SCHEDULE
to the
Master Agreement
dated as of August 5, 2008
between
BANK OF AMERICA, N.A. ("Party A"),
and
The BA CREDIT CARD TRUST ("Party B"), a statutory trust created pursuant to a trust agreement dated as of May 4,
2001, as amended and restated as of May 24, 2001, and as amended as of July 12, 2001, as of August 1, 2002, as of
June 27, 2003 and as of January 27, 2006, and as amended and restated as of June 10, 2006 and as of October 20,
2006 (as amended, restated or otherwise modified from time to time, the "Trust Agreement").
Party B intends to issue BAseries Class A(2008-9) Notes (the "Class A Notes") pursuant to the Second Amended and
Restated Indenture dated as of October 20, 2006 (as amended from time to time, the "Base Indenture") as
supplemented by the Amended and Restated BAseries Indenture Supplement dated as of June 10, 2006 (as amended from
time to time, the "Indenture Supplement") and as further supplemented by the Class A(2008-9) Terms Document dated
as of August 5, 2008 (the "Terms Document" and, collectively with the Base Indenture and the Indenture
Supplement, the "Indenture").
Part 1. Termination Provisions.
In this Agreement:
(a) "Specified Entity" shall not apply for purposes of this Agreement.
(b) "Specified Transaction" will have no meaning for the purpose of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii), the "Misrepresentation" provisions of Section
5(a)(iv), the "Default under Specified Transaction" provisions of Section 5(a)(v), the "Cross Default"
provisions of Section 5(a)(vi), the "Merger Without Assumption" provisions of Section 5(a)(viii), the
"Tax Event Upon Merger" provisions of Section 5(b)(iii), and the "Credit Event Upon Merger" provisions of
Section 5(b)(iv) will not apply to Party A and will not apply to Party B. Solely with respect to
payments required to be made by Party A after the occurrence of an Early Redemption Event with respect
to the Class A Notes, the word "the third" in the final line of Section 5(a)(i) shall be replaced with
"12:00 noon New York City time of the first (or such other time as may be mutually agreed to by Party A,
Party B and the Note Rating Agencies)".
(d) The "Automatic Early Termination" provisions of Section 6(a) will not apply to Party A and will not
apply to Party B.
(e) Payments on Early Termination. For the purpose of Section 6(e) of this Agreement, Market Quotation and
the Second Method will apply; provided, however, that in the case of an Event of Default with respect to
Party A as the Defaulting Party or a Termination Event with respect to Party A as the sole Affected
Party, the related Settlement Amount, if negative, will be deemed to be zero if Market Quotation (as
such term is modified pursuant to Part 1(f) below) cannot be determined.
(f) Market Quotation. Notwithstanding anything to the contrary in the definition of Market Quotation in
Section 14, in the case of an Event of Default with respect to Party A as the Defaulting Party or a
Termination Event with respect to Party A as the sole Affected Party, if each Market Quotation is
negative, the Market Quotation will be deemed to be the negative quotation with the highest absolute
value received from the Reference Market-makers. To the extent that Party B, using its best efforts, is
able to obtain only one Market Quotation from the Reference Market-makers, Party A and Party B agree
that Party B shall enter into a Replacement Transaction with the Reference Market-maker providing such
Market Quotation. To the extent reasonably practicable, any agreement entered into with a Reference
Market-maker in connection with, and for the purpose of, creating a Replacement Transaction shall be on
substantially similar terms as the terms of this Agreement.
(g) Settlement Amount. Notwithstanding anything to the contrary in the definition of Settlement Amount in
Section 14, in the case of an Event of Default with respect to Party A as the Defaulting Party or a
Termination Event with respect to Party A as the sole Affected Party, the amount calculated pursuant to
paragraph (b) of the definition of Settlement Amount in respect of Party A shall be deemed to be zero.
(h) "Reference Market-maker" will not have the meaning specified in Section 14, but will instead mean the
following:
"Reference Market-maker" means five leading dealers in the relevant market selected by the
party determining the Market Quotation in good faith (a) from among dealers which are rated not
lower than investment grade by Standard amp; Poor's Ratings Services ("S&P") and Xxxxx'x
Investors Service, Inc. ("Xxxxx'x") which satisfy the criteria that such party applies
generally at that time in deciding whether to offer or make an extension of credit and (b) to
the extent practicable, from among dealers having an office in the same city.
(i) "Termination Currency" means United States Dollars ("USD").
(j) Additional Termination Events. The following events shall each constitute an Additional Termination
Event hereunder:
(i) A failure by Party A to provide the information or take the actions provided in Part 5(n) below.
For purposes of Section 6 of this Agreement, Party A shall be the sole Affected Party.
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(ii) An amendment and/or supplement to (A) the Second Amended and Restated Pooling and Servicing
Agreement, dated as of October 20, 2006 (as amended, supplemented or otherwise modified from
time to time, the "Pooling and Servicing Agreement"), between BA Credit Card Funding, LLC, as
Transferor (the "Transferor"), FIA Card Services, National Association, as Servicer ("FIA"),
and The Bank of New York Mellon, as Trustee (the "Trustee") (other than the execution of a
series supplement or an amendment, supplement or modification of a series supplement that is
not the Series 2001-D Supplement (as defined below)), (B) the Second Amended and Restated
Series 2001-D Supplement, dated as of October 20, 2006 (as amended, supplemented or otherwise
modified from time to time, the "Series 2001-D Supplement" and, collectively with the Pooling
and Servicing Agreement and the Trust Agreement, the "Base Transaction Documents"), between the
Transferor, FIA and the Trustee, (C) the Trust Agreement, or (D) the Indenture (other than the
execution of a terms document or an amendment, supplement or modification of a terms document
that is not the Terms Document), is made without the prior written consent of Party A (such
consent not to be unreasonably withheld), if such amendment and/or supplement: (a) adversely
affects any of Party A's rights or obligations under this Agreement; or (b) adversely
modifies, or materially impairs the ability of Party B to fully perform, any of Party B's
obligations under this Agreement. For purposes of Section 6 of this Agreement, Party B shall
be the sole Affected Party.
Part 2. Tax Representations.
(a) Payer Tax Representations. For the purpose of Section 3(e) of this Agreement, Party A and Party B will
each make the following representation:
It is not required by any applicable law, as modified by the practice of any relevant governmental
revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account
of any Tax from any payment (other than interest under Sections 2(e), 6(d)(ii) and 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In making this representation, it
may rely on (i) the accuracy of any representation made by the other party pursuant to Section 3(f) of
this Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this
Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to
Section 4(a)(i) and 4(a)(iii) of this Agreement; and (iii) the satisfaction of the agreement of the
other party contained in Section 4(d) of this Agreement, provided that it shall not be a breach of this
representation where reliance is placed on clause (ii) and the other party does not deliver a form or
document under Section 4(a)(iii) by reason of material prejudice to its legal or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of this Agreement, Party A and Party B make the
following representations:
(i) The following representation will apply to Party B:
It is a US person for US federal income tax purposes.
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(ii) The following representation will apply to Party A:
It is a national banking association for US federal income tax purposes.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 3(d), 4(a)(i) and (ii) of this Agreement, each party agrees to deliver the
following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
____________________________________________________________________________________________________________________
Party required Covered by
to deliver Date by which Section 3(d)
document Form/Document/Certificate to be delivered Representation
___________________________________________________________________________________________________________________
Party B Any form or document that may be Promptly upon No
reasonably requested, and that Party reasonable demand by
B is eligible to provide, in order the other party.
to allow the requesting party to
make a payment without (or with
reduced) withholding Tax.
____________________________________________________________________________________________________________________
Party A Any form or document that may be Promptly upon No
reasonably requested, and that Party reasonable demand by
A is eligible to provide, in order the other party.
to allow the requesting party to
make a payment without (or with
reduced) withholding Tax.
____________________________________________________________________________________________________________________
Party B (i) Internal Revenue Service Form (i) Upon execution of No
W-9 (or any successor form) of the this Agreement, (ii)
Beneficiary and (ii) any other form thereafter promptly
or document that may be reasonably upon reasonable demand
requested, and that Party B is by Party A and (iii)
eligible to provide, in order to promptly upon learning
allow the requesting party to make a that such form
payment without (or with reduced) previously provided by
withholding Tax. Party B has become
obsolete or incorrect.
____________________________________________________________________________________________________________________
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(b) Other documents to be delivered are:
____________________________________________________________________________________________________________________
Party required Covered by
to deliver Date by which Section 3(d)
document Form/Document/Certificate to be delivered Representation
____________________________________________________________________________________________________________________
Party A An opinion of counsel (which may be Upon execution of this Yes
in-house counsel) for Party A in the Agreement
form reasonably acceptable to Party B
____________________________________________________________________________________________________________________
Party A An incumbency certificate with Upon execution of this Yes
respect to the signatory of this Agreement
Agreement
____________________________________________________________________________________________________________________
Party B An opinion of counsel for Party B in Upon execution of this Yes
the form reasonably acceptable to Agreement
Party A
____________________________________________________________________________________________________________________
Party B An incumbency certificate with Upon execution of this Yes
respect to the signatory of this Agreement
Agreement
____________________________________________________________________________________________________________________
Party B Monthly Noteholders' Statement (as Upon each Transfer No
defined in the Indenture) Date (as defined in
the Indenture)
____________________________________________________________________________________________________________________
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to Party A:
Address: Bank of America, N.A.
Sears Tower
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Swap Operations
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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with a copy to:
Bank of America, N.A.
000 X. Xxxxx Xx., XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Capital Markets Documentation
Facsimile No.: (000) 000-0000 or (000) 000-0000
For all purposes.
Address for notices or communications to Party B:
Address: BA Credit Card Trust
c/o BA Credit Card Funding, LLC, as Beneficiary
000 Xxxxx Xxxxx Xxxxxx
Xxxxx #00-00
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx-Xxxx
with a copy to:
Bank of America, National Association
000 X. Xxxxx Xxxxxx
Mail Code: NC1-002-29-01
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxx
For all purposes.
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party and may act through its Charlotte, North Carolina, Chicago, Illinois, San
Francisco, California, New York, New York or Boston, Massachusetts Office, or such other Office as may
be agreed to by the parties in connection with a Transaction.
Party B is not a Multibranch Party.
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(e) Calculation Agent. The Calculation Agent is the Indenture Trustee, unless otherwise specified in a
Confirmation in relation to the relevant Transaction.
(f) Credit Support Document. Details of any Credit Support Document:
In the case of Party A: Not applicable.
In the case of Party B: Not applicable.
(g) Credit Support Provider.
In relation to Party A: Not applicable.
In relation to Party B: Not applicable.
(h) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the
State of New York (without reference to choice of law doctrine but without prejudice to the provisions
of Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York).
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement will apply to any of the
Transactions, except that it will not apply to payments by each party to the other if Party B so
notifies Party A at least ten (10) days in advance of the date such payments are due.
(j) "Affiliate" will have the meaning specified in Section 14 of this Agreement, except that with respect to
Party B there shall be deemed to be no Affiliates.
(k) "Regulation AB" means Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. §§
229.1100-229.1123, as such regulation may be amended from time to time and subject to such clarification
and interpretation as have been provided by the Securities and Exchange Commission ("SEC") in the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the SEC, or as may be provided in writing by the SEC or its staff.
Part 5. Other Provisions.
(a) Confirmation. The Confirmation, dated the date hereof, between Party A and Party B supplements, forms
part of, and will be read and construed as one with, this Agreement. A form of Confirmation is set
forth as Exhibit A hereto. Notwithstanding anything contained in Section 1(c), this Agreement shall be
construed to form a single agreement with only one Confirmation. Reference to this "Agreement" means,
with respect to a Transaction, this document together with the Confirmation.
(b) Waiver of Trial By Jury. Each party waives, to the fullest extent permitted by applicable law, any
right it may have to a trial by jury in respect of any suit, action or proceeding relating to this
Agreement or any Transaction contemplated hereby. Each party (i) certifies that no representative,
agent or attorney of the other party has
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represented, expressly or otherwise, that such other party would not, in the event of such a suit,
action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other
party have been induced to enter this Agreement by, among other things, the mutual waivers and
certifications in this Section.
(c) Non-Petition. To the fullest extent permitted by applicable law, Party A hereby agrees that it will not
commence or join in commencing any bankruptcy or other insolvency action against Party B prior to the
date which is one year and one day after all Notes (as such term is defined in the Base Indenture) of
Party B have been paid in full. Nothing herein shall prevent Party A from participating in any such
proceeding once commenced.
(d) Assignment. In the event the long-term, senior unsecured debt rating of Party A is lowered to below the
category of BBB- by S&P or Baa3 by Moody's or such rating agencies' then equivalent ratings, or such
ratings are withdrawn by either S&P or Moody's, Party B shall direct Party A to assign and delegate,
and Party A shall assign and delegate, its rights and obligations under any Transaction to a replacement
counterparty on reasonably satisfactory terms.
(e) Provision for Payments from Party B. Notwithstanding anything contained in this Agreement to the
contrary, any amount required to be paid by Party B pursuant to this Agreement will be payable only to
the extent provided in, and from amounts on deposit in the Interest Funding sub-Account for the Class
A(2008-9) Notes which are specifically available to be applied therefor pursuant to, Section 3.13(d) of
the Indenture Supplement, as determined pursuant to Section 2.03(b) of the Terms Document and any
amounts specifically available to be applied therefor pursuant to Section 2.12 of the Terms Document (as
such terms are defined in the Confirmation). Party A will be entitled to the benefit of the Collateral
and the obligations of Party B under this Agreement will be secured obligations, in each case in
accordance with the terms of the Indenture. Party A will be a third-party beneficiary of the Indenture.
(f) Relationship Between Parties. Each party will be deemed to represent to the other party on the date on
which it enters into this Agreement that (absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary):
(i) Non-Reliance. It is acting for its own account, and it has made its own independent decisions to
enter into this Agreement and as to whether this Agreement is appropriate or proper for it based
upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of the other party as investment advice or as a
recommendation to enter into this Agreement; it being understood that information and
explanations related to the terms and conditions of this Agreement shall not be considered
investment advice or a recommendation to enter into this Agreement. No communication (written or
oral) received from the other party shall be deemed to be an assurance or guarantee as to the
expected results of this Agreement.
(ii) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its
own behalf or through independent professional advice), and
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understands and accepts, the terms, conditions and risks of this Agreement. It is also capable of
assuming, and assumes, the risks of this Agreement.
(iii) Status of Parties. The other party is not acting as a fiduciary for or as adviser to it in
respect of this Agreement.
(iv) It is entering into this Agreement, each Transaction and any other documentation relating to this
Agreement or any Transaction as principal (and not as agent or in any other capacity, fiduciary
or otherwise).
(g) Additional Representations.
(i) Each of Party A and Party B represents that (i) it is an "eligible contract participant" as
defined in § 1a(12) of the Commodity Exchange Act, as amended by the Commodity Futures
Modernization Act of 2000 (7 U.S.C. §1a(12)) and (ii) the material terms of this Agreement
and the Swap Transaction have been individually tailored and negotiated.
(ii) Party B represents that: (i) it has the power to perform its obligations under the Indenture and
has taken all necessary action to authorize such performance; (ii) all governmental and other
consents that are required to have been obtained by it with respect to the Indenture have been
obtained and are in full force and effect and all conditions of any such consents have been
complied with; (iii) its obligations under the Indenture constitute its legal, valid and binding
obligations, enforceable in accordance with their terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or at law)); (iv) no Event of Default (as
defined in the Indenture) or Early Redemption Event (as defined in the Indenture) with respect to
any series, class or tranche of notes issued by it has occurred and is continuing and no such
event or circumstance would occur as a result of Party B entering into or performing its
obligations under the Indenture; and (v) there is not pending or, to its knowledge, threatened
against it any action, suit or proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely to affect the legality,
validity or enforceability against it of the Indenture or its ability to perform its obligations
under the Indenture.
(h) Negative Interest Rates. Party A and Party B agree that:
if, with respect to a Calculation Period for a Transaction, a party ("X") is obligated to pay a Floating
Amount that is a negative number (either by reason of a negative Floating Rate or the subtraction of a
Spread from the Floating Rate), the Floating Amount with respect to X for that Calculation Period will
be deemed to be zero, and the other party ("Y") will pay to X the absolute value of the negative
Floating Amount, in addition to any amounts otherwise owed by Y to X, on the Payment Date such Floating
Amount would have been payable if it had been a positive number. Any amounts paid by Y to X pursuant to
this provision will be paid to such account as X may designate (unless Y gives timely notice
9
of a reasonable objection to such designation) in the currency in which that Floating Amount would have
been paid if it had been a positive number (and without regard to the currency in which Y is otherwise
obligated to make payments).
(i) Limited Recourse. It is expressly understood and agreed by the parties hereto that (i) this Agreement
and each Transaction entered into pursuant to this Agreement is entered into by BA Credit Card Trust
(the "Trust") in the exercise of the powers and authority conferred and vested in it and not by the
Transferor individually or as Beneficiary, (ii) the representations, undertakings and agreements herein
made on the part of the Trust are made and intended not as personal representations, undertakings and
agreements by the Beneficiary but are made and intended for the purpose of binding only the Trust,
(iii) nothing herein contained shall be construed as creating any liability on the part of the
Beneficiary, individually or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties who are signatories to this
Agreement and by any Persons claiming by, through or under such parties; provided, however, that the
Beneficiary shall be liable in its individual capacity for its own willful misconduct or gross
negligence and (iv) notwithstanding the proviso to clause (iii) above, under no circumstances shall the
Beneficiary be personally liable for the payment of any indebtedness or expenses of the Trust or be
liable for the breach or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement.
(j) Condition Precedent. It shall be a condition precedent to the effectiveness of this Agreement that the
Trust shall credit the Required Derivative Reserve Amount to the Derivative Reserve Account on the
Issuance Date.
(k) Notice to Note Rating Agencies. Provided that Party B has actual knowledge of such event, Party B shall
provide prompt written notice to the Note Rating Agencies of any amendment to, or any transfer or
assignment of, this Agreement.
(l) USA PATRIOT Act Notice. Party A hereby notifies Party B that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Patriot Act"), Party
A is required to obtain, verify and record information that identifies Party B, which information
includes the name and address of Party B and other information that will allow Party A to identify
Party B in accordance with the Patriot Act.
(m) Additional Acknowledgments and Agreements of the Parties.
(i) Consent by Party A to Amendments to Certain Documents. Before any amendment or supplement is
made to any Base Transaction Document (other than the execution of a series supplement or an
amendment, supplement or modification of a series supplement that is not the Series 2001-D
Supplement) or the Indenture (other than the execution of a terms document or an amendment,
supplement or modification of a terms document that is not the Terms Document) which would
materially and adversely affect any of Party A's rights or obligations under this Agreement,
or materially and adversely modify, or materially impair
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the ability of Party B to fully perform, any of Party B's obligations under this Agreement,
Party B shall provide Party A with a copy of the proposed amendment or supplement and shall
obtain the written consent of Party A (which consent shall not be unreasonably withheld) to
such amendment or supplement prior to its adoption. For the avoidance of doubt, any Base
Transaction Document and the Indenture may be amended, supplemented or otherwise modified in
accordance with the terms thereof without the consent of Party A to cure any typographical
error or ambiguity, provided that such actions shall not materially and adversely affect in any
respects the interests of Party A.
(n) Disclosure and Related Matters.
(i) Derivative Counterparty Information: Name, Organizational Form, General Character of Business,
Issued Ratings. The parties hereto acknowledge and agree that the statements set forth in
Exhibit B hereto (the "Derivative Counterparty Information"), which shall be set forth under the
heading "Transaction Parties— Derivative Counterparty" in the prospectus supplement,
subject to completion, related to the Class A Notes, dated July 28, 2008 (the "Preliminary
Prospectus Supplement"), and the prospectus supplement, related to the Class A Notes, dated
July 29, 2008 (the "Final Prospectus Supplement" and, collectively with the Preliminary
Prospectus Supplement, the "Prospectus Supplement") constitute the only information furnished to
Party B, the Beneficiary or FIA by or on behalf of Party A for inclusion in the Prospectus
Supplement as of the date thereof. Party A hereby represents and warrants that, as of the
date of the Preliminary Prospectus Supplement, the Final Prospectus Supplement and this Agreement,
the Derivative Counterparty Information is true and correct in all material respects and does not
omit to state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading.
Notwithstanding anything to the contrary herein, Party A gives no assurance that any of the
ratings described in the Derivative Counterparty Information will remain in effect for any
given period of time or that such ratings will not be lowered or withdrawn.
(ii) Additional Derivative Counterparty Information: Financial Information.
(A) Aggregate Significance Percentage of 10%.If at any time, in the sole discretion of the
Beneficiary, the "aggregate significance percentage" (as provided in Item 1115(b)(1) of
Regulation AB (as defined in Part 4(k)) of the derivative instrument provided by Party A
pursuant to this Agreement is 10% or more:
(I) Additional 1115(b)(1) Information. Party A shall within five (5) Business
Days following request therefor demonstrate to the satisfaction of the Beneficiary
and Party B that Party A is able to provide the financial information required under
Item 1115(b)(1) of Regulation AB for Party A (or for the group of affiliated
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entities, if applicable) in either XXXXX-compatible format or through the
incorporation by reference of such information from SEC filings under the
Securities Exchange Act of 1934, as amended (such information, "Additional
1115(b)(1) Information" and, together with the Additional 1115(b)(2)
Information (hereinbelow defined), "Additional Information").
(II) Alternatives to Provision of Financial Information. If Party A is unable to satisfy
the Beneficiary and Party B as to its ability to provide such information, Party A
shall, at its option, within ten (10) Business Days following request therefor:
(1) Collateral. At the sole expense of Party A, without any expense or
liability to the Beneficiary, Party B or the Indenture Trustee, promptly
post collateral satisfactory to the Beneficiary and Party B in an amount
sufficient to reduce the aggregate significance percentage to 8% or less,
pursuant to a Credit Support Annex or similar agreement reasonably
satisfactory to the Beneficiary, Party B and the Indenture Trustee, or
(2) Substitution. At the sole expense of Party A, without any expense or
liability to the Beneficiary, Party B or the Indenture Trustee, assign its
rights and delegate its obligations under this Agreement to a
substitute counterparty reasonably acceptable to the Beneficiary and Party B
that enters into an agreement substantially similar in form to this Agreement,
to the extent reasonably practicable.
(B) Aggregate Significance Percentage of 20%. If at any time, in the sole discretion of the
Beneficiary, the "aggregate significance percentage" of the derivative instrument provided by
Party A pursuant to this Agreement is 20% or more:
(I) Additional 1115(b)(2) Information. Party A shall within five (5) Business Days
following request therefor demonstrate to the satisfaction of the Beneficiary and
Party B that Party A is able to provide:
(1) Financial Information. The financial information required under Item 1115(b)(2)
of Regulation AB for Party A (or for the group of affiliated entities, if
applicable) in either XXXXX-compatible format or through the incorporation
by reference of such information from SEC filings under the Securities
Exchange Act of 1934, as amended (such
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information, "Additional 1115(b)(2) Information"), together with
(2) Auditor's Consents. Any necessary auditor's consent to filing or
incorporation by reference of the Additional 1115(b)(2) Information.
(II) Alternatives to Provision of Financial Information. If Party A is unable to satisfy the
Beneficiary and Party B as to its ability to provide such information and consents,
Party A shall, at its option, within ten (10) Business Days following request therefor:
(1) Collateral. At the sole expense of Party A, without any expense or liability to
the Beneficiary, Party B or the Indenture Trustee, promptly post collateral
satisfactory to the Beneficiary and Party A in an amount sufficient to reduce
the aggregate significance percentage to 16% or less, pursuant to a Credit
Support Annex or similar agreement reasonably satisfactory to the Beneficiary,
Party B and the Indenture Trustee, or
(2) Substitution. At the sole expense of Party A, without any expense or liability
to the Beneficiary, Party B or the Indenture Trustee, assign its rights and
delegate its obligations under this Agreement to a substitute counterparty
reasonably acceptable to the Beneficiary and Party B that enters into an
an agreement substantially similar in form to this Agreement, to the extent
reasonably practicable.
(iii) Indemnification by Party A. Party A hereby agrees to indemnify and hold harmless FIA, the Beneficiary,
Party B and the Indenture Trustee, the respective present directors, officers, employees and agents
of each of the foregoing and each person, if any, who controls FIA, the Beneficiary, Party B or the
Indenture Trustee within the meaning of Section 15 of the Securities Act of 1933, as amended (the "Act"),
or Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and against
any and all losses, claims, liabilities, damages, penalties, fines, forfeitures, legal fees and expenses
and related costs, judgments, and any other costs (including those in connection with investigation and
defense), fees and expenses that any of them may sustain as and when such losses, claims, liabilities,
damages, penalties, fines, forfeitures, legal fees or expenses or related costs, judgments, or any other
costs, fees or expenses are incurred, insofar as such losses, claims, liabilities, damages, penalties,
fines, forfeitures, legal fees or expenses or related costs, judgments, or any other costs, fees or
expenses (or actions in respect thereof) arise out of or are based upon:
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(A) any untrue statement or alleged untrue statement of any material fact contained in
the Derivative Counterparty Information or the Additional Information, or any omission or
an alleged omission to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading, and
(B) any failure of Party A to provide the Additional Information or any required auditor's
consents to the Beneficiary and Party B pursuant to Part 5(n) hereof.
Party A shall reimburse FIA, the Beneficiary, Party B and the Indenture Trustee, the present
respective officers, directors, employees and agents of each of the foregoing and any such
controlling person for any legal or other expenses reasonably incurred by it or any of them in
connection with investigating or defending any such losses, claims, liabilities, damages,
penalties, fines, forfeitures, legal fees or expenses or related costs, judgments, or any other
costs, fees or expenses, as and when incurred.
(iv) Indemnification by FIA, the Beneficiary and Party B. FIA, the Beneficiary and Party B, jointly
and severally, hereby agree to indemnify and hold harmless Party A, its present directors,
officers, employees and agents and each person, if any, who controls Party A within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, liabilities, damages, penalties, fines, forfeitures, legal fees and expenses
and related costs, judgments, and any other costs (including those in connection with
investigation and defense), fees and expenses that any of them may sustain as and when such
losses, claims, liabilities, damages, penalties, fines, forfeitures, legal fees or expenses or
related costs, judgments, or any other costs, fees or expenses are incurred, insofar as such
losses, claims, liabilities, damages, penalties, fines, forfeitures, legal fees or expenses or
related costs, judgments, or any other costs, fees or expenses (or actions in respect thereof)
arise out of or are based upon, any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus Supplement and the prospectus, dated July 28, 2008,
accompanying the Prospectus Supplement (other than the Derivative Counterparty Information and
the Additional Information), or any omission or an alleged omission to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (other than omissions or alleged
omissions related to the Derivative Counterparty Information or the Additional Information).
FIA, the Beneficiary and Party B, jointly and severally, shall reimburse Party A, its present
officers, directors, employees and agents and any such controlling person for any legal or
other expenses reasonably incurred by it or any of them in connection with investigating or
defending any such losses, claims, liabilities, damages, penalties, fines, forfeitures, legal
fees or expenses or related costs, judgments, or any other costs, fees or expenses, as and when
incurred.
14
The parties executing this Schedule have executed the Master Agreement and have agreed as to the
contents of this Schedule.
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BA CREDIT CARD TRUST
By: BA Credit Card Funding, LLC,
solely in its capacity as beneficiary and not in its
individual capacity
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Acknowledged and Accepted solely with
respect to Part 5(n) of this Schedule:
FIA CARD SERVICES,
NATIONAL ASSOCIATION,
as Servicer
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Acknowledged and Accepted solely with
respect to Part 5(n) of this Schedule:
BA CREDIT CARD FUNDING, LLC,
as Beneficiary
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A to Schedule
Date: August 5, 2008
To: BA Credit Card Trust
From: Bank of America, N.A.
Subject: Swap Transaction
The purpose of this communication is to set forth the terms and conditions of the swap
transaction entered into on the Trade Date referred to below (the "Swap Transaction"), between the BA CREDIT CARD
TRUST ("Party B") and BANK OF AMERICA, N.A. ("Party A"), but only relates to the BAseries 4.07% Class A(2008-9)
Notes (the "Class A Notes") issued pursuant to the Second Amended and Restated Indenture dated as of October 20,
2006 (as amended or otherwise modified from time to time, the "Base Indenture") as supplemented by the Amended
and Restated BAseries Indenture Supplement dated as of June 10, 2006 (as amended or otherwise modified from time
to time, the "Indenture Supplement") and as further supplemented by the Class A(2008-9) Terms Document dated as
of August 5, 2008 (as amended or otherwise modified from time to time, the "Terms Document"). This communication
constitutes a "Confirmation" as referred to in the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the ISDA Master Agreement
dated as of August 5, 2008 between Party A and Party B (as amended or otherwise modified from time to time, the
"Master Agreement"). All provisions contained in, or incorporated by reference to, such Master Agreement shall
govern this Confirmation except as expressly modified below.
This Confirmation and the Schedule to the Master Agreement (as amended or otherwise modified
from time to time, the "Schedule") each incorporate the definitions and provisions contained in (i) the 2000 ISDA
Definitions (as amended and supplemented through August 5, 2008) (as published by the International Swaps and
Derivatives Association, Inc.) (the "Definitions"), without regard to any amendment or supplement to the
Definitions subsequent to the date hereof, and (ii) the Terms Document, the Indenture Supplement and the Base
Indenture. In the event of any inconsistency between the definitions in the Terms Document and any of the
Indenture Supplement, the Base Indenture, the Definitions, the Schedule or this Confirmation, the definitions in
the Terms Document will govern; in the event of any inconsistency between the definitions in the Indenture
Supplement and any of the Base Indenture, the Definitions, the Schedule or this Confirmation, the definitions in
the Indenture Supplement will govern; in the event of any inconsistency between the definitions in the Base
Indenture and any of the Definitions, the Schedule or this Confirmation, the definitions in the Base Indenture
will govern; in the event of any inconsistency between this Confirmation and either the Schedule or the
Definitions, this Confirmation will govern; and in the event of any inconsistency between the Schedule and the
Definitions, the Schedule will govern.
The Master Agreement will govern only the Swap Transaction evidenced by the Schedule and this
Confirmation.
The terms of this particular Swap Transaction to which this Confirmation relates are as follows:
Trade Date: July 29, 2008
Effective Date: August 5, 2008
Termination Date: February 16, 2010 with respect to Fixed Amounts and
February 16, 2010 with respect to Floating Amounts;
provided, however, that in the event of an Early
Redemption Event described in Section 1201(c) of the Base
Indenture or an Event of Default and acceleration under
the Base Indenture with respect to the Class A Notes, the
Termination Date will be the earlier of (i) the date on
which the Notional Amount is zero and (ii) February 16,
2010 with respect to Fixed Amounts and February 16, 2010
with respect to Floating Amounts.
Fixed Amounts:
Fixed Rate Payer: Party A
Fixed Rate: 4.07%
Fixed Amount for Initial Fixed Rate Payer
Payment Date: $4,522,222.22
Fixed Amount: For each Fixed Rate Payer Payment Date other than the
initial Fixed Rate Payer Payment Date, an amount
calculated on a formula basis for that Fixed Rate Payer
Payment Date as follows:
Fixed Rate
Fixed = Notional x Fixed
Amount Amount Rate
12
Fixed Rate Notional Amount: For the initial Fixed Rate Payer Payment Date,
$1,000,000,000 (the Initial Dollar Principal Amount of the
Class A Notes), and for each Fixed Rate Payer Payment Date
thereafter the Outstanding Dollar Principal Amount of the
Class A Notes as of the Record Date immediately preceding
such Fixed Rate Payer Payment Date
Fixed Rate Payer Payment Dates: The Business Day immediately prior to each Interest
Payment Date.
Floating Amounts:
Floating Rate Payer: Party B.
Calculation Periods: For the initial Floating Rate Payer Payment Date, the
period from and including the Effective Date through the
day preceding the first Interest Payment Date; and for
each Floating Rate Payer Payment Date thereafter, each
Calculation Period will be the period from and including
the previous Interest Payment Date through the day
preceding the current Interest Payment Date.
Floating Rate Payer Payment Dates: The Business Day immediately prior to each Interest
Payment Date.
Floating Rate Option: USD-LIBOR-BBA; provided, however, that the last sentence
of the definition of "USD-LIBOR-Reference Banks" is
hereby amended to replace the penultimate use of "that
Reset Date" with "the day that is two London Banking Days
preceding that Reset Date."
Reset Dates: Means, with respect to the initial Floating Rate Payer
Payment Date, the Effective Date, and with respect to each
Floating Rate Payer Payment Date after the initial
Floating Rate Payer Payment Date, the first day of the
related Calculation Period for such Floating Rate Payer
Payment Date.
Designated Maturity: Three month.
Floating Rate Spread: The amount specified in Exhibit 1 to this Confirmation.
Floating Amount for Initial Floating Rate
Payer Payment Date: The amount specified in Exhibit 1 to this Confirmation.
Floating Rate Notional Amount: For the initial Floating Rate Payer Payment Date,
$1,000,000,000 (the Initial Dollar Principal Amount of the
Class A Notes), and for each Floating Rate Payer Payment
Date thereafter the Outstanding Dollar Principal Amount of
the Class A Notes as of the Record Date immediately
preceding such Floating Rate Payer Payment Date.
Floating Rate Day Count Fraction: Actual/360.
Compounding: Not Applicable.
Calculation Agent: Indenture Trustee.
Business Days: New York, New York and Newark, Delaware.
Interest Payment Dates: The fifteenth day of each month commencing September 15,
2008, or if such fifteenth day is not a Business Day, the
next succeeding Business Day.
Credit Support Document: Not applicable.
Other Provisions: If at any time during the Term of the Swap Transaction (i)
Party A's short-term credit rating (or the then equivalent
rating) from S&P is below A-1, or is withdrawn by
S&P, or (ii) in the case of a replacement counterparty
for Party A, if Party A does not have a short-term credit
rating from S&P, Party A's long-term credit rating (or
the then equivalent rating) from S&P is below A+, or is
withdrawn by S&P, Party A shall, within thirty days of
such rating or withdrawal, fund the interest reserve
account established and maintained as described in the
Terms Document (the "Interest Reserve Account") in an
amount equal to one-twelfth of the product of (a) the
Fixed Rate, and (b) the Outstanding Dollar Principal
Amount of the Class A Notes on the Record Date preceding
such rating or withdrawal for reinvestment in accordance
with the Terms Document; provided, however, that the
failure of Party A to adequately fund the Interest Reserve
Account within thirty days of such rating or withdrawal
shall not constitute an Event of Default pursuant to the
provisions of subsection 5(a) or a Termination Event
pursuant to the provisions of subsection 5(b). Party A
shall treat the amount on deposit in the Interest Reserve
Account as its money for tax purposes. After the funding
of the Interest Reserve Account, in the event there shall
occur an Early Termination Date as a result of an Event of
Default with respect to Party A as the Defaulting Party or
a Termination Event with respect to Party A as the
Affected Party, the funds then contained in the Interest
Reserve Account will be treated as BAseries Available
Funds to the extent provided in the Terms Document and the
Indenture Supplement. Upon termination of the Interest
Reserve Account as
provided in the Terms Document after
payment of all amounts owing to the holders of the Class A
Notes that are payable from such account, Party B will
instruct the Indenture Trustee to release all amounts on
deposit therein to Party A.
If Party B notifies Party A that netting of payments will
not apply to any of the Transactions pursuant to Part 4(i)
of the Schedule, each payment obligation of Party B under
Section 2(a)(i) of the Master Agreement in respect of this
Swap Transaction shall be subject to the condition
precedent that in respect of each such payment obligation
each amount payable by Party A with respect to this Swap
Transaction shall be paid by Party A by 12:00 noon, New
York City time, on the relevant Fixed Rate Payer Payment
Date.
London Banking Day: Banking Days in New York, New York and London, England.
Governing Law: As specified in the Schedule.
Offices: Party A is a Multibranch Party.
Party B is not a Multibranch Party.
Payment Instructions Bank of America, New York
for Party A USD: ABA# 000-000-000
For: Bank of America Charlotte Global Derivative
Settlements
Account # 6550219386
Payment Instructions The Bank of New York Mellon; New York, NY
for Party B in USD: ABA# 000-000-000
GLA# 111-565
For Further Credit to: TAS A/C# 054640
Reference: BA Credit Card Trust
Collection Account - BAseries Class A(2008-9)
Attn.: Xxxxxxxxx Xxxxxxxx 000-000-0000
Please confirm that the foregoing correctly sets forth the terms of our agreement with respect to the Swap
Transaction by signing in the space provided below and sending a copy of the executed Confirmation to us.
It has been a pleasure working with you on this transaction and we look forward to working with you again in the
future.
Very truly yours,
BANK OF AMERICA, N.A.
By: Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Agreed and Accepted by:
BA CREDIT CARD TRUST
By: BA Credit Card Funding, LLC,
solely in its capacity as beneficiary
and not in its individual capacity
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 1 to Confirmation
[Floating Rate Spread Letter]
EXHIBIT B to Schedule
Bank of America, N.A. (referred to as the derivative counterparty) is a national banking association
organized under the laws of the United States, with its principal executive offices located in Charlotte, North
Carolina. The derivative counterparty is a wholly-owned indirect subsidiary of Bank of America Corporation (the
"Corporation") and is engaged in a general consumer banking, commercial banking and trust business, offering a
wide range of commercial, corporate, international, financial market, retail and fiduciary banking services. As
of March 31, 2008, the derivative counterparty had consolidated assets of $1,355 billion, consolidated deposits
of $793 billion and stockholder's equity of $111 billion based on regulatory accounting principles.
The Corporation is a bank holding company and a financial holding company, with its principal executive
offices located in Charlotte, North Carolina. Additional information regarding the Corporation is set forth in
its Annual Report on Form 10-K for the fiscal year ended December 31, 2007, together with any subsequent
documents it filed with the Securities and Exchange Commission (the "SEC") pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
Additional information regarding the foregoing is available from the filings made by the Corporation
with the SEC, which filings can be inspected and copied at the public reference facilities maintained by the SEC
at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Xxxxxx Xxxxxx, at prescribed rates. In addition, the SEC maintains
a website at xxxx://xxx.xxx.xxx, which contains reports, proxy statements and other information regarding
registrants that file such information electronically with the SEC.
The information concerning the Corporation and the derivative counterparty contained herein is furnished
solely to provide limited introductory information and does not purport to be comprehensive. Such information is
qualified in its entirety by the detailed information appearing in the documents and financial statements
referenced herein.
Xxxxx'x currently rates the derivative counterparty's long-term debt as "Aaa" and short-term debt as
"P-1." The outlook is stable. Standard amp; Poor's currently rates the derivative counterparty's long-term debt as
"AA+" and its short-term debt as "A-1+." The outlook is negative. Fitch currently rates long-term debt of the
derivative counterparty as "AA-" and short-term debt as "F1+." The outlook is stable. Further information with
respect to such ratings may be obtained from Xxxxx'x, Standard amp; Poor's and Fitch, respectively. No assurances
can be given that the current ratings of the derivative counterparty's instruments will be maintained.
The derivative counterparty will provide copies of the most recent Bank of America Corporation Annual
Report on Form 10-K, any subsequent reports on Form 10-Q, and any required reports on Form 8-K (in each case as
filed with the SEC pursuant to the Exchange Act), and the publicly available portions of the most recent
quarterly Call Report of the derivative counterparty delivered to the Comptroller of the Currency, without
charge, to each person to whom this document is delivered, on the written request of such person. Written
requests should be directed to:
Bank of America Corporate Communications
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Communication
The delivery of this prospectus supplement by the issuing entity shall not create any implication that
there has been no change in the affairs of the Corporation or the derivative counterparty since the date hereof,
or that the information with respect to the Corporation or the derivative counterparty contained or referred to
herein is correct as of any time subsequent to the dates referred to herein.
