Multicurrency Cross Border ISDA
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of November 6, 2003
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., MBNA CREDIT CARD MASTER NOTE TRUST
"RABOBANK INTERNATIONAL" and ("Party B")
("Party A")
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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.
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK MBNA CREDIT CARD MASTER NOTE TRUST
B.A., "RABOBANK INTERNATIONAL"
By: MBNA America Bank, National Association,
solely in its capacity as beneficiary and
not in its individual capacity
- ---------------------------------------------------- -------------------------------------------------------
(Name of Party) (Name of Party)
By /s/Paul Bogaert By /s/Kevin F. Sweeney
------------------------ -------------------
Name:Paul Bogaert Name: Kevin F. Sweeney
Title: Attorney-in-Fact Title: First Vice President
Date: November 6, 2003 Date: November 6, 2003
By /s/Brett Delfino
----------------
Name:Brett Delfino
Title: Attorney-in-Fact
Date: November 6, 2003
EXECUTION COPY
SCHEDULE
to the
Master Agreement
dated as of November 6, 2003
between
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL" ("Party A"),
and
The MBNA CREDIT CARD MASTER NOTE TRUST ("Party B"), a 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 and as of June 27, 2003 (as amended and
restated, the "Trust Agreement").
Party B intends to issue MBNAseries Class A(2003-11) Notes (the "Class A Notes") pursuant to the Indenture dated as of May 24, 2001
(as amended from time to time, the "Indenture") as supplemented by the MBNAseries Indenture Supplement dated as of May 24, 2001 (as
amended from time to time, the "Indenture Supplement") and as further supplemented by the Class A(2003-11) Terms Document dated as of
November 6, 2003 (the "Terms Document").
Part 1. Termination Provisions
In this Agreement:
(a) "Specified Entity" shall not apply for purposes of this Agreement.
(b) "Specified Transaction" will have no meaning for the purpose of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii), the "Misrepresentation" provisions of Section 5(a)(iv), the
"Default under Specified Transaction" provisions of Section 5(a)(v), the "Cross Default" provisions of Section 5(a)(vi), the
"Merger Without Assumption" provisions of Section 5(a)(viii), the "Tax Event" provisions of Section 5(b)(ii), "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 "third" in the final line of Section
5(a)(i) shall be replaced with "12:00 noon New York City time of the second (or such other time as may be mutually agreed
to by Party A, Party B and the Note Rating Agencies)".
(d) The "Automatic Early Termination" provisions of Section 6(a) will not apply to Party A and will not apply to Party B.
(e) Payments on Early Termination. For the purpose of Section 6(e) of this Agreement, Market Quotation and the Second Method
will apply; provided, however, that in the case of an Event of Default with respect to Party A as the Defaulting Party or a
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Termination Event with respect to Party A as the 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 Affected Party, the Market Quotation, if negative, will be deemed to be the negative quotation, if any, with the
highest absolute value received from any Reference Market-maker, even if only one quotation is provided, with which Party B
is able, using its best efforts, to enter into a Replacement Transaction even if Party B reasonably believes such Market
Quotation would not produce a commercially reasonable result.
(g) "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 and
Poor's Ratings Services ("SandP") 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.
(h) "Termination Currency" means United States Dollars ("USD").
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.
(ii) The following representations will apply to Party A:
(A) With respect to payments made to an address outside the United States or made by a transfer of funds to an
account outside the United States, (a) it is fully eligible for the benefit of the "Business Profits" or
"Industrial and Commercial Profits" provision (as the case may be), the "Interest" provision or the "Other
Income" provision (if any) of the Specified Treaty with respect to each such payment described in such
provisions and received or to be received by it in connection with this Agreement, (b) no such payment
received or to be received by it in connection with this Agreement is or will be effectively connected with
its conduct of a trade or business in the United States, and (c) it is a non-United States branch of a
foreign person for United States federal income tax purposes.
"Specified Treaty" means the income tax treaty between the United States of America and either the United
Kingdom or the Kingdom of the Netherlands, as applicable.
(B) With respect to payments other than those described in the first clause of (A) above, each such payment
received or to be received by it is or will be effectively connected with its conduct of a trade or
business in the United States.
(C) It is a foreign corporation for United States 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:
========================== ====================================== ======================== =========================
Covered by Section 3(d)
Party required to Date by which Representation
--------------
deliver document Form/Document/Certificate to be delivered
- ---------------- ------------------------- ---------------
- -------------------------- -------------------------------------- ------------------------ -------------------------
Party B Any form or document that may be Promptly upon Yes
reasonably requested, and that Party reasonable demand by
B is eligible to provide, in order the other party.
to allow the requesting party to
make a payment without (or with
reduced) withholding Tax.
- -------------------------- -------------------------------------- ------------------------ -------------------------
Party A With respect to any payments In each case, (i) upon Yes
described in Part 2(b)(ii)(A) above, execution of the
an executed and completed United Agreement, (ii)
States Internal Revenue Service form promptly after the
W-8BEN, or any successor form, earlier of (A)
claiming a complete exemption from reasonable demand by
withholding under the Specified Party B and (B)
Treaty; and with respect to any learning that such
payments described in Part form or document is
2(b)(ii)(B) above, an executed and required, and (iii)
completed United States Internal prior to the
Revenue Service form W-8ECI, or any expiration or
successor form. obsolescence of any
Any form or document that may be previously delivered
reasonably requested, and that Party form.
A is eligible to provide, in order Promptly upon
to allow the requesting party to reasonable demand by
make a payment without (or with the other party.
reduced) withholding Tax.
========================== ====================================== ======================== =========================
(b) Other documents to be delivered are:
========================== ====================================== ======================== =========================
Party required to Date by which Covered by Section 3(d)
------------
deliver document Form/Document/Certificate to be delivered
- ---------------- ------------------------- ---------------
- -------------------------- -------------------------------------- ------------------------ -------------------------
- -------------------------- -------------------------------------- ------------------------ -------------------------
Party A Opinions of counsel for Party A Upon execution of this Yes
substantially in the form of Exhibit Agreement
A to this Schedule
- -------------------------- -------------------------------------- ------------------------ -------------------------
- -------------------------- -------------------------------------- ------------------------ -------------------------
Party A An incumbency certificate with Upon execution of this Yes
respect to the signatory of this Agreement
Agreement
- -------------------------- -------------------------------------- ------------------------ -------------------------
- -------------------------- -------------------------------------- ------------------------ -------------------------
Party B An opinion of counsel for Party B Upon execution of this Yes
substantially in the form of Exhibit Agreement
B to this Schedule
- -------------------------- -------------------------------------- ------------------------ -------------------------
- -------------------------- -------------------------------------- ------------------------ -------------------------
Party B An incumbency certificate with Upon execution of this Yes
respect to the signatory of this Agreement
Agreement
========================== ====================================== ======================== =========================
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to Party A:
Acting through its London office:
Address: Rabobank International, London Branch
Thames Court
One Queenhithe
London
EC4V 3RL
Attention: Swap Settlements
Telex No: 892950 Answerback: RABOG
Facsimile No: 207 809 3508/3523
Telephone No: 207 809 3110
Electronic Messaging System Details: Not
applicable (only with respect to Transactions through that
office.)
Acting through its Utrecht office:
Address: Rabobank International
Croeselaan 18, P.O. 17100
3500 HG, Utrecht
The Netherlands
Attention: Swap Desk
Telex No: 40025 Answerback: RABONL
Facsimile No: 00 31 30 216 2672
Telephone No: 00 31 30 216 0000
Electronic Messaging System Details: Not
applicable (only with respect to Transactions through that
office.)
Acting through its New York office:
Address: Rabobank International, New York Branch
245 Park Avenue
New York, NY 10167, USA
Attention: Swap Desk
Telex No: 6737247 Answerback: RABO UI
Facsimile No: 212 916 7959
Telephone No: 212 916 7800
Electronic Messaging System Details: Not
applicable (only with respect to Transactions through that
office.)
Address for notices or communications to Party B:
Address: MBNA Credit Card Master Note Trust
c/o MBNA America Bank,
National Association, as Beneficiary
Securitization Servicing
Wilmington, Delaware 19884-2824
Attention: Tony Romano
Telephone No.: (302) 457-0331
Facsimile No.: (302) 457-0715
For all purposes.
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Its New York Branch.
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.
Party B is not a Multibranch Party.
(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 Section 5-1401 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 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 A and Party B
there shall be deemed to be no Affiliates.
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 C 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 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 bring any action
(whether in bankruptcy or otherwise) against Party B in any court prior to the date which is one year and one day after all
Notes (as such term is defined in the Indenture) of Party B have been paid in full.
(d) Assignment. In the event the long-term senior debt rating of Party A is lowered to below the category of BBB- by SandP or
Baa3 by Moody's or such rating agencies' then equivalent ratings, or such ratings are withdrawn by either SandP 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(2003-11) 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 solely to the extent
described in the preceding sentence, 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 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.
(g) Additional Representations. 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.ss.
1a(12)) and (ii) the material terms of this Agreement and the Swap Transaction have been individually tailored and
negotiated.
(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 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 MBNA America Bank, National Association, not individually or
personally but solely as Beneficiary of the MBNA Credit Card Master Note Trust (the "Trust") in the exercise of the powers
and authority conferred and vested in it, (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
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its individual capacity for its own willful misconduct or gross negligence and (iv) 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 deposit
the Required Derivative Reserve Amount in the Derivative Reserve Account on the Issuance Date.
The parties executing this Schedule have executed the Master Agreement and have agreed as to the contents of this Schedule.
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL"
By: /s/ Paul Bogaert
-----------------
Name: Paul Bogaert
Title: Attorney-in-Fact
By: /s/Brett Delfino
----------------
Name: Brett Delfino
Title: Attorney-in-Fact
MBNA CREDIT CARD MASTER NOTE TRUST
By: MBNA America Bank, National Association,
solely in its capacity as beneficiary and not in its
individual capacity
By: /s/Kevin F. Sweeney
-------------------
Name: Kevin F. Sweeney
Title: First Vice President
DOCSDC1:174854.7 6
DOCSDC1:174854.7
EXHIBIT A to Schedule
[Form of Opinion of Counsel for Party A]
DOCSDC1:174854.7 6
DOCSDC1:174854.7
EXHIBIT B to Schedule
[Form of Opinion of Counsel for Party B]
ISDA 1992
DOCSDC1:177745.1
DOCSDC1:177745.1
EXHIBIT C to Schedule
Date: November 6, 2003
To: MBNA Credit Card Master Note Trust
Telephone: (302) 457-0331
Facsimile: (302) 457-0751
From: COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL"
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 MBNA CREDIT CARD MASTER NOTE TRUST ("Party B"), but only
relates to the MBNAseries 3.65% Class A(2003-11) Notes (the "Class A Notes") issued pursuant to the Indenture dated as of May 24,
2001 (as amended from time to time, the "Indenture") as supplemented by the MBNAseries Indenture Supplement dated as of May 24, 2001
(as amended from time to time, the "Indenture Supplement") and as further supplemented by the Class A(2003-11) Terms Document dated
as of November 6, 2003 (the "Terms Document"), and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank International"
("Party A"). 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 November 6,
2003 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 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 Indenture. In the event of any inconsistency between the definitions in the Terms
Document and any of the Indenture Supplement, the 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
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 Indenture and any of the Definitions, the Schedule or this Confirmation, the
definitions in the 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 terms of this particular Swap Transaction to which this Confirmation relates are as follows:
Trade Date: November 6, 2003
Effective Date: The Issuance Date for the Class A Notes
Termination Date: The Expected Principal Payment Date; provided, however,
-------- -------
that in the event of an Early Redemption Event described
in Section 1201(c) of the Indenture or an Event of Default
and acceleration under the 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) the Expected Principal Payment Date.
Fixed Amounts:
Fixed Rate Payer: Party A.
Fixed Rate: 3.65%
Fixed Amount for Initial Fixed Rate Payer
Payment Date: $1,977,083.33
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 For the initial Fixed Rate Payer Payment Date,
Amount: $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: Each Transfer 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: Each Transfer Date.
Floating Rate Option: USD-LIBOR-BBA; provided, however, that the last sentence
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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:
Floating Amount for Initial Floating Rate
Payer Payment Date:
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.
Credit Support Document: Not applicable.
Other Provisions: If at any time during the Term of the Swap Transaction (i)
Party A's short-term senior debt rating from SandP is below
A-1, or is withdrawn by SandP, or (ii) in the case of any
entity assuming Party A's interests and obligations under
this Confirmation, the Schedule and the Master Agreement
that does not have a short-term senior debt rating from
SandP, such entity's long-term senior debt rating from SandP
is below A+, or is withdrawn by SandP, Party B shall
establish and maintain with a Qualified Institution, in
the name of Party B for the benefit of the holders of the
Class A Notes, the interest reserve account as a
segregated trust account held for the benefit of holders
of the Class A Notes (the "Interest Reserve Account").
Within thirty days of such rating or withdrawal, Party A
shall fund 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 establishment 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 MBNAseries 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
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: New York, New York and London, England.
Governing Law: New York.
Offices: Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
Payment Instructions The Bank of New York; New York, NY
for Party A USD: ABA# 021 000 018
A/C of Rabobank International New York
A/C# 802 600 2533
Payment Instructions The Bank of New York; New York, NY
for the Trust in USD: ABA# 021-000-018
GLA# 111-565
For Further Credit to: TAS A/C# 054640
Reference: MBNA Master Note Trust Collection Account -
MBNA Class A(2003-11)
Attn.: Daniel Rothman 212-815-6165/Andrea Matteo
212-815-6058
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,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL"
By: /s/Servet Canel
---------------
Name: Servet Canel
Title: Assistant Vice President
By: /s/Alan Barbier
---------------
Name: Alan Barbier
Title: Assistant Vice President
Agreed and Accepted by:
MBNA CREDIT CARD MASTER NOTE TRUST
By: MBNA America Bank, National Association,
solely in its capacity as beneficiary
and not in its individual capacity
By: /s/Kevin F. Sweeney
-------------------
Name: Kevin F. Sweeney
Title: First Vice President