, the "aggregate significance percentage" (as provided in
Item 1115(b)(1) of Regulation AB (as defined in Part 4(k)) of all derivative instruments
provided by Party A and any of its affiliates to Party B is 10% or more:
(I) Additional 1115(b)(1) Information. Party A shall within five (5) Business Days
following request therefor demonstrate to the satisfaction of the Beneficiary
and Party B that Party A is able to provide the financial information required
under Item 1115(b)(1) of Regulation AB for Party A (or for the group of
affiliated
11
entities, if applicable) in either XXXXX-compatible format or
through the incorporation by reference of such information from SEC filings
under the Securities Exchange Act of 1934, as amended (such information,
"Additional 1115(b)(1) Information" and, together with the Additional
1115(b)(2) Information (hereinbelow defined), "Additional Information").
(II) Alternatives to Provision of Financial Information. If Party A is unable to
satisfy the Beneficiary and Party B as to its ability to provide such
information, Party A shall, at its option, within ten (10) Business Days
following request therefor:
(1) Collateral. At the sole expense of Party A, without any expense or
liability to the Beneficiary, Party B or the Indenture Trustee,
promptly post collateral satisfactory to the Beneficiary and Party B in
an amount sufficient to reduce the aggregate significance percentage to
8% or less, pursuant to a Credit Support Annex or similar agreement
reasonably satisfactory to the Beneficiary, Party B and the Indenture
Trustee, or
(2) Substitution. At the sole expense of Party A, without any expense or
liability to the Beneficiary, Party B or the Indenture Trustee, assign
its rights and delegate its obligations under this Agreement to a
substitute counterparty reasonably acceptable to the Beneficiary and
Party B that enters into an agreement substantially similar in form to
this Agreement, to the extent reasonably practicable.
(B) Aggregate Significance Percentage of 20%. If at any time, in the sole
discretion of the Beneficiary, the "aggregate significance percentage" of all derivative
instruments provided by Party A and any of its affiliates to Party B is 20% or more:
(I) Additional 1115(b)(2) Information. Party A shall within five (5) Business Days
following request therefor demonstrate to the satisfaction of the Beneficiary
and Party B that Party A is able to provide:
(1) Financial Information. The financial information required under Item
1115(b)(2) of Regulation AB for Party A (or for the group of affiliated
entities, if applicable) in either XXXXX-compatible format or through
the incorporation by reference of such information from SEC filings
under the Securities Exchange Act of 1934, as amended (such
12
information, "Additional 1115(b)(2) Information"), together with
(2) Auditor's Consents. Any necessary auditor's consent to filing or
incorporation by reference of the Additional 1115(b)(2) Information.
(II) Alternatives to Provision of Financial Information. If Party A is unable to
satisfy the Beneficiary and Party B as to its ability to provide such
information and consents, Party A shall, at its option, within ten (10)
Business Days following request therefor:
(1) Collateral. At the sole expense of Party A, without any expense or
liability to the Beneficiary, Party B or the Indenture Trustee,
promptly post collateral satisfactory to the Beneficiary and Party A in
an amount sufficient to reduce the aggregate significance percentage to
16% or less, pursuant to a Credit Support Annex or similar agreement
reasonably satisfactory to the Beneficiary, Party B and the Indenture
Trustee, or
(2) Substitution. At the sole expense of Party A, without any expense or
liability to the Beneficiary, Party B or the Indenture Trustee, assign
its rights and delegate its obligations under this Agreement to a
substitute counterparty reasonably acceptable to the Beneficiary and
Party B that enters into an agreement substantially similar in form to
this Agreement, to the extent reasonably practicable.
(iii) Indemnification by Party A. Party A hereby agrees to indemnify and hold harmless FIA, the
Beneficiary, Party B and the Indenture Trustee, the respective present directors, officers,
employees and agents of each of the foregoing and each person, if any, who controls FIA, the
Beneficiary, Party B or the Indenture Trustee within the meaning of Section 15 of the Securities
Act of 1933, as amended (the "Act"), or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), from and against any and all losses, claims, liabilities, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs, judgments, and any
other costs (including those in connection with investigation and defense), fees and expenses
that any of them may sustain as and when such losses, claims, liabilities, damages, penalties,
fines, forfeitures, legal fees or expenses or related costs, judgments, or any other costs, fees
or expenses are incurred, insofar as such losses, claims, liabilities, damages, penalties, fines,
forfeitures, legal fees or expenses or related costs, judgments, or any other costs, fees or
expenses (or actions in respect thereof) arise out of or are based upon:
13
(A) any untrue statement or alleged untrue statement of any material fact contained in the
Derivative Counterparty Information or the Additional Information, or any omission or an
alleged omission to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they were
made, not misleading, and
(B) any failure of Party A to provide the Additional Information or any required auditor's
consents to the Beneficiary and Party B pursuant to Part 5(n) hereof.
Party A shall reimburse FIA, the Beneficiary, Party B and the Indenture Trustee, the present
respective officers, directors, employees and agents of each of the foregoing and any such
controlling person for any legal or other expenses reasonably incurred by it or any of them in
connection with investigating or defending any such losses, claims, liabilities, damages,
penalties, fines, forfeitures, legal fees or expenses or related costs, judgments, or any other
costs, fees or expenses, as and when incurred.
(iv) Indemnification by FIA, the Beneficiary and Party B. FIA, the Beneficiary and Party B, jointly
and severally, hereby agree to indemnify and hold harmless Party A, its present directors,
officers, employees and agents and each person, if any, who controls Party A within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, liabilities, damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs (including those in connection with investigation and
defense), fees and expenses that any of them may sustain as and when such losses, claims,
liabilities, damages, penalties, fines, forfeitures, legal fees or expenses or related costs,
judgments, or any other costs, fees or expenses are incurred, insofar as such losses, claims,
liabilities, damages, penalties, fines, forfeitures, legal fees or expenses or related costs,
judgments, or any other costs, fees or expenses (or actions in respect thereof) arise out of or
are based upon, any untrue statement or alleged untrue statement of any material fact contained
in the Prospectus Supplement and the prospectus, dated January 9, 2007, accompanying the
Prospectus Supplement (other than the Derivative Counterparty Information and the Additional
Information), or any omission or an alleged omission to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (other than omissions or alleged omissions related to the
Derivative Counterparty Information or the Additional Information).
FIA, the Beneficiary and Party B, jointly and severally, shall reimburse Party A, its present
officers, directors, employees and agents and any such controlling person for any legal or other
expenses reasonably incurred by it or any of them in connection with investigating or defending
any such losses, claims, liabilities, damages, penalties, fines, forfeitures, legal fees or
expenses or related costs, judgments, or any other costs, fees or expenses, as and when incurred.
14
The parties executing this Schedule have executed the Master Agreement and have agreed as to the contents
of this Schedule.
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxxxxxxx
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice President
BA CREDIT CARD TRUST
By: BA Credit Card Funding, LLC,
solely in its capacity as beneficiary and not in its
individual capacity
By: /s/ Xxxxx XxXxxxxx
Name: Xxxxx XxXxxxxx
Title: Senior Vice President
Acknowledged and Accepted solely with
respect to Part 5(n) of this Schedule:
FIA CARD SERVICES,
NATIONAL ASSOCIATION,
as Servicer
By: /s/ Xxxxx XxXxxxxx
Name: Xxxxx XxXxxxxx
Title: Senior Vice President
Acknowledged and Accepted solely with
respect to Part 5(n) of this Schedule:
BA CREDIT CARD FUNDING, LLC,
as Beneficiary
By: /s/ Xxxxx XxXxxxxx
Name: Xxxxx XxXxxxxx
Title: Senior Vice President
EXHIBIT A to Schedule
Date: January 18, 2007
To: BA Credit Card Trust
From: Bank of America, N.A.
Subject: Swap Transaction
The purpose of this communication is to set forth the terms and conditions of the swap
transaction entered into on the Trade Date referred to below (the "Swap Transaction"), between the BA CREDIT CARD
TRUST ("Party B") and BANK OF AMERICA, N.A. ("Party A"), but only relates to the BAseries 5.17% Class A(2007-1)
Notes (the "Class A Notes") issued pursuant to the Second Amended and Restated Indenture dated as of October 20,
2006 (as amended from time to time, the "Base Indenture") as supplemented by the Amended and Restated BAseries
Indenture Supplement dated as of June 10, 2006 (as amended from time to time, the "Indenture Supplement") and as
further supplemented by the Class A(2007-1) Terms Document dated as of January 18, 2007 (the "Terms Document").
This communication constitutes a "Confirmation" as referred to in the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the ISDA Master Agreement dated
as of January 18, 2007 between Party A and Party B (the "Master Agreement"). All provisions contained in, or
incorporated by reference to, such Master Agreement shall govern this Confirmation except as expressly modified
below.
This Confirmation and the Schedule to the Master Agreement (the "Schedule") each incorporate the
definitions and provisions contained in (i) the 2000 ISDA Definitions (as amended and supplemented through January
18, 2007) (as published by the International Swaps and Derivatives Association, Inc.) (the "Definitions"), without
regard to any amendment or supplement to the Definitions subsequent to the date hereof, and (ii) the Terms
Document, the Indenture Supplement and the Base Indenture. In the event of any inconsistency between the
definitions in the Terms Document and any of the Indenture Supplement, the Base Indenture, the Definitions, the
Schedule or this Confirmation, the definitions in the Terms Document will govern; in the event of any
inconsistency between the definitions in the Indenture Supplement and any of the Base Indenture, the Definitions,
the Schedule or this Confirmation, the definitions in the Indenture Supplement will govern; in the event of any
inconsistency between the definitions in the Base Indenture and any of the Definitions, the Schedule or this
Confirmation, the definitions in the Base Indenture will govern; in the event of any inconsistency between this
Confirmation and either the Schedule or the Definitions, this Confirmation will govern; and in the event of any
inconsistency between the Schedule and the Definitions, the Schedule will govern.
The Master Agreement will govern only the Swap Transaction evidenced by the Schedule and this
Confirmation.
The terms of this particular Swap Transaction to which this Confirmation relates are as follows:
Trade Date: January 10, 2007
Effective Date: January 18, 2007
Termination Date: January 15, 2017 with respect to the Fixed Amounts and
January 17, 2017 with respect to the Floating Amounts;
provided, however, that in the event of an Early
Redemption Event described in Section 1201(c) of the Base
Indenture or an Event of Default and acceleration under
the Base Indenture with respect to the Class A Notes, the
Termination Date will be the earlier of (i) the date on
which the Notional Amount is zero and (ii) January 15,
2017 with respect to the Fixed Amounts and January 17,
2017 with respect to the Floating Amounts.
Fixed Amounts:
Fixed Rate Payer: Party A
Fixed Rate: 5.17%
Fixed Amount for Initial Fixed Rate Payer
Payment Date: $4,092,916.67
Fixed Amount: For each Fixed Rate Payer Payment Date other than the
initial Fixed Rate Payer Payment Date, an amount
calculated on a formula basis for that Fixed Rate Payer
Payment Date as follows:
Fixed Rate
Fixed = Notional x Fixed
Amount Amount Rate
________________________________
12
Fixed Rate Notional Amount: For the initial Fixed Rate Payer Payment Date,
$500,000,000 (the Initial Dollar Principal Amount of the
Class A Notes), and for each Fixed Rate Payer Payment Date
thereafter the Outstanding Dollar Principal Amount of the
Class A Notes as of the Record Date immediately preceding
such Fixed Rate Payer Payment Date
Fixed Rate Payer Payment Dates: The Business Day immediately prior to each Interest
Payment Date.
Floating Amounts:
Floating Rate Payer: Party B.
Calculation Periods: For the initial Floating Rate Payer Payment Date, the
period from and including the Effective Date through the
day preceding the first Interest Payment Date; and for
each Floating Rate Payer Payment Date thereafter, each
Calculation Period will be the period from and including
the previous Interest Payment Date through the day
preceding the current Interest Payment Date.
Floating Rate Payer Payment Dates: The Business Day immediately prior to each Interest
Payment Date.
Floating Rate Option: USD-LIBOR-BBA; provided, however, that the last sentence
of the definition of "USD-LIBOR-Reference Banks" is
hereby amended to replace the penultimate use of "that
Reset Date" with "the day that is two London Banking Days
preceding that Reset Date."
Reset Dates: Means, with respect to the initial Floating Rate Payer
Payment Date, the Effective Date, and with respect to each
Floating Rate Payer Payment Date after the initial
Floating Rate Payer Payment Date, the first day of the
related Calculation Period for such Floating Rate Payer
Payment Date.
Designated Maturity: One month.
Floating Rate Spread: Plus the "Floating Rate Spread," as defined in Exhibit 1
to this Confirmation.
Floating Amount for Initial Floating Rate
Payer Payment Date: The amount specified in Exhibit 1 to this Confirmation.
Floating Rate Notional Amount: For the initial Floating Rate Payer Payment Date,
$500,000,000 (the Initial Dollar Principal Amount of the
Class A Notes), and for each Floating Rate Payer Payment
Date thereafter the Outstanding Dollar Principal Amount of
the Class A Notes as of the Record Date immediately
preceding such Floating Rate Payer Payment Date.
Floating Rate Day Count Fraction: Actual/360.
Compounding: Not Applicable.
Calculation Agent: Indenture Trustee.
Business Days: New York and Newark, Delaware.
Interest Payment Dates: The fifteenth day of each month commencing March 15, 2007,
or if such fifteenth day is not a Business Day, the next
succeeding Business Day.
Credit Support Document: Not applicable.
Other Provisions: If at any time during the Term of the Swap Transaction (i)
Party A's short-term credit rating (or the then equivalent
rating) from S&P is below A-1, or is withdrawn by S&P, or
(ii) in the case of a replacement counterparty for Party
A, if Party A does not have a short-term credit rating
from S&P, Party A's long-term credit rating (or the then
equivalent rating) from S&P is below A+, or is withdrawn
by S&P, Party A shall, within thirty days of such rating
or withdrawal, fund the interest reserve account
established and maintained as described in the Terms
Document (the "Interest Reserve Account") in an amount
equal to one-twelfth of the product of (a) the Fixed Rate,
and (b) the Outstanding Dollar Principal Amount of the
Class A Notes on the Record Date preceding such rating or
withdrawal for reinvestment in accordance with the Terms
Document; provided, however, that the failure of Party A
to adequately fund the Interest Reserve Account within
thirty days of such rating or withdrawal shall not
constitute an Event of Default pursuant to the provisions
of subsection 5(a) or a Termination Event pursuant to the
provisions of subsection 5(b). Party A shall treat the
amount on deposit in the Interest Reserve Account as its
money for tax purposes. After the funding of the Interest
Reserve Account, in the event there shall occur an Early
Termination Date as a result of an Event of Default with
respect to Party A as the Defaulting Party or a
Termination Event with respect to Party A as the Affected
Party, the funds then contained in the Interest Reserve
Account will be treated as BAseries Available Funds to the
extent provided in the Terms Document and the Indenture
Supplement. Upon termination of the Interest Reserve
Account as
provided in the Terms Document after payment of
all amounts owing to the holders of the Class A Notes that
are payable from such account, Party B will instruct the
Indenture Trustee to release all amounts on deposit
therein to Party A.
If Party B notifies Party A that netting of payments will
not apply to any of the Transactions pursuant to Part 4(i)
of the Schedule, each payment obligation of Party B under
Section 2(a)(i) of the Master Agreement in respect of this
Swap Transaction shall be subject to the condition
precedent that in respect of each such payment obligation
each amount payable by Party A with respect to this Swap
Transaction shall be paid by Party A by 12:00 noon, New
York City time, on the relevant Fixed Rate Payer Payment
Date.
London Banking Day: Banking Days in New York, New York and London, England.
Governing Law: New York.
Offices: Party A is a Multibranch Party.
Party B is not a Multibranch Party.
Payment Instructions Bank of America, New York
for Party A USD: ABA# 000-000-000
For: Bank of America Charlotte Global Derivative
Settlements
Account # 6550219386
Payment Instructions The Bank of New York; New York, NY
for Party B in USD: ABA# 000-000-000
GLA# 111-565
For Further Credit to: TAS A/C# 054640
Reference: BA Credit Card Trust
Collection Account - BAseries Class A(2007-1)
Attn.: Xxxxxxxxx Xxxxxxxx 000-000-0000
Please confirm that the foregoing correctly sets forth the terms of our agreement with respect to the Swap
Transaction by signing in the space provided below and sending a copy of the executed Confirmation to us.
It has been a pleasure working with you on this transaction and we look forward to working with you again in the
future.
Very truly yours,
BANK OF AMERICA, N.A.
By: /s/ Xxxx Xxxx Xxxxxx
Name: Xxxx Xxxx Xxxxxx
Title: Assistant Vice President
Agreed and Accepted by:
BA CREDIT CARD TRUST
By: BA Credit Card Funding, LLC,
solely in its capacity as beneficiary
and not in its individual capacity
By: /s/ Xxxxx XxXxxxxx
Name: Xxxxx XxXxxxxx
Title: Senior Vice President
EXHIBIT 1 to Confirmation
[Floating Rate Spread Letter]
EXHIBIT B to Schedule
Bank of America, N.A. (referred to as the derivative counterparty) is a national banking association
organized under the laws of the United States, with its principal executive offices located in Charlotte, North
Carolina. The derivative counterparty is a wholly-owned indirect subsidiary of Bank of America Corporation (the
"Corporation") and is engaged in a general consumer banking, commercial banking and trust business, offering a wide
range of commercial, corporate, international, financial market, retail and fiduciary banking services. As of
September 30, 2006, the derivative counterparty had consolidated assets of $1,186 billion, consolidated deposits
of $721 billion and stockholder's equity of $110 billion based on regulatory accounting principles.
The Corporation is a bank holding company and a financial holding company, with its principal executive
offices located in Charlotte, North Carolina. Additional information regarding the Corporation is set forth in
its Annual Report on Form 10-K for the fiscal year ended December 31, 2005, together with any subsequent documents
it filed with the Securities and Exchange Commission (the "SEC") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
Recent Developments: On January 1, 2006, the Corporation completed its merger with MBNA Corporation.
Additional information regarding the foregoing is available from the filings made by the Corporation with
the SEC, which filings can be inspected and copied at the public reference facilities maintained by the SEC at 000
X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Xxxxxx Xxxxxx, at prescribed rates. In addition, the SEC maintains a
website at xxxx://xxx.xxx.xxx, which contains reports, proxy statements and other information regarding
registrants that file such information electronically with the SEC.
The information concerning the Corporation, the derivative counterparty and the foregoing mergers
contained herein is furnished solely to provide limited introductory information and does not purport to be
comprehensive. Such information is qualified in its entirety by the detailed information appearing in the
documents and financial statements referenced herein.
Xxxxx'x currently rates the derivative counterparty's long-term debt as "Aa1" and short-term debt as
"P-1." The outlook is Stable. Standard & Poor's rates the derivative counterparty's long-term debt as "AA" and its
short-term debt as "A-1+." Ratings are on CreditWatch Positive. Fitch rates long-term debt of the derivative
counterparty as "AA-" and short-term debt as "F1+." The outlook is Positive. Further information with respect to
such ratings may be obtained from Xxxxx'x, Standard & Poor's and Fitch, respectively. No assurances can be given
that the current ratings of the derivative counterparty's instruments will be maintained.
The derivative counterparty will provide copies of the most recent Bank of America Corporation Annual
Report on Form 10-K, any subsequent reports on Form 10-Q, and any required reports on Form 8-K (in each case as
filed with the Commission pursuant to the Exchange Act), and the publicly available portions of the most recent
quarterly Call Report of
the derivative counterparty delivered to the Comptroller of the Currency, without charge,
to each person to whom this document is delivered, on the written request of such person. Written requests should
be directed to:
Bank of America Corporate Communications
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Communications
The delivery of this prospectus supplement shall not create any implication that there has been no change
in the affairs of the Corporation or the derivative counterparty since the date hereof, or that the information
with respect to the Corporation or the derivative counterparty contained or referred to herein is correct as of
any time subsequent to the dates referred to herein.
