EXHIBIT 10.1 - INTEREST RATE CAP AGREEMENT
(Multicurrency--Cross Border)
ISDA(R)
International Swaps and Derivatives Association, Inc.
MASTER AGREEMENT
dated as of May 7, 2002
WACHOVIA BANK, NATIONAL ASSOCIATION and TYLER INTERNATIONAL FUNDING, INC. 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.
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(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
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(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:--
(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
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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.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such
other party or its Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the
legal or commercial position of the party in receipt of such demand),
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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.
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
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(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);
(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
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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;
(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
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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.
(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.
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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.
(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
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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:--
10
(A) if Market Quotation applies, each party will
determine a Settlement Amount in respect of the
Terminated Transactions, and an amount will be
payable equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party
with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower
Settlement Amount ("Y") and (b) the Termination
Currency Equivalent of the Unpaid Amounts owing to X
less (II) the Termination Currency Equivalent of the
Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its
Loss in respect of this Agreement (or, if fewer than
all the Transactions are being terminated, in respect
of all Terminated Transactions) and an amount will be
payable equal to one-half of the difference between
the Loss of the party with the higher Loss ("X") and
the Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to
X; if it is a negative number, X will pay the absolute value
of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies
in respect of a party, the amount determined under this Section 6(e)
will be subject to such adjustments as are appropriate and permitted by
law to reflect any payments or deliveries made by one party to the
other under this Agreement (and retained by such other party) during
the period from the relevant Early Termination Date to the date for
payment determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation
applies an amount recoverable under this Section 6(e) is a reasonable
pre-estimate of loss and not a penalty. Such amount is payable for the
loss of bargain and the loss of protection against future risks and
except as otherwise provided in this Agreement neither party will be
entitled to recover any additional damages as a consequence of such
losses.
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
11
Agreement. If for any reason the amount in the Contractual Currency so received
falls short of the amount in the Contractual Currency payable in respect of this
Agreement, the party required to make the payment will, to the extent permitted
by applicable law, immediately pay such additional amount in the Contractual
Currency as may be necessary to compensate for the shortfall. If for any reason
the amount in the Contractual Currency so received exceeds the amount in the
Contractual Currency payable in respect of this Agreement, the party receiving
the payment will refund promptly the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
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.
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(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including
by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of
each Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall be entered into as soon as
practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of
telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power
or privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party
that enters into a Transaction through an Office other than its head or home
office represents to the other party that, notwithstanding the place of booking
office or jurisdiction of incorporation or 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;
13
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that
transmission is received by a responsible employee of the recipient in
legible form (it being agreed that the burden of proving receipt will
be on the sender and will not be met by a transmission report generated
by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas)
or the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received, unless the date of that delivery (or attempted
delivery) or that receipt, as applicable, is not a Local Business Day or that
communication is delivered (or attempted) or received, as applicable, after the
close of business on a Local Business Day, in which case that communication
shall be deemed given and effective on the first following day that is a Local
Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to 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:--
(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
14
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) is respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, 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).
15
"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 organized, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(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
16
been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will
be the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated 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
17
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.
"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.
18
"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.
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.
WACHOVIA BANK, NATIONAL ASSOCIATION TYLER INTERNATIONAL FUNDING, INC.
By: /s/ Xxx X. Xxxx By: /s/ Xxxxxx X. Xxxx
------------------------ ---------------------------
Name: Xxx X. Xxxx Name: Xxxxxx X. Xxxx
Title: Vice President Title: Vice President
Date: May 3, 2002 Date May 6, 2002
19
(Multicurrency--Cross Border)
ISDA (R)
International Swap Dealers Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of May 7, 2002
between WACHOVIA BANK, and TYLER INTERNATIONAL
NATIONAL ASSOCIATION FUNDING, INC.
("Party A") ("Party B")
PART 1: Termination Provisions
----------------------
(a) "Specified Entity" means in relation to Party A for the purpose of:-
Section 5(a)(v) (Default under Specified Transaction), none;
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none;
in relation to Party B for the purpose of:-
Section 5(a)(v) (Default under Specified Transaction) none;
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none.
(b) "Specified Transaction" will have the meaning specified in Section 14.
(c) The "Cross-Default" provisions of Section 5(a)(vi)
will not apply to Party A
will not apply to Party B.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will apply to Party A
will not apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a)
will not apply to Party A
will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "Termination Currency" means United States Dollars.
(h) "Additional Termination Event." The occurrence of any of the following
events shall be an Additional Termination Event:
(A) the Trustee declares an Additional Termination Event and
designates an Early Termination Date by notice given to Party
A in order to realize upon the Swap Collateral as described in
Part 5 of this Schedule;
(B) the short-term ratings of the unsecured and unsubordinated
debt, deposit or letter of credit obligations of Party A are
withdrawn by Standard & Poor's or Moody's or are reduced below
the Required Rating by Standard & Poor's or Moody's and Party
A fails to make a Required Transfer within 30 days of such
withdrawal or reduction in accordance with the terms of
Section (f) of Part 5 of this Schedule.
For purposes of the right to terminate under Section 6(b)(iv), Party A
will be the sole Affected Party for the above-described Additional
Termination Events. Notwithstanding which Party is the Affected Party
for any such Additional Termination Event, Party A shall make the
calculations under Section 6(e) of this Agreement as though it were the
non-Affected Party for purposes of Section 6(e)(ii)(1) of this
Agreement, provided that the Market Quotation for a Terminated
Transaction shall be the Reference Market-maker's price for entering
into a Replacement Transaction with a creditworthy counterparty in
which the Reference Market-maker:
(x) with respect to the Additional Termination Event described in
clause (A) above, would take the side that Party A had taken
in the Terminated Transaction, known as the "bid side"; and
(y) with respect to the Additional Termination Event described in
clause (B) above, would take the side that Party B had taken
in the Terminated Transaction, known as the "offered side".
(i) The "Breach of Agreement" provisions of Section 5(a)(ii)
will apply to Party A
will not apply to Party B
(j) The "Credit Support Default" provisions of Section 5(a)(iii)
will apply to Party A
will apply to Party B, as modified by Paragraph 7 of the
Credit Support Annex
(k) The "Misrepresentation" provisions of Section 5(a)(iv)
will apply to Party A
will not apply to Party B
(l) The "Default under Specified Transaction" provisions of Section
5(a)(v)
2
will apply to Party A
will not apply to Party B
(m) The "Bankruptcy" provisions of Section 5(a)(vii)
will apply to Party A
will not apply to Party B
(n) The "Merger Without Assumption" provisions of Section 5(a)(viii)
will apply to Party A
will not apply to Party B
(o) Events of Default. An Event of Default shall not occur with respect
to Party A under Section 5(a)(v)(1) or (2) when the default arises
solely (i) out of a wire transfer problem or an operational or
administrative error or omission (so long as the required funds or
property required to make that payment or delivery were otherwise
available to Party A) or (ii) from the general unavailability of the
relevant currency due to exchange controls or other similar
governmental action, but in either case only if such payment or
delivery is made within three Local Business Days after such problem
has been corrected, such error or omission has been discovered or
such currency becomes generally available.
PART 2: Tax Representations
-------------------
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will 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 Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other
party under this Agreement. In making this representation, it may
rely on (x) the accuracy of any representations made by the other
party pursuant to Section 3(f) of this Agreement, (y) 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) or
4(a)(iii) of this Agreement and (z) 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 (y) and the other party does not deliver
a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the following
representations specified below, if any:-
(i) The following representations will apply to Party A:
Party A is a national banking association created or organized
under the laws of the United States of America, is a United
States taxpayer for United States federal income tax purposes
and its federal taxpayer identification number is 00-0000000.
(ii) The following representations will apply to Party B:
3
Party B is a stock corporation created or organized under the
laws of the State of Delaware, is (or its beneficial owner if
Party B is disregarded for United States federal income tax
purposes) a United States taxpayer for United States federal
income tax purposes and its federal taxpayer identification
number is 00-0000000.
PART 3: Agreement to Deliver Documents
------------------------------
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents:
(a) Tax forms, documents or certificates to be delivered are:
Party required to Form/Document/Certificate Date by which to be delivered
deliver document
-------------------- ---------------------------------- ------------------------------
Party B Internal Revenue Service Form W-9 Upon execution and delivery of this
Agreement
Party A and Party B Any form, document or Upon request
certificate as may be requested
pursuant to Section 4(a)(iii) of
this Agreement.
4
(b) Other documents to be delivered are:
Party required to Form/Document/Certificate Date by Covered by Section
deliver document which to be 3(d) Representation
delivered
------------------- --------------------------------------- -------------------- ---------------------
Party A and Party Certified copies of all corporate Upon execution and Yes
B authorizations and any other delivery of this
documents with respect to the Agreement
execution, delivery and performance
of this Agreement and any Credit
Support Document
Party A and Party Certificate of authority and specimen Upon execution and Yes
B signatures of individuals executing delivery of this
this Agreement any Credit Support Agreement and
Document and Confirmations thereafter upon
request of the
other party
PART 4: Miscellaneous
-------------
(a) Address for Notices. For the purpose of Section 12(a) of this Agreement:-
Address for notice or communications to Party A:
Wachovia Bank, National Association
000 X. Xxxxxxx Xx.
XX0000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx, Senior Vice President
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Address for notice or communications to Party B:
Tyler International Funding, Inc.
0/xx/ Xxxxx, Xxxxx 000
0 Xxxx Xxxxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: Treasurer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
5
with copy to:
Circuit City Stores, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
(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 of this Agreement:-
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A.
(f) Credit Support Document. Details of any Credit Support Document:-
Credit Support Document means in relation to Party A: the Credit
Support Annex between Party A and Party B dated as of May 7, 2002.
Credit Support Document means in relation to Party B: Not applicable.
(g) Credit Support Provider.
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
its conflict of laws doctrine).
(i) Netting of Payments. Section 2(c) of this Agreement will not apply.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
(k) Required Ratings.
"Required Rating" means, for so long as the Certificates are
---------------
outstanding, a short-term debt rating of "A-1" from Standard and Poor's
(for so long as Standard and Poor's rates the Certificates) and a
short-term debt rating of "P-1" from Moody's (for so long as Moody's
rates the Certificates).
"Standard & Poor's" means Standard & Poor's, a division of the
-----------------
XxXxxx-Xxxx Companies, Inc.
6
"Moody's" means Xxxxx'x Investors Services, Inc.
-------
"Certificates" means the Circuit City Credit Card Master Trust Class A
------------
Floating Rate Asset Backed Certificates, Series 2002-1, the Circuit
City Credit Card Master Trust Class B Floating Rate Asset Backed
Certificates, Series 2002-1, and the Circuit City Credit Card Master
Trust Collateralized Trust Obligations, Series 2002-1 issued pursuant
to the Pooling and Servicing Agreement.
"Pooling and Servicing Agreement" means that certain Amended and
-------------------------------
Restated Master Pooling and Servicing Agreement dated as of December
31, 2001, among Tyler International Funding, Inc., as Transferor, First
North American National Bank, as Transferor under the Prior Agreement
and as Servicer, and Deutsche Bank Trust Company Americas (formerly
known as Bakers Trust Company), as Trustee (the "Trustee"), as
supplemented by the Series 2002-1 Supplement to Amended and Restated
Master Pooling and Servicing Agreement dated as May 7, 2002 among Tyler
International Funding, Inc., as Transferor, First North American
National Bank, as Servicer, and the Trustee.
If the short-term ratings of the unsecured and unsubordinated debt,
deposit or letter of credit obligations of Party A are withdrawn by
Standard & Poor's or Moody's or are reduced below the Required Rating
by Standard & Poor's or Moody's, Party A shall provide written notice
of such withdrawal or reduction to Party B, the Trustee, Standard &
Poor's and Moody's as soon as practicable but in any event within three
Business Days of such withdrawal or reduction.
PART 5: Other Provisions
----------------
(a) Delivery of Confirmations. For each Transaction entered into hereunder,
Party A shall promptly send to Party B a Confirmation via facsimile
transmission. Party B agrees to respond to such Confirmation within two
(2) Business Days, either confirming agreement thereto or requesting a
correction of any error(s) contained therein. Failure by Party A to
send a Confirmation or of Party B to respond within such period shall
not affect the validity or enforceability of such Transaction. Absent
manifest error, there shall be a presumption that the terms contained
in such Confirmation are the terms of the Transaction.
(b) Recording of Conversations. Each party to this Agreement acknowledges
and agrees to the tape recording of conversations between the parties
to this Agreement whether by one or other or both of the parties or
their agents, and that any such tape recordings may be submitted in
evidence in any Proceedings relating to the Agreement.
(c) Section 3(a) of this Agreement is amended by (i) deleting the word
"and" at the end of clause (iv); (ii) deleting the period at the end of
clause (v) and inserting therein "; and " ; and (iii) by inserting the
following additional representation:
"(vi) Eligible Swap Participant. It is an `eligible contract
participant' within the meaning of the Commodity Exchange Act
(as amended by the Commodity Futures Modernization Act of
2000)."
(d) Section 3 is revised so as to add the following Section (g) at the end
thereof:
"(g) Relationship Between Parties. Each party represents to the other
party and will be deemed to represent to the other party on the
date on which it enters into a Transaction
7
that (absent a written agreement between the parties that
expressly imposes affirmative obligations to the contrary for
that Transaction):-
(i) Non-Reliance. It is acting for its own account, and it has
made its own independent decisions to enter into that
Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication (written
or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being
understood that information and explanations related to the
terms and conditions of a Transaction shall not be
considered investment advice or a recommendation to enter
into that Transaction. Further, such party has not received
from the other party any assurance or guarantee as to the
expected results of that Transaction.
(ii) Evaluation and Understanding. It is capable of evaluating
and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the financial and other
risks of that Transaction.
(iii) Status of Parties. The other party is not acting as an
agent, fiduciary or advisor for it in respect of that
Transaction."
(e) Waiver of Right to Trial by Jury. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
(f) Required Transfers. Notwithstanding Section 7 of this Agreement, if the
short-term ratings of the unsecured and unsubordinated debt, deposit or
letter of credit obligations of Party A are withdrawn by Standard &
Poor's or Moody's or are reduced below the Required Rating by Standard
& Poor's or Moody's, Party A shall make a Required Transfer within 30
days of such withdrawal or reduction.
"Required Transfer" means a transfer, in whole but not in part, of all
-----------------
of Party A's rights and obligations under this Agreement and which
meets all of the following requirements:
(i) the transferee is a recognized dealer in interest rate
swaps reasonably acceptable to Party B, the Trustee,
Standard & Poor's (for so long as Standard & Poor's rates
the Certificates and as confirmed in writing) and Moody's
(for so long as Moody's rates the Certificates and as
confirmed in writing) organized under the laws of the
United States of America or a jurisdiction located in the
United States of America (or another jurisdiction
reasonably acceptable to Party B and the Trustee) and, at
the time of the transfer, it (or its proposed guarantor)
maintains at least (A) the Required Rating, and (B) a
long-term rating of A+ from Standard & Poor's on its
unsecured and unsubordinated debt, deposit or letter of
credit obligations, and (C) a long-term rating of "A1" from
Moody's on its unsecured and unsubordinated debt, deposit
or letter of credit obligations;
(ii) neither an Event of Default with respect to the transferee
nor a Termination Event would exist immediately after that
transfer; and
8
(iii) the transferee executes and delivers a written agreement
reasonably satisfactory to Party B in which the transferee,
among other things, legally and effectively accepts all the
rights and assumes all the obligations of Party A under
this Agreement.
(g) Permitted Security Interest. For purposes of Section 7 of this Agreement,
Party A hereby consents to the Permitted Security Interest, subject to the
provisions of paragraph (h) below.
"Permitted Security Interest" means the collateral assignment by Party B
---------------------------
of the Swap Collateral to the Trustee pursuant to the Pooling and
Servicing Agreement, and the granting to the Trustee of a security
interest in the Swap Collateral pursuant to the Pooling and Servicing
Agreement.
"Swap Collateral" means all right, title and interest of Party B in this
---------------
Agreement, each Transaction hereunder, and all present and future amounts
payable by Party A to Party B under or in connection with this Agreement
or any Transaction governed by this Agreement, whether or not evidenced by
a Confirmation, including, without limitation, any transfer or termination
of any such Transaction.
(h) Effect of Permitted Security Interest.
(i) Notwithstanding the Permitted Security Interest, Party B shall not
be released from any of its obligations under this Agreement or any
Transaction, and Party A may exercise its rights and remedies under this
Agreement without notice to, or the consent of the Trustee, except as
otherwise expressly provided in this Agreement.
(ii) Party A's consent to the Permitted Security Interest is expressly
limited to the Trustee for the benefit of the holders of the Certificates
under the Pooling and Servicing Agreement, and Party A does not consent to
the sale or transfer by the Trustee of the Swap Collateral to or for the
benefit of any other person or entity (other than a successor to the
Trustee under the Pooling and Servicing Agreement acting in that
capacity). The Trustee may realize upon the Swap Collateral by declaring
an Additional Termination Event and designating an Early Termination Date
by notice given to Party A pursuant to the Additional Termination Event
provisions of this Schedule; provided, that the Trustee shall only declare
an Additional Termination Event and designate an Early Termination Date if
(A) such action is taken in connection with either (x) the obtaining of a
Replacement Interest Rate Cap or a Qualified Substitute Arrangement (in
each case as defined in the Pooling and Servicing Agreement) following
Party A's failure to make a Required Transfer in accordance with the terms
of Part 5(f) of this Schedule, or (y) a liquidation of the Trust Property
(as defined in the Pooling and Servicing Agreement) under the Pooling and
Servicing Agreement, and (B) in connection with clause (A)(x) above, the
Rating Agency Condition (as defined in the Pooling and Servicing
Agreement) shall have been satisfied.
(iii) Party B hereby acknowledges that, as a result of the Permitted
Security Interest, all of its rights under this Agreement, including any
Transaction, have been assigned to the Trustee pursuant to the Pooling and
Servicing Agreement, and notwithstanding any other provision in this
Agreement, Party B may not take any action hereunder to exercise any of
such rights without the prior written consent of the Trustee, including,
without limitation, providing any notice under this Agreement the effect
of which would be to cause an Early Termination Date to occur or be deemed
to occur. If Party B gives any notice to Party A for the purposes of
exercising any of Party B's rights under this Agreement, Party A shall
have the option of treating that notice as void unless that notice is
signed by the Trustee acknowledging its consent to the provisions of that
notice. Nothing herein shall be
9
construed as requiring the consent of the Trustee for the performance by
Party B of any of its obligations hereunder.
(iv) Except as expressly provided in this Agreement for any Required
Transfer, Event of Default, Termination Event or Additional Termination
Event, neither Party A nor Party B may enter into any agreement to
transfer or dispose of any Transaction, whether in the form of a
termination, unwind, transfer or otherwise without (A) the prior written
consent of the Trustee, (B) prior written notice to each of Standard &
Poor's (so long as the Certificates are deemed outstanding under the
Pooling and Servicing Agreement and are rated by Standard & Poor's) and
Moody's (so long as the Certificates are deemed outstanding under the
Pooling and Servicing Agreement and are rated by Moody's), and (C) written
confirmation by each of Standard & Poor's (so long as the Certificates are
deemed outstanding under the Pooling and Servicing Agreement and are rated
by Standard & Poor's) and Moody's (so long as the Certificates are deemed
outstanding under the Pooling and Servicing Agreement and are rated by
Moody's) that such transfer or disposition will not cause the reduction or
withdrawal of their then current rating on such Certificates.
(v) No amendment, modification or waiver in respect of this Agreement
will be effective unless (A) evidenced by a writing executed by each party
hereto, (B) the Trustee has acknowledged its consent thereto in writing
with respect to any amendment or modification of this Agreement that
adversely affects the rights of Party B, (C) Standard & Poor's (so long as
the Certificates are deemed outstanding under the Pooling and Servicing
Agreement and are rated by Standard & Poor's) and Moody's (so long as the
Certificates are deemed outstanding under the Pooling and Servicing
Agreement and are rated by Moody's) shall have received prior written
notice of such amendment, modification or waiver and (D) Standard & Poor's
(so long as the Certificates are deemed outstanding under the Pooling and
Servicing Agreement and are rated by Standard & Poor's) and Moody's (so
long as the Certificates are deemed outstanding under the Pooling and
Servicing Agreement and are rated by Moody's) confirm in writing that such
amendment, modification or waiver will not cause the reduction or
withdrawal of their then current rating on such Certificates.
(i) Scope of Agreement. The parties hereby agree that Transactions hereunder
shall be limited to interest rate cap transactions sold by Party A to
Party B related to and benefiting the Certificates. Party B shall notify
Party A not less than three Business Days prior to the date that the
outstanding principal balance of any class of the Certificates shall equal
zero.
(j) No Bankruptcy Petition. Notwithstanding any prior termination of the
Pooling and Servicing Agreement or this Agreement, Party A hereby
covenants and agrees that it shall not, prior to the date which is one
year and one day (or, if longer, the applicable preference period then in
effect) after the final payment of all series of investor certificates
issued by the Circuit City Credit Card Master Trust (the "Trust"),
petition or otherwise invoke the process of any governmental authority for
the purpose of commencing or sustaining a case against the Trust under any
federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestor or other
similar official of the Trust or any substantial part of its property or
ordering the winding up or liquidation of the affairs of the Trust.
(k) Set-off. Party A and Party B hereby waive any and all right of set-off
with respect to any amounts due under this Agreement or any Transaction,
provided that such waiver shall not be construed to waive or otherwise
limit the netting provisions of Sections 2(c) and 6(e) of this Agreement
or the set-off rights contained in the Credit Support Annex.
10
Accepted and agreed:
WACHOVIA BANK, NATIONAL ASSOCIATION TYLER INTERNATIONAL FUNDING, INC.
By: /s/ Xxx X. Xxxx By: /s/ Xxxxxx X. Xxxx
Name: Xxx X. Xxxx Name: Xxxxxx X. Xxxx
Title: Vice President Title: Vice President
11
(One-Way Pledge by Party A) (ISDA Agreements Subject to New York Law Only)
ISDA(R)
International Swaps and Derivatives Association, Inc.
CREDIT SUPPORT ANNEX
to the Schedule to the
MASTER AGREEMENT
dated as of May 7, 2002
between
WACHOVIA BANK, NATIONAL ASSOCIATION ("Party A")
and
TYLER INTERNATIONAL FUNDING, INC. ("Party B")
This Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
Accordingly, the parties agree as follows:
At any time a Collateral Event has occurred and is continuing with respect to
Party A, Party A shall be obligated to transfer Eligible Collateral not later
than the Collateral Support Commencement Date (as hereinafter defined) in
accordance with the terms of this Annex. If a Collateral Event occurs and
thereafter ceases to be continuing (and provided that no Event of Default or
Potential Event of Default exists with respect to Party A) or Party A has made a
Required Transfer under this Agreement, then Party A's obligations to transfer
Eligible Collateral under this Annex will immediately cease with respect to such
Collateral Event, and Party B will, upon demand by Party A, return, or cause its
Custodian to return, all Collateral held under this Annex.
"Collateral Event" means the failure of Party A to make a Required Transfer
within 30 days following a withdrawal or reduction of its credit rating below
the Required Rating as provided in Section (f) of Part 5 of the Schedule to this
Agreement. "Collateral Support Commencement Date" means the first Business Day
following the 30-Day period after such withdrawal or reduction of Party A's
credit rating.
Paragraphs 1 - 12. Incorporation
Paragraphs 1 through 12 inclusive of the ISDA Credit Support Annex (Bilateral
Form) (ISDA Agreements Subject to New York Law Only) published in 1994 by the
International Swaps and
12
Derivatives Association, Inc. are incorporated herein by reference and made a
part hereof, except that Paragraph 1(b) is hereby amended in its entirety to
read as follows:
"(b) Secured Party and Pledgor. Notwithstanding anything contained in this Annex
to the contrary, (i) all references in this Annex to the "Secured Party" and all
references to "other party"" in Paragraphs 2, 9 and 11(b) of this Annex, will be
to Party B exclusively, and (iii) all references in this Annex to the "Pledgor"
and all references to "Each party" or "a party" in Paragraphs 2, 9 and 11(b) of
this Annex, will be to Party A exclusively."
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used in this
Annex includes the following additional obligations: Not applicable.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a).
(B) "Return Amount" has the meaning specified in Paragraph 3(b).
(C) "Credit Support Amount" has the meaning specified in Paragraph 3.
(ii) Eligible Collateral. The following items will qualify as "Eligible
Collateral" for the party specified:
Party A Valuation
Percentage
(A) Cash [X] 100%
(B) negotiable debt obligations [X] 99%
issued by the U.S. Treasury
Department having a remaining
maturity of not more than one
year ("Treasury Bills")
(C) negotiable debt obligations [X] 99%
issued by the U.S. Treasury
Department having a remaining
maturity of more than one
year but not more than
5 years ("Treasury Notes")
(D) negotiable debt obligations [X] 98%
issued by the U.S. Treasury
Department having a remaining
maturity of more than
5 years but not more than
10 years ("Treasury Notes")
13
(E) negotiable debt obligations issued by the U.S. [X] 97%
Treasury Department having a remaining maturity
of more than 10 years ("Treasury Bonds")
(F) negotiable debt obligations of the Federal [X] 92%
National Mortgage Association (FNMA), Federal
Home Loan Mortgage Corporation (FHLMC), Federal
Home Loan Banks (FHLB), Federal Farm Credit
Banks (FFCB), Student Loan Marketing Association
(SLMA), Tennessee Valley Authority (TVA) having
a remaining maturity of not more than 30 years
("Agency Securities")
(G) mortgage participation certificates issued by [X] 92%
FHLMC evidencing undivided interest or
participations in pools of first lien
conventional or FHA/VA residential mortgages or
deeds of trust, guaranteed by FHLMC, and having
a remaining maturity of not more than 30 years
("FHLMC Certificates")
(H) mortgage-backed pass-through certificates [X] 92%
issued by FNMA evidencing undivided interests in
pools of first lien mortgages or deeds of trust
on residential properties, guaranteed by the
FNMA, having a remaining maturity of not more
than 30 years ("FNMA Certificates")
(I) mortgage-backed pass-through certificates [X] 92%
issued by private entities, evidencing
undivided interests in pools of first lien
mortgages or deeds of trust on single family
residences, guaranteed by the Government National
Mortgage Association (GNMA) with the full faith
and credit of the United States, and having a
remaining maturity of not more than 30 years
("GNMA Certificates")
(J) commercial paper with a rating of at least P-1 [X] 100%
by Moody's and at least A-1 by Standard and
Poor's and having a remaining maturity of not
more than 30 days ("Commercial Paper")
(K) other items of credit support approved by the [X] % to be
Rating Agencies determined by
14
such Rating
Agencies
(iii) Other Eligible Support. Not applicable.
(iv) Thresholds.
(A) "Independent Amount" means for Pledgor: $0
(B) "Threshold" means for Pledgor on any date of determination: $0 if
the short-term ratings of the unsecured and unsubordinated debt,
deposit or letter of credit obligations of Pledgor are withdrawn
or are reduced below the Required Rating by Standard & Poor's or
Moody's and Pledgor fails to make a Required Transfer within 30
days of such withdrawal or reduction; otherwise, the Threshold for
Pledgor shall be infinite.
(C) "Minimum Transfer Amount" means for any Delivery Amount of Pledgor
on any date of determination: $100,000 if the short-term ratings
of the unsecured and unsubordinated debt, deposit or letter of
credit obligations of Pledgor are withdrawn or are reduced below
the Required Rating by Standard & Poor's or Moody's and Pledgor
fails to make a Required Transfer within 30 days of such
withdrawal or reduction; otherwise, the Minimum Transfer Amount
for Pledgor shall be infinite; and for any Return Amount of
Secured Party: $0.
(D) Rounding: The Delivery Amount and the Return Amount will be
rounded down to the nearest integral multiple of $10,000.
(c) Valuation and Timing.
(i) "Valuation Agent" means, for purposes of Xxxxxxxxxx 0, 0(x)(xx), 0 xxx
0(x), Xxxxxxx.
(xx) "Valuation Date" means, for any Collateral Event, the second New York
Business Day prior to the Credit Support Commencement Date and thereafter any
Local Business Day while the Collateral Event is continuing; provided that
there shall be one Valuation Date per month on a date selected by the
Valuation Agent, which shall be the same calendar day each month to the
extent practicable, on a reasonably consistent basis and provided further
that if the Exposure fluctuates by more than one percent of the aggregate
then current outstanding Notional Amount of the Transactions hereunder, there
shall be one Valuation Date per week on a date selected by the Valuation
Agent, which shall be the same calendar day each week to the extent
practicable, on a reasonably consistent basis. If the Delivery Amount for the
Valuation Date associated with the Credit Support Commencement Date or a
monthly or weekly Valuation Date equals or exceeds the Pledgor's Minimum
Transfer Amount, then the demand by the Secured Party referred to in
Paragraph 3(a) of this Annex shall be deemed to have been given (A) with
respect to a Credit Support Commencement Date, on the first New York Business
Day preceding the Credit Support Commencement Date, prior to the Notification
Time, and (B) with respect to a monthly or weekly Valuation Date, on that
monthly or weekly Valuation Date, prior to the Notification Time, and subject
to the terms and conditions of this Annex, the Pledgor will transfer to the
Secured Party the amount of Eligible Collateral it is required to Transfer
with respect to that Valuation Date in accordance with Paragraph 3(a) of this
Annex.
(iii) "Valuation Time" means the close of business in New York City on the
Local Business Day before the Valuation Date or date of calculation, as
applicable; provided that the calculations of Value and Exposure will be made
as of approximately the same time on the same date.
(iv) "Notification Time" means 11:00 a.m., New York time, on a Local
Business Day.
15
(d) Conditions Precedent and Secured Party's Rights and Remedies. The following
Termination Event(s) will be a "Specified Condition" for the party specified
(that party being the Affected Party if the Termination Event occurs with
respect to that party):
Party B
Illegality [ X ]
provided that if the Affected Party would be entitled to receive Eligible Credit
Support or Posted Credit Support but for that Specified Condition, then
notwithstanding Sections 6(b)(ii) and (iii) of the Agreement, the Affected Party
may designate an Early Termination Date in respect of all Affected Transactions
pursuant to Section 6(b)(iv) as the result of any such Termination Event(s)
regardless of whether the condition set forth in Section 6(b)(iv)(1) has been
satisfied.
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. The Pledgor (choose one) [ ] must obtain [ X ] is not required
to obtain the Secured Party's consent for any substitution pursuant to Paragraph
4(d).
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m., New York time, on the Local Business
Day following the date on which the notice is given that gives rise to a
dispute under Paragraph 5.
(ii) Value. For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of
Posted Credit Support other than Cash will be calculated based on the
mid-point between the bid and offered purchase rates or prices for that
Posted Credit Support as reported on the Bloomberg electronic service as of
the Resolution Time, of if unavailable, as quoted to the Valuation Agent as
of the Resolution Time by a dealer in that Posted Credit Support of
recognized standing selected in good faith by the Valuation Agent, which
calculation shall include any unpaid interest on that Posted Credit Support.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians. The Custodian for
Party B will be entitled to hold Posted Collateral pursuant to Paragraph
6(b); provided that the following conditions applicable to it are
satisfied:
(A) Posted Collateral may be held only in the following jurisdictions:
United States of America.
(B) The Custodian maintains a Credit Rating of at least BBB+ from S&P and
Baa1 from Moody's and is an Eligible Institution (as defined in the Pooling
and Servicing Agreement). If , at any time, the Custodian holding any
Posted Collateral ceases to satisfy the conditions set forth in this
Paragraph 13(g), Party A and Party B shall within ten Business Days cause
such Posted Collateral to be transferred to a new custodian who shall
satisfy the conditions set forth in this Paragraph 13(g).
(C) The Custodian is a bank or trust company having total assets in excess
of $10 billion.
16
(D) The Posted Collateral shall be deposited into a segregated trust
account, maintained in the name of the Custodian, for the benefit of the
class of Certificates to which the applicable Transaction relates.
The Custodian for Party B is: the Trustee.
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c) will not
apply to Party B.
(h) Interest Amount.
(i) Interest Rate. The "Interest Rate" for any day will be the Federal
Funds (Effective) rate published in N.Y. Federal Reserve Statistical
Release H.15(519) for that day (or if that day is not a New York Business
Day, then for the next preceding New York Business Day).
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount will
be made on the last local Business Day of each calendar month and on any
Local Business Day that Posted Collateral in the form of Cash is
Transferred to the Pledgor pursuant to Paragraph 3(b).
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Additional Representation(s). Not applicable.
(j) Other Eligible Support and Other Posted Support. Not applicable.
(k) Demands and Notices. All demands, specifications and notices under this
Annex will be made to a party as follows unless otherwise specified from time to
time by that party for purposes of this Annex in a written notice given to the
other party:
To Party A: Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Collateral Management Group
Fax: (000)000-0000
Phone: (000) 000-0000
To Party B: To the address as specified in the Notices Section of the Agreement
17
(l) Addresses for Transfers.
Party A: For each Transfer to Party A, instructions will be provided by
Party A for that specific Transfer.
Party B: For each Transfer to Party B, instructions will be provided by
Party B for that specific Transfer.
(m) Other Provisions.
"Exposure" means for any Valuation Date or other date for which Exposure is
calculated and subject to Paragraph 5 in the case of a dispute, the greater of
(x) the amount, if any, that would be payable to a party that is the Secured
Party by the other party (expressed as a positive number) or by a party that is
the Secured Party to the other party (expressed as a negative number) pursuant
to Section 6(e)(ii)(2)(A) of this Agreement as if all Transactions (or Swap
Transactions) were being terminated as of the relevant Valuation Time; (y) the
aggregate of the next succeeding amounts payable by the Pledgor in its capacity
as a party to each Transaction under the Agreement and (z) one percent of the
aggregate of the outstanding notional amount of all outstanding Transactions
under the Agreement (determined on such Valuation Date).
18
IN WITNESS WHEREOF the parties have executed this Credit Support Annex as of the
date hereof.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxx X. Xxxx
Name: Xxx X. Xxxx
Title: Vice President
TYLER INTERNATIONAL FUNDING, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
19
Wachovia
RATE CAP TRANSACTION CONFIRMATION
--------------------------------------------------------------------------------
Date: May 07, 2002
To: Tyler International Funding, Inc. ("Counterparty")
Address: 0 Xxxx Xxxxxx, 0xx Xxxxx, Suite 287
Xxxxxxxx, HM11, Bermuda
Attention: Xxxxxxx Xxxxxxx
From: Wachovia Bank, National Association ("Wachovia")
Ref. No. 72707
Dear Xxxxxxx Xxxxxxx:
This confirms the terms of the Transaction described below between Counterparty
and Wachovia. The definitions and provisions contained in the 2000 ISDA
Definitions, as published by the International Swaps and Derivatives
Association, Inc., are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern.
1. The terms of the particular Transaction to which the Confirmation relates are
as follows:
Transaction Type: Rate Cap
-----------------
Currency for Payments: U.S. Dollars
----------------------
Notional Amount: For a Calculation Period, the amount set
----------------
forth opposite that Calculation Period on
Attachment I hereto
Term:
-----
Trade Date: May 07, 2002
Effective Date: May 07, 2002
Termination Date: The earlier of April 15, 2010 or
the date on which the outstanding
principal balance of the Circuit City
Credit Card Master Trust Class A Floating
Rate Asset Backed Certificates, Series
2002-1, shall equal zero, subject to the
Following Business Day Convention.
Fixed Amounts:
--------------
Fixed Rate Payer: Counterparty
Fixed Amount: USD 4,152,000.00
Payment Date: May 09, 2002
Floating Amounts:
-----------------
Floating Rate Payer: Wachovia
Cap Rate: 7.00%
Payment Dates: Monthly on the 15th of each month,
commencing June 15, 2002, through and
including the Termination Date.
Business Day Convention: Following
Business Day: New York
Floating Rate for initial
Calculation Period: Determined two London and New York
Banking Days prior to the Effective Date.
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 Month
Spread: Plus 0.19%, and therefore the Floating
Rate for any Reset Date shall be the sum
of the Floating Rate Option for that
Reset Date plus the Spread.
Floating Rate Day Count
Fraction: Actual/360
Floating Rate determined: Two London and New York Banking Days prior to
each Reset Date.
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable
Rounding convention: 5 decimal places per the ISDA Definitions.
2. The additional provisions of this Confirmation are as follows:
Calculation Agent: Wachovia
------------------
Payment Instructions: First Union/Charlotte
---------------------
CIB Group
ABA 000000000
Ref: Derivative Desk (Trade No: 72707)
Account #: 04659360006116
Wachovia Contacts: Settlements and/or Rate Resets:
------------------
Tel: (000) 000-0000
Fax: (000) 000-0000
Documentation and/or Collateral:
Tel: (000) 000-0000
Fax: (000) 000-0000
Please quote transaction reference number.
Payments to Counterparty: Deutsche Bank Trust Company Americas, New
-------------------------
York
ABA No.: 000000000
Circuit City Credit Card Master Trust,
Collection Account, Account No. 00000000
Attn: Corporate Trust, Xxxxx Barstock
Additional Provision
--------------------
This transaction is the Class A Interest Rate Cap related to and benefiting the
Class A Floating Rate Asset Backed Certificates, Series 2002-1, issued by the
Circuit City Credit Card Master Trust under the Amended and Restated Master
Pooling and Servicing Agreement dated as of December 31, 2001 among Tyler
International Funding, Inc., as Transferor, First North American National Bank,
as Transferor under the Prior Agreement and as Servicer, and Deutsche Bank Trust
Company Americas (formerly known as Bankers Trust Company), as Trustee (the
"Trustee"), as supplemented by the Series 2002-1 Supplement to Amended and
Restated Master Pooling and Servicing Agreement dated as of May 07, 2002 among
Tyler International Funding, Inc., as Transferor, First North American National
Bank, as Servicer, and the Trustee.
Documentation
-------------
This Confirmation supplements, forms part of and will be governed by that
certain Master Agreement between the parties dated as of May 07, 2002.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing a copy of this Confirmation and returning it to us.
Very truly yours,
Wachovia Bank, National Association
By: /s/ Xxx X. Xxxx
-----------------------------
Name: Xxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx, III
-----------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Associate
Accepted and confirmed as of date first above written:
Tyler International Funding, Inc
By: /s/ Xxxxxx X. Xxxx
--------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
ATTACHMENT I
Amortization Schedule for 72707
Calculation Period USD Notional Amount USD Notional Reduction
------------------ ------------------- ----------------------
(from and including, to but excluding) (at end of period)
07 May 02 to 17 Jun 02 217,500,000.00 0.00
17 Jun 02 to 15 Jul 02 217,500,000.00 0.00
15 Jul 02 to 15 Aug 02 217,500,000.00 0.00
15 Aug 02 to 16 Sep 02 217,500,000.00 0.00
16 Sep 02 to 15 Oct 02 217,500,000.00 0.00
15 Oct 02 to 15 Nov 02 217,500,000.00 0.00
15 Nov 02 to 16 Dec 02 217,500,000.00 0.00
16 Dec 02 to 15 Jan 03 217,500,000.00 0.00
15 Jan 03 to 18 Feb 03 217,500,000.00 0.00
18 Feb 03 to 17 Mar 03 217,500,000.00 0.00
17 Mar 03 to 15 Apr 03 217,500,000.00 0.00
15 Apr 03 to 15 May 03 217,500,000.00 0.00
15 May 03 to 16 Jun 03 217,500,000.00 0.00
16 Jun 03 to 15 Jul 03 217,500,000.00 0.00
15 Jul 03 to 15 Aug 03 217,500,000.00 0.00
15 Aug 03 to 15 Sep 03 217,500,000.00 0.00
15 Sep 03 to 15 Oct 03 217,500,000.00 0.00
15 Oct 03 to 17 Nov 03 217,500,000.00 0.00
17 Nov 03 to 15 Dec 03 217,500,000.00 0.00
15 Dec 03 to 15 Jan 04 217,500,000.00 0.00
15 Jan 04 to 17 Feb 04 217,500,000.00 0.00
17 Feb 04 to 15 Mar 04 217,500,000.00 0.00
15 Mar 04 to 15 Apr 04 217,500,000.00 0.00
15 Apr 04 to 17 May 04 217,500,000.00 0.00
17 May 04 to 15 Jun 04 217,500,000.00 0.00
15 Jun 04 to 15 Jul 04 217,500,000.00 0.00
15 Jul 04 to 16 Aug 04 217,500,000.00 0.00
16 Aug 04 to 15 Sep 04 217,500,000.00 0.00
15 Sep 04 to 15 Oct 04 217,500,000.00 0.00
15 Oct 04 to 15 Nov 04 217,500,000.00 0.00
15 Nov 04 to 15 Dec 04 217,500,000.00 0.00
15 Dec 04 to 18 Jan 05 217,500,000.00 0.00
18 Jan 05 to 15 Feb 05 217,500,000.00 0.00
15 Feb 05 to 15 Mar 05 217,500,000.00 0.00
15 Mar 05 to 15 Apr 05 217,500,000.00 3,565,573.77
15 Apr 05 to 16 May 05 213,934,426.23 3,565,573.77
16 May 05 to 15 Jun 05 210,368,852.46 3,565,573.77
15 Jun 05 to 15 Jul 05 206,803,278.69 3,565,573.77
15 Jul 05 to 15 Aug 05 203,237,704.92 3,565,573.77
15 Aug 05 to 15 Sep 05 199,672,131.15 3,565,573.77
15 Sep 05 to 17 Oct 05 196,106,557.38 3,565,573.77
17 Oct 05 to 15 Nov 05 192,540,983.61 3,565,573.77
15 Nov 05 to 15 Dec 05 188,975,409.84 3,565,573.77
15 Dec 05 to 17 Jan 06 185,409,836.07 3,565,573.77
17 Jan 06 to 15 Feb 06 181,844,262.30 3,565,573.78
Dates subject to the Business Day convention set forth in the Confirmation.
Calculation Period USD Notional Amount USD Notional Reduction
------------------ ------------------- ----------------------
(from and including, to but excluding) (at end of period)
15 Feb 06 to 15 Mar 06 178,278,688.52 3,565,573.77
15 Mar 06 to 18 Apr 06 174,713,114.75 3,565,573.77
18 Apr 06 to 15 May 06 171,147,540.98 3,565,573.77
15 May 06 to 15 Jun 06 167,581,967.21 3,565,573.77
15 Jun 06 to 17 Jul 06 164,016,393.44 3,565,573.77
17 Jul 06 to 15 Aug 06 160,450,819.67 3,565,573.77
15 Aug 06 to 15 Sep 06 156,885,245.90 3,565,573.77
15 Sep 06 to 16 Oct 06 153,319,672.13 3,565,573.77
16 Oct 06 to 15 Nov 06 149,754,098.36 3,565,573.77
15 Nov 06 to 15 Dec 06 146,188,524.59 3,565,573.77
15 Dec 06 to 16 Jan 07 142,622,950.82 3,565,573.77
16 Jan 07 to 15 Feb 07 139,057,377.05 3,565,573.77
15 Feb 07 to 15 Mar 07 135,491,803.28 3,565,573.77
15 Mar 07 to 16 Apr 07 131,926,229.51 3,565,573.77
16 Apr 07 to 15 May 07 128,360,655.74 3,565,573.77
15 May 07 to 15 Jun 07 124,795,081.97 3,565,573.77
15 Jun 07 to 16 Jul 07 121,229,508.20 3,565,573.77
16 Jul 07 to 15 Aug 07 117,663,934.43 3,565,573.77
15 Aug 07 to 17 Sep 07 114,098,360.66 3,565,573.77
17 Sep 07 to 15 Oct 07 110,532,786.89 3,565,573.78
15 Oct 07 to 15 Nov 07 106,967,213.11 3,565,573.77
15 Nov 07 to 17 Dec 07 103,401,639.34 3,565,573.77
17 Dec 07 to 15 Jan 08 99,836,065.57 3,565,573.77
15 Jan 08 to 15 Feb 08 96,270,491.80 3,565,573.77
15 Feb 08 to 17 Mar 08 92,704,918.03 3,565,573.77
17 Mar 08 to 15 Apr 08 89,139,344.26 3,565,573.77
15 Apr 08 to 15 May 08 85,573,770.49 3,565,573.77
15 May 08 to 16 Jun 08 82,008,196.72 3,565,573.77
16 Jun 08 to 15 Jul 08 78,442,622.95 3,565,573.77
15 Jul 08 to 15 Aug 08 74,877,049.18 3,565,573.77
15 Aug 08 to 15 Sep 08 71,311,475.41 3,565,573.77
15 Sep 08 to 15 Oct 08 67,745,901.64 3,565,573.77
15 Oct 08 to 17 Nov 08 64,180,327.87 3,565,573.77
17 Nov 08 to 15 Dec 08 60,614,754.10 3,565,573.77
15 Dec 08 to 15 Jan 09 57,049,180.33 3,565,573.77
15 Jan 09 to 17 Feb 09 53,483,606.56 3,565,573.77
17 Feb 09 to 16 Mar 09 49,918,032.79 3,565,573.77
16 Mar 09 to 15 Apr 09 46,352,459.02 3,565,573.77
15 Apr 09 to 15 May 09 42,786,885.25 3,565,573.77
15 May 09 to 15 Jun 09 39,221,311.48 3,565,573.78
15 Jun 09 to 15 Jul 09 35,655,737.70 3,565,573.77
15 Jul 09 to 17 Aug 09 32,090,163.93 3,565,573.77
17 Aug 09 to 15 Sep 09 28,524,590.16 3,565,573.77
15 Sep 09 to 15 Oct 09 24,959,016.39 3,565,573.77
15 Oct 09 to 16 Nov 09 21,393,442.62 3,565,573.77
16 Nov 09 to 15 Dec 09 17,827,868.85 3,565,573.77
15 Dec 09 to 15 Jan 10 14,262,295.08 3,565,573.77
15 Jan 10 to 16 Feb 10 10,696,721.31 3,565,573.77
Dates subject to the Business Day convention set forth in the Confirmation.
Calculation Period USD Notional Amount USD Notional Reduction
------------------ ------------------- ----------------------
(from and including, to but excluding)
16 Feb 10 to 15 Mar 10 7,131,147.54 3,565,573.77
15 Mar 10 to 15 Apr 10 3,565,573.77 3,565,573.77
Dates subject to the Business Day convention set forth in the Confirmation.
Wachovia
RATE CAP TRANSACTION CONFIRMATION
--------------------------------------------------------------------------------
Date: May 07, 2002
To: Tyler International Funding, Inc. ("Counterparty")
Address: 0 Xxxx Xxxxxx, 0xx Xxxxx, Suite 287
Xxxxxxxx, HM11, Bermuda
Attention: Xxxxxxx Xxxxxxx
From: Wachovia Bank, National Association ("Wachovia")
Ref. No. 72708
Dear Xxxxxxx Xxxxxxx:
This confirms the terms of the Transaction described below between Counterparty
and Wachovia. The definitions and provisions contained in the 2000 ISDA
Definitions, as published by the International Swaps and Derivatives
Association, Inc., are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern.
1. The terms of the particular Transaction to which the Confirmation relates are
as follows:
Transaction Type: Rate Cap
-----------------
Currency for Payments: U.S. Dollars
----------------------
Notional Amount: USD 34,500,000.00
----------------
Term:
-----
Trade Date: May 07, 2002
Effective Date: May 07, 2002
Termination Date: The earlier of April 15, 2010 or the date
on which the outstanding principal balance of
the Circuit City Credit Card Master Trust Class
B Floating Rate Asset Backed Certificates,
Series 2002-1, shall equal zero, subject to the
Following Business Day Convention.
Fixed Amounts:
--------------
Fixed Rate Payer: Counterparty
Fixed Amount: USD 1,751,000.00
Payment Date: May 09, 2002
Floating Amounts:
-----------------
Floating Rate Payer: Wachovia
Cap Rate: 7.00%
Payment Dates: Monthly on the 15th of each month, commencing
June 15, 2002, through and including the
Termination Date.
Business Day Convention: Following
Business Day: New York
Floating Rate for initial
Calculation Period: Determined two London and New York Banking Days
prior to the Effective Date.
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 Month
Spread: Plus 0.90%, and therefore the Floating Rate for
any Reset Date shall be the sum of the Floating
Rate Option for that Reset Date plus the Spread.
Floating Rate Day Count
Fraction: Actual/360
Floating Rate determined: Two London and New York Banking Days prior to
each Reset Date.
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable
Rounding convention: 5 decimal places per the ISDA Definitions.
2. The additional provisions of this Confirmation are as follows:
Calculation Agent: Wachovia
------------------
Payment Instructions: First Union/Charlotte
---------------------
CIB Group
ABA 000000000
Ref: Derivative Desk (Trade No: 72708)
Account #: 04659360006116
Wachovia Contacts: Settlements and/or Rate Resets:
------------------
Tel: (000) 000-0000
Fax: (000) 000-0000
Documentation and/or Collateral:
Tel: (000) 000-0000
Fax: (000) 000-0000
Please quote transaction reference number.
Payments to Counterparty: Deutsche Bank Trust Company Americas, New
-------------------------
York
ABA No.: 000000000
Circuit City Credit Card Master Trust,
Collection Account, Account No. 00000000
Attn: Corporate Trust, Xxxxx Barstock
Additional Provision
--------------------
This transaction is the Class B Interest Rate Cap related to and benefiting the
Class B Floating Rate Asset Backed Certificates, Series 2002-1, issued by the
Circuit City Credit Card Master Trust under the Amended and Restated Master
Pooling and Servicing Agreement dated as of December 31, 2001 among Tyler
International Funding, Inc., as Transferor, First North American National Bank,
as Transferor under the Prior Agreement and as Servicer, and Deutsche Bank Trust
Company Americas (formerly known as Bankers Trust Company), as Trustee (the
"Trustee"), as supplemented by the Series 2002-1 Supplement to Amended and
Restated Master Pooling and Servicing Agreement dated as of May 07, 2002 among
Tyler International Funding, Inc., as Transferor, First North American National
Bank, as Servicer, and the Trustee.
Documentation
-------------
This Confirmation supplements, forms part of and will be governed by that
certain Master Agreement between the parties dated as of May 07, 2002.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing a copy of this Confirmation and returning it to us.
Very truly yours,
Wachovia Bank, National Association
By: /s/ Xxx X. Xxxx
-----------------------------
Name: Xxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx, III
------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Associate
Accepted and confirmed as of date first above written: Tyler International
Funding, Inc.
By: /s/ Xxxxxx X. Xxxx
-------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Wachovia
RATE CAP TRANSACTION CONFIRMATION
--------------------------------------------------------------------------------
Date: May 07, 2002
To: Tyler International Funding, Inc. ("Counterparty")
Address: 0 Xxxx Xxxxxx, 0xx Xxxxx, Suite 287
Xxxxxxxx, HM11, Bermuda
Attention: Xxxxxxx Xxxxxxx
From: Wachovia Bank, National Association ("Wachovia")
Ref. No. 72710
Dear Xxxxxxx Xxxxxxx:
This confirms the terms of the Transaction described below between Counterparty
and Wachovia. The definitions and provisions contained in the 2000 ISDA
Definitions, as published by the International Swaps and Derivatives
Association, Inc., are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern.
1. The terms of the particular Transaction to which the Confirmation relates are
as follows:
Transaction Type: Rate Cap
----------------
Currency for Payments: U.S. Dollars
---------------------
Notional Amount: USD 28,500,000.00
---------------
Term:
----
Trade Date: May 07, 2002
Effective Date: May 07, 2002
Termination Date: The earlier of April 15, 2010 or the date
on which the outstanding principal balance
of the Circuit City Credit Card Master
Trust Collateralized Trust Obligations,
Series 2002-1, shall equal zero, subject to
the Following Business Day Convention.
Fixed Amounts:
-------------
Fixed Rate Payer: Counterparty
Fixed Amount: USD 2,082,000.00
Payment Date: May 09, 2002
Floating Amounts:
----------------
Floating Rate Payer: Wachovia
Cap Rate: 7.00%
Payment Dates: Monthly on the 15th of each month,
commencing June 15, 2002, through and
including the Termination Date.
Business Day Convention: Following
Business Day: New York
Floating Rate for initial
Calculation Period: Determined two London and New York Banking
Days prior to the Effective Date.
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 Month
Spread: Plus 1.70%, and therefore the Floating Rate
for any Reset Date shall be the sum of the
Floating Rate Option for that Reset Date
plus the Spread.
Floating Rate Day Count
Fraction: Actual/360
Floating Rate determined: Two London and New York Banking Days prior to
each Reset Date.
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable
Rounding convention: 5 decimal places per the ISDA Definitions.
2. The additional provisions of this Confirmation are as follows:
Calculation Agent: Wachovia
-----------------
Payment Instructions: First Union/Charlotte
--------------------
CIB Group
ABA 000000000
Ref: Derivative Desk (Trade No: 72710)
Account #: 04659360006116
Wachovia Contacts: Settlements and/or Rate Resets:
-----------------
Tel: (000) 000-0000
Fax: (000) 000-0000
Documentation and/or Collateral:
Tel: (000) 000-0000
Fax: (000) 000-0000
Please quote transaction reference number.
Payments to Counterparty: Deutsche Bank Trust Company Americas, New York
------------------------
ABA No.: 000000000
Circuit City Credit Card Master Trust,
Collection Account, Account No. 00000000
Attn: Corporate Trust, Xxxxx Barstock
Additional Provision
--------------------
This transaction is the CTO Interest Rate Cap related to and benefiting the
Circuit City Credit Card Master Trust Collateralized Trust Obligations, Series
2002-1, issued by the Circuit City Credit Card Master Trust under the Amended
and Restated Master Pooling and Servicing Agreement dated as of December 31,
2001 among Tyler International Funding, Inc., as Transferor, First North
American National Bank, as Transferor under the Prior Agreement and as Servicer,
and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust
Company), as Trustee (the "Trustee"), as supplemented by the Series 2002-1
Supplement to Amended and Restated Master Pooling and Servicing Agreement dated
as of May 07, 2002 among Tyler International Funding, Inc., as Transferor, First
North American National Bank, as Servicer, and the Trustee.
Documentation
-------------
This Confirmation supplements, forms part of and will be governed by that
certain Master Agreement between the parties dated as of May 07, 2002.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing a copy of this Confirmation and returning it to us.
Very truly yours,
Wachovia Bank, National Association
By: /s/ Xxx X. Xxxx
-------------------------------
Name: Xxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx, III
-------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Associate
Accepted and confirmed as of date first above written:
Tyler International Funding, Inc.
By: /s/ Xxxxxx X. Xxxx
---------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
