EXHIBIT 10.1
(Multicurrency--Cross Border)
ISDA®
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of June 22, 2007
BANK OF AMERICA, N.A. BA CREDIT CARD TRUST
("Party A") and ("Party B")
_______________________________________________________ _____________________________________________________
have entered and/or anticipate entering into one or more transactions (each a "Transaction") that are or will be
governed by this Master Agreement, which includes the schedule (the "Schedule"), and the documents and other
confirming evidence (each a "Confirmation") exchanged between the parties confirming those Transactions.
Accordingly, the parties agree as follows:--
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have the meanings therein specified
for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and the other
provisions of this Master Agreement, the Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the Schedule), such Confirmation will prevail
for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the fact that this Master Agreement
and all Confirmations form a single agreement between the parties (collectively referred to as this "Agreement"),
and the parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each Confirmation to be made by it,
subject to the other provisions of this Agreement.
(ii) Payments under this Agreement will be made on the due date for value on that date in the place of
the account specified in the relevant Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the required currency. Where settlement is
by delivery (that is, other than by payment), such delivery will be made for receipt on the due date in
the manner customary for the relevant obligation unless otherwise specified in the relevant Confirmation
or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1) the condition precedent that
no Event of Default or Potential Event of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date in respect of the relevant
Transaction has occurred or been effectively designated and (3) each other applicable condition precedent
specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a payment or delivery by giving
notice to the other party at least five Local Business Days prior to the scheduled date for the payment or
delivery to which such change applies unless such other party gives timely notice of a reasonable objection to
such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make payment of any such amount will be
automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable by one
party exceeds the aggregate amount that would otherwise have been payable by the other party, replaced by an
obligation upon the party by whom the larger aggregate amount would have been payable to pay to the other party
the excess of the larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount will be determined in respect of
all amounts payable on the same date in the same currency in respect of such Transactions, regardless of whether
such amounts are payable in respect of the same Transaction. The election may be made in the Schedule or a
Confirmation by specifying that subparagraph (ii) above will not apply to the Transactions identified as being
subject to the election, together with the starting date (in which case subparagraph (ii) above will not, or will
cease to, apply to such Transactions from such date). This election may be made separately for different groups
of Transactions and will apply separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any deduction or withholding for
or on account of any Tax unless such deduction or withholding is required by any applicable law, as
modified by the practice of any relevant governmental revenue authority, then in effect. If a party is so
required to deduct or withhold, then that party ("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be deducted or withheld (including
the full amount required to be deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that such deduction or withholding is
required or receiving notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy), or other documentation
reasonably acceptable to Y, evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to which Y is
otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the
net amount actually received by Y (free and clear of Indemnifiable Taxes, whether assessed against X
or Y) will equal the full amount Y would have received had no such deduction or withholding been
required. However, X will not be required to pay any additional amount to Y to the extent that it
would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to Section 3(f) to be accurate and true
unless such failure would not have occurred but for (I) any action taken by a taxing authority,
or brought in a court of competent jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or brought with respect to a party to
this Agreement) or (II) a Change in Tax Law.
(ii) Liability. If:--
(1) X is required by any applicable law, as modified by the practice of any relevant governmental
revenue authority, to make any deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against X,
then, except to the extent Y has satisfied or then satisfies the liability resulting from such Tax, Y will
promptly pay to X the amount of such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective designation of an Early Termination
Date in respect of the relevant Transaction, a party that defaults in the performance of any payment obligation
will, to the extent permitted by law and subject to Section 6(c), be required to pay interest (before as well as
after judgment) on the overdue amount to the other party on demand in the same currency as such overdue amount,
for the period from (and including) the original due date for payment to (but excluding) the date of actual
payment, at the Default Rate. Such interest will be calculated on the basis of daily compounding and the actual
number of days elapsed. If, prior to the occurrence or effective designation of an Early Termination Date in
respect of the relevant Transaction, a party defaults in the performance of any obligation required to be settled
by delivery, it will compensate the other party on demand if and to the extent provided for in the relevant
Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed to be repeated by each party on
each date on which a Transaction is entered into and, in the case of the representations in Section 3(f), at all
times until the termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organized and validly existing under the laws of the jurisdiction of its
organization or incorporation and, if relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other documentation relating to this
Agreement to which it is a party, to deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform its obligations under this
Agreement and any obligations it has under any Credit Support Document to which it is a party and has
taken all necessary action to authorize such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance do not violate or conflict with
any law applicable to it, any provision of its constitutional documents, any order or judgment of any
court or other agency of government applicable to it or any of its assets or any contractual restriction
binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to have been obtained by it with
respect to this Agreement or any Credit Support Document to which it is a party have been obtained and are
in full force and effect and all conditions of any such consents have been complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any Credit Support Document to which
it is a party constitute its legal, valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its knowledge,
Termination Event with respect to it has occurred and is continuing and no such event or circumstance would occur
as a result of its entering into or performing its obligations under this Agreement or any Credit Support Document
to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge, threatened against it or any of its
Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body,
agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it
of this Agreement or any Credit Support Document to which it is a party or its ability to perform its obligations
under this Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is furnished in writing by or on
behalf of it to the other party and is identified for the purpose of this Section 3(d) in the Schedule is, as of
the date of the information, true, accurate and complete in every material aspect.
(e) Payer Tax Representation. Each representation specified in the Schedule as being made by it for the
purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as being made by it for the
purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have any obligation under this Agreement
or under any Credit Support Document to which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or, in certain cases under subparagraph
(iii) below, to such government or taxing authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified in the Schedule or any
Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation; and
(iii) upon reasonable demand by such other party, any form or document that may be required or reasonably
requested in writing in order to allow such other party or its Credit Support Provider to make a payment
under this Agreement or any applicable Credit Support Document without any deduction or withholding for or
on account of any Tax or with such deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially prejudice the legal or commercial
position of the party in receipt of such demand), with any such form or document to be accurate and
completed in a manner reasonably satisfactory to such other party and to be executed and to be delivered
with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if none is specified, as soon as
reasonably practicable.
(b) Maintain Authorizations. It will use all reasonable efforts to maintain in full force and effect all
consents of any governmental or other authority that are required to be obtained by it with respect to this
Agreement or any Credit Support Document to which it is a party and will use all reasonable efforts to obtain any
that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all applicable laws and orders to which it
may be subject if failure so to comply would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made by it under Section 3(f) to be
accurate and true promptly upon learning of such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax levied or imposed upon it or in
respect of its execution or performance of this Agreement by a jurisdiction in which it is incorporated,
organized, managed and controlled, or considered to have its seat, or in which a branch or office through which it
is acting for the purpose of this Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the other
party against any Stamp Tax levied or imposed upon the other party or in respect of the other party's execution or
performance of this Agreement by any such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction with
respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of any of the following events constitutes an
event of default (an "Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due, any payment under this Agreement
or delivery under Section 2(a)(i) or 2(e) required to be made by it if such failure is not remedied on or
before the third Local Business Day after notice of such failure is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or perform any agreement or obligation
(other than an obligation to make any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) or to give notice of a Termination Event or any agreement or obligation under Section 4(a)(i),
4(a)(iii) or 4(d)) to be complied with or performed by the party in accordance with this Agreement if such
failure is not remedied on or before the thirtieth day after notice of such failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such party to comply with or perform
any agreement or obligation to be complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or the failing or ceasing of
such Credit Support Document to be in full force and effect for the purpose of this Agreement (in
either case other than in accordance with its terms) prior to the satisfaction of all obligations
of such party under each Transaction to which such Credit Support Document relates without the
written consent of the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or rejects, in
whole or in part, or challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation under Section 3(e) or (f)) made or
repeated or deemed to have been made or repeated by the party or any Credit Support Provider of such party
in this Agreement or any Credit Support Document proves to have been incorrect or misleading in any
material respect when made or repeated or deemed to have been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support Provider of such party or any
applicable Specified Entity of such party (1) defaults under a Specified Transaction and, after giving
effect to any applicable notice requirement or grace period, there occurs a liquidation of, an
acceleration of obligations under, or an early termination of, that Specified Transaction, (2) defaults,
after giving effect to any applicable notice requirement or grace period, in making any payment or
delivery due on the last payment, delivery or exchange date of, or any payment on early termination of, a
Specified Transaction (or such default continues for at least three Local Business Days if there is no
applicable notice requirement or grace period) or (3) disaffirms, disclaims, repudiates or rejects, in
whole or in part, a Specified Transaction (or such action is taken by any person or entity appointed or
empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as applying to the party, the
occurrence or existence of (1) a default, event of default or other similar condition or event (however
described) in respect of such party, any Credit Support Provider of such party or any applicable Specified
Entity of such party under one or more agreements or instruments relating to Specified Indebtedness of any
of them (individually or collectively) in an aggregate amount of not less than the applicable Threshold
Amount (as specified in the Schedule) which has resulted in such Specified Indebtedness becoming, or
becoming capable at such time of being declared, due and payable under such agreements or instruments,
before it would otherwise have been due and payable or (2) a default by such party, such Credit Support
Provider or such Specified Entity (individually or collectively) in making one or more payments on the due
date thereof in an aggregate amount of not less than the applicable Threshold Amount under such agreements
or instruments (after giving effect to any applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable Specified Entity
of such party:--
(1) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (2) becomes
insolvent or is unable to pay its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment, arrangement or composition with
or for the benefit of its creditors; (4) institutes or has instituted against it a proceeding
seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or
insolvency law or other similar law affecting creditors' rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such proceeding or petition instituted or
presented against it, such proceeding or petition (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or restrained in each case within 30 days
of the institution or presentation thereof; (5) has a resolution passed for its winding-up,
official management or liquidation (other than pursuant to a consolidation, amalgamation or
merger); (6) seeks or becomes subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all
or substantially all its assets; (7) has a secured party take possession of all or substantially
all its assets or has a distress, execution, attachment, sequestration or other legal process
levied, enforced or sued on or against all or substantially all its assets and such secured party
maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in
each case within 30 days thereafter; (8) causes or is subject to any event with respect to it
which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events
specified in clauses (1) to (7) (inclusive); or (9) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider of such party consolidates
or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger or transfer:--
(1) the resulting, surviving or transferee entity fails to assume all the obligations of such
party or such Credit Support Provider under this Agreement or any Credit Support Document to
which it or its predecessor was a party by operation of law or pursuant to an agreement
reasonably satisfactory to the other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend (without the consent of the
other party) to the performance by such resulting, surviving or transferee entity of its
obligations under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of any event specified below constitutes an
Illegality if the event is specified in (i) below, a Tax Event if the event is specified in (ii) below or a Tax
Event Upon Merger if the event is specified in (iii) below, and, if specified to be applicable, a Credit Event
Upon Merger if the event is specified pursuant to (iv) below or an Additional Termination Event if the event is
specified pursuant to (v) below:--
(i) Illegality. Due to the adoption of, or any change in, any applicable law after the date on which a
Transaction is entered into, or due to the promulgation of, or any change in, the interpretation by any
court, tribunal or regulatory authority with competent jurisdiction of any applicable law after such date,
it becomes unlawful (other than as a result of a breach by the party of Section 4(b)) for such party
(which will be the Affected Party):--
(1) to perform any absolute or contingent obligation to make a payment or delivery or to
receive a payment or delivery in respect of such Transaction or to comply with any other material
provision of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to perform, any contingent or
other obligation which the party (or such Credit Support Provider) has under any Credit Support
Document relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is entered into (regardless of whether such
action is taken or brought with respect to a party to this Agreement) or (y) a Change in Tax Law, the
party (which will be the Affected Party) will, or there is a substantial likelihood that it will, on the
next succeeding Scheduled Payment Date (1) be required to pay to the other party an additional amount in
respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under Section
2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an amount is required to be deducted or
withheld for or on account of a Tax (except in respect of interest under Section 2(e), 6(d)(ii) or 6(e))
and no additional amount is required to be paid in respect of such Tax under Section 2(d)(i)(4) (other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next succeeding Scheduled Payment
Date will either (1) be required to pay an additional amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount has been deducted or withheld for or on account of any Indemnifiable Tax in
respect of which the other party is not required to pay an additional amount (other than by reason of
Section 2(d)(i)(4)(A) or (B)), in either case as a result of a party consolidating or amalgamating with,
or merging with or into, or transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified in the Schedule as applying to
the party, such party ("X"), any Credit Support Provider of X or any applicable Specified Entity of X
consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets
to, another entity and such action does not constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is materially weaker than that of X,
such Credit Support Provider or such Specified Entity, as the case may be, immediately prior to such
action (and, in such event, X or its successor or transferee, as appropriate, will be the Affected Party);
or
(v) Additional Termination Event. If any "Additional Termination Event" is specified in the Schedule or
any Confirmation as applying, the occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination Event in the Schedule or such
Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would otherwise constitute or give
rise to an Event of Default also constitutes an Illegality, it will be treated as an Illegality and
will not constitute an Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of Default with respect to a party
(the "Defaulting Party") has occurred and is then continuing, the other party (the "Non-defaulting Party") may,
by not more than 20 days notice to the Defaulting Party specifying the relevant Event of Default, designate a day
not earlier than the day such notice is effective as an Early Termination Date in respect of all outstanding
Transactions. If, however, "Automatic Early Termination" is specified in the Schedule as applying to a party,
then an Early Termination Date in respect of all outstanding Transactions will occur immediately upon the
occurrence with respect to such party of an Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or,
to the extent analogous thereto, (8), and as of the time immediately preceding the institution of the relevant
proceeding or the presentation of the relevant petition upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will, promptly upon becoming aware of it,
notify the other party, specifying the nature of that Termination Event and each Affected Transaction and
will also give such other information about that Termination Event as the other party may reasonably
require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under Section 5(b)(i)(1) or a Tax
Event occurs and there is only one Affected Party, or if a Tax Event Upon Merger occurs and the Burdened
Party is the Affected Party, the Affected Party will, as a condition to its right to designate an Early
Termination Date under Section 6(b)(iv), use all reasonable efforts (which will not require such party to
incur a loss, excluding immaterial, incidental expenses) to transfer within 20 days after it gives notice
under Section 6(b)(i) all its rights and obligations under this Agreement in respect of the Affected
Transactions to another of its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give notice to the other party to that
effect within such 20 day period, whereupon the other party may effect such a transfer within 30 days
after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to and conditional upon the prior
written consent of the other party, which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there are
two Affected Parties, each party will use all reasonable efforts to reach agreement within 30 days after
notice thereof is given under Section 6(b)(i) on action to avoid that Termination Event.
(iv) Right to Terminate. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii), as the case may be,
has not been effected with respect to all Affected Transactions within 30 days after an Affected
Party gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or an Additional Termination
Event occurs, or a Tax Event Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case of a Tax Event Upon Merger, any
Affected Party in the case of a Tax Event or an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the case of a Credit Event Upon Merger or
an Additional Termination Event if there is only one Affected Party may, by not more than 20 days notice
to the other party and provided that the relevant Termination Event is then continuing, designate a day
not earlier than the day such notice is effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section 6(a) or (b), the Early
Termination Date will occur on the date so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination Date, no further payments or
deliveries under Section 2(a)(i) or 2(e) in respect of the Terminated Transactions will be required to be
made, but without prejudice to the other provisions of this Agreement. The amount, if any, payable in
respect of an Early Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the occurrence of an Early Termination
Date, each party will make the calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail, such calculations (including all
relevant quotations and specifying any amount payable under Section 6(e)) and (2) giving details of the
relevant account to which any amount payable to it is to be paid. In the absence of written confirmation
from the source of a quotation obtained in determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any Early Termination Date under
Section 6(e) will be payable on the day that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of an Event of Default) and on the day
which is two Local Business Days after the day on which notice of the amount payable is effective (in the
case of an Early Termination Date which is designated as a result of a Termination Event). Such amount
will be paid together with (to the extent permitted under applicable law) interest thereon (before as well
as after judgment) in the Termination Currency, from (and including) the relevant Early Termination Date
to (but excluding) the date such amount is paid, at the Applicable Rate. Such interest will be calculated
on the basis of daily compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the following provisions shall apply
based on the parties' election in the Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the parties fail to designate a payment
measure or payment method in the Schedule, it will be deemed that "Market Quotation" or the "Second Method", as
the case may be, shall apply. The amount, if any, payable in respect of an Early Termination Date and determined
pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event of Default:--
(1) First Method and Market Quotation. If the First Method and Market Quotation apply, the
Defaulting Party will pay to the Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the Defaulting Party will pay to
the Non-defaulting Party, if a positive number, the Non-defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and Market Quotation apply, an amount
will be payable equal to (A) the sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party less (B) the Termination Currency Equivalent of the
Unpaid Amounts owing to the Defaulting Party. If that amount is a positive number, the Defaulting
Party will pay it to the Non-defaulting Party; if it is a negative number, the Non-defaulting Party
will pay the absolute value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an amount will be payable equal
to the Non-defaulting Party's Loss in respect of this Agreement. If that amount is a positive
number, the Defaulting Party will pay it to the Non-defaulting Party; if it is a negative number,
the Non-defaulting Party will pay the absolute value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a Termination Event:--
(1) One Affected Party. If there is one Affected Party, the amount payable will be determined in
accordance with Section 6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4), if Loss
applies, except that, in either case, references to the Defaulting Party and to the Non-defaulting
Party will be deemed to be references to the Affected Party and the party which is not the Affected
Party, respectively, and, if Loss applies and fewer than all the Transactions are being terminated,
Loss shall be calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:--
(A) if Market Quotation applies, each party will determine a Settlement Amount in respect of
the Terminated Transactions, and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of the party with the higher
Settlement Amount ("X") and the Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b)
the Termination Currency Equivalent of the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in respect of this Agreement (or, if
fewer than all the Transactions are being terminated, in respect of all Terminated
Transactions) and an amount will be payable equal to one-half of the difference between the
Loss of the party with the higher Loss ("X") and the Loss of the party with the lower Loss
("Y").
If the amount payable is a positive number, Y will pay it to X; if it is a negative number, X will pay
the absolute value of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs because
"Automatic Early Termination" applies in respect of a party, the amount determined under this Section 6(e)
will be subject to such adjustments as are appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement (and retained by such other party) during
the period from the relevant Early Termination Date to the date for payment determined under Section
6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an amount recoverable under this
Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such amount is payable for the loss
of bargain and the loss of protection against future risks and except as otherwise provided in this
Agreement neither party will be entitled to recover any additional damages as a consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or obligation in or under this Agreement may
be transferred (whether by way of security or otherwise) by either party without the prior written consent of the
other party, except that:--
(a) a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation with, or
merger with or into, or transfer of all or substantially all its assets to, another entity (but without prejudice
to any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any amount payable to it from a
Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement will be made in the relevant
currency specified in this Agreement for that payment (the "Contractual Currency"). To the extent permitted by
applicable law, any obligation to make payments under this Agreement in the Contractual Currency will not be
discharged or satisfied by any tender in any currency other than the Contractual Currency, except to the extent
such tender results in the actual receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual Currency, of the full amount in the
Contractual Currency of all amounts payable in respect of this Agreement. If for any reason the amount in the
Contractual Currency so received falls short of the amount in the Contractual Currency payable in respect of this
Agreement, the party required to make the payment will, to the extent permitted by applicable law, immediately pay
such additional amount in the Contractual Currency as may be necessary to compensate for the shortfall. If for
any reason the amount in the Contractual Currency so received exceeds the amount in the Contractual Currency
payable in respect of this Agreement, the party receiving the payment will refund promptly the amount of such
excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or order expressed in a currency
other than the Contractual Currency is rendered (i) for the payment of any amount owing in respect of this
Agreement, (ii) for the payment of any amount relating to any early termination in respect of this Agreement or
(iii) in respect of a judgment or order of another court for the payment of any amount described in (i) or (ii)
above, the party seeking recovery, after recovery in full of the aggregate amount to which such party is entitled
pursuant to the judgment or order, will be entitled to receive immediately from the other party the amount of any
shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other currency and will refund promptly to the
other party any excess of the Contractual Currency received by such party as a consequence of sums paid in such
other currency if such shortfall or such excess arises or results from any variation between the rate of exchange at
which the Contractual Currency is converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting in a reasonable manner and in good
faith in converting the currency received into the Contractual Currency, to purchase the Contractual Currency with
the amount of the currency of the judgment or order actually received by such party. The term "rate of exchange"
includes, without limitation, any premiums and costs of exchange payable in connection with the purchase of or
conversion into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these indemnities constitute separate
and independent obligations from the other obligations in this Agreement, will be enforceable as separate and
independent causes of action, will apply notwithstanding any indulgence granted by the party to which any payment
is owed and will not be affected by judgment being obtained or claim or proof being made for any other sums
payable in respect of this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient for a party to demonstrate
that it would have suffered a loss had an actual exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with
respect to its subject matter and supersedes all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this Agreement will be effective unless in
writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties or
confirmed by an exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the
parties under this Agreement will survive the termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights, powers, remedies and privileges
provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies and privileges
provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect of it) may be executed and
delivered in counterparts (including by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each Transaction from the moment they
agree to those terms (whether orally or otherwise). A Confirmation shall be entered into as soon as
practicable and may be executed and delivered in counterparts (including by facsimile transmission) or be
created by an exchange of telexes or by an exchange of electronic messages on an electronic messaging
system, which in each case will be sufficient for all purposes to evidence a binding supplement to this
Agreement. The parties will specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect of this
Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or
privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege
or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of reference only and are not to affect
the construction of or to be taken into consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that enters into a Transaction
through an Office other than its head or home office represents to the other party that, notwithstanding the place
of booking office or jurisdiction of incorporation or organization of such party, the obligations of such party
are the same as if it had entered into the Transaction through its head or home office. This representation will
be deemed to be repeated by such party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives payments or deliveries for the
purpose of a Transaction without the prior written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such Multibranch Party may make and
receive payments or deliveries under any Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect to a Transaction will be specified in the
relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party for and against all reasonable
out-of-pocket expenses, including legal fees and Stamp Tax, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any Credit Support Document to which the
Defaulting Party is a party or by reason of the early termination of any Transaction, including, but not limited
to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in any manner
set forth below (except that a notice or other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in accordance with the electronic
messaging system details provided (see the Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is received by a responsible
employee of the recipient in legible form (it being agreed that the burden of proving receipt will be on
the sender and will not be met by a transmission report generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt
requested), on the date that mail is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic message is received,
unless the date of delivery (or attempted delivery) or that receipt, as applicable, is not a Local Business Day or
that communication is delivered (or attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and effective on the first following day that
is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the address, telex or facsimile
number or electronic messaging system details at which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in accordance with the law specified in
the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement ("Proceedings"),
each party irrevocably:--
(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 Act 1982 or any modification, extension or re-enactment thereof for the time
being in force) nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if any) specified opposite its
name in the Schedule to receive, for it and on its behalf, service of process in any Proceedings. If for any
reason any party's Process Agent is unable to act as such, such party will promptly notify the other party and
within 30 days appoint a substitute process agent acceptable to the other party. The parties irrevocably consent
to service of process given in the manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent permitted by applicable law,
with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on
the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief
by way of injunction, order for specific performance or for recovery of property, (iv) attachment of its assets
(whether before or after judgment) and (v) execution or enforcement of any judgment to which it or its revenues
or assets might otherwise be entitled in any Proceedings in the courts of any jurisdiction and irrevocably
agrees, to the extent permitted by applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event consisting of an Illegality, Tax Event or
Tax Event Upon Merger, all Transactions affected by the occurrence of such Termination Event and (b) with respect
to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any entity controlled, directly or
indirectly, by the person, any entity that controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of any entity or person means
ownership of a majority of the voting power of the entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been but for Section 2(a)(iii)) by a
Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either party from and after the date
(determined in accordance with Section 6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would have been but for Section
2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification of, or any change in or
amendment to, any law (or in the application or official interpretation of any law) that occurs on or after the
date on which the relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorization, exemption, notice, filing, registration or
exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or evidence of any actual cost) to the
relevant payee (as certified by it) if it were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section 6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in respect of a payment under this
Agreement but for a present or former connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to such recipient (including, without
limitation, a connection arising from such recipient or related person being or having been a citizen or resident
of such jurisdiction, or being or having been organised, present or engaged in a trade or business in such
jurisdiction, or having or having had a permanent establishment or fixed place of business in such jurisdiction,
but excluding a connection arising solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of tax matters, by the practice of
any relevant governmental revenue authority) and "lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial banks are open for business
(including dealings in foreign exchange and foreign currency deposits) (a) in relation to any obligation under
Section 2(a)(i), in the place(s) specified in the relevant Confirmation or, if not so specified, as otherwise
agreed by the parties in writing or determined pursuant to provisions contained, or incorporated by reference, in
this Agreement, (b) in relation to any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such payment, (c) in relation to any
notice or other communication, including notice contemplated under Section 5(a)(i), in the city specified in the
address for notice provided by the recipient and, in the case of a notice contemplated by Section 2(b), in the
place where the relevant new account is to be located and (d) in relation to Section 5(a)(v)(2), in the relevant
locations for performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated Transactions, as the case may be, and a
party, the Termination Currency Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number) in connection with this Agreement
or that Terminated Transaction or group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without duplication, loss or cost incurred as a
result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position (or any
gain resulting from any of them). Loss includes losses and costs (or gains) in respect of any payment or
delivery required to have been made (assuming satisfaction of each applicable condition precedent) on or before
the relevant Early Termination Date and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or
(3) or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and out-of-pocket expenses referred to
under Section 11. A party will determine its Loss as of the relevant Early Termination Date, or, if that is not
reasonably practicable, as of the earliest date thereafter as is reasonably practicable. A party may (but need
not) determine its Loss by reference to quotations of relevant rates or prices from one or more leading dealers
in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated Transactions and a party making the
determination, an amount determined on the basis of quotations from Reference Market-makers. Each quotation will
be for an amount, if any, that would be paid to such party (expressed as a negative number) or by such party
(expressed as a positive number) in consideration of an agreement between such party (taking into account any
existing Credit Support Document with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that would have the effect of preserving
for such party the economic equivalent of any payment or delivery (whether the underlying obligation was absolute
or contingent and assuming the satisfaction of each applicable condition precedent) by the parties under Section
2(a)(i) in respect of such Terminated Transaction or group of Terminated Transactions that would, but for the
occurrence of the relevant Early Termination Date, have been required after that date. For this purpose, Unpaid
Amounts in respect of the Terminated Transaction or group of Terminated Transactions are to be excluded but,
without limitation, any payment or delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation as such party and the Reference
Market-maker may, in good faith, agree. The party making the determination (or its agent) will request each
Reference Market-maker to provide its quotation to the extent reasonably practicable as of the same day and time
(without regard to different time zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be obtained will be selected in good
faith by the party obligated to make a determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the Market Quotation will be the
arithmetic mean of the quotations, without regard to the quotations having the highest and lowest values. If
exactly three such quotations are provided, the Market Quotation will be the quotation remaining after
disregarding the highest and lowest quotations. For this purpose, if more than one quotation has the same
highest value or lowest value, then one of such quotations shall be disregarded. If fewer than three quotations
are provided, it will be deemed that the Market Quotation in respect of such Terminated Transaction or group of
Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or evidence of any actual cost) to the
Non-defaulting party (as certified by it) if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or home office.
"Potential Event of Default" means any event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market selected by the party determining a
Market Quotation in good faith (a) from among dealers of the highest credit standing which satisfy all the
criteria that such party applies generally at the time in deciding whether to offer or to make an extension of
credit and (b) to the extent practicable, from among such dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in which the party is incorporated,
organized, managed and controlled or considered to have its seat, (b) where an Office through which the party is
acting for purposes of this Agreement is located, (c) in which the party executes this Agreement and (d) in
relation to any payment, from or through which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be made under Section 2(a)(i) with
respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or withholding or similar right or
requirement to which the payer of an amount under Section 6 is entitled or subject (whether arising under this
Agreement, another contract, applicable law or otherwise) that is exercised by, or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether positive or negative) for each
Terminated Transaction or group of Terminated Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to any Unpaid Amounts) for each
Terminated Transaction or group of Terminated Transactions for which a Market Quotation cannot be determined or
would not (in the reasonable belief of the party making the determination) produce a commercially reasonable
result.
"Specified Entity" has the meaning specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether present or future, contingent or
otherwise, as principal or surety or otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction (including an agreement with respect
thereto) now existing or hereafter entered into between one party to this Agreement (or any Credit Support
Provider of such party or any applicable Specified Entity of such party) and the other party to this Agreement (or
any Credit Support Provider of such other party or any applicable Specified Entity of such other party) which is a
rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any option with respect to any of these
transactions), (b) any combination of these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or fee of any nature (including
interest, penalties and additions thereto) that is imposed by any government or other taxing authority in respect
of any payment under this Agreement other than a stamp, registration, documentation or similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a) if resulting from a Termination
Event, all Affected Transactions and (b) if resulting from an Event of Default, all Transactions (in either case)
in effect immediately before the effectiveness of the notice designating that Early Termination Date (or, if
"Automatic Early Termination" applies, immediately before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in the Termination Currency, such
Termination Currency amount and, in respect of any amount denominated in a currency other than the Termination
Currency (the "Other Currency"), the amount in the Termination Currency determined by the party making the
relevant determination as being required to purchase such amount of such Other Currency as at the relevant Early
Termination Date, or, if the relevant Market Quotation or Loss (as the case may be), is determined as of a later
date, that later date, with the Termination Currency at the rate equal to the spot exchange rate of the foreign
exchange agent (selected as provided below) for the purchase of such Other Currency with the Termination Currency
at or about 11:00 a.m. (in the city in which such foreign exchange agent is located) on such date as would be
customary for the determination of such a rate for the purchase of such Other Currency for value on the relevant
Early Termination Date or that later date. The foreign exchange agent will, if only one party is obliged to make
a determination under Section 6(e), be selected in good faith by that party and otherwise will be agreed by the
parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger or, if specified to be applicable,
a Credit Event Upon Merger or an Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the cost (without proof or evidence of
any actual cost) to each party (as certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination Date, the aggregate of (a) in
respect of all Terminated Transactions, the amounts that became payable (or that would have become payable but for
Section 2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early Termination Date and which remain
unpaid as at such Early Termination Date and (b) in respect of each Terminated Transaction, for each obligation
under Section 2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be settled by delivery
to such party on or prior to such Early Termination Date and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market value of that which was (or would have been) required to be
delivered as of the originally scheduled date for delivery, in each case together with (to the extent permitted
under applicable law) interest, in the currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be calculated on the basis of daily
compounding and the actual number of days elapsed. The fair market value of any obligation referred to in clause
(b) above shall be reasonably determined by the party obliged to make the determination under Section 6(e) or, if
each party is so obliged, it shall be the average of the Termination Currency Equivalents of the fair market
values reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below with effect
from the date specified on the first page of this document.
BANK OF AMERICA, N.A. BA CREDIT CARD TRUST
By: BA CREDIT CARD FUNDING, LLC, as
beneficiary and not in its
individual capacity
_______________________________________________________ _________________________________________________________
(Name of Party) (Name of Party)
By /s/ Micheal G. Mask By /s/ Keith W. Landis
Name: Micheal G. Mask Name: Keith W. Landis
Title: Senior Vice President Title: Vice President
Date: June 22, 2007 Date: June 22, 2007
SCHEDULE
to the
Master Agreement
dated as of June 22, 2007
between
BANK OF AMERICA, N.A. ("Party A"),
and
The BA CREDIT CARD TRUST ("Party B"), a statutory trust created pursuant to a trust agreement dated as of May 4,
2001, as amended and restated as of May 24, 2001, and as amended as of July 12, 2001, as of August 1, 2002, as of
June 27, 2003 and as of January 27, 2006, and as amended and restated as of June 10, 2006 and as of October 20, 2006
(as amended, restated or otherwise modified from time to time, the "Trust Agreement").
Party B intends to issue BAseries Class A(2007-8) Notes (the "Class A Notes") pursuant to the Second Amended and
Restated Indenture dated as of October 20, 2006 (as amended from time to time, the "Base Indenture") as supplemented
by the Amended and Restated BAseries Indenture Supplement dated as of June 10, 2006 (as amended from time to time,
the "Indenture Supplement") and as further supplemented by the Class A(2007-8) Terms Document dated as of June 22,
2007 (the "Terms Document" and, collectively with the Base Indenture and the Indenture Supplement, the "Indenture").
Part 1. Termination Provisions.
In this Agreement:
(a) "Specified Entity" shall not apply for purposes of this Agreement.
(b) "Specified Transaction" will have no meaning for the purpose of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii), the "Misrepresentation" provisions of Section
5(a)(iv), the "Default under Specified Transaction" provisions of Section 5(a)(v), the "Cross Default"
provisions of Section 5(a)(vi), the "Merger Without Assumption" provisions of Section 5(a)(viii), "Tax
Event Upon Merger" provisions of Section 5(b)(iii), and the "Credit Event Upon Merger" provisions of
Section 5(b)(iv) will not apply to Party A and will not apply to Party B. Solely with respect to payments
required to be made by Party A after the occurrence of an Early Redemption Event with respect to the Class
A Notes, the word "the third" in the final line of Section 5(a)(i) shall be replaced with "12:00 noon New
York City time of the first (or such other time as may be mutually agreed to by Party A, Party B and the
Note Rating Agencies)".
1
(d) The "Automatic Early Termination" provisions of Section 6(a) will not apply to Party A and will not apply
to Party B.
(e) Payments on Early Termination. For the purpose of Section 6(e) of this Agreement, Market Quotation and the
Second Method will apply; provided, however, that in the case of an Event of Default with respect to Party
A as the Defaulting Party or a Termination Event with respect to Party A as the sole Affected Party, the
related Settlement Amount, if negative, will be deemed to be zero if the Market Quotation (as such term is
modified pursuant to Part 1(f) below) cannot be determined.
(f) Market Quotation. Notwithstanding anything to the contrary in the definition of Market Quotation in
Section 14, in the case of an Event of Default with respect to Party A as the Defaulting Party or a
Termination Event with respect to Party A as the sole Affected Party, if each Market Quotation is negative,
the Market Quotation will be deemed to be the negative quotation with the highest absolute value received
from the Reference Market-makers. To the extent that Party B, using its best efforts, is able to obtain
only one Market Quotation from the Reference Market-makers, Party A and Party B agree that Party B shall
enter into a Replacement Transaction with the Reference Market-maker providing such Market Quotation. To
the extent reasonably practicable, any agreement entered into with a Reference Market-maker in connection
with, and for the purpose of, creating a Replacement Transaction shall be on substantially similar terms as
the terms of this Agreement.
(g) Settlement Amount. Notwithstanding anything to the contrary in the definition of Settlement Amount in
Section 14, in the case of an Event of Default with respect to Party A as the Defaulting Party or a
Termination Event with respect to Party A as the sole Affected Party, the amount calculated pursuant to
paragraph (b) of the definition of Settlement Amount in respect of Party A shall be deemed to be zero.
(h) "Reference Market-maker" will not have the meaning specified in Section 14, but will instead mean the
following:
"Reference Market-maker" means five leading dealers in the relevant market selected by the party
determining the Market Quotation in good faith (a) from among dealers which are rated not lower
than investment grade by Standard & Poor's Ratings Services ("S&P") and Moody's Investors Service,
Inc. ("Moody's") 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.
2
(ii) An amendment and/or supplement to (A) the Second Amended and Restated Pooling and
Servicing Agreement, dated as of October 20, 2006 (as amended, supplemented or otherwise modified
from time to time, the "Pooling and Servicing Agreement"), between BA Credit Card Funding, LLC, as
Transferor (the "Transferor"), FIA Card Services, National Association, as Servicer ("FIA"), and
The Bank of New York, as Trustee (the "Trustee") (other than the execution of a series supplement
or an amendment, supplement or modification of a series supplement that is not the Series 2001-D
Supplement (as defined below)), (B) the Second Amended and Restated Series 2001-D Supplement, dated
as of October 20, 2006 (as amended, supplemented or otherwise modified from time to time, the
"Series 2001-D Supplement" and, collectively with the Pooling and Servicing Agreement and the Trust
Agreement, the "Base Transaction Documents"), between the Transferor, FIA and the Trustee, (C) the
Trust Agreement, or (D) the Indenture (other than the execution of a terms document or an
amendment, supplement or modification of a terms document that is not the Terms Document), is made
without the prior written consent of Party A (such consent not to be unreasonably withheld), if
such amendment and/or supplement: (a) adversely affects any of Party A's rights or obligations
under this Agreement; or (b) adversely modifies, or materially impairs the ability of Party B to
fully perform, any of Party B's obligations under this Agreement. For purposes of Section 6 of
this Agreement, Party B shall be the sole Affected Party.
Part 2. Tax Representations.
(a) Payer Tax Representations. For the purpose of Section 3(e) of this Agreement, Party A and Party B will
each make the following representation:
It is not required by any applicable law, as modified by the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax
from any payment (other than interest under Sections 2(e), 6(d)(ii) and 6(e) of this Agreement) to be made
by it to the other party under this Agreement. In making this representation, it may rely on (i) the
accuracy of any representation made by the other party pursuant to Section 3(f) of this Agreement, (ii) the
satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy
and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) and 4(a)(iii) of
this Agreement; and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of
this Agreement, provided that it shall not be a breach of this representation where reliance is placed on
clause (ii) and the other party does not deliver a form or document under Section 4(a)(iii) by reason of
material prejudice to its legal or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of this Agreement, Party A and Party B make the
following representations:
(i) The following representation will apply to Party B:
It is a US person for US federal income tax purposes.
3
(ii) The following representation will apply to Party A:
It is a national banking association for US federal income tax purposes.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 3(d), 4(a)(i) and (ii) of this Agreement, each party agrees to deliver the
following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
=========================================================================================================
Party required to Date by which Covered by Section
deliver document Form/Document/Certificate to be delivered 3(d) Representation
_________________________________________________________________________________________________________
Party B Any form or document that may be Promptly upon No
reasonably requested, and that reasonable demand by
Party B is eligible to provide, in the other party.
order 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 reasonable demand by
Party A is eligible to provide, in the other party.
order 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 thereafter promptly
form or document that may be upon reasonable
reasonably requested, and that demand by Party A and
Party B is eligible to provide, in (iii) promptly upon
order to allow the requesting learning that such
party to make a payment without form previously
(or with reduced) withholding Tax. provided by Party B
has become obsolete
or incorrect.
=========================================================================================================
4
(b) Other documents to be delivered are:
_________________________________________________________________________________________________________
Party required to Form/Document/Certificate Date by which Covered by Section
deliver document to be delivered 3(d)
_________________________________________________________________________________________________________
Party A An opinion of counsel (which may Upon execution of Yes
be in-house counsel) for Party A this Agreement
in the form reasonably acceptable
to Party B
_________________________________________________________________________________________________________
Party A An incumbency certificate with Upon execution of Yes
respect to the signatory of this this Agreement
Agreement
_________________________________________________________________________________________________________
Party B An opinion of counsel for Party B Upon execution of Yes
in the form reasonably acceptable this Agreement
to Party A
_________________________________________________________________________________________________________
Party B An incumbency certificate with Upon execution of Yes
respect to the signatory of this 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
233 South Wacker Drive, Suite 2800
Chicago, IL 60606
Attention: Swap Operations
Telephone No.: (312) 234-2732
Facsimile No.: (312) 234-3603
5
with a copy to:
Bank of America, N.A.
100 N. Tryon St., NC1-007-23-16
Charlotte, North Carolina 28255
Attention: Capital Markets Documentation
Facsimile No.: (704) 386-4113 or (980) 387-9566
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
214 North Tryon Street
Suite #21-39
NC1-027-21-04
Charlotte, North Carolina 28255
Attention: Marcie Copson-Hall
with a copy to:
Bank of America, National Association
101 S. Tryon Street
Mail Code: NC1-002-29-01
Charlotte, North Carolina 28255
Attention: Caroline Tsai
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.
6
(e) Calculation Agent. The Calculation Agent is the Indenture Trustee, unless otherwise specified in a
Confirmation in relation to the relevant Transaction.
(f) Credit Support Document. Details of any Credit Support Document:
In the case of Party A: Not applicable.
In the case of Party B: Not applicable.
(g) Credit Support Provider.
In relation to Party A: Not applicable.
In relation to Party B: Not applicable.
(h) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State
of New York (without reference to choice of law doctrine but without prejudice to the provisions of
Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York).
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement will apply to any of the
Transactions, except that it will not apply to payments by each Party to the other if Party B so notifies
Party A at least ten (10) days in advance of the date such payments are due.
(j) "Affiliate" will have the meaning specified in Section 14 of this Agreement, except that with respect to
Party B there shall be deemed to be no Affiliates.
(k) "Regulation AB" means Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. §§
229.1100-229.1123, as such regulation may be amended from time to time and subject to such clarification
and interpretation as have been provided by the Securities and Exchange Commission ("SEC") in the adopting
release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7,
2005)) or by the staff of the SEC, or as may be provided in writing by the SEC or its staff.
Part 5. Other Provisions.
(a) Confirmation. The Confirmation, dated the date hereof, between Party A and Party B supplements, forms part
of, and will be read and construed as one with, this Agreement. A form of Confirmation is set forth as
Exhibit A hereto. This document shall be construed to form a single agreement with one Confirmation.
Reference to this "Agreement" means, with respect to a Transaction, this document together with the
Confirmation.
(b) Waiver of Trial By Jury. Each party waives, to the fullest extent permitted by applicable law, any right
it may have to a trial by jury in respect of any suit, action or proceeding relating to this Agreement or
any Transaction contemplated hereby. Each party (i) certifies that no representative, agent or attorney of
the other party has
7
represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been
induced to enter this Agreement by, among other things, the mutual waivers and certifications in this
Section.
(c) Non-Petition. To the fullest extent permitted by applicable law, Party A hereby agrees that it will not
commence or join in commencing any bankruptcy or other insolvency action against Party B prior to the date
which is one year and one day after all Notes (as such term is defined in the Base Indenture) of Party B
have been paid in full. Nothing herein shall prevent Party A from participating in any such proceeding
once commenced.
(d) Assignment. In the event the long-term, senior unsecured debt rating of Party A is lowered to below the
category of BBB- by S&P or Baa3 by 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.
(e) Provision for Payments from Party B. Notwithstanding anything contained in this Agreement to the contrary,
any amount required to be paid by Party B pursuant to this Agreement will be payable only to the extent
provided in, and from amounts on deposit in the Interest Funding sub-Account for the Class A(2007-8) Notes
which are specifically available to be applied therefor pursuant to, Section 3.13(d) of the Indenture
Supplement, as determined pursuant to Section 2.03(b) of the Terms Document and any amounts specifically
available to be applied therefor pursuant to Section 2.12 of the Terms Document (as such terms are defined
in the Confirmation). Party A will be entitled to the benefit of the Collateral and the obligations of
Party B under this Agreement will be secured obligations, in each case in accordance with the terms of the
Indenture. Party A will be a third-party beneficiary of the Indenture.
(f) Relationship Between Parties. Each party will be deemed to represent to the other party on the date on
which it enters into this Agreement that (absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary):
(i) Non-Reliance. It is acting for its own account, and it has made its own independent decisions to
enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its
own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as investment advice or as a recommendation to enter
into this Agreement; it being understood that information and explanations related to the terms and
conditions of this Agreement shall not be considered investment advice or a recommendation to enter into
this Agreement. No communication (written or oral) received from the other party shall be deemed to be an
assurance or guarantee as to the expected results of this Agreement.
(ii) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its
own behalf or through independent professional advice), and
8
understands and accepts, the terms, conditions and risks of this Agreement. It is also capable of assuming,
and assumes, the risks of this Agreement.
(iii) Status of Parties. The other party is not acting as a fiduciary for or as adviser to it in respect
of this Agreement.
(iv) It is entering into this Agreement, each Transaction and any other documentation relating to this
Agreement or any Transaction as principal (and not as agent or in any other capacity, fiduciary or
otherwise).
(g) Additional Representations.
(i) Each of Party A and Party B represents that (i) it is an "eligible contract participant" as defined
in § 1a(12) of the Commodity Exchange Act, as amended by the Commodity Futures Modernization Act of 2000 (7
U.S.C. § 1a(12)) and (ii) the material terms of this Agreement and the Swap Transaction have been
individually tailored and negotiated.
(ii) Party B represents that: (i) it has the power to perform its obligations under the Indenture and
has taken all necessary action to authorize such performance; (ii) all governmental and other consents that
are required to have been obtained by it with respect to the Indenture have been obtained and are in full
force and effect and all conditions of any such consents have been complied with; (iii) its obligations
under the Indenture constitute its legal, valid and binding obligations, enforceable in accordance with
their terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in equity or at law)); (iv) no
Event of Default (as defined in the Indenture) or Early Redemption Event (as defined in the Indenture) with
respect to any series, class or tranche of notes issued by it has occurred and is continuing and no such
event or circumstance would occur as a result of Party B entering into or performing its obligations under
the Indenture; and (v) there is not pending or, to its knowledge, threatened against it any action, suit or
proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any
arbitrator that is likely to affect the legality, validity or enforceability against it of the Indenture or
its ability to perform its obligations under the Indenture.
(h) Negative Interest Rates. Party A and Party B agree that:
if, with respect to a Calculation Period for a Transaction, a party ("X") is obligated to pay a Floating
Amount that is a negative number (either by reason of a negative Floating Rate or the subtraction of a
Spread from the Floating Rate), the Floating Amount with respect to X for that Calculation Period will be
deemed to be zero, and the other party ("Y") will pay to X the absolute value of the negative Floating
Amount, in addition to any amounts otherwise owed by Y to X, on the Payment Date such Floating Amount would
have been payable if it had been a positive number. Any amounts paid by Y to X pursuant to this provision
will be paid to such account as X may designate (unless Y gives timely notice
9
of a reasonable objection to such designation) in the currency in which that Floating Amount would have been
paid if it had been a positive number (and without regard to the currency in which Y is otherwise obligated
to make payments).
(i) Limited Recourse. It is expressly understood and agreed by the parties hereto that (i) this Agreement and
each Transaction entered into pursuant to this Agreement is entered into by BA Credit Card Trust (the
"Trust") in the exercise of the powers and authority conferred and vested in it and not by the Transferor
individually or as Beneficiary, (ii) the representations, undertakings and agreements herein made on the
part of the Trust are made and intended not as personal representations, undertakings and agreements by the
Beneficiary but are made and intended for the purpose of binding only the Trust, (iii) nothing herein
contained shall be construed as creating any liability on the part of the Beneficiary, individually or
personally, to perform any covenant either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties who are signatories to this Agreement and by any Persons
claiming by, through or under such parties; provided, however, that the Beneficiary shall be liable in its
individual capacity for its own willful misconduct or gross negligence and (iv) notwithstanding the proviso
to clause (iii) above, under no circumstances shall the Beneficiary be personally liable for the payment of
any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this Agreement.
(j) Condition Precedent. It shall be a condition precedent to the effectiveness of this Agreement that the
Trust shall credit the Required Derivative Reserve Amount to the Derivative Reserve Account on the Issuance
Date.
(k) Notice to Note Rating Agencies. Provided that Party B has actual knowledge of such event, Party B shall
provide prompt written notice to the Note Rating Agencies of any amendment to, or any transfer or
assignment of, this Agreement.
(l) USA PATRIOT Act Notice. Party A hereby notifies Party B that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Patriot Act"), Party A
is required to obtain, verify and record information that identifies Party B, which information includes
the name and address of Party B and other information that will allow Party A to identify Party B in
accordance with the Patriot Act.
(m) Additional Acknowledgments and Agreements of the Parties.
(i) Consent by Party A to Amendments to Certain Documents. Before any amendment or supplement is made
to any Base Transaction Document (other than the execution of a series supplement or an amendment,
supplement or modification of a series supplement that is not the Series 2001-D Supplement) or the
Indenture (other than the execution of a terms document or an amendment, supplement or modification
of a terms document that is not the Terms Document) which would materially and adversely affect any
of Party A's rights or obligations under this Agreement, or materially and adversely modify, or
materially impair
10
the ability of Party B to fully perform, any of Party B's obligations under this Agreement, Party B
shall provide Party A with a copy of the proposed amendment or supplement and shall obtain the
written consent of Party A (which consent shall not be unreasonably withheld) to such amendment or
supplement prior to its adoption. For the avoidance of doubt, any Base Transaction Document and the
Indenture may be amended, supplemented or otherwise modified in accordance with the terms thereof
without the consent of Party A to cure any typographical error or ambiguity, provided that such
actions shall not materially and adversely affect in any respects the interests of Party A.
(n) Disclosure and Related Matters.
(i) Derivative Counterparty Information: Name, Organizational Form, General Character of Business,
Issued Ratings. The parties hereto acknowledge and agree that the statements set forth in Exhibit
B hereto (the "Derivative Counterparty Information"), which shall be set forth under the heading
"Transaction Parties—Derivative Counterparty" in the prospectus supplement, subject to completion,
related to the Class A Notes, dated June 12, 2007 (the "Preliminary Prospectus Supplement"), and
the prospectus supplement, related to the Class A Notes, dated June 13, 2007 (the "Final Prospectus
Supplement" and, collectively with the Preliminary Prospectus Supplement, the "Prospectus
Supplement") constitute the only information furnished to Party B, the Beneficiary or FIA by or on
behalf of Party A for inclusion in the Prospectus Supplement as of the date thereof. Party A
hereby represents and warrants that, as of the date of the Preliminary Prospectus Supplement, the
Final Prospectus Supplement and this Agreement, the Derivative Counterparty Information is true and
correct in all material respects and does not omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading. Notwithstanding anything to the contrary herein, Party A gives no
assurance that any of the ratings described in the Derivative Counterparty Information will remain
in effect for any given period of time or that such ratings will not be lowered or withdrawn.
(ii) Additional Derivative Counterparty Information: Financial Information.
(A) Aggregate Significance Percentage of 10%. If at any time, in the sole discretion
of the Beneficiary, the "aggregate significance percentage" (as provided in Item
1115(b)(1) of Regulation AB (as defined in Part 4(k)) of 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
11
entities, if applicable) in either EDGAR-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 EDGAR-compatible format or through
the incorporation by reference of such information from SEC filings
under the Securities Exchange Act of 1934, as amended (such
12
information, "Additional 1115(b)(2) Information"), together with
(2) Auditor's Consents. Any necessary auditor's consent to filing or
incorporation by reference of the Additional 1115(b)(2) Information.
(II) Alternatives to Provision of Financial Information. If Party A is unable to
satisfy the Beneficiary and Party B as to its ability to provide such information
and consents, Party A shall, at its option, within ten (10) Business Days
following request therefor:
(1) Collateral. At the sole expense of Party A, without any expense or
liability to the Beneficiary, Party B or the Indenture Trustee, promptly
post collateral satisfactory to the Beneficiary and Party A in an amount
sufficient to reduce the aggregate significance percentage to 16% or
less, pursuant to a Credit Support Annex or similar agreement reasonably
satisfactory to the Beneficiary, Party B and the Indenture Trustee, or
(2) Substitution. At the sole expense of Party A, without any expense or
liability to the Beneficiary, Party B or the Indenture Trustee, assign
its rights and delegate its obligations under this Agreement to a
substitute counterparty reasonably acceptable to the Beneficiary and
Party B that enters into an agreement substantially similar in form to
this Agreement, to the extent reasonably practicable.
(iii) Indemnification by Party A. Party A hereby agrees to indemnify and hold harmless FIA, the
Beneficiary, Party B and the Indenture Trustee, the respective present directors, officers,
employees and agents of each of the foregoing and each person, if any, who controls FIA, the
Beneficiary, Party B or the Indenture Trustee within the meaning of Section 15 of the Securities
Act of 1933, as amended (the "Act"), or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), from and against any and all losses, claims, liabilities, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs, judgments, and any other
costs (including those in connection with investigation and defense), fees and expenses that any of
them may sustain as and when such losses, claims, liabilities, damages, penalties, fines,
forfeitures, legal fees or expenses or related costs, judgments, or any other costs, fees or
expenses are incurred, insofar as such losses, claims, liabilities, damages, penalties, fines,
forfeitures, legal fees or expenses or related costs, judgments, or any other costs, fees or
expenses (or actions in respect thereof) arise out of or are based upon:
13
(A) any untrue statement or alleged untrue statement of any material fact contained in the
Derivative Counterparty Information or the Additional Information, or any omission or an
alleged omission to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading, and
(B) any failure of Party A to provide the Additional Information or any required auditor's
consents to the Beneficiary and Party B pursuant to Part 5(n) hereof.
Party A shall reimburse FIA, the Beneficiary, Party B and the Indenture Trustee, the present
respective officers, directors, employees and agents of each of the foregoing and any such
controlling person for any legal or other expenses reasonably incurred by it or any of them in
connection with investigating or defending any such losses, claims, liabilities, damages,
penalties, fines, forfeitures, legal fees or expenses or related costs, judgments, or any other
costs, fees or expenses, as and when incurred.
(iv) Indemnification by FIA, the Beneficiary and Party B. FIA, the Beneficiary and Party B, jointly and
severally, hereby agree to indemnify and hold harmless Party A, its present directors, officers,
employees and agents and each person, if any, who controls Party A within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, from and against any and all losses, claims,
liabilities, damages, penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs (including those in connection with investigation and defense), fees
and expenses that any of them may sustain as and when such losses, claims, liabilities, damages,
penalties, fines, forfeitures, legal fees or expenses or related costs, judgments, or any other
costs, fees or expenses are incurred, insofar as such losses, claims, liabilities, damages,
penalties, fines, forfeitures, legal fees or expenses or related costs, judgments, or any other
costs, fees or expenses (or actions in respect thereof) arise out of or are based upon, any untrue
statement or alleged untrue statement of any material fact contained in the Prospectus Supplement
and the prospectus, dated June 12, 2007, accompanying the Prospectus Supplement (other than the
Derivative Counterparty Information and the Additional Information), or any omission or an alleged
omission to state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading (other
than omissions or alleged omissions related to the Derivative Counterparty Information or the
Additional Information).
FIA, the Beneficiary and Party B, jointly and severally, shall reimburse Party A, its present
officers, directors, employees and agents and any such controlling person for any legal or other
expenses reasonably incurred by it or any of them in connection with investigating or defending any
such losses, claims, liabilities, damages, penalties, fines, forfeitures, legal fees or expenses or
related costs, judgments, or any other costs, fees or expenses, as and when incurred.
14
The parties executing this Schedule have executed the Master Agreement and have agreed as to the contents
of this Schedule.
BANK OF AMERICA, N.A.
By: /s/ Micheal G. Mask
Name: Micheal G. Mask
Title: Senior Vice President
BA CREDIT CARD TRUST
By: BA Credit Card Funding, LLC,
solely in its capacity as beneficiary and not in its
individual capacity
By: /s/ Keith W. Landis
Name: Keith W. Landis
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/ Keith W. Landis
Name: Keith W. Landis
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/ Keith W. Landis
Name: Keith W. Landis
Title: Vice President
EXHIBIT A to Schedule
Date: June 22, 2007
To: BA Credit Card Trust
From: Bank of America, N.A.
Subject: Swap Transaction
The purpose of this communication is to set forth the terms and conditions of the swap transaction
entered into on the Trade Date referred to below (the "Swap Transaction"), between the BA CREDIT CARD TRUST ("Party
B") and BANK OF AMERICA, N.A. ("Party A"), but only relates to the BAseries 5.59% Class A(2007-8) Notes (the "Class A
Notes") issued pursuant to the Second Amended and Restated Indenture dated as of October 20, 2006 (as amended from
time to time, the "Base Indenture") as supplemented by the Amended and Restated BAseries Indenture Supplement dated
as of June 10, 2006 (as amended from time to time, the "Indenture Supplement") and as further supplemented by the
Class A(2007-8) Terms Document dated as of June 22, 2007 (the "Terms Document"). This communication constitutes a
"Confirmation" as referred to in the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the ISDA Master Agreement dated as
of June 22, 2007 between Party A and Party B (the "Master Agreement"). All provisions contained in, or incorporated
by reference to, such Master Agreement shall govern this Confirmation except as expressly modified below.
This Confirmation and the Schedule to the Master Agreement (the "Schedule") each incorporate the
definitions and provisions contained in (i) the 2000 ISDA Definitions (as amended and supplemented through June 22,
2007) (as published by the International Swaps and Derivatives Association, Inc.) (the "Definitions"), without
regard to any amendment or supplement to the Definitions subsequent to the date hereof, and (ii) the Terms Document,
the Indenture Supplement and the Base Indenture. In the event of any inconsistency between the definitions in the
Terms Document and any of the Indenture Supplement, the Base Indenture, the Definitions, the Schedule or this
Confirmation, the definitions in the Terms Document will govern; in the event of any inconsistency between the
definitions in the Indenture Supplement and any of the Base Indenture, the Definitions, the Schedule or this
Confirmation, the definitions in the Indenture Supplement will govern; in the event of any inconsistency between the
definitions in the Base Indenture and any of the Definitions, the Schedule or this Confirmation, the definitions in
the Base Indenture will govern; in the event of any inconsistency between this Confirmation and either the Schedule
or the Definitions, this Confirmation will govern; and in the event of any inconsistency between the Schedule and
the Definitions, the Schedule will govern.
The Master Agreement will govern only the Swap Transaction evidenced by the Schedule and this
Confirmation.
The terms of this particular Swap Transaction to which this Confirmation relates are as follows:
Trade Date: June 13, 2007
Effective Date: June 22, 2007
Termination Date: June 15, 2012; 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) June 15, 2012.
Fixed Amounts:
Fixed Rate Payer: Party A
Fixed Rate: 5.59%
Fixed Amount for Initial Fixed Rate Payer
Payment Date: $4,114,861.11
Fixed Amount: For each Fixed Rate Payer Payment Date other than the
initial Fixed Rate Payer Payment Date, an amount
calculated on a formula basis for that Fixed Rate
Payer Payment Date as follows:
Fixed Rate
Fixed = Notional x Fixed
Amount Amount Rate
_______________________
12
Fixed Rate Notional Amount: For the initial Fixed Rate Payer Payment Date,
$500,000,000 (the Initial Dollar Principal Amount of
the Class A Notes), and for each Fixed Rate Payer
Payment Date thereafter the Outstanding Dollar
Principal Amount of the Class A Notes as of the
Record Date immediately preceding such Fixed Rate
Payer Payment Date
Fixed Rate Payer Payment Dates: The Business Day immediately prior to each Interest
Payment Date.
Floating Amounts:
Floating Rate Payer: Party B.
Calculation Periods: For the initial Floating Rate Payer Payment Date, the
period from and including the
Effective Date through the day preceding
the first Interest Payment Date; and for
each Floating Rate Payer Payment Date
thereafter, each Calculation Period will be the
period from and including the previous Interest
Payment Date through the day preceding the current
Interest Payment Date.
Floating Rate Payer Payment Dates: The Business Day immediately prior to each Interest
Payment Date.
Floating Rate Option: USD-LIBOR-BBA; provided, however, that the last
sentence of the definition of "USD-LIBOR-Reference
Banks" is hereby amended to replace the penultimate
use of "that Reset Date" with "the day that is two
London Banking Days preceding that Reset Date."
Reset Dates: Means, with respect to the initial Floating Rate
Payer Payment Date, the Effective Date, and with
respect to each Floating Rate Payer Payment Date
after the initial Floating Rate Payer Payment Date,
the first day of the related Calculation Period for
such Floating Rate Payer Payment Date.
Designated Maturity: One month.
Floating Rate Spread: Plus the "Floating Rate Spread," as defined in
Exhibit 1 to this Confirmation.
Floating Amount for Initial Floating Rate The amount specified in Exhibit 1 to this
Payer Payment Date: Confirmation.
Floating Rate Notional Amount: For the initial Floating Rate Payer Payment Date,
$500,000,000 (the Initial Dollar Principal Amount of
the Class A Notes), and for each Floating Rate Payer
Payment Date thereafter the Outstanding Dollar
Principal Amount of the Class A Notes as of the
Record Date immediately preceding such Floating Rate
Payer Payment Date.
Floating Rate Day Count Fraction: Actual/360.
Compounding: Not Applicable.
Calculation Agent: Indenture Trustee.
Business Days: New York and Newark, Delaware.
Interest Payment Dates: The fifteenth day of each month commencing August 15,
2007, or if such fifteenth day is not a
Business Day, the next succeeding Business Day.
Credit Support Document: Not applicable.
Other Provisions: If at any time during the Term of the Swap
Transaction (i) Party A's short-term credit rating
(or the then equivalent rating) from S&P is below
A-1, or is withdrawn by S&P, or (ii) in the case of a
replacement counterparty for Party A, if Party A does
not have a short-term credit rating from S&P, Party
A's long-term credit rating (or the then equivalent
rating) from S&P is below A+, or is withdrawn by S&P,
Party A shall, within thirty days of such rating or
withdrawal, fund the interest reserve account
established and maintained as described in the Terms
Document (the "Interest Reserve Account") in an
amount equal to one-twelfth of the product of (a) the
Fixed Rate, and (b) the Outstanding Dollar Principal
Amount of the Class A Notes on the Record Date
preceding such rating or withdrawal for reinvestment
in accordance with the Terms Document; provided,
however, that the failure of Party A to adequately
fund the Interest Reserve Account within thirty days
of such rating or withdrawal shall not constitute an
Event of Default pursuant to the provisions of
subsection 5(a) or a Termination Event pursuant to
the provisions of subsection 5(b). Party A shall
treat the amount on deposit in the Interest Reserve
Account as its money for tax purposes. After the
funding of the Interest Reserve Account, in the event
there shall occur an Early Termination Date as a
result of an Event of Default with respect to Party A
as the Defaulting Party or a Termination Event with
respect to Party A as the Affected Party, the funds
then contained in the Interest Reserve Account will
be treated as BAseries Available Funds to the extent
provided in the Terms Document and the Indenture
Supplement. Upon termination of the Interest Reserve
Account as provided in the Terms Document after
payment of all amounts owing to the holders of the
Class A Notes that are payable from such account,
Party B will instruct the Indenture Trustee to
release all amounts on deposit therein to Party
A.
If Party B notifies Party A that netting of payments
will not apply to any of the Transactions pursuant to
Part 4(i) of the Schedule, each payment obligation of
Party B under Section 2(a)(i) of the Master Agreement
in respect of this Swap Transaction shall be subject
to the condition precedent that in respect of each
such payment obligation each amount payable by Party
A with respect to this Swap Transaction shall be paid
by Party A by 12:00 noon, New York City time, on the
relevant Fixed Rate Payer Payment Date.
London Banking Day: Banking Days in New York, New York and London,
England.
Governing Law: New York.
Offices: Party A is a Multibranch Party.
Party B is not a Multibranch Party.
Payment Instructions [confirm] Bank of America, New York
for Party A USD: ABA# 026-009-593
For: Bank of America Charlotte Global Derivative
Settlements
Account # 6550219386
Payment Instructions [confirm] The Bank of New York; New York, NY
for Party B in USD: ABA# 021-000-018
GLA# 111-565
For Further Credit to: TAS A/C# 054640
Reference: BA Credit Card Trust
Collection Account - BAseries Class A(2007-8)
Attn.: Catherine Cerilles 212-815-6258
Please confirm that the foregoing correctly sets forth the terms of our agreement with respect to the Swap
Transaction by signing in the space provided below and sending a copy of the executed Confirmation to us.
It has been a pleasure working with you on this transaction and we look forward to working with you again in the
future.
Very truly yours,
BANK OF AMERICA, N.A.
By: /s/ Micheal G. Mask
Name: Micheal G. Mask
Title: Senior 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/ Keith W. Landis
Name: Keith W. Landis
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, 2007, the derivative counterparty had consolidated assets of $1,204 billion, consolidated deposits of $761
billion and stockholder's equity of $109 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, 2006, together with any subsequent documents it
filed with the Securities and Exchange Commission (the "SEC") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
Recent Developments: In April 2007, the Corporation announced an agreement to purchase ABN AMRO North
America Holding Company, parent company of LaSalle Bank Corporation, from ABN AMRO Bank N.V (collectively, "ABN
AMRO") for $21 billion in cash. The transaction has been approved by both companies' boards of directors. On May 3,
2007, a court in the Netherlands ruled that ABN AMRO is enjoined from consummating the transaction until ABN AMRO's
public shareholders vote on the proposed transaction. The Corporation has filed a lawsuit against ABN AMRO in a
federal district court located in New York to enforce its legal rights.
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 100 F
Street, N.E., Washington, D.C. 20549, United States, at prescribed rates. In addition, the SEC maintains a website
at http://www.sec.gov, 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.
Moody's currently rates the derivative counterparty's long-term debt as "Aaa" and short-term debt as
"P-1." The outlook is stable. Standard & Poor's rates the derivative counterparty's long-term debt as "AA+" and its
short-term debt as "A-1+." The outlook is stable. Fitch 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 Moody's, Standard & Poor's and Fitch, respectively. No assurances can be given that the current
ratings of the derivative counterparty's instruments will be maintained.
The derivative counterparty will provide copies of the most recent Bank of America Corporation Annual
Report on Form 10-K, any subsequent reports on Form 10-Q, and any required reports on Form 8-K (in each case as
filed with the Commission pursuant to the Exchange Act), and the publicly available portions of the most recent
quarterly Call Report of the derivative counterparty delivered to the Comptroller of the Currency, without charge,
to each person to whom this document is delivered, on the written request of such person. Written requests should
be directed to:
Bank of America Corporate Communications
100 North Tryon Street, 18th Floor
Charlotte, North Carolina 28255
Attention: Corporate Communications
The delivery of this prospectus supplement shall not create any implication that there has been no change
in the affairs of the Corporation or the derivative counterparty since the date hereof, or that the information with
respect to the Corporation or the derivative counterparty contained or referred to herein is correct as of any time
subsequent to the dates referred to herein.